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Dirty tricks from a former justice

| October 14, 2022 7:00 AM

Lawyers and judges are in positions of great power and responsibility when it comes to our justice system.

For that reason, they must abide by strict but sensible codes of conduct to ensure their behavior is ethical.

Unfortunately, a former justice of the Montana Supreme Court, one who as a retired judge can still be called upon to hear cases, has flagrantly broken those codes of conduct.

Justice James Nelson recently wrote a widely-distributed email attacking a candidate for the Supreme Court with falsehoods and asked recipients to forward on his slander.

In the email, Nelson accused Public Service Commission Chairman and current Supreme Court candidate Jim Brown of being responsible for “screwed up” financial records that interfered with an audit and for a wrongful termination settlement that cost taxpayers $175,000.

Justice Nelson knows full well that those things happened before Jim Brown was elected to the Public Service Commission.

As a close watcher of the Montana Legislature (based on his frequent newspaper columns), Justice Nelson also knows that Jim Brown has in fact received strong bipartisan praise from legislators and other officials for his successful efforts to clean up problems at the PSC that predated his tenure there.

In simple terms, Justice Nelson knowingly lied about Jim Brown to try to hurt his campaign. At this point, the reader may be thinking “dirty tricks and lies during election season, what’s new here?”

The difference is that given his position, Justice Nelson should be subject to sanction for violation of judicial ethics rules.

Rule 4.1 (A) (10) of the Montana Code of Judicial Conduct requires that a judge shall not “knowingly, or with reckless disregard for the truth, make any false or misleading statement.”

Rule 8.2 of the Montana Rules of Professional Conduct states that “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity…of a candidate for election or appointment to judicial or legal office.”

Notably, Rule 4.1 of the Code of Judicial Conduct also explains that “when an independent third party has made false attacks on a candidate’s opponent, the candidate should disavow the attacks, and request the third party to cease and desist.”

Jim Brown’s opponent, Ingrid Gustafson, has not disavowed Nelson’s false attacks or to my knowledge requested him to cease his slandering.

Unsurprisingly, given her record, Gustafson is therefore also violating judicial ethics every day she doesn’t address Nelson’s lies.

These violations merit complaints to the Judicial Standards Commission, the entity charged with investigating judges for misconduct, against both Nelson and Gustafson. But the JSC moves too slowly and opaquely to address this matter before the election.

These unethical dirty tricks are unbecoming of a judge, even a retired one like Nelson who doesn’t know where his personal opinion ends and the law begins.

If you want strong ethical standards at the Montana Supreme Court, Jim Brown is the only candidate who deserves your support.

Rep. Barry Usher

Chair House Judiciary Committee