Montana Public Radio

Montana Supreme Court Upholds Governor’s New Judicial Appointment Power

Jun 10, 2021

Montana’s governor will retain a new power to appoint judges directly to vacant benches without the input of the Judicial Nomination Commission. The Montana Supreme Court upheld the law in a ruling issued Thursday.

The state’s high court upheld the new power outlined in Senate Bill 140, which passed the Legislature along party lines this spring.

Endorsed by Republicans, the law allows the governor to directly appoint judges and justices to openings on district court benches and the Supreme Court. Its constitutionality was challenged by former lawmakers the day after it was signed by Gov. Greg Gianforte, who had supported the bill as it was moving through the legislative process.

Montana Capitol
Credit Eric Whitney

In upholding the law, the state Supreme Court found “...it was not the Court’s function to determine whether the Commission was a better process than [Senate Bill] 140 for making judicial appointments — it was to determine whether SB 140 complied with...” the Montana Constitution. 

Justice Laurie McKinnon dissented the majority’s ruling, saying the new law is inconsistent with the state Constitution’s intent.

The 1972 Constitution provided that judges and justices are elected, except when vacancies arise and “...the governor shall appoint a replacement from nominees selected in the manner provided by law.” The 1973 Legislature created the Judicial Nomination Commission to uphold the new constitutional requirement.

Only six of the state’s seven justices presided over the case. Chief Justice Mike McGrath recused himself after he made known his opposition to the bill. His appointed replacement, Judge Kurt Krueger, also recused himself after it was made public that he had responded to a judicial branch poll opposing the bill.

District Judge Matthew Wald ultimately sat in for McGrath.