Court upholds constitutionality of SB140

Governor can appoint judges directly, abolishing judicial nomination commission

By: - June 10, 2021 6:30 pm

The Great Seal of the State of Montana in the Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

In a decision that was as much historical as it was legal, the Montana Supreme Court ruled 6-1 that Senate Bill 140, which abolished the judicial nomination commission and clears the path for the governor to appoint judges directly, fits within the framework of the state’s constitution and was therefore legal.

Justice James Jeremiah Shea delivered the majority opinion for the court, while Justice Jim Rice concurred, but not before addressing the extraordinary and audacious behavior of Attorney General Austin Knudsen.

Justice Laurie McKinnon issued a dissenting opinion, saying the same history and analysis clearly shows SB140 is unconstitutional.

For Montana, it means the question of judicial appointments at the district court level are settled, and it clears the path for Republican Gov. Greg Gianforte to appoint a judge in Cascade County after former Judge Michele Reinhart Levine failed to win Senate support to keep her job after being appointed by former Gov. Steve Bullock, a Democrat.

“The Montana Supreme Court reaffirmed what we’ve known to be true: SB 140 is constitutional, and our Constitution gives the legislature the authority to determine how the governor fills a judicial vacancy,” Gianforte said in a statement. “I will appoint judges who will interpret laws, not make them from the bench, and who are committed to the fair, consistent, and objective application of the law.”

However, how judges get selected at the Supreme Court remains an ongoing issue, based on a lawsuit that was filed in Silver Bow County that challenges a new law passed by the Legislature that would create a geographic districting of the state’s highest and only appellate court.


In an opinion that leans as heavily on 1972 as it does on 2021, Shea chronicles the debate at the Constitutional Convention about how to structure a judiciary. Some favored the direct-appointment system, which had been in place since 1889, when the first state constitution was passed, while others devised a more robust appointment and vetting process.

Shea notes that eventually, a sort of compromise was struck where a governor could choose from a list of appointees that had to be made public, and the Legislature had the option of prescribing how that system would function.

While Shea notes the 1973 Legislature set up the judicial nomination process that was largely in place through 2020, the constitution doesn’t specify the exact manner, and left it up to lawmakers. Ultimately, the Supreme Court found that the 2021 Legislature was within its power to invent a new system, namely Senate Bill 140.

“Our consideration does not lead us to the same conclusion as Petitioners — that the commission process was the only agreed-upon method by which judicial nominees could be selected,” the ruling stated.

Attorneys for a group of plaintiffs originally said that a self-nominating process and three letters of recommendation, which SB140 requires, was “a crude attempt” at creating a process for nominees, rather than have a judicial nomination commission.

“At the end of the day, however, it is not the task of this court to assess the relative ‘crudeness’ of the process; it is to assess the constitutionality of the process within the requirements of (the constitution),” the opinion reads.

The court also found that a public comment period, which is also enshrined in SB140, is also sufficient vetting.

“In the final analysis, however, it is not the function of this court to determine which process we think is the better process for making judicial appointments,” the opinion closes.

A. Clifford Edwards, one of the two attorneys for the plaintiffs, said the decision ends the SB140 challenge.

“My comments on this decision are articulated in Justice McKinnon’s lone dissent,” Edwards said. “Further, my pro bono partner in this challenge, Jim Goetz, and I will make no further motions nor appeals regarding SB140. The majority of the court has ended the issue.”

Dissenting opinion

Justice Laurie McKinnon was the lone dissenting opinion, and her analysis retraces some of the same historical documents that the majority of the court used, but concluded the matter differently. She argued that constitutional delegates in 1972 had the overarching concern of too much executive power, coupled with a long, tumultuous history of interference by corporations and out-of-state interests. Her opinion centers on what delegates meant by “nominees” and “selected,” concluding that the majority of them wanted a selection process as free from politics and interference as possible, and notably, a change from the 1889 constitution, which allowed the governor to appoint judges directly.

“There is no selection of nominees if the governor can consider the entire pool of self-nominating applicants,” McKinnon wrote.

Her opinion, couched in historical context, warns that history may be repeating itself.

“The ‘Copper King’ era, as it has been called, and Montana’s long history of political corruption, overreach by the branches of government, and control of its government institutions by outside influences plays a significant role in the development of Montana’s judiciary,” McKinnon wrote. “In my opinion, those influences continue to be exerted on the judiciary today and threaten the judiciary’s independence.”

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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.