McDonald v. Jacobsen

Decision Date12 August 2022
Docket NumberDA 22-0229
Citation409 Mont. 405,515 P.3d 777
Parties Sister Mary Jo MCDONALD; Lori Maloney; Fritz Daily; Bob Brown; Dorothy Bradley; Vernon Finley; Mae Nan Ellingson; and the League of Women Voters of Montana, Plaintiffs and Appellees, v. Christi JACOBSEN, Montana Secretary of State, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Austin Knudsen, Montana Attorney General, David M.S. Dewhirst, Solicitor General, Christian B. Corrigan, Assistant Solicitor General, Timothy Longfield, Assistant Attorney General, Helena, Montana

For Appellees: James H. Goetz, Goetz, Geddes & Gardner, P.C., Bozeman, Montana, A. Clifford Edwards, Edwards & Culver, Billings, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Christi Jacobsen, in her official capacity as Montana Secretary of State (Secretary), appeals the March 21, 2022 Second Judicial District Court Order ruling in favor of Sister Mary Jo McDonald, Lori Maloney, Fritz Daily, Bob Brown, Dorothy Bradley, Vernon Finley, Mae Nan Ellingson, and the League of Women Voters of Montana (collectively, Plaintiffs) on cross-motions for summary judgment and enjoining the Secretary from placing House Bill (HB) 325 on Montana's 2022 general election ballot. We affirm.

¶2 We restate the issues on appeal as follows:

Issue One: Is the question of the constitutionality of the referendum proposed by HB 325 ripe for judicial resolution?
Issue Two: Does the referendum proposal—which requires that Supreme Court justices be elected district-by-district, rather than statewide—violate the Montana Constitution?

¶3 During the 2021 Legislative Session, the Legislature passed HB 325, a legislative referendum to submit a proposal to Montana voters on the November 2022 general election ballot. See 2021 Mont. Laws ch. 402, § 1. If approved, the measure will establish seven Supreme Court districts in Montana, assign each Supreme Court seat to one of the seven districts, and require candidates for each seat to run for election solely within the district assigned to that seat. It would also require the chief justice to be chosen by the majority vote of the seven justices after the 2024 general election.

¶4 Plaintiffs filed the present challenge to the constitutionality of HB 325 in the Second Judicial District. The District Court—relying on our ruling on a similar legislative referendum in Reichert v. State, ex. rel McCulloch , 2012 MT 111, 365 Mont. 92, 278 P.3d 455 —granted summary judgment to the Plaintiffs, and enjoined the Secretary from placing HB 325 on the November 2022 ballot. The Secretary appeals, contending that the constitutionality of HB 325 is not ripe for judicial review and, alternatively, that HB 325's provisions are not unconstitutional.1


¶5 This Court reviews the grant of summary judgment de novo, determining whether the District Court's conclusions of law were correct. Styren Farms, Inc. v. Roos , 2011 MT 299, ¶ 10, 363 Mont. 41, 265 P.3d 1230 (citation omitted); Kilby Butte Colony, Inc. v. State Farm Mut. Auto. Ins. Co. , 2017 MT 246, ¶ 7, 389 Mont. 48, 403 P.3d 664 (citation omitted). Summary judgment is appropriate when the moving party demonstrates the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Styren Farms , ¶ 10 ; M. R. Civ. P. 56(c)(3).


¶6 Issue One: Is the question of the constitutionality of the referendum proposed by HB 325 ripe for judicial resolution?

¶7 The Secretary first disputes the District Court's conclusion that the question of HB 325's constitutionality is presently justiciable. In particular, she argues that because the provisions of HB 325 have not yet been, and may never be, approved by the voters, the issue is not ripe for judicial resolution.

¶8 The judicial power of Montana's courts is limited to "justiciable controversies." Plan Helena, Inc. v. Helena Reg'l. Airport Auth. Bd. , 2010 MT 26, ¶ 6, 355 Mont. 142, 226 P.3d 567 ; Montana-Dakota Utils. Co. v. City of Billings , 2003 MT 332, ¶ 9, 318 Mont. 407, 80 P.3d 1247. A justiciable controversy is one that is "definite and concrete, touching legal relations of parties having adverse legal interests" and "admitting of specific relief through decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts, or upon an abstract proposition." Chovanak v. Matthews , 120 Mont. 520, 526, 188 P.2d 582, 585 (1948) (emphasis omitted). The constitutional component of the justiciability limitation derives primarily from the Montana Constitution, which has been interpreted to, like its federal counterpart, limit the courts to deciding only cases and controversies. Reichert , ¶ 53 (citing Plan Helena , ¶ 6 ; Greater Missoula Area Fed'n. of Early Childhood Educators v. Child Start, Inc. , 2009 MT 362, ¶ 22, 353 Mont. 201, 219 P.3d 881 ; Heffernan v. Missoula City Council , 2011 MT 91, ¶¶ 31-33, 360 Mont. 207, 255 P.3d 80 ). However, justiciability is also derived from self-imposed "discretionary limitations on the exercise of judicial power" on the basis of "prudential reasons." Reichert , ¶ 53 (citing Plan Helena , ¶ 6 ; Child Start, Inc. , ¶ 22 ; Heffernan , ¶¶ 31-33 ). While the constitutional case-or-controversy component must always be met, prudential rules may be subject to exceptions. Reichert , ¶ 53. Ripeness is one of a number of specific doctrines applicable to the justiciability question. It is particularly concerned with whether the case presents an actual, present controversy. Reichert , ¶ 54 (citing Mont. Power Co. v. Mont. Pub. Serv. Comm'n. , 2001 MT 102, ¶ 32, 305 Mont. 260, 26 P.3d 91 ; Greater Missoula , ¶ 23 ). "[C]ases are unripe when the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts." Reichert , ¶ 54 (citing Wis. C., Ltd. v. Shannon , 539 F.3d 751, 759 (7th Cir. 2008) ; Mont. Power Co. , ¶ 32 ).

¶9 Addressing, first, the constitutional component of ripeness, it is clear under our factually on-point precedent that the current dispute meets the constitutional requirement for a justiciable case or controversy. Explicitly addressing "the constitutional component of ripeness" of a challenge to a measure nearly identical to HB 325, Reichert found sufficiently "definite and concrete, not hypothetical or abstract" issues were presented where the plaintiffs "allege[d] a threatened injury because [the challenged measure], should it pass, will deprive them of their right to vote for each seat on the Supreme Court." Reichert , ¶ 58. We determined that this resulted in "a controversy in the constitutional sense." Reichert , ¶ 58. Plaintiffs in the present case allege the same threatened injury as that found sufficient to establish the constitutional component of justiciability in Reichert .2

¶10 The Secretary seeks to factually distinguish Reichert on the basis of the time-table imposed by the challenged measure in that case. The Secretary points to Reichert ’s observation that, in that case:

[w]hile all registered voters in the state may vote in the June primary election for the candidates running for [those seats up for reelection], only registered voters in the [the corresponding] Supreme Court districts, respectively, will be permitted to vote for those seats in the November general election (if [the proposed legislative referendum] is adopted).

Reichert , ¶ 58. She asserts that "forc[ing] a statewide primary election in June 2012" followed by "district-only elections in November" for the relevant Supreme Court seats constituted factually-distinguishable "immediate exigencies" upon which the Reichert Court's finding of jurisdiction rested. According to the Secretary, HB 325 is distinguishable from the measure in Reichert because HB 325 would not go into effect until the election cycle (2024) after the one in which it was voted upon (2022). However, the cited passage of Reichert reveals that the key element upon which the Court's justiciability analysis turned was that the plaintiffs, like those in the present case, "allege[d] a threatened injury because [the legislative referendum], should it pass, will deprive them of their right to vote for each seat on the Supreme Court ," thereby presenting issues that are sufficiently definite and concrete, rather than purely hypothetical or abstract. See Reichert , ¶ 58 (emphasis added). Thus, the relevant definite and concrete fact at the heart of the controversy in Reichert was not when —before, between, or after the current election cycle's primary and general elections—the challenged measure, if approved, would shrink the electorate, but simply that it would do so. Contrary to the Dissent's assertion, the presence of additional months between a legislative referendum's approval and its implementation does nothing to render the threatened harm any less definite and concrete or the issues at hand any more hypothetical or abstract in the constitutional sense. See Dissent, ¶¶ 61, 62.

¶11 Relatedly, the Secretary argues that an "[a]mplifying" concern in Reichert was whether the Court would have had sufficient time to issue an opinion on the legislative referendum before the November 2012 general election if the Court waited to hear a challenge until after the June 2012 vote approved or rejected the referendum. However, she points to nothing in Reichert ’s majority Opinion referencing the Court's estimation of its ability to timely hear the case between the June vote and the November general elections, which would have been subject to the new measure if approved. To the contrary, Reichert ’s dissenting Opinion revealed that "[a]s illustrated by the efficiency with which this appeal was briefed, considered and decided, we easily could have held the appeal in abeyance, awaited certification of the June 5 election results, and decided the case—if...

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