Reichert v. State, DA 12–0187.

Citation365 Mont. 92,278 P.3d 455,2012 MT 111
Decision Date18 May 2012
Docket NumberNo. DA 12–0187.,DA 12–0187.
PartiesArlyne REICHERT, Wade Dahood, Jean Bowman, Patricia Rosenleaf, Susan Lubbers, Joan Hurdle, Robert Filipovich, Karen Richardson, Dale McGarvey, Judy Mathre, Milly Gutkowski, Gladys Hardin, Louise Davis, and Merlin Davis, Plaintiffs and Appellees, v. STATE of Montana, by and through Linda McCULLOCH, in her capacity as Secretary of State, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana


For Appellant: Steve Bullock, Montana Attorney General, Andrew I. Huff, Assistant Attorney General, Helena, Montana.

For Appellees: Lawrence A. Anderson, Attorney at Law, Great Falls, Montana Peter Michael Meloy, Meloy Law Firm, Helena, Montana.

For Amici Curiae Seven Montana Legislators: Arthur V. Wittich, Margaret M. Reader, Wittich Law Firm, P.C., Bozeman, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

[365 Mont. 94]¶ 1 The State of Montana appeals from the decision of the First Judicial District Court, Lewis and Clark County, ordering Secretary of State Linda McCulloch to decertify Legislative Referendum No. 119 (LR–119) and enjoining the Secretary of State from presenting LR–119 on the June 5, 2012 primary election ballot.

¶ 2 We address the following issues on appeal:

1. Whether the non-retiring justices on this Court should recuse themselves from participating in the decision of this appeal.

2. Whether Plaintiffs' constitutional challenge to LR–119 is justiciable.

3. Whether LR–119 is constitutionally defective.

4. Whether the constitutionally infirm provisions of LR–119 can be severed from the remainder of the referendum.

¶ 3 We hold that recusal is not required. We further hold that Plaintiffs' complaint is justiciable, that LR–119 impermissibly amends the Montana Constitution, and that the offending provisions cannot be severed. We accordingly affirm the District Court.


¶ 4 The 62nd Montana Legislature enacted Senate Bill 268 (SB 268), which submits to the electorate the question whether certain statutory changes should be made regarding the election of justices to the Montana Supreme Court. See Laws of Montana, 2011, ch. 203. SB 268 was filed with the Secretary of State on April 18, 2011, and was to be submitted to the voters at a special election to be held concurrently with the June 5, 2012 primary election. SB 268 was to appear on the ballot as Legislative Referendum No. 119. The ballot language of LR–119 and the text of SB 268 are included as an appendix following this Opinion.

¶ 5 The Montana Supreme Court is composed of seven justices, one of whom is chief justice. Mont. Const. art. VII, § 3(1); § 3–2–101, MCA. The justices serve eight-year terms, which run from the first Monday of January following the justice's election to (but not including) the first Monday of January eight years hence. Mont. Const. art. VII, 7(2); §§ 3–2–101, –103, MCA. One or two of the seats come up for election every two years. 1 To be eligible to the office of Supreme Court justice, the person must (1) be a citizen of the United States, (2) have resided in Montana for two years immediately before taking office, and (3) have been admitted to the practice of law in Montana for at least five years prior to the date of appointment or election. Mont. Const. art. VII, § 9(1). Supreme Court justices must reside within the state. Mont. Const. art. VII, § 9(4).

¶ 6 Under current law, the justices are elected on a statewide basis. See§ 3–2–101, MCA. LR–119 would change the law so that each justice is elected from one of seven districts of approximately equal population. The districts created under LR–119 follow county lines—for example, the Fifth Supreme Court district would consist of Lincoln, Sanders, Flathead, Glacier, and Toole Counties. The district numbers correspond to the justices' current seat numbers, with Chief Justice McGrath's seat being assigned to the seventh district (Missoula, Lake, and Mineral Counties). The justices would be required to reside and be registered to vote in their respective districts at the time they are elected, and electors in a given district could vote only for that district's justice. Consequently, rather than voting for each of the seven Supreme Court justices as they come up for election in two-year intervals, electors could vote for only one of the justices, who would come up for election every eight years. The chief justice would then be chosen from among the seven justices by majority vote of the justices.

¶ 7 LR–119, therefore, would effect three changes concerning the qualifications and selection of justices. First, LR–119 adds a residency and voter-registration requirement: a candidate for a seat on the Supreme Court must be a “qualified elector” of the district from which the candidate is elected. (Once elected, a justice is not required to reside within that district during the justice's service in office.) Second, LR–119 creates seven Supreme Court districts and requires that each justice be elected from a separate district. Only voters in a given district are eligible to vote for that district's justice. Third, LR–119 changes the method of selecting the chief justice from a statewide election to a selection by the seven justices from among their number.

Procedural History

¶ 8 Plaintiffs 2 are Montana citizens, taxpayers, and electors who historically have participated in elections for justices of the Montana Supreme Court and who reside in each of the seven districts proposed by LR–119. Plaintiffs commenced this action on November 23, 2011, naming the State, by and through Secretary of State Linda McCulloch, as defendant. Plaintiffs sought a declaratory judgment that LR–119 is constitutionally defective. Plaintiffs asked the District Court to order the State to decertify LR–119 and to enjoin the State from placing LR–119 on the ballot. The State, through the Attorney General, filed an answer on January 3, 2012. The answer included responses to the specific allegations of the complaint. In addition, the State asserted that Plaintiffs' constitutional challenge is not ripe and that LR–119 is not constitutionally defective in any event. Plaintiffs filed a motion for summary judgment,together with a supporting brief and affidavits, on January 18. The State filed its brief in opposition on February 10, and Plaintiffs filed their reply on February 23. The District Court scheduled a summary judgment hearing for March 14.

¶ 9 Meanwhile, on January 9, seven individual Montana legislators 3 (Legislators) filed a motion to intervene in the action as party defendants pursuant to M.R. Civ. P. 24. The Attorney General opposed the motion but stated that he would consent to an amicus brief from Legislators. Plaintiffs did not state a position on the matter. The District Court issued an order on February 28 denying intervention. The court indicated that Legislators could instead provide input regarding the issues in the case as amici curiae.

¶ 10 In response to the District Court's ruling, Legislators first filed a direct appeal to this Court on March 9. Plaintiffs responded with a motion to dismiss the appeal and a motion to expedite ruling. Plaintiffs explained that the Secretary of State had to certify the June 5 primary election ballot by March 22 and that, in light of certain statutory deadlines, Plaintiffs' challenge to LR–119 would be difficult to resolve on time if the summary judgment hearing were not permitted to go forward, as scheduled, on March 14. After receiving responses from Legislators and the Attorney General, this Court granted Plaintiffs' motion to dismiss. Reichert v. State, No. DA 12–0156 (Mar. 13, 2012). The District Court held the hearing on Plaintiffs' motion for summary judgment on March 14, at which time counsel for Plaintiffs and counsel for the State gave oral argument. Counsel for Legislators was present via telephone. The court indicated that it would issue a ruling by March 20.

¶ 11 In the interim, Legislators filed a petition for writ of supervisory control on March 15, again challenging the District Court's denial of their motion to intervene. This Court denied the petition and affirmed the District Court's February 28 order. Seven Mont. Legislators v. First Jud. Dist. Ct., No. OP 12–0171 (Mar. 16, 2012). We noted that if they wished to do so, Legislators could participate in the action by filing an amicus brief in the District Court electronically by 9:00 a.m. on March 19. Legislators did not file an amicus brief on March 19; however, per an earlier request by Legislators (filed March 15), the District Court did consider Legislators' previously filed documents (their answer to the complaint, and their response brief in opposition to Plaintiffs' motion for summary judgment) in analyzing the issues.

¶ 12 The District Court rendered its decision on March 20, granting summary judgment to Plaintiffs. The court determined, and the parties do not dispute, that the issues in this case are issues of law. In summary, the court concluded: that Plaintiffs' challenge to LR–119 is justiciable; that LR–119 is unconstitutional on its face because it attempts, through statutory measures, to change the constitutionally established qualifications for Supreme Court justice by adding a new residency requirement; that LR–119's division of the state into seven Supreme Court districts, with the requirement that one justice be selected from each district, also introduces an unconstitutional residency requirement; and that LR–119 cannot be salvaged by severing the invalid portions of the referendum. The District Court's reasoning is discussed below where applicable. As noted, the court ordered the Secretary of State to decertify LR–119 and enjoined the Secretary of State from presenting LR–119 on the June 5, 2012 ballot.

Post–Decision Events

¶ 13 The State filed its notice of appeal with the Clerk of this Court on March 21. Also on March 21...

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