Judge: Gianforte appointing sitting legislator to head Commerce Dept. was unconstitutional

A Lewis and Clark County District Court judge has ruled that Montana Gov. Greg Gianforte unconstitutionally appointed the Montana Department of Commerce director because she was a sitting legislator at the time.

It is not the first time Gianforte has plucked a sitting legislator and appointed them to a position within the executive branch of government, but it is the first challenge of the second-term Republican governor’s appointment-making ability. 

Judge Elizabeth Best ruled that Marta Bertoglio, a Republican who represented House District 75, which spans across Jefferson County, cannot exercise any duties as director of the Montana Department of Commerce, as well as ordered Department of Administration Director Misty Ann Giles from paying Bertoglio.

The Daily Montanan asked the governor’s office for comment on the lawsuit, whether it would appeal the decision, and who would be leading the Department of Commerce in light of the ruling. It did not respond as of publication time.

Bertoglio’s predecessor, Paul Green, also was a sitting lawmaker from Big Horn County when he was appointed by Gianforte. Two other notable legislative appointees include former Yellowstone County lawmaker Jimmy Patelis, who was appointed to oversee the Montana Board of Parole and Pardons for the Treasure State. And Gianforte’s director of budgeting, Ryan Osmundson, was a former Republican lawmaker from Buffalo.

Only Bertoglio’s appointment had been challenged in the courts, though. And Best relied heavily on long-established case law stretching back to the earliest days of Montana statehood to establish that courts have been consistent and clear: Governors cannot appoint sitting lawmakers without violating the state’s Constitution. 

The clause in Article V of the current Montana Constitution was passed in 1972. However, during the debates about the new Constitution, delegates were largely supportive of carrying forward the provision that barred legislators from being appointed to the executive branch that had been adopted by delegates of the original Constitution in 1889. 

Furthermore, Best clarified in her ruling that appointing a sitting legislator wasn’t just improper until they tendered their resignation from the Legislature, but it applied to the legislator’s entire term. In Bertoglio’s case, even though she was appointed in 2025 and resigned, her legislative term doesn’t expire until Jan. 7, 2027 – meaning she would be ineligible to serve as a director in an executive agency until then.

The governor’s office did not indicate whether it would appeal Best’s decision, or comment on Bertoglio’s status within the administration.

The case was brought  by Jordan Williams, who was a resident of Jefferson County and was represented by Bertoglio when she was named. Bertoglio was elected to the Montana House of Representatives for a two-year term; Senators in the Montana Legislature are elected to four-year terms.

The delegates to the 1972 state Constitutional Convention remained supporters of carrying the “morals and principles and separation of powers” clause, leading Delegate Cedar B. Aronow of Shelby to state: “It’s one of the most corrupt things that can be done to the Legislature to accept appointment to another office while he’s a member of the Legislature.”

“The delegates considered the disqualification provision to be critical to the separation of powers,” Best wrote in her decision. “The delegates were intimately familiar with the 1889 (original constitution) provision because it prevented legislators from serving as convention delegates.” 

Furthermore, the Montana Supreme Court has historically interpreted the clause throughout decades, including a ruling in 1971, that legislators could not resign their seats in order to be a delegate to the 1972 convention.

“This provision was uncontroversial among the bipartisan delegates (in 1972). The text and intent of the 1889 disqualification provision prohibited appointing a sitting legislator to public office at any time during the term for which that legislator was elected, regardless of whether the legislator remained in office for that full term,” Best wrote.

Attorneys for the state had argued that “term” is synonymous with “tenure” at that by simply resigning from the Legislature, it allows the person to become instantly eligible for appointment to the executive branch, but the court disagreed with that position.

“Term refers to a fixed and definite period of time,” Best said, referring to case law that was decided in Montana in 1897. 

State attorneys had also argued that because the Department of Commerce is subject to the oversight of the governor, that the role of director did not “possess sovereign power” – a term the law uses to describe a leader who can make decisions on behalf of the state or runs executive departments independently.

The court determined that the Montana Department of Commerce director “is delegated and exercises numerous executive, quasi-legislative and quasi-judicial powers. She may enter into agreements with federal, state and local agencies to carry out the department’s functions.” 

“Despite these various duties, (the State of Montana) insists that the Commerce Director does not wield sovereign power because she answers to the governor,” Best wrote. “But though the Commerce Director answers to the governor, she independently exercises broad regulatory authority that carries both weight and effect without any subsequent action or approval by the governor.”

The judge also pointed out that while Gianforte has the power to appoint or remove the Commerce director, he does not have the power that a director does, for example, the power to promulgate rules for the department, sign off on administrative actions or even enter into agreements on behalf of the department, by state law. 

“Montana’s disqualification provision is key to preserving the integrity of our institutions,” said Andres Halady, senior staff attorney at the Upper Seven Law Firm, which represented Williams in the suit. “Every Montanan deserves a just and legitimate government where representatives are responsive above all else to the priorities of the people they represent. The court’s decision upholds the Montana Constitution and carries out the delegates’ stated meaning and intent.”