Beware the Bull, Not the Kangaroo

Jim NelsonJim Nelson, Montana Supreme Court Justice, (Ret.)

By Jim Nelson, 

Montana Supreme Court Justice (Ret.)

Senator David Howard recently published an op-ed concerning the Montana Supreme Court’s proposed amendment to the Montana lawyers’ Rules of Professional Conduct.  His piece misses the mark.

The rule change under consideration would clarify that it is not only professional misconduct for a lawyer, in conduct related to the practice of law, to engage in harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, marital status and socioeconomic status, but it is also misconduct to harass or discriminate on the basis of a person’s sexual orientation or gender identity. Nothing in the proposed rule change limits the lawyer’s ability to accept, decline or withdraw from representing a client in accordance with the Rules nor does the proposed change impair a lawyer’s freedom of speech or freedom to exercise religion.

Senator Howard begins his piece comparing the Court’s consideration of the rule change to kangaroos roaming from the judicial (b)ranch into the legislative (b)ranch, leaving kangaroo poo on the legislature’s porch. His fix is Senate Joint Resolution 15, which will coral the kangaroos and drive them back.

Senator Howard’s analogy is inapt and his conclusions are wrong.

First, it is not the function of the Legislature to make Rules of Professional Conduct for lawyers.  That power is imposed specifically in the Supreme Court pursuant to Article VII, Section (2)(3) of Montana’s Constitution.  Accordingly, there is no separation of powers issue. The Court is not exercising a power granted to the Legislature.

Second, the proposed rule change pertains to harassment and discrimination in conduct related to the practice of law. The Rule does not impair a lawyer-legislator’s right of free speech.  Indeed if a lawyer-legislator wants to stand on the floor of the Senate or House and make disparaging or bigoted comments about gay people, or black people, or women or Jews, or Poles, or immigrants he or she may exercise his or her free speech right to do so as a legislator. Legislating is not practicing law; if it were, every legislator would have to be lawyer.

Third, SJ 15 is anything but the “polite” missive described by Senator Howard.  Rather, the Resolution is a four page rant replete with questionable legal conclusions, sweeping hyperbole and directed at the Court’s Constitutional Power to make lawyer practice rules and against the American Bar Association. Indeed SJ 15’s selective outrage focusing on the addition of sexual orientation and gender identity to the Rule (without reference to the other discriminatory classifications) bespeaks more to institutional homophobia, than to any legitimate constitutional concerns.

Fourth, it bears stating that there is no constitutional right to discriminate protected anywhere in either the Federal or State Constitution. As far as a lawyer’s right to practice his or her religion, the proposed rule change does not affect that in the slightest—the lawyer may still worship in church, read his or her Bible, pray to Jesus or God, and hate the very air that gay people breathe. Practicing religion is not practicing law; and the proposed rule change pertains to the latter, not the former.

Fifth, the same goes for free speech.  The Rule presently does not and, if changed, will not, prohibit a lawyer from speaking his or her mind about any subject.  If he or she wants to write an op-ed or make a speech decrying gay marriage, or demonizing immigrants or marginalizing women, or insulting Mormons, the First Amendment and Article II, Section 7 guarantees his or her right to do so. The Rule presently and, if amended, will, only prohibit harassment or discrimination in conduct related to the practice of law.

Sixth, and, more to the point, if a lawyer can be disciplined for discriminating in the practice of law against black people (whom he or she believes to be inferior to whites), how is it different that he or she can be similarly disciplined for discriminating in the practice of law against gay, lesbian or transgender people (whom he or she believes have been condemned by God to the eternal fires of hell)? If there is no constitutional problem with the former, why the latter?

Senator Howard’s parade of horribles is just that–baseless fearmongering directed against gay, lesbian and transgender Montana citizens.

In short, beware the bull, not the kangaroo.


Jim Nelson

Montana Supreme Court Justice (Ret.)

Helena, MT


7 Comments on "Beware the Bull, Not the Kangaroo"

  1. Oh no. Senator David looks to legislate,
    as if he is Inept!

    Jim Nelson, at 78 I appreciate, in both senses, the elegance of your presentation of basic elements of thinking.
    Tomorrow I will ask some much younger people to again enjoy the gist of what you have to say. This time in your rejoinder to the Op Ed disinfo on SJ 15.
    Imo, it is not mission creep, but corruption creep deceit, that strives to Legislate Judicial parameters.
    Here we are again. Is SJ 15 intrinsic to Montana,
    or intinsic to an alliance of outside interest groups?
    Or whatever?
    Looking for valid information to share.

  2. Laina Wood Casillas | April 15, 2017 4:31 PM at 4:31 PM |

    All of this baloney – this and the bathroom wars, and “religious freedom” to be hurtful jerks – is really about one thing. Nasty little cretins want to behave cretinously without the judgment of a decent, kindly society which would rightfully regard them as meanspirited and ugly.

    That, and power. Everything pretty much boils down to power

  3. Bob, I don’t have any factual information re: whether SJ 15 is intrinsic to Montana or one of those stock pieces that is written by a “think” tank or special interest group and that is, then, circulated around the states. The way it is written and the language used leads me to suspect the latter, although it is customized somewhat for Montana. The kangaroo thing was puzzling. One would think, that in Montana, one would use the example of herd bulls jumping fences and servicing the cows in a neighbor’s ranch. Regardless of the animal, however, that analogy is just wrong. Thanks for your kind words.

    • Old Line Democrat | April 16, 2017 11:51 AM at 11:51 AM |

      I don’t think there is any question that this is something drafted up by the extreme religious right. In the comments the most vociferous were from the folks aligned with the Juras Supreme Court nomination.
      They might have drafted it directly for Montana at someone’s request but the kangaroo stuff is just an indication of its out of state origin. We can hardly keep up with the drivel they put out as potential legislation and that is why we have had so many goofy statutes passed in the last fifteen years or so. Good statement Justice Nelson.

  4. What I see is the 65th Session with record setting slow volume, and terrible number of junk Bills, but SJ 15 Sponsors grossly neglected the on the face anti-Constitution character of SJ 15.

    Could the AMA in Montana say OK for MD’s to discriminate against Minorities? Even though Constitution says no discrimination.
    Could a Bakers group say it’s OK to discriminate against some types of people who buy wedding cakes?

    Justice Nelson is right on about his fourth point, and now I’ll be asking about institutional homophobia as in point three.

    As to analogy. I wish a Senator would have said we Legislators have no right let alone Law, to go tear down a fence line lawfully installed on a Surveyed line. SCOTUS fences out discrimination by barristers and my other bar tender.

    As to emotion. The rant and rave, and paranoid hyperbole of SJ 15 is
    carelessly sloppy. What childish nonsense.

    Right on, look how many Votes cast for childish nonsense from Kristen Juras.

    And and lots and a lots of Votes cast for elegant nonsense of AG Appointed Lawrence Van Duke when he ran against Mike Wheat for Supreme Court seat.

    Here’s a procedural question way over my head.
    Why not just remove the two words circled in red in this link to a screenshot of first page of SJ 15?

  5. I am sorry. Tablet not pasting screenshot with these words circled


    Social activities on Legal matters?
    Social activities intrinsic to legal matters?
    Social activities period?

  6. (Justice) Jim Nelson makes some good arguments regarding Senator Howard’s op-ed about the proposed changed of rules by the MT Supreme Court! Bravo!

Comments are closed.