In Reichert v. State ex rel. McCulloch,1 the Montana Supreme Court addressed the constitutionality of a legislative referendum proposing changes to the qualification and selection of Montana Supreme Court justices. In reviewing the referendum, the Court focused on the threshold issues of ripeness and recusal before addressing its constitutionality.2 Reichert highlights the complexity of ripeness as a threshold question and clarifies when and how the Court conducts pre-election judicial review.
This note focuses only on the procedural holding of ripeness, from which Justice Baker dissented. This note does not analyze judicial recusal or the constitutionality or severability of the referendum provisions in question. The focus of this note is on the analysis of the strengths and limitations of the Reichert opinion, arguing that the Court confuses pre-election judicial review of substantive challenges with pre-election review of procedural and legal sufficiency challenges. The note discusses how the Court treats these three types of review in the same manner and, in so doing, contravenes current statutory requirements. Ultimately, this note proposes a new framework to distinguish between procedural, legal sufficiency, and substantive reviews and when they should occur, which would both clarify the Court’s role and enable the Court to follow the current statutes.
Reichert v. State ex rel. McCulloch and the Open Door for Increased Pre-Election Substantive Judicial Review,
74 Mont. L. Rev.
Available at: http://scholarship.law.umt.edu/mlr/vol74/iss2/9