I began my legal career by working as a public defender, representing indigent defendants charged with criminal offenses in state and federal courts, and juveniles cited into youth court. During that time, I gained invaluable trial experience, including obtaining a not-guilty verdict after a homicide trial. I regularly challenged the constitutionality of police actions in criminal proceedings, and argued a constitutional issue regarding a juvenile’s right of physical liberty before the Montana Supreme Court. After four years, I turned my focus to civil practice, representing individuals and small businesses in litigation, as well as doing domestic, workers compensation, social security, property, contract, and estate work. I did not represent insurance companies or large corporations. In over 20 years as a supreme court justice, I have researched and written decisions in virtually every field of law.

Not every court is overburdened, but many labor under high caseloads, particularly in urban areas. Overall, the system is burgeoning at the seams, and still recovering from the delays caused by Covid. Increased filings are caused by root issues of chemical use/dependency and mental health, such as violent/sexual assault and child abuse, and crimes related to drug/human trafficking and gang activity. While the rate of increase in child neglect cases has leveled off, they remain high. Covid did bring a silver lining: more courts are using video technology to conduct cases remotely, increasing efficiency and coverage in rural areas. However, high caseloads have contributed to delays in case resolution, and with our growing population, the Legislature must consider creation of additional district courts to manage the need. The Court has approved, as a pilot project, rules for streamlined proceedings for minor civil cases and mediation for domestic cases to encourage prompt case resolution.

The most recent study of racial disparity in Montana criminal sentencing was initiated this year by the Court out of a concern that courts be sensitive and pro-active. The study found no observed disparity in the LENGTH of incarceration sentences — specifically, felony property crimes, sexual/violent crimes, drug crimes, and DUI convictions were found to be racially neutral. The study did find there were differences between prison commitments VERSUS commitments to the placement discretion of the Department of Corrections for public order crimes, such as failure to register as a violent/sexual offender, and the crime of criminal endangerment, but cited the need for further data. In sum, the Court has been diligent to address racial disparity wherever it is found, such as jury selection, ensuring persons are not excluded from service on the basis of race. The advancement of tribal court systems and federal funding for tribal law enforcement promise to provide enhanced racial sensitivity.

The question highlights what a recent study identified as a primary public misconception about the law — an “absolutist understanding of rights.” People fault courts for failing to adequately protect the rights of concern to them, or for protecting rights they oppose, thereby fueling ill-will toward the courts and societal conflict. But rights are not absolute; all are balanced against competing rights or limiting principles necessary to ensure that all constitutional provisions are given effect. The law gives greater weight to particular rights in different contexts. The right to privacy is generally considered broad, but in a case involving the public’s right to know, the law presumes government information will be disclosed, and a claimed privacy interest must give way unless significant enough to clearly outweigh the right of disclosure. Thus, a report about a public official’s malfeasance would not likely be outweighed by his privacy interest in his personnel file.

The Court must protect the constitutional principles governing the judicial branch, notably, its exclusive role to declare what the law is and to adjudicate the actions of the other branches of government. I have stressed these principles in judicial opinions, in public forums, and in a lawsuit I filed when the Legislature improperly subpoenaed the justices’ communications. However, this authority is not absolute, and the Court has no police force to enforce its orders. Rather, the Court draws requisite support from the citizens by staying within its own constitutional parameters: acting impartially, not legislating or making policy decisions, deferring to the work of other branches, and following precedent for predictability and stability. As Watergate Prosecutor Archibald Cox said, “The power of the Supreme Court to command support depends on a sufficiently widespread conviction that it is performing the functions assigned to it, and only those functions, in the manner assigned.”