Both urged more pro-bono work among their attorney colleagues, and both agree that the Montana Supreme Court is suffering from a backlog of cases.
Much united Mike McGrath and Ron Waterman in their debate Thursday evening over who would best serve as chief justice of the Montana Supreme Court, but a few deep rifts divided them.
McGrath, Montana's attorney general since 2000, summoned his years as a prosecutor and the state's highest law enforcement officer as a strength; Waterman countered that it would create a discomforting conflict of interest in cases that might go before the Supreme Court.
“If Mr. McGrath is the next chief justice, he will have to disqualify himself from all cases in which he's listed as an attorney,” said Waterman, in a debate at the University of Montana Law School. “... He will have to disqualify himself from a substantial portion of the underlying docket, perhaps a third or a half.”
McGrath said he's acknowledged certain conflicts, and promised to recuse himself from the cases in which he is the “counsel of record.”
“I don't intend to sit on the case if I'm listed as the counsel of record,” said McGrath. “If I'm not named as counsel, there's nothing that would preclude me from sitting on those cases.”
It was the testiest exchange in an otherwise low-key and respectful debate, the second match-up between the two.
The other rift came in the name of Jimmy Ray Bromgard, a convicted rapist who was set free after 15 years in prison in 2002 after DNA evidence exonerated him.
More broadly, the question was about a Supreme Court justice's philosophy about fresh evidence in criminal cases.
McGrath, who ordered the DNA tests and eventually freed Bromgard, said the case proves he is more interested in justice than a successful prosecution.
“I'm the guy that agreed to DNA testing, and I'm the guy who made the decision to let Bromgard out of prison,” he said. “I think that's a significant record.”
After Bromgard's release, McGrath said, he ordered a comprehensive review of all cases which involved the testimony of former state crime lab scientist Arnold Melnikoff.
Waterman, a Helena lawyer for four decades who served as Bromgard's attorney in the case, said McGrath did the right thing, but with an important caveat.
“In the Bromgard case, what my opponent neglected to talk about is that he said a number of things about how, perhaps, the crime scene evidence could have been deposited there, pointing the finger unfortunately at family members and others,” he said.
McGrath said he would focus on establishing more drug courts in Montana, saying the 2,000 or so functioning drug courts around the nation help deliver justice without acrimony and keeping families together.
“They have proven effective at reuniting families and deterring lives of crime,” he said. “It's the kind of thing we need to have in courthouses all across the state.”
Waterman's theme was “justice for all,” which he hammered on through the debate, saying that justice is only as good as how it serves people of all economic and social backgrounds.
“We have much to do, because there is a tremendous amount of our population who is underrepresented,” he said. “If we promise justice for all, we need a chief justice with the vision and energy to move toward that goal.”
Waterman and McGrath are seeking to replace retiring Supreme Court Chief Justice Karla Gray.
On other issues:
- Both men said self-help law centers springing up in Montana courthouses are a positive development, giving more people quicker access to the courts, but that the district courts need more funding and personnel.
- Waterman named W.J. Jameson, a former U.S. district judge for Montana, as his most respected jurist, because “he taught me that you can be a great intellect with humility”; McGrath named former U.S. Supreme Court Chief Justice Earl Warren and current Chief Justice John Roberts.
- Both candidates said Montana's unique “writ of supervisory control,” in which the Supreme Court can bypass normal avenues of appeal and issue judgment on a case in extraordinary circumstance, should be used exceedingly sparingly.
- Both were loathe to describe the current court is “liberal” or “conservative,” saying an independent judiciary is just that, dealing with issues too complicated and diverse to be pigeonholed politically.
Reporter Jamie Kelly can be reached at 523-5254 or at jkelly@missoulian.com
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