Voting on Supreme Court justices by district won’t appear on Nov. ballot
Nicole Girten/Daily Montanan
Montanans will continue to elect Montana Supreme Court justices at large with a decision issued Friday — and one immediately criticized by Republican leaders.
The state’s highest court in a 5-2 opinion affirmed the Butte-Silver Bow District Court’s decision to enjoin the Secretary of State Christi Jacobsen from placing HB 325 on the ballot in the 2022 general election.
HB 325, which passed during the 2021 legislative session, would have put to the voters whether voting for Supreme Court justices should be done in districts, with voters in each district choosing one justice, as opposed to voters from across the state voting for every justice, as is done now.
Plaintiffs including the League of Women Voters challenged the constitutionality of HB 325, with the Second Judicial District Court granting summary judgment and enjoining Jacobsen from putting HB 325 on the ballot. The lower court based this decision on the Montana Supreme Court precedent set in Reichert v. State, which was decided in light of legislation passed in 2011 that also concerned Supreme Court Justice elections.
Jacobsen appealed the lower court’s decision, with the argument that the constitutionality of HB 325 was “not ripe for judicial review” and that HB 325 was constitutional.
Republicans in Montana, who have clashed with the judiciary and in some cases publicly requested the court make considerations on issues like abortion, decried the Supreme Court’s decision Friday.
Attorney General Austin Knudsen said the ruling deprived Montanans of their right to decide how to elect justices to the state’s Supreme Court and said those in the majority opinion were trying to protect their own jobs.
“Opinions from the Montana Supreme Court have become little more than the rubberstamping of Democrat Party policies with a thin veneer of poor, tortured judicial reasoning,” Knudsen said in a news release Friday. “This is perhaps their most shameful and self-serving ruling yet.”
Knudsen argued earlier this summer that all of the justices should be required to recuse themselves from hearing the appeal, citing conflicts of interest. The motion to disqualify was denied.
HB 325 sponsor Rep. Barry Usher, R-Billings, called the Supreme Court a “corrupt institution in dire need of reform” in a statement Friday.
“By not disqualifying themselves, each justice violated the law and their own code of judicial conduct. Montanans have the right to determine the method of Supreme Court elections, not activist left-wing judges who don’t want to be accountable to the people they are supposed to serve,” Usher said in a statement included in the Attorney General’s release.
The Supreme Court’s opinion, penned by Chief Justice Mike McGrath, listed out the duties of the court, including:
statewide appellate jurisdiction, general supervisory control over “all other courts,” authority to make rules governing practice and procedure for “all other courts,” and authority to make rules governing admission to the bar and the conduct of its members. Reichert, ¶ 65; Mont. Const. art. VII, § 2. It has original jurisdiction over writs of habeas corpus, Article VII, Section 2(1), and issues binding rulings on a wide range of matters, ranging from criminal justice to property law, contractual disputes, child custody, and fundamental constitutional rights.
“The implications are not merely philosophical,” McGrath wrote. “HB 325 would deny Montana voters a say in the identity of six out of the seven individuals responsible for such weighty decisions affecting their lives.”
In his conclusion, McGrath also said that Montana voters would not have gained anything in their representational interest in voting in separate districts.
“Justices are tasked with applying the law fairly and uniformly statewide and forbidden from representing any ‘constituency’ or its interests,” McGrath said. “The obligation of Supreme Court justices is to interpret and apply the law on a uniform basis statewide. The requirements and protections of the Constitution and the law do not vary from one county or district to another.”
The opinion affirmed the lower court’s findings that HB 325 was “ripe for judicial resolution,” citing the Montana Supreme Court precedent in Reichert v. State.
The opinion also looked at the question of whether the referendum proposal itself violated the constitution. McGrath wrote that the Montana Constitution clearly entrusts the people of Montana with the election of the members of their Supreme Court.
“Nothing in the text, history, or purpose of the Montana Constitution, or our subsequent interpretations of it, authorizes the drastic diminishment of this right entailed by HB 325,” McGrath said.
Justice Beth Baker wrote the dissenting opinion, joined by Justice Jim Rice, and argued that HB 325 would not have an immediate effect on elections and the court did not have to act as swiftly as it did in the Reichert case, with the first impacted election cycle in 2024.
“There simply is no immediate concrete danger of disenfranchisement that could not be addressed in the ordinary course of constitutional litigation on the merits if, and only if, HB 325 were to be approved by the electorate,” Baker wrote.
She said in her dissent that it was “far from given that Montanans would choose to vote themselves out of the process for selecting the members of this Court.”
“If they do not, the issues raised here will not need our review,” she said.
She said that they should let the process run its course before “putting the Court’s own thumb on the scale.”
McGrath cited Reichert in saying that placing an unconstitutional measure on the ballot places an “unwarranted burden on the public by ‘putting voters to the task of deciding a ballot issue’ and ‘conveying the false appearance that a vote on the measure counts for something, when in fact the measure is invalid regardless of how the electors vote,’ thereby constituting a senseless ‘waste of time and money for all involved.’”