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Court needs the freedom of deliberation to make sound legal decisions – Daily Montanan [1]

['More From Author', 'July', 'Lars Phillips']

Date: 2022-07-05  

In his June 9 commentary, “Montana Supreme Court must be more open now than ever,” retired-Justice James Nelson argues the Court must allow public participation in its internal deliberations in order to avoid, he believes, losing the court entirely.

Nelson discusses his experience on the court, notably the impartiality of his colleagues and their commitment to the rule of law and the Constitution. From my perspective, as a former law clerk at the court and a current lawyer practicing in Montana, it is beyond dispute that these characteristics are shared by the current members of the court. And this is in spite of the fact that some current Justices have previously held partisan positions.

Justice Jim Rice, for example, was a Republican legislator, and Chief Justice Mike McGrath was a Democratic attorney General. It is unclear to me, then, why Nelson believes the next lawyer to join the court will not be able to cast aside the partisan mantle that he recognizes every other justice has shed.

Further, I disagree with the implication in his argument that the current contest for a seat on the Supreme Court is the first to turn the nonpartisan nature of Montana’s judicial elections “on its head.” Recall the 2014 race between incumbent Justice Mike Wheat and challenger Lawrence VanDyke—a contest that, as Professor Anthony Johnstone at the University of Montana School of Law noted, proved to be the most expensive judicial race in state history. And, as Johnstone concluded roughly two years after the dust had settled, and Wheat had won re-election, “(w)hat most distinguished the VanDyke-Wheat campaign from other campaigns is the extent to which the candidates and their allies openly aired usually subliminal questions of campaign finance, partisanship and related issues.”

We can, and should, make every effort to ensure judicial campaigns remain non-partisan, but exclaiming that this issue is erupting now, for the first time, like some sort of judicial Mount Vesuvius ready to bury the court in partisan detritus politicizes the issue and takes away a frame of reference that might allow Montanans a better understanding of why both Democrats and Republicans place a paramount importance on keeping the court nonpartisan.

In any event, I write to provide the counter-perspective to Nelson’s demand that all of the court’s proceedings and deliberations be open to the public. As he mentions, Nelson made this same argument in 1999. At that time, it was swiftly put down by the cogent response of Justices Jim Regnier and of Justice Bill Leaphart. Those opinions are worth reading in their entirety, as is Justice Nelson’s dissent in Goldenstein vs. Commission on Practice, but a partial summary of their thoughts is helpful to understand the context surrounding this issue.

Both justices believed that opening the court’s deliberations to the public would compromise the institution. Justice Regnier thought judicial decision-making functioned best in an environment free from influence by lobbying efforts or public opinion. Nelson contends that peering into the inner workings of the court is necessary to guard against pressure from partisan benefactors—something, by his own admission, he has never witnessed on the court. But even if partisan influence was perceived to permeate our court system again—as it did in 1901, when the Copper King F. Augustus Heinze had, allegedly, Judges William Clancy and Edward Harney in his pocket—the current system adequately guards against this potentiality. Every opinion issued by the court is signed by the Justices that join it. If a particular justice was obligated, as Nelson implies, to deliver for a certain benefactor, they could write separately and concur in, or dissent from, the opinion—something Nelson himself did far more regularly than many members of the court. Those decisions are public, allowing the individual to be held accountable. We should remember that the corruption of Clancy and Harney was made abundantly clear because of the opinions they issued—binding decisions with the full weight of legal authority—not because of the notes they might have received from Heinze.

And Leaphart framed the potential harm caused by Nelson’s proposal in a similar way: “Opening judicial conferences to public observation would thwart fruitful candid discussion of issues; expose justices to political pressures; and encourage parties to act upon conference votes and proposed opinions that often differ from final published judicial decisions.” The public is experiencing the realities of this concern today, as we awaited the leaked Dobbs decision. I strongly doubt Nelson believes the United States Supreme Court, as an institution, has been strengthened by the leak of that opinion.

Additionally, from my perspective, Nelson’s proposal is simply contradictory to the very nature of our adversarial legal system. In every case, one side will agree with a court’s decision and one side will not. As my father, a retired-district judge in central Montana, used to say: You make half the people angry all the time, and all of the people angry half the time.

Further, I believe Nelson is far too quick to disregard the value of frank communication among the members of the court. Does he seriously contend that someone speaks the same in a small confidential group setting as they do when they are speaking in full view of the public at large? Is there not a value in being able to be wrong, or in being able to change your mind, without such circumstances being on full display?

Lars Phillips is an attorney who lives in Park County.

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