Who should get to decide how Montanans elect their state Supreme Court justices: Montanans or the justices themselves? Recently, the seven justices made the decisions for us – and shamefully they did it to protect their own jobs.
Sponsored by Rep. Barry Usher of Billings, House Bill 325 would have allowed voters in November to choose if Montana should elect Supreme Court justices by district instead of statewide, as is currently done. If approved by voters, the state would be divided into seven Supreme Court districts and require candidates to run within one of them.
Shockingly, not only did the justices look the other way ignoring their glaring conflict of interest in determining how they campaign for their own jobs, Justices Gustafson, McGrath, McKinnon, Sandefur, and Shea deprived every Montanan of their right to decide how we as Montanans elect our Supreme Court justices.
The five concurring justices argued that “Justices are tasked with applying the law fairly and uniformly statewide and forbidden from representing any ‘constituency’ or its interests.” Even a cursory review of decisions in recent years makes it laughably obvious they are content to twist our Constitution and laws to meet the needs of the trial attorneys, radical environmentalists, abortion advocates, and other special interests whose political philosophies align with their own.
Not content with patting themselves on the back for their self-declared impartiality, the majority also took it upon themselves to patronize Montanans while depriving us of the right to decide how we elect the state Supreme Court justices. There’s nothing quite like five people in flowing black robes looking down their noses at what they clearly see as rubes and rabble spread across our state to tell us they know what’s best for us.
Mercifully, two justices disagreed with the majority’s ruling.
“Quite simply, we should not be advising on the constitutionality of a measure that has not become law when there is no present threat to disenfranchisement as there was in Reichert. Instead, in an ironic turn, the Court denies Montanans the right to vote so that they cannot be denied the right to vote,” Justice Beth Baker wrote in her dissenting opinion, which was joined by Justice James Rice.
Even though Baker and Rice got it right, not even they should have ruled on this case.
Montana requires judges and justices to disqualify themselves when they have an interest in the outcome of a case. Additionally, the Montana Code of Judicial Conduct reads: “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.”
As each Supreme Court Justice held a clear, direct, and personal interest in the outcome of the case, each of them should have recused themselves – which I formally called on them to do months before their decision.
They held on because every single Democrat in the Montana House of Representatives voted to keep this question off the ballot – and opinions from the state Supreme Court have become little more than the rubberstamping of Democratic Party policies with a thin veneer of poor, tortured judicial reasoning.
The case is clear and the Montana Supreme Court blew the call: they should never have ruled on the case in the first place, and they should have let Montanans decide how to elect our Supreme Court justices.
While the choice to change how Supreme Court justices are elected won’t be on the ballot this year, two justices are. I encourage every Montanan to do their research before they vote, to read up on the decisions and opinion these justices have written throughout their career. And if you disagree, let them know with your vote.
Austin Knudsen is Montana Attorney General