Big Sky Roundup

Supreme Court will decide SB140 on briefing

By: - May 13, 2021 5:29 pm

The Joseph P. Mazurek Justice Building in Helena which houses the Attorney General’s Office, the Montana Supreme Court and the state law library (Photo by Eric Seidle/ For the Daily Montanan).

The Montana Supreme Court said the entire court will decide the fate of Senate Bill 140 on the briefings that have been filed.

The controversy, which arose the day after Gov. Greg Gianforte signed SB140, will be decided without oral arguments.

Oral arguments are something the court holds when there are remaining questions that briefings do not address.

The order, issued Wednesday, said the entire court will decide the matter. Currently, six justices and one district court judge will comprise the full seven-member court. Supreme Court Chief Justice Mike McGrath has recused himself in the matter, and Judge Matthew Wald of Big Horn County will take his place.

At issue is whether the Republican-dominated Legislature and governor can abolish the judicial nomination committee and have Gianforte appoint judges directly. The matter is timely because former Judge Michele Reinhart Levine was appointed to the bench by former Gov. Steve Bullock, a Democrat. She became the only judge never to win Senate confirmation, with Republicans criticizing her former role as a Democrat legislator. The opening in Cascade County has left a vacancy that Gianforte announced he would begin filling.

Two separate but related issues have also been raised, including a fight pitting Republican Gianforte and the lawmakers against Courts Administrator Beth McLaughlin in a tussle over the release of more than 5,000 emails from the judicial branch.

Also, lawyers for the plaintiffs, which include former Secretary of State Bob Brown, had asked the court to adjudicate Senate Bill 402 in the lawsuit involving SB140. SB402 is the back-up bill passed by lawmakers that would triple the size of the judicial nominating commission, and pack it with governor-appointed citizens, if SB140 is found unconstitutional. That request was rebuffed by the high court, saying that Gianforte had not signed the measure, and the fate of SB140 had not yet been decided, rendering the motion not yet ripe for a court matter.

The en banc order for SB140 was signed by acting Chief Justice Jim Rice.

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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. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.

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