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Guest view: Bill abolishing nomination of judges is an unconstitutional step backward

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To play on Robin Williams’ famous line, “Good Morning Montana”, your ability to rely on the judicial system to protect your constitutional rights and provide fairness and objectivity was just seriously eroded as of March 1, when the legislature passed SB 140 with an immediate effective date upon the pending signature of Governor Gianforte.

So who orchestrated this subversion of the Montana justice system? Ninety-eight Republican representatives and senators the voters sent to Helena voted for SB 140 abolishing the Judicial Nomination Commission (JNC). This ill-conceived legislation was universally opposed by all 51 Democratic representatives and senators.

The JNC has ably and faithfully served Montana citizens for almost fifty years through both Republican and Democratic administrations. Why was this aberrant legislation advanced through the legislature in the face of adamant opposition from the Montana Judges Association, the Montana State Bar, the Montana Trial Lawyers Association, the Montana Defense Trial Lawyers Association, the ACLU, and district Judge John Brown, the chairman of the JNC?

Answer: Marching orders from Governor Gianforte and his misguided, but loyal Lieutenant Governor Juras. The JNC was established as a direct result of and by specific guidance from the 1971 constitutional convention and the resulting 1972 Montana Constitution that did away with the absolute power of the Governor under the 1889 constitution to appoint anyone with a law degree to judicial vacancies.

The JNC operated pursuant to 1973 legislation and was composed of four lay persons from throughout the State appointed by the Governor, two attorneys appointed by the Montana Supreme Court and a district judge elected by the Montana district judges. Section 3-1-1001 MCA et seq. This seven-member commission has for fifty years screened and vetted judicial applicants in a completely open and public process to assure competency, integrity, and experience of judicial nominees, and only advancing the names of three to five of the most qualified candidates to fill each judicial vacancy with the Governor making the final selection from the nominees advanced.

Under SB 140 appointment of judges wrongfully reverts to the 1889 constitution and incorrectly reestablishes the absolute power of the Governor to appoint anyone, i.e., siblings, friends, the openly bias or prejudiced, inexperienced, or anti-LGBT, whose sole qualification most likely will be their political connections, all contrary to the mandate of 1972 constitution.

Appears Gianforte needed to abolish the Commission because the persons desired to be his judges lack the temperament, integrity or experience necessary to receive passage through the Commission’s gate. So in order for Gianforte to hand-pick his very own political favorites, out goes the baby with the bathwater.

There certainly will be a constitutional challenge to SB 140 seeking a check on this executive and legislative abuse of power. If SB 140 is found to be unconstitutional, as it very well ought to be, and the JNC is resurrected, Montanans will need to pay heed to this collaborated assault on their constitutional protections and the separation of powers when the next election cycle rolls around.

Lon Dale of Missoula has engaged in an active civil litigation practice representing plaintiffs, defendants , individuals, businesses, and insurance companies for over 45 years. He has been lead counsel in more than 40 jury cases tried to verdict, and in more than 50 cases decided by Montana’s Supreme Court. 


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