LR 119 declared unconstitutional

March 21, 2012 / Comments (0)


March 21, 2012 –


Extremist Tea Party legislators in Montana’s 2011 Legislature passed a lot of crazy bills.


And Gov. Schweitzer vetoed a lot of crazy bills.


So to avoid the veto brand, these legislators passed some of their bills as legislative referenda — scheduled to appear on the Montana ballot.


One of the crazy ideas is Legislative Referendum 119, which would have tampered with the state supreme court.


LR 119 flagrantly violated Montana’s constitution, as the courts have just declared. See news article below.

Judge: Supreme Court election referendum unconstitutional


By MATT GOURAS Associated Press | Wednesday, March 21, 2012


A district court judge on Tuesday rejected a Republican-backed ballot initiative that aimed to help conservatives in Montana Supreme Court elections.


The GOP-controlled Legislature last year sent the initiative directly to the primary election on June 5. It would establish regional districts that would each elect one justice to the Supreme Court. The court’s six justices and one chief justice are currently elected in statewide elections.


Judge James Reynolds said in his ruling that the initiative would change the Montana Constitution by adding new candidate requirements for Supreme Court justices. He said the initiative’s provision requiring judicial candidates to live inside the proposed regional districts is unconstitutional, saying the state constitution only requires state residency for two years.


“There is no meaningful way to divide the concept of being elected from a district from the concept of residency within a district,” the judge wrote.


Past courts have disallowed the Montana Legislature from either retracting or expanding such provisions of the Montana constitution, Reynolds said.


Supporters of the measure have argued that justices elected statewide favor Democrats and do not represent certain places, like the rural areas that generally favor Republicans.


The judge rejected a request from Republican legislators to strip just the requirement that candidates live inside the proposed judicial districts. That would leave intact the new districts that would each choose a justice, and another that directs justices to choose their own chief justice.


Under such a system, a judge living in Helena could run for one of the proposed new judicial districts covering eastern Montana counties. But Reynolds wrote such a move was too expansive and would mar the remaining parts of the referendum.


“Without clear judicial legislation, this court cannot rewrite the remaining parts of this referendum,” Reynolds said. “To do so would entail completely rewriting the title, the ballot statement, the statements of implication, and the text of the referendum itself. There is no constitutional or statutory authority for such a revision.”


A legislator who advanced the proposal last year argued the measure is constitutional. State Sen. Joe Balyeat of Bozeman said the constitution says justices must reside in the state, and argued the proposal does not conflict with that requirement.


Balyeat said he does not consider the constitutional residency requirement to apply to candidates, just the justices once elected. Lawmakers specifically wrote a “severability clause” into the measure so that the rest would remain intact even if a part is ruled unconstitutional, he said, adding the judge should have allowed that.


“The way the judges work in Montana, anything that doesn’t line up with their preferred outcome is discarded and not considered,” he said.


Some Republican lawmakers were allowed to offer information in the case, but were denied a request to be interveners. Balyeat said that move would prevent the legislators from asking the Supreme Court justices to recuse themselves on appeal.


The Montana attorney general’s office is defending the legislature’s work at court, as it traditionally does. It argued the court’s review is premature since voters have yet to make a decision.


Both sides have said they expect an appeal to the Montana Supreme Court on the matter.


The Legislature sent four initiatives to the 2012 ballot. Two face court challenges.


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