A District Court judge Wednesday dismissed a lawsuit by two former Democratic lawmakers challenging Montana's new judicial appointment process.
Lewis and Clark County District Court Judge Mike McMahon dismissed the lawsuit, finding the issues raised by former Democratic Reps. Tom Winter and Barbara Bessette were "without merit."
This case was the second attempt at taking down Senate Bill 140, passed by the GOP-dominated Legislature and signed by Republican Gov. Greg Gianforte to abolish the Judicial Nomination Commission that once presented the governor with a short list of nominees to be selected for judicial appointment.
The Montana Supreme Court already upheld the law as constitutional in June when former Republican Secretary of State Bob Brown and others challenged SB 140 as a violation of the constitutional framers' intent. The high court ruled in favor Gianforte, represented by the state Attorney General's Office, who argued SB 140 was within bounds because the state Constitution grants the governor authority to appoint judges "in the matter provided by law."
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Winter and Bessette's challenge stood on a separation of powers argument, claiming the new arrangement gave the governor too broad an appointment power over the judiciary. McMahon wrote in Wednesday's order he believes SB 140 "appears to strengthen rather than weaken the separation of powers doctrine" required by the state Constitution. The governor is granted power to fill judicial vacancies; no longer, McMahon wrote, will the Legislature impose the nomination commission, dictate its membership, allow the governor to appoint a majority of the commission's members or restrict the governor's choice of nominees.
Additionally, McMahon said eliminating the Judicial Nomination Commission (JNC) would only enhance the governor's accountability in who is appointed to the bench.
"Under SB 140, the governor may not now hide behind the JNC shield to explain was a particular judge was appointed," McMahon wrote. "They will now have to directly answer to the people why a particular judge was appointed or why another person was not selected."
In his ruling, McMahon lists all 30 Supreme Court justices, District Court judges and Workers' Compensation Court judges appointed by the two previous governors, both Democrats, noting these governors were "duty bound" to appoint well-qualified judges, just as governors will be under SB 140. All but two of former Gov. Steve Bullock's 27 judicial appointments remain on the bench after being elected to retain their positions.
"It is with firm hope, conviction and belief that governors utilizing SB 140 will appoint similar 'great, not just good' Montana Supreme Court justice and district judges," McMahon wrote. "If not, this court anticipates the Montana people will say otherwise on election day."
Winter said in an email on Thursday the plaintiffs are still weighing an appeal.
“The balance of power mandated by Montana’s constitution is being altered. The independence of our judiciary is at stake," Winter said. "It does not matter if you are a Republican or a Democrat - every Montanan has the responsibility to protect our constitutional order when it is threatened. As such, we will be carefully weighing our options regarding Judge McMahon’s dismissal."