Holding court 

Justice Nelson talks radical decisions, disappointments and “the last big civil rights hurdle”

Dim rays of sunlight fall on boxes inside the Capitol Complex office of outgoing Supreme Court Justice James C. Nelson, each labeled with the name of a high-profile lawsuit. “Citizens United” and “Donaldson” rest among many others.

A trace of sadness enters Nelson’s voice when he talks about his Dec. 31 retirement, when he’ll be replaced by Choteau District Judge Laurie McKinnon. “It’s bittersweet,” he says.

He already looks and sounds different. Justice Nelson wore a black robe and developed a reputation for grilling attorneys from the bench. But on a mid-December day the 68 year old wears a pink striped shirt and khakis and speaks softly, making him seem anything but intimidating.

Since he was appointed by Gov. Marc Racicot in 1993, Nelson has helped decide some of Montana’s thorniest legal debates. He penned the majority opinion defining a woman’s right to have an abortion and he’s decried law enforcement oversteps. The justice has also persistently pushed to advance gay rights.

Nelson’s progressive interpretation of the Montana Constitution has made him a target of the right and earned him something of a cult following from the left. Last spring, for example, after a hearing on same-sex partnership benefits during which Nelson grilled a state attorney on his legal rationale for denying such unions, one Missoula legislator elevated Nelson to rock star status. “Justice Nelson is the new Mick Jagger,” tweeted Rep. Ellie Hill.

Social conservatives, in contrast, have accused Nelson of venturing too far into lawmaking. Nelson doesn’t see it that way.

“In terms of implementing the provisions of the constitution, making sure the law is followed, those sorts of things,” Nelson says, “there’s no more powerful office in the state than being a Supreme Court justice.”

In 1989, Linda Gryczan returned to her mother’s home state of Montana. She had lived here as a child and young woman and was ready to leave urban life in Seattle for a quieter one in Helena.

At the time, gay sex was a felony in Montana, punishable by 10 years in prison and a $50,000 fine. As a lesbian, Gryczan found it incomprehensible that she could be prosecuted for being in an intimate relationship with a woman.

Gryzcan and a handful of other gay rights advocates first asked lawmakers in 1989 to remove the “deviate sexual conduct” law. It didn’t work, Gryczan recalled in an interview last summer with the Independent. “What I remember about that is being called ‘slime’ at a public meeting by an elected official,” she said.

After attempting during two subsequent legislative sessions to persuade the legislature to change the law, Gryczan realized that they weren’t getting anywhere. She and five other plaintiffs took their fight to court.

When Gryczan v. State of Montana finally made its way to the Montana Supreme Court in 1997, the plaintiffs found Nelson sympathetic. In the majority opinion, he wrote at length about the right of all people to be free of unnecessary government intrusion.

Six years before the U.S. Supreme Court found sodomy laws unconstitutional, the Montana court used the Gryczan case to unanimously strike down such prohibitions.

Nelson remains a steadfast supporter of gay equality. “I think that the gay rights issue is probably the last big civil rights hurdle that we need to at least begin to overcome in this society,” he says.

Despite post-Gryczan gains toward equality, including a 2004 Supreme Court mandate that now requires the Montana University System to provide domestic partnership benefits to same-sex couples, Nelson was frustrated by the court’s decision last month on a historic lawsuit, Donaldson, et al v. State. The case was filed on behalf of six same-sex couples who sought a mechanism to secure partnership benefits for gay couples statewide.

In a 4-3 decision, the court refused to declare that denial of such benefits is unconstitutional, as the plaintiffs had requested. Instead, it sent a portion of the case back to district court for further debate.

“That was a big disappointment for me, personally,” Nelson says.

In a scathing 109-page dissent, Nelson railed against his colleagues, accusing them of perpetuating discrimination to avoid a politically unpalatable decision.

“I have never disagreed more strongly with the Court as I do in this case,” Nelson wrote.

Nelson says part of his frustration stems from feeling that the debate over gay rights has already been shaped for far too long by a small, yet vocal, minority.

“The majority of people, at least from statistics I’ve seen, the majority of people don’t have a problem with gay rights—or even gay marriage, you know? But it’s the few squeaky wheels that get all of the press and all of the grease, unfortunately, that cause the problem,” he says. “It’s asinine.”

In 1993, James Jeremiah McIntyre purchased a 10-acre parcel of property with a ranch house and outbuildings near Waterloo, southeast of Butte. The heavily wooded property was fenced and cordoned off with locked gates. “No trespassing” signs were prominently posted.

In the summer of 1994, a member of the Southwest Montana Drug Task Force positioned himself on a neighboring property and used a heat-sensing device to measure building temperature on the McIntyre property.

Law enforcement found an outbuilding emitting considerable heat, leading them to believe it was a marijuana grow operation. Using the heat readings as probable cause, police obtained a search warrant. Once inside the property, they discovered 23 pounds of drying cannabis and 239 marijuana plants.

Police arrested McIntyre and his two partners, James Robert Siegal and Doyle Wayne Jones, and charged them with felony criminal possession with intent to sell and criminal production or manufacture of dangerous drugs.

The men moved to toss the search findings. Their attorneys argued that law enforcement’s use of the heat readings violated their constitutional right to privacy.

The court agreed. Nelson authored the unanimous majority opinion. He didn’t mince words.

“We believe that Montanans would be shocked and consider it a gross invasion of their privacy,” he wrote, “to learn that the government could, without their consent and in the absence of a search warrant…surreptitiously monitor the heat signatures generated by activities conducted within the confines of their private homes and enclosed structures for the purpose of drawing inferences about the legality of such activities.”

The Siegal decision came four years before the U.S. Supreme Court found using such technology as grounds to initiate a search unconstitutional.

On the night of April 3, 2005, Leah Gonzales was working at Town Pump on East Main Street in Bozeman. Just before 10, a man entered the store wearing a ski cap. He held a knife to Gonzales’ throat and demanded money.

Gonzales was able to dial 911 without her attacker realizing. Law enforcement responded to find the Town Pump dark. According to court documents, minutes after officers arrived, the assailant forced Gonzales, who was six months pregnant at the time, into a restroom. He then raped her. Police didn’t realize the assault was happening.

The assailant was later identified as Jose Mario Gonzalez-Menjivar. He was immediately arrested when he left the store just before 10:30 that night.

When Gonzales came out of the Town Pump barefoot and wearing an apron, officers told her to show her hands and to lie on the ground. Gonzales complied. She was handcuffed as police detained her for roughly 30 seconds.

Menjivar pleaded guilty to rape, robbery and aggravated kidnapping. He was sentenced to 180 years in the Montana State Prison.

Gonzales sued Bozeman and Gallatin County law enforcement agencies and several individual officers and deputies. She claimed they were negligent and allowed Menjivar to rape her. She also alleged that police improperly arrested her when she left the store.

The Montana Supreme Court dismissed Gonzales’ claims, citing what’s known as the “public duty doctrine.”

“Basically the public duty doctrine says that—and this is a logical absurdity—if the government or a police officer, or someone owes a duty to everybody, they don’t owe a duty to anybody,” Nelson explains.

He believes the court’s standing interpretation of the public duty doctrine makes it difficult to hold government employees responsible for wrongdoing. Despite Nelson’s arguments, a majority of Montana justices agreed to dismiss the case. He says the court’s decision on the case marks one of the biggest disappointments of his time on the bench.

In the final days of 2011, The New York Times, Huffington Post and other national publications ran stories detailing how the Montana Supreme Court thumbed its nose at the U.S. Supreme Court.

The headlines—and the legal debate—stemmed from a 2010 split decision by the U.S. Supreme Court on Citizens United v. Federal Elections Commission. The U.S. Supreme Court then overturned a federal law that had prohibited corporations and unions from using their funds to directly influence federal elections.

To some legal experts, it seemed clear that the federal court’s decision on Citizens United cued the demise of Montana’s 100-year-old campaign finance law, called the Corrupt Practices Act. Passed by voters in 1912, the law constituted an effort to reel in the power of the Copper Kings, who used their deep pockets to exert influence over electoral politics. The 1912 law banned direct corporate spending on political races.

In a 2011 lawsuit, Western Tradition Partnership, now called American Tradition Partnership, argued that the state’s campaign spending limitations violated free speech protections.

Despite the federal court’s decision in Citizens United, the Montana court tried to hang onto the Corrupt Practices Act. In a 5-2 decision, Montana justices cited the state’s unique history of fending off Copper King influence when they said that Montana had a compelling reason to continue enforcing campaign finance restrictions.

Nelson smiles when he talks about the case. He didn’t agree with his colleagues. Nor did he agree with the U.S. Supreme Court. “Not often you get to raise hell with your own court and the United States Supreme Court,” he says.

In his dissent, Nelson decried the precedents that shaped the federal court’s decision. “It is an affront to the inviolable dignity of our species that courts have created a legal fiction—human beings—to share fundamental natural rights with soulless creatures of government.”

He used even more colorful language when telling his colleagues in Montana that the state’s unique history does not make it immune to federal supremacy.

“The notion argued by the Attorney General and adopted by the Court—that these characteristics entitle Montana to a special ‘no peeing’ zone in the First Amendment swimming pool—is simply untenable,” Nelson wrote.

click to enlarge Missoula Independent news
  • Justice James C. Nelson

Last June, the federal court reversed the Montana court decision, effectively burying the Corrupt Practices Act. The suit opened the door to a flood of campaign spending and, because of its breadth, marks one of the most significant cases of Nelson’s career.

Now, looking back at his court tenure, Nelson makes a point to say that, for all of his fiery criticism of the status quo, he can’t imagine a better job.

“I think I come off sometimes as being overly critical of the court,” he says. “I’m not. I think this is probably the best job in the world.”

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