                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          No. 04-015
                                        ______________

MIKE WHEAT, JON TESTER,                                    )
and KEN HANSEN,                                            )
                                                           )
               Plaintiffs and Respondents,                 )
                                                           )
       v.                                                  )             ORDER
                                                           )
BOB BROWN, in his official capacity                        )
as Secretary of State of the State of Montana,             )
                                                           )
               Defendant and Appellant.                    )
                                      ______________

       On January 6, 2004, Appellant Bob Brown, Secretary of State for the State of
Montana, moved this Court to expedite this appeal for the reason that the appeal presents an
issue as to whether the Legislature’s assignment of “holdover” Senators will be implemented
or whether the Montana Districting and Apportionment Commission assignments will
control. Since candidates for the ten Senate Districts in question can file for office beginning
January 26, 2004, and must file by the statutorily imposed deadline in March of 2004, the
issue is of immediate concern. Counsel for Respondents, Mike Wheat, Jon Tester and Ken
Hansen, did not object to the motion to expedite.
       Accordingly, on January 7, 2004, this Court issued an order expediting the briefing
in this matter such that all briefing was to be completed by close of business on January 20,
2004. It was further ordered that the Court would render a decision–with opinion to
follow–no later than February 3, 2004.
       Having reviewed and considered the briefs of the parties and the decision of the First
Judicial District Court,
       IT IS HEREBY ORDERED:
       1. The December 18, 2003, order of the First Judicial District Court in Lewis and
Clark County Cause No. BDV-2003-601 is hereby affirmed.


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       2. An opinion from this Court will be issued at a later date, at which time the period
for petitions for rehearing will begin to run.
       3. The Clerk is directed to mail copies hereof to counsel of record for the respective
parties.
       DATED this 27th day of January, 2004.


                                           /S/ KARLA M. GRAY
                                           /S/ W. WILLIAM LEAPHART
                                           /S/ JAMES C. NELSON
                                           /S/ JOHN WARNER
                                           /S/ JIM REGNIER
                                           /S/ PATRICIA O. COTTER
                                           /S/ JIM RICE




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Justice Jim Rice specially concurring.

       I concur. Although the legal rationale for the Court’s decision to affirm the District

Court will be set forth at a later time, brief comment is appropriately made today.

       The force majeure behind the initiation of this action, evident from judicial notice we

may take of the parties’ public statements, is the charge that the Reapportionment and

Redistricting Commission engaged in openly biased decisionmaking in order to promote the

success of one political party, and the demise of another. Although this case does not

directly address the equity of the Commission’s actions, we should not be surprised that such

alleged disenfranchisement would prompt legal action. As such, this case well illustrates the

intentions of the constitutional convention delegates in this regard, and this Court’s role

therein.

       The constitutional delegates sought to remove the influence of partisan politics from

the reapportionment process. They created the Reapportionment Commission with faith that

it would not allow the redistricting process to be captured by political interests, but, rather,

would serve the citizen:

       [P]art of our proposal includes a reapportionment commission which would
       be made up, as proposed, of nonlegislative members and we would ask you
       and the citizens of Montana to have faith in those people that they would not
       exercise the gerrymandering that could be possible . . . .

Const. Conv. Tr., Vol. III, p. 559 (Delegate Cate). Whether the current Reapportionment

Commission has betrayed the faith placed in it by the constitutional delegates is an issue

which is not directly before us today. However, we should nonetheless be mindful of the

trust placed in the commission by the delegates, and the potential for abuse of that trust. If

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called upon, this Court has the constitutional duty of appointing the chairman of the

commission. If and when that would again occur, we should well remember the intention

of the delegates, and ensure that the person selected is fair, impartial and committed to the

citizen–not to the promotion of a particular political party.



                                                  /S/ JIM RICE




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