Montana Senate and House pass resolutions seeking involvement in judicial appointments lawsuit

Senate and House Republicans passed resolutions on party lines in both chambers Friday allowing the legislature to seek to intervene in a lawsuit challenging a bill recently signed into law that would give the governor the power to fill judicial vacancies and abolish the judicial nomination commission.

Because the constitutionality of a law the legislature passed is being challenged, Majority Leader Rep. Sue Vinton from Billings said the legislature has the right to intervene.

“Our government is based on a system of checks and balances. When the constitutionality of a law we drafted, debated and passed is challenged in court, we are an indispensable party to that litigation,” said Vinton, who carried the resolution in the house.

But Rep. Danny Tenenbaum, a Missoula Democrat, argued the constitutionality of laws are challenged frequently. In this case, he said the resolutions ask the taxpayers to do the bidding of the Republican party.

“If there are members of this legislature who are upset that one of the laws that they really wanted to pass and be upheld is now being challenged as unconstitutional, they are more than able to intervene in the lawsuit with their own money. If they can’t afford it on their own, they can set up a GoFundMe to cover their legal expenses, but it’s not the job of the Montana taxpayers to cover those costs,” he said.

Time is of the essence for the resolutions, which explained their speedy ride through each chamber’s respective judiciary committee. The Montana Supreme Court, which has agreed to hear the case, has set a deadline for next Wednesday for Gov. Greg Gianforte and Attorney General Austin Knudsen to respond.

The goal of both House Resolution 7 and Senate Resolution 97 is to hire a lawyer on the taxpayer’s dime to draft a motion seeking court approval for the Legislature to join the lawsuit against Senate Bill 140.

In the Senate Judiciary Committee, Sen. Jen Gross, D-Billings, questioned the fiscal note that would set aside $10,000 for the Legislature’s defense of the bill. Bruce Spencer, who appeared on behalf of the Montana Bar Association as an informational witness, testified that he thought the bill’s allocation was low. He said he believed a lawsuit may cost more than $70,000 and may reach into the six figures.

“We cannot shy away from a lawsuit that calls into question the integrity of the Legislature,” said Sen. Cary Smith, R-Billings, who sponsored the resolution in the Senate.

Senators there were reminded that the Legislature joined a lawsuit against the Commissioner of Political Practices in 2017.

“(The petitioners at the Supreme Court) made a pretty big mistake by leaving us out when they called into question our ability to make laws and the governor’s ability to sign legislation,” Smith said.

When judicial vacancies occur, the commission narrows down applicants to a shortlist from which the governor chooses; SB140 would eliminate that process and allow the governor to directly select judges himself.

In previous testimony, pointing to donations to mostly Democratic campaigns from commission members, supporters of the bill, including the governor’s office, argued its nonpartisanship was a facade, while opponents criticized it for being a thinly veiled power grab by the governor.

On Wednesday, the Supreme Court denied a motion from Gianforte and Attorney General Austen Knudsen to disqualify judges based on the state’s association of judges taking an informal poll on the bill as it worked its way through the legislative process.

While the constitutionality of SB140 is undetermined, Republican lawmakers have started advancing its backup plan, which comes in the form of Senate Bill 402.

Put in place by the legislature after the 1972 Constitutional Convention, the Judicial Nominating Commission consists of four lay members appointed by the governor, two active attorneys, and one district judge. Under SB402, also sponsored by Smith, there would be 12 lay members appointed by the governor, giving political appointees a much stronger majority.

Also hanging in the balance is the confirmation of three judges whom former Democratic Gov. Steve Bullock appointed. The three judges, which have been serving for around six months, are Michele Reinhart Levine of Cascade County, Peter Ohman of Gallatin County, and Christopher Abbott of Lewis and Clark County.