The Montana Senate Wednesday evening voted to confirm Gov. Greg Gianforte’s appointment to a vacant judgeship in north-central Montana following a brief debate about the process that Gianforte used to make his pick.
The Senate confirmed Greg Bonilla, a Shelby native whose most recent legal practice was as an attorney for the Montana Association of Counties, on a 37-13 vote, with almost all Democrats in opposition. Bonilla will take the place of retired 9th Judicial District Judge Robert Olson.
“He’s fair, he listens to people, he works hard, he’s the type of person who should be a judge,” Senate Majority Leader Steve Fitzpatrick, R-Great Falls, said Wednesday in support of Bonilla’s confirmation.
Generally speaking, lawmakers haven’t questioned Bonilla’s legal aptitude, though Sen. Susan Webber, D-Browning, did say Wednesday that he seemed to have little experience with tribal law, which could be important in a judicial district that encompasses Glacier, Pondera, Teton and Toole counties. Democratic critiques of Bonilla’s confirmation have instead focused largely on the judicial vacancy process created by the 2021 session’s Senate Bill 140, which eliminated Montana’s long-standing Judicial Nomination Commission and gave the governor unilateral power to fill open seats on the bench.
Under the previous system, the commission vetted candidates in the public eye, and the governor picked from the commission’s list of nominees. Now — though the new process isn’t explicitly described in statute — the governor appoints an advisory council to interview candidates and recommend a selection, and the governor is under no obligation to heed the commission’s advice.
The advisory council for the 9th District vacancy met in March, interviewing Bonilla and another candidate, Montana Department of Justice prosecutor Dan Guzynski, in a closed session, citing the privacy rights of the two candidates. After private deliberations, the council announced its recommendation of both candidates, but expressed a nine-to-one preference for Guzynski.
(A local newspaper, the Choteau Acantha, and Montana Free Press are jointly challenging the decision to close the meeting in court).
Gianforte ultimately picked Bonilla, lauding his “professionalism, intellect, and diverse legal background.”
Democrats have seized on the process, while supporters of Bonilla’s confirmation have sought to keep the focus on his legal experience.
“There was some question in committee about the process of his appointment, but as far as who he is as a person, he’s a good one,” Sen. Keith Regier, R-Kalispell, who carried the resolution to confirm Bonilla, said on the floor Wednesday.
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An advisory council appointed by the governor to fill a vacancy in the 9th Judicial District held interviews and deliberations this week behind closed doors, despite the efforts of the Choteau Acantha.
Sen. Andrea Olsen, D-Missoula, then began reciting the history of the Judicial Nomination Commission, only to be gavelled down by Senate President Jason Ellsworth, R-Hamilton, for deviating from the content of the resolution to confirm Bonilla. The Senate briefly stood at-ease, allowing Olsen to communicate with her party leadership and formulate a new line of critique.
“I think that we as the Senate can’t just rubber stamp a judge,” she said. “The advisory council recommended nine-to-one the other guy. And for those reasons, I’m going to be a ‘no.’”
That argument didn’t sway the Senate’s Republican majority.
“I’ve seen a lot of judges go through under the old system — I don’t want to say anything bad about them — but I think this process has resulted in a great judge,” Fitzpatrick said.
Bonilla appeared before the Senate Judiciary Committee earlier this week. There, the state bar and the Montana Judges Association both appeared in support of his confirmation, as did Lt. Gov. Kristen Juras.
Juras’ testimony hinted at the subtext of many of the Legislature’s recent interactions with the judicial branch: Republican lawmakers say too many judges are veering away from strict interpretation of law and “legislating from the bench” at a time when GOP-backed legislation regularly ends up in court.
“Most importantly, [Bonilla] understands that the role of the judge is to fairly and consistently apply the law as written by the Legislature to the parties who appear before him, and not to make new laws from the bench,” Juras testified.
She also maintained that the advisory council’s decision to close its meeting in March was above-board. Montana’s open meeting law says the “presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands of individual privacy clearly exceed the merits of public disclosure.”
“We did comply with the law in this process and the nomination of Judge Bonilla,” Juras testified.
Disclosure: On April 13, Montana Free Press joined the Choteau Acantha newspaper as petitioner in a lawsuit over the process by which Gov. Greg Gianforte appointed Helena attorney Greg Bonilla to replace retiring Judge Robert Olson in Montana’s Ninth Judicial District. As MTFP reported last month, the advisory council tasked with forwarding recommendations to Gianforte closed its candidate interviews and deliberations in Conrad March 23 to Acantha editor Melody Martinsen and MTFP reporter Arren Kimbel-Sannit. The lawsuit alleges that the closure violated Montana’s statutory open meetings laws and constitutional right to know provisions, and requests a declaration that future meetings of the advisory council must comply with those provisions. The lawsuit is filed in Lewis and Clark County’s First Judicial District Court.
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