Plaintiffs in SB140 suit will seek to stop Cascade County judicial appointment

‘The Governor is now proceeding to fill the vacancy without the constitutionally required screening of the Judicial Nomination Commission’

By: - May 10, 2021 5:15 pm

Gov. Greg Gianforte speaks after being sworn in to office on Monday, Jan. 4, 2021 in the Governor’s Reception Room of the Montana State Capitol. (Photo by Thom Bridge of the Helena Independent Record)

Attorneys for former Republican Secretary of State Bob Brown and other plaintiffs in a lawsuit challenging the constitutionality of a bill signed this session overhauling the process for judicial nominations sent a letter to the state Attorney General, Gov. Greg Gianforte and their counsel in early May requesting that the governor refrain from starting the process to fill a judicial vacancy in Cascade County created when the Senate voted not to confirm a nominee from the governor’s predecessor, according to a brief filed with the state Supreme Court on May 10.

A day later, May 4, the governor’s office announced via press release that Gianforte would begin soliciting applicants for the Eighth Judicial District, a seat vacated by Judge Michele Levine, an appointee of Democratic Gov. Steve Bullock, when she lost her confirmation battle in the Senate. The Senate’s vote meant that under SB140, a bill signed earlier in the session, Gianforte has sole authority to fill judicial vacancies.

Attorneys Jim Goetz and Cliff Edwards, representing Brown and others, wrote that Gianforte would “obviate” the need for an injunction order if he agreed to hold off on the nomination process. Evidently, that request was unsuccessful, and now Goetz and Edwards say they’ll be seeking a preliminary injunction “against further gubernatorial action under SB140 until this Court resolves this constitutional challenge.”

Goetz and Edwards submitted the brief to the court in response to filings from the Legislature and executive branch questioning the standing and purpose of the SB140 litigation, which has given rise to a multilayered controversy concerning the separation of powers, perceived partisanship on the courts and allegations of improper lobbying.

Petitioners’ Reply Brief (1)

“Respondents argue that original jurisdiction is inappropriate because there is no urgency,” the brief reads. “They argue that Petitioners’ concerns are ‘speculative’ and that there are presently no judicial vacancies. However, things have changed. Recently, the Montana Senate refused to confirm the district judge for the Eighth Judicial District. The Governor is now proceeding to fill the vacancy without the constitutionally required screening of the Judicial Nomination Commission.”

A spokesperson for the governor could not be reached for comment on whether he was proceeding with the appointment process under SB140.

The Legislature’s failure to confirm Levine could aggravate an existing backlog in Cascade County, one not uncommon in many of the state’s courts.

In the rest of the filing, Goetz and Edwards reiterate their arguments for the statute’s unconstitutionality, saying it violates the plain meaning of Article VII of the state constitution. The law, they say, ignores the constitutional imperative that the governor shall appoint replacement judges from “nominees selected in the manner provided by law” and defies the intent of the framers at the 1972 constitutional convention.

Republican supporters of SB140 have said it’s a way to give more power to the governor to appoint judges of his liking, and to push back on perceived liberalism in the only branch of government that doesn’t have widespread conservative control.

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.