The state elections office is waiting on word from District Court Judge James Reynolds whether a referendum slated for the June primary ballot will be found unconstitutional. LR 119 would change the way Montana elects Supreme Court Justices. The referendum creates seven new districts across the state of roughly equal population–Once for each member of the court. Each district’s voters would elect a candidate residing in that district to represent them on the court. The way it currently works, statewide voters elect all Montana Supreme Court Justices.
The lawsuit filed with Judge Reynolds says requiring justices to reside within the specific districts is unconstitutional. Judge Reynolds says he will likely agree. He may strike down the entire referendum or remove just the residency requirement. The referendum’s chief sponsor, Republican State Senator Joe Balyeat, says the requirement does not conflict with the Constitution’s actual language.
“If the Montana Constitution said if justices need only to reside within the state of Montana then our opponents would have a case. But it doesn’t say they need only reside in the state of Montana it simply says they must reside within the state of Montana and if LR 119 passed they still must reside within the state of Montana,” he said.
Judge Reynolds expects to rule on the lawsuit this week.
The republican-dominated 2011 Legislature placed LR 119 on this June’s primary ballot. It passed mostly on party lines.
Balyeat says the current system has led to six of the seven judges being from within 90 miles of Helena. He says they are all too similar.
“They’re not circumspect in their deliberations. They only hear one side of the argument. They’re all pretty much clones of one another,” Balyeat said.
He says this lack of judicial deliberation has created one of the most activist Supreme courts in the country. He points to the U.S. Supreme Court ruling against two recent decisions of the Montana court.
“And quite frankly, if they had more balance and diversity on the court,” Balyeat said. “These things would at least be thoroughly debated and I think they would be a little less quick to just make these dictatorial decisions that don’t seem to line up with the U.S. Constitution or their own prior court decisions.”
Former Chief of the Montana Supreme Court Karla Gray does not support the proposed changes. She says the court is not intended to represent groups of constituents. She says that’s what the Legislative Branch is for. The Supreme Court, she says, is beholden only to interpreting the law.
“It is occasionally very difficult to being objective. Not nearly as often as some people think. The law is for the most part very clear. It’s not made more subjective in an individual justice because of where they came from,” she said.
Gray also says all of Montana has elected every Supreme Court Justice since statehood.
“They’re being asked now to give up the right to vote for 6 of the 7 justices and only to vote for one justice every 8 years. Instead of a total of seven members of the court spread over the same 8 years,” she said.
“Well, that may be true, but your vote’s gonna be worth 7 times as much,” Balyeat said, adding average voters often look at Supreme Court candidates on the ballot and don’t know who they’re voting for. “When a judge runs, they don’t run with party designation and they tell you repeatedly they can’t tell you how they would vote on a given issue. So an average voter has nothing to base their vote on.”
He says having local control over their own Justice would increase the chances voters would know the candidates and know their records.
Some opponents call the referendum a Republican strategy to get more judges on the court from conservative Eastern counties. They also accuse Republicans of putting it on the primary ballot to take advantage of more conservatives voting in the Presidential, Senate and Gubernatorial primaries. Balyeat flatly denies these claims. He says he put it on the primary so the measure stands out separate from the crowded general election. And he says the referendum would not go into effect until the end of 2014 if passed on the November ballot.
“So I made a decision that it would go onto the June Ballot so it would take effect in the fall of 2012. It had nothing to do with partisan anything,” he said.