HELENA, Mont. (AP) — The Montana Supreme Court has upheld the constitutionality of a new law allowing the governor to directly nominate judges to fill vacancies — giving Gov. Greg Gianforte and the Republican-controlled Legislature a win in the first of a series of challenges to laws passed by the 2021 Legislature.
In a 6-1 ruling Thursday, the court said Montana’s Constitution states that judicial vacancies may be filled in a manner provided by law, and that the Legislature created a new law.
Under the Senate bill that led to the law, SB 140, the governor can directly nominate qualified candidates to fill judicial vacancies. Previously, the Judicial Nomination Commission vetted applicants and forwarded three to five names to the governor, from which the governor appointed a judge.
“The Montana Supreme Court reaffirmed what we’ve known to be true: SB 140 is constitutional, and our Constitution gives the legislature the authority to determine how the governor fills a judicial vacancy,” Gianforte said in a statement. “I will appoint judges who will interpret laws, not make them from the bench, and who are committed to the fair, consistent, and objective application of the law.”
Justice Laurie McKinnon dissented, saying delegates to the 1972 Constitutional Convention intended to prevent the direct gubernatorial appointment of judges, as had been previously allowed, and to create a merit-based nomination process.
Chief Justice Mike McGrath recused himself from hearing the case because he had asked Gianforte not to support the bill.
The bill, and the judiciary’s opposition to it, prompted subpoenas from the Legislature seeking the emails of the court administrator and justices to see who had expressed opinions on the legislation in a poll conducted on behalf of the Montana Judges Association.
The Supreme Court temporarily quashed the subpoena for the court administrator’s emails.
In response, Lt. Attorney General Kristen Hansen, on behalf of the state Legislature, wrote a letter to the court on April 12 advising that the “Legislature does not recognize this Court’s Order as binding and will not abide it. The Legislature will not entertain the Court’s interference in the Legislature’s investigation of the serious and troubling conduct of members of the Judiciary. The subpoena is valid and will be enforced.”
Justice Jim Rice said the “obviously contemptuous” letter and another sent six days later, demonstrated “the ignorance of history and long-established legal precedent they embodied.”
But he wrote he decided against seeking sanctions against the Legislature and the Department of Justice because until they “can demonstrate a proper understanding of the Judiciary’s constitutional authority, there is little hope they could comprehend contempt of it.”
The sponsor of bill, Republican Sen. Keith Regier of Kalispell, said it is now up to the governor “to appoint qualified, thoughtful judges who will rule strictly on the law and Constitution and not legislate from the bench,” while praising the Supreme Court for having done just that.
“The Montana Supreme Court’s ruling today is a great example of ruling strictly on the constitutionality of a law and respecting the Legislature’s role as the legislative branch of government,” Regier said in a statement Thursday.
Gianforte is in the process of reviewing applications and accepting public comment for a District Court Judge position in Great Falls after the state Senate declined to confirm Michele Reinhart Levine, who was appointed by former Gov. Steve Bullock, a Democrat.
The new judicial nomination law was challenged by former lawmakers Bob Brown and Dorothy Bradley; Mae Nan Ellingson, a delegate to Montana’s 1972 Constitutional Convention; Vernon Finley, a former chairman of the Confederated Salish and Kootenai Tribes’ Tribal Council; and the League of Women Voters.
Jim Goetz, an attorney for the plaintiffs, said no legal route exists to appeal the decision.
Several lawsuits have been filed challenging legislation passed in 2021 and signed by Gianforte, including changes to voting laws, laws that opponents argue infringe on the Board of Regents’ rights to govern and control the university system, and laws that opponents argue interfere with a contract that governs the operation of the Colstrip coal-fired power plant.