Friday, June 11, 2021
The Montana Supreme Court has upheld the constitutionality of a recent legislative provisions governing judicial appointments
In this original proceeding, Petitioners challenge the constitutionality of Senate Bill 140 (“SB 140”), a bill passed by the 2021 Montana Legislature and signed into law by the Governor. SB 140 abolishes Montana’s Judicial Nomination Commission and the process that had previously been in place to screen applicants for vacancies on the Supreme Court and the District Courts and replaced it with a process by which any person who otherwise satisfies the eligibility requirements for a Supreme Court Justice or District Court Judge can be considered for appointment by the Governor provided they obtain letters of support from three Montana adults.
I concur with the Court’s decision, but write to address the extraordinary, indeed, extraconstitutional, actions taken by the Legislature and the Department of Justice during the pendency of this proceeding.
He details his concerns but concludes
The rightful consequence of these actions would be to revoke the Legislature’s intervention, strike its brief, and to view with caution any future requests made of this Court by the Legislature. Similar sanctions would likewise be appropriately imposed upon the Department of Justice for its contemptuous actions herein. My initial thought was to ask the Court to impose these sanctions, but a second thought prevailed: until the Legislature and the Department of Justice can demonstrate a proper understanding of the Judiciary’s constitutional authority, there is little hope they could comprehend contempt of it.
Justice McKinnon dissented
In my opinion, by giving the governor plenary power to select judges, SB 140 poses precisely the threat to the independence of Montana’s judiciary that Montana has historically been burdened with and that the 1972 Framers sought to prevent. This Court’s failure to call SB 140 for what it is gives a green light to a partisan branch of government to select judges who are charged with the responsibility of providing a check on that power. While perhaps this design exists in other states and federally, the 1972 Framers did not want it to exist in Montana. Obviously, this Court will have to consider the constitutionality of statutes enacted by the Legislature and signed into law by the governor. Principals of separation of power and our constitutional design provide that the necessary check on partisan power and overreach is through an independent and nonpartisan judiciary. The Court’s decision today weakens that balance. There is little question in my mind that the Framers, burdened with a history of political corruption and overreach and committed to a qualified and independent judiciary, were united in their conviction that the governor should no longer have plenary authority to make a direct appointment, as in the 1889 Constitution. Foremost on the Framers’ minds was an independent judiciary and ensuring that power was not disproportionately placed in one branch of government. In my opinion, SB 140 is inconsistent with the plain language of Article VII, Section 8, and what was at the core of the Framers’ convictions—to preserve the integrity and independence of Montana’s judiciary in light of our significant history of political corruption and overreach into the courts.