(1) The supreme court has appellate jurisdiction and may issue, hear, and determine writs appropriate thereto. It has original jurisdiction to issue, hear, and determine writs of habeas corpus and such other writs as may be provided by law.

(2) It has general supervisory control over all other courts.

(3) It may make rules governing appellate procedure, practice and procedure for all other courts, admission to the bar and the conduct of its members. Rules of procedure shall be subject to disapproval by the legislature in either of the two sessions following promulgation.

(4) Supreme court process shall extend to all parts of the state.

History

Sources

1884 Montana Constitution (proposed)

Art. VI, sec. 2. The Supreme Court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the State, and shall have a general superintending control over all inferior courts, under such regulations and limitations as may be prescribed by law.

Art. VI, sec. 3. Said court, or any Judge thereof, shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, injunction, and other original and remedial writs, with the authority to hear and determine the same; and when a jury may be required by the Supreme Court to try an issue of fact, the court shall have power to summon a jury to try such question of fact in that court.

1889 Montana Constitution

Art. VIII, sec. 2. The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state, and shall have a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by law.

Art. VIII, sec. 3. The appellate jurisdiction of the supreme court shall extend to all cases at law and in equity, subject, however, to such limitations and regulations as may be prescribed by law. Said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo-warranto, certiorari, prohibition and injunction, and such other original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction. When a jury is required in the supreme court to determine an issue of fact, said court shall have power to summon such jury in such manner as may be provided by law. Each of the justices of the supreme court shall have power to issue writs of habeas corpus to any part of the state, upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself, or the supreme court, or before any district court of the state, or any judge thereof; and such writs may be heard and determined by the justice or court, or judge, before whom they are made returnable. Each of the justices of the supreme court may also issue and hear and determine writs of certiorari in proceedings for contempt in the district court, and such other writs as he may be authorized by law to issue.

Other Sources

Puerto Rico Art. V, part of sec. 3: The supreme court shall be the court of last resort in Puerto Rico…

Puerto Rico Art. V, part of sec. 7: The Supreme Court shall adopt rules for the administration of the courts…

Puerto Rico Art. V. sec. 5: The Supreme Court, any of its divisions, or any of its Justices may hear in the first instance petitions for habeas corpus and any other causes and proceedings as determined by law.

New Jersey Art. VI, part of sec. 2: The supreme court shall exercise appellate jurisdiction in the last resort in all causes provided in this constitution…

Michigan Art. VI, part of sec. 5: The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court…

Drafting

Delegate Proposal

Delegate Proposal No. 7 (Berthelson):

Section 2. The Supreme Court, except as otherwise provided in this constitution, shall have appellate jurisdiction, which shall be coextensive with the state, and shall have general supervisory and administrative control over all inferior courts. under such regulations and limitations as may be prescribed by law.

Section 4. The Supreme Court shall have power to make and promulgate rules and regulations in all civil and criminal cases for all courts relating to practice, procedure, pleading, evidence, and judicial administration, which shall have the force and effect of law.

Section 5. The appellate jurisdiction of the Supreme Court shall extend to all cases at law and in equity, subject, however, to such limitations and regulations as may be prescribed by law. Said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, injunction, supervisory control and such other original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction. Each of the justices of the Supreme Court shall have power to issue writs of habeas corpus to any part of the state, upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before the Supreme Court, and such writs may be heard and determined by the court. Montana Constitution Convention 1971-1972, vol. 1, 84-85.

This proposal was adopted in part by the Majority and Minority Reports.

Delegate Proposal No. 44 (Loendorf):

Section 2. The supreme court shall have appellate jurisdiction and general supervisory control over all other courts with the power to make rules and regulations not inconsistent with state law.

Section 3. The appellate jurisdiction of the Supreme Court shall extend to all cases at law and in equity, subject, however, to such limitations and regulations as may be prescribed by law, said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, injunction, supervisory control and such other original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction. Each of the justices of the Supreme Court shall have power to issue writs of habeas corpus to any part of the state, upon petition by or on behalf of any person held in actual custody and may make such writs returnable before the Supreme Court, and such writs may be heard and determined by the court. Id. at 140.

This proposal was rejected. This proposal was rejected.

Delegate Proposal No. 92 (Arness): "The Court of Appeals shall exercise appellate jurisdiction throughout the state and shall have general supervisory powers over inferior courts. In the exercise of its jurisdiction the court of appeals shall have the power to make rules in civil cases relating to procedure, subject, however, to provision of law. The legislature may prescribe the manner in which the power of the court is to be exercised insofar as necessary to insure reasonable and uniform exercise of the rule making power." Id. at 205. This proposal was rejected.

Committee reports

Judiciary Committee Majority Proposal

Section 2. SUPREME COURT - APPELLATE JURISDICTION. The supreme court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state.

Section 3. SUPREME COURT - APPELLATE JURISDICTION - WRITS. The appellate jurisdiction of the supreme court shall extend to all cases at law and in equity, subject, however, to such limitations and regulations as may be prescribed by law. Said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and injunction, and such other original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction. Each of the justices of the supreme court shall have power to issue writs of habeas corpus to any part of the state, upon petition by or on behalf of any person held in actual custody, and nay make such writs returnable before himself, or the supreme court, or therefore any district court of the state, or any judge thereof; and such writs may be heard and determined by the justice of court, or judge, before whom they are made returnable. Each of the justices of the supreme court may also issue and hear and determine writs of certiorari in proceedings for contempt in the district court, and such ether writs as he may be authorized by law to issue. Id. at 486.

Comments of Judiciary Committee Majority Proposal

Section 2's revision deletes the supreme court’s power of supervisory control over inferior courts. As written in the 1889 Constitution, the power was given to the supreme court under such regulations and limitations as may be prescribed by law. Although the legislature has never provided regulations, the supreme court in 1900 assumed the power to act supervisory - going so far as to invent a writ of supervisory control, unique in the United States. The use of the writ has grown to the point where it is used when either specifically authorized writs, or appeals, would serve as well. The provision was deleted as (1) unnecessary and (2) to avoid an unseemly avoidance of the express provisions of the 1889 Constitution. Id. at 493.

Section 3 "is identical with the 1889 Constitution except we have eliminated the provision for a jury in the supreme court as it never has nor is likely in the future to be used. This provision defines the jurisdiction of the supreme court and has been interpreted over the years so there is now no uncertainty as to meaning."Id. at 494.

Judiciary Committee Minority Proposal

Section 2. SUPREME COURT POWERS. The supreme court shall have final appellate jurisdiction and general supervisory and administrative control over all courts. The supreme court may make rules for the practice of law and judicial administration in all courts. The supreme court shall have such power to make rules of procedure as may be provided by law. The supreme court shall have original jurisdiction to issue, hear and determine all writs appropriate to the exercise of its jurisdiction, including the writ of habeas corpus. Id. at 510.

Comments of Judiciary Committee Minority Proposal

The proposed section added ‘final’ to solidify where litigation for the states ends, and to provide flexibility for the possibility of intermediate appellate courts if needed in the future. The section eliminates “such limitations and regulations as may be provided by law” to provide a less restrictive structure of the appellate jurisdiction of the supreme court in accordance with the federal Constitution. The phrase, “all cases in law and equity” was also eliminated for being unnecessary and archaic language. Id. at 515-16.

In addition to the unfettered appellate jurisdiction, the supreme court is given original jurisdiction to issue all writs and orders appropriate to the exercise of its powers. The minority proposal specifies only the writ of habeas corpus, but by this specification does not intend to exclude the use of other original writs enumerated in the 1889 Constitution. Likewise, we have removed the procedural provisions regarding the issuance and hearing of writs of habeas corpus because we think these provisions are purely statutory in character and because Article III, section 21 of the 1889 Constitution adequately protects against the suspension of the privilege of a writ of habeas corpus.” The addition of “administrative control” clarifies the supervisory powers of the supreme court and provides administrative direction for the judicial system. The addition of rule-making power further clarifies the supreme court’s supervisory and administrative powers. “Rule-making power is categorized by minority report into two classes. One class includes the practice of law and judicial administration of courts, which relate exclusively to the internal affairs of the judicial system. Powers in this regard are specifically lodged in the supreme court. The second class of rule-making power is restricted to rules of procedure and is intended to include both civil and criminal codes, but is specifically limited and qualified by the phrase ‘as provided by law’ meaning, of course, that the rule-making power is actually reserved to the plenary power of the legislature as the lawmaking body of the State. It is believed that the making of the rules of evidence properly belongs exclusively with the legislature because of the fine line between substantive and adjective law.

Id. at 515-16.

Floor Debate

On Febuary 26, 1972, the majority of the delegates voted to use the Minority Report as a template going forward with the Judiciary Article. Montana Constitution Convention 1971-1972, vol. 4, 1034.

Delegate Schiltz: moved to eliminate the phrase “and general supervisory” so writ of supervisory control will not be available to be used by the Supreme Court. He stated that the writ has been used frequently over the past 16-17 years. Id. at 1039.

Delegate Berg: answers that the writ has been applied for 21 times since 1900, has been issued 15 times, and rejected 6 times. “It has not been used flagrantly; it has not been abused. Moreover, the words “general supervisory control” are not limited, in spite of the use of the writ of supervisory control, to the use of that as a method of simply controlling litigation in the lower courts. The words “supervisory control”, when coupled with “administration” – meaning general supervisory control and administration – include the vital need for supervision of administration of the entire Judicial system. Id.

Delegate Cate: opposing Schiltz’s motion. He explains that he has applied for a writ of supervisory control five times and was granted it once. He explains why a writ of supervisory control is fundamental to the system, “[i]f you run into a situation in a lawsuit where a judge, a district judge or a JP, absolutely ignores the law, if you did not have the writ of supervisory control, you would have to go all the way through the trial and then appeal it to the Montana Supreme Court. With the writ of supervisory control you can say, ‘Judge, you’re wrong and I’m going upstairs and get a writ of supervisory control to make you right,’ and you don’t have to go through all the expense of having a trial.” When put to a votes Delegate Schiltz’s motion failed thus keeping supervisory control in section 2. Id. at 1040.

Delegate McNeil: “I move to amend subsection 1, Section 2 by striking the two words ‘and administrative.’” He wanted the administrative power to be granted through statutes instead of through the Constitution. Id. at 1042. Delegate McNeil’s motion passed.

On February 29, 1972 Delegates Aronow, Berg, Schiltz, and Garlington met over the weekend to write a revised proposal based on the vote outcomes and discussion from the February 26 meeting. Id. at 1069. This section was presented by:

Delegate Schiltz:

Section 2, Supreme Court powers. The Supreme Court has appellate jurisdiction, including jurisdiction to issue, hear and determine writs appropriate to its appellate jurisdiction, and original jurisdiction to issue, hear and determine writs of habeas corpus. It has general supervisory control over all of the courts. It may make rules governing appellate procedure, rules of practice and procedure for all the other courts, and rules of admission to the bar and conduct of its members. Rules of procedure shall be subject to approval or disapproval by the Legislature in either of the two sessions following their promulgation. Id. at 1071-72.

It was adopted by the Convention without change. Id. at 1073.