Thoughts and Observations Regarding the MT
Supreme Court Candidates

By: Gloria Cabada-Leman, attorney licensed in MT and MSSA life member
 
Montana’s Supreme Court Justices are elected by the people, rather than appointed by the executive branch. This includes the Chief Justice, who is popularly elected rather than being selected from among the sitting justices. Supreme Court races in Montana are supposed to be non-partisan, and candidates are not formally affiliated with a political party. Better-funded candidates might send out mailers or print up a few yard signs, but billboards and media advertising are uncommon, and judicial candidates rarely reply to position questionnaires or media questions other than with the blandest, most obvious statements about fairness and impartiality. As a result, unless you’re a Montana lawyer or otherwise involved in the judicial system, most Montanans know very little about the candidates running for Supreme Court seats.
This November, Montanans will elect a new Chief Justice and an Associate Justice to the state Supreme Court, and there are two candidates running for each seat. To date I’ve not had any cases involving any of the candidates, but as an active member of the Montana Bar, I’ve had the opportunity to hear the four candidates speak at three different forums: Two for fellow attorneys, and most recently at a public forum hosted by MSU in Bozeman. My comments below are based primarily on the most recent event, but also include some general conclusions based on my observations across the different events. The following is solely my personal opinion, as a Montanan, a lawyer, and a gun owner.

Chief Justice Candidates: Jeremiah Lynch vs. Cory Swanson

Jeremiah Lynch is in his 70s, was a Federal Magistrate Judge in the US District Court for the District of Montana for 14 years, and also worked as a plaintiff’s attorney representing individuals against predatory lenders, insurance companies and the like. Cory Swanson, the current Broadwater County Attorney, is a military veteran in his late 40s, with a reputation for being tough on crime and with prior experience in private practice with a large law firm. As expected, both candidates consistently speak of their commitment to fairness and impartiality when deciding cases, their support for Constitutional principles and the separation of powers, and the importance of an independent judiciary. In their answers to specific questions, however, stark differences in judicial philosophy, approach and temperament come to light.
Each time I’ve heard him speak, Lynch has repeatedly stated that he believes the Supreme Court needs to be a “counterbalance” against Montana’s legislative supermajority, and he did not back down from such statements at the MSU forum. As in past events, Lynch quickly launched into personal attacks against Swanson, calling him inexperienced and accusing him of being complicit in voter suppression simply because of Swanson’s representation of a particular government client. Lynch described his approach to politically contentious issues such as abortion, the right to vote, and climate change as requiring “very progressive thought” and “pragmatism over textualism” because, after all, times change and one should not be tied to history when interpreting the Constitution. When addressing the topic of abortion specifically, Lynch admitted at the MSU forum that he could not be impartial on issues of women’s “reproductive freedom,” privacy, and the like. This begs the question, on what other issues might he be incapable of being impartial?
At MSU, Lynch appeared via Zoom and did not display the flashes of anger that I witnessed at two previous forums. He did, however, frequently couch his remarks with the phrase, “I don’t want to sound arrogant…” which I found tiresome after a while. More troubling was his claim that “we’re a constitutional democracy” (no, we are a constitutional republic), followed by his declaration that the court’s “fundamental job is to protect individual rights against a supermajority.” He’s made similar statements before, which to me indicate hostility against the legislature and a fundamental misunderstanding (or even rejection) of the constitutionally defined roles of the three branches of government.
Like Lynch, Cory Swanson remained composed and relaxed at the MSU forum, and this time he seemed better prepared to counter Lynch’s personal attacks. In response to concerns over his lack of prior experience as a judge, Swanson pointed out that Lynch’s experience is limited only to the federal bench, and that many past MT Supreme Court justices had no prior bench experience before sitting on the state’s highest court. He opined that his varied experiences as a prosecutor, in private practice, and overseas in the military would complement the experience of the other Supreme Court Justices. Replying to Lynch’s voter suppression claims, Swanson correctly pointed out that lawyers have an ethical duty to represent their clients through the consequences of “having done something stupid,” and should not simply abandon an unsavory client who has done something wrong. He then brought up Lynch’s past statement in a podcast that Swanson had a “bad soul” for representing that client – something that Lynch did not deny saying, and which gave me pause as to Lynch’s temperament and bias.
In response to questions about his judicial philosophy and approach, Swanson said that judges must always be impartial, and never go into a case assuming that a law is unconstitutional, because our legal system requires a presumption that a law is constitutional unless demonstrated otherwise. Judges should strive to write clear opinions with narrow holdings focused on the specific facts and law before the court, so as to create enduring precedents on which future litigants and judges can rely. Finally, Swanson would like the Supreme Court to schedule oral arguments in more cases, to increase judicial transparency for the public – a point on which Lynch agreed.
Swanson also emphasized that although we are living in a highly politicized climate, the vast majority of cases are not political in nature. Regardless of the issue, judges must always remain impartial, unbiased and refrain from bringing their personal views into the decision-making process. He committed to applying the same methodology to each case if elected, and to uphold Montanans’ constitutional rights while not engaging in policy-making, which is the role of the legislature. This provided a sharp contrast to Lynch’s activist views on contentious political issues like abortion and voting rights. While Lynch described the current legislature as “attempting a power grab” that the judiciary must stop, Swanson pointed out that the legislature is made up of the people’s elected representatives and is the branch specifically tasked with legislating policy. The court’s constitutional role is not to fight the legislature or make policy, but to interpret legislation in the disputes that come before it.

Associate Justice Candidates: Katherine Bidegaray vs. Dan Wilson

As usual, both candidates consistently tout their commitment to and record of impartiality, fairness, adherence to the Constitution, and belief in the separation of powers. Both candidates agree that the Supreme Court should schedule more oral arguments to increase transparency of the judicial process, and issue more written opinions that can be relied upon as binding precedent. Both are experienced state district court judges with diverse experience as attorneys. At every event I’ve attended, both candidates have presented well-reasoned, uncontroversial views, displaying an even temperament that’s desirable for the bench. On the surface, there doesn’t appear to be much difference between these two, unlike the candidates in the Chief Justice race. But once again, the devil is in the details when one listens closely to the particular words and phrases used in response to specific questions.
Katherine Bidegaray has always chosen her words with care, and in the past has used a “less is more” approach when answering questions. At the MSU forum, however, she spoke at greater length and a few revelatory comments jumped out to me. When asked about her judicial philosophy and decision-making approach, she stated that the US Constitution “provides” citizens with basic rights, and that the Montana Constitution “gives” Montana’s citizens additional rights. Which begs the question, does she think that our fundamental rights exist only because the government “provides” them to us? If rights are provided or given by government, can they also be taken away by government? Such beliefs should be of concern to gun owners in particular, because our right to keep or bear arms is a natural or God-given right intrinsically tied to our human nature and not “provided” or “given” by the government, but rather acknowledged and secured in our federal and state constitutions.
In response to the same question, Dan Wilson noted that the Montana Constitution is relatively young, with the deliberations and historical context leading to its adoption being well-documented. Montana’s relatively brief legislative history is also well documented. Judges should therefore look to such history, context and documentation in resolving issues of legislative and constitutional interpretation.
When the candidates were asked about maintaining their impartiality and fairness, Bidegaray said that she always sets aside her personal opinions, values, and beliefs when deciding a case. Wilson agreed that judges must always disregard their own opinions and beliefs, and listen to both sides fairly and impartially without any predetermination, even if it appears that one side is “stronger” at the outset. He explicitly disagreed, however, with regard to setting aside values: Wilson said he would never forfeit his own values for upholding truth and honesty. I found this answer quite refreshing, as it’s always left me uneasy when I hear a judge say that they set aside their “values” (all of them? Even requiring truth and honesty of the parties and witnesses?).
In answering the question about the Judiciary’s role in significant public issues like abortion, voter rights and climate change, Bidegaray said that if the legislature enacts a law or the executive branch takes an action that raises constitutional concern, then the Montana Supreme Court must consider and resolve the issue. In contrast, Wilson stated that the Montana constitution gives the people “leadership” on those issues via their elected legislators, and judges should never get ahead of an issue or announce a ruling before a case is presented and concluded, and must always preserve impartiality. After this exchange, I was left with the impression that Bidegaray may lean towards a more activist judicial approach than Wilson.
In conclusion, the choice in each race seems to come down to the role of the judiciary: Should judges be actively involved in shaping public policy on political issues, and “counterbalancing” the will of the people as enacted by their elected legislators? Or is the judiciary’s role to fairly and impartially interpret and apply the law to the specific facts and legal issues presented by the parties before it? If you prefer an activist judiciary, you may feel more comfortable with Lynch and Bidegaray on the bench. If you believe that Montana’s constitution got it right in clearly defining and separating the roles of the legislative, executive and judicial branches of the government, then Swanson and Wilson are probably a good fit for you.
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MSSA has endorsed Swanson and Wilson.

Best wishes,

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Gary Marbut, President

Montana Shooting Sports Association

Author, Gun Laws of Montana