Opening on Supreme Court draws interest from 11

2009-10-24T23:55:00Z Opening on Supreme Court draws interest from 11Gazette State Bureau The Billings Gazette
October 24, 2009 11:55 pm  • 

HELENA - Eleven people have applied to fill a seat on the Montana Supreme Court.

The seat is being vacated by Justice John Warner, who plans to retire Dec. 31.

The Judicial Nomination Commission review the applications and interview candidates before recommending from three to five finalists to Gov. Brian Schweitzer, who makes the appointment.

Here's a look at the applicants:

Roy Andes, 58, of Helena, received a bachelor's degree in history from Bridgewater College in Virginia and a law degree from the University of Virginia. He got a master's degree in communications from the University of Montana specializing in conflict resolu-tion.

He's lived in Montana for 32 years and practiced law for most of that time, including as an assistant attorney general from 1980-85 and as a part-time special assistant attorney general for the former Department of State Lands,

Andes said he has taught communication studies at several universities in and out of Montana and mediated hundreds of disputes "providing the satisfaction that I was helping people on a very personal level."

Since January 1996, Andes has been co-founder, vice president and legal counsel of Montanans for the Responsible Use of the School Trust Inc., which advocates improve funding for public schools from school trust lands.

Andes said he could add something to the court by being the first judge educated in conflict resolution and experienced as a mediator, and he would like to help with the court's ongoing modernization and streamlining procedures for handling cases.

"Finally, I am at the right place in my career," he said. "I've been fortunate to have a broad and varied working life - ditch digger, park ranger, teacher, litigator and mediator - which I believe has well prepared me to serve as a justice on the Montana Supreme Court," Andes said.

Carlo Canty, 45, of Helena, is in private practice with the Helena law firm of Browning, Kaleczyc, Berry and Hoven. He lives in Montana City. A Butte Central graduate, Canty has a bachelor's degree from Carroll College and a law degree from the University of San Francisco. He has lived in Montana for 39 years.

He previously worked as an assistant Montana attorney general for six years and for 11 years as a deputy county attorney in Butte-Silver Bow. He also served as a special assistant U.S. attorney and an investigator and assistant to the chief staff attorney of the judiciary of the state of Hawaii.

"Over the course of my career, I have challenged myself to become proficient in many diverse areas of law," Canty wrote in his application. "I have challenged myself to become proficient in many diverse areas of law."

He said he is not entrenched in the mindset of a defense lawyer, plaintiff's lawyer, prosecutor or criminal defense lawyer.

"I bring no political agenda to the court and am not beholden to any group, organization or special interest," Candy said.

Canty said he can hit the ground running as a Supreme Court justice.

"I am one of a very fortunate few to have experienced working on cases in every corner of Montana and all points in between - from advising law enforcement in the course of response to the initial incident, through trial and litigation to conclusion on appeal," he wrote. "Through the quality of this experience, I have gained an appreciation for the circumstances that bring people before the court."

Brenda Desmond of Missoula said her significant trial and appellate court experience have provided her with unique qualifications for appointment to the Mon-tana Supreme Court.

In her application, Desmond said she is a standing master for the state judicial district that includes Missoula and Mineral counties and chief justice for the Fort Peck Tribes Court of Appeal. She was a co-founder and a backup judge for the Missoula Youth Drug Court.

She initiated and led the planning and establishment of the Missoula Co-Occurring Treatment Court, formerly known as the Missoula Mental Health Court, and presides over its weekly court sessions in tandem with a municipal court judge.

After attending Fordham University, Desmond received her undergraduate degree from Katholeike Universiteit Leuven in Belgium in 1972 and her law degree from the State University of New York at Buffalo in 1976. After passing the New York bar exam, she worked for Alaska Legal Services as a VISTA volunteer and moved to Montana in 1978.

Desmond worked as a court adviser for the Crow Tribal Court from 1978-80, as a staff attorney for Montana Legal Services from 1980-82 and as a staff attorney for the Montana Legislative Council from 1982-86.

From 1985-94, she was a visiting assistant professor at the University of Montana law school and was the supervising attorney for the Indian Law clinic.

Desmond has been a standing master, formerly special master, for the Fourth Judicial District since 1994. She served part-time associate justice on the Confederated Salish and Kootenai Tribes' Court of appeals from 1997-2003 and has been chief justice of the Fort Peck Tribes Court of Appeals since 2006.

As a standing master, Desmond said she conducts preliminary matters in adult criminal cases, including setting bond and conditions of detention, and preliminary matters in juvenile delinquency proceedings.

On civil matters, on referral from District Court judges or by stipulation by parties, she conducts hearings in a number of areas, including marriage dissolution and parenting cases and child abuse and neglect, mental health commitment and guardianship proceedings.

Desmond ran unsuccessfully for a district judge's job in Missoula and Mineral counties in 2006.

"I seek judicial office because my work experience in the last 15 years has led me to the realization that I have a talent for serving as a judicial officer and judge," she said.

"Many colleagues have encouraged me to apply for this position."

In response to a question, Desmond said she is proud of her "continuing commitment to maintaining the quality of and improving, the justice system, particularly in the area of access to justice."

JoAnn "Joey" Jayne, 52, o f Arlee, has bachelor's degree in agricultural industry and master's degree in watershed management-hydrology, both from Arizona State University and a law degree from UM.

Jayne, who has lived in Montana for 22 years, worked as an attorney and prosecutor for the Confederated Salish and Kootenai Tribes from 1993 to 2000. Since then, she has had her own law office since 2000. She also served in the Montana House from 2001-08.

She said she now practices law part time works full time as student nurse recruiter at the Salish and Kootenai College in Pablo.

On her application, Jayne said: "I believe practicing law within tribal jurisdictions and federal and state courts provide a unique, distinctive ability to distinguish the use of tribal, state, administrative and federal laws over a wide range of areas for Montana citizens."

Asked to identify the events in her career that made her most proud or distinguished her, Jayne said, "Assisting indigent individuals in court who otherwise would not have legal assistance."

She said indigent individuals and others with disabilities have always been underrepresented in all areas of the legal system.

"This serves as the basis for my compassion that the law reaches all individuals," Jayne said.

David Ortley, a justice of the peace from Kalispell, has lived in Montana for 20 years. He received a bachelor's degree in law enforcement in 1980 from Mankato State University and a law degree in 1983 from Hamline University law school, both in Minnesota.

Appointed as a Flathead County justice of the peace in 1999, Ortley has been elected three times since. He worked as a solo practitioner from 1989 until 2000 and as a contract public defender from 1996-2000. He was an associate attorney in a Minnesota law firm from 1983-89.

Ortley said people who have appeared before him in court have told him years later that "they appreciate the fact that I treat them with respect and explain, in understandable terms, the basis for my decision. Even if they do not agree with my decisions, they respect me as a judge and the system we have for the resolution of disputes."

In his application, Ortley said he enjoys being a judge and decision maker applying the law to the facts before him.

"I have been blessed with a great deal of common sense, an inordinate amount of pa-tience and the intellect which allows me to understand the law and its role in society," he wrote. "My vast range of life experience, coupled with my broad legal experience, has allowed me to serve as a trial court judge in an effective manner."

He believes his experience has provided him with a unique perspective that "would serve to bring balance and common sense to the court."

"The decisions of the court ought to reflect Montana and Montanans," he added later. "I believe I possess the intellect, character and integrity required to serve the people of Mon-tana on their highest court."

Asked what in his background might make him the best candidate for justice, Ortley wrote: "I have no affiliation, political connections or hidden agenda. I simply want to serve to the best of my ability."

Karen Powell, 38, of Helena, is a 1993 graduate of Wesleyan University in Connecticut and received her law degree from Stanford University in 2000. She has practiced law in Montana since 2001 and made Montana has been her residence since 1993.

In 2006 and 2009, Schweitzer appointed Powell to head the three-member State Tax Appeal Board. As chairwoman of the full-time board, Powell said she is the presiding administrative law judge for appeals that involve "complex financial regulatory law, valuation and statutory interpretation, administrative law, constitutional issues and evidentiary law."

"I seek a position on the court because a Supreme Court justice's responsibilities fascinate and interest me," Power said in response to one question on her application. "My favorite aspect of my current position is working with my colleagues to analyze complex tax issues and to collaboratively come to a well-reasoned legal decision.

"I would be honored to work with the members of the Montana Supreme Court on legal issues of critical importance, in a range of matters requiring rigorous intellectual effort, diligent research and complex analytical thought."

Powell said she offers a unique and diverse view to the court. She said she has "proven skills as a consensus builder in an appellate setting, overseeing large and small trials, and unique knowledge of complex financial and regulatory environment today."

"My roots in Montana are deep; generations of my family have lived and died in a little valley nestled at the base of Chief Mountain just south of the Canadian border," Powell wrote. "I have lived on the reservation with my extended family, studied on the east and west coasts at world-class universities and lived in Kochi, Japan."

She said she is not an enrolled tribal member but is a descendent of Native Americans.

Powell previously worked as deputy state auditor in 2005-06, deputy securities commissioner in 2004-06 and in policy and litigation in 2003-04. In 2001-02, Powell worked as a civil litigator in the attorney general's office.

She also serves on the National Council of Commissioners on Uniform State Laws to draft and debate uniform state legislation.

Powell serves on the board of directors of the Lewis and Clark Community Health Center, which provides health care regardless of income. She previously was on the boards of the Friendship Center, which helps domestic violence victims; the Montana Environmental Information Center; and the Montana Low-Income Coalition.

Powell said she volunteers her time for individual pro bono cases and at the Montana Legal Services community clinics where she reviews documents written by self-represented litigants.

She said she also helps with local running, cycling and triathlon races.

She and her husband, JP Crowley, have two children.

Peggy Probasco, a state child-support enforcement attorney from Butte, received a bachelor's degree in philosophy in 1980 and a law degree in 1983 from the University of Montana. She has lived in Montana 30 years.

Since 1991, Probasco has been a staff attorney, and thus a special assistant attorney general, for the Child Support Enforcement Division of the Department of Public Health and Human Services. She was an attorney for Intermountain Administrators from 1989-91 and District XI Human Resource Council in 1987-88.

From 1986-87, Probasco was a deputy county attorney in Ravalli County, and she was city judge in Stevensville in 1985-86. She worked as a private attorney and did public de-fender work from 1983-1986.

She was president of the State Bar of Montana from September 2006 to September 2007.

Probasco said she is seeking the judgeship because she believes she can serve the state effectively there.

"I have experience in many of the District Courts across the state and have come to admire the dedication of our judges," she said. "Becoming an associate justice will provide me an opportunity to promote justice as well as give me a greater ability to promote access to justice."

When asked what may differentiate herself from other applicants for the justice's job, Probasco wrote cited her "broad-based career and wide-ranging exposure to many Montana District Courts and attorneys across the state."

"My years of experience have developed my patience and discernment," she said. "Working with many pro se litigants has given me the ability to see the arguments a person without legal training may be trying to make. Representing the state of Montana in my current employment puts me in a position of striving for the best interests of the children, seldom separately represented in child support matters. It has also made me acutely aware of the stress and frustration a party to court action may feel. I believe this is an important perspective for a justice."

Jeff Renz of Clinton, a University of Montana law professor, has lived in Montana 42 years. He received a bachelor's degree in botany in 1971 and a law degree in 1979, both from the University of Montana. He has practiced law since 1979, all in Montana except for a short stint as a law clerk and associate for an Illinois law firm. In 2000, Renz was an unsuccessful candidate for the Montana Supreme Court.

He is a UM law professor and director of the law school's criminal defense clinic.

He was co-director of the Montana Pardon Project, which in 2006 obtained uncondi-tional pardons from Schweitzer for 78 men and women convicted of sedition during World War I. In 1987, he was co-counsel in a case and won the first Voting Rights Act trial on behalf of American Indians, which he said "changed the electoral map and the elected official faces of the West." In 1990, he persuaded federal courts that disabled students have a right to compete in interscholastic supports.

Renz said he applied because his background in biological sciences offers skills and knowledge the court now lacks. "The absence is reflected in the way the court approaches pseudo-science in our courtrooms," he said.

Renz said he's applying because of his "long and deep" appellate experience, litigating nearly 100 cases in appellate courts.

"I apply because I really like what our courts do, and I want to do what I can to help them do it better," he said.

Asked what might set him apart from other applicants, Renz quoted from this note he received from a former law clerk to U.S. Supreme Court Anton Scalia: "We've never met, but I hate you anyway. I've just read your article on the General Welfare Clause, and it is brilliant. Substantively and methodologically, it is one of the best articles I have read in recent years. Not only does it render futile any ambitions I might have had to write on the subject, but now I have to go through life knowing that if I had ever written on the subject, I would have done a worse job."

John Warren, a veteran attorney in private practice in Dillon, received a bachelor's degree from the University of California, Berkeley, in 1970 and a law degree from the UM in 1973. He has been a Montana resident for 47 years.

He's worked for the same law firm in Dillon since 1973 and been a partner since 1975. Warren served as Dillon city attorney from 1982-84.

Warren said he enjoys the challenges, trials and chances to help clients that the law has provided. Serving on the Supreme Court would be intellectually challenging because he enjoys researching cases, reasoning the facts and writing, he said.

He has served on the Montana Commission on Practice, the Montana Supreme Court's disciplinary arm, since 1990 and has been its chairman since 2001.

Warren said he's proud of his work on a contested will where a rancher, whose wife had died years ago, left majority interest in his ranch, worth millions of dollars, to one of his five children and excluded the others. He represented three adult children.

"Emotionally, those three found it an extraordinary 'kick in the gut' to endure a father's inexplicable decision and have it affirmed by both a district court and the Mon-tana Supreme Court," Warren said.

Two of the three he represented "still had enough faith in my judgment to ask me what I could do to challenge the distribution of their mother's QTIP trust." This trust is set up for the surviving spouse to receive income from its assets for life, while its principal usually goes to the children.

Warren said he knew little about QTIP trusts and those who did assured him there was little that could be done. Yet his research found "a variation on a rule of distribution, which the presiding judge followed, meaning my clients received a windfall (of $1 million each)," he said.

"This case illustrates how our system of justice works," Warren said. "The theories of our law may be elegant, but their application in a particular case is often sloppy, influenced by random, sometimes unpredictable factors. Yet for the litigant who persists in a just cause, the system will usually produce an arguably just result. The secret is persistence in giving justice a chance."

Ronald Waterman of Helena, who lost a 2008 race for chief justice of the Montana Supreme Court, said he applied for the post based upon "the values and vision I have and hold for our justice system."

"Fundamentally, I believe that each person accused of a crime is innocent until proven guilty and that all persons deserve competent lawyers to represent their interests," Waterman said in a statement. "And I believe that a strong, healthy court system is a keystone to all of our liberties.

"This has been the foundation of my legal career, and it will continue to be the fundamental value which I will follow during my service on the court if selected and appointed to the associate justice position."

This will be Waterman's second attempt to win a seat on the Montana Supreme Court. Last year, then-Attorney General Mike McGrath defeated him for chief justice by 75 percent to 25 percent.

"I believe that my vast and varied background and experience and commitment to assure that 'Justice for All' is a goal to achieve and not an empty promise, makes me well qualified to serve as a justice on the Montana Supreme Court," Waterman said.

Waterman worked his way through college in Missoula and received his law degree from the University of Montana in 1969.

After clerking for a year for U.S. District Judge William J. Jameson of Billings, Waterman has since practiced law for more than 39 years in Helena with the firm of Gough, Shanahan, Johnson and Waterman.

He said he has represented thousands of clients, both the poor and the more fortunate, and a variety of organizations and businesses, large and small. Waterman said he has presented matters to the Montana Supreme Court and federal appellate courts in more than 100 cases.

"My legal career has been devoted to improving the rights of Montana citizens - requiring gender equity in our high schools, providing stream access to citizens and providing Montanans with the model for the nation's finest public defender system," he said.

As a Helena resident, Waterman said he has been involved in many civic organizations, including more than 35 years on the United Way board. He also serves on the Florence Crittenton Home board and the National Crittenton Foundation.

In recent years, Waterman said he has devoted 20 percent of his professional time to pro bono, or free, legal services for clients who can't afford an attorney.

He and his wife, Mignon, a former state senator, have been married for 44 years and have two adult children.

The Judicial Nomination Commission interviews the applicants for vacant judgeships and recommends a list of from three to five candidates from which the governor selects the new judge.

Mike Wheat, 61, of Bozeman, serves as "of counsel" with the Cok Wheat & Kinzler law firm in Bozeman after being a partner for 27 years. He served for four years in the Montana Senate and lost in the Democratic primary for attorney general last year.

A U.S. Marine Corps machine-gunner in Vietnam in 1968-69, Wheat received the Pur-ple Heart.

He later received political science and law degrees from the University of Montana. He has lived in Montana continuously for 50 years and continuously since 1971.

Wheat was a deputy county attorney in Butte-Silver Bow for three years. He and a law school classmate formed the Cok Wheat law firm where he practiced from 1981-2007 be-fore retiring as a partner.

His practice was almost exclusively plaintiff-oriented and appellate litigation, with an emphasis on personal injury, product liability and insurance-related claims and is now mediation and arbitration, he said.

As a legislator, Wheat chaired the Senate Judiciary Committee in 2005. He said he sponsored a bill reorganizing the Board of Veterans Affairs and was significantly involved in laws creating the Office of the Public Defender and establishing a schedule and fee system for fully adjudicating water rights in Montana.

When asked what qualities differentiate him from other applicants, Wheat replied: "A justice on the Montana Supreme Court should be a person with a broad base of life experience. Variety of life experience provides a solid foundation for making good decisions and exercising common sense.

"I have served in the military, busted my knuckles working construction, started my own legal firm, raised kids and taken care of ailing parents, watched a sibling succumb to the ravages of alcohol addiction and found time to enjoy the peace and solicitude of our mountainous back country and blue ribbon trout streams."

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