Swanson seeks top seat in Montana Supreme Court

Montana Supreme Court Chief Justice candidate Cory Swanson, Broadwater County attorney, stopped in Havre earlier this week and sat down for an interview with the Havre Daily News about his candidacy.

Swanson, who was a deputy attorney general under Tim Fox, said he decided to run primarily out of concern that former state auditor John Morrison would take the seat of Chief Justice Mike McGrath. He said he thought Morrison was unfit for the position.

Morrison has since dropped out, but by that time Swanson was committed to the race, and he still regards himself as the better candidate.

At this point, Swanson and former federal magistrate court judge Jerry Lynch are the only candidates in the race.

Swanson said his primary concern as a candidate is to curb a trend of judicial activism he said he sees within the Montana Supreme Court, a trend he said has manifested in a number of areas.

He said appellate courts, including the Montana Supreme Court are meant to give deference to district courts when it comes to findings of fact unless they are "clearly erroneous" which is a high legal bar, one that he thinks hasn't been met in many cases when the court has reinterpreted said findings.

"I think they are retrying the facts as if they were the trial court," he said. "And I think that creates a problem for district court judges, and undermines their work and undermines their authority."

Swanson also said courts are supposed to make rulings on the narrowest possible grounds that would determine an outcome. Oftentimes, judges will attach further legal comment on a ruling if they feel it will be beneficial to future citation, but these comments are ultimately non-binding.

He said he feels the Supreme Court has been providing these comments too often, not overruling previous precedent, but calling it into question in a way that creates uncertainty for the judicial system, especially in the case of State of Montana v. Noli.

The case resulted in a ruling that made it harder for officers to search and seize property without clear probable cause during traffic stops, and overturned the conviction of a woman traveling with drugs in her car, because the search had been conducted without sufficient justification from the officer who pulled her over for traveling in the passing lane without being in the process of passing.

Swanson said the result of the case didn't overrule anything, but it did cause a great amount of uncertainty for law enforcement.

Beyond these issues, he said, it seems like the Supreme Court is, at times, rewriting law, rather than interpreting it, which is hardly exclusive to Montana, nor any one political party.

He said there has been a nationwide tendency for both major political parties to try to politicize the courts, and both are contributing to a worse judicial system.

"Both sides fighting for an activist court that favors them is the wrong answer," he said. "We don't want a conservative court, we don't want a liberal court. We want the court that is going to be focused on the facts."

Swanson said he doesn't make a secret of the fact that he has a conservative background, but that has no bearing on his interpretations of the law and any judge candidate who weighs in on political issues is showing a bias, a criticism he made of his opponent, Lynch.

Swanson's campaign website promotes him as a "tough on crime county attorney" and "judicial conservative," but he said neither of these contradict his message about a non-partisan court.

He said judicial conservative refers to his stance against judicial activism, not his political stripes, and tough on crime doesn't mean pursuing conviction at the cost of the truth.

He said he just recently investigated a case that had a previously convicted violent offender accused of a similar crime, but the more he looked into it the less likely it seemed that he was guilty and there just wasn't sufficient evidence that he could in good conscience bring a case against the person.

As a private attorney, he said, he mainly represented logging and grazing groups, and as a result gained a reputation as anti-environmentalist, but as Broadwater County Attorney he brought numerous cases where he thought environmental law was being violated, because his job was to enforce the law.

Swanson said his track record shows that he can be unbiased regardless of his political background.

He also talked about recent tensions between the state's judicial and legislative branches.

He said he understands why legislators were upset and accused judges of not being transparent when they found that judges were internally opining on legislation they may one day be ruling on the constitutionality of in 2021.

The case in question was an email poll of members of the state judge association about proposed legislation to change how judges were appointed. The poll was conducted by the Supreme Court administrator.

However, he said some of the behavior of the Legislature and Attorney General Austin Knudsen in response to that has been concerning.

Swanson said he thinks the judicial branch has unclean hands in that case, but openly defying court orders and rulings is absolutely unacceptable.

As for Knudsen, he said, he didn't want to make much comment, but did say that there is a standard of decorum that should be expected in front of the supreme court.

In terms of more general changes in the state's legal system, he said, he would like to see more oral argument at the appellate level, which he thinks will create better outcomes by having greater discussion of cases' nuance and be good training for lawyers.

He also said it would help assure the public that the court is transparent instead of doing everything through closed-door legal filings.

Swanson said he also thinks the courts need to do fewer non-cite opinions, which are shorter opinions that are not allowed to be used as precedent as they regard settled legal questions.

He said this practice has made the courts much more efficient, which has been incredibly helpful over the years, but he thinks they may have overcorrected, as he's seen non-cite opinions that he thinks are relevant to matters not otherwise addressed through precedent.

Swanson also said with Montana growing as a state, and criminal and civil cases increasing along with it, the state needs to hire more judges in general.

He also said he wants to prioritize a move to electronic filing, a transition that has already had some growing pains, but which he thinks will increase the efficiency of the court.

He also thinks counties need support in their efforts to increase security for their courtrooms, which there has been an increasing call for in recent years.

He said the layout of every counties' courthouse is different so there are no one-size-fits-all solutions, but many counties need help from the state to make the changes necessary to ensure safety.