Pound the Judge

Much in Montana and in national publications has been already written about Helena District Court Judge Kathy Seeley’s landmark decision in the constitutional environmental case, Held, et. al., v. State of Montana, et., al.

Suffice to say that, at trial, the Plaintiffs’ attorneys spent the better part of a week putting on a meticulously detailed, evidence and law-based case unequivocally proving that the 16 young Plaintiffs’ Montana Constitutional rights to a clean and healthful environment (Article II, section 3), and to the State’s, the Governor’s and the Legislature’s mandatory duty to “maintain and improve” that clean and healthful environment by adopting laws to implement those rights (Article IX, section 1), were violated.

The State, represented by the Attorney General’s office, spent the better part of half a day presenting the testimony of a couple of high-priced (as in taxpayer funded) “experts” who were eviscerated on cross-examination and who were found to be not credible by Judge Seeley.

For her part, Judge Seeley entered a 103 page meticulously and professionally crafted decision grounded in the trial evidence, in Montana’s statutory and Constitutional law, in the two fundamental rights mentioned above, and in the State’s and legislature’s abject failure to discharged their mandatory duties to “maintain and improve a clean and healthful environment for this and future generations”—all to the detriment of the 16 youth Plaintiffs.

Indeed, in my nearly 20 years of serving as a Justice on the Montana Supreme Court, I cannot recall reading a better District Court decision.  It is unassailable.

Yet, in his typical hand-wringing, not-my-fault style, Attorney General Knudsen’s office, through its spokesperson Emily Flower, had this to say about Judge Seeley’s decision:

This ruling is absurd, but not surprising from a judge who let the plaintiffs’ attorneys put on a weeklong taxpayer-funded publicity stunt that was supposed to be a trial. Montanans can’t be blamed for changing the climate — even the plaintiffs’ expert witnesses agreed that our state has no impact on the global climate. Their same legal theory has been thrown out of federal court and courts in more than a dozen states. It should have been here as well, but they found an ideological judge who bent over backward to allow the case to move forward and earn herself a spot in their next documentary.

Lawyers across the Country are familiar with the old saw: “If you don’t have the facts, pound the law. If you don’t have the law, pound the facts. And, if you don’t have either pound the table.”

Now, based on Judge Seeley’s decision, the State’s non-defense, and the Attorney General’s response, we can add a fourth piece to this foregoing bit of conventional wisdom:

“And when you show up for trial with nothing but your empty briefcase, pound the Judge.”

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