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The Life and Career of James C. Nelson, Justice, Montana Supreme Court
by Cary Griffith
During much of his private practice, he was also the Glacier County Attorney. And he served in numerous other capacities: President of the Chamber of Commerce, a member of the State Board of Oil and Gas Conservation (which he chaired for four years), a member of the State Gaming Advisory Council and the Governor's Task Force on Corrections and Criminal Justice Policy, and even as a volunteer fireman.
But of all his jobs, the one he considers his favorite is Justice for the Supreme Court of Montana, a position he's held since 1994. Being on the Montana Supreme Court was ''always a career goal,'' explains Nelson. ''I think it's very important work.''
In November, Jim Nelson is running for re-election, and by most counts he faces a formidable challenge. With a population of a little less than a million, Montana isn't a large state. But over the last thirty years Montana trends have been in lock step with much of the rest of the country. The state has undergone a political shift from liberal to conservative and judicial appointments and elections have become increasingly politicized.
How does Nelson feel about Supreme Court Justices having to work full-time and run for periodic re-election? ''I don't have any problem with an elected judiciary,'' Nelson says. The ''benefit of elections is that voters have a right to have a say and make important decisions on who will adjudicate cases that affect their lives, liberty and property.''
And that's a right Jim Nelson knows, because for the past decade his primary business has been making decisions that affect Montanans' life, liberty and property.
Q: How did you become interested in the law?
A: I've been interested in the law since I was a kid. My parents and grandparents always figured I'd be a lawyer. I grew up when, to be a success, you either had to be a lawyer or a doctor. The law was their pick, but I was always interested in it.
And then when I was in the Army I did some criminal defense work, and I enjoyed representing and helping people. That confirmed my desire that once I got out of the Army I would go to law school, and I did.
Q: Can you briefly sketch your career? Where and how did you begin working in the law?
A: I was discharged from the Army in 1969 and decided to go to law school. I needed to work to put myself through school. Washington, D.C. had three or four good law schools with night divisions, so I applied to George Washington University and Georgetown University and was accepted at both. Chari [my wife] and I moved to Washington, DC and I enrolled at George Washington University in the school's night division, and worked full-time during the day as a financial analyst for the Securities and Exchange Commission.
I graduated with honors in 1974 and we decided we'd move back to Cut Bank. By then, we had two kids and wanted to raise our family in the Northwest in a small town. My father in law had his law practice and wanted someone to come in with him because he was ready to wind things down and retire. So I went into private practice in 1974.
We spent nearly 20 years in Cut Bank, from 1974-1993. I was in general practice - domestic relations, real estate transactions, wills and probates. We did plaintiffs' and defendants' litigation, and had a fairly extensive oil and gas practice. We also did some Native American law.
In 1993, an opening came up on the Montana Supreme Court when one of the sitting justices retired. I applied for that and went through the nomination committee proceeding. My name, along with four others, was submitted to the sitting governor, Mark Racicot (who is now George Bush's re-election manager for his presidential campaign). Racicot had been a former prosecutor, so we knew each other quite well. I took office in May of '93, and have been a Supreme Court Justice ever since.
Q: Out of the 600 opinions you've authored, can you tell us about two or three of the most memorable? Why were they memorable?
A: I wrote an opinion in 1997-Gryczan vs. The State of Montana-that had to do with the constitutionality of the Montana criminal law which criminalized homosexual sex. It was at a time when the federal law had said that those kinds of laws were constitutional. But Montana has a unique constitution. It was adopted in 1972, and we have a very strong right of individual privacy. I authored an opinion for the court that held that that particular law was unconstitutional. We were one of a handful of states at that time that found those sorts of laws unconstitutional.
The opinion is widely quoted-it's actually cited in the most recent U.S. Supreme Court opinion-and appeared on the ACLU web site for a number of years. It was the first time Montana recognized the personal autonomy component of the right of individual privacy as being constitutionally protected.
Then in 1997, I authored another case for the court - The State vs. Siegal. We were literally about the first court in the country that held that if the police were going to use thermal imaging technology to scan a residence or outbuilding for a marijuana growing operation-that that sort of technology was itself a search that required a warrant to be issued before the search could be conducted. We ruled on the basis of the right of privacy under the Montana Constitution. Three or four years later, the U.S. Supreme Court came down on the same side of that issue in Kyllo vs. U.S.
In 1999, I authored Armstrong vs. The State. The legislature, because of abortion politics, passed a law saying a physician's assistant certified could not perform abortions, under the supervision of a physician, although she was certified by the state medical board to do so. The law pretty much put a legal abortion out of reach of Montana women. The physician's assistant certified was one of the few abortion providers in Montana. I authored an opinion holding that law unconstitutional on the basis of right of privacy. We also held that part of the right of privacy included the right to choose a health care provider of one's choice to perform a legal medical procedure, providing the person was licensed by the state medical board.
And then last year I authored a case called Walker vs. State. Montana has a right of human dignity in its Constitution. This fellow was a mentally ill prisoner at the Montana State Prison, and they weren't treating him for his mental condition. He became a behavioral problem because of his condition. He was put in administrative segregation in what they call a behavior modification program. His treatment was inhumane. We held that that sort of treatment of mentally ill inmates was unconstitutional under the right of dignity clause in Montana's Constitution, in conjunction with its right against cruel and unusual punishments.
Q: Over the past 30 years you have served in a variety of public and private legal capacities: in private practice, as Glacier County Attorney, Chairman of the State Board of Oil and Gas Conservation, and in other organizations, and for the last 11 years as a Montana Supreme Court Justice. Which do you prefer, and why?
A: I really enjoy what I'm doing now. I like being an appellate judge. I've always enjoyed researching legal issues and writing. I've enjoyed the ability to uphold our unique Montana Constitution, which is probably one of the most visionary and people oriented constitutions of any in the United States. I think that's very important work. I like my job. I like the ability to make a significant difference in people's lives.
Q: Is it necessary, or even possible for judges to build a wall between themselves and their private attorney colleagues? Or should instances like Justice Antonin Scalia's duck hunting trip with Vice President Cheney be considered within the reasonable bounds of judicial conduct?
A: I think it's necessary. You have to be very careful about your relationships and friendships with attorneys. Chari and I have a number of friends who are attorneys and judges. If we have a case pending before the court that involves one of those attorneys, I've often recused myself in those cases, because I didn't want to be involved with a case involving one of my friends.
You ask the question about the duck hunting trip. The U.S. Supreme Court sets its own standards, of course, but I was troubled by Justice Scalia's decision. With most appellate courts, the litigants don't have the right to require a judge to recuse him or herself. In most of the trial courts, you have the right to disqualify the trial judge, but that's not the case with the appellate court. Most judges will really try to avoid the appearance of impropriety, so if there's any question at all, most justices would recuse themselves. Q: Over the past 30 years, how do you think the public's perspective about the law has changed?
A: I think in some ways the public's perspective about the law and legal profession has become more jaded. I don't think that's necessarily the fault of the legal profession. The public expects more out of the legal profession and the courts. People are more willing to litigate issues and incidents that happen now than they were 30 years ago. The law has become more regulatory. It interferes more in people's lives. Any time government interferes with a person's life or business, it presents a lot of opportunities for disagreement. Consumers are sold products which may be unsafe or ill-designed and cause injury. And ordinary citizens are victims of harmful or unlawful conduct perpetrated by individuals, businesses, professions and the government itself. The courts are the last resort for many. They expect more from the law, and when the law doesn't fulfill their expectations, they become disillusioned.
Q: What do you consider some of the greatest challenges facing the Judiciary in general, and the Montana Judiciary in particular?
A: I think one of the big issues today is maintaining the independence of the Judiciary. In 2003, the American Bar Association published an extensive study of the Judiciary. Justice in Jeopardy. The ABA concluded that the Judiciary in the US is really at risk by reason of attacks by partisan politicians, and the infusion of substantial amounts of special interest and corporate money into judicial campaigns. The whole idea of this interference is to take away judicial independence; to make the courts rubber stamps for the other two branches of government. It's a problem throughout the US and, certainly, in Montana as well.
Q: Some states appoint judges for life, while many make judges go through periodic elections. What do you think works best and why?
A: Our judges in Montana are all elected for specific terms. I don't have any problem with an elected judiciary. If the argument is that appointed justices are less political, or it takes the politics out of the process, that's nonsense. There is plenty of politics in the process of appointing judges.
The benefit of elections is that voters have a right to have a say and make important decisions in choosing those who will make decisions that affect their lives, liberty and property. To the extent that partisan politics is inserted into either process, it is absolutely wrong. The laws that are passed are laws with which everyone must comply; judges should not come to the bench with a political agenda or bound by political ideology.
The ABA came to the same conclusion in Justice in Jeopardy. In those states that do have an elective process-or an appointive process for that matter—reforms should be enacted to keep big money and partisan politics out..
Q: Over the past two decades, some polls indicate a shift to a more conservative national electorate. How has that played out in Montana, and how has it affected the Montana Supreme Court?
A: In the last 20 years, Montana has become more conservative. The question of its effect on the court is a hard question to answer. I suppose the short answer is yes, it has had an effect, but it's been slow. Our judges are not term limited. Most have a tendency to serve from 16 to 20 years. I think as the demographics of the state shift, so do the judges that replace judges who retire. But, Montana has a good judiciary. Our judges are competent, intelligent and fair. I'm proud to serve as one of them.
Q: Do you have any advice for young lawyers who want to start practicing law?
A: If I had it to do over again, I'd probably try to specialize. It's hard to do in a rural state. But I think the law is becoming so complex, that in most areas you'd be well served to pick an area you enjoy and learn everything you can about it.
I would advise people coming out of school to go with a firm and learn the practical aspects of being a lawyer. A lot of mistakes are made by very young lawyers who simply don't know what they're doing. You need to practice with a firm for awhile, or have someone who can serve as a mentor.
Q: What do you like best about being a judge?
A: I like the academic side of it. Most of what we do is reading and writing. I like the ability to make a difference in people's lives. It's important work.
Q: What do you like least about being a judge?
A: There's a tremendous time commitment. We have one appellate court in Montana, and we don't have the ability to pick and choose cases. So the time commitment is really quite high. I probably read 700 to 1000 pages of written material a week, and we operate 52 weeks per year.
A: My wife, Chari, and I have two children, Mary Pat (who lives with her husband Jason and their two children, Lauren and Payton, outside of Richmond, Virginia), and J and his wife Kimberly and son, Major, live in Arlington, Virginia. J is a Captain in the U.S. Army and just graduated from law school at the University of Maryland.
Q: What are you currently reading?
A: I haven't read much since the campaign started. Most of what I've been reading is law related. The last books I read for enjoyment were Under the Banner of Heaven by Jon Krakauer, and Yann Martel's Life of Pi.
Q: Do you have a hobby? If so, what is it?
A: Chari and I like to bird watch and hike.
Q: What do you like best about Montana?
A: The quality of life is good. The outdoors and scenery and ability to hike and recreate outdoors is what I like most about Montana.
Q: What is your biggest professional or personal accomplishment, and why? A: I think my biggest professional accomplishment was being appointed to the Montana Supreme Court. In the back of my mind, it was always a career goal, and being able to achieve that was an accomplishment.
Personally, I think Chari and I raised a great family. We have two children who are really good people. And they've married equally fine people, and we have three wonderful grandchildren. We're both extremely proud of our family.
Q: What past judges have you admired and why?
A: I've always admired Thurgood Marshall and Harry Blackman for their work on the U.S. Supreme Court.
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