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Challenge comes swiftly to new law letting governor appoint judges

From the Complete coverage of Montana's ongoing legislative, judicial conflict series
Gov. Greg Gianforte

Montana Gov. Greg Gianforte speaks to leaders of Montana counties on Feb. 26, 2021, at the Copper King Convention Center in Butte.

A group of former state officials Wednesday petitioned the state Supreme Court to challenge the constitutionality of a bill Gov. Greg Gianforte signed Tuesday granting himself extended powers to appoint judges to vacant seats. 

Gianforte on Tuesday signed Senate Bill 140, which eliminated the judicial nomination commission and gave himself direct appointment power of state district court judges and Supreme Court justices upon a vacancy.

During the legislative hearing process, opponents to SB 140 argued the proposal was outside of the state constitutional framers' intent; many of those arguments appear in the petition filed in the Supreme Court on Wednesday. The governor's office, throughout the legislative process, argued the bill was on solid constitutional footing.

The plaintiffs listed in Wednesday's filing include former Republican Secretary of State Bob Brown; 1972 Constitutional Convention delegate Mae Nan Ellingson; former Democratic lawmaker Dorothy Bradley, a longtime lawmaker and former governor candidate who served in the 1973 session that created the nominating commission; former Confederated Salish and Kootenai Tribal Chairman Vernon Finley; and the Montana League of Women Voters.

Gianforte is the only defendant named in the petition. In response to an email asking for comment about the lawsuit, the governor's office said the legislation was sound.

"A simple reading of the Montana Constitution makes clear that SB 140 is constitutional," a spokesperson for the governor said Wednesday.

The plaintiffs' arguments follow closely along the positions made by opponents to SB 140 during legislative hearings.

The petition, backed with notes and transcripts of debates from the 1972 Constitutional Convention, argues the governor is not granted the ability to select appointments from an unlimited number of nominees but only has the authority to select a replacement from a list of nominees provided by an independent source. That commission was installed by the 1973 Legislature. 

In the 1972 convention, delegates debated over whether judicial appointments should be made strictly by popular vote or by a merit-based selection process, but ultimately decided on a hybrid model, where nominees would go through a selection process and then be subject to election in the next cycle. 

Wednesday's filing points to the transcripts, where "commission" or "committee" was mentioned throughout the process. 

It also points to the convention notes, which were distributed across Montana in 1972 to inform voters who would vote on ratifying the new state Constitution. Those notes state the governor "does not have unlimited choice of lawyers as under the 1889 constitution. He must choose his appointee from a list of nominees and the appointment must be confirmed by the senate — a new requirement."

During the legislative process, Lt. Gov. Kristen Juras argued SB 140 was constitutional and that the Legislature is granted the power to determine how nominees reach the governor. In order to fall within the "nominee" definition more closely, an amendment was added to require applicants be accompanied by three letters of recommendation to be considered by the governor.

But the petition filed Wednesday said the amendment did not solve the issue.

Montana State News Bureau Chief Holly Michels summarizes the day's news from the Montana Legislative session for March 16, 2021.

"The entire thrust of the Montana Constitution of 1972 was to replace the Governor’s sole discretion to fill vacancies with a system that provided a list of qualified nominees derived through an independent vetting process," attorneys for the plaintiffs wrote.

Juras had also batted back concerns about Gianforte having unlimited applicants for the bench, arguing that because of the internet the governor's office could more quickly move through the appointment process. Juras was a law professor at the University of Montana and ran a failed race for a seat on the state Supreme Court.

But the petitioners argue the nomination commission was specifically designed to limit the number of applicants a governor could select from to limit the executive branch's power in the process.

Attorneys for the plaintiffs are Jim Goetz, of Bozeman and Cliff Edwards, of Billings. Goetz, reached by phone Wednesday, declined to comment on the filings. 

Montana State News Bureau
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