The deadline for public comment before a candidate is appointed to the Montana Supreme Court is March 21, and the public beyond the legal community still knows almost nothing about the people who’ve applied to serve on Montana’s highest court (see “Who’s judging whom?” Feb. 27, 2003).
At the suggestion of retiring Supreme Court Justice Terry Trieweiler, the Independent asked the Judicial Nomination Commission—the seven-person board responsible for narrowing down the applicant pool from 15 to five candidates to recommend to Gov. Judy Martz—to post the application materials, including answers to essay questions, on the Supreme Court law library Web site. Gary Marbut, president of the Montana Shooting Sports Association (MSSA), has also requested that the information be posted, in order that his organization might be able to offer informed input during the legally mandated public comment period. On Tue., March 3, commission secretary Randy Bishop informed Marbut that the materials would be mailed to the Independent, but would not be placed online for public viewing.
“It’s just mind-boggling to me,” says Trieweiler, “that [the Judicial Nomination Commission] would devise these questions because they think the answers are important to their determination, and yet they would think that the public, which has a responsibility to comment, isn’t entitled to the same information. If it’s important to them, why wouldn’t it be important to the public?”
Judy Meadows, law librarian at the Supreme Court in Helena, seconds Trieweiler’s concern.
“[Judicial Nomination] Committee Judge Barz and also the Chief Justice [Karla Gray] said ‘No,’ so the chief is my boss and I’m not going to pressure her, but I think it’s unfortunate,” Meadows said. “I don’t know why people are afraid of putting something on the Internet.”
After learning that the applications would not be made electronically available, Marbut said, “My response to that was that maybe 100 people ought to call Randy Bishop and ask for a copy of the 30 pages of the 15 candidates, and by the time they got the thirtieth request for copies, they’d figure out pretty quick it would be a lot easier to put it on the Internet than to make a truckload of photocopies.”
Marbut was notified by Bishop that while the applications would not be made publicly available online, they would be sent to the Independent, which paid over $80 for reproduction fees and shipping for the material.
“Why should the public have to depend on how the media filters this information?” Marbut said. “And of course no paper can print 15 applications when they’re 30 pages long, and the soundbites on TV aren’t going to do it justice. But for those people who are seriously interested and want to pore through the stuff, it should be there.”
Marbut is one of those people. While he admits that he would probably not look at every single answer to each question on all of the applications, Marbut says he would like to survey each applicant in order to find a few that his organization would feel comfortable in supporting through the public comment process.
G. Todd Baugh, a district judge in Montana’s 13th Judicial District in Billings, is considered by some to be the front-runner. Marbut, whose MSSA supported Jim Rice, the most recent new addition to the Supreme Court, notes that Baugh is “spoken well of.”
Baugh’s application for the seat does not provide much detail as to his judicial philosophy, as he essentially declines to answer two important essay questions. To the question of who has influenced the way he views our justice system, Baugh writes, “I can point to no singular event or person.” To the question of what events in his career distinguish him that he is most proud of, Baugh writes, “I would not point to any few items or events.”
Each applicant must also attach a case that he or she has litigated or ruled on. In Baugh’s case, one of the two attached cases may give the public some insight into his position. Baugh chose to display the case of Touch America, Inc. v. Billings, in which Baugh ruled that the city of Billings could not impose a tax on the telecommunications corporation for right-of-way to the public “airwaves.”
The essay answers of John Arnan Warner, district judge in the 12th Judicial District in Havre, are more telling than Baugh’s. Warner writes that one of the qualities which make for a good judge is a realization that “each individual’s rights must be protected, sometimes from the government.” Warner’s essays express reservations about overturning precedent except in situations where precedent “no longer works in the real world, creates an injustice, perpetuates a mistake, or is just plain wrong…” Warner’s sense of humor also comes through when he writes, “I also apply for a job on the Supreme Court because my mother insists.”
Though representatives from both the Montana Democratic and Republican parties have stated that they are not “campaigning” for any candidate—it’s illegal to do so—at a recent meeting of the Bitterroot Pachyderm Club, the club’s treasurer personally suggested that Republicans should encourage Martz to hire Jacque “Jack” Best, of Habedank and Best in Sidney, Mont. In his essays, Best notes that he was most influenced by his first senior partner, Otto T. Habedank, who “taught [him] that [he] could reconcile [his] Christian beliefs with our less-than-perfect legal system.” On a list of ten qualities that he believes most important in a good judge, Best’s tenth listing is “a moral character based on a strong belief in Christian principles.” Two University of Montana law professors have also applied for the appointment.
One is Jeffrey Renz, who teaches constitutional law, civil rights, criminal procedure, evidence and criminal law at UM. Once featured in this publication as an Independent “Freedom Fighter,” Renz argued the first successful case in the U.S. establishing the right of disabled student athletes to compete in high school athletics when their disability delayed their graduation. Renz also litigated the first favorable trial verdict in the U.S. in a Voting Rights Act suit on behalf of Native American voters. Renz has published articles including “The Coming of Age of State Environmental Policy Acts,” and is a member of the American Civil Liberties Union.
Montana Shooting Sports Association President Marbut says that he gets “pretty positive vibrations” from Renz.
“He’s thought of in most circles as a liberal,” Marbut says. “But I think it’s hard to peg anybody on the political spectrum…He tends to be more of a libertarian, I think, or at least as much a libertarian as a liberal, and there are those brand of liberals who I, frankly, like, because they’re so far down that road that, to them, individual rights are really important. It’s sometimes hard to distinguish them from the people who I think of as genuine conservatives.”
Trieweiler, who was generally considered the most liberal justice on the Supreme Court, also feels that political labels can be misleading.
“The terms conservative and liberal are really modern creatures of the Republican party,” Trieweiler says. “Because I don’t see it as liberal to enforce the Bill of Rights. I think that’s a conservative approach to government. But when people like me vote to enforce the fourth amendment or the fifth amendment or the right to privacy, Republicans call that liberal. And yet, it’s really just protecting people from government, which is what conservatives are supposed to do.
But on the other hand, if we vote to protect the environment and it’s bad for business, then they say that government is being interjected into their personal lives, and so that’s liberal. So I just think that they use those terms perversely for whatever they want to accomplish at any given time.”
Whatever you label him, Renz provides one of the more dramatic answers to the question of why he wants to serve on the Supreme Court.
“I want to add one more to the thin black line of judges who have preserved the rule of law in the United States,” Renz writes.
The other UM professor looking to be appointed is Scott Burnham, who has emphasized preventive law in his teaching. Burnham believes that there is “no reason for the court always to act after the fact, after a rule has been violated.”
“Corny as it may sound…I am seeking the position of Associate Justice of the Supreme Court not because of what it would do for me, but in order to serve the people of this great State of Montana,” Burnham writes.
Whoever Martz picks, he or she will have to be a good politician, as the appointed justice will have to run for election in 2004 and again, by electoral technicality, in 2006.
If you’d like to learn more about the candidates briefly described within this article or the ten that were not mentioned, commission secretary Bishop has recommended “Write to me. And if [you] want specific information, I’ll do what I can to provide it.”
Requests should be sent to: Randy Bishop, Secretary of the Judicial Nomination Commission, P.O. Box 3353, Billings, MT, 59103.