Nelson v. Younkin 

Not your average horse race for Supreme Court

Come November, Montanans will get the chance to retain Supreme Court Justice Jim Nelson or replace him with challenger Cindy Younkin. While this year’s ballot is filled with important races and issues, perhaps none hold the potential to affect the future of Montana as greatly as Nelson v. Younkin.

I will admit, right out of the chute, that I do not personally know Jim Nelson. From all that I have read and heard, he is a self-made man who worked his way through law school, attained a position as a county prosecutor running as a Democrat, and was then appointed to the Supreme Court by Republican Gov. Marc Racicot. During his stint on the court, he has been characterized as a fair and unbiased justice, not particularly known for knee-jerk reactions toward liberal or conservative issues, whose opinions rest on the legal merits of each case individually.

I wish it were possible to say the same about Cindy Younkin, but given my personal experience with Younkin during her time as a representative in the Legislature, any characterization that painted Younkin as fair, unbiased or non-partisan would be a flat-out lie. For those who have not been following the life and times of Cindy Younkin, perhaps a quick review would be useful. Born in Nebraska in 1958, Younkin came to Montana with her family in 1964, graduated from Manhattan High School, took a bachelor’s degree in microbiology at MSU and received her law degree from Lewis and Clark College in Portland. She then joined the Peace Corps and spent two years in the Fiji Islands.

Then, in 1995, Gov. Racicot appointed her to the state’s Board of Environmental Review, where she served as chairwoman until 1998. It is the job of this quasi-judicial board to oversee the operations of the state’s Department of Environmental Quality and to vote on a wide variety of appeals on environmental permits issued by the agency. It was in this role that Younkin’s bias of favoring industry over protection of the environment first became evident. But it was not destined to stop there.

After being elected to the Montana House of Representatives in 1998 from Bozeman’s District 28, Younkin went after Montana’s environmental laws with real passion. In her first session, serving as vice-chairwoman of the House Natural Resources Committee, freshman legislator Younkin earned a dismal 11 percent environmental voting record from Montana Conservation Voters.

In the 2001 legislative session, the Montana Conservation Voters wrote that Younkin “led the charge to cripple the Montana Environmental Policy Act and kill many pro-active conservation measures.” That’s putting it mildly.

During the interim between the 1999 and 2001 legislatures, Younkin served on an 18-month interim study committee to review the effect of one of the state’s bedrock environmental laws, the Montana Environmental Policy Act, more commonly known as MEPA. The law has regularly come under fire from industry lobbyists and their legislative allies as an onerous, time-consuming, project-stopping blockage to extractive activities.

Yet, after an extensive review by the bi-partisan committee, a chunky 180-page report concluded: “The MEPA process is resulting in state agencies making ultimately better decisions.” The report went on to say that: “It appears that the more complete the environmental document, the more likely the state is to prevail in litigation.”

In spite of serving on the committee that studied the law and produced those positive conclusions, Younkin went on to sponsor an industry-backed bill that gutted MEPA’s power to protect Montana’s environment by defining it as a procedural, not substantive, law. In other words, unless there is another statute on the books that specifically regulates an activity that may harm human health or the environment, MEPA cannot be used to do so.

To make a long and sorry story much shorter, suffice it to say that Younkin’s actions in 2001 sparked environmental protests across the state and earned her a bleak 12 percent environmental voting score from the Montana Conservation Voters. Following hard on the heels of her “achievements” in 2001, Younkin went on to chair the House Natural Resource Committee in 2003, earning a pitiful 7 percent on the Conservation Voters legislative scorecard.

Younkin’s legislative record speaks volumes on where her biases lie in regard to industry versus the environment. It is, however, her willingness to break the rules to accomplish her goals that makes Younkin questionable, at best, to sit on Montana’s highest court.

It is no secret that Republicans have tried for years to bust Montana’s permanent Coal Tax Trust Fund. So when the measure came to the House floor in 2003, Cindy Younkin, now a Majority Whip for the Repubs, was chosen to chair what promised to be a highly contentious floor session. Unlike the Senate, where the numerical votes for and against any issue are electronically posted for all to see, in the House the only running tally of votes is on the Speaker’s rostrum—where Cindy Younkin was presiding.

As the debate drew to a close, Younkin followed standard procedure and directed legislators to cast their votes for or against the measure. But then, knowing the bill was going down because she could see the running vote tally, Younkin refused to order the clerk to “record the vote.” Instead, as a chorus of boos and hisses rose from the floor of the House over the blatant procedural manipulation, Younkin pleaded from the Speaker’s rostrum: “We just need one more vote.”

As luck would have it, in the end the measure failed—but Younkin’s reputation had been forever stained by her attempt to tamper with the voting process. That Younkin is currently being sued for malpractice by the city of Clyde Park may also give voters reason to question her legal capabilities.

But for those of us who watched her manipulate the vote on the floor of the House that day, sitting on Montana’s Supreme Court is the last place we would ever want to see Cindy Younkin.

When not lobbying the Montana Legislature, George Ochenski is rattling the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.

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