HELENA — The state on Friday appealed a decision striking from the June ballot a referendum on whether Montana Supreme Court justices should be elected by geographical districts instead of statewide.
The Montana Attorney General’s Office asked the Supreme Court to reverse a District Court ruling last month that removed Republican-backed Legislative Referendum 119 from the June 5 primary ballot.
Sen. Joe Balyeat, R-Bozeman, sponsored the measure. As a legislative referendum, it had to pass both the Senate and House but wasn’t required to go to Democratic Gov. Brian Schweitzer, where a veto was likely.
Balyeat and other Republicans want to change the way the six justices and chief justice are elected. At present, justices run statewide and can live wherever they want in Montana. Republicans have argued that most justices in recent years have come from within a 100-mile radius of Helena, leaving other parts of the state and their legal philosophies underrepresented.
On March 20, District Judge James Reynolds of Helena ordered the measure off the ballot. He said the statutory measure would illegally amend the Montana Constitution by establishing new residency requirements for Supreme Court justice candidates.
LR-119’s proposed requirement that judicial candidates must live within their proposed districts is unconstitutional because the document requires only that a candidate be a resident of the state for two years, Reynolds said.
In their appeal, Attorney General Steve Bullock and Assistant Attorney General Andrew Huff argued that the lawsuit is “unripe” to be heard before the June 5 primary election.
“LR-119 is not presently in effect, and may never become law,” they said in a brief.
The Montana Supreme Court only rarely has removed initiatives from the ballot “when there is a procedural defect or when the initiative is clearly unconstitutional on its face,” they said.
Those challenging LR-119 haven’t shown that the referendum is unconstitutional on its face, the Attorney General’s Office said.
The measure underwent a review and revision before the Legislature approved it, so there is a presumption it’s legally valid, the lawyers wrote.
The state attorneys agreed that the Legislature can’t change the Montana Constitution without a constitutional referendum vote. That issue doesn’t apply in this case, they said, because LR-119 doesn’t add to or contradict the qualifications spelled out in the constitution.
“LR-119 establishes electoral districts for Supreme Court justices in conformity with the constitutional requirement that justices be elected by the qualified electors as provided by law,” the state attorneys said. “LR-119 does not impermissibly add to or change the constitution — it implements the constitution pursuant to that document’s specific direction.”
The constitution doesn’t require at-large statewide elections for Supreme Court justices, the Attorney General’s Office said, citing transcripts of the debates at the 1972 Constitutional Convention.
Bullock and Huff also argued that if the Supreme Court agrees with Reynolds that the residency requirement is unconstitutional, the justices can sever that provision from the ballot measure and let the rest of it go before voters.
The Attorney General’s Office is obliged to defend state laws and ballot issues when they are challenged in court.
Fourteen people, including some delegates to the 1972 Montana Constitution Convention, were plaintiffs in the lawsuit seeking to remove LR-119 from the ballot.