Legislature considers overhauling judicial nominating system

Opponents believe the measure may be unconstitutional

By: - February 8, 2021 6:02 pm

The Old Supreme Court Chambers in the state capitol in Helena (Photo by Martin Kraft, Wikimedia Commons license).

A delegate of Montana’s 1972 Constitutional Convention said she was puzzled to learn of a bill that would eliminate the Judicial Nomination Commission and give the governor unfettered authority to fill judicial vacancies.

“I cannot see what purpose this legislation serves other than installing purely partisan judges .. it is a step backward in the history of Montana when the courts were dominated by special interests,” wrote Mae Nan Ellingson, one of the delegates at the 1972 constitutional convention, in testimony provided to the Daily Montanan.

Ellingson, 24 at the time, was one of 19 women who participated in the convention and was named one of the “Ten Outstanding Constitutional Convention Delegates.”

Senate Bill 140, which the Senate Judiciary Committee will hear on Tuesday, would eliminate the Judicial Nominating Commission and give Gov. Greg Gianforte the power to fill vacancies of state district and Supreme Court judges.

Throughout the drafting process, emails show Lt. Governor Kristen Juras hand a hand in drafting the bill early on — a development Ellingson said she was disappointed to learn.

“I was hoping it was coming from just one disgruntled person who didn’t get their name approved,” Ellingson said in a phone interview.

Senate President, Mark Blasdel, R-Kalispell, was also involved in the bill’s drafting process, according to emails.

According to the governor’s office, Juras, a former law school professor, will testify on behalf of the bill Tuesday but was not available for further comment when asked by the Daily Montanan.

Juras also ran unsuccessfully for a seat on the Montana Supreme Court, but was defeated. During her campaign, opponents and other lawyers questioned her reasons for wanting to join the court, pointing to emails and other public documents which seemed to indicate she sought the seat especially because of her interest in religious cases before the courts.

In a trove of emails first reported by Tom Lutey of Lee Newspapers, one of Juras’ messages said, “I think there are going to be a lot of cases affecting religious freedom that arise over the next several years, and I’d like to be part of the decision-making body that will be addressing those issues. What I covet is prayer. Please pray that during my campaign I would always act in a way that honors God, for His favor, for opportunities, for wisdom in my campaign strategies.” 

Opponents of the bill say it is unconstitutional and gives the governor too much power by removing public oversight of the selection process. They also say the bill infuses partisanship into the process by allowing the party that holds the governor’s office to select judges on party lines.

In written testimony, the Montana State Bar said it has “profound constitutional and public policy concerns” about the bill. 

“We want an independent and impartial judiciary, and honestly, that’s what I think most Montanans want,” the bar’s Executive Director, John Mudd, said via phone.

Gianforte’s office, which is putting its weight behind the bill, said it believes the bill falls within constitutional guidelines.

The bill’s sponsor, Sen. Keith Regier, R-Kalispell, and chair of the Senate Judiciary Committee, did not respond to requests for comments on the bill. 

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From 1889 to 1973, the governor had the authority to appoint judges directly. But that system was fraught for several reasons, experts said.

Building up to the 1972 convention, there were many calls for judicial reform, Ellingson said. She pointed to corruption from corporations like the Anaconda Copper Mining Company, which often bribed judges for preferential treatment.

But according to Anthony Johnstone, a constitutional law professor at the University of Montana Alexander Blewett III School of Law, problems surrounding judicial appointments can be traced back to before statehood.

“One of the leading arguments in favor of statehood and a new state constitution all the way back in 1889 was that it was better for Montanans to pick their own judges than to have another elected official to pick them for us,” he said.

Now Montana is one of 37 states to use a judicial nominating commission to deliver appointment choices to the governor. The bill would align Montana with the federal judicial appointment process, where the president can directly appoint whomever.

By creating the commission, Johnstone said, Montana fell in line with many other states at the time by moving away from direct political appointees and towards merit-based commissions. He said he is not aware of any state that has reverted to the direct-appointment model.

While the 1972 convention reshaped the judicial selection process, it ultimately left it up to the legislature to work out the details of how nominees would make it to the governor.

The legislature decided on a commission of seven people — four lay people appointed by the governor, a district court judge, and two lawyers appointed by the state supreme court.

When there is a judicial vacancy, the commission holds applicants’ interviews and narrows down the list to three to five applicants for the governor to choose from.

The debate around the bill will center on the interpretation of a provision in the constitution that states, “the governor shall nominate a replacement from nominees selected in the manner provided by law for any vacancy in the office of supreme court justice or district court judge.”

Johnstone said he believes that delegates of the convention intended that to refer to a commission and that voters at the time were told that it referred to a commission. 

“This bill presumes it is working within the constitutional text, but even if it is within the technical letter of the constitution, there is still a question as to whether it is in the spirit of the constitution and the original meaning of those words,” he said.

However you interpret the language, one thing is clear, Ellingson said: The convention intended to put some space between the governor and judicial appointments.

Judges appointed by the governor still need to run in the next election but are typically re-elected.

“In all of the years, I have not heard any of the governors or the supreme court justices say they didn’t get a list of qualified nominees,” Ellingson said.

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Keith Schubert
Keith Schubert

Keith Schubert is a reporter for the Daily Montanan. Keith was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. He can be reached by text or call at 406-475-2954 .

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