The Montana Department of Justice today filed a motion to disqualify Judge Kurt Krueger and any Montana judicial officer who “voted” on or expressed approval or disapproval of Senate Bill 140 in an email poll conducted by a Montana Supreme Court administrator. The motion also requests public disclosure of the judges who voted in the poll and moves for a stay of this proceeding until the Court can seat an impartial and independent judicial panel to decide this case.

On January 29, 2021, Montana Supreme Court Administrator Beth McLaughlin emailed every Montana Supreme Court Justice and every Montana District Court Judge—using government email accounts—to request that they “take a position” on SB140 and state that position using a “toolbar.” The email chain (attached in the filing) does not reveal the poll results or include which judges or justices used the toolbar. However, Judge Krueger and at least 17 other District Court Judges responded to McLaughlin.

The Montana Code of Judicial Conduct requires a judge to act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.  The code expressly prohibits a judge from making “any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.”   Because Judge Kreuger wrote in an email to dozens of recipients – including Chief Justice Mike Mcgrath – that “I am also adamantly oppose this bill [sic],” the Montana Code of Judicial Conduct requires he disqualify himself from the case.

Further, Judge Krueger’s public statement demonstrates actual bias, which is sufficient grounds for recusal or disqualification under the U.S. and Montana Constitutions.

The motion was submitted Thursday afternoon to the Supreme Court of Montana. A copy can be found here.