Montana Supreme Court rules justice election ballot measure unconstitutional

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Posted at 1:30 PM, Aug 12, 2022

HELENA — The Montana Supreme Court has agreed with a lower court’s striking down of a legislative ballot measure that would have let voters decide if Montana Supreme Court justices should be elected by districts, rather than a statewide election.

In a 5-2 decision, the state’s high court ruled House Bill 325 unconstitutional based on judicial precedent. Montana Supreme Court Chief Justice Mike McGrath wrote the opinion for the majority.

McGrath noted the Montana Constitution requires justices to be elected statewide. With the Supreme Court concluding HB 325 as unconstitutional, the Court has the authority to remove it from ballot consideration.

“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,” wrote McGrath.

The legislation was passed by the 2021 Legislature at the same time GOP leadership was challenging the neutrality of the judiciary. Proponents of the legislation said moving to districts would help ensure the justices held political preferences more similar to the state’s electorate. Opponents likened the measure to political gerrymandering.

If HB 325 has been allowed on the ballot and passed, voters would only vote on the justice assigned to their district rather than the current system where all Montana voters are able to vote in every Montana Supreme Court race. Since Montana became a state in 1889, State Supreme Court Justices have been elected through statewide contests.

A group of Montana voters, advocates and former elected officials filed a legal challenge against HB 325 last May.

The 2012 case of Reichert v. State was heavily cited in McGrath’s opinion. In that case, the Montana Supreme Court previously addressed the constitutionality of a legislative referendum proposing changes to the qualification and selection of Montana Supreme Court justices.

Specifically from the Reichert decision, the Court notes that justices do not sit as representatives of particular persons, communities, or parties.

“Justices are tasked with applying the law fairly and uniformly statewide and forbidden from representing any ‘constituency’ or its interests,” wrote McGrath.

Justices Beth Baker and Jim Rice dissented with the majority opinion and would not reach the merits of the constitutional issue until Montana voters had the opportunity to vote on it.

Montana Attorney General Austin Knudsen, a Republican, blasted the decision on Friday and had previously called on all the justices to recuse themselves from the case.

“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. This is perhaps their most shameful and self-serving ruling yet. In order to protect their own jobs, Justices Gustafson, McGrath, McKinnon, Sandefur, and Shea deprived every Montanan of their right to decide how we elect Supreme Court justices,” wrote Knudsen in a press release.

HB 325 was sponsored by Republican State Representative Barry Usher of Billings. The question would have appeared as a referendum on the November 2022 general ballot.

“If anyone needed irrefutable proof that our state Supreme Court is a corrupt institution in dire need of reform, this is it. 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.”