Reichert v. STATE EX REL. McCULLOCH
365 Mont. 92, 2012 MT 111, 278 P.3d 455 (2012)
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Rule of Law:
A statutory legislative referendum cannot constitutionally amend the qualifications for public office or the fundamental structure of government as exclusively established by the state constitution; such changes must adhere to the specific constitutional amendment procedures.
Facts:
- The 62nd Montana Legislature enacted Senate Bill 268 (SB 268), proposing statutory changes regarding the election of justices to the Montana Supreme Court.
- SB 268 was to be submitted to the electorate as Legislative Referendum No. 119 (LR-119) at the June 5, 2012, primary election.
- Under existing Montana law, Supreme Court justices are elected on a statewide basis by qualified electors of the state at large.
- LR-119 would have mandated that each justice be elected from one of seven geographically defined districts and required candidates to be qualified electors of that district at the time of initial election.
- LR-119 also proposed changing the method of selecting the Chief Justice from a statewide election to a selection by majority vote of the seven justices themselves.
- Plaintiffs are Montana citizens, taxpayers, and electors who reside in each of the seven districts proposed by LR-119 and historically participate in elections for Supreme Court justices.
Procedural Posture:
- Plaintiffs commenced an action in the First Judicial District Court, Lewis and Clark County, against the State, through Secretary of State Linda McCulloch.
- Plaintiffs sought a declaratory judgment that LR-119 was unconstitutional, an order to decertify LR-119, and an injunction against placing it on the ballot.
- The State, through the Attorney General, filed an answer, asserting the challenge was not ripe and LR-119 was constitutional.
- Plaintiffs filed a motion for summary judgment.
- Seven individual Montana legislators filed a motion to intervene as party defendants, which the District Court denied.
- The Legislators directly appealed the denial of intervention to the Montana Supreme Court, which granted Plaintiffs' motion to dismiss that appeal (Reichert v. State, No. DA 12-0156).
- The Legislators then filed a petition for writ of supervisory control with the Montana Supreme Court, again challenging the denial of intervention, which the Supreme Court denied, affirming the District Court's order (Seven Mont. Legislators v. First Jud. Dist. Ct., No. OP 12-0171).
- The District Court granted summary judgment to Plaintiffs, concluding LR-119 was unconstitutional and not severable, and ordered the Secretary of State to decertify LR-119 and enjoined its placement on the June 5, 2012 ballot.
- The State filed a notice of appeal with the Montana Supreme Court.
- The State filed a motion in the District Court for an immediate stay of its order, which the District Court denied because the Secretary of State had already certified the ballot without LR-119.
- The State filed a motion in the Montana Supreme Court to expedite the appeal's briefing and disposition, which the Court granted.
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Issue:
Does a legislative referendum that creates new residency and voter registration requirements for Supreme Court justices and transforms the Supreme Court into a district-based representative body constitute an impermissible attempt to amend the state constitution through statutory means, rather than through constitutionally prescribed amendment procedures?
Opinions:
Majority - Justice Nelson
Yes, LR-119 impermissibly amends the Montana Constitution, and its constitutionally infirm provisions cannot be severed. The Court first addressed recusal, finding no requirement for non-retiring justices to recuse themselves, as their potential future electoral interests were too remote, speculative, and contingent to demonstrate actual bias under the Due Process Clause or a 'substantially affected' interest under the Montana Code of Judicial Conduct. The Court then determined the constitutional challenge to LR-119 was justiciable and ripe for pre-election review. It reasoned that LR-119 posed a definite and concrete threatened injury by potentially disenfranchising voters in the upcoming election cycle and that pre-election review is appropriate for measures facially unconstitutional, preventing a 'sham' election and waste of resources. On the merits, the Court held LR-119 unconstitutional because Montana Constitution Article VII, Section 9(1) exclusively prescribes qualifications for Supreme Court justices (U.S. citizen, two-year state residency, five years law practice), and LR-119 unconstitutionally adds a 'qualified elector' (voter registration and district residency) requirement. Furthermore, LR-119's attempt to convert the Supreme Court into a district-based representative body conflicts with the Constitution's structural intent for statewide selection of justices, as evidenced by constitutional language, historical convention records, and the Supreme Court's statewide jurisdiction. The Court rejected the State's arguments that Article VII, Section 8(1)'s 'as provided by law' clause or the Constitutional Convention history authorized these changes. Finally, the Court concluded the unconstitutional provisions could not be severed, as changing the chief justice selection method was not the 'inducement' for LR-119's enactment, and judicial rewriting of the referendum would be an improper exercise of legislative power.
Concurring in part and dissenting in part - Justice Baker
No, the Court should not have reached the constitutional challenge to LR-119 prior to the results of the June 5, 2012 election. Justice Baker concurred with the majority on the recusal issue. However, he dissented on the justiciability and ripeness issue, arguing that the Court should have exercised judicial restraint and awaited the outcome of the public vote. He emphasized the principle of broadly construing initiative and referendum provisions to maintain maximum power in the people and noted that a referendum process is not complete until the electorate has spoken. Justice Baker contended that pre-election review should be sparingly used, primarily for citizen initiatives that are 'unquestionably and palpably unconstitutional on its face' or legislative amendments that would leave an irremediable constitutional defect, neither of which applied clearly to LR-119. He pointed to the repeal of a statute that previously allowed pre-election challenges to 'constitutional defects in the substance of a proposed ballot issue,' replaced by language preserving challenges for issues 'approved by a vote of the people.' He argued that the constitutional dispute was merely hypothetical until voters approved the measure, making it unripe for review and an advisory opinion. The perceived 'disenfranchisement' threat was speculative, as it would only occur if LR-119 passed, and the Court could have expedited its decision post-election. He concluded that the Court's interference was not 'absolutely essential' and patronizing, elevating judicial economy over the people's constitutional right to vote.
Analysis:
This case significantly clarifies the distinction between statutory lawmaking and constitutional amendment processes in Montana, establishing that legislative referendums cannot be used to bypass the specific procedures required to alter fundamental constitutional provisions, such as qualifications for judicial office or the structure of the judiciary. It provides strong precedential support for pre-election judicial review of ballot measures that are facially unconstitutional, particularly those threatening to modify governmental structures, thereby preventing the waste of public resources and ensuring the integrity of the constitutional framework. The decision also reinforces the Montana Supreme Court's self-conception as a statewide, non-representative judicial body, distinct from the district-based legislative branches.
