Judge strikes down ballot referral electing Montana SupCo justices by district

A district court judge has voided a legislative ballot referral that would put to the voters the question of whether to elect Montana Supreme Court justices by district, a revival of a similar proposal from the 2011 session that the Montana Supreme Court would go on to strike down a year later.

Peter Ohman, a judge from the 18th Judicial District who took the reins of the case after a protracted procedural battle saw the initial judge replaced, cited the legal fate of that 2011 referral heavily in his March 21 order, ultimately finding that the high court’s 2012 ruling in Reichert v. State is binding in the current challenge.

“In this case the subject of the challenged initiative already has been found be facially unconstitutional,” Ohman wrote. “If this court were to follow Defendant’s recommendations it would in effect be overruling Reichert. That being the case, and because this Court is bound by Reichert, the court determines Plaintiffs are entitled to summary judgment.”

House Bill 325, which Republicans passed last year as part of a slate of judicial reforms that came amid heated suspicion by GOP hardliners of the court system, would have asked voters to decide in the 2022 election whether future Supreme Court contests would occur on a district-by-district basis rather than in an at-large format, as has been the case the state’s entire history. The bill, as sponsor Rep. Barry Usher, R-Yellowstone County, put it during the session, was intended to create a Supreme Court “more aligned” with the political preferences of the electorate.

Under the bill — if ultimately approved by voters — the Supreme Court electoral map would be split into seven districts, with the seven justices voting to select a chief justice from their own rank. The proposal could still end up on the ballot if Montana Secretary of State Christi Jacobsen, named as the sole defendant in the suit, mounts a successful appeal of the lower court’s decision.

A group of plaintiffs including voters, former state officials and the League of Women Voters of Montana challenged the ballot referral in May, arguing that the state’s constitution and the Montana Supreme Court’s ruling in Reichert dictate that HB 325 be struck down.

“Montana’s practice of at-large elections for Supreme Court justices is a constitutional requirement,” wrote plaintiffs’ attorneys Jim Goetz and Cliff Edwards in one filing.

In Reichert, plaintiffs challenged a ballot referral that was the same as this one in all but a single respect — the 2011 proposal also created a district residency requirement for judges, while no such requirement exists in House Bill 325. The Supreme Court eventually found that restrictions on who can be elected to the court could be no more or less strict than those explicit in the state Constitution, and that while the Legislature can dictate selection requirements for judges in other courts, it could not do so for the high court.

The state this time around has argued that it’s inappropriate for the court to weigh in on a law that hasn’t actually been approved by voters yet, that to do so would circumvent the electoral process. And even if the court does decide to act, attorneys for the state have said that the elimination of the residency requirement from the old initiative is enough to break the link with Reichert.

“(Plaintiffs) want a prospective ruling on the hypothetical constitutionality of a referendum that could, potentially, become law if the voters approve it,” reads a brief from Assistant Solicitor General Christian Corrigan filed Dec. 10.

But the lower court on Monday disagreed — the substantive parts of the new proposal are the same as the old, and Reichert is thus binding.

“The Montana Supreme Court in Reichert noted that pre-election judicial review of legislative referenda should not be routinely conducted, but then stated that ‘such deference and restraint do not apply, however where the challenged measure is facially defective,'” Ohman wrote.

The Reichert court, he added, “clearly stated the Montana Constitution intended Supreme Court justices to be selected on a statewide basis — exactly what HB 325 prohibits.”