NATELSON: Montana’s Supreme Court Reminded Us Why It’s America’s Worst Court


Robert Natelson Senior Fellow, Independence Institute
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A recent case from the Montana Supreme Court helps ensure that in any objective ranking of state appeals courts, it will remain near the bottom. Keep reading even if you are not from Montana: This article is a lesson on how judges should not conduct themselves.

The case was Espinoza v. Montana Department of Revenue. The Montana legislature enacted a law permitting income tax credits of up to $150 for donations to school-scholarship charities. The state department of revenue issued a rule purporting to re-write the law, and the plaintiffs challenged the revenue department’s authority to do so.

Instead of focusing on the question before it, the justices wandered afield to void the entire tax credit program. They thereby left untold numbers of children without scholarship support.

Moreover, they killed the program without affording its supporters a fair opportunity to defend it. As Justice Jim Rice wrote in dissent, “[N]o challenge to the statute was made within the proceeding, and, consequently, the issue was not noticed, briefed, or argued. . . . Striking a statute under such circumstances, including . . . [without] an opportunity for the parties and Attorney General to argue the issue, is a violation of due process.”

The Espinoza case is the latest in a long line of decisions in which the Montana Supreme Court has disregarded basic judicial standards. For example, the court is infamous for creating legal chaos by overturning or ignoring its own precedents. In Espinoza, a previous case was relevant to the tax credit issue in Espinoza, but the court ignored it.

The court also has a practice of seizing constitutional cases from state trial judges and issuing summary decisions of its own. Even when such cases center on disputed facts, it rarely, if ever, holds contested evidentiary hearings to resolve those facts. It assumes as it wishes, and decrees as it pleases.

In Espinoza the court also violated the U.S. Constitution. Essentially, it held that because of the state constitutional ban on direct or indirect aid to “sectarian” schools, the state may grant tax credits for scholarships only if the state excludes religious schools. But this conclusion directly contradicts a fundamental precept of the U.S. Supreme Court’s First Amendment and Equal Protection jurisprudence: Subject to narrow exceptions, states may not discriminate against religion.

Why could the Montana court not see this? One possible answer is lack of legal competence. In Espinoza, for example, the majority opinion also:

  • assumed that the constitutional term “sectarian” was a synonym for “religious,” although when first inserted in the Montana constitution it had another meaning entirely;
  • jumped to the conclusion that “sectarian” meant the same thing in both the 1972 and 1889 Montana constitutions;
  • cited the comments by the 1972 constitution’s drafters but ignored the (legally more important) understanding of its ratifiers; and
  • adopted a style of writing so clumsy that at times it became unintentionally funny, as when the opinion referred to “inquiries” as “casting nets.”

The court also frequently displays palpable political bias. There is a common saying among Montana lawyers: If you know who the parties are, you know how the court will rule. This evidenced by the court’s consistent and unfair discrimination (see also here) between conservative and liberal ballot issues.

At times, the U.S. Supreme Court (SCOTUS) has felt compelled to intervene.  In 2012, SCOTUS promptly and summarily reversed when Montana Supreme Court decreed that normal First Amendment free speech protections do not prevail in Montana. The same year, SCOTUS also reversed when the Montana tribunal issued a decree mulcting a utility company for over $40 million in retroactive “rent.”

Many Montanans are concerned about their supreme court’s banana-republic conduct, and the legislature and voters have tried to respond. However, when the legislature adopted a reform measure, the court struck it down. And when the people enacted state constitutional amendments curbing the justices’ power, the court first crippled and later gutted the amendment process.

No court is perfect. But Montana’s bench may be unique for its disregard of basic standards of justice, the extent of its intervention into the state’s political life, and its high-handed use of power.

Rob Natelson, a widely recognized constitutional scholar, served as professor of law at the University of Montana for 23 years and is now a senior fellow in Constitutional Jurisprudence at the Independence Institute in Denver.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.