Former Montana Law Professor: Lawyers Afraid to Criticize State Supreme Court
"Every lawyer knows that if he criticizes the Montana Supreme Court, he may suffer."
Rob Natelson, a former professor at the University of Montana Law School, told The Montana Chronicles that lawyers in the state are scared to criticize the state Supreme Court.
“Every lawyer knows that if he criticizes the Montana Supreme Court, he may suffer,” he said. Furthermore, Natelson, who was a professor at Montana Law School for 23 years, said that many law professors were “very reluctant to criticize the court publicly.”
Natelson currently serves as the Independence Institute’s senior fellow in constitutional jurisprudence. He spoke to The Chronicles in his own personal capacity on December 28.
State Bar of Montana Executive Director John Mudd told The Chronicles that he “cannot speak for all lawyers,” but he said he never has had a lawyer stop him and say, “gosh John, I’m really scared to criticize the Supreme Court’s rulings.”
Mudd said that the “lawyers who practice before the court seem to have a very favorable view of the court's overall performance.”
The executive director cited a survey the State Bar did in November 2024 that showed 87 percent of lawyer respondents “had an overall favorable view of the court's performance.”
In 2020 and 2022, when the State Bar conducted this survey, lawyer respondents had a 90 percent approval rating of the state Supreme Court.
Natelson said the Montana Supreme Court exercises “a great deal of power” inside the State Bar.
He added that the Montana Supreme Court created the State Bar of Montana. It began in 1974 and replaced the voluntary Montana Bar Association.
“The bar association, whether it intends it or not, serves as basically a blanket on people. In other words, it sort of prevents them from speaking out,” he said.
According to Mudd, the State Bar is “managed by officers and a board of trustees who are elected by its active, in-state members.”
“The officers are elected statewide and the trustees by geographic area. The justices of the Montana Supreme Court actually are prohibited from voting in State Bar elections,” the executive director said.
“The day-to-day operations of the State Bar are financed by its members and supervised by its executive committee and professional staff, however the supreme court has retained the authority to approve any dues and fee increases,” he told The Chronicles.
On December 23, 2024, 19 Montana state senators sent a letter to the Montana Bar Association objecting to its “implicit endorsement of partisan attacks on the Republican Party and elected Republican officials.”
At the State Bar’s annual convention on April 12, 2024, it hosted an education panel called “Portraits in Courage-Unpopular Causes and Representing the Unrepresentable.”
According to the letter, the panel consisted of attorneys Randy Cox, Jim Goetz and Mark Werner. Furthermore, Montana Supreme Court Justice Laurie McKinnon and retired District Judge Michael Moses were also on the panel.
“In the course of the presentation, Mr. Goetz called a recent Montana Supreme Court decision on the Judicial Nomination Commission ‘a piece of shit.’ He labeled laws that Republicans recently enacted as ‘just pieces of garbage...[that] should be stricken.’ He called our current Republican governor ‘Governor Gianforeskin,’” the letter says.
McKinnon, who has been on the state Supreme Court since 2012, did not say anything after Goetz’s comments, according to the letter.
“The justice should have said something. And secondly, the bar association moderator should have ruled that guy out of order,” Natelson said.
“That's part of the conspiracy of silence. You can say horrible things about Republicans, and it’s covered up, but if you criticize the Supreme Court, you could lose your law license,” he added.
Mudd said that the State Bar does not have a bias against conservative attorneys.
“The State Bar is a non-partisan organization led by leaders who are elected by the members themselves, so we have had a very diverse group of leaders,” he said. “In fact, over the years our leaders have included many lawyers who have been active in conservative politics, even those who have held high positions.”
Furthermore, Mudd said he could not comment on the letter; however, he did say that the State Bar tries to produce programs that are “relevant” to its members.
“When that programming includes public policy changes that affect the profession and our members’ clients, we always seek to include a balanced range of speakers,” the executive director said. He added that some of these speakers have ranged from Lieutenant Governor Kristen Juras and Attorney General Austin Knudsen.
Currently, Knudsen faces a 90-day suspension of his law license after clashing with the state Supreme Court.
The letter asks for four things to be done.
First, the state senators want the State Bar to respond to this letter by Monday, January 6, with an apology and guidelines for future bar-sanctioned seminars.
Second, these state elected officials want this letter and the State Bar’s response in the next issue of The Montana Lawyer.
Third, the state senators requested the State Bar email this letter to all of its members.
Fourth, Antoinette M. Tease, president of the Montana State Bar, is asked to attend the Senate Judiciary Committee’s meeting on Tuesday, January 7, “to discuss this letter and the bar’s response to it.”
Tease told The Daily Montanan that she plans to be at the meeting.
“This particular program took place eight months ago. Comments made by panelists do not reflect positions of the State Bar, nor does the individual hold any leadership position in the State Bar,” Tease told The Daily Montanan.
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Zachery Schmidt is the founder of The Montana Chronicles. If you have any tips, please send them to montanachronicles@proton.me.