State’s high court may have gotten the law right and history wrong

June 24, 2021 5:25 am

The seven seats and court of the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

If there’s a cancer in politics in today, it’s that we’ve forgotten something that used to be taken for granted and went without saying: Reasonable, intelligent people with integrity can come to different conclusions about the same subject without the disagreement being evidence of some conspiracy or moral flaw.

By default, the other side — regardless if you’re liberal or conservative, Democrat or Republican — is not just wrong, but morally bankrupt and often evidence of a conspiracy bordering on treason. Sometimes rhetoric on both sides of the political aisle is overheated.

The byproduct of this type of political combat is that it ends the conversation — and that’s too bad.

Now that the decision by the Montana Supreme Court about how judges are appointed is finished, I’d like to reconsider the decision made by the six justices. In other words, continue the conversation.

A few disclaimers: I am not a lawyer. I don’t believe there were any conspiracies about the way this case was handled. Speaking of that, I also believe the majority ruling was thoughtful, defensible and a serious treatment of the questions posed to the court. Because of that, I fully understand and respect the court’s final decision.

However, at the risk of being arrogant, bold or completely out of my  league: I respectfully disagree.

In what is probably the best example of what I can imagine, Montana’s high court did exactly what conservative politicians are always dreaming about: The six justices (and even Justice Laurie McKinnon’s dissent) did not insert what was omitted or omit what was plainly in the law. They took the meaning of the words and looked to the framer’s intent (a lot easier to do that with a 1972 Constitution than the state’s original 1889 version).

Unlike politicians, the justices also didn’t answer the questions they may have rather answered, instead opting to stick to the questions raised by the attorneys in this case. For example, in Justice James Jeremiah Shea’s majority opinion, he clearly stated the court’s decision wasn’t a judgment as to the quality of the new method of appointing judges that was adopted by the Legislature and approved by the governor. Instead, the ruling answered the question of whether the new law, Senate Bill 140, fit within the legal framework of our state’s Constitution.

“In the final analysis, however, it is not the function of this court to determine which process we think is the better process for making judicial appointments — it is to be determined whether the process prescribed by Senate Bill 140, which is presumed to be constitutional, complies with the language and constitutional intent of Article VII, Section 8 (2). We conclude that it does.”

While I tend to be more persuaded by Justice Laurie McKinnon’s dissenting opinion that the specific language of Montana’s Constitution suggests a process whereby a slate of candidates are forwarded to the governor, undercutting the argument for direct appointment, the majority of the court believed SB140 still fit the framework.

That’s the thing about the rule of law: I can be disappointed and disagree all I want. Still, it’s the law.

However, from a historian’s perspective, I believe that the court focused so intently on the mechanics of the law and state Constitution — that is, the specific clause and the careful reading of the words — that the justices missed the much larger historical point.

The whole purpose of the 1972 Constitutional Convention and the refashioning of our state’s most important controlling document — in essence, the government’s own contract with every resident in the state — was to change the way the judiciary works. Nothing speaks more clearly to the ’72 delegates’ dissatisfaction than the fact that they abandoned the previous way of selecting judges. In that respect, I fear the current Supreme Court may have missed the overarching meaning of the document they were interpreting. The move away from governor-appointed judges is as important as the specific system they designed.

The Constitutional Convention was called because Montana leaders had become convinced that the original state Constitution that was passed when the Treasure State entered the Union in 1889 had become irretrievably broken by the corrupting influence of large corporations and weak-spined politicians.

They opted to throw the old one out in order to design a system that could implement safeguards to better protect the state’s people and environments. That document was a direct response to the corruptibility of politicians and an indictment of a system that could be manipulated to favor out-of-state interests or the will of just a few powerful, rich elite.

That’s why the Supreme Court’s ruling can be legally on-point and historically wrong.

While the high court decided that Senate Bill 140 fit within the language of the Constitution, it ignores the purpose of the section that discusses judicial appointments.

The “old” Constitution called on the governor to appoint judges directly. However, that was a system open to politics of the worst kind, and before the original state document was tossed, a slew of judges had been appointed who were favorable to the big, corporate out-of-state mining interests that took anything of value from the ground and left the state to deal with the environmental and economic disasters when the markets shifted.

Still stinging from those judges, the delegates to the Constitutional Convention made a deliberate choice to change the system by which judges are appointed in order to safeguard the courts from the corruptibility inherent in politics.

If the system of judicial appointments had been so good before 1972, then it stands to reason the system would not have been changed and the topic would not have been debated. That the authors and delegates of the ’72 “Con-Con” made the change is the most compelling reason to doubt that they would have approved of reverting back to a system that had failed to protect the state’s citizens.

The question the court sidestepped in its ruling is: If the Constitution allows for the direct appointment of judges by the governor, why was it changed in the first place?

It’s hard to imagine the language and system was changed that drastically just to wind up with the same result.

The decision obviously stands, and Montanans will now see if the quality of the judiciary improves, erodes or if this column is nothing more than historical hand-wringing.

Who knows? Maybe history won’t repeat itself.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.