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Governor fills judicial vacancy amid stalled legal challenge

July 7, 2021 GMT

HELENA, Mont. (AP) — A district court judge on Wednesday denied a request to temporarily suspend a law that eliminated the Judicial Nomination Commission and allowed Montana’s governor to directly fill judicial vacancies between elections.

Later Wednesday, Republican Gov. Greg Gianforte announced he would appoint David Grubich to serve as District Court judge in Cascade County, marking his first appointment under the new law.

Former Democratic state representatives Tom Winter of Missoula and Barbara Bessette of Great Falls filed the complaint last month asking the judge to declare the law unconstitutional and prevent the governor from appointing a judge to the Cascade County vacancy.

Judge Michael McMahon of Helena wrote in his decision that he is “genuinely concerned” that the two former lawmakers failed to establish “a legitimate” concern after the state Supreme Court upheld the new law in a separate legal challenge earlier this year.

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Lars Phillips, an attorney representing Winter and Bessette, declined to comment on the decision.

McMahon set the next court hearing on the case for July 15.

The 2021 Legislature eliminated the Judicial Nomination Commission and gave the governor direct authority to make judicial appointments. The commission had been created by the 1973 Legislature to accept applications for judicial vacancies, interview candidates and forward a list of three to five nominees to the governor. The governor would select a judge from among those nominees, and the Legislature — when in session — would consider whether to confirm the nomination.

After the new law took effect, Gianforte set up an application process and created an advisory council to assist him in choosing a new judge for the opening created when the Republican-controlled Legislature declined to confirm Michele Levine. Levine was appointed by former Gov. Steve Bullock, a Democrat.

In announcing Grubich as his choice for the seat, Gianforte said in a statement that Grubich is “committed to the fair, consistent, and objective application of the law.”

A graduate of the University of Montana law school, Grubich has served as District Standing Master with the Montana Eighth Judicial District Court since 2018. Before that time, he worked in private practice in Great Falls.

According to a release from the governor’s office, Grubich was selected unanimously by the advisory council as the top choice to fill the vacancy. Levine was their second choice.

Grubich will be up for election in 2022.

The Montana Supreme Court recently ruled the new law met the requirements of the provision of the state constitution that says in the case of judicial vacancies, “the governor shall appoint a replacement from nominees selected in the manner provided by law.” The justices found that lawmakers, in fact, created a new law to govern judicial appointments.

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Justice Laurie McKinnon dissented, saying delegates to the 1972 Constitution intended to prevent the direct gubernatorial appointment of judges, as had been previously allowed, and to create a merit-based nomination process.

Winter and Bessette’s complaint argues the new law violates a provision of the Montana Constitution that states that anyone “charged with the exercise of power properly belonging to one branch” of government may not exercise “any power properly belonging to either of the others,” unless the Constitution directly permits it.

The state constitution also directs the governor to appoint someone to fill a judicial vacancy between elections “from nominees selected in the manner provided by law.”

The complaint argues the new law violates the state constitution by giving the governor, rather than the Legislature, the power to determine the process by which someone becomes a “nominee.”