Another legal challenge filed over judicial appointments

June 28, 2021 GMT

HELENA, Mont. (AP) — Another legal challenge has been filed over a new law that eliminates the Judicial Nomination Commission and allows Montana’s governor to directly fill judicial vacancies between elections.

Two former Democratic state representatives — Tom Winter of Missoula and Barbara Bessette of Great Falls — filed a complaint Friday asking District Court Judge Mike Menahan of Helena to temporarily block the law and to declare it unconstitutional.

It also asks the court to prevent Gov. Greg Gianforte from appointing a replacement District Court judge in Cascade County under the terms of the new law.

A spokesperson for Gianforte said the governor does not normally comment on ongoing litigation.

The complaint argues the new law violates a provision of the Montana Constitution, which 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.”

After the 1972 Constitution was passed, the 1973 Legislature created the Judicial Nomination Commission 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.

The 2021 Legislature eliminated the Judicial Nomination Commission and gave the governor direct authority to make judicial appointments.

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.”

Since the law took effect, Gianforte has 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.

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.

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.

The complaint by Winter and Bessette is one of several challenging nearly a dozen bills passed by the 2021 Legislature.