Guest Column

Montana Has a Supreme Problem

Our Supreme Court Justices must think they are the executive branch and the legislative branch all rolled into one

By David Howard

Our Supreme Court Justices must think they are the executive branch and the legislative branch all rolled into one! They may even believe they are the new oligarchy in charge of Montana. Whatever their problem, it is manifesting itself in executive and legislative authority being usurped by Montana’s Supreme Court.   

The examples are legion of our judiciary overstepping their authority. Consider this: can you imagine the Supreme Court of Montana threatening the Montana attorney general’s state attorneys with disbarment if they continue to look into the court’s wrongful, maybe even illegal activities? 

Montana’s Attorney General Knudsen said, “There is also some irony in accusing these fine attorneys of disrupting the administration of justice when their client’s (the people) argument is that it is constitutionally, legally, and ethically improper for the court to attempt to administer justice in this matter.” 

The real question is, what is our Supreme Court hiding? Montana law specifically instructs judges “simply to ascertain and declare what is in terms or in substance (of the law), not to insert what has been omitted or to omit what has been inserted.” When judges legislate from the bench, they violate six clauses of the Constitution of the State of Montana (namely, The Legislative Power Clause, The Popular Sovereignty Clause, The Self-Government Clause, The Judicial Power Clause, The Separation of Powers Clause, and the Oath of Office Clause) and they also violate five laws of the State of Montana.

Despite those provisions, we know they have been making law from the bench for years, which is malfeasance of office through their own admission. There are hundreds of examples of their admission written in their own dissenting opinions. Here are a few: 

The Supreme Court of Montana expressed their clear understanding of the statutory role of a judge in City of Missoula v. Iosefo, 330 P. 3d 1180 (2014), wherein Justice Beth Baker admitted that when considering the construction of instruments, the Supreme Court of Montana was required to “Apply the plain language of the statute…; we cannot ‘insert what has been omitted.’ Section 1-2-101, MCA.” 

Additionally, current Justice Jim Rice, in Bates v. Neva, 339 P. 3d 1265 (2014), complained in a dissenting opinion that the Supreme Court of Montana had “read into § 49-2-305, MCA, an expansive and altogether new application of the statute that the Legislature did not provide… [T]he Court’s interpretation distorts the plain wording of the statute.”

The problem is accountability. We elect our judges in Montana, but they are getting away with judicial activism by usurping the law and now threatening the people’s attorney general. These usurpations add up over time and have a profound cumulative effect as the judiciary slowly takes the place of our representative government and imposes law by judicial fiat. This has to stop!

David Howard is a Republican state senator from Park City.

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