Proposed constitutional amendment would end Montana Supreme Court elections

The House Judiciary Committee on Thursday endorsed a proposed constitutional amendment that would end state Supreme Court elections in Montana, giving the governor power to appoint justices to the bench with Senate confirmation.

House Bill 915, sponsored by Rep. Bill Mercer, R-Billings, is the long-awaited culmination of legislative Republicans’ efforts this year to remake the state court system and its processes.

Like all constitutional amendment proposals that lawmakers bring forward, HB 915 will require 100 votes — a two-thirds majority — across both chambers of the Legislature to land on the ballot for consideration by voters in 2024.

Mercer, a former U.S. attorney who often works on bills related to the courts and justice system, framed the bill during its hearing this week as an effort to combat the proliferation of campaign cash in state judicial elections. He distributed a “briefing paper” he put together with citations from Montana’s campaign finance case law, minutes from the 1972 state constitutional convention and references to a law review article all leading roughly to the same point: The demands of being a judge and those of running a judicial campaign can come into conflict. 

“Judicial candidates face the choice of either soliciting funds from lawyers — principally — as the persons most likely interested in a judicial race, or forgoing those funds and lacking the resources necessary to successfully campaign,” Mercer testified. 

The change Mercer proposes would, if approved by voters, take effect in 2025. That means that both Chief Justice Mike McGrath and Justice Dirk Sandefur will still run for re-election in 2024, should they choose. The bill passed Thursday, 13-6, along party lines. 

“We have a system now in which the only people who can serve on the Montana Supreme Court are the people who want to run a statewide campaign,” Mercer said during the bill’s hearing Wednesday. “There are plenty of people who are good lawyers who do not want to raise money, who do not want to go through the very aggressive tactics that are employed by both sides, and are not gonna subject themselves to that.” 

But Mercer’s testimony somewhat belies the political implications of his proposed amendment, Rep. Tom France, D-Missoula, said in the hearing. Republicans have taken over the legislative and executive branches of state government, but repeatedly found their policy priorities stymied in court. GOP criticisms of the judicial branch aren’t new, but intensified in 2021 when roughly two dozen newly passed laws faced litigation. 

The following year, Gov. Greg Gianforte and other Republicans rallied behind Public Service Commission President James Brown — who represented a conservative PAC called American Tradition Partnership in a lawsuit challenging state campaign finance restrictions in 2011 — in his ultimately unsuccessful challenge to incumbent Justice Ingrid Gustafson. That race was unprecedentedly expensive, drawing $2.9 million in outside expenditures in the last month alone. 

“In that context, the current governor broke with tradition in the 2022 election to endorse a candidate for the Supreme Court, and the voters I’m sure had many reasons for voting the way they did, but they didn’t pay attention to the governor’s endorsement or they chose the other candidate,” France said. “And I guess I’m wondering if this isn’t second guessing the voters by now saying we’ll have the governor bypass the voters in making the appointment.”

That could be particularly relevant on the issue of abortion, France said, which is protected in Montana because of state Supreme Court precedent. 

This session, lawmakers have come forth with numerous changes to how Supreme Court justices are selected, from requiring partisan elections to providing for legislative appointments. Most of those bills have failed.

Mercer responded that there’s no guarantee the current governor is the one who would be making the first round of the appointments under the bill. Gianforte is up for reelection in 2024. 

“If this amendment passes, there will be governors going forward for years who will be placing people on the court,” Mercer said. “We shouldn’t assume that we know who those governors are going to be.” 

Still, other proponents of the bill made clear their reasons for support dovetailed with their political interests. 

“I think we recognize the fact that all the work this Legislature does can simply be undone by a judge is why this issue is so critically important to take on,” testified Henry Kriegel, a lobbyist for Americans for Prosperity of Montana.

Montana has had non-partisan judicial elections for most of its history, a populist response to the political machinations of the copper kings early on. But for much of that time, Mercer testified, policymakers have debated how to control the influence of money in those elections and on the way judges actually rule once on the bench. It was a hotly contested point at the constitutional convention, he said, pointing to a statement from one former Supreme Court candidate who served as a delegate.

“You either have lawyers who give it to you in case you’d win or you have lawyers who are afraid not to give it to you or you get it from lawyers who are genuinely interested in your philosophy of what a court ought to be,” delegate Jack Schiltz said during debate by the convention’s Judiciary Committee. “But, as I envision this terrifying prospect, if I were to be sitting on the court, I didn’t trust myself not to give a little edge to the fellow who had given me $500 over the fellow who hadn’t given me $500. Or I didn’t trust myself to say that guy who gave me that $500 isn’t going to get away with it; I will now hold for the other fellow.”

But critics of Mercer’s bill said that a system of judicial appointments would similarly leave justices vulnerable to ouvertures from outside forces. Unlike with the federal system of judicial appointments, Mercer’s bill doesn’t propose lifetime appointments. 

“Unlike the federal system where the judge is appointed for a lifetime — which means they don’t have to worry about the political winds that might be blowing – here, if somebody wants to serve more than one term, they better make sure that they don’t cross the governor,” testified Al Smith with the Montana Trial Lawyers Association. “I think this injects politics way too much into this process. Does anybody like the way judicial elections go? No. But do you know what, it gives the people a chance to vote for those folks.”

And Mercer’s bill would take that right away, Smith said. 

Even Schiltz, later in the transcripts of the constitutional convention, acknowledges that he prefers the system of non-partisan judicial elections. 

“We have strong corporate influence; where, if I can elect a governor, and through that office nominate and appoint the district and the Supreme Court judges, I can run this state. . . . I can own it,” he said, later adding that it was an unfortunate choice, but that he would always choose running for office.

The convention ultimately landed on a mixed system, where judges run for election but the governor has the power to fill judicial vacancies from a list of candidates submitted by the Judicial Nominating Commission.

A few major changes have occurred since. For one, the U.S. Supreme Court’s 2010 ruling in Citizens United — and subsequent invalidation of Montana’s own campaign finance law — opened the door to outside money in judicial campaigns.  

Mercer noted that some opponents said the state should curtail money in politics rather than end judicial elections. That, he said, would be impossible under those rulings.

The second was the 2021 Legislature’s decision to eliminate the Judicial Nominating Commission, which forwarded candidates for judicial vacancies to the governor. That left all vetting and selection power with the governor, though it kept the Senate’s confirmation authority intact. 

Mercer said that under his bill, the governor would select candidates for the Supreme Court much in the same way he fills vacancies under current law. Although he’s not directed to by statute, the governor has appointed advisory councils to recommend candidates for the several vacancies he’s filled in his term. These councils are also not without controversy. 

That isn’t a strong enough sideboard, testified Bruce Spencer on behalf of the Montana Bar Association. Without some system for merit-based selection, the elected system is the best option, he said. 

“Without sideboards the state bar has great concern about how you determine the qualifications of those being appointed, whether the public gets some input on those being appointed, and for those reasons the state bar opposes this bill,” he said. 

The bill is now pending action on the House floor.