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Montana Law Review




Although Montanans rejected the proposed Constitutional Convention in the November 2010 election, the issues raised by the debate remain. As Montanans consider whether to revisit their state Constitution through initiative, referenda, or legislative action, they have the opportunity to reconsider the structure of their judiciary. This opportunity is important because state judiciaries play an increasingly significant role in American government for multiple reasons. Some state high courts have taken up former United States Supreme Court Justice William Brennan's call for state constitutional jurisprudence to advance civil liberties. As state administrative agencies wrestle with increasingly difficult regulatory issues, state courts have become important players in an expanding regulatory environment. In areas as diverse as public-education finance and takings, state courts have assumed leading policy roles. As a result, Robert Williams' authoritative analysis of state constitutions concludes: “[S]tate courts in many jurisdictions have developed into major policy-making branches of state government.'' Judicial climates affect business location decisions and thus the overall health of state economies. Even where state courts are not directly driving policy, they are important checks on state legislatures and executive branch agencies. Montanans need to consider to what extent they wish their state judiciary to exercise this role and how they wish to choose and control the individuals who exercise this power.

If Montanans revisit their Constitution in the future, and the process results in changes to the Judiciary Article, it will not be the first time Montana has experienced significant change in its judiciary. Since its formation out of the Idaho Territory in 1864, Montana has operated under three sets of judicial institutions. From its organization until statehood, the Montana Territory had a judicial branch established by Congress and filled with circuit-riding judges who often sat both as appellate and trial judges, appointed by and serving at the pleasure of the President. From statehood in 1889 to the adoption of the 1972 Constitution, the State of Montana had quite a different set of judicial institutions, with judges elected by the State's population to fixed terms of six years and a separation between the State's supreme and trial courts. The 1972 Constitution modified the details of the 1889 Constitution's judicial provisions, extending terms and incorporating some features of the merit-selection system, giving Montana its third form of judicial institutions. Is it time for further changes?

As a non-resident (although a frequent visitor, with great affection for the state), I cannot answer that question. This paper attempts to provide a framework for analysis that Montanans can use in assessing whether or not their constitutional provisions regarding the judiciary require revision. Since the 1972 Convention, legal and social-scientific analyses of courts and judges have advanced. These studies provide insights unavailable to those drafting the earlier constitutions.

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Montana State University Law School Association

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