Herbert challenges Rice for state Supreme Court seat

David Herbert estimates his chances of beating incumbent Justice Jim Rice for a spot on the Montana Supreme Court are one in ten, and then he shrugs. No time for discouragement. David W. Herbert has a message to spread.

Herbert, 71, is not your typical Supreme Court candidate. He is a practicing podiatrist and attorney from California who moved to Billings in 2008.

Herbert’s mission is to spread awareness of jury nullification or what he calls “jury independence.”

Jury nullification essentially means a jury could find a person not guilty or guilty of a lesser crime, even if the members believe the evidence proves the defendant committed the crime. As Anthony Johnstone, professor of law at the University of Montana, explained it, it gives jurors the power to interpret the law as well as the facts.

Historically, it occurs when the jury believes the law to be unjust. Johnstone said modern juries might nullify verdicts in marijuana or capital punishment cases.

Herbert would like to see the power of nullification outlined to juries when they are headed in to consider a case.

“One of the great things about our system is the power of the jury,” Herbert said. “People as citizens should know their rights as jurors.”

Johnstone said that is probably not legal, pointing to Montana State Law that states, “Questions of law must be decided by the court and questions of fact by the jury.”

“It’s a power of juries, not a right,” he said, adding that it is almost impossible to be punished for nullifying a law because the deliberations are secret.

Herbert countered that while the law says juries must decide the facts, it doesn’t say they can’t decide the law. He said he would like to see the law changed from “must” to “may.”

It is this mission that has prompted him to run his long-shot campaign for the state’s highest court.

Rice, who was appointed to the court in 2001 and ran unopposed for the seat in 2006, called jury nullification a “subversion of the democracy,” saying it is inconsistent with Montana’s legal history and to change that precedent would require legislative action.

“If Mr. Herbert is interested in creating that kind of change he should be running for the legislature, not for the court,” Rice said. “It’s inappropriate to run on that kind of platform.”

Rice would know better than most. Before his appointment to the court by Gov. Judy Martz, he served three terms on the Montana House of Representatives as a Republican from 1988 to 1993, his final term as minority whip.

It is experience like that the 56-year-old Rice said is his best argument for re-election to another eight-year term.

The 1982 graduate of the University of Montana law school also is campaigning on some issues that concern him in the courts, mainly, “getting the court caught up on its case load.”

Montana courts increasingly face the problem of a backlog of cases that cause delays in the legal process and overburdened courts.

Rice proposed the creation of an intermediate appellate court to filter the number of appellate cases coming to the Supreme Court, but the legislature rejected the idea. Still, Rice said he has been working with the court’s performance committee to improve efficiency and target problem areas in the legal process.

It’s a message that has found broad support from lawyers and political leaders. Rice has received donations from several former Supreme Court justices and current Chief Justice Mike McGrath.

Beyond the court, Rice has also drawn financial support from top Republican and Democratic officials and powerbrokers. Republicans like U.S. Senate candidate Steve Daines, former Gov. Marc Racicot and former Congressman Rick Hill have all contributed to Rice’s campaign.

So have traditional Democratic groups like Montana’s largest teachers’ union and the Montana Public Employees Association.

Teachers’ union president Eric Feaver, who also made a personal contribution to Rice’s campaign, said the union has had a positive relationship with Rice since he served on the House.

“He showed himself to be very friendly to public education and the labor unions,” Feaver said. “We think he has a very positive record of reading the law and interpreting it with a moderate point of view.

He is neither left nor right; he’s a solid caring justice.”

Herbert is currently the largest donor to his own campaign, although Libertarian candidate for the U.S. House Mike Fellows expressed support for Herbert at a recent candidate forum.

As Feaver pointed out, Rice has gathered support because he is a “proven incumbent,” and Herbert is a largely unknown candidate.

“I don’t expect Jim to have a serious contest,” Feaver said.