VII.8. Selection.

(1) Supreme court justices and district court judges shall be elected by the qualified electors as provided by law.

(2) For any vacancy in the office of supreme court justice or district court judge, the governor shall appoint a replacement from nominees selected in the manner provided by law. If the governor fails to appoint within thirty days after receipt of nominees, the chief justice or acting chief justice shall make the appointment from the same nominees within thirty days of the governor's failure to appoint. Appointments made under this subsection shall be subject to confirmation by the senate, as provided by law. If the appointee is not confirmed, the office shall be vacant and a replacement shall be made under the procedures provided for in this section. The appointee shall serve until the election for the office as provided by law and until a successor is elected and qualified. The person elected or retained at the election shall serve until the expiration of the term for which his predecessor was elected. No appointee, whether confirmed or unconfirmed, shall serve past the term of his predecessor without standing for election.

(3) If an incumbent files for election and there is no election contest for the office, the name of the incumbent shall nevertheless be placed on the general election ballot to allow the voters of the state or district to approve or reject him. If an incumbent is rejected, the vacancy in the office for which the election was held shall be filled as provided in subsection (2).

History

Sources

Article VI of the 1884 Constitution covered the Judiciary. The Article was titled “Judicial Department.” Section 6 provided that “[t]he Judges of the Supreme Court shall be elected by the electors of the State at large, as hereinafter provided.” Section 12 provided that “[t]he State shall be divided into judicial districts, in each of which there shall be elected by the electors thereof one judge of the district court therein, whose term of office shall be four years, except as in this Constitution otherwise provided. The judges of the district courts may hold courts for each other, and shall do so when required by law.” Section 39 provided that vacancies in the office of Judge of the Supreme, district, or county court, or clerk of the Supreme court, shall be filled by appointment of the Governor of the State, and vacancies in the office of State’s Attorney, of clerk of the district court and justices of the peace, shall be filled by appointment of the board of County Commissioners of the county where such vacancy occurs. A person appointed to fill any such vacancy shall hold his office until the next regular election for such office, and at such election a person shall be chosen to fill the unexpired term of the person previously elected to such office.” The 1889 Constitution adopted these sections under Article VIII. Under the 1889 Constitution, Section 6 still provided for the election of Justices of the Supreme Court and Section 12 still provided for the election of district court judges. However, the section on vacancies was renumbered to section 34.

Drafting

Delegate Proposals

Delegate Proposal 7 (Berthelson and Pemberton)

Section 13 subsection 2 of Delegate Proposal 7 addressed vacancies. The proposal provided “All vacancies for the chief justice and associate justices of the Supreme Court and district court judges shall be filled by appointment by the governor from a list submitted to him by the Nomination Committee of not less than two nor more than four qualified nominees for each vacancy. Justices and judges appointed by the Governor shall serve such terms as shall be fixed by law. Each justice or judge who desires to remain in office upon the expiration of his term shall be subject to approval or rejection in an uncontested general election on a nonpartisan ballot, as the legislature shall provide.” 1971-1972, Vol. I, Executive Committee Majority Proposal, at 87 (1979).

Delegate Proposal 44 (Loendorf)

Section 7 of Delegate Proposal 44 addressed vacancies. The proposal provided in relevant part “[a]ll vacancies for chief justice and associate justice of the supreme court and district court judge shall be filled by appointment by the Governor in such manner as the legislative assembly may provide by law.” 1971-1972, Vol. I, Executive Committee Majority Proposal, at 141 (1979).

Delegate Proposal 92 (Arness and Blend)

Section 5 of Delegate Proposal 92 addressed selection. The proposal provided in relevant part “[t]he tenure of judges and manner of their selection and judge’s pay for all courts shall be provided by the legislature, which shall divide the state into such judicial divisions, districts and departments as may be necessary for the exercise by the inferior courts of their jurisdiction, except that no judge who shall be appointed to complete the unexpired term of any judge may thereafter be elected to judicial office.” 1971-1972, Vol. I, Executive Committee Majority Proposal, at 206 (1979).

Committee Proposals

The Judiciary Committee submitted a split recommendation to the Convention: a majority plan supported by five of its members and a minority plan supported by four of its members. The Committee summarized the reports as follows: “The majority report, among other things, contains election of judges, tenure of judges and qualification of judges. The report further contains recommendations for the elections of clerks of court and County Attorneys. The minority of the committee has filed a [illegible] report which contains recommendations for the selection of judges on a basis different from the majority report. The minority report is in itself a complete judicial article and is entirely distinguishable from the majority report. Although the reports deal with similar subjects, they are entirely separate.” 1971–1972 Montana Constitutional Convention vol. I, 484 (1979).

Majority Proposal 1971–1972 Montana Constitutional Convention vol. I, 479–509 (1979).

Section 6. Election and Terms of Office of the Supreme Court The Justices of the Supreme Court shall be elected by the electors of the State at large, and the term of the office of the justices of the Supreme Court, except as in this Constitution otherwise provided, shall be six years. Comments:

Section 6 is a combination of Article VIII, Section 6 and 7 of the 1889 Constitution. 

Section 10. Judicial Districts The state shall be divided into judicial districts, in each of which there shall be elected by the electors thereof one or more judges of the district court as provided by law whose term of office shall be four years. Comments:

Section 10 Combines three sections from the 1889 constitution, to-wit: Article VIII, Sections 12, 13 and 14. The majority finds no necessity to change the existing judicial districts by amending the Constitution. Under the 1889 Constitution, Article VIII, section 14, the legislative assembly has granted the power to change the boundaries of districts and increase or decrease the number of judges. This power will again be given to the legislature. 

Sec. 29 Vacancies; Non - Succession of Appointee Vacancies in the office of justice of the supreme court, or judge of the district court, or other appellate court, or clerk of the supreme court, shall be filled by appointment by the governor of the state and vacancies in the offices of county attorney, clerk of the district court, and other judicial offices shall be filled by appointment, by the board of county commissioners of the county where such vacancy occurs. A person appointed to fill any such vacancy shall hold his office until the next general election and until his successor is elected and qualified. A person elected to fill a vacancy shall hold office until the expiration of the term for which the person succeeds was elected. No judicial officer hereafter appointed by the governor as provided in this section is eligible to be a candidate for judicial office for a period of one year after his successor has been elected. Comments:

The first paragraph of this section is identical to Article VIII, section 34 of the 1889 Constitution. The second paragraph is a new provision. ‘The purpose of this new provision is to eliminate the advantage of the “created” incumbent in a judicial election contest. The majority of the committee recognizes that there is a growing tendency for judges to retire during their terms so that the governor appoints a judge to serve until the next general election when the appointee then runs for the office as the incumbent. This appears to be an undue advantage in a system which provides for election of judges. 

Minority Proposal 1971–1972 Montana Constitutional Convention vol. I, 510–525 (1979).

Montana Constitutional Convention Comments on Minority Proposal:

“This minority proposed Judicial Article is truly a viable cornerstone for the establishment and operation of the courts of Montana. Its elasticity and flexibility are its strengths; its clarity lends it force, Every delegate in this convention was requested by some of the electorate to assure brevity and simplicity in any Constitutional revisions so that all could understand. The minority proposed Judicial Article measures up in these areas. Yet, none of the time-honored safeguards have been abandoned. Father, in this proposal, citizens’’ choices and options have been enhanced, the judiciary has been strengthened, and the entire judicial system has been made more flexible to change and review by the people.”

Sec. 7 - Selection of Judges In all vacancies in the offices of supreme court justices and district court judges caused by death, resignation, removal, retirement or failure of an incumbent judge to file a declaration of candidacy for a succeeding term of office, the governor of the state shall nominate a supreme court or district court judge from nominees selected in the manner provided by law. If the governor fails to nominate within thirty days after receipt of the names of the nominees, the chief justice or acting chief justice shall make the nomination. Each nomination shall be confirmed by the senate, but a nomination made while the senate is not assembled shall be effective as an appointment until the end of the next session of the senate. If the nomination is not confirmed by the senate the office shall be vacant and another selection and nomination shall be made before the close of filings for nominations in the first primary election after senate confirmation, the name of the appointed judge shall be placed on a contested non-partisan ballot if other candidates have filed for election to that office. If there is no primary election contest for the office, the name of the appointed judge shall nevertheless be placed on a ballot in the general election allowing voters of the state or district the choice of his approval or rejection. Thereafter, the elected judge shall be subject to approval or rejection in a general election for each succeeding term of office. In the event of rejection of a judge another selection and nomination shall be made in a like manner. Comments:

Throughout the judicial and political history of the United States there has always been and continues to be a great and important philosophical controversy between the concept of an independent judiciary and popular control of the courts. This controversy is manifested by the variety of systems adopted by the various states ranging from lifetime appointment to the partisan election of judges. In the judicial committee the concepts polarized between the appointive merit system and the nonpartisan election of judges. After prolonged discussion and vigorous arguments by strong advocates, the committee divided nearly equally with the chairman voting with the majority to make a 5-4 split. As indicated, the committee’s collective thought crystallized on the selection of judges. The minority proposed section 6 as an innovation to and a compromise with the existing methods of selection of judges. Yet, it does, we believe, include many of the best features of all plans. Thus, in synopsis, the minority plan incorporates non-partisan merit selection, gubernatorial election, senate confirmation, initial contested election, and subsequent voter choices of approval or rejection of judges. The purpose of the minority’s plan is twofold; namely, to present to the voters judicial candidates whose qualifications are recognized and to encourage better qualified and experienced lawyers to seek elevation to the judicial bench. It is the position of the minority that this system of selection will provide strong, able, impartial and independent  judges who are still responsive to and elected by the people. It is the minority’s belief that today, few, if any, of the voters are at all acquainted with the judicial candidates and are totally uninformed of their education, background, experience and individual qualifications for a judgeship. We firmly believe that the survival of democratic institutions and representative government is directly dependent upon an informed electorate, and we think the present system of elected judiciary utterly and completely fails to attain that desired goal. We believe this is especially critical in the selection of judges and must be unselfishly devoted to the fair settlement of society’s disputes. Their qualifications to perform this essential governmental function is the first and highest consideration. To better ensure the selection of qualified judges, the minority suggests that the legislature create a committee, bi-partisan in character, composed of both lawyers and laymen, but predominantly laymen, and are geographically distributed throughout the state with at least one member from each judicial district. Preferably the committee should be elected by the legislature for staggered terms of three years so that the one-third of its members are elected each annual session of the legislature. Members of the committee should not hold either public or political party offices. Third, no member during his term of office may be a candidate for judicial office. The minority has purposely refrained from attempting to provide for the organization of the nominating committee in the belief that the legislature is better able to vigilantly oversee its operation. The minority is not satisfied with the current process of unlimited gubernatorial appointive power of judges. In the light of statistics revealing that an overwhelming majority of our judiciary have been appointed by the governor, we are especially apprehensive of the future political character of our judges. Therefore, we have limited the governor’s nomination to those nominees selected by a committee, created by and dependent upon the legislature. This system, we believe, accords an effective check and balance. Neither have we been content with the merit selection system alone, but noting the validity of recent congressional disapproval of presidential appointments to the United States Supreme Court, we have recognized the value of “advice and consent” feature of the United States Constitution and have incorporated it into our proposal by the requirement of senate confirmation. The fourth distinct and important feature of the plan in the selection of judges, is, of course, a necessity to a democratic form of government, i.e., a competitive selection of public officials. This prime essential is provided for at the first primary election following appointment. In this primary election any lawyer may file against the appointed judge and the two candidates receiving the highest vote will again compete against each other in the following general election. If a candidate files against the appointed judge in the primary election. Nevertheless, the name of the appointed judge must appear on the general election ballot for acceptance or rejection by the voters. For every succeeding term the elected judge must submit to acceptance or rejection by the voters of his district or state. To repeat, the minority recommends that this comprehensive system of selection, nomination, confirmation and election of judges is a realistic and practical method of obtaining and keeping better judges by an informed electorate. 

Floor Debate

On February 26, 1972 the election of judges in Section 7 came to the floor of the convention, and the minority and majority reports were subject to extensive debate. 1971–1972 Montana Constitutional Convention vol. V, 3354–3400 (1979).

Style and Drafting Committee

The style and drafting committee moved section 7 to become section 8. 1971–1972 Montana Constitutional Convention vol. II, 919 (1979).

The style and drafting committee noted the following changes to section 8:

(1) Subsection (2) was redrafted to clarify meaning. In addition, references to “primary election” were deleted to avoid perpetuating the primary mode of selection in the Constitution. (2) The underlined addition to subsection (3) was substituted for “does not run” to reconcile its provisions with subsection (2). (3) Removing the adjective “contested” avoids a requirement that more than one candidate file.

On March 13, 1972, the committee of the whole accepted the styling changes recommended for section 8. Delegate Schlitz noted “rather extensive style changes but nothing significant that might be considered substantive.” 1971–1972 Montana Constitutional Convention vol. IX, 6689 (1979).

Adoption

Interpretation

The Montana Supreme Court was presented the question of whether an incumbent judge is one who has been nominated and selected, as provided by the 1972 Constitution, or whether it also includes those who occupied judicial office prior to the new constitution's ratification and therefore had never been confirmed by the senate.The court defined incumbent as "'a person who is in present possession of an office.' It is not limited, qualified or restricted by the method by which one attained the office." Keller v. Smith 170 Mont. 399, 553 P.2d 1002 (1976).


The Montana Supreme Court clarified the meaning of article VII, section 8. The court said vacancies in the Montana Supreme Court, including that of chief justice, were to be filled in the same manner as district court vacancies. Jones v. Judge 176 Mont. 251, 577 P.2d 846 (1978).

Commentary

Jean M. Bowman, “The Judicial Article: What Went Wrong?,” 51 Mont. L. Rev. (1990).