Two sitting Montana judges had their confirmation hearings in front of the Senate Judiciary Committee on Wednesday morning. Each one had more than a dozen supporters speak in favor of them, including attorneys who had, at times, been adversaries in the courtroom.
Not one opponent spoke against either Judge Michele Reinhart Levine of Cascade County or Christopher Abbott of Lewis and Clark County. Yet, despite the accolades of colleagues, law enforcement, and more than 500 pages of combined testimonial support, Levine and Abbott face an uncertain future.
Abbott and Levine, along with Judge Peter Ohman of Bozeman, who will have a confirmation hearing on Friday, were a trio of judges appointed by former Gov. Steve Bullock, a Democrat.
Last week, the Legislature passed and Gov. Greg Gianforte signed into law Senate Bill 140, which gives the governor the power to appoint judges and eliminates the judicial nomination commission, a process that has been in place since 1973, after the state adopted a new Constitution.
Not once since the implementation of the nomination commission has a judge who has awaited Senate confirmation, but is working, not been given the Senate’s approval. Since judicial vacancies happen frequently while the Legislature only meets for 90 days every two years, judges often start working on the bench before being confirmed to the post. After confirmation, judges retain their seats by standing for election every four years.
However, the trio of judges, all serving in busy urban districts, may not be confirmed, depending on the will of the Republican-led Senate. If they are not, it would leave hundreds of pending cases on each judge’s docket in limbo. Moreover, it’s unclear if Gianforte would be able to appoint judges under the new law, which was challenged at the state Supreme Court in less than a day after he signed the law giving himself the power.
On Wednesday, the Helena Independent Record reported that Chief Justice Mike McGrath had recused himself from presiding on the case, appointing Judge Kurt Krueger of Silver Bow County to take his place. The Supreme Court also ordered Montana Attorney General Austin Knudsen and Gianforte to respond to the complaint within 15 days.
Traditionally, “hold-over” appointments — those from outgoing governors — are confirmed. However, Gianforte and the Legislature have charted a different course this year as some of Bullock’s nominees have failed along party lines.
It’s unclear when the Senate Judiciary Committee will take action on the confirmations.
Michele Reinhart Levine
Reinhart Levine has more than 1,000 cases pending before her. She grew up in Livingston and went to Carroll College before law school at the University of Montana. She served in the Montana Legislature as a Democrat from 2007 through 2012.
It was during her time serving in the Legislature that she decided to go to law school so that she could better talk with lobbyists, she told the committee.
“I am not a rubber-stamp. I apply the law to the facts,” Reinhart Levine said. “I don’t come to the bench other than to follow the law. I follow it as written, not as I want it to be.”
She described her work during her five-month tenure as late nights and weekends, reviewing warrants and cases.
“This job requires someone who is willing to sacrifice,” she said. “You’ll be hard pressed to find someone who will work as much or as hard as me.”
One notable item for both Reinhart Levine and Abbott was that testimony included law enforcement, including officers, detectives and sheriffs as well as public defenders and private attorneys.
“She knows the law, and she doesn’t rely on feelings,” said Josh Racki, Cascade County Attorney.
He said that Cascade County is facing a criminal justice crisis where law enforcement is working hard to combat the scourge of drugs and child abuse. He warned that not confirming Reinhart Levine would put the community at risk.
“Keep the business of criminal justice going and support her,” Racki said.
Racki and Matt Meade, president of the Cascade County Bar, both testified in favor, citing that eight different judges had circulated through the district in the past eight years.
“The state bar does a reputation and legal check, and we have done that, and we’re very satisfied with her record and reputation,” said Ed Bartlett, speaking on behalf of the state judges and the state bar association.
Claire Lettow, a public defender who had taken time off to testify for Reinhart Levine, said that she has seen the workflow pick up considerably with Reinhart Levine on the bench.
“I have clients who have been sitting, waiting in jail for one or one-and-a-half years who are presumed innocent,” she said. “They have no time to waste.”
Fellow Cascade County judge and a former lawmaker John Parker testified on Reinhart Levine’s behalf.
“You gave me a confirmation and I thank you. Today, I am here on behalf of Judge Levine to ask for the same,” Parker said. “It’s all about people and they enter our courts on the darkest days of their lives. Some have lost a family member, or a loved one stands accused of a crime, or maybe their life is in shambles because of a divorce. But she’s exactly the kind of person you’d vote for if you had a paper ballot in your hand. And she has all the qualities you care about in your own public service.”
During the process, several Senators asked about Reinhart Levine’s former activities, including being a part of Carol’s List, the Northern Plains Resource Council and Forward Montana.
Sen. Theresa Manzella, R-Hamilton, asked for Levine’s views on abortion and immigration. On both counts, Levine demurred invoking the judicial canon of ethics, which prohibits sitting judges on commenting on issues that are either before the court or may come before it.
“It’s not position to have a policy. My views no longer matter,” Reinhart Levine said.
Lawmakers also questioned by Reinhart Levine and Abbott about a proposal that would speed up child protective custody cases from 20 to five days. Both expressed concerns, especially in rural Montana, about meeting that proposed change because often law enforcement, courts and attorneys have a hard time tracking down parents.
“That would be difficult to notice,” Reinhart Levine said, responding to Sen. Tom McGillvray’s question. “But we will do our best and follow the laws you give us.”
Abbott grew up in Helena and spent 10 years as a public defender. He also worked in the Montana Attorney General’s Office.
“I have a healthy skepticism of government,” Abbott said about working with various departments and agencies.
One lawmaker, off camera, replied, “Good for you.”
Public support of Abbott ranged from attorneys, public defenders and members of the attorney general staff who saw him tackle complex legal cases and help with workload.
He has been serving in Lewis and Clark and Broadwater counties since November.
“I know the importance of following the law no matter what,” Abbott said. “No lawyer wants a judge that rules against a client in which you feel like they didn’t want the client to win.”
Abbott has also tackled a drug treatment court and spoke of the importance of establishing relationships with families and participants who may never have been able to trust someone in a position of authority.
“They know that I am there rooting for them, but I am also going to hold them accountable,” Abbott said.
During his brief time on the bench, he, and those testifying, spoke favorably about his ability to process a backlog of cases. He noted that in years as a public defender or working for the state that he never got to pick his clients, and took what was assigned.
“So I know when it comes to ruling, it has to hold up in all cases,” Abbott said.
He pointed out that he sometimes defended actions that were questionable or he didn’t agree with, like a case where a mother didn’t want her children vaccinated because of her religious beliefs. Abbott represented her and won the case.
“I am driven by my duty to clients,” Abbott said. “In this case my client is the community, and my client is the law. I follow the law not as I would like it to be, but how it is. Just like I ask a juror to set aside their views, I can set my views aside.”
Justice Court Judge Mike Swingley noted that Abbott had practiced in his court for years as a public defender, but now is outranked by him.
“He had respect for every client and every attorney. He knows the law but he doesn’t throw it around in an arrogant way,” Swingley said. “From a personal standpoint, this is the person I would want to see if I was in court, or my child or my mother.”
Leo Gallagher, the Lewis and Clark County Attorney, praised Abbott’s brief time on the bench, saying criminal cases were being processed efficiently.
“I am saying this out of self interest: I have been in front of lots of judges and there’ve been none better,” Gallagher said.
Kelsen Young of the Montana Coalition against Domestic and Sexual Violence told lawmakers that the instability of the courts — four judges in the past five years — has been hard for those needing consistent, efficient justice.
Jerry Hill, the executive director of the court-appointed special advocate for children in Lewis and Clark County, testified that disruptions on the bench hurt families and children.
“These need to be heard in a timely manner,” Hill said. “Our clients develop relationship with them that become important, and it’s important in the reunification of families. I ask you to confirm him on behalf of the families we serve.”
Bartlett testified on behalf of Abbott, too.
“Disruption may be the kindest word that can be found about what would happen,” Bartlett said. “I’m not sure what will happen to us (if these judges are not confirmed).”