Montana Supreme Court
Credit: John S. Adams / MTFP

HELENA — The Montana Supreme Court ruled Thursday that a law allowing the governor to directly fill vacant judicial seats is constitutional, apparently bringing the lawsuit to a close. 

Senate Bill 140 was signed into law by Gov. Greg Gianforte in March and was immediately challenged in court. The legislation abolishes the Judicial Nomination Commission, an independent committee that vetted judicial nominees and presented a shortlist of candidates to the governor for nearly 50 years. Plaintiffs argued the law violated the will of delegates to the constitutional convention of 1972 to maintain a separate commission for evaluating nominees, rather than bestowing that authority with the governor. 

In a 6-1 decision, with Justice Laurie McKinnon dissenting, the court ruled against those arguments. The opinion, written by Justice Jim Shea, found that the constitutional delegates were divided about how to fill judicial vacancies and compromised by allowing the Legislature to create a process for appointments. 

“As is the nature of compromise, the result was a system that was not entirely what either side wanted — a process that neither mandated a commission/committee, nor precluded it, but rather delegated the process for selecting nominees to the Legislature in broad language that the selection of nominees be ‘in the manner provided by law,’” Shea wrote.

The court also found that the process outlined in SB 140, which requires that lawyers in good standing provide three letters of support for nominees and includes 30 days of public comment, constitutes a legitimate vetting process. 

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“As any individual who might consider applying for a judicial appointment is no doubt aware, the internet is a hullabaloo-friendly place,” Shea wrote, referencing a phrase used in constitutional convention debates. “Thus, it can hardly be said that the lack of a nominating commission means that applicants for judicial vacancies will not be subject to a vetting process.”

In statements after the ruling, Gianforte, Attorney General Austin Knudsen and Sen. Keith Regier, R-Kalispell, praised the decision. 

“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’s statement said. “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.”

All judges appointed to fill temporary vacancies must still be confirmed by the Senate and are subject to the next subsequent election if they want to hold the seat. The governor will soon consider five applicants for a vacant seat in Cascade County District Court after the Legislature failed to confirm a nominee selected by former Gov. Steve Bullock. Gianforte has opted to create an advisory panel of residents from the 8th judicial district to vet candidates and make recommendations. Public comment is due by June 30.

Lawyers representing the plaintiffs, who included former state officials and the Montana League of Women Voters, did not immediately respond to a request for comment Thursday evening.

In her dissent, Justice McKinnon argued that SB 140 merely outlined an application process and did not fulfill the constitutional delegates’ goal of a selection process based on merit. She also wrote that the law as written is “inconsistent” with the plain language of the state Constitution “and what was at the core of the Framers’ convictions — to preserve the integrity and independence of Montana’s judiciary in light of our significant history of political corruption and overreach into the courts.”

Addressing a related matter, Justice Jim Rice issued an extensive concurring opinion that pointedly reprimanded Attorney General Knudsen for what Rice described as the “extraordinary, indeed, extraconstitutional, actions taken by the Legislature and the Department of Justice during the pendency of this proceeding” — a reference to the rancorous dispute between the Legislature and the judiciary in recent months.

Rice specifically took issue with “obviously contemptuous” letters sent from the Attorney General’s office to the Supreme Court in April rejecting and disputing the court’s rulings related to Legislative subpoena powers.

“By repeatedly refusing to comply, the Attorney General engages in actions that are destructive to our democratic system of government,” Rice wrote. 

In a statement issued Thursday evening, Department of Justice spokeswoman Emilee Cantrell called Rice’s opinion an “emotional rant” full of “personal attacks.”

“The Attorney General’s Office has a responsibility to point out judicial misconduct and ensure the administration of justice in Montana,” Cantrell’s statement said.

The court has not yet ruled in McLaughlin v. Legislature, a secondary case stemming from that conflict.

This story was updated June 10, 2021, to include additional comment from the Montana Department of Justice.

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Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.