12 December 2022 — 0638 mst

The Rule of Law or the Rule of Lie

Guest Essay By James C. Nelson
Justice, Montana Supreme Court, (Ret.)

Lawyers and judges understand and, hopefully, respect the rule of law. This is a very simple principle which informed the writing and adoption of the federal constitution. This principle was carried through into states constitutions. The rule of law is fundamental to our democracy. It is defined as a principle under which all persons, institutions, and entities are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated, and consistent with international human rights principles.(1)

Stated another way, the American Bar Association defines the rule of law as a set of principles, or ideals, for ensuring an orderly and just society.

Many countries throughout the world strive to uphold the rule of law — where no one is above the law; where everyone is treated equally under the law; where everyone is held accountable to the same laws; where there are clear and fair processes for enforcing laws; where there is an independent judiciary; and where human rights are guaranteed for all.(2)

At both the national and state levels our democracy is failing those criteria in many respects systemic racism, misogyny, and demonization of LGBTQIA+ people, for a very short list.

However, my interest, here, is to address that part of these definitions which requires an independent judiciary. Indeed, without a fair, independent and impartial judiciary, the rule of law falls apart because without that sort of judiciary, there is no institution to enforce the rule of law.

Many in government and in our society seem to have forgotten that our tripartite systems of government consist of three co-equal branches:(3) the executive, the legislative and judicial. Co-equal means that the judiciary (the non-political branch) is equal to the legislative and executive branches (the political branches) in rank, ability and extent.

To be sure, each branch is invested with its own separately defined powers. Importantly, these separate powers are not to be intruded upon by the other branches. This constitutional principle is called the separation of powers, and is embodied in Montanas Constitution at Article III, section 1, as follows:

With this constitutional principle, the framers of our federal and state constitutions crafted another constitutional mandate each branch serves as a check and a balance on the other two.

Montanas attorney general, executive and legislature seem not to understand these principles, much less the constitutional mandates underlying them.

Indeed, since the present administration took office in 2021 there has been a concerted and directed effort by persons, institutions, and entities to demonize, marginalize and politicize the judiciary and the courts. And as a consequence, to destroy the rule of law.

Setting aside those at the national level, these efforts in Montana, are stunning, and include, by way of non-exclusive examples:

• making baseless and vague charges of improprieties designed to lessen the reputations and integrity of members of the Supreme and District Courts and to destroy Montanans trust in the court and judiciary;
• causing one Justice to have to (successfully) litigate his being subpoenaed by the legislature;
• seizing judges emails off the Department of Administration server (many of which contained case-sensitive information and information pertaining to the deliberations of the court);
• subpoenaing members of the Supreme Court and Court documents for investigative purposes;
• the Attorney Generals office blatantly refusing to comply with a Supreme Court order;
• the legislature and Governor summarily scrapping the Judicial Nomination Commission and the merit selection of judicial appointments and replacing the merit system with a patronage system controlled solely by the Governor;
• resurrecting the plan of electing Supreme Court justices by district, and ignoring, in the process, precedent which had determined the district-election plan was unconstitutional. Indeed, this plan was and is simply a scheme to elect partisan justices from gerrymandered districts;
• trashing Judges and Courts as being partisan and activist;
• Turning the most recent Supreme Court retention election from, what should have been a nonpartisan contest, into a partisan free-for-all, with a hand-picked partisan candidate, financed in large part by money from the Republican State Leadership Committee;
• And, finally, proposing a mind-boggling list of court and tort reform bills to be considered and no doubt enacted in the 2023 session by the Republican super-majority in the legislature.

And why is this jihad on the judiciary and the courts being perpetrated by the two political branches? Quite simply, it is a power-grab with the goal of establishing an authoritarian government of the party, by the party and for the party.

The Courts are always a thorn in the side of the political branches when those play fast and loose with the Constitution and the rule of law. Our system of laws and, most importantly Montanas Constitution at Article II, section 16, guarantee that [c]ourts of justice shall be open to every person, and speedy remedy afforded for every injury of person property or character. . .. Right and justice shall be administered without sale, denial or delay.

And, when the legislature and executive enact laws which violate the Constitution, which take away the fundamental rights all Montanans are guaranteed, which deny right and speedy justice, then it is the right of We the People to challenge those laws in fair, impartial and independent courts. And, when those laws are duly and fairly litigated and found wanting, then it is the solemn duty of the courts and judges to declare those laws unconstitutional.

The judicial branchs denying the political branches the power to violate the Constitution and the rule of law with impunity that is what prompts the rage of the legislature and executive; that is what fuels the political branches war on the judiciary including the partisan attacks, demonization, marginalization and spreading of distrust. The political branches dont like to be told what they cannot do even when what they do violates the constitution and the rule of law.

Thats when the political branches accuse the courts and judges of being partisan and activist.(4) This charge is a lie. Yet, right out of Donald Trumps authoritarian playbook, the executive and legislature then declare themselves to be the victims of their own gaslighting as justification for the jihad against the courts and judges.

In fact, Montanas judiciary is neither partisan nor activist it has not been in the past nor is it in the present. And, it wont be in the future provided voters continue to recognize the lie for what it is, and refuse to put partisan hacks and political flunkies on the bench.

In point of fact, it is not the judiciary that is partisan. What is partisan is the legislatures and executives constant efforts to reform the non-partisan judicial branch into a political branch in the image of and cow-towing to the whims, ideology and aberrations of the majority party.(5)

Nor is Montanas judiciary activist. An activist court is one that fails to follow precedent; that rules to the result desired, instead of to the result dictated by the actual facts and law; that injects partisan and sectarian ideology into its decisions; and that ignores the constitution much like the present U.S. Supreme Court does.

Montanas Supreme Court does not operate in that fashion. However, every time the Court determines that a legislative enactment is unconstitutional, or renders a decision that does not favor some partisan or sectarian sacred cow, then the Court is activist. Actually, that is exactly what a fair, independent and impartial court does rule enactments are unconstitutional when they are and render decisions that accord with the facts of the case and the applicable law, and let the chips fall where they may.

Again, its called the separation of powers, checks and balances and the rule of law. Civics 101 (when our schools used to teach such things).

Indeed, rather than railing against the judiciary, the legislature would be better advised to shoot the message, instead of the messenger. Rather than passing laws that violate the Constitution, the legislature and executive might start governing justly and responsibly for We the People, instead of Just the Party.

In short, the rule of law has become the rule of lie the Big Lie and the lies about Montanas courts and judges.

And if you think it is bad now, wait until the legislature comes to town in a few weeks.

That’s when the rule of law will become the rule of lie on steroids.

(1) https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law

(2) https://www.americanbar.org/groups/public_education/resources/rule-of-law/

(3) See, for example Article III, Section 1 of Montana’s Constitution and Articles I, II and III of the Federal Constitution.

(4) See: https://leaderadvertiser.com/news/2022/apr/14/guest-column-judicial-activism-work-recent-court-r/; https://idahocapitalsun.com/2022/11/16/judge-halts-part-of-montana-wolf-hunting/; https://montanafreepress.org/2022/11/09/incumbent-ingrid-gustafson-retains-montana-supreme-court-seat/ ; https://www.mtpr.org/montana-news/2022-05-20/partisan-politics-are-shaping-montanas-supreme-court-races

(5) See: https://apnews.com/article/abortion-legislature-montana-steve-daines-e9cb65aef75067871a89f677f017fe1a