BOZEMAN — Dana Christensen remembers teasing his friend Don Molloy when the two were classmates in law school. It would be 10 p.m. and Molloy would still be hard at his studies in the University of Montana’s law library.
“I’d say, ‘Don, you know it’s time for you to go home to your family,’” Christensen recalled. “If he’d had his way, he would stay in the law library all night long. But, he had to sleep and eat once in a while.”
Christensen, now a defense attorney in Kalispell, has since practiced before his old friend, who is now a U.S. District Court Judge in Missoula.
From what he can tell, little has changed.
“At 5 p.m., I’d suggest to the court to take a break,” he said of a typical day in Molloy’s court. “He’d make you go another 45 minutes. Nobody works as hard as Judge Molloy.”
Closely watched cases
One of five U.S. district judges in Montana, Molloy has presided over some of the most closely watched cases in the state since he took the bench in 1996. His rulings have ranked as the most controversial.
That’s been particularly true the past 12 months. In that time, Molloy has ruled that Yellowstone grizzlies are still threatened, that the red slurry dropped on wildfires might be illegal and that the Gallatin Crest should be managed more like wilderness.
In August, he passed down a ruling that stands out even in his notorious career as a judge: his finding that the federal government violated the Endangered Species Act when it used the Wyoming state line to determine which wolves are endangered and which aren’t. And while the ruling dealt only with the language of the act, it sparked a raucous backlash that had one group calling Molloy “today’s biggest threat to wildlife.”
The 64-year-old judge sports a handlebar mustache and an imposing brow, the perfect thumbprint of an Old West marshal. And like a Gary Cooper character, he’s prone to speaking frankly and righteously when feels it is necessary.
During a 2004 sentencing, he said Rush Limbaugh and other “screaming people” lead people to take a view of government that is so unrealistic that it “surprises” him.
The next year, he wrote a critical letter to the Bush administration, saying Montana’s Bush-appointed U.S. Attorney Bill Mercer broke federal law when he moved to Washington, D.C., to serve as senior aide to U.S. Attorney General Alberto Gonzales.
At each step, Molloy has generated plenty of newspaper copy. And the cumulative effect has been a feeling in Montana and beyond that Molloy pushes a liberal agenda from his bench.
To read the blogs, Molloy is a “green judge” and “leftist” who, as one man put it in a letter to the editor recently, “would get the trophy for jobs/industries destroyed in Montana.”
More than headlines
But there’s more to Molloy than makes the headlines. A workaholic who leaves his house at 5:30 every morning, Molloy is known as a tough Irish Catholic deeply proud of his Navy service and Eastern Montana roots. He’s the father of five who calls his wife his biggest support system for putting up with his long hours.
Amongst lawyers, he’s known for being demanding.
“Everybody knows that you have to do your homework” before appearing before Molloy, said Mike Williams, a Missoula lawyer who taught Molloy at the UM law school. “He expects you to own the book and do things right.”
Molloy himself says he has the best job in the world and is unfazed by his critics. The Founding Fathers gave judges lifelong appointments so they could make unpopular decisions. And while he doesn’t discuss issues that are still before the courts, he spoke openly in an interview with the Bozeman Chronicle recently about his life, his service and the state of the American democracy his has sworn to protect. Warning: He’s worried.
Donald W. Molloy was born in Butte in 1946 to Daniel and Rita Molloy, the second of eight children.
His father, a Butte-born Irish Catholic, worked in the copper mines, then attended Carroll College for two years before enlisting in the Army Air Corps and flying 30 missions over Europe during WWII, according to his obituary. After the war, the decorated pilot earned his medical degree and set up a practice in Malta in 1951.
“He was kind of our medical facility for a number of years,” recalled Sharon Emond about Dr. Molloy. Emond is curator of the Phillips County Museum where many of the late doctor’s tools are now part of a display on rural medicine.
Being raised by a man who knew the toils of a copper mine in a farming and ranching community on the eastern plains made an impression on Molloy, the judge said.
“Being from a blue-collar family from Butte and living in a community of farmers and ranchers, they don’t have the luxury of saying, ‘I’m going to work at 9 o’clock,’” he said. “When you’re a doctor in Malta, you don’t say, ‘I’ll be in at 8. When there’re two of you there, one of you is going to be at the hospital all the time.”
Childhood friend Terry Stiles, who still ranches near Malta, described Molloy as a “hard-nosed” and fiercely competitive kid.
“He just did not like to lose at anything,” Stiles said. “In football, he would try to go around you one time. If you tackled him hard, he would act like he was going around you the next time but then run right over you.”
Molloy went on to play running back for the University of Montana Grizzlies, where he enrolled in 1964. To this day, UM football games are one of his few respites from his chambers, he said, and he tries to get to every home game.
He moved to Missoula during a tumultuous chapter in UM history. Students were protesting the Vietnam War and challenging convention.
“I remember having a pretty traditional view of the world...having the American view of things, then coming over here and being exposed to things I’d never heard or read,” he recalled in an interview with the Missoulian last year.
As graduation approached at UM, he was “sweating the draft” and struck up a conversation with some Navy recruiters who were on campus. They talked him and a friend into taking a test to become fighter pilots for the Navy, and for the next five years, Molloy flew F-4 Phantom fighter planes off the deck of the U.S.S. John F. Kennedy.
The aircraft carrier was scheduled to do two tours to Vietnam while Molloy was there, but both times it was diverted to the Mediterranean because of flare-ups in the Middle East, he said. Still, he had major reservations about the Vietnam War, and wrote a letter to then-Sen. Mike Mansfield about his concerns. Mansfield’s personally written reply hangs in Molloy’s chambers.
“Basically, he said, ‘Look, you’ve made your views known, now it’s the job of the Senate and House to determine what the course of action should be,” Molloy said. “I recognized we all have a duty to the country. My obligation is one I felt I fulfilled. I did what I was told. It was a formative experience and something I wouldn’t trade for anything.”
That pride was evident in one of his most publicized rulings from the bench.
In 2006, Molloy heard the case of a Whitefish man who told a probation office he was a Marine veteran and provided photos of himself in a Marine uniform. The claim was false and the photos were frauds.
In addition to giving the man, William Horvath, four months house arrest, Molloy ordered that he spend 50 hours wearing a sandwich board that would read: “I am a liar. I am not a Marine. I have never served my country. I have dishonored veterans of all wars.”
In 2004, the regional magazine High Country News called Molloy, “One of the greenest judges in the West.”
Among his rulings it cited when making that declaration were: ruling that a family with a cabin inside Glacier National Park cannot drive a snowmobile to it, upholding a federal decision to manage 400,000 roadless acres is the Lolo National Forest as off-limits to snowmobiles and stopping 14 logging projects in 2003 alone.
In ruling that grizzly bears in the Greater Yellowstone Ecosystem should not be taken off the endangered species list, part of Molloy’s logic was that government biologists were not taking into account their own science about the dwindling whitebark pine forests that are important for the bears’ diet, drawing protest that the judge was playing scientist.
His ruling that the Gallatin National Forest allowed too much motorized and mechanized use in the Hyalite-Porcupine-Buffalo Horn Wilderness Study Area gave no indication of what the judge thought would be appropriate, leaving forest managers in Bozeman guessing when they went back to the drawing board. Their new travel plan has been widely panned by mountain bikers and motorized users.
But environmentalists contend that there are plenty of cases that show going to Molloy isn’t a slam-dunk for green litigants.
“I think we lose before him more often than we win,” said Michael Garrity, executive director of the Alliance of Wild Rockies, which has filed scores of lawsuits challenging National Forest logging and grazing projects. “Overall, we win more than we lose, but most of those wins are before the 9th Circuit.”
Recent cases include grazing allotments west of West Yellowstone, which Garrity’s group said harmed sage grouse habitat. Molloy allowed the allotments, but was overturned by the appeals court. Twice in the last three months, the Ninth Circuit has blocked logging projects that Molloy had allowed to go forward.
And then there was the criminal charges brought against W.R. Grace, the mining company accused of covering up the health affects of asbestos and poisoning generations of Libby residents. Considered the largest environmental crime case in U.S. history, some observers said it was Molloy who led the jury to acquit the three executives on trial.
At several critical steps, Molloy ruled in favor of the defendants, making what one reporter called a difficult case to begin with impossible for federal prosecutors.
“They got away with murder,” Libby resident Norita Skramstad told a reporter after the Grace executives were found innocent. “Molloy was their best defense; he won it for them.”
“I think people are entitled to their views,” Molloy said. But he added that unpopular rulings are the reason he isn’t up for re-election every four years.
“I have a lifetime job, and part of the reason for judges having lifetime tenure is you’re not supposed to be subject to public pressure or discourse. I think this is a wise decision the Founding Fathers made.”
Molloy, who got his job because a Democratic president (Clinton) took the advice of a Democratic senator (Baucus), has been called a “Butte Democrat” by many. Molloy said his personal politics are irrelevant, but he likes to point out that one person on Montana Public Radio recently said the problem with Molloy is that he was raised at the knee of a Republican judge.
That was a reference to James Battin, who served as a Republican U.S. representative from Montana before President Nixon made him a federal judge in Billings. Molloy clerked for Battin, and said no one other than his dad had a larger influence on him.
Still, politics seem very much on his mind. Reflecting on the importance of the service he and thousands of other men gave in the Vietnam War era, Molloy said he thinks American society since has lost its shared vision.
“The common good now seems something to be really irrelevant,” he said. “Our politics have been reduced to something unrecognizable in a liberal democracy.”
He told a story of visiting Democratic Sen. Mike Mansfield in Washington, D.C., after Molloy left the Navy. Mansfield invited Molloy to join him and Republican Sen. George Aiken of Vermont.
Molloy learned that Mansfield and Aiken, both powerful members of the Senate, had breakfast together three to four times a week.
“I challenge you to find that anywhere,” Molloy said this week. “The incivility, the tone, the lack of the ability to listen really has an impact on all of us.”