On Thursday, the Senate Judiciary Committee put a stop to two Republican proposals aiming to alter the judicial selection process.
Senate Bill 372, sponsored by Sen. Daniel Emrich, R-Great Falls, would propose a constitutional amendment to give the Legislature the authority to appoint district judges and state Supreme Court justices, a significant departure from the current system of judicial elections. If the proposal were to resurface and pass, voters would have to approve the constitutional change in the 2024 election.
During the committee meeting on Wednesday, Emrich highlighted the insufficient information available to voters when it comes to choosing the most suitable judicial candidates. In contrast, lawmakers possess the ability to thoroughly investigate the backgrounds and beliefs of potential judges. The proposed bill suggests that judges would be appointed by the House of Representatives, with confirmation from the Senate.
Emrich testified that the rationale behind selecting the House of Representatives as the appointers of the judiciary is to uphold the people’s voice. He emphasized that every member of the House is elected by the people, thereby ensuring representation.
Under the bill, the governor retains the authority to appoint individuals to vacant positions during the period between legislative sessions.
Voter advocacy groups and representatives of the legal system joined forces to strongly oppose the proposed amendment referral.
According to Bruce Spencer, a lobbyist representing the Montana Bar Association, the proposal is being described as a complete revamp of the long-standing method of selecting judges in the state. Furthermore, he expressed concerns that if voters struggle to comprehend the background and qualifications of judicial candidates, lawmakers may face similar difficulties.
Spencer stated that in the various meetings and hearings they have attended in both houses regarding partisan judicial elections, elected representatives have expressed difficulty in understanding the matter. Therefore, if that is the reason behind this, they believe it doesn’t actually solve the problem.
Co-sponsors on the bill include Senate President Jason Ellsworth, R-Hamilton and several members of the Senate Judiciary Committee, including Sens. Barry Usher, R-Laurel, Bob Brown, R-Thompson Falls, Theresa Manzella, R-Hamilton, Steve Hinebauch, R-Wibaux, and Emrich. Nonetheless, the bill died in committee on a 5-6 vote.
Despite co-sponsoring the bill, Brown was counted among those who voted against it. During the vote on Thursday, he pointed out that earlier in the week, the Senate had discussed a water court bill which faced opposition due to the governor’s authority to appoint water court judges instead of the citizens having this power.
The second courts bill the committee tabled Thursday is Senate Bill 431, sponsored by Sen. Chris Friedel, R-Billings. The bill would establish an advisory committee to recommend candidates for vacant judicial seats to the governor.
However, in contrast to the Judicial Nominating Commission that was removed by lawmakers in the previous session, the proposed bill suggests that the advisory committee would consist of current members of the Senate Judiciary Committee.
Contrary to the protocols of the Judicial Nominating Commission, the governor would not be obligated to select a candidate from the pool recommended by Friedel’s panel.
On Wednesday, Friedel expressed his belief that the existing process deprives the Senate of its constitutional duty to confirm judicial appointments. According to this process, the Senate only confirms judges if they are appointed by the governor after an election and before or during a session.
“Friedel stated that judges prefer to be elected and retire during recess periods. He further explained that this bill will provide both us, the judges, and the citizens of our esteemed state an opportunity to have a say in this matter.”
The Judicial Nominating Commission was eliminated under 2021’s Senate Bill 140, one of the first major policy priorities under the new administration of Republican Gov. Greg Gianforte. Although the power to fill judicial vacancies now lies solely with Gianforte, the governor has nonetheless formed advisory committees of local stakeholders to vet and recommend judicial candidates.
Friedel mentioned attending a meeting for a committee tasked with filling a vacancy in Yellowstone County’s 13th Judicial District. He arrived approximately 15 minutes late, assuming that there would still be extensive discussions and interviews remaining. However, to his astonishment, the committee concluded their proceedings within a mere two hours.
He expressed his desire for something more magnificent.
The governor’s office opposed the bill.
Gianforte policy adviser, Glenn Oppel, testified that the current structured process is functioning effectively. He emphasized that this process is particularly advantageous as it allows for the participation of citizens who possess a thorough understanding of their court system’s requirements and are well-acquainted with the candidates under consideration.
