(1) A citizen of the United States who has resided in the state two years immediately before taking office is eligible to the office of supreme court justice or district court judge if admitted to the practice of law in Montana for at least five years prior to the date of appointment or election. Qualifications and methods of selection of judges of other courts shall be provided by law.

(2) No supreme court justice or district court judge shall solicit or receive compensation in any form whatever on account of his office, except salary and actual necessary travel expense.

(3) Except as otherwise provided in this constitution, no supreme court justice or district court judge shall practice law during his term of office, engage in any other employment for which salary or fee is paid, or hold office in a political party.

(4) Supreme court justices shall reside within the state. During his term of office, a district court judge shall reside in the district and a justice of the peace shall reside in the county in which he is elected or appointed. The residency requirement for every other judge must be provided by law.

History

Sources

Drafting

Delegate Proposals 1971–1972 Montana Constitutional Convention vol. I, 75–332 (1979).</ref>

In total, there were three delegate proposals for the Judiciary Article that addressed the four major topic areas covered by Article VII, Section 9: qualifications, compensation, work restrictions, and residency.

Delegate Proposal No. 7 (Berthelson & Pemberton):

Section 12. No person shall be eligible to the office of justice of the Supreme Court, judge of a district court, or district court magistrate, unless he shall have been admitted to practice law in the Supreme Court of Montana, and be a citizen of the United States, except that a district court magistrate need not have been admitted to the practice of law if a judge of the district for which the appointment shall have been made shall certify that no person who has been admitted to the practice of such certification with and secure the approval of the Supreme court of Montana. No person shall be eligible to the office of justice of the Supreme Court unless he shall be at least thirty years of age and shall have resided in the state at least two years next preceding his appointment. No person shall be eligible to the office of district judge or district court magistrate unless he shall be at least twenty-five years of age and have resided within the state at least one year next preceding his appointment. District judges and magistrates need not be residents of the district for which they are chosen at the time of their appointment, but after his appointment a district court judge shall reside in the district for which he was chosen during his term of office.

Section 14. The justices of the Supreme Court and the judges of the district courts shall be paid by the state a salary which shall not be diminished during the term of office. Other costs of the judicial system shall be borne by the state, or by the state, counties, cities and towns in such proportions and in such manner as the legislature shall provide; and revenues from fines and fees charged by the courts of Montana shall be distributed as the legislature shall provide.

Section 15. No justice of the Supreme court nor judge or magistrate shall accept or receive any compensation, fee, allowance, prerequisite or emolument for or on account of his office, in any form whatever, except mileage, per diem and salary provided by law.

Section 16. No justice or clerk of the Supreme court, nor judge or clerk of any district court shall act or practice as any attorney or counsellor at law in any court of this state or hold any public office during his continuance in office. This prohibition shall net apply to magistrates or deputy clerks of district courts.

Delegate Proposal No. 44 (Loendorf):

Section 7. The justices of the supreme court and all other judges or magistrates shall have such qualifications, and shall be selected or appointed, and shall serve or be removed, in such manner and under such conditions as the legislative assembly shall provide by law. All 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.

Delegate Proposal No. 92 (Arness & Blend):

Section 5. OPERATION. The 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. The qualifications of judges shall be such as may be determined by law, and procedures governing the removal of judges shall be such as may be fixed by law.

Committee Proposals

The debate in the Judiciary Committee was unable to come to a consensus, and, therefore, the Judiciary Committee passed separate Majority and Minority proposals out of the committee.

Regarding the impasse, the Majority Proposal's comments noted:

Recommendations contained in this report are of great concern to the people. Resolutions by the Convention will have profound effects upon the administration of justice and the nature and philosophy of our government. We regret that complete consensus was not possible. We do report that all members of the committee worked diligently and the majority and minority reports are a consensus of the opinions of all persons signing them. While the members of the committee has philosophical differences, particularly about selection of judges, the entire committee, working on a difficult subject, wholeheartedly devoted their time and energy to their respective report.1971–1972 Montana Constitutional Convention vol. I, 484–485 (1979).</ref>

Majority Proposal1971–1972 Montana Constitutional Convention vol. I, 479–509 (1979).</ref>

Text

Section 8. Justices of the Supreme Court – Qualifications. A United States citizen who had been a resident of Montana for two years shall be eligible for the office of justice of the supreme court if admitted to practice law in Montana and experience with the law in Montana for at least five years immediately prior to filing for or being appointed to the position of justice.

Commentary

Article VIII, section 10 of the 1889 Constitution requires that for a person to be eligible for office of the supreme court he must (1) be admitted to practice law in the supreme court of Montana; (2) be at least thirty years of age; (3) be a citizen of the United States; (4) be a resident of Montana at least two years preceding his election.

The opinion of those signing the majority report is that the experience is more important than age; thus, the age requirement of Article VIII, section 10 of the present Constitution has been dropped and the individual’s experience with law in Montana has been added.

Some discussion was had by members of those signing the majority report that five years practice before the courts of Montana should be required. It was decided that this would be unduly restrictive of those working with the law in a legal capacity for the government, as a law teach, or in any way using their legal experience by working on legal matters. It was decided that as long as there was five years of experience in some field of law this was sufficient requirement. The intention was to make the law experience entirely related to legal work.

Text

Section 12. District Judges – Qualifications. No person shall be eligible to the office of judge of the district court unless engaged in the active practice of law in the state of Montana for at least five years prior to filing for or being appointed to the office of district judge, and in addition shall be a citizen of the United States and admitted to practice law in the supreme court of the state of Montana. He or she need not be a resident of the district for which elected at the time of election, but after election he or she shall reside in the district for which elected during the term of office.

Commentary

Section 12 changes Article VIII, section 16 of the 1889 Constitution. The 1889 Constitution provides that in order for a person to be eligible for office of judge of district court, he shall be (1) at least twenty-five; (2) citizen of the United States; (3) admitted to practice law in the supreme court of Montana; (4) residing in the state of Montana at least a year.

After due consideration the majority of the committee felt that some of the foregoing requirements were valid but others should be changed. Thereupon the majority changed the requirements to (1) a citizen of the United States; (2) admitted to practice law in the supreme court of Montana; (3) must be engaged in active practice of law in Montana for five years prior to filing for or being appointed to the office of district judge. The requirement of experience was determined more valid that the requirement of age, the committee feeling that five years experience would give the necessary qualifications rather than a simple age requirement. The experience requirement for the district judges in this section is materially different from the requirements for supreme court judges in section 8. The committee felt that law teachers and others working with the law for five years was sufficient requirement for a supreme court judge, because the nature of the court is appellate rather than trail. A different type of experience and background is required for district judges who must function at the trial level.

The trial judge, in the opinion of the committee, needs trial experience which can only be gained in active practice of law and thus the requirement is section 12 is five years in the active practice of law.

Text

Section 24. Judicial Compensation. The justices of the supreme court and the judges of the district court shall be paid monthly by the state, a salary, which shall not be diminished during the terms which they shall have been respectively elected. The salaries of justices of the peach shall be paid monthly by the counties or the state as may be prescribed by law. All salaries paid to justices and to judges shall be in an amount sufficient to attract capable and experience lawyers to the judicial service.

Commentary

This section is identical to Article VIII, section 29 of the 1889 Constitution with the exception that the justices of the supreme court and the judges of the district court are paid monthly rather than quarterly. This conforms to the established practice now existing which is in fact in disregard of the provisions of the 1889 Constitution. An additional sentence has been inserted to provide that the salaries of the justices of the supreme court and judges of the district court will be in an amount sufficient to attract capable and experienced lawyers to the judicial service.

Text

Section 26. Law Practice Prohibited. No justice or clerk of the supreme court, nor judge or clerk of any district court shall act or practice as an attorney or counsellor at law in any court of this state during his continuance in office. Magistrates or justices of the peace shall not practice law in justice of the peace or magistrate courts.

Commentary

Section 26 is identical with Article VIII, section 31 except the following sentence was added: ‘Magistrates or justices of the peace shall not practice law in justice of the peace or magistrate courts.’

The upgrading of justice of peace courts is contemplated by section 20 of the majority report. The committee believes that the legislature can allow a justice of peace or magistrate to practice law in other courts of the state of Montana while holding office of justice of peace or magistrate, but they cannot allow a justice of peace or magistrate to practice law in justice of peace or magistrate courts. The majority committee feels that by allowing lawyers to hold a position as justice of peace and at the same time to practice in other courts would allow practicing lawyers in other courts.

Text

Section 28. Residence of Judicial Offices. All officers provided for in this Article, except justices of the supreme court, who shall reside within the state, shall respectively reside during their term of office in the district, county, township, precinct, city or town in which they may be elected or appointed.

Commentary

Section 28 is identical to Article VIII, section 33 of the 1889 Constitution. The majority of the committee feels that section 33 shall be adopted as section 29 without change.

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

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 strength; its clarity lends it[sic] force. . . . This Article was drawn with the idea that the judicial branch must be as strong as the other two; that it officers be as free from obligation as humanly possible; and, that the choice of judicial officers be the responsibility of the Legislative and Executive branches and the voters.1971–1972 Montana Constitutional Convention vol. I, 514 (1979).</ref>

Text

Section 8. QUALIFICATIONS AND LIMITATIONS OF JUDGES. No person shall be eligible to the offices of justice of the supreme court or judge of the district court unless he or she shall have been admitted to the practice of law in Montana for at least five years prior to the date of appointment or election, is a citizen of the United States, and has resided in the state of Montana two years immediately before taking office. Qualifications and methods of selection of judges of other courts shall be provided by law.

No supreme court justices or district court judge shall solicit or receive any compensation on account of his office, in any form whatever, except salary and actual necessary travel expense as provided by law.

Except as otherwise provided in this Constitution, no supreme court justice or district court judge shall practice law during his term of office, engage in any other employment for which salary or fee is paid, or hold office in a political party.

Filing for another elective public office results in forfeiture of judicial position.

A district judge must reside in his district during his term of office.

Commentary

Paragraph one of this section is essentially the same as section 10 of Article VIII, of the 1889 Constitution except that it eliminates the age requirement as we feel that age isn't as important as knowledge and experience. It specifies five years of practice at law as a qualification for either a supreme court justice or a judge of the district court. It adds that the qualifications and methods of selection of judges of the other courts will be provided by law.

The second paragraph of section 5 is similar to Article VIII, section 30 of the 1889 Constitution except that it clarifies compensation of judges by allowing instead of prohibiting the receipt of actual necessary travel expense in addition to salary.

Paragraph three incorporates the provisions of Article VIII, sections 31 and 35 of the 1889 Constitution, except that it prevents either a district judge or justice of the supreme court from engage in any other employment for which a salary or fee is paid and specifically prohibits a district or supreme court judge from holding any office in a political party.

The fourth paragraph of section 5[sic] is new to the Montana Constitution and is designed to prevent judgeships being used as stepping stones for the fulfillment of political ambition.

The fifth paragraph refines and shortens the residential requirements of district judges as they have been spelled out in section 33 of Article VIII.

Adoption

When the Judicial Article came to the floor of the Convention, both the majority and minority proposals were subject to extensive debate.1971–1972 Montana Constitutional Convention vol. IV, 1010–1027 (1979).</ref> In the end, the minority proposal was adopted. During the ratification, Delegate Berg spoke about Section 8:

We have changed the 1889 Constitution in some particulars with regards to the qualifications of judges. First of all, we eliminated the age requirement, but, secondly, we required five years practice of law for either a District Court judge or a Supreme Court judge, and by that we mean that he must be admitted to the practice of law in the State of Montana for at least five years before he’s qualified to hold that office. It was the belief of the committee, and I’m sure I’m speaking now on behalf of both majority and minority, that it takes experience in the court room, it takes experience in the actual practice in Montana in order to understand the procedures that we use, and that it would be harmful to the carrying out of justice in our courts if we had people on the bench who were not intimately familiar not only with Montana substantive law, but more especially with procedural law, and we felt very strongly that one of the most significant qualifications would be actual trial practice in court. We did not feel, however, that we should specify that in particular, but we feel that these are the kind of qualifications that do lend to the making of good judges. We did not make any qualifications insofar as inferior court judges were concerned but left that entirely to the Legislature. I have already discussed the paragraphs 2 and 3. The Constitution does not now have a provision which prohibits a justice of the Supreme Court or judge of the District Court from filing for any other office during his term of office. This was inserted in the minority report to prevent what we think is political ambition and using the courts as stepping-stones in fulfillment of a political ambition. We provided that the district judge must reside within his district during his term of office. That is exactly the same as the old as the 1889 Constitution.1971–1972 Montana Constitutional Convention vol. IV, 1119–1120 (1979).</ref>

Section 8 was modified slightly for clarification and was unanimously approved.1971–1972 Montana Constitutional Convention vol. IV, 1121 (1979).</ref>

The Style, Drafting, Transition and Submission Committee moved Section 10 to Section 5, thus, Section 8 became Section 9 in the final proposed constitution.1971–1972 Montana Constitutional Convention vol. II, 922 (1979).</ref> No substantive changes were made to Section 9 during the styling:

Section 9. The phrase "as provided by law" was deleted from subsection (2) because it contains a prohibitor which is not to be affected by any law but the Constitution. Other extensive language and order changes do not alter substance. Two sentences concerning forfeiture were combined in the new section 10.1971–1972 Montana Constitutional Convention vol. II, 922 (1979).</ref>

On March 13, 1972, the Committee of the Whole accepted the styling changes recommended for Section 9.1971–1972 Montana Constitutional Convention vol. VI, 2186–2187 (1979).</ref>

Ratification

Interpretation

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Commentary

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