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Bar members: Not confirming trio of judges will create more judicial backlog

No judge awaiting confirmation from the Montana Senate has ever failed to gain approval since 1973 when the Judicial Nominating Commission was created after the adoption of the Treasure State’s second Constitution.

Every candidate selected has received approval, and then moved on to face the will of the voters at the ballot box every four years.

However, during this Legislature, Gov. Greg Gianforte, a Republican, has signaled that he’s breaking with tradition for “hold over” appointments. Those are the appointments made by a previous governor, but await a confirmation hearing because the Montana Legislature only meets for 90 days every two years.

The Republican-controlled Senate could decide not to confirm Judges Christopher Abbott of Helena, Michele Reinhart Levine of Great Falls and Peter Ohman of Bozeman. All three had their respective hearings before the Senate Judiciary Committee last week.

If the Senate rejects the trio nominated by former Gov. Steve Bullock, a Democrat, it would leave those judicial districts likely down a judge. All three of those judicial districts, the First (Lewis and Clark and Broadwater counties), Eighth (Cascade County) and Eighteenth (Gallatin County), have high caseloads, and supporters of the judges all urged the Senate to confirm them.

Not a single person testified against any of the three judges during the hearings.

However, if Senators reject any or all of them, it would set in motion a number of circumstances that have never happened in the state. Many testified that booting the judges from the bench may actually result in crime victims not getting justice and businesses being stymied by years’-long wait times.

Anthony Johnstone, Helen and David Mason Professor of Law at the University of Montana’s Alexander Blewett III Law School, said that if the judges are not confirmed, they are no longer judges immediately.

While the law is clear that they would lose the job most of them have been filling for a half year, what happens after that remains murky.

Johnstone said it’s not unusual for a vacancy to occur — usually through retirement, disability or a judge who takes another job.

“But vacancies are usually not for failure to confirm,” Johnstone said. “This gives you a sense for the various norms and practices (in the Legislature).”

Normally, the Judicial Nomination Commission would step in to begin the process. That was until about two weeks ago.

The Legislature passed Senate Bill 140, which Gianforte signed. That bill — now law — dissolved the commission and allowed for Gianforte to make appointments directly to vacant benches, something a Montana governor has not done outright since the Constitution was changed in 1972. Those appointments would be subject to either a confirmation hearing in the Senate or a vote of the people, whichever comes first.

However, the day after Gianforte signed SB140, lawyers filed suit at the state Supreme Court challenging the constitutionality of the newly-minted law.

While it appears the state’s highest court will take the case and decide if the new law is constitutional, that could also complicate the vacancies in Helena, Great Falls and Bozeman.

Ed Bartlett, a former lawmaker and lobbyist, testified for all three judges. He also explained what was at stake.

“We don’t have reserves enough. We don’t have a deep bench of backups. We need active judges on the bench,” Bartlett said during Ohman’s confirmation. “There is no backstop, I’m afraid. There’s no legitimate reason not to confirm him based on what you’ve heard.”

If they were not confirmed, the cases currently active would have to be reassigned to other already overworked judges, Johnstone said.

In testimony, Reinhart Levine shared with Senators that she had more than 1,000 active cases. Abbott testified that he had worked hard in five months to clear backlogs on cases that had been waiting for more than two years.

A public defender testified that she had clients in jail, who couldn’t reach bail, who have been there for one to one-and-a-half years.

Deputy Gallatin County Attorney Jordan Salo told the Senate Judiciary on Friday that if Ohman wasn’t confirmed, delays in criminal trials would have to be dismissed because of speedy trial deadlines mandated by the United States Constitution.

The process, whether through the Judicial Nomination Commission or direct governor appointment, could take months, Johnstone explained.

Even if a traditional judicial appointment process was used, that commission would have to advertise the position, interview candidates, and forward a recommendation to the governor’s office — something that can take awhile. Then, a judge would have to be sworn in, and get up to speed on hundreds of pending cases.

And even if SB140 was ruled unconstitutional, and the Senate were not to confirm the three judges, the process of selection would begin again. Johnstone said it’s important to remember that even if SB140 is unconstitutional, if the Senate doesn’t confirm the judges, the process of judge selection has to begin anew. The only way for the candidates to return again — if they wanted — is to repeat the process or wait until the seat is open during an election.

“It’s difficult for everyone involved because of the workload,” Johnstone said. “It takes longer to reach resolution in the state courts than it does in the federal courts. And when there’s a change in a judge, there’s a learning curve.”

That curve includes a mountain of reading and sometimes studying areas of law in which the judge doesn’t have a lot of background.

“Cases are complicated, and that’s how they find their way to court,” Johnstone said.

The more likely scenario would be a months-long wait as the Supreme Court considers whether SB140 is constitutional. If that happens, arguments, hearings and a decision could take months. It’s also probable that the lawyers waging the challenge would ask the state’s top court for a stay in implementing the law.

Another unlikely possibility is the Supreme Court deciding that a lower court should hear the case first, an outside possibility Johnstone said. Then the vacancies could be delayed further.

“Even then, the Supreme Court would still have the final say,” Johnstone said.