Complaint Challenges Law Allowing Governor to Appoint Judges

The seven-member Judicial Nomination Commission was created by the Legislature in 1973 to vet applicants for judicial vacancies

By Associated Press
Republican Sen. Keith Regier, left, sponsored the bill to allow the governor to directly fill between-election judicial vacancies. Beacon File Photo

HELENA – Montana’s governor has signed a bill to eliminate the state’s Judicial Nomination Commission and allow the governor to directly fill between-election vacancies in state District Courts and the Montana Supreme Court — reversing a change made in the state’s 1972 constitution. The signing of the bill by Gov. Greg Gianforte prompted an immediate legal challenge.

A delegate to the 1972 Constitutional Convention and two former lawmakers who voted to create the nominating commission in 1973 are among the petitioners who asked the Montana Supreme Court on Wednesday to declare the law unconstitutional.

Gianforte, a Republican, said in a statement after Tuesday’s bill signing that he will “appoint well-qualified judges who will protect and uphold the Constitution and who will interpret laws, not make them from the bench. I am committed to appointing judges transparently, providing for robust public input and ensuring judges have a diversity of legal background and subject matter expertise.”

The law takes effect immediately, meaning Gianforte could replace three District Court judges who were appointed last year by former Democratic Gov. Steve Bullock but have not yet been confirmed by the state Senate.

Petitioners Bob Brown and Dorothy Bradley — lawmakers who voted to create the Judicial Nomination Commission — and constitutional convention delegate Mae Nan Ellingson were joined by Vernon Finley, a former chair of the Confederated Salish and Kootenai Tribes’ Tribal Council. The League of Women Voters also asked the Montana Supreme Court for an injunction and a declaration that the law is unconstitutional.

“This case involves purely legal questions of constitutional interpretation,” the petition states. “Urgency factors exist, making litigation in the trial courts and the normal appeal process inadequate. The issues presented are of statewide importance.”

Brooke Stroyke, a spokesperson for Gianforte, said the constitution grants the governor the authority to appoint replacement judges and the new law simply removes the middleman.

The new law provides for transparency and public input by requiring the governor to publicly announce a vacancy and requiring at least 30 days for public comment on applicants, Gianforte’s administration said.

Montana’s Constitution, passed in 1972, took judicial appointment power away from the governor and instead decided the governor shall appoint replacements from nominees selected in a manner provided by law.

The seven-member Judicial Nomination Commission was created by the Legislature in 1973 to vet applicants for judicial vacancies and forward three to five names to the governor, who would then appoint one of the nominees to serve until the next election.

Republican Sen. Keith Regier, who sponsored the bill, argued the Legislature could change the nomination process and that the judicial appointment process should align more closely with appointments the governor makes to head state agencies.

Democratic Sen. Diane Sands of Missoula called the bill a “power grab by the current governor to be able to handpick judges without independent vetting or adequate public input or transparency.”

Gianforte’s office also argued that the new law provides checks on the governor’s power because appointed judges must be confirmed by the Senate and must run in the next election of the term they are filling.

Regier, who chairs the Senate Judiciary Committee, has also withheld Senate action on the nominations of District Court judges Chris Abbott of Helena, Peter Ohman of Bozeman and Michele Reinhart Levine of Great Falls until the judicial nomination bill was signed.

The governor’s office has said Gianforte would submit judicial appointments for the three judgeships if the Senate rejects Bullock’s appointments, the Montana State News Bureau reported last week.

Gianforte’s office did not immediately respond to requests for comment or whether he would ask lawmakers to reject the confirmations of Abbott, Ohman and Levine.

The Senate has, at the governor’s request, already rejected Bullock’s interim appointments for 15 boards and commissions this session in favor of Gianforte’s nominees including for the Human Rights Commission, the Montana State Fund board of directors, the Public Employees Retirement System board, the Board of Public Education and the Fish and Wildlife Commission.

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