Court: Proposed judicial election changes unconstitutional

August 12, 2022 GMT

HELENA, Mont. (AP) — The Montana Supreme Court on Friday ruled that a proposal to change the way state Supreme Court justices are elected is unconstitutional and cannot appear on the November ballot.

The 5-2 ruling upheld a March decision by District Court Judge Peter Ohmann of Butte in a challenge over a legislative referendum that sought to ask voters if they wanted to elect Supreme Court justices from smaller districts instead of on a statewide basis.

The Constitution specifically requires the election of Supreme Court justices on a statewide basis.

The proposal would “deny each Montanan their right to vote in the election of six out of the seven justices on their state Supreme Court and in the selection of chief justice,” Chief Justice Mike McGrath wrote for the majority.

The measure was among several passed last year by Republicans in the Legislature seeking to remake what they consider an activist judiciary and to appoint more conservative judges. Over the objection of Democrats, they passed a law allowing the governor to directly appoint a replacement if a Supreme Court seat becomes vacant between elections.


Gov. Greg Gianforte, a Republican, had said he would use the new law to “appoint judges who will interpret laws, not make them from the bench.”

The proposed referendum was similar to another that passed in 2011 seeking to ask voters if they wanted to divide the state into seven districts for the election of Supreme Court justices. Under that proposal, the justices would have had to live in the districts they sought to represent. But the Montana Supreme Court said that law was unconstitutional.

Attorney General Austin Knudsen, whose office has sparred with the Montana Supreme Court over several issues — including legislative subpoenas seeking certain emails sent or received by the court administrator and justices — said the latest state Supreme Court decision was “perhaps (the court’s) most shameful and self-serving ruling yet.

“In order to protect their own jobs,” a majority of justices “deprived every Montanan of their right to decide how we elect Supreme Court justices,” Knudsen said in a statement.

Knudsen, who represented the Secretary of State’s office, and Republican Rep. Barry Usher of Billings, who sponsored the bill, said the justices should have disqualified themselves from hearing the case so that other judges could hear it and make a decision. The Supreme Court denied the request.


Justices Beth Baker and Jim Rice argued the court should have waited until after voters made their decision to rule on the case.

“In my view, it is far from a given that Montanans would choose to vote themselves out of the process for selecting the members of this court,” Baker wrote. “If they do not, the issues raised here will not need our review.”

Baker added: “Instead, in an ironic turn, the court denies Montanans the right to vote so that they cannot be denied the right to vote.”

The majority argued that proceeding with an election on a clearly unconstitutional proposal would create “a false appearance that a vote on a measure means something.”