Former Supreme Court Justice Gulbrandson dies
By Charles Wood, editor, The Montana Lawyer, October 19, 2009
We learned over the weekend that Justice L.C. Gulbrandson, who served on the Montana Supreme Court from 1982 to 1989, died on Oct. 3 in Tucson, Ariz.
Justice Gulbrandson was an attorney in Glendive and a district court judge for eastern Montana until his election to the Supreme Court. He and his wife Billie moved to Tucson after he retired from the Court in 1989.
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3 ongoing issues for the State Bar of Montana
By Chris Tweeten, past-president, State Bar of Montana, October 8, 2009
Although I handed the president’s gavel to Cindy Smith in mid-September, by tradition the outgoing president gets one last chance to fill this space with pithy observations. I want to use this last opportunity to speculate about what the future holds for our profession.
AVOCATS SANS FRONTIERES (Lawyers Without Borders): A few years ago we had a lengthy dialogue on the subject of multi-jurisdictional practice. As things stand now, other states view Montana as the North Korea of the legal profession. We have reciprocity with no one. We secure our borders better than the Department of Homeland Security. A Montanan who wants representation by an out-of-state lawyer had better find one (1) whose law firm has not burned its three strikes or (2) who wants to take the Montana Bar Exam.
Like Kim Jong Il, we are swimming against the trend in the rest of the world. A regional reciprocity arrangement exists among states in the Northeast, and discussions are going on among the Pacific Northwest states of Washington, Oregon, and Idaho about adoption of a rule that would allow a lawyer admitted in one state to practice in all three. Other states are loosening their pro hac vice rules to make it easier for out-of-state lawyers to practice. And, the National Conference of Bar Examiners is at work on a national bar exam that would ease interstate moves for lawyers in states that chose to adopt the interstate exam.
If you thought the multi-jurisdictional practice issue is settled in Montana, think again.
THE OLD GRAY LAWYER: You’ve seen discussion about the graying of the profession before in this column. There is a large Baby Boom Bubble that’s about to burst on the legal profession. More lawyers are in their 50s than in their 30s. The number of lawyers in their 50s and 60s who are considering retirement exceeds the number of prospective lawyers entering our law schools, so soon more older lawyers will be exiting the profession than there will be new lawyers to take their place. As the population of Montana grows, the population of Montana lawyers available to meet their need for legal services will shrink. Where will the clients find representation? See Avocats Sans Frontieres, supra.
If the pool of lawyers continues to shrink, the practice of law will change. Non-lawyers will be allowed to provide services that are now the exclusive province of lawyers, under regulations promulgated by the Court or, God forbid, the Legislature. The retirement of boomer lawyers will put strain on law partnership agreements. As the number of lawyers dwindles, bar association revenues will drop, making it more difficult for bars to fund programs mandated by their supreme courts. And, a shrinking pool of lawyers will place even more strain on access-to-justice programs.
Finding solutions to these problems will occupy a lot of the Bar’s time over the coming years.
MAKING ENDS MEET: This year the Court ordered a dues increase to meet the funding needs of an expanded lawyer assistance program and correct a structural imbalance in the State Bar’s budget that was driven largely by the need to fund programs required by the Montana Supreme Court. Unfortunately, as costs rise and the Bar assumes responsibility for more programs, pressure on the Bar’s budget can only continue to increase. This year an ad hoc committee of the Board of Trustees conducted a line by line zero-base review of the Bar’s budget that identified some cuts and areas where non-dues revenues might be increased. The Court has ordered a detailed report on the Bar’s financial status every three years, and from now on the Trustees will conduct the same kind of detailed budget analysis every three years as part of the report process.
It is not realistic to think that this year’s dues increase will be the last. But your Trustees are committed to making your Bar run as efficiently as possible.
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The 5 barriers to equal justice
By Cynthia Smith, president, State Bar of Montana, October 8, 2009
I want to talk about what I would like to do as Bar president. Over the next year, I would like all of us to have a conversation about two interrelated issues: Access to justice – and the barriers that prevent full access – and the lack of diversity in our profession.
I hope that we will examine what we can do to improve access to justice for all Montanans. As lawyers, we hold the keys to the courthouse. We have a duty as professionals to use our skills and knowledge to benefit all of society, not just the clients who can afford to hire us.
This past May, the Board of Trustees held its annual Long-Range Strategic Planning Meeting at the Double Arrow Lodge in Seeley Lake. (Lest you think that was a wasteful use of the Bar’s limited resources, please consider that we did that within a very tight budget and pared it down by one day from past years’ meetings, all thanks to the wizardry and masterful negotiating skills of Bar Membership Coordinator Jill Diveley). At the meeting, the trustees heard from a panel of speakers who have experienced
several of the barriers to access to justice, either personally or through representing clients. Each of them identified areas where substantial barriers to justice still exist.
INCOME: This is the most obvious barrier. Montana Legal Services serves clients who are up to 200 percent of the federal poverty level. At the meeting, Montana Legal Services Director Klaus Sitte discussed the interrelated issues of poverty, race and access to justice. In Montana, 9 percent of the population is non-white. MLS’ clientele, however, is 36 percent non-white. The bulk of MLS’ clientele is minority and female. Unfortunately, MLS has lost a substantial amount of funding and has had to eliminate 11 attorney positions around the state in the past year. Because of this loss, it is more important than ever for attorneys to honor their pro bono obligations. As Klaus points out, pro bono is not charity. Everyone can donate to charity. Only attorneys can provide pro bono legal representation. Pro bono is more than charity – it is a core value of our profession.
RACE: Ryan Rusche is a member of the State Bar’s Board of Trustees. He is a Native American and the county attorney for Roosevelt County. Ryan talked about the barriers present for Native Americans, which could be improved with better access to positions of power and better communication with those who are already in power. Ryan also sees a need to increase efforts to recruit minorities into our profession, which starts with recruitment at the law school.
MENTAL HEALTH: Ryan Rusche also spoke about mental health as a barrier to accessing justice. Ryan has served on the Human Rights Commission for many years and has been its chair for the past two years. Ryan sees mental health issues in many of the discrimination cases brought before the commission. The mental health issues are seldom raised, however, often because the mentally ill individuals are not represented by counsel. One barrier for mentally ill individuals is the inability to understand their
rights, or the lack thereof, a problem that could be improved with legal representation.
SEXUAL ORIENTATION: Susan Ridgeway, a private practitioner from Missoula, spoke at the meeting about a case in which she represented a lesbian mother who was fighting for custody of her children [she won her case in the Montana Supreme Court this week]. Susan discussed the barriers faced by individuals whose rights were not considered in the enactment of laws, such as lesbians and gays. For example, Montana’s domestic relations, adoption and probate laws do not contemplate same-sex partners. The absence of these laws leaves a significant portion of the population without legal remedies.
GENDER: Sherry Mateucci was the first female president of the State Bar of Montana. She made gender equality her focus as president, and commissioned a task force to examine gender bias in Montana. That task force has now become a Montana Supreme Court commission that is currently chaired by Julianne Burkhardt. Julianne spoke at the meeting about the commission’s recent activities, which include a proposal to change the Code of Judicial Ethics to prohibit judicial bias on any basis, including sexual orientation.
DIVERSITY: Guest speaker Amie Thurber, of the National Coalition Building Institute (NCBI) , pulled all of these issues together in a way that caused the trustees to examine their own diversity, or lack thereof. Amie involved the trustees in a limited version of the diversity workshops that she, UM Law Professor Andrew King-Ries and others present to large groups. Aimee started the meeting by asking attendees to self-identify the groups they belonged to, such as first-borns, only children, family or friends of gay and lesbians, persons who grew up without sufficient family income or with more than enough family income, nationality, and disabilities. The exercise demonstrated a remarkable phenomenon: By exposing personal information to the group, a level of bonding takes place that makes it much easier to open up about oneself during the ensuing meeting. Based upon the limited exposure the trustees had to NCBI’s diversity workshop at the strategic planning meeting, I would highly recommend the full workshop
to any large group.
As a result of the panel’s discussion, the trustees added two new items to the State Bar of Montana’s Strategic Plan, items that promote diversity in the Bar and the Law School, and encourage State Bar committees and sections to examine the need for and propose new legislation addressing current barriers to access to justice. I hope that we as a bar can continue this discussion and look at ways to eradicate or reduce these barriers.
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Chris Wethern writes:
Some good news: the Code of Judicial Conduct already prohibits judicial bias on the basis of sexual orientation. See Canon 2, Rule 2.3(B).
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The Supreme Court's strike zone
By Chris Tweeten, president, State Bar of Montana, June 8, 2009
The debate over the confirmation of Sonia Sotomayor to the Supreme Court has revived the arguments about the proper role of a judge. Conservatives who are likely to oppose the nomination complain that Judge Sotomayor has suggested that as a Latina she might make better judicial decisions than a white male.
These conservatives have resurrected the analogy used by Chief Justice John Roberts: that a good judge is like a baseball umpire, calling the plays without trying to change the shape of the playing field. I think the analogy is apt, but not in the way the Chief Justice and Judge Sotomayor's detractors have used it.
Not all umpires use the same strike zone. The rulebook provides guidance about the definition of the zone, but every umpire has an individual interpretation of where the zone begins and ends. For all umpires, a pitch right down the pipe is a strike, and a pitch a foot outside is a ball. On the close pitches, however, the ump's interpretation of the zone and judgment about where the pitch is in relation to it determines whether it's a strike or a ball. When the pitch is near the paint, an ump could justifiably call it either way.
I think it's the same with judges. The rules of law provide the guidance as to how a matter should be decided. For the easy cases, the rules can be applied without the exercise of much judgment on the part of the court. For the tough cases, however, the ones close to the margins of existing rules,and, not incidentally, the kinds of cases likely to make it to the Supreme Court, the court must apply legal judgment in applying the rules of law. In such cases there is no one single right answer. As Professor Dave Patterson used to put it, in those cases a good lawyer could develop a tchnical perfect argument for either side.
It's misleading, I think,to rely on the umpire analogy to suggest that judicial decision-making and umpiring are supposed to be devoid of the exercise of judgment. If that were true, umpires would be unable to call close pitches, and courts unable to decide close cases.
I think judgment whether for umpires or judges, is formed by the experiences and attitudes of the arbiter. A pitcher's umpire might believe that hitters should have to earn base hits by hitting good pitches. A hitter's umpire might think the game is about offense, and pitchers need to get it clearly within the zone to get a strike call. Some judges are sticklers for procedure because they believe that the rules are designed to ensure the fairness to which all litigants are entitled. Others think the most important thing is to get a determination of a case on its merits rather than on technicalities.
I think it's entirely appropriate to inquire into a judge's past experiences to get insight into how the judge might decide things in the future. It's foolish to suggest that the Chief Justice's judicial decisions are unnaffected by his middle class youth, his Ivy League education, and his high-powered legal career in the Justice Department and a tall-building law firm.
It's just as foolish to argue that Judge Sotomayor's frank reliance on her background and experiences as formative agents in her judicial philosophy somehow makes her an "activist" judge who needs to be kept off the court at all costs.
Notable Comments
Paulette Kohman, Special Assistant Attorney General at DPHHS, writes:
If deciding supreme court cases were completely objective, we would not need to have 9 justices and there would be no split opinions. By providing for a majority rule in the highest court of the land, the constitution clearly anticipated that these nine individuals, differently gifted, would bring their varied backgrounds, experiences, and opinions to the court, and that the democratic process which the founders so valued in the making of laws would also bring a higher level of justice in interpreting and applying them.
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