Montana Senate confirmations for three district court judges appointed by the previous governor have been delayed this session while lawmakers passed a new process to give the new governor direct appointment power over the state judiciary.
Senate Bill 140 would eliminate the Judicial Nomination Commission and give direct appointment power to appoint state district court and Supreme Court judges upon a vacancy to the governor. The bill cleared the GOP-controlled Senate and House last month and currently awaits a signature from Gov. Greg Gianforte, the first Republican to hold the governor's office in 16 years and one of the premier proponents of the proposal.
Through the commission process, former Gov. Steve Bullock, a Democrat, appointed Michele Levine to an open judgeship in Cascade County last year, and she took the bench in December. Chris Abbott was appointed in November; Gianforte visited his treatment court and lauded the program on Tuesday. Peter Ohman was appointed six months ago as the district court judge in Gallatin County, where studies show the judicial district short three judges. He was sworn in in October.
"The first day I was in court I had 26 hearings and it just hasn’t stopped since," Ohman said in an interview Friday. "I have probably about over 20 jury trials scheduled in May. … If the office was vacant for months on end there would really be an issue with respect to peoples' civil matters being addressed in a timely fashion."
Sen. Keith Regier, R-Kalispell, chairs the Senate Judiciary Committee, which serves as the Legislature's vetting panel for judicial appointments. Regier said this week he is waiting to schedule the Bullock appointments for a committee hearing until SB 140 has been signed by the governor.
“If they don’t go through, then the (judicial nominating commission) process would start all over again,” Regier said this week.
If the three judges aren’t confirmed and SB 140 has been signed into law, then Gianforte will get to select the three himself to present to the Senate for confirmation.
Supporters of SB 140 say giving the governor direct appointment power would pull back the curtain on partisanship that already is at play in the process. Lt. Gov Kristen Juras presented to committees while testifying in support of the bill a report that showed nearly all of the political contributions made by members of the commission went to Democrats. The opposition has been potent, too, from a Democrat calling the proposal a "power grab" on the Senate floor to a trio of former Republican officials, including former Gov. Marc Racicot, calling this and other revisions to the judiciary "deeply destructive."
The Senate has already voted down many of Bullock's interim appointments for boards and committees this session in favor of Gianforte's picks. The then-incoming governor issued a memo to Bullock's Board of Education appointments in December their jobs were up for reconsideration.
Asked if he expects Bullock's judicial appointments to be turned down by the Senate, Regier said, "We'll have to see."
The Governor's Office on Thursday said Gianforte would submit judicial appointments for the three judgeships if the Senate rejects Bullock's appointments, but did not release an expected date for the governor to sign SB 140.
“The Montana Constitution grants the Senate the power to consider and confirm judicial nominations, and in the event the Senate declines to confirm a nominee, the governor will submit a well-qualified nominee for consideration,” Brooke Stroyke, a spokesperson for the Governor’s Office, said in an email Thursday.
Withholding confirmation of the three judges has already raised ire among lawmakers and the judiciary.
“This is an unwarranted attack an some very good judges who are working very hard,” she said. “It appears that the only reason these people would be denied is because of the party the governor who appointed them belonged to, which is pretty startling," Cascade County District Judge Elizabeth Best told the Great Falls Tribune.
In February, during the floor debate on SB 140, Rep. Laurie Bishop, D-Livingston, called the prospect of swapping the unconfirmed judges for Gianforte's appointments "troubling."
"If those judges are not approved we begin with this ability of the governor to instill this process," Bishop said. "That would be disruptive to those districts and the work that is happening there and those courts and we already know those courts are compromised."
An annual workload study compiled by the Montana Supreme Court shows Gallatin County, which has three district court judges, works with a caseload that needs three more judges to be proportional. Lewis and Clark County District Court, which is home to any lawsuit against a state agency, needs an additional five judges, according to the report.
A vacancy in the bench would mean stalled proceedings in adoptions, divorces, civil claims and business disputes. On the criminal side, defendants have rights to a speedy trial, and if they are found not guilty at a trial, that's additional time they've spent behind bars.
Ohman said it would be "unfortunate for the community" if this system, which has only become more bottle-necked by the dynamics of the COVID-19 pandemic, saw another hiccup because of a gap in judicial services because the Senate turned down his confirmation in favor of a Gianforte pick. For now, however, he can only wait.