State, plaintiffs still dueling in challenge to Supreme Court election-by-district bill

‘They want a prospective ruling on the hypothetical constitutionality of a referendum’

By: - December 16, 2021 4:37 pm

The seven seats and court of the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

Montana Secretary of State Christi Jacobsen asked a district court in Butte last week for summary judgment in a legal challenge to House Bill 325, a legislative ballot referral passed this year that, if approved by voters in 2022, would require state supreme court justices to be elected by district.

The state argued that the challenge from a series of plaintiffs including the League of Women Voters and former Montana Secretary of State Bob Brown attempts to circumvent the ballot initiative process and nullify legislative authority by “preemptively (declaring) HB 325 unconstitutional before the people have a chance to consider it.

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

Attorneys for the plaintiffs responded with a brief of their own Wednesday, asserting that the facial unconstitutionality of the referendum is such that it’s appropriate for the courts to weigh in before the issue lands on ballots.

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

The challenge to HB325 is one of several lawsuits arising from bills passed in the 2021 legislative session that would reshape the state’s judiciary, among other issues. But the suit, first filed in May, has moved slowly in comparison to some higher-profile proceedings, thanks to a months-long debate over whether the state was properly served and whether a motion from the state to dismiss Second Judicial District Court Judge Kurt Krueger was filed in time.

In November, the state Supreme Court heard the issue on appeal, and decided the state had followed proper procedure in requesting Krueger be replaced, leading to the appointment of Judge John C. Brown out of Bozeman and clearing the way for further argument.

2021-12-15 Plaintiffs’ Reply Brief

In their initial challenge, the plaintiffs formed much of their argument on the state Supreme Court’s 2012 analysis and ruling in Reichert v. McCulloch, which declared unconstitutional another ballot referral, 2011’s SB268, also prior to the measure actually appearing on the ballot. That proposal would have created supreme court electoral districts but also required that judges be “qualified electors” in the districts from which they’d be elected.

“The language and structure of these sections demonstrate that the Constitution intends Supreme Court justices to be elected and serve on a statewide basis, district court judges to be elected and serve on a district-wide basis, and justices of the peace to be elected and serve on a countywide basis,” the court’s 2012 ruling reads.

The plaintiffs here have additionally cited opinion in Reichert that as the at-large election Supreme Court justices is enshrined in the constitution, it’s inappropriate to alter that principal with a ballot referral rather than a constitutional amendment.

“Reichert determined the 2012 measure was both substantively unconstitutional and also procedurally improper — finding it may not be changed by the mere practice of statutory amendment, even where the amendment is submitted by legislative referendum to the Montana voters,” the December 15 brief reads. 

“It goes without saying that this Court is bound to follow Reichert,” it continues.

The state’s argument for summary judgment challenges the justiciability of a ballot initiative that has not and might not pass; a suit against HB325, in its words, is not “ripe for judicial review.

“Plaintiffs don’t claim that the Legislature stepped outside the scope of its … referendum power when it decided to submit HB 325 to the people,” the brief in support of the motion for summary judgment reads. “Instead, they want the court to say that if HB 325 were to become law, it would be unconstitutional.”

Precedent, the solicitor general argues, does not decide jurisdiction; the constitution does.

Even if the court accepts that the complaint here is justiciable, the state says it can defend HB325 on the merits.

For one, the Montana Constitution says that “Supreme court justices … shall be elected by the qualified electors as provided by law,” which the state has taken to mean as determined by the Legislature. That would track with the court’s ruling for the state in another legal challenge to a recent bill that abolished the Judicial Nominating Commission, the state’s brief argues.

In that case, Brown v. Gianforte,  the state cited constitutional language that says the governor shall fill judicial vacancies “… in the manner provided by law.”

Furthermore, HB325 isn’t the same as SB268, the state says: The absence of a requirement that justices be “qualified electors” — residents — in their districts is absent in the more recent proposal.

“HB 325 breaks the link that … the Reichert Court relied on in concluding that (the initiative) unconstitutionally altered the structure of the Supreme Court,” the state wrote last week. 

The case seems likely bound for the Montana Supreme Court, Goetz said Thursday. Even the state seems to acknowledge that possibility, writing that if the court “determines that Reichert directly controls the outcome of this case,” the state “preserves” for appeal its arguments on the constitutional merits of HB325.

The district court in Butte will hear arguments on these briefs on January 10.

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.