HELENA — A state judge has dismissed a second attempt to void a new law giving Gov. Greg Gianforte more power to appoint new state judges, saying it strengthens, rather than violates the “separation of powers” of Montana government.
District Judge Mike McMahon of Helena, in rejecting the lawsuit, also noted that even though Gianforte and subsequent governors now have more discretion in filling judicial vacancies, those appointees still must face voters for retention or re-election.
“It shall be the Montana people who ultimately decide whether a governor-appointed Montana Supreme Court justice or district judge and who is confirmed by the Sente will retain their appointed judiciary position,” he wrote.
McMahon’s decision on Wednesday upheld Senate Bill 140, one of the most controversial laws passed by majority Republicans in the 2021 Legislature.
The new law eliminated a 50-year-old system under which an appointed commission vetted applicants for vacancies on the Supreme or state district courts and then forwarded three-to-five finalists from which the governor had to choose.
Under the new law, the governor can choose whoever he or she wishes to appoint, if they meet basic qualifications. To be considered, an applicant needs only to provide three letters of support from other people.
Gianforte and fellow Republicans have claimed the old process was overly influenced by “trial lawyers” to place liberal judges on the bench.
An earlier lawsuit sought to void SB140, arguing it was unconstitutional because 1972 state constitutional delegates intended to have a commission vet possible judicial appointees.
But the Montana Supreme Court in June rejected that suit, saying the constitution gives the Legislature authority to dictate how the governor chooses judges – and that’s exactly what SB140 did.
McMahon on Wednesday dismissed a lawsuit filed two weeks after that June decision, by two Democratic former state lawmakers, Tom Winter of Missoula and Barbara Bessette of Great Falls.
The suit from Winter and Bessette said SB140 violated the constitutional separation of powers by giving multiple powers to the governor, calling it an “outsized and unequal advantage” over the legislative branch.
McMahon found their claims “without merit.” He said the new law actually strengthens the separation of powers by removing legislative influence on the judicial appointment process and making the governor more accountable for his or her picks.
The governor “may not now hide behind the Judicial Nomination Commission shield to explain why a particular judge was appointed,” he wrote. “They will have to directly answer to the people why a particular judge was appointed … or why another person was not selected.”
He also noted that the new law still makes judicial appointees subject to confirmation by the Montana Senate and to run for retention or re-election.
McMahon also listed 30-some judges appointed by previous Democratic governors, Steve Bullock and Brian Schweitzer, and said they’ve faithfully executed their duty to be an independent interpreter of the law – and that he had faith that new appointees would do the same.
“If not, this court anticipates the Montana people will say otherwise on election day,” he wrote.
McMahon, who won election to the bench in 2018, is the only person who has defeated an appointed judge in an election in the past two decades.
