HELENA — A lawsuit was filed this week that aims to to block the appointment of a state lawmaker to run the Montana Department of Commerce.
Last month, Governor Greg Gianforte picked Rep. Marta Bertoglio, R-Clancy, to be Commerce director. She resigned from the House to take the position.
The Montana Constitution says state lawmakers can’t be appointed to “any civil office under the state,” “during the term for which he shall have been elected.”
The lawsuit, filed by a Jefferson County man who lives in Bertoglio’s former House district, argues that should include the entire term, even if the lawmaker resigns first.
“Unconstitutional gubernatorial appointments send the message that part-time citizen legislators—who in 2025 made a salary of $128.86 per day—might win a six-figure golden ticket to an appointed state civil office, if they promote a governor’s political interests over the needs of their own constituents,” the plaintiff’s attorneys wrote in a filing in state district court.
The suit calls for the court to rule Bertoglio’s appointment was unconstitutional and block her from exercising the director’s authority.
The complaint points to three other appointments Gianforte made that it argues were unlawful:
- 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.
It does not mention Gianforte’s selection of Sen. Ryan Osmundson, R-Buffalo, as his state budget director in 2021. At the time of that appointment, MTN reported that some had raised questions about whether it met constitutional requirements, but that it wasn’t clear whether the budget director was a “civil office.”
The lawsuit points to a 1927 Montana Supreme Court case that said a civil office means “any public office not of a military character,” and to sections in state law that define department directors as being “public officers,” to justify those positions being civil offices.
MTN reached out to Gianforte’s office for comment on the lawsuit. A spokesperson said Bertoglio’s appointment was made after she submitted her resignation.
Gianforte's office also pointed to a letter from the governor’s general counsel to the law firm handling this suit. In it, the counsel cited the same 1927 case, which stated civil offices must have authority “independently and without control of a superior power, other than the law.” She argued agency directors do not count because their authority is all subject to the governor’s supervision.
There’s already been a replacement for Bertoglio in the House. Jefferson County commissioners selected Mark Reinschmidt, who was one of three nominees selected by the county Republican central committee. Reinschmidt was officially sworn into office last week.
