Background
Jordan Williams filed suit in Montana’s First Judicial District Court in August 2025, challenging Governor Greg Gianforte’s appointment of then-Representative Marta Bertoglio as Director of the Department of Commerce as a violation of Article V, Section 9, of the Montana Constitution, which bars legislators from being appointed to civil offices during the term for which they were elected. Judge Kathy Seeley was initially assigned the case. After a series of substitution motions by both sides exhausted all available First Judicial District judges, Judge Seeley invited Judge Elizabeth Best of the Eighth Judicial District to assume jurisdiction in October 2025; Judge Best accepted.
The Governor moved to return the case to Judge Seeley for reassignment, arguing that Senate Bill 41 — enacted by the 2025 Legislature and effective October 1, 2025 — required any post-substitution judicial selection to follow a randomized procedure established by the Office of Court Administrator (OCA). The Governor pointed to an August 28, 2025 memorandum from Chief Justice Swanson and Court Administrator McAlpin as supplying an actionable random-selection procedure, including defined regional pools. Judge Best denied the motion, concluding that the Montana Supreme Court had not yet adopted a new substitution process and that the existing rule under § 3-1-804, MCA, therefore controlled. The Governor appealed.
SB 41 directed OCA to establish a randomized selection mechanism by October 1, 2025, and to distribute it to district court judges by October 15. However, the Supreme Court had issued a September 12, 2025 order seeking public comment on the proposed procedure, and the Court publicly acknowledged it would miss the October 1 deadline. No formal rule amendment had been adopted by the time Judge Seeley acted. The sole question on appeal was whether the district court erred by applying the existing substitution rule rather than SB 41 or the August 28 memorandum.
The Court’s Holding
The Montana Supreme Court unanimously affirmed the district court’s order, holding that Judge Seeley correctly applied the existing codified substitution rule — § 3-1-804, MCA — because the Supreme Court had not amended, superseded, or replaced that rule when Judge Seeley invited Judge Best to assume jurisdiction. The Court grounded its reasoning in Article VII, Section 2, of the Montana Constitution, which vests the Supreme Court with general supervisory control over all courts and exclusive authority to make rules governing practice and procedure for those courts. Section 3-1-804, MCA, is not an ordinary statute but a rule adopted by the Supreme Court and codified; it can only be displaced by a subsequent Supreme Court order or rule, not by legislation or administrative memoranda.
The Court rejected the Governor’s argument that SB 41 itself, or the August 28 memorandum from the Chief Justice and OCA, constituted an operative procedure displacing the existing rule. Neither instrument was a formal rule amendment by the Supreme Court. The Court emphasized that the absence of a finding that Judge Best was selected randomly did not constitute reversible error, because the dispositive question was not whether the selection was in fact random but whether SB 41 or the memorandum had lawfully displaced the existing substitution rule — and they had not.
The Court explicitly declined to reach broader questions: whether it should amend its substitution rule going forward, whether random selection is preferable as a matter of judicial administration, whether SB 41 might have some valid future operation once the Court formally acts, or what the full constitutional boundary is between the Legislature’s authority and the Court’s rulemaking power. The holding was deliberately narrow — on the date Judge Seeley acted, the existing rule controlled.
Key Takeaways
- The Montana Supreme Court’s codified judicial substitution rule (§ 3-1-804, MCA / Rule AF 09-0289) can only be amended or displaced by a formal Supreme Court order — not by legislation or administrative memoranda from the Chief Justice and Court Administrator.
- SB 41’s directive to OCA to establish a randomized post-substitution selection procedure did not, on its own, override the Supreme Court’s existing substitution rule, because the Court had not yet formally adopted any amendment to that rule.
- The August 28, 2025 memorandum circulated by the Chief Justice and OCA was not a validly promulgated court rule and carried no operative legal effect as a replacement for the existing substitution procedure.
- In a notable concurrence, Justice McKinnon — joined by Justice Gustafson — questioned whether SB 41 intrudes on the judiciary’s constitutionally committed rulemaking authority and whether the Legislature conducted any judicial-impact review before enacting it, flagging the issue as unresolved and potentially of constitutional dimension.
Why It Matters
This decision reinforces the principle that in Montana — and by analogy in other states with similar constitutional structures — the judiciary’s authority over its own procedural rules is protected from legislative override absent formal rulemaking by the Supreme Court itself. Attorneys litigating procedural challenges to judicial assignments must look to whether the Supreme Court has actually promulgated an amended rule, not merely whether the Legislature has directed a change or an administrator has issued implementing guidance.
The concurrence adds a layer of significance for separation-of-powers practitioners: two justices signaled openness to the argument that SB 41 may unconstitutionally encroach on an inherent judicial function — the selection of substitute judges — that sits at the core of the court’s essential authority. If the Montana Supreme Court eventually takes up that constitutional question, this case will be the starting point, and the answer could affect the validity of similar legislative efforts in other jurisdictions seeking to impose randomized or transparent judge-assignment processes on state courts.