Why you should support Beth Baker for Supreme Court

Supreme Court Candidate Beth Baker, MCV-endorsed, and her opponent, Nels Swandal, faced off at the Republican convention, where Swandal, who declined meeting with MCV for an endorsement interview, attacked us for being against private property rights. Really?
Read about Baker and Swandal's exchange below and check out Swandal's dissenting opinion about the game farm initiative I-143.  And support Beth Baker for balance and a commitment to Montana's constitution.

Paid for by MCV PAC Box 63 Billings MT 59103 Dave Tyler Treasurer

From the Billings Gazette, Mike Dennison

State District Judge Nels Swandal, who’s running for an open seat on the Montana Supreme Court, sent some clear signals Saturday to Republicans that he is the more conservative candidate in the race, saying he didn’t have or want the endorsement of a prominent labor or conservation group.

Swandal, speaking at a forum at the Republican Party Platform Convention in Billings, said some of the questions posed by the Montana AFL-CIO to candidates “are among the most un-American ideas I’ve ever seen,” and that he wouldn’t seek endorsement of the Montana Conservation Voters “because of their assault on private property.”

Helena attorney Beth Baker, his opponent, who’s been endorsed by both groups, told the 100 people at the forum that it’s more important to evaluate judicial candidates based on the work they’ve done as a lawyer.

Baker said that during her 25-year career, she has represented all types of clients, from businesses suing the government to poor people who don’t understand their rights under the law. That experience has taught her how to treat all parties fairly, she said — and that’s what Montanans want in a judge. “My experience has been shaped by the law, not by politics or agendas or by ideology,” she said. “Whether you’re a business owner, a teacher, a firefighter or a sportsman, your interests are best-served by electing a judge who will study the law and make decisions based on the law and the facts.”

Baker and Swandal are running for the seat of retiring Justice William Leaphart — the only open seat on Montana’s seven-person Supreme Court.

Their race is one of only two statewide contested elections this year in Montana.

The forum Saturday at the Republican Party Platform Convention was one of the first joint appearances by the two Supreme Court candidates during the general election campaign. Both candidates said the race is an important one, yet that the nonpartisan contest often doesn’t get much attention. People rarely know much about the candidates or the court, they said.

Swandal, of Livingston, emphasized that if he wins, he’d be the only Supreme Court justice with the experience of being a district judge, a post he has held in Park and Sweet Grass counties since 1995. He noted that he has been endorsed by 24 district judges. He also worked as a private attorney and county attorney before becoming a judge. “I know what the Supreme Court does; I’ve been there,” he said. “Anything the Supreme Court has heard, I’ve heard. I can step right in.

“There is no judge on the Supreme Court. Nobody’s been in the trenches. Sometimes I wonder if the justices have ever even read the statutes.”

Baker, who’s worked as a private attorney and as a deputy attorney general under two state attorneys general, said she doesn’t think working as a judge is “in the trenches.” Rather, it’s representing all types of clients before the court, she said.

She also suggested that Swandal has an agenda of “not reversing district judges” on their decisions — an agenda she said a Supreme Court justice shouldn’t have.

“The Supreme Court is where you go if you think the trial judge has made a mistake,” Baker said. “It’s not the job of the Supreme Court to protect the district judge. It’s the job of the Supreme Court to protect your rights.”

Swandal said he would try to follow precedent — unless it’s the wrong decision — and that he wouldn’t hesitate to stand up and rule against legislative actions or other actions that violate individual rights, as spelled out in the state constitution. Swandal also said he thought President Barack Obama’s latest nominee for the U.S. Supreme Court, Elena Kagan, would be “an absolute disaster,” and that she “doesn’t even believe in the Constitution.”

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A case of particular interest is one in which Judge Swandal sat on the high court for Justice Brian Morris, argued in 2006 and decided in 2008, involving takings and game farms, in Buhmann, Circle Eagle Game Farm, Len Wallace, Big Velvet Ranch and other parties Plaintiffs v. State of Montana, Sportsmen for I-143 and Montana Wildlife Federation, Defendants, 201 P3 70, 348 MT 205.  The majority of the Montana Supreme Court held that there was no "takings" of the plaintiff's investment in elk and real estate due to voters' passage of the initiative prohibiting fee-shooting on game farms and the transfer of licenses relating to them. 

The court's determination was based on fairly complex analysis of cases defining "regulatory" and "categorical" taking.  Swandal "strongly" dissented, disdaining "the majority's circuitous reasoning, its disdain for private property rights, its endorsement of unprincipled and unfettered government action, which will result in the total loss of value, without compensation, of some of the property at issue...."  He argues that there is no basis in the state contitution to make a distinction between real and personal property, that "this Court has ignored its obligations and has abandoned any effort to match the benefits to the State of this taking with the burden imposed on the businesses," and "As written and passed, I-143 did not benefit the state but rather certain persons' unfounded "right not to be offended." 

In his dissent he references Ayn Rand, author of Atlas Shrugged," (the term picked up by political protestors' "Montana Shrugged") as "correctly observ(ing) that the right to life is the source of all rights--and the right to property is their only implementation.  Without property rights, no other rights are possible."  His passion in this dissent ends with a statement holding the state's high court in contempt:  "Under the majority's opinion, the State suffers no consequences for the exercise of coercive and unreasonable power in destroying these businesses. 

There is no serious effort to balance benefits and burdens.  It may be too early to start asking, 'Who is John Galt?' but more decisions like this will seriously impact all private property and business owners in this State."