Another bill reshaping judiciary faces lawsuit

Another in a series of GOP-backed bills signed this session that would reshape Montana’s judicial branch is now subject to a legal challenge.

Plaintiffs including longtime Butte activist and nun Sister Mary Jo McDonald, a former Butte-Silver Bow County Court clerk and several of the same figures involved in a suit challenging a separate bill passed this session are all mounting a case against House Bill 325, a legislative referendum recently transmitted to the Secretary of State that would in 2022 put to the voters the question of whether or not to elect state Supreme Court justices by district, a dramatic departure from the at-large system used today.

Republicans presented the bill, sponsored by Rep. Barry Usher, R-Billings, both as a way to make judges more locally accountable as well as to create a court “more aligned with our electorate,” as Usher put it in a March hearing. But critics have derided the bill as one of several efforts this session by Republicans to politicize and independent branch of government and consolidate conservative power in the state — other examples include Senate Bill 140, a bill to give the governor the sole ability to fill judicial vacancies that’s also facing a court challenge.

Attorneys James Goetz and Clifford Edwards represent the plaintiffs in both the HB325 suit and in a legal challenge to SB140. In the HB325 case, Secretary of State Christi Jacobsen is named as the respondent, as the ballot initiative referral doesn’t require a signature from Gov. Greg Gianforte to go to the voters. The suit was filed in the Montana Second Judicial Court in Silver Bow County.

HB325, Goetz and Edwards write, would “result in a tectonic shift in Montana’s system of electing Supreme Court justices” and deny the voters of Montana the right to vote for all seven justices on the high court.

“Montana’s voters have always been able to vote at-large for each candidate for the position of justice of the Montana Supreme Court and for the office of chief justice,” the lawsuit reads. “This has been a bedrock feature of Montana’s system of government throughout its history.”

The plaintiffs drew attention to another similar ballot initiative that the court struck down almost a decade ago. Senate Bill 268, passed in the 2011 session, would have also created a system of Supreme Court elections by district. And it created requirements that judges be “qualified electors” in the district from which they’re elected, among other new standards, provisions that ultimately ran afoul of the courts.

HB325 doesn’t have those same additional requirements. But the plaintiffs argue that doesn’t change the constitutionality of the referral.

“The 2021 Montana Legislature, in enacting HB 325, attempted to address the first constitutional defect by … eliminating any new qualifications for the office of Supreme Court justice,” the filing reads. “The second aspect … found in [the 2011 proposal] to be unconstitutional (the attempt to alter the “structure of the Supreme Court”) is not addressed at all in HB 325.”

Goetz and Edwards cited another passage from the 2012 ruling: “Given this statewide jurisdiction, it would be incongruous to interpret the Constitution as contemplating a Supreme Court made up of justices who are elected from districts and implicitly “represent” regional interests. Such an interpretation would be inimical to the judicial function.”