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Montana courts are in great hands

by By KIEL DUCKWORTH Montana attorney
| May 10, 2024 7:00 AM

Montana courts are the target of criticism from the political fringes. Recently it has ramped up. Don’t buy it and I want to explain why.  For what it’s worth, here are my thoughts as a lawyer who practices in courtrooms across Montana.

Our Montana courts are in great hands. Montana does not have a notable problem with activist judges, radical judges, or politically based decisions. Are judges perfect? No, they are human like the rest of us. Sometimes they get things wrong, sometimes they disagree.

Court decisions are carefully based on past (sometimes dozens) similar cases that guide and require a certain result. These past cases are “precedent.” Judges have some discretion, but not much, as they must stay within the boundary of precedent. Any disagreement between judges is relatively small, confined within the boundaries of precedent.

Criticism of judicial decisions is typically due to one thing:  not reading the decision and looking only at the result. Political parties are quick to blindly declare a judicial decision a “win” or a “loss,” without reading the decision to see why it was decided. 

Recently, many have (wrongly) insisted that Montana Supreme Court decisions are based on politics, when they are not. Before you take my word for it, let me explain how a couple recent Montana Supreme Court cases turn that allegation on its head. 

First, Forward Montana was decided in January 2024. The Montana Constitution contains a very basic rule for passing legislation called the “Single Subject Rule.” The Single Subject Rule means that a proposed bill must only cover one subject (i.e., a bill about fruit can’t also be about race cars). Separate subjects require separate bills. The purpose of the Single Subject Rule is to avoid hidden and misleading laws. We want our laws to be clear.

Forward Montana involved a bogus rider that was added, last second, to unrelated legislation. The violation of the Single Subject Rule was so clear that the Attorney General didn’t even attempt to defend the process. The court awarded the plaintiffs attorney fees, reasoning that Montanans shouldn’t have to pay lawyers to challenge such clearly unconstitutional process. Only the portions of the law that were crammed in the last second were struck down, the rest remained. Overall, it wasn’t a big deal for a legislative session that saw the successful passing of a dizzying array of laws.

Republicans were up in arms, insisting the decision was politically driven. A month later, as editorials from Republican politicians bashing the supreme court were hitting the newsstands, the court decided another case in February 2024, the Tintina case. 

In this case, the court allowed the Tintina Company to move forward with building a mine on the headwaters of the Smith River in Montana. Republicans widely applaud this decision as a win for business and deregulation. Democrats are furious, claiming it’s yet another example of the court favoring big business at the expense of the environment.

Some Democrats wrongfully believe it had something to do with politics, but it did not. Rather, the Court’s job in Tintina was limited to verifying that the approving agency (Montana Department of Environmental Quality) adequately reviewed the mine application. The court found that it did.

So the Supreme Court justices who were liberal activists in January, were suddenly right-wing activists in February? No, and if you read the cases, the logic is based on a meticulous compilation of precedent, not politics. Forward Montana wasn’t about whether the judges liked or didn’t like a Republican law, and Tintina wasn’t about whether the judges think a mine a tributary of the Smith River is cool – instead, both cases were simply about whether rules were followed. The court did its job.

Just because a political party likes/dislikes the result of a case, doesn’t mean the case was based on politics. The two cases discussed here are only the most recent examples of results that have drastically different political ramifications, from the same judges. You can always pick knits and disagree with some of the logic, but it doesn’t mean politics were involved.

Worth noting, judges in Montana decide thousands of other cases that don’t grab headlines, have nothing to do with politics, and are ignored by the politically-charged fringes. DUIs, custody matters, property line disputes, business disputes, are all examples of issues judges face daily, mostly thankless and ignored work. 

Politicians tend to hone in on only the .1% of cases that affect their agenda, ignoring the bigger picture. Meanwhile, Montana judges are simply doing their job in thousands of less noticeable cases.

More Montanans than ever are on the fringes of political extremes. Everything is about politics, even when it’s not. For someone who is on the extreme political left, everything will seem right, and vice versa. Knowing this, when someone criticizes the Montana Supreme Court for being left/right, it says little about the court, and more about the political-blinders of the person slinging the arrows.

For the remaining openminded Montanans, our courts are just fine. If you don’t trust me, that’s OK, but talk to someone else who follows the Montana Supreme Court closely and reads more than the occasional decision (note:  my record at the MT Supreme Court is 0-1, so I’m far from a know-it-all!). If you have a question about judicial candidates, talk to some lawyers who practice in front of those judges.

I care because the role of the courts is important. The courts are not supposed to be a rubber stamp for whatever political party is currently in power. Think about any American right you hold near and dear (hopefully more than one) – right to bear arms, free speech, religion, equal protection – the court cannot blindly approve laws that infringe these rights, despite what the politicians want. 

The courts allow ordinary people to challenge abuses of power, to make sure that the Constitution isn’t just a forgotten piece of paper, and to allow citizens to challenge laws and government actions. What irks those in power is that courts don’t pick winners or losers based on politics or bank account size, and instead pick winners and losers based actual evidence, precedent, logic, and accountability. If we lose that, we lose a lot.

Duckworth is an attorney with a practice in Polson, Montana