Judge blocks ballot measure on electing Montana Supreme Court justices by district

A state judge has blocked a scheduled voter referendum on switching the elections that pick justices for the Montana Supreme Court from statewide to district-based elections.

The March 21 ruling, by District Court Judge Peter Ohman, finds that the ballot measure is unconstitutional, conflicting with a 2012 Montana Supreme Court ruling that struck down a similar proposal. Ohman’s order, which is likely to be appealed, bars Secretary of State Christi Jacobsen from placing the Republican-backed referendum on this fall’s ballot.

The referendum would have asked Montana voters to endorse changing elections for the state’s seven Supreme Court seats, which have been held on a statewide basis since Montana was granted statehood in 1889, to a district-based system. For example, one justice would have been elected by voters in Yellowstone County, and another by voters in Kalispell and three surrounding counties.

When the measure was debated by the state Legislature last year, its Republican supporters said it would result in a court that was “more aligned” with the state’s electorate. Opponents accused supporters of “judicial gerrymandering” — drawing a district map that would elect more conservative justices. A bill to put the measure on this year’s ballot passed the Republican-controlled Legislature on near-party-line votes.

The Montana Supreme Court has come under sustained criticism from some Montana Republicans in recent years as members of the party’s hardline wing, who regard the court as being dominated by left-leaning judges, accuse it of being too hostile to conservative policies. The court’s defenders, including many figures in the state’s legal establishment, have countered that the court is fulfilling its prescribed constitutional role when it strikes down laws that conflict with provisions of the state Constitution.

Ohman’s order quotes extensively from the Montana Supreme Court’s ruling in Reichert v. State, which overturned a similar referendum proposal passed out of the 2011 Legislature. In that case, the court held that the drafters of Montana’s 1972 state Constitution had intended state Supreme Court justices to be elected on a statewide basis. They also wrote that district-based elections don’t make sense for a supreme court given its statewide jurisdiction and responsibilities, such as supervising other courts and making rules that govern attorney licensing and conduct.

“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,” Justice Jim Nelson wrote in the case’s majority opinion. “Such an interpretation would be inimical to the judicial function.”

That precedent, Ohman wrote this week, forces him to strike down the new ballot measure.

Jim Goetz, the Bozeman attorney who represented the group of plaintiffs who brought the suit along with Billings attorney Clifford Edwards, celebrated the ruling, describing it as a setback for what he considers an effort to politicize the state Supreme Court.

“I assume that the state will appeal this, but it’s so well-crafted I doubt they have much shot at an appeal,” Goetz said. 

A spokesman for the secretary of state’s office, Richie Melbie, said Tuesday that the office hadn’t yet had a chance to review the decision. A spokesman for the office of the attorney general, which represents the state in the case, didn’t immediately respond to a question Tuesday afternoon about whether it plans to appeal the matter.

The case against the proposed referendum was filed last May by a group of Montana voters and former public officials: Mary Jo McDonald, Lori Maloney, Fritz Daily, Bob Brown, Dorothy Bradley, Vernon Finley, Mae Nan Ellingson and the League of Women Voters of Montana.