HELENA — A state district judge has ruled it was unlawful for Gov. Greg Gianforte to appoint a former state lawmaker to run the Montana Department of Commerce. However, Gianforte’s office says they expect Commerce Director Marta Bertoglio to remain in office for now, while an appeal in the case is resolved.
Gianforte appointed Bertoglio, a Republican representative from Clancy, to lead the department last summer. While she resigned from the Legislature before taking the job, a Jefferson County man who lived in her former House district filed a lawsuit.
The suit argued that Bertoglio’s appointment was invalid, because the Montana Constitution says a lawmaker can’t be appointed to any other “civil office under the state,” “during the term for which he shall have been elected.” The plaintiffs said that applied to the entire two-year term, regardless of whether Bertoglio resigned before the end.
Gianforte’s office argued “civil offices” must have independent authority, and that state department heads don’t count because they’re under the governor’s control.
District Judge Elizabeth Best sided with the plaintiffs, ruling that resigning from the Legislature ends a lawmaker’s tenure, but not their term, and that department directors are “civil offices.”
“[T]hough 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,” Best wrote.
Best ruled that Gianforte’s appointment of Bertoglio violated the constitution, and directed that Bertoglio be enjoined from serving as Commerce director and that the state Department of Administration be enjoined from paying her salary.
A spokesperson for Gianforte’s office said they’re reviewing the decision, but that they don’t believe it will have until the Montana Supreme Court decides on an earlier appeal, which claimed Best was not correctly chosen to handle this case.
The lawsuit was filed in Lewis and Clark County, in the state’s 1st Judicial District. Best, a judge from the 8th Judicial District in Cascade County, assumed jurisdiction after the parties moved to substitute three of the 1st District’s four judges, and the fourth declined to take the case.
Last year, the Montana Legislature passed and Gianforte signed Senate Bill 41, which required that, if all the judges in a district are substituted off a case, that it be reassigned to a nearby judge through a random process. The governor’s office argued Best wasn’t selected through a random process, so the case should be assigned again.
Best declined to give up jurisdiction, on the basis that the state judicial branch had put together a proposed random system but hadn’t yet officially implemented it. Gianforte’s attorneys appealed her decision to the Montana Supreme Court, which is currently considering the issue.
Bertoglio’s appointment is not the only one the plaintiff argued was unlawful. Their complaint pointed to three other cases during Gianforte’s tenure:
- Rep. Jimmy Patelis, R-Billings, was appointed to the Montana Board of Pardons and Parole in 2021.
- Sen. Bob Brown, R-Trout Creek, was appointed director of the Montana Lottery in 2024.
- Rep. Paul Green, R-Hardin, was appointed Commerce director in 2024. He resigned earlier this year, creating the opening Bertoglio filled.
