Proposed Constitutional Amendment would make SupCo selections by gubernatorial appointment

Yahoo

21-02-2025

The door to the old Supreme Court Chamber at the Montana Capitol. (Micah Drew/Daily Montanan)
One way to get millions of dollars out of Montana's Supreme Court elections is to do away with elections altogether.
That's the premise of House Bill 506, sponsored by Rep. Brad Barker, R-Red Lodge. The bill proposes a constitutional amendment to change the selection process for justices of the state's highest court.
'There's a tremendous amount of money, especially out of state money in these races. I think we would all also acknowledge that, and whether real or perceived, it has a corrosive effect on trust,' Barker told the House Judiciary Committee at its Feb. 20 meeting. 'Most Montanans that I talk to want to have non-partisan, impartial justices.'
Barker's constitutional amendment would take the current system of electing justices in nonpartisan elections for eight-year terms, and instead create an appointment procedure by which the governor will select justices from a list provided by a nominating committee.
The committee, Barker said, would be 'highly partisan,' and consist of the four legislative leaders — Speaker of the House, Senate President, and both minority leaders — and two attorneys selected by the legislators.
The even number of committee members would ideally force consensus on a list of three names to proffer up to the governor, Barker said, and 'because of their partisanship, create a very high bar and a vetting process' for potential Supreme Court nominees.'
Appointed judges would also face a confirmation hearing before the Senate.
Changing facets of the judiciary is a key policy priority for Republican leaders in the Legislature this session, with making judicial races partisan one of the main goals.
Anne Sherwood, a lobbyist representing Friends of the Third Branch, an educational organization focused on the state's judiciary, said the group opposed the legislation for taking away an aspect of judicial accountability.
'When judges are elected directly by the people, they are directly answerable to the voters,' Sherwood told the committee. 'When they're appointed by an individual or a panel of individuals, it has a significant impact on the judicial branch, and that disrupts the system of checks and balances.'
She said that appointments can lead to politicization of the judiciary and create a court that more closely reflects the political ideology of a sitting governor, rather than of the state.
When the Montana Constitution was drafted in 1972, Sherwood said the delegates had a long debate about the best judicial selection process, and the current one reflects a compromise — direct elections by the populace, but with vacancies filled by nomination — which she said is the 'gold standard' for judicial offices across the nation.
Dennis Taylor, with Big Sky 55+, said the referendum appeared to be a solution in search of a problem.
'Our rights and our liberties are only as strong as the independence and integrity of the Supreme Court,' Taylor said. 'And this referendum would weaken that independence. So if it's not broken, don't fix it. The Montana Supreme Court is not broken.'
A representative of the Montana Trial Lawyers Association added that in the 1990s, Montana voters approved a constitutional amendment to clarify that judges appointed to fill a vacancy had to stand for election at the next election.
'Montana voters have consistently doubled down on their desire to keep our system of electing our justices and judges,' she said. 'This measure is unnecessary, it's wasteful, and it's contrary to Montana voters' repeatedly expressed will.'
The ACLU of Montana also opposed the bill. No proponents appeared on behalf of the legislation.
As a constitutional amendment, HB 506 would put the question to voters during the 2026 election to make the ultimate decision.
'This initiative is simply to let the voters decide how they want to execute the selection of Supreme Court justices,' Barker said. 'What I've tried to devise is a process that will truly arrive at that most highly qualified, most highly respected, most perceived as impartial candidates for those high offices within our judicial system.'
According to the Brennan Center of Justice, 14 states, including Montana, select supreme court justices in nonpartisan elections. Seven states have partisan elections, two use legislative appointments, and 10 have gubernatorial appointments without oversight.
Fourteen states use what is called the 'Missouri Plan' or a merit-based selection process, which is similar to what Barker proposed where judicial vacancies are filled by the governor from a list provided by a nominating committee. Under the Missouri Plan, sitting judges may seek additional terms through retention elections.
Rep. SJ Howell, D-Missoula, asked Barker about the possibility of amending the bill to include retention elections, sharing concerns that a process that relies so heavily on a committee comprising legislators might have a 'chilling effect' on how justices rule.
Barker said he thought about retention elections after his bill was drafted, and would consider whether adding that provision would secure more support from the legislature.
In his closing, Barker reiterated that his goal was to find a process that would put the most qualified, non-partisan justices on the bench, and said the voices of all Montanans deserved to have a say in the process.
Earlier this week, newly elected Chief Justice of the Montana Supreme Court Cory Swanson spoke to lawmakers about the need to keep the judiciary independent.'
'The judiciary should remain nonpartisan despite the almost irresistible pull of partisan spending and messaging in these highly contested campaigns,' he told the Legislature.
His words were more directly aimed at another piece of legislation proposing a major overhaul of the Montana Supreme Court's selection process.
Senate Bill 42 would make all judicial elections in the state — from municipal courts up to the state supreme court — partisan by requiring candidates to declare a political party.
Two companion bills would allow political parties to financially contribute directly to judicial candidates and allow judges and judicial candidates to take part in political activities. The former passed both chambers and is headed to the governor's desk while the latter is set to hit the senate floor soon.