In a 6-1 decision, the Montana Supreme Court late Thursday upheld the controversial new law that wipes out a 50-year-old process for filling state judicial vacancies in Montana and gives Gov. Greg Gianforte more discretion to appoint new judges.
The high court said the law does not violate the state constitution and rejected arguments from a group of former state officials and a constitutional delegate, who said a broader vetting process is required.
The 2021 Legislature passed the law earlier this year on largely party-line votes, with Republicans in favor, saying they wanted to give the new GOP governor more control over filling vacancies on the Supreme Court and the state district courts.
The new law abolishes the 48-year-old state Judicial Nomination Commission, which had vetted judicial candidates and forwarded a list of finalists to the governor, who had to choose from the list.
Now, the governor can essentially appoint whoever he or she wants, to fill vacancies on the Supreme Court or state district courts.
The law also spawned an on-going political war between the high court and high-ranking Republicans, who suggested the judiciary and the high court itself had pre-judged the law.
During the months-long dispute, Republican lawmakers have launched an investigation into the state judiciary and Attorney General Austin Knudsen’s office has assisted them, including filing briefs that said the court’s orders on related issues were invalid.
Supreme Court Justice Jim Rice – who sided with the majority – wrote a special concurring opinion in which he blasted both the Legislature and Republican Attorney General Austin Knudsen’s office for their actions and reactions to earlier court orders in the case.
He said the state Justice Department possibly should be sanctioned for its “contemptuous actions” and the Legislature’s arguments stricken from the case. But, instead, he said until they demonstrate a proper understanding of the court’s authority, “there is little hope they could comprehend contempt of it.”
Gianforte, who proposed the law, said in a statement Thursday evening that the decision “reaffirmed what we know to be true: (the law) is constitutional and our constitution gives the Legislature the authority to determine how the governor fills a judicial vacancy.”
Gianforte already is preparing to use the new law to fill a judicial vacancy on the state District Court in Great Falls.
The governor said he plans to appoint judges who “will interpret the laws, not make them from the bench, and who are committed to the fair, consistent and objective application of the law.”
Justice James Shea, writing for the Supreme Court majority, said the constitution allows the Legislature to design the process for filling judicial vacancies – and that’s what lawmakers did, with the new law.
He also said the new law still allows prospective judges to apply to fill a vacancy and for a vetting of candidates, through a public comment period on nominees, confirmation by the state Senate and the judges standing for election, after they are appointed.
“As any individual who might consider applying for a judicial appointment is no doubt aware, the Internet is a hullabaloo-friendly place,” Shea wrote. “Thus, it can hardly be said that the lack of nominating commission means that applicants for judicial vacancies will not be subject to a vetting process.”
Only Justice Laurie McKinnon dissented from the majority, saying the constitutional framers intended to have a “merit selection process” for filling judicial vacancies.
“Unfortunately, 50 years after the 1972 Constitutional Convention, this court reaches a conclusion contrary to the framers’ intent and which enables what the framers clearly sought to prevent – a direct gubernatorial appointment,” she wrote.
