Group files suit against governor, state over judicial appointments

Gianforte signed law on Tuesday; suit filed on Wednesday

By: and - March 17, 2021 4:30 pm

Details of the domes and lights beneath the state capitol rotunda in Helena, Montana. (Photo by Eric Seidle for the Daily Montanan.)

Montana Gov. Greg Gianforte signed Senate Bill 140 into law on Tuesday afternoon. The newly minted law eliminated the Judicial Nominating Commission and gave the state’s chief executive the power to appoint judges.

On Wednesday morning, a group of plaintiffs filed a lawsuit with the Montana Supreme Court to stop the law, possibly setting a state record for how soon a new law was challenged at the state’s highest court.

The lawsuit contends that the current legislature and Gianforte have trampled upon the Montana State Constitution and that direct appointment of judges was an idea specifically rejected when the Constitution was revised in 1972.

Gianforte’s office received notice of the suit on Wednesday morning and said it’s reviewing the filing before responding. Gianforte is named as the respondent, while former lawmakers, a member of the Constitutional Convention and the League of Women Voters are bringing the suit. Attorneys for the petitioners are Cliff Edwards of Billings and James H. Goetz of Bozeman.

The attorneys have filed the case with the state’s Supreme Court because they say pending judges who were appointed by former Gov. Steve Bullock, a Democrat, are in a legal limbo, especially because they haven’t been given a Senate hearing. Also, they say that because Senate Bill 140 became law upon Gianforte’s signature, he has the ability to appoint judges immediately, without the court reviewing the constitutionality of the new law.

Those three judges, already seated in Lewis and Clark, Cascade and Gallatin Counties, face an uncertain future.

“The pendency of these three appointment and the fact that the Senate has not yet confirmed this petition all the more urgent,” the lawsuit states. “If SB 140 is not immediately overturned, the next judicial replacement, at the whim of Montana’s Governor, will be constitutionally suspect, probably political, and inimical to the interest of all Montanans in a competent, independent judiciary.”

Attorneys in their petition argue the 1972 Constitutional Convention was deliberate and specific about keeping the judicial selection process an arm’s length away from the politics of the governor. In fact, they point out that the Constitutional Convention specifically changed the way judges were appointed in Montana, making it clear that the state wanted a and approved the change.

The original state Constitution, adopted when Montana was admitted to the Union in 1889, allowed the governor to appoint judges directly. However, Article VIII, provided a new process in which the governor could select a nominee from a list provided by a committee, attorneys argued.

“This threatens to politicize an otherwise nonpartisan, independent, and effective means of filling judicial vacancies,” the filing said.

Article VII calls for the governor to “appoint a replacement from nominees selected in the manner provided by law.” The court filing argues the language is clear that the nominees must come from some other source. That source, court papers said, was clearly articulated in the recorded sessions of the Constitutional Convention, and decided by the 1973 Montana Legislature, which met the year after the Constitution was adopted.

The Convention notes, used to inform voters about the new Constitution before it was ratified, told Montanans: “When there is a vacancy (such as death or resignation) the governor appoints a replacement but does not have unlimited choice of lawyers as under the 1889 Constitution. He must choose his appointee from a list of nominees.”

“The entire thrust of the Montana Constitution of 1972 was to replace the Governor’s sole discretion to fill vacancies with a system that provided a list of qualified nominees derived through an independent vetting process,” the suit said.

In fact, the attorneys point out that the 1973 Legislature, which included two plaintiffs on the lawsuit, former Secretary of State Bob Brown and former gubernatorial candidate Dorothy Bradley, adopted Senate Bill 28, which created the Judicial Nomination Commission.

Repeating concerns about the judiciary being kept nonpartisan, the attorneys quote at length from the delegates of the Constitutional Convention who argued for judicial independence:

“It is dreadfully important … that the courts be made independent, be made strong, be made unafraid to act for fear of reprisal from one of the other branches of government. And it is only in that manner that we can guarantee to our people the liberties that we wish them to have. The courts should also be made strong enough and independent enough that they have no fear of striking down an unconstitutional legislative act. They should have no fear of saying to the Executive branch of government, ‘You’ve gone too far: You’ve impugned upon the rights of individuals.”

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.

Keith Schubert
Keith Schubert

Keith Schubert 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. Keith is no longer a reporter with the Daily Montanan.