Montana’s AG: All Hat, No Cows

In his recent guest view, Attorney General Austin Knudsen whines that the Montana Supreme Court deprived Montanans of a right to decide election methods. Specifically, electing supreme court justices by district, instead of in state-wide, non-partisan elections.

Nothing could be further from the truth. The Supreme Court simply determined that placing an unconstitutional measure (HB 325) on the ballot would place an “unwarranted burden on the public by ‘putting voters to the task of deciding a ballot issue’ and ‘conveying the false appearance that a vote on the measure counts for something, when in fact the measure is invalid regardless of how the electors vote,’ thereby constituting a senseless ‘waste of time and money for all involved.’”

More to the point, this exact sort of election scheme—and that’s exactly what it is—was determined to be unconstitutional in Reichert v. State, 2012 MT 111, just 10 years ago.  While the Attorney General and legislature may not understand, much less respect, the legal doctrine of stare decisis—the doctrine that courts will adhere to precedent in making their decisions—the Court certainly understands that doctrine to be part of the rule of law.  Of course, the Attorney General and legislature are not high on that concept either.

Electing justices by district is not a method to place better justices on the Supreme Court.  Rather it is a scheme to put partisan hacks and political flunkies into the position of deciding all manner of cases that come before the Court.

The fact is that the Supreme Court decides cases based upon the unique facts in the appellate record of the case furnished to the Court, and upon the Constitution and state laws that apply to those facts.  As for the latter, the Constitution and state laws are not different in Kalispell and Billings.  They are the same for the entire State.

So, the idea that justices would “represent” the people in a certain district is boneheaded to begin with.  Supreme Court justices don’t “represent” anybody, any political party or any special interest.  Justices are tasked with applying the Constitution and state laws evenly, fairly, and impartially whether the case at issue originates in Broadus or Essex.  The Constitution and state law are the same; only the facts are different.

Indeed, HB 325 is a scheme: the continuation of the Attorney General’s Governor’s and legislature’s jihad against the courts—part of their authoritarian power-grab to demonize, marginalize and politicize the co-equal branch of government that is constitutionally tasked with being a check and balance on the “political” executive and legislative branches.

Electing justices by gerrymandered districts would not ensure that fair, impartial and independent justices would be elected, but rather that partisan hacks and political flunkies would be deciding peoples’ cases according to the party line.  HB 325 is only one of the latest attempts by the political branches to destroy the separation of powers and system of checks and balances—core, bedrock principles of our democracy—and to replace those with a one-branch, one-party autocratic regime.

Attorney General Knudsen admits as much in his op-ed when he refers to the fact that two incumbents—Justices Jim Rice and Ingrid Gustafson—are standing for reelection in November and should be not retained.

Ironically, immediately below the Attorney General’s guest view in the October 5, Independent Record is a guest view signed by 76 attorneys, former and current public officials and concerned citizens urging voters to retain Justices Rice and Gustafson because of their “demonstrated record of fairness, impartiality and independence.”

That’s tough news for the hand-picked, partisan candidate—James Brown– chosen by Governor Gianforte, Attorney General Knudsen, and promoted by the Montana GOP—no demonstrated record of experience, scholarship, character or much of anything else in that guy.

So once again the Attorney General–disrespectful of the Supreme Court, stare decisis, and the rule of law–completely misses the mark.

Sadly, all hat; no cows.

James C. Nelson a retired Montana Supreme Court justice. He lives in of Helena.