Understanding of the judicial role is paramount for voters

Frank Morrison

For at least 30 years I have been involved in the discussion of judicial issues, talking to groups ranging from government teachers to eighth grade students, and lecturing extensively before bar and trial organizations regarding the role of courts in our society. I have found there are a number of myths regarding our courts. They are:

? Judges should not make the law but should only interpret statutes and the constitution.

? Judges can appropriately be classified as liberal or conservative.

? Decisions rendered by the Supreme Court should reflect what the justices view as a fair and just result, irrespective of applicable legal principles.

I become particularly discouraged when I hear lawyers, in debating judicial issues, say that judges should quit making the law. Either these people are disingenuous or they were asleep during their freshman courses in law school.

Of course, judges make the law and they must under our constitutional system. As lawyers know, the law consists of (1) common law made by judges, (2) statutory law passed by the Legislature, (3) constitutional provisions. A majority of issues resolved by every state appellate court in the country grow out of the body of common law where there is no applicable statute nor constitutional provision at issue. When Montana became a state, the Legislature by statute adopted the common law of England as the original body of common law for Montana.

The Montana Supreme Court then built upon that English common law developing the body of court made law that exists today. That law, appropriately made by members of the Montana Supreme Court, governs our daily activities.

Where the Legislature has passed statutes, those statutes have to be interpreted and applied by the Montana Supreme Court. Seldom does a given statute neatly fit the facts of a case and so the Supreme Court has to interpret those statutes. First the court looks to the plain language of the statute. If the statute is ambiguous, as is frequently the case, the court then looks to legislative intent, searching out the legislative records reflecting discussions underlying the statute. If the court is unable, either by reference to the specific language of the statute or to the legislative history, to determine the meaning of the statute, the court is then forced to divine an interpretation that attempts to honor the apparent purpose of the statute. Often there are no black or white answers.

The same rules of construction apply to the constitution, which we all know to be the paramount law. During the time that I served on the Montana Supreme Court we developed the doctrine of "independent state grounds." Pursuant to this doctrine of law the Montana Supreme Court need not follow the edicts of the United States Supreme Court except that the Supreme Court of the United States, in interpreting the federal constitution sets the minimum standards for individual rights. Greater rights can be granted under the Montana Constitution. This is true even though the provision in the state constitution is identical in language to that of the U.S. Constitution.

The Montana State Constitution drafted by a convention of Montanans and ratified by a vote of the people grants more rights to the people than any other comparable constitutional document existing today. The drafters of the Montana Constitution guaranteed that the citizens of this state would enjoy a clean and healthful environment. Members of the court were strongly criticized by some for enforcing this language yet these words were not a figment of the imagination of the members of the Montana Supreme Court. The Supreme Court has simply applied the constitutional language as it was written.

What is a liberal judge? Webster's 9th New Collegiate Dictionary defines liberalism as "a political philosophy based on belief in progress, the essential goodness of man, and the autonomy of the individual in standing for the protection of political and civil liberties." Most constitutional scholars would agree that the Montana State Constitution, by recognizing and securing numerous previously ignored human rights, should appropriately be defined as a liberal document. Although the term liberal is badly misused in our political discourse, when applied to judges it should mean that a particular judge would interpret and apply the State Constitution so as to assure individual rights were protected from governmental invasion. Most Montanan citizens would agree that such a judge should be admired, respected, and re-elected.

Judicial "activism" is sometimes equated with judicial "liberalism." Nothing could be further from the truth. An "activist" judge is one who twists and distorts the law so that the result of the case will yield the result that the judge deems to be equitable and just. Many of the most activist judges in both the federal system and the state system, come from the far right wing of the political spectrum. Many also come from the far left wing. The political philosophy of the judge has little if anything to do with whether the judge is "result oriented" or "activist." If a member of the Montana Supreme Court applies the language of the state constitution literally, the result is a maximizing of individual rights which produces a "liberal" result. By literally applying the provisions of the constitution, that judge is adopting a "conservative" interpretation of the document; that is to say the judge is applying the law exactly as it is written. Ironically, since the constitution is a liberal document the conservative interpretation produces a liberal result. We would all be well served by eliminating these terms when discussing the attitudes and propensities of candidates for the bench.

The best judges sitting on the highest appellate court in any state are those with extensive trial experience, a strong and well developed academic grounding in the law itself and a fiercely independent attitude that serves no special interest while adhering to a consistent judicial philosophy.

Our constitutional republic is a brilliantly designed system of separation of powers. The principle function of the judiciary is to protect individual rights against encroachment by the political will of the majority. An independent judiciary has many times saved this country from "mob rule."

It is not the purpose of this column to endorse any particular candidate for judicial office but rather to expand the public's understanding of the judicial role. One thing is for certain. The Supreme Court of Montana wields more power, appropriately given it by the constitution, than most people realize. It behooves all voters to become acquainted with the candidates, to understand judicial issues, and to cast an intelligent vote.

The Montana Supreme Court has been recognized nationally as outstanding for years. Many of the strongest members of the court have been elected by the people and would not have been appointed by the elected politicians. I hope the people continue to function on Nov. 2, 2004, as they have in the past and elect and re-elect people to the Supreme Court of Montana whose qualifications for judicial service are impeccable.

Whitefish attorney Frank B. Morrison, Jr. is a former Montana Supreme Court Justice and is member of the council of past presidents of the Montana Trial Lawyers Association.