On April 18, 2011, the Montana state legislature passed SB 268 which calls for a referendum vote to determine the future of elections for the Montana Supreme Court. On June 5, 2012, on the 2012 Primary Election Ballot, voters in Montana will determine whether Montana will begin to elect Supreme Court justices by districts.
Although the Montana state senate passed SB 268 the Attorney General’s office and Secretary of State are statutorily obligated to approve of the language of the Statement of Purpose designed to explain the purpose of the referendum. Andrew Huff, Assistant Attorney General of the state of Montana, passed along a copy of the accepted language. The Statement of Purpose reads:
The Montana Supreme Court is composed of seven justices, one of whom is Chief Justice. Under current law, the justices are elected statewide and each Montanan votes for all seven positions. LR-119 would change existing law so that each justice is elected from one of seven districts of approximately equal population, with the Chief Justice then chosen from the seven by majority vote of the justices. Only Montanans living in each district would vote for their district’s justice. Justices must reside in their district when initially elected.
SB 268 was proposed by Joe Balyeat, a Republican state senator from Bozeman, MT. Sen. Balyeat proposed SB 268 because he says district elections “would make the candidates for judges more accountable to their constituents.” Accountability is an especially important issue to Sen. Balyeat in the context of worker’s compensation claims. Sen. Balyeat “blamed the state Supreme Court for troubles with the workers’ compensation system and described the members as an ‘activist judiciary’ who sides more often with employees than employers.”
Opponents of SB 268 have criticized the value of district-based elections of Supreme Court judges for a variety of reasons. One of the worries has its foundation in Sen. Balyeat’s primary purpose for proposing the bill: to increase judicial accountability. The concern is that judges who are elected by district will only be accountable to the voters from their district, not the entire state, and their judicial rulings would reflect the interests of their district and not the state as a whole. Another criticism, espoused by Billy Williams of the Bozeman Daily Chronicle, is the belief that SB 268 has a more nefarious purpose, a political gerrymandering of the justice system that would skew justice in favor of whichever political party is in power.
Although the Montana State Bar was opposed to the legislative bill (SB 268), the State bar has not taken a position on the referendum itself. A representative of the Montana State Bar indicated that the organization, as a state bar with mandatory affiliation, is mindful of taking political positions after the Keller decision in which the United States Supreme Court ruled that bar associations with compulsory membership cannot use mandatory dues to promote a political ideology.
David Rottman, Senior Researcher for the National Center for State Courts, said that judicial elections by district can be implemented for a variety of reasons. On one hand, district elections generally ensure that there isn’t an overwhelming number of judges all coming from a large metropolitan area. However, district elections can also be used for a political purpose to enable politicians to get more favorable judges elected who may be more willing to strike down unfavorable laws. Politicians may hope that the switch would lead to the election of judges from districts who could not be elected in statewide election. These judges, with presumptively stronger local ties, might be more likely to vote to strike down laws that, while supported by the majority of the state, are unfavorable to the judge’s district electorate. Although Mr. Rottman did not have an opinion as to this specific bill, he noted that Montana is not the first state to elect its Supreme Court judges by district. The other states with similar electoral practices are Illinois, Kentucky, Louisiana, Maryland (circuit), Mississippi, Nebraska (associate judges, Chief Judge is elected statewide), Oklahoma, and South Dakota (district appointment, statewide retention). Mr. Rottman noted that the geographic distribution is interesting when you look at the states that have chosen to elect their judges in this manner. Although he did have an explanation for the distribution, it is worth thinking about what has influenced this trend.
Elderidge Nichols is a second-year law student at William & Mary.