The State Senate’s historic decision not to confirm the nomination of Cascade County Judge Michele Reinhart Levine could have serious ramifications for a court with a small number of judges that was already struggling to keep up with a growing caseload, according to data provided by the Montana judicial branch.
Even before the Legislature denied Levine’s confirmation, data from Montana’s judiciary showed that Cascade County, which has heard an average of 5,453 cases per year since 2011, was short 2.59 judges in 2020.
Levine’s seat will go unfilled until at least July 30, the deadline for Gianforte to appoint a judge under the newly enacted — and constitutionally challenged — Senate Bill 140. While Levine said she is considering applying for the vacancy, she is fully committed to running for the seat in 2022.
According to workload statistics from the judiciary, Montana was short almost 24 judges in 2020. There are slots for four judges in Cascade, and three of them are currently full, but even when all four are actively hearing cases, the workload is daunting with each judge hearing more than 1,000 cases in 2020.
To account for Levine’s absence, other judges will take on more cases.
“The plan is to have the three active judges pick up as much as they can, then judges from other judicial districts will help out, and then in June, there are two retired judges that will help out as well,” said Court Administrator, Beth McLaughlin.
Al Smith, Executive Director of the Montana Trial Lawyers Association, said that with the state already spread thin on judges it may not be that simple.
“I think more and more cases are going to get backlogged. Existing judges already have a full caseload, and there are not that many retired judges; there isn’t this deep pool of judges to help out,” he said.
Between 2011 and 2020, the number of cases and the need for judges in Cascade County both increased, according to the data. But not all cases are created equal. Child abuse and neglect, civil, drug treatment, and juvenile cases are the most time-sensitive, according to a 2021 district court report.
When priority cases pop up, it pushes other matters, to the back of the line, leaving the county with a never-ending game of catch-up.
Daylon Martin, who has been a defense attorney in Great Falls for four years said Levine’s absence compounded with COVID have sent things into a tailspin.
“Right now with COVID and everything the courts are a freaking mess. Everything is blacked up. So not having a judge has put that into more chaos because you have one less judge who can do the criminal calendar and we have cases that are one or two years old that are awaiting trial and some of those people are incarcerated,” he said.
Cascade County Attorney Josh Racki said he expects things to get even more chaotic come June 1, when all three judges will be hearing cases at the same time again.
“Right now if you have three judges and they are only doing one trial a week, they can cover for another … once that changes in June and all the judges are back is when we are expecting to see trials backed up more,” he said.
Levine, 41, first took the bench in Cascade County on Nov. 23, 2020, appointed by former Democratic Gov. Steve Bullock in the latter days of his administration.
Following the Senate’s vote on April 23, Levine became the first judge not to be confirmed by the Senate since 1973, when the state’s new constitution laid out a new process for judicial nominations.
Levine said going through the process was “rigorous, thorough and competitive” requiring a detailed 30-page application, an interview with the commission, a public comment period, and an interview with the governor.
While the Senate did not confirm Levine, it did vote to confirm two other Bullock appointees: First Judicial District Judge Chris Abbott and 18th Judicial District Judge Peter Ohman.
GOP Gov. Greg Gianforte announced Tuesday that he has begun the appointment process to name his own judge, even though the constitutionality of the law — Senate Bill 140 — granting him authority to do so is being challenged in the Montana Supreme Court.
Because the plaintiffs in the case, which include former Legislators and members of the 1972 convention, have not filed for a stay in the case, Anthony Johnstone, said Gianforte is acting prudently to move ahead with the appointment process. Johnstone is a constitutional law professor at the University of Montana Alexander Blewett III School of Law.
What is not clear is what would happen to Gianforte’s appointee if the court ruled SB140 unconstitutional.
“It could be a mess,” Johnstone said.
However, Republicans have a backup plan in Senate Bill 402 that would give political appointees a large majority on the nominating commission. The bill, which is awaiting the governor’s signature, would go into effect as soon as the court ruled SB140 is unconstitutional. But, late on Wednesday, the same plaintiffs in the case also asked the court to include SB402 for consideration, upping the legal ante on the Republicans’ plan.
Levine said she is considering applying to fill the vacancy through Gianforte. “I’m taking it under advisement because I’ve been strongly encouraged by my many supporters to think it over.”
Levine’s path to the bench was through Judicial Nominating Commission, which was established after the 1972 constitutional convention to ostensibly help keep politics out of the appointment process.
During her application process, she said she received 200 letters of support from the community and was eventually selected by Democratic Gov. Steve Bullock. Support for Levine was also on display at her March 24 hearing in front of the Senate Judiciary Committee, where everyone from a Great Falls police officer to local attorneys to a district judge showed up to back her confirmation.
But the outpouring of support was not enough to convince the Republican-controlled committee and Senate that Levine’s partisan history, including serving as a Democratic state legislator, would not clout her judgment on the bench.
Levine was unfazed by the Senate’s decision and said she plans on running for a bench spot in the 2022 election.
“I will put my trust in Cascade County, and I’m very fortunate that I already have many supporters,” she said in a telephone interview with the Daily Montanan. “I’m very committed to public service, and luckily the Constitution puts the ultimate choice in the hands of the voters. So I’m going to go work hard to earn their support.”
Levine said understands the lawmakers’ concerns, but wishes they would have focused on the support she has garnered in the few months she has been serving, instead of her time in the legislature and philanthropic pursuits.
“Being a legislator in the past, I know it’s the Legislatures’s job to make law, not the judge, I fully understood that separation of powers and the roles of the different branches,” she said. “So, I just think it’s unfortunate that it got caught up in politics the way it did, but that’s okay, I’m moving forward.”
Beyond that, she said, a large majority of the cases she heard had no relationship to divisive partisan issues.
“I don’t see social wedge issues, I have not seen cases dealing with abortion or immigration, that’s just not what I’ve dealt with. On a regular basis, I have heard a lot of crime, youth in need of care and family law cases with a little bit of civil [cases] sprinkled in there.”