Montana voters may decide the future complexion of the state Supreme Court
The race for chief justice of the Montana Supreme Court may pull the bigger headlines, but the court's current justices and some court observers say the race for the other open seat is more important.
Four attorneys are vying for the spot being vacated at year's end by retiring Justice Bill Hunt, who is 77. Justices Karla Gray and Terry Trieweiler are running for the chief's job, but both will remain on the court regardless of who wins that race.
"That's the vote that could change the court's complexion a little bit," said Deputy Attorney General Jennifer Anders. "It shouldn't change the mainstream, but it could shake things up on close votes."
The candidates are: Pat Cotter, a Great Falls attorney in private practice with her husband; Frank McGee, a Butte lawyer who works more often as a building designer and contractor; Jeff Renz, an assistant professor at the University of Montana School of Law; and Chris Tweeten, chief counsel for the state attorney general's office.
The winner of that race will replace Hunt, who has spent 15 years on the court and is an unwavering vote within the court's mainstream.
Half jokingly, Hunt said he'd like for the person who replaces to vote "just like I have."
"I think I've made some pretty good decisions up here," Hunt said with a laugh. "But really, I think the court is moving in a very positive direction and I'd like to see it continue."
Since the mid-1990s, the court has been moving away from its long history as a corporate- and government-oriented body to a court more reflective of the state's 1972 constitution, which is pro-individual and pro-environment.
"I don't think you can cast this as an activist court, but I do think they are somewhat unsatisfied with the state of the law in Montana," said retired District Judge Gordon Bennett, one of the state's most respected jurists. "This is a court that doesn't want to leave things undone. If there's some question there, they'll answer it and they won't give you some ambiguous answer in the way of a legal opinion."
Two candidates, Tweeten and Renz, have been critical of the court for its willingness to overturn decisions from prior court cases, what lawyers call precedent. Cotter believes the court is on the right track. McGee, in both his resume and his campaign speeches, doesn't focus on the court's current business, preferring to distinguish himself from the other candidates.
"I'm what you call a PFC - a person from California," he recently told a lunch meeting of the First Judicial District Bar Association in Helena. "But I've been redeemed by living in Butte. I'm Irish, I'm Catholic and I'm a Republican. If you like Antonin Scalia's decisions on the U.S. Supreme Court, you'll probably like me."
As a law professor, Renz has had time to study the court, and it is his survey of the court's willingness to overturn prior opinions that has fueled much of the discussion as the candidates campaign around the state.
"I think it's important to remember that once a court interprets a statute, that opinion becomes part of the body of law for that statute," Renz said recently in Missoula. "Businesses makes decisions based on that. Officers make arrests. District court judges run their courts. Government makes its decisions. That stability in the law is perhaps its most important element."
Tweeten agrees. Like Renz, he said he would vote to affirm precedent at the expense making a decision he felt was "right."
"It's an important part of judicial temperament that a justice be willing to let the law take its course, even when it produces a result that you may not like," Tweeten said. "You've got to be willing to trust the law to produce justice over the run of cases, even if in a particular case your gut feeling tells you this may not be a just result."
Cotter said precedent is important, but she is convinced that it should stand without scrutiny and, in some cases, change.
"I know that Jeff and Chris have talked about the importance of stability in the law, and I agree that it's important," Cotter said. "But the argument that badly decided cases have to stand just because that ruling is old, on that we have a disagreement."
Renz, Tweeten and Cotter all said they would not bring an agenda to the court. McGee has said just the opposite. He campaigns like a politician, talking about the evils of gun control and abortion, the rightness of school prayer and the incorrectness of the Miranda decision, the federal requirement that the accused be advised of their rights.
"I don't see why we need to tell those dummies anything," McGee said during an appearance in Bozeman.
The other three candidates shake their heads at McGee's stump speeches, primarily because his issues generally have nothing to do with the Montana Supreme Court's business.
"It's not as if the court has any power over the issues he's raising," Cotter said of McGee.
Said McGee: "I just want to tell people how I think."
The candidates come from widely divergent legal backgrounds. McGee worked for a time as a public defender in California's Los Angeles County, which he refers to as the DMZ. He then took up private practice.
"In real life, he continues to be a semi-unemployed lawyer, sneaking out of the closet regularly but quietly," states a fact sheet that McGee hands out while campaigning.
That same sheet says McGee graduated "magna cum macaroni" from the University of Utah and then was "elected to the highly coveted, dues-waived life membership in the Royal Order of the Bareleemadeitz on graduation."
"I just wanted to give people a little something different," McGee told the Missoulian.
Renz has done a significant amount of civil rights work, handling cases involving sexual harassment, special education, the First Amendment and American Indians. Renz has worked for the Northern Plains Resource Council, and now is employed at the UM law school, where he runs the clinical program that allows students to practice in courtrooms. He is, not surprisingly, the only candidate with an undergraduate degree in botany.
Tweeten has worked for government for most of his career, although he spent 3 1/2 years in private practice in Helena. Tweeten has held a number of jobs in the attorney general's office, where he was first hired by then-Attorney General Mike Greeley 1978. He's handled criminal and civil appeals, represented the state Board of Public Education and been a member of the Reserve Water Rights Compact Commission, the state agency that negotiates water rights settlements with the federal government and Indian tribes.
Cotter, 50, has been in private practice for 23 years, working in Great Falls with her husband, Michael, for the past 16 years. She has represented primarily private individuals and small businesses, and received the highest rating for lawyers from Martindale-Hubbell, which rates lawyers nationally. Cotter has been deeply involved with the Montana Trial Lawyers Association.
Each touts experience as reason to elect him or her to the court. But even more interesting differences arose when the candidates were asked to contrast themselves with their opponents.
Cotter said the she's the candidate running "for" the court rather than against it. She said that while Renz's study of precedent reversal is "interesting," it's also just a number. As she points out, of the 99 reversals Renz cited in the past nine years, at least 20 percent involved reversing cases where the court discovered conflicting lines of authority. That is, case law that ran in different directions while addressing the same point of law.
"To me that's a good thing, not a bad thing," she said. "That provides more certainty."
Cotter said she's agreed with the court as it has made a series of high-profile constitutional decisions in the past three years.
"I don't think I would be out of the mainstream in any of those cases," she said.
Unlike Tweeten, who fashions himself a "judicial conservative" loathe to overturn precedent, Cotter said she'd be willing to overturn cases that were "decided badly and no longer right for the times."
"In those cases, maybe it's just time for the court to say, 'This is not right and we're going to change the precedent,' " Cotter said. "That's not a legal heresy, no matter what Jeff and Chris say."
Finally, Cotter is angered by Renz's habit of telling jokes about trial lawyers during his campaign speeches.
"Why do you want to trash people in your own profession?" Cotter said. "We should be trying to build confidence in the public about what we do instead of making fun of our membership."
Renz said he would be more independent than Cotter on the bench, suggesting that Cotter's election would further solidify the influence of trial lawyers on the court.
"You already have three of them up there - (Terry) Trieweiler, (Jim) Regnier and (Bill) Leaphart," Renz said. "I don't think four is healthy. I think there is a feeling within the trial lawyers association that the court ought to be an institution of social change. I think that's wrong."
Renz said Tweeten has been a "me, too" candidate.
"When I've said I think the court is too active, he says, 'Me, too,' " Renz said. "When I said I think they overturn too many cases, he said, 'Me, too,' "
Tweeten, Renz said, also champions himself as "keeper of the flame of the rule of law."
"It's expressed in a sense that he represents the rule of law by representing the state," Renz said. "I don't think the state has the corner on the rule of law. The constitution is written for the people, not for the bureaucracy."
Although all the candidates have practiced widely, Tweeten said he's handled far more appeals than his opponents.
"That kind of experience is invaluable for somebody who wants to sit on an appellate court," Tweeten said.
Tweeten said he's also handled a wider variety of cases than Renz and Cotter.
"Their practices have been pretty much limited to certain kinds of law, where I've done just about everything," Tweeten said.
"She seems to think this is just business as usual, and I think that's a hard position to justify based on the evidence of the way the court has overruled itself in the past five years," Tweeten said of Cotter.
Tweeten agreed that he and Renz have been saying many of the same things about the court, but said that's "because those things are true."
Tweeten, Renz and Cotter didn't have much to say about how their positions differ from McGee's, who said in Helena that his candidacy was something of a lark.
"It's really hard to tell whether he's serious or not," Renz said of McGee.
Said McGee: "It is something of a mystery. I've always wanted to be an appellate justice. I just never had the political connections to do it. I don't have them now, but I figured it was getting a little late, so I better start running."
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