Supreme Court Confirms That Montana Constitution Doesn't Permit Supreme Court "Districts"

On May 18 the Montana Supreme Court affirmed Judge Reynolds' decision that a legislative scheme to elect Supreme Court justices from "districts" violates the Montana Constitution.

Before turning to the merits of the case, the Court first considered and rejected a "recusal" demand by some of the legislators who had supported the bill. (A judge who believes he or she has a conflict of interest that would prevent fair decision of the case may disqualify or "recuse" himself or herself from the case). The legislators argued that any current member of the Court who might run for reelection in the future had a "potential" conflict of interest that required recusal. The Court disagreed and explained that the alleged "potential" future conflict was too speculative to trigger recusal. Moreover, the district court judges who are normally substituted in when one of the justices recuses himself or herself would have the same "potential" conflict, theoretically leaving no judge in the state who could sit on the case.

Next, the Court held that the issue was ripe for decision now, before the election. The "districts" would take effect immediately and apply this year to the seats currently held by Justices Nelson and Morris. Instead of all voters in the state voting on these two supreme court seats this year, only the residents of those two "districts" would vote. This would disenfranchise all other voters in the state. Though courts ordinarily wait until after referendum elections to decide constitutional issues, that rule did not apply here:

Where a measure is facially defective, placing it on the ballot does nothing to protect voters’ rights. It instead creates a sham out of the voting process by conveying the false appearance that a vote on the measure counts for something, when in fact the measure is invalid regardless of how the electors vote. Placing it on the ballot would also be a waste of time and money for all involved—putting the Secretary of State, local election officials, and ultimately taxpayers to the expense of the election; putting proponents and opponents to the expense of needless campaigning; and putting voters to the task of deciding a ballot issue which this Court already knows cannot stand even if passed. Deferring decision to a later date so the measure can go forward is senseless. It consumes resources with no corresponding benefit.

Reichelt v. Bullock, 2012 MT 111, ¶59.

On the merits, the Court held that assigning "seats" on the Court to geographic "districts" would in effect create a residency requirement that does not appear in the text of the 1972 Montana Constitution. The Constitution requires only three (3) qualifications of would-be supreme court justices:


  1. must be a citizen of the United States

  2. must have been a resident of Montana for two years before taking office

  3. must have been admitted to Montana bar for at least 5 years.


Mont. Const. art. VII, § 9(1). This provision doesn't say anything about residing in any particular place within Montana. This constitutional provision further provides that the legislature may establish qualifications for other judges in Montana but says nothing about the legislature altering the qualifications for supreme court justices.

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