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Former Lawmakers Sue Over Supreme Court Election Changes

A gavel and scale of justice.

HELENA, Mont. (AP) — A lawsuit has been filed to challenge a legislative proposal to change the way Supreme Court justices would be elected in Montana.

A Roman Catholic nun, a former court clerk and three former state lawmakers are among those challenging the constitutionality of a bill the legislature passed to ask Montana voters if they want to elect Supreme Court justices by district, rather than on a statewide basis.

The complaint, filed on May 6 in Butte, asks District Judge Kurt Krueger to declare the bill unconstitutional and to prevent Secretary of State Christi Jacobsen from certifying the referendum for the November 2022 ballot.

“The office of the Secretary of State has not received service of any legal documents related to the alleged lawsuit, and thus is unable to comment,” spokesperson Richie Melby said in a statement.

The 2021 bill is similar to one passed a decade earlier that sought to divide the state into seven judicial districts, with each district electing one Supreme Court justice from that district. The Montana Supreme Court found the 2011 law unconstitutional because, in part, it would create new qualifications for the office of Supreme Court justice.

This year's proposal would not require candidates to live in specific districts, but would only allow residents of each district to vote in one judicial race. That would eliminate the right of all Montana voters to select all seven justices of the Supreme Court, the complaint states.

In the case of the 2011 bill, the Montana Supreme Court found the language and structure of the state constitution requires the election of Supreme Court justices on a statewide basis while District Court judges would be elected by district-specific basis.

Ethical rules do not permit judges to “represent" particular constituencies or interest groups, the Supreme Court wrote in 2012.

The complaint also argues the bill is an effort to change the state constitution via referendum, rather than through a constitutional referendum. A constitutional referendum would have needed a two-thirds majority vote in the Legislature to be put on the ballot. The bill passed 94-55 over both houses, six votes short of a two-thirds majority.

The plaintiffs are Sister Mary Jo McDonald, former District Court clerk Lori Maloney and former Democratic Rep. Fritz Daily — all of Butte — along with former lawmakers Bob Brown and Dorothy Bradley; Mae Nan Ellingson, a delegate to Montana's 1972 Constitutional Convention; Vernon Finley, a former chairman of the Confederated Salish and Kootenai Tribes' Tribal Council; and the League of Women voters.

Brown, Bradley, Ellingson, Finley and the League of Women Voters are plaintiffs in another complaint challenging a new law that eliminates the Judicial Nomination Commission and allows the governor to directly fill judicial vacancies that occur between elections.

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