Opinion

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Closing Range

Of, By and For the Lawyers?

Analyzing the process for selecting Montana Supreme Court justices

Way, way, waaay down at the bottom of your ballots, but darn important, in the “Nonpartisan-State” section, are two votes concerning Montana Supreme Court justice positions 5 and 6.

Position 6 is currently held by Associate Justice Jim Shea. He was appointed in 2014 by Gov. Steve Bullock, confirmed in 2015 by the Montana Senate to replace now-Federal Judge Brian Morris, and won election unopposed in 2016. He is unopposed in 2020.

But there’s a race for Position 5, and before I discuss it, I must say the way Montana’s constitution mandates how we pick our judiciary – and always has, since statehood in 1889 – stinks. Article 7, Section 8 of the Montana constitution currently reads: “(1) Supreme court justices and district court judges shall be elected by the qualified electors as provided by law” – to terms of eight and six years, respectively. Justices of the peace are elected every four years.

So, in a government of the people, by the people and for the people, judicial selections should be up to the people too, right? In a theoretical ideal perhaps, but in my view, actual practice falls far short.

Can you imagine if, at the federal level, voters were expected to pick the next U.S. Supreme Court justice via competitive national referendum – say to choose between Brett Kavanaugh, Neil Gorsuch, Merrick Garland, or even Elena Kagan after months of self-interested propaganda – aimed not at 100 senators, but straight at millions of minions (just like you and me) through social media?

Nuts! Bonkers!

Back to the Position 5 race. Associate Justice Laurie McKinnon of East Helena is the incumbent, first elected in 2012. She has challengers partly because back in June last year, she announced she was done. Bozeman civil litigator Michael Black, who had previously sought appointment to the Supreme Court by Steve Bullock in 2014, jumped in during July, with family law specialist P. Mars Scott of Missoula entering in November. Then – McKinnon announced she would run again!

As KTVQ reporter Jay Kohn put it in his report about the Position 5 race, “The past two contested Supreme Court races in Montana have looked anything but non-partisan, with tons of out of state dark money flowing into the race.”

Where might Kohn’s “tonnage” come from? A little hint comes from a tobacco lawsuit in Florida, which elects nonpartisan state district judges but has the governor appoint appellate judiciary from a list of nominees. In 2014 at trial, a Florida state jury awarded a woman $6.25 million in compensation and over $20 million in punitive damages. The district judge then reduced the damages to $3.75 million compensatory with no punitive monies.

So, with that big bottom-line difference in 40-percent contingency fees collected on $27 million versus $3.75 million, who stands to gain or lose most?

I already know, so I wasn’t surprised when the latest state campaign reports showed Black leading in money (mostly his), with McKinnon last with barely one-eighth of Black’s cash (mostly hers, and the same applies to Scott). Neither Scott nor McKinnon are taking endorsements, while five retired Montana Supreme Court justices have endorsed Black. For brevity, I’ll focus on Terry Trieweiler, former Montana Trial Lawyers Association president and Trial Lawyer of the Year, pegged by Billings Gazette reporter Jennifer McKee as “the high court’s most outspoken liberal.”

Campaign finance filings show that of Black’s first 10 contributors, six are lawyers, four in either malpractice or personal injury. Two of the 10 are famous Montana Democrats: John Morrison and Celinda Lake.

For McKinnon’s part, three of her top five backers are lawyers, including well-known business counsel/lobbyist John Metropoulos and Flathead Justice Court Judge Paul Sullivan.

Mars Scott? While I didn’t see any “name” supporters, of Scott’s top five, four are lawyers; two family law, one mediator, and a malpractitioner. The fifth? Court reporter.

Seems a shade more of, by, and for lawyers than regular people, doesn’t it? Maybe just a hair partisan, at least in terms of the activist faction of Montana’s court system insider’s club? Well, it’s certainly why I’d rather Montana’s state constitution provided our governor nominate, and our state Senate confirm, Montana’s judiciary.