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Municipal Court Judge Kathleen Jenks, right, swears in Sam Warren as an assistant judge on Tuesday, a move one government watchdog says was premature pending approval by the City Council. Judge Jenks, as well as Missoula City Attorney Jim Nugent, argue that the swearing-in was valid.

Municipal Court Judge Kathleen Jenks swore in a new assistant judge this week, but one government watchdog alleges city court skipped a critical step when it put Sam Warren on the bench.

In a letter Thursday, citizen activist Ross Best said the Missoula City Council should have approved the new judge before Warren took his oath of office. Council consideration would include public comment, said Best in the letter to Jenks, Warren, Mayor John Engen, and the council.

“The swearing in has taken place prematurely,” Best said in the letter. “Montana law requires that such an appointment be approved by the Council. And any consideration of such an appointment by the City Council must be accompanied by reasonable opportunity for members of the public to comment on the proposed appointment. But the matter has not come before the council.”

Judge Jenks disagrees on the need for the council’s green light, as does city attorney Jim Nugent. Jenks said the position is an assistant judge position, and she as head judge must be responsible for the person on the bench.

“I don’t think that their (the council’s) approval is required. The position is already approved. It’s approved during the budget process,” Jenks said.

Plus, she said there’s three branches of government, and the separation of powers is important. The council approves the budget, but there’s a limit to its oversight.

“They don’t get to manage the court in the sense that they should not be having that much input into the court,” Jenks said.

Jenks chose Warren to replace Judge Marie Andersen. In October, Andersen said Jenks fired her, although Jenks denied it. However, Jenks also said she didn’t plan to reappoint Andersen in December, and instead, she selected Warren, who has been working as a substitute judge and started his official job immediately.

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Best is a government wonk who periodically brings up legal conundrums to the council. In his letter, he points to MCA 3-6-201(6) as his guide on the appointment of Warren.

“A municipal judge may, with the approval of the governing body of the city, appoint a part-time assistant judge,” it begins; in Missoula, the council is the governing body.

Best said he has no reason to believe Warren isn’t a good choice, but he also said the people of Missoula have the right to expect a full vetting before the council, especially because the assistant judge still will work from 30 to 40 hours a week.

“If the appointment were for a full-time position, it would be an elective office. Section 3-6-201(2), MCA, requires that ‘A municipal court judge who is not a part-time assistant judge appointed under subsection (6) must be elected at the general election,’” Best writes.

In this regard, Judge Jenks sympathizes with Best. She said she may regret bringing up the idea, but the caseload in Municipal Court is so high, she would be more comfortable having a judge on the bench that she didn’t have to supervise.

“It would be great if it were a full-time position that was elected. It’s just not structured that way right now. And at some point, I think Missoula needs to have a second full-time judge that would be completely independent,” Jenks said.

If somewhere along the line, an authority decides the law does intend the council to vote on assistant judges, the matter can easily be resolved, according to Councilman Ed Childers, a veteran on the council. It seems reasonable to comply with the law, he said, and he doesn’t believe Warren would have trouble being approved given his knowledge, affable manner and history working in both Municipal Court and the City Attorney’s Office.

But Childers deferred to the city attorney for a definitive answer on whether the council should approve assistant judges: “I would think that Nugent would have the best answer.”

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Nugent said he didn’t have any guarantees, but clearly, the council already approves the position when it votes on the budget. And he said the statute doesn’t say the appointment must happen with “the advice and consent” of the council as is typical when a council vote is in order.

“Historically, that’s the typical language, is ‘with the advice and consent,’ ” Nugent said.

He said this job is only a part-time one, and he doesn’t know of others that require “the advice and consent” of the council. And he said the council can defund the job if they so choose when they take up the budget.

The statute doesn’t talk about budgets, but Nugent said “approval can come in many forms.” On the one hand, he said the council can approve it when it says yes to the budget item; on the other hand, he says the statute is “ambiguous” because it doesn’t specifically say the council approves the actual individuals.

Really, Nugent said, it comes down to this: “What does the word ‘approval’ mean?”

Another important factor is that the head judge be able to select an assistant judge with whom she is able to work, he said. In other words, it’s no use having the council appoint someone who clashes with the elected judge.

Nugent said the appointment has been handled the same way for years, and the choice has not come before the council. However, he can see how the law could be interpreted “more than one way.”

“The City Council and the mayor could easily remedy it by putting it on the agenda as a special new business if they want for Monday night. But it’s a pretty minor thing,” Nugent said.

Jenks herself landed in the job with a council appointment. Judge Donald Louden retired before his four-year term ended, and the City Charter says when that happens, the council votes on a replacement. Last November, the council selected Jenks from seven other applicants interviewed for the job. The position will be on the 2013 municipal ballot.

Reporter Keila Szpaller can be reached at @KeilaSzpaller, 523-5262, keila.szpaller@missoulian.com or on MissoulaRedTape.com.

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