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Brief History of the Montana Judicial Branch

The Territory of Montana was organized by an Act of Congress, approved May 26, 1864. Section 9 of the Act vested the judicial power of the territory in a Supreme Court, District Courts, Probate Courts and Justice of the Peace Courts.

The first term of the Supreme Court of the Territory of Montana was held in Virginia City on May 17, 1865. Hezekiah L. Hosmer was appointed as the first Chief Justice by President Abraham Lincoln on June 30, 1864. On June 22, 1864, Lorenzo P. Williston and Ammi Giddings were appointed Associate Justices. Ammi Giddings declined to serve, but his commission remained in force until March 11, 1865, when Lyman E. Munson was appointed to replace him.

In the early Territorial period, Justices of the Supreme Court each presided over one of the territory's judicial districts. This arrangement usually meant that when a case was appealed to the Supreme Court, one of the Justices personally had tried the case at the District Court level. This system changed in 1886 when Congress provided for the appointment of a fourth Justice and provided for disqualification on appeal of a justice who had tried a case in District Court.

In the initial years of the Court, decisions about cases were rarely given in writing. In January, 1872, the Territorial Legislature provided for written reporting of Supreme Court decisions.

The July 1889 term of the Territorial Supreme Court was the last term held before Montana became a state on November 8, 1889. When the Territorial Supreme Court adjourned sine die on October 5, 1889, the Territorial period ended and the modern era of statehood began.

Statehood brought several changes to Montana's Judicial System. During Territorial days, Justices and District Court Judges were appointed by the President of the United States. After 1889, Montanans turned to a system whereby they elected justices, district and local judges, and judicial officers. They hoped thereby to encourage “more prompt and accessible administration of justice.” Justices, district judges and local judges were elected on a partisan ballot until 1909 when a brief and largely forgotten experiment in nonpartisan judicial elections was established. (Laws of 1909, Chapter 113) This law was enacted with only one opposing vote in the closing days of the 1909 session. The law prohibited partisan filings by judicial candidates and required their nomination by citizen petition. 1910 was an “off” year for judicial elections; only the Chief Justice and two District Judges were to be chosen. Chief Justice Brantly, known as a populist Republican, won a third term receiving 39% of the votes in a field of four candidates.

Voters evidently missed party labels since the total vote cast in the 1910 nonpartisan contest was notably small. Fewer than half of those who voted for Clerk of the Supreme Court on the partisan ballot voted for the Chief Justice on the nonpartisan ballot. The experiment was terminated in 1911 when the Supreme Court, on the complaint of a Republican candidate for Butte Police Judge, held the legislation unconstitutional. The 1935 Legislature (Laws of 1935, Chapter 182) made judicial elections nonpartisan for a second time, but the effect on voter participation was not so dramatic as in the one-election experiment in 1910.

Article VIII of the 1889 Constitution established a three-member Supreme Court with members elected to six-year terms. During the first three decades of statehood, the Supreme Court remained at three Justices but the caseload required additional resources in order to keep current. The 1903 Legislature provided for the appointment by the Supreme Court of a three member Court Commission of legal learning and personal worth to assist the Court. Commissioners were paid a salary of $4,000 annually for this work. The term of office for the Court Commission was four years, during which time the Commissioners were prohibited from engaging in the practice of law. When the 1905 Legislature failed to provide an appropriation for the Commissioners' salaries, they all resigned.

The 1919 Legislature increased the membership on the Supreme Court to five members. In 1921, the Legislature approved the second Court Commission and directed the Supreme Court to appoint from among the duly elected, qualified and acting District Judges of the State of Montana, from any of the various counties or districts, three of such judges to act for such a period of time as may be designated in the order appointment as Commissioners of the Supreme Court. The Supreme Court remained at five members until the 1979 Legislature authorized two additional Justice positions to assist in handling the overburdened Court calendar.

The Office of Court Administrator was created in 1977, more than one hundred years after the State Law Library was funded by Congress (1873) and almost the same amount of time after the Library was statutorily created in 1881.

In August 1989, Governor Stan Stephens appointed District Judge Diane Barz to replace Justice L.C. Gulbrandson who retired. Justice Barz was the first woman to serve on the Supreme Court and was the first woman District Judge in the State of Montana.

Following the General Election of 2012, the Montana Supreme Court added a third woman to the bench: Justice Pat Cotter, Justice Beth Baker, and Justice Laurie McKinnon. In 2013 there also were thirteen women who had been elected to serve as District Court Judges.

Changes After 1972

The adoption of a new judicial article in the 1972 Constitution did not substantially change the traditional structures of the Montana Judiciary. It did, however, make a number of modifications. For instance, terms of Supreme Court Justices were extended from six to eight years and District Court Judges' terms went from four to six years. Structurally more significant, the new Constitution adopted a version of merit recruitment for judicial officers that has been described as a unique hybrid of the Missouri Plan. While the governor appoints judicial officers when vacancies occur, candidates can file against a judge seeking re-election or for a position that is open due to a judge not seeking re-election. After 1974, if a sitting judge is unopposed when seeking re-election, voters are given a Yes or No choice as to whether or not to retain the judge.

The 2001 Legislative Session enacted legislation for what was commonly called “state assumption of district courts”. Under this legislation, the state assumed the cost of all district court employees, with the exception of employees in the offices of Clerks of District Court. Approximately 350 formerly county employees became state judicial branch employees.

In additional to state assumption of these former county funded employees, the 2001 Legislative Session created the District Court Council. The Council consists of nine members as follows:

  • the Chief Justice of the Supreme Court or a designee of the Chief Justice;

     

  • four district court judges elected by district court judges, one of whom must be from a judicial district that does not contain a first-class city; and

     

  • the following ex officio, nonvoting members appointed by the supreme court:
    • one chief juvenile probation officer nominated by the Montana Juvenile Probation Officers Association;
    • one clerk of the district court nominated by the Montana Association of Clerks of District Courts;
    • one county commissioner nominated by the Montana Association of Counties; and
    • one court reporter nominated by the Montana Court Reporters Association.

The Chief Justice serves as the presiding officer of the Council.

The District Court Council is charged with responsibility to develop and adopt policies and procedures, subject to review by the Supreme Court, to administer the state funding of district courts. The policies and procedures must address, but are not limited to, the following issues related to district courts:

(a) workload;
(b) resource allocation among the district courts;
(c) hiring policies;
(d) court procedures;
(e) information technology;
(f) for court reporters, work schedules, transcript fees, and equipment; and
(g) other issues regarding the state funding of district courts.

The Council meets bimonthly.