Legislative “Random-Selection” Directives Do Not Supersede Montana’s Judicial Substitution Rule Absent Supreme Court Amendment

1. Introduction

This interlocutory appeal arose from a high-profile constitutional challenge filed by Jordan Williams against Governor Greg Gianforte and other state officials, alleging that the Governor’s appointment of then-Representative Marta Bertoglio as Director of the Montana Department of Commerce violated Article V, Section 9 of the Montana Constitution (appointment to a civil office during the term for which the official was elected). The Supreme Court, however, did not reach the merits of that constitutional claim.

The appeal instead focused on a procedural and institutional question: after all First Judicial District judges were substituted or declined jurisdiction, could the presiding substituted judge assign an out-of-district judge under Montana’s existing substitution rule, or did Senate Bill 41 (SB 41) (and an August 28, 2025 memorandum circulated by the Chief Justice and the Office of Court Administrator) require a randomized reassignment process? Defendants (the Governor and state officials) contended that SB 41 controlled after its October 1, 2025 effective date and required the case to be returned for random selection. Williams argued the existing Supreme Court substitution rule remained controlling because the Court had not formally adopted any new rule implementing SB 41.

2. Summary of the Opinion

The Montana Supreme Court affirmed the District Court’s refusal to return the case for reassignment. It held that Montana’s existing substitution rule—codified as § 3-1-804, MCA and adopted through Supreme Court rulemaking—remained controlling at the time Judge Kathy Seeley invited Judge Elizabeth Best (Eighth Judicial District) to assume jurisdiction.

Critically, the Court held that neither SB 41 nor the August 28, 2025 memorandum “amended, superseded, or replaced” the existing rule. Because the Supreme Court had not promulgated an amendment to the substitution rule when the reassignment occurred, the District Court correctly applied the existing procedure. The Court emphasized the narrowness of its holding and expressly declined to decide the broader constitutional scope of SB 41.

3. Analysis

3.1 Precedents Cited

The Court’s reasoning rests heavily on Montana’s jurisprudence treating judicial substitution as a matter of Supreme Court procedural governance, with serious consequences for a judge’s authority to act.

• Holms v. Bretz, 2021 MT 200
  The Court relied on Holms for two key propositions: (1) rulings on substitution are reviewed de novo, and (2) § 3-1-804, MCA, is “a codified Rule adopted by the Montana Supreme Court”. In Holms, the Court also recognized that when substitution is improper, subsequent orders may be void—underscoring why substitution disputes can become threshold, jurisdiction-like questions. Here, that doctrine supported immediate review but did not itself mandate reversal because the contested action complied with the operative rule in effect.
• City of Missoula v. Mountain Water Co., 2021 MT 122
  Cited for the standard of review and the principle that once a timely substitution is filed, the substituted judge lacks power to act on the merits. The Court distinguished the present case: it was not about a substituted judge acting after a valid substitution motion; it was about whether SB 41 displaced the existing rule governing how a subsequent judge is called in.
• Sweeney v. Dayton, 2018 MT 95
  Used primarily to reinforce the de novo standard for questions involving interpretation and application of substitution provisions.

The Court also cited general statutory interpretation authorities, but largely to explain why they did not control the outcome in the face of constitutional rulemaking structure:

• State v. Bloomer, 2025 MT 93 and Montana Ass'n of Counties v. State, 2023 MT 225
  These cases reflect the Court’s standard approach to textual interpretation—begin with the text, apply plain meaning. The Governor invoked these canons to argue SB 41’s text mandated the OCA “procedure” as of October 1, 2025. The Court did not reject the canons; it held they did not answer the overriding question: whether SB 41 (or a memorandum) could displace a Supreme Court rule absent Court action.
• In re Estate of Kemmer, 2023 MT 234
  Similarly cited as general interpretive guidance.
• Driscoll v. Stapleton, 2020 MT 247
  Distinguished: Driscoll concerned a district court altering a statutory deadline. Here, the district court did not “alter” SB 41; it applied the controlling substitution framework because the Supreme Court had not amended its rule.

Finally, the Court’s institutional analysis is anchored in the Court’s prior rulemaking orders:

• In re Revised Rules on Substitution of District Judges, No. AF 09-0289, Order (Mont. Mar. 24, 2015)
  This is the formal source of the “2015 Substitution Rule,” which the Court treated as binding statewide procedure—especially § 6 regarding the calling-in of subsequent judges after substitutions.
• In re Rules for Disqualification and Substitution of Judges, No. AF 09-0289, Order (Mont. July 9, 2009)
  Cited to show the Supreme Court historically amends substitution procedure through formal orders after notice and comment—highlighting why an administrative memorandum is not a rule amendment.
• In re Rules on Disqualification and Substitution of Judges, No. AF 09-0289, Order (Sept. 12, 2025)
  The September 12 order seeking public comment supported Williams’s position that the procedure was still “recommended” and “proposed,” reinforcing that no Supreme Court-promulgated amendment existed when Judge Seeley acted.

The concurrence (Justice McKinnon, joined by Justice Gustafson) cited broader separation-of-powers and judicial-integrity authorities to frame SB 41 as a serious institutional incursion: Republican Party of Minn. v. White; Aetna Life Ins. Co. v. Lavoie; Carey v. Piphus; Boddie v. Connecticut; Sill v. Pa. State Univ.; Addington v. Texas; Greenholtz v. Inmates of the Neb. Penal & Corr. Complex; and Atchison, Topeka and Santa Fe Ry. Co. v. Long. While not controlling the majority’s narrow holding, these citations emphasize that SB 41 implicates fundamental questions about who controls court administration and procedure.

3.2 Legal Reasoning

The Court’s logic is structured around constitutional allocation of procedural authority:

• Constitutional premise: Mont. Const. art. VII, § 2(2), (3) grants the Supreme Court “general supervisory control” over other courts and authority to “make rules” governing practice and procedure.
• Status of § 3-1-804, MCA: Although codified in the Montana Code Annotated, the Court reiterated (via Holms v. Bretz) that it is not an ordinary “enacted statute” but a codified Supreme Court rule. This framing matters because the operative question becomes: what changes a Court rule? The answer, per the majority, is: the Supreme Court, through promulgation.
• Continuity of procedural rules: The Court invoked § 3-2-706, MCA for the proposition that existing procedural laws/rules remain effective as rules of court until modified or superseded—again pointing to the need for Supreme Court action to change the governing substitution procedure.
• Non-displacement by SB 41 or memorandum: Even accepting the Governor’s textual argument that SB 41 required the OCA to establish a “procedure,” the Court held that SB 41 and the August 28 memorandum did not, by themselves, “amend, supersede, or replace” the Court’s 2015 Substitution Rule. No Supreme Court order had amended the rule at the relevant time; therefore, district judges remained bound to the existing procedure.
• Narrow holding and avoidance: The Court expressly avoided deciding (1) SB 41’s constitutionality, (2) the Legislature’s authority over this domain, (3) the OCA’s administrative authority boundaries, or (4) what SB 41 might validly do in the future. The decision turns on a simpler determinant: what rule was in force when the assignment occurred?

On the record, the Court found compliance with the 2015 framework: once all First Judicial District judges were substituted or declined jurisdiction, Judge Seeley called in a judge from another district (Judge Best), who accepted. The Governor’s attempt to force a “randomness” inquiry was deemed non-dispositive because randomness was not a requirement of the controlling substitution rule at the time.

3.3 Impact

The decision has immediate and longer-term implications:

• Short-term procedural clarity: Until the Montana Supreme Court formally amends the substitution rule, parties and courts should expect the 2015 Substitution Rule to govern—regardless of SB 41’s policy aims or administrative memoranda.
• Institutional boundary-setting: The ruling signals that administrative guidance (even from the Chief Justice and OCA) cannot substitute for the Court’s formal rulemaking process when altering statewide judicial procedure.
• Litigation strategy and interlocutory review: By reiterating that substitution errors can render subsequent orders void (via Holms v. Bretz and City of Missoula v. Mountain Water Co.), the Court reinforces incentives for parties to seek prompt review under M. R. App. P. 6(3)(k) when substitution authority is contested.
• Future separation-of-powers litigation risk: The majority’s avoidance leaves SB 41’s constitutional status unresolved. Justice McKinnon’s concurrence invites future challenges by emphasizing that SB 41 appears to regulate a domain “committed ... to this Court’s rulemaking authority,” potentially implicating “minimum functional integrity” of courts.
• Policy debate reframed: The concurrence questions whether “random selection” meaningfully advances the “right to a fair trial,” suggesting future reforms may need a clearer constitutional or empirical justification—beyond suspicion of “hand-picking.”

4. Complex Concepts Simplified

• “Substitution of right”: A procedural entitlement allowing each adverse party to replace one judge without proving bias, if done timely and with the required fee, under the Supreme Court’s substitution rule.
• “Disqualification for cause”: A request to remove a judge based on demonstrated bias or other disqualifying facts; unlike substitution of right, it requires a substantive showing.
• “Codified rule” vs. “statute”: The Court treated § 3-1-804, MCA as a Supreme Court rule that happens to be printed in the code. Its operative force comes from the judiciary’s rulemaking power, not ordinary legislation—hence, it is changed through Supreme Court promulgation.
• “General supervisory control” (Mont. Const. art. VII, § 2): The Supreme Court’s constitutional authority to oversee lower courts and to set binding procedural rules for them.
• Why “randomness” didn’t matter here: The Court did not decide whether random selection is good policy; it held only that random selection was not yet a binding requirement because the Supreme Court had not amended the controlling rule.
• Why substitution disputes can be “threshold”: If a judge lacks authority to act due to substitution rules, later merits rulings may be void—making early appellate review important.

5. Conclusion

J. Williams v. G. Gianforte establishes a clear procedural principle: Montana district courts must follow the Supreme Court’s existing judicial substitution rule unless and until the Supreme Court amends it; legislative enactments like SB 41 and administrative memoranda do not, standing alone, “amend, supersede, or replace” that rule.

The majority’s narrow holding preserves continuity and predictability in substitution practice while leaving unresolved the deeper separation-of-powers question—forcefully flagged in the concurrence—about whether and how the Legislature may mandate changes to court administration and judicial assignment mechanics. The opinion thus functions both as a concrete rule of decision for substitution disputes during transitional periods and as a marker for forthcoming institutional litigation over procedural governance in Montana.