For this and future generations' - ALSO INSIDE: MJF announces Access to Justice grants Mediation settlement conferences - State Bar of Montana
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APRIL/MAY 2022
VOL. 47 | ISS. 5
‘For this
and future
generations’
Montana celebrates
50th anniversary of
state constitution
ALSO INSIDE:
MJF announces Access New column: Jury Behavior
to Justice grants Tax audit myths
Mediation settlement and much more
conferences
APRIL/MAY
2022
VOL. 47 ISS. 5
The Montana Lawyer is published 6 times a
FEATURE ARTICLES
20
year by the State Bar of Montana, 33 S. Last
Chance Gulch, Suite 1B, P.O. Box 577, Helena,
MT 59624 as its official publication for all
members.
Publisher | John Mudd
Editor | Joe Menden
email: editor@montanabar.org
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of Montana.
Postmaster: Send address changes to Montana
THE LAWYERS OF THE 1972 CONSTITUTIONAL CONVENTION
Lawyer, P.O. Box 577, Helena MT 59624. As Montana celebrates the 50th anniversary of the convention,
STATE BAR OFFICERS the Montana Lawyer looks at the 24 lawyers who helped draft it.
President
Brian C. Smith, Missoula
President-Elect
David Steele, Missoula TO ZOOM OR NOT
Secretary-Treasurer TO ZOOM
Alanah Griffith, Big Sky
Immediate Past President
Kate McGrath Ellis, Helena
Weigh the pros and
Chair of the Board
cons when deciding
between in-person
10
J. Stuart Segrest, Helena
BOARD OF TRUSTEES
or virtual mediation
Area A
Randy Snyder, Bigfork conferences.
Area B
Elizabeth Brennan, Missoula
Erica Grinde, Missoula
Beth Hayes, Missoula
Area C
MT JUSTICE FOUNDATION & CASA
Kaylan Minor, Dillon A POWERFUL PARTNERSHIP
Area D
13
Sam Aarab, Great Falls MJF announces over $214K in Access
Gregory Smith, Great Falls
to Justice grants, including awards
Area E
Joel Krautter, Sidney to CASA programs all across Montana.
Area F
J. Stuart Segrest, Helena
Aislinn Brown, Helena
Anna Kecskes, Helena
ALSO IN THIS ISSUE
Area G
Matthew Haus, Bozeman 4 PRESIDENT’S MESSAGE 27 TAX LAW
6 30
Sherine Blackford, Bozeman
MEMBER NEWS PRACTICING WELL
Area H
Shane P. Coleman, Billings 13 ACCESS TO JUSTICE 32 JURY BEHAVIOR
Antoinette “Toni” Tease, Billings
Eli Patten, Billings 17 COURT NEWS 34 RISK MANAGEMENT
ABA DELEGATES
Shane Vannatta, Missoula (Statewide Delegate)
18 CONCON ANNIVERSARY 36 IN MEMORIAM
Tucker Gannett, Billings (State Bar Delegate) 37 JOBS/CLASSIFIEDS
PRESIDENT’S MESSAGE
Celebrate our state constitution,
and all who work to uphold it
While in college, I worked part time for
an attorney who mostly practiced in person- COMMENTARY
al injury law. When I mentioned that I was
thinking about going to law school, the first proper function of the justice system. While
question he asked was what type of law I there are many facets to the justice system,
BRIAN C. SMITH
was interested in. My quick and immediate which itself is a complex tangle of people,
response? Constitutional law. This attorney politics, and justice, one area of common Brian C. Smith is a longtime
said I would not be interested in constitu- ground on which everyone should agree is criminal defense attorney from
tional issues because there was no money this: Missoula who currently serves
in it. Whether Keith Miller was right or Those using the color of state law to as Public Defender Division
wrong, or whether money was even part of incarcerate or otherwise affect the life, administrator with the Montana
my decision-making process, is a discussion liberty, and property of Montana’s citizenry Office of State Public Defender.
for another day, but the sufficiency of pay and those dedicating their lives to defending
didn’t stop 24 lawyers in 1972 from joining our citizens and our Constitution should be
other delegates and spending 56 days in equally compensated.
Helena drafting a new constitution for the The 1972 delegates provided for the and interference, even more so than the
State of Montana. We, the attorneys of the right to counsel in section 24, the Rights of United States Constitution, but our protec-
State Bar of Montana and the citizens of the Accused. “In all criminal prosecutions tions are only as strong as the support we
Montana, are indebted to the contribution the accused shall have the right to appear provide to those that defend it.
of these 24 lawyers. This year is the 50th an- and defend in person and by counsel.” We Was Keith Miller right? So far, yes. But
niversary of the Constitutional Convention, need only look at the resources we give the there is hope he will eventually be wrong.
and it will and should be celebrated. The defense to determine how much we – the For the first time in our nation’s history, we
question going forward is not whether we citizens of Montana – value our constitu- have a former public defender on the high-
should protect and strengthen Montanan’s tional rights, including the right to counsel. est court. Congratulations on your confir-
constitutional rights as it enters its next 50 How much is the right to privacy or the mation, Judge Ketanji Brown Jackson. You
years, but how. This is a weighty question, right to be free from unreasonable search give us hope. The State of Minnesota (where
but one clear answer to enhance and protect and seizures worth? Sections 10 and 11. Keith is from) recently reached an agree-
Montana’s constitution is to invest in those How much is the right to bear arms worth? ment with its defenders to pay them more
individuals dedicating their practices and Section 12. How much is due process and control their caseloads. Oregon appears
their lives to defending it. worth? Section 17. How much is the right to to have made a commitment to re-evaluate
Much of Montana’s Declaration of counsel worth? Section 24. The disparity in the way it provides defense services. The
Rights is protected against government resources is staring us in the face. chief justice of the Oregon Supreme Court
encroachment by attorneys that work for A 2020 legislative audit of the Office of has sounded the alarm and the legislature
and contract with the Office of the State the State Public Defender found that public recently allocated $12.8 million to counties
Public Defender. Nationwide, and in the defenders were paid, on average, less than with the largest shortage of attorneys. The
State of Montana, public defense is at a crisis all other public sector attorneys. When pandemic and attorney shortages have not
point. Montana, Missouri, New Hampshire, comparing public defenders to prosecutors been kind to public defense nationwide,
Oregon, Maine, Minnesota, New Mexico, it isn’t hard to find examples of attorneys including Montana. But also the problem is
Nevada … the list goes on… are all strug- with equal experience commonly being deeply rooted in systems and history. Time
gling with appropriately funding our public paid $10,000 to $15,000 less for comparable will tell how Montana will respond. How
defender systems. Most states and jurisdic- positions, and in some instances the public much is defense of constitutional rights
tions don’t prioritize or invest in public defender pay is as much as $30,000 less than worth? We should value protection of these
defense to provide an even playing field for their prosecution counterparts. Why? Do rights as much as efforts to remove these
the prosecution and defense. Parity between we value the defense of our Constitution rights. Celebrate Montana’s Constitution
defense and the prosecution is a core prin- less? There are solutions to these issues, but this year. But remember, constitutional
ciple of public defense, and the American they require the willingness to invest in our rights are only as strong as their current
Bar Association recognizes it in its Ten Constitution, just as our predecessors did 50 defenders. We had strong attorney defend-
Principles of a Public Defense Delivery years ago at the Constitutional Convention. ers of rights at the 1972 Convention. Here is
System. Pay and resource parity between Montana has a powerfully protective con- to the hope that we will have stronger, well
the defense and prosecution is critical to the stitution against government encroachment resourced, defenders in the present.
4 MONTANALAWYER WWW.MONTANABAR.ORG
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WWW.MONTANABAR.ORG APRIL/MAY2022 5
MEMBER NEWS
CAREER MOVES active outdoors with her dog, reading matters, and cybersecurity breach li-
a variety of literature, and cheering on ability, planning, and incident response
Kimball joins as associate Bobcat athletics. In addition, Kasey matters.
attorney at Berg Lilly PC fulfills her passion for humane and ethi- He can be reached at 406-761-3000.
cal treatment of animals by supporting
Kasey Kimball joined Berg Lilly, PC the Heart of the Valley Animal Shelter VonLangen joins Bilstein,
as an associate attorney in January 2022. and the Humane Society of the United Monson & Small
A Bozeman native, Kimball gradu- States. Since moving back to Montana,
ated from Montana State University Kasey has enjoyed giving back to the Bilstein, Monson & Small in Billings
with high honors in 2015 before moving community by serving as a CAP Mentor has announced that John VonLangen
to New York City where she enrolled in in the Bozeman Public Schools through has joined the firm as an associate
the Honors Program at New York Law Thrive, and looks forward to continued attorney.
School. While in law school, she au- volunteer involvement. VonLangen received a Bachelor of
thored a case comment published by the Science degree in electrical engineer-
Law Review and served as the journal’s Talia returns to Church, Harris, ing from the State University of New
managing editor. Kimball graduated Johnson & Williams in Helena York at Buffalo.
cum laude from After graduation,
New York Law After an eight-year break for service he earned his JD,
School in 2018, re- with the Montana National Guard, cum laude, from
ceiving the Dean’s Mike Talia hung up his fatigues and the University of
Award for Student returned to Church, Harris, Johnson & Dayton School of
Leadership and Williams, P.C. as a shareholder in the Law.
the Faculty Award Helena office. VonLangen
for Outstanding At the Montana National Guard, has practiced law
Service to the Law Talia’s practice focused on compliance, VonLangen in Billings since
Kimball Review. federal contract- December of 2010
Following gradu- ing, government as Senior Counsel
ation, Kimball returned to Montana relations, and for GE Capital US Holdings, Inc. han-
where she practiced with Browning, defensive cyberse- dling a wide variety of legal matters in-
Kaleczyc, Berry & Hoven, P.C. prior to curity operations. cluding commercial contracts, secured
joining Berg Lilly. He was a founding transactions, real estate, business and
Kimball is licensed to practice in content developer corporate law matters, employment is-
Montana state and federal courts and and instructor sues, licensing, data privacy, operations,
the Ninth Circuit Court of Appeals. As of the National internal investigations and regulatory
part of the firm’s litigation and defense Talia Guard Bureau’s and compliance matters. Prior to join-
team, she will be serving clients in the Cyber Law Course, ing GE Capital, in private practice he
areas of general litigation, insurance teaching military represented large and small lenders and
defense, and business and commercial lawyers nationwide about the legal borrowers in finance transactions in-
transactions. Kasey has extensive ex- aspects of public-private partnerships in cluding real estate based loans and asset
perience in contract and tort litigation, incident response. based loans together with loan work-
coverage determinations, employment Talia resumes a litigation practice outs and restructures. He also repre-
actions, and commercial disputes. She focused on commercial, real property, sented individuals, businesses, corpora-
looks forward to continuing to build trust, and estate matters, and he will tions, real estate developers, landlords,
her practice in Bozeman and around the support the firm’s growing personal in- tenants, investors and agribusiness
state. jury practice. He will also take Federal owners handling all of their business,
Away from work, Kasey enjoys Acquisition Regulation-based con- commercial and real estate needs.
spending time with her family, staying tract litigation, government relations VonLangen is licensed to practice
SUBMITTING MEMBER NEWS ANNOUNCEMENTS TO THE MONTANA LAWYER
The Montana Lawyer wel- publications. Please send questions to the
comes news from members If you have news you would same address.
including announcements of like to submit to the Member If you are submitting photos,
new positions, advancements, News section, you can email they must be at a resolution of
honors, appointments and it to editor@montanabar.org. at least 200 ppi.
6 MONTANALAWYER WWW.MONTANABAR.ORG
law in Montana, Alaska and Florida. a shareholder in our firm, which will undergraduate at the University of
On a personal note, John is a father hereafter be known as Smith Oblander Providence. “We knew even then she
of 3 amazing kids. He strives to live a Meade & Mitcham, PC. would be a top-notch attorney and if
healthy and active lifestyle and enjoys Mitcham you have ever practiced with or against
a wide variety of fitness related activi- graduated from Kaitlyn, you know we were right!”
ties in his free time including running, the University of In addition to helping people as
weightlifting, hiking, biking, triathlons, Montana School a lawyer, Kaitlyn also volunteers for
10K’s, half marathons, marathons, ad- of Law in 2017. Big Brothers Big Sisters, and was the
venture races, snowboarding, kayaking She has practiced Secretary of the Cascade County Bar
and paddle boarding, to name a few. with the firm since Association for several years.
that time, engaging
Great Falls firm announces in the general prac-
HONORS
Mitcham as a new partner Mitcham tice of law with an Carestia inducted into national
emphasis in per-
Gregg Smith, Steph Oblander, and sonal injury litigation.
mediation organization
Matt Meade are extremely pleased to The partners say it is especially Pax Dispute Resolution Services,
announce that Kaitlyn Mitcham (for- gratifying to them because Mitcham PLLC is pleased to announced that
merly, Kaitlyn McArthur) has become began her career with the firm as an Brandy Carestia has been inducted into
the National Academy of Distinguished
Neutrals (NADN).
With over two decades of litigation and
alternative dispute resolution experience,
STATE BAR OF MONTANA Carestia specializes in the mediation and
arbitration of a broad range of civil and
LAWYER commercial disputes. She litigated profes-
sional liability, product liability, premises
liability, subrogation, and appellate cases
ASSISTANCE in the San Francisco office of Hinshaw &
Culbertson for several years before return-
PROGRAM ing to her home state of Montana, where
she further expanded her areas of expertise
through a diverse law practice. The reason,
ingenuity, and tenacity she brings to the
mediation process has led to the success-
ful resolution of countless claims since
2003. Brandy also serves as an arbitrator of
various civil claims, including class action
claims across the United States against
several major auto manufacturers. She
founded Pax Dispute Resolution Services,
PLLC to further expand innovative dispute
resolution offerings, including the utiliza-
tion of specifically tailored systems to re-
fine online negotiation, mediation, neutral
evaluation, and arbitration.
Stress? Anxiety? Depression? The National Academy of
Distinguished Neutrals is a professional
Substance abuse or gambling addiction? association whose membership consists
of ADR professionals distinguished by
You don’t have to go it alone. their hands-on experience in the field of
civil and commercial conflict resolution.
Membership is by invitation only and all
24-HOUR HOTLINE Academy members have been thoroughly
406-660-1181 reviewed and found to meet stringent
practice criteria. Members are amongst the
WWW.MONTANABAR.ORG/PAGE/LAP
More News, next page
WWW.MONTANABAR.ORG APRIL/MAY2022 7
sept oct.indd 13 10/18/2018 4:38:16 PM
NEWS
FROM PAGE 7 Gallagher retires after 30 years
with Federal Defenders of MT
most in-demand neutrals in their respec-
tive states, as selected by their peers and
approved by local litigators.
“We’re delighted to recognize Brandy Anthony R. Gallagher retired on maintained an active litigation and
Carestia to the Academy’s Montana April 1 after 30 years as executive appellate practice while serving as
Chapter in recognition of Excellence in director of the Federal Defenders of executive director, “exemplifying
her mediation practice,” commented Montana, having served in that role his incredible work ethic and lead-
Darren Lee, Executive Director of since he was selected as the first execu- ing by example. He has taken part in
NADN. tive director for the Federal Defenders hundreds of jury and non-jury trials,
upon its creation in 1992. argued before the Ninth Circuit on
PUBLICATION The Federal Defenders is a com- numerous occasions, and mentored
munity defender organization created countless attorneys both at the Federal
Zellmer publishes article pursuant to the Criminal Justice Act Defenders of Montana and through the
on freshwater protections to provide criminal defense services to Criminal Justice Act panel mentorship
indigent individuals program. He maintained this practice
Sandra Zellmer, professor of law charged with the full while providing leadership to the Great
at the Blewett School of Law, recently gamut of criminal Falls headquarters office of FDOM, and
published an article on the American accusations in fed- all three branches located across the
College of Environmental Lawyers eral court through- state in Helena, Missoula and Billings,
(ACOEL) website titled “Will the out the district of regularly traveling to provide support
30 x 30 Initiative Protect 30% of the Montana. and management to attorneys and staff
Freshwaters by 2030?” “Under Tony’s throughout the state of Montana.”
Also published by JDSupra and the excellent manage- A fellow of the American College of
Center for Progressive Reform, the ar- ment, the Federal Trial Lawyers, one of the premier legal
ticle examines the global movement to Gallagher
Defenders of associations of America for which mem-
protect 30 percent of the Earth’s lands Montana has bership is extended only by invitation
and waters by 2030. garnered the reputation of providing to extremely experienced trial lawyers
excellent criminal defense services to with the highest ethical, professional,
those charged in federal court,” said and collegial practices, Gallagher has
Hank Branom, senior litigator for the also won countless other awards and
Federal Defenders. The organization has honors. He was named Criminal
grown from five employees in 1992 to Defense Lawyer of the Year in 2005 by
32 employees now, employing a range the Montana Association of Criminal
of individuals from attorneys to legal Defense Lawyers. In 2016, he received
assistants, paralegals, investigators and the prestigious Ninth Circuit John
computer systems analysts. Frank Award, which “recognizes an out-
Before assuming the executive standing lawyer practicing in the federal
director position, Gallagher worked courts of the western United States.”
in both private and public positions. Gallagher has also contributed to
After graduating with distinction from the greater legal community through
Duquesne University in Pittsburgh in sharing his knowledge with others.
1971, and following decorated service He has been an adjunct professor at
in the U.S. Army during the Vietnam three law schools, a guest lecturer at
conflict, he received his Juris Doctor five others, and a featured speaker on
from the University of Baltimore School criminal defense topics and professional
of Law. He then worked for nearly seven ethics for Continuing Legal Education
years as a prosecutor in Baltimore, leav- programs throughout the United States.
ing to become an assistant federal public He has served on a number of local and
defender for the District of Maryland. national committees, expert panels,
After a brief stint in private practice he advisory and working groups, helping
rejoined the Federal Public Defenders in to improve the provision of indigent de-
Maryland as a supervisory assistant, and fense services across the nation, within
later, acting federal public defender.
Branom said that Gallagher More Gallagher, page 19
8 MONTANALAWYER WWW.MONTANABAR.ORG
RELEVANT EXPERIENCE
Cory’s experience litigating and negotiating resolution
in these areas is a distinct advantage:
Boundary disputes Nuisances
Business Partner/Shareholder/
transactions Member disputes
Commercial Personal injury
transactions Probate and will disputes
Construction law Professional negligence
Contract disputes (architects, engineers,
Contract negotiation attorneys, etc.)
Easements Real estate disputes
Employment law Soil and structural
engineering
Encroachments
Union contracts
Insurance coverage
Water disputes
Land use
OUR REFERENCES
I strongly recommend that Cory Gangle be
considered as your mediator. Over the last few
years, I served as a mediator for Cory in a series of
complex litigated matters. I found Cory to always
be extremely prepared. By working with Cory, I
found that he has many of the attributes and skills
necessary to be an effective mediator. These
include his knowledge, experience, intelligence,
patience, neutrality, optimism, respectfulness and
professionalism. I know Cory will do great work”.
GANGLE – Michael A. Viscomi, Esq.
MEDIATION Over the past several years, I have had the
opportunity to mediate many cases in which Cory
Gangle was involved. Cory has evolved into an
outstanding litigant in both his approach to
resolution and demeanor. I believe Cory would be a
A direct hard-working approach to very good mediator, studious, and balancing
dispute resolution. arguments to effect an acceptable resolution. I
recommend Cory as a choice for your mediation”.
Cory Gangle has approximately 20 years of
experience in litigation, business and dispute
negotiation, and transaction review. – Dennis E. Lind, Esq.
Cory’s litigation experience includes both
plaintiffs’ work and defense work (including
insurance defense and insurance coverage).
His experience on all sides brings substantial TO SCHEDULE
value to the dispute resolution process. There are three ways to schedule a mediation
Cory is highly recommended by some of or arbitration:
Montana’s finest mediators. Allow Gangle
Mediation Services to serve as your next 1. Email info@ganglelaw.net
settlement master or mediator. You will not 2. Schedule Online at ganglelaw.net/mediation
be disappointed. 3. Contact us at (406) 273-4304
ganglelaw.net | info@ganglelaw.net | (406) 273-4304 | 3 0 1 1 Am e r i ca n Way, M i s s o u l a , M T 5 9 8 0 8
WWW.MONTANABAR.ORG APRIL/MAY2022 9
MEDIATION CONFERENCES
To Zoom or not to Zoom?
By Brandy Carestia mediation are well-known and have a in tone through a computer speaker,
proven track record. Building the rap- headphones, or ear buds. For attorneys,
The pandemic brought the neces- port and trust that comes from a solid assessing the other side’s “Exhibit A”
sity of online mediation to the forefront handshake and conveying understand- (or giving opposing counsel or a claims
of nearly every attorney’s practice. ing, empathy, and sincerity by looking adjuster the opportunity to do so) is also
Video-conferencing platforms like someone in the eye can be more difficult more effective in person.
Zoom have enabled cases to continue online and is certainly helpful in allow- Frankly, when parties are required
through lockdowns and their use has ing everyone involved to work toward to come together in the same physical
now become the norm. Despite technol- the resolution of a dispute. Recognizing place at the same time to address the
ogy lubricating the wheels of justice to all the nonverbal cues that make up problem that everyone has, there is a
keep them turning through the sludge of such a large piece of what is actually formality to the occasion that reinforces
COVID-19, many of us prefer in-person communicated is more limited when the idea that today is the day to get this
mediation. viewing just the speaker’s face through done. Everyone’s focus is on the same
After all, the benefits of in-person a web camera and listening for changes problem. Now is the time.
10 MONTANALAWYER WWW.MONTANABAR.ORGWhether you hold a conference in person or online can
affect cost, convenience, time – and a whole lot more
The last many months have proven, other business endeavors even longer attendance by all parties is more assured
however, that a good mediator can suc- are all spared when travel is eliminated. without travel being involved. Online
ceed in all that is required to assist the Saving travel costs may also leave more mediation conferences also offer greater
parties in getting cases settled despite resources available for resolution. At accessibility to mediation by allowing
whatever obstacles video conferencing times, larger in-person mediation cases participants to join the mediation from
might present. What may come as a have required clients, attorneys, and any quiet, secure environment with a
surprise to some is that online media- representatives to set aside a full week good internet connection.
tion exerts its own unique impetus in to travel to and conduct an in-person In-person conferences, however,
encouraging cases to settle. mediation. Even local in-person media- allow the mediator to ensure that the
First of all, there are the obvious tions could take a sizable portion of a process remains confidential, ensure
convenience and cost-saving benefits day to drive, fight traffic, find the office that all who have an interest in the reso-
of eliminating the need to travel. Travel location, and park the car. Especially in lution are present, and ensure that no
expenses, gasoline, hourly fees, and the this climate of flight delays or cancella-
opportunity cost of being away from tions and inclement driving conditions, MORE ZOOM, NEXT PAGE
WWW.MONTANABAR.ORG APRIL/MAY2022 11ZOOM conferences, you may not have consid- seat behind you on the plane are not
FROM PREVIOUS PAGE ered, however, the ways in which hold- conducive to the collaborative mindset
ing a mediation conference online can the mediator hopes to foster when the
others are unknowingly present at one actually provide an environment more conference begins. Conflicts are already
of the locations. Because the mediator conducive to settlement than in-person distressing situations. The less anxiety
does not have complete control over the conferences in some cases. In certain a participant experiences of any kind,
physical environment of each party dur- types of cases like family, employment, the more conducive that participant
ing online conferences, the importance and wrongful death, or any highly is to compromise. After dealing with
of confidentiality should be addressed emotional case, the parties may well be whatever travel frustrations they might
prior to the mediation and commit- far more likely to compromise when encounter, people can be understand-
ments that the rules will be followed they are not required to be at the same ably upset or frazzled when they arrive,
should be obtained from each partici- location. requiring more time and effort to bring
pant. While the mediator may have less While the very existence of conflict the parties back to the mindset that
control over each participant’s environ- can be stressful, when people in con- will lead to resolution. Mediators and
ment during an online conference, the flict are in the same room, stress levels the parties instead can benefit from
mediator gains more control over other tend to be even greater. Sometimes individuals starting off more relaxed,
aspects of the process since the media- even inadvertent contact with another at ease, comfortable, and focused at
tor has the ability to mute participants party can cause emotional flare-ups that the outset. More importantly, noth-
or immediately send them to another might cloud one’s ability to make logical ing creates a more relaxed, secure, and
“room”, and has control over what is decisions. Keeping stress levels as low open emotional state than being in
shared on the screen. as possible allows all parties to maintain one’s own home or office. An increased
Online conferences continue to pro- focus on the effort to find a reasonable comfort level leads to greater honesty
vide the opportunity for attorneys and resolution. in the exchange of information and,
their clients to consult and brainstorm Keep in mind that even when a me- ultimately, greater willingness to reach
between caucus sessions in their own diator refrains from bringing everyone a compromise that will ultimately work
breakout rooms, just as is done during together during an in-person mediation for everyone.
in-person conferences. However, in this in a contentious case, each party still And yet, sometimes the parties are
setting, all participants have the oppor- knows the other is in the building and best served by being physically present
tunity to engage in other activities when stress levels and emotions may rise with in one place at the same time, looking
the mediator is with another party. For the worry of running into one another each other and the mediator in the eye,
example, clients are able to tend to other on a break or while entering or leaving and absorbing all the nonverbal cues.
responsibilities at home and attorneys the building, or with the trepidation of Sometimes the benefits of an online
have convenient access to all their files crossing paths enroute to the restroom conference provide a softer path to a
and office staff. Yet, this ability to multi- or when stepping outside for a breath of more advantageous settlement. The
task may result in participants devoting fresh air. Holding a mediation confer- bottom line is that the benefits of an in-
less focus to resolving the dispute than ence online can eliminate the possibility person mediation conference outweigh
they would during an in-person confer- of even catching a glimpse of the other the benefits of an online mediation
ence. In this regard, the mediator can party entirely. The physical separation conference in some cases and the ben-
implement ground rules for keeping from potentially emotionally trigger- efits of an online mediation conference
parties focused and should also be pre- ing individuals and the comfort a home outweigh the benefits of an in-person
pared to intervene when needed if the environment provides can improve the mediation conference in others. A good
parties are not fully engaged. emotional climate in mediation and mediator should be able to skillfully em-
Not only is productivity increased keep everyone’s focus on getting the ploy either method to help the parties
but the convenience that comes with case resolved. Consequently, less stress- resolve the dispute in the most efficient
mediating online allows for greater ful environments enable participants to and beneficial way for all involved.
flexibility in scheduling, as well. For in- think more clearly, be more reasonable,
stance, an online mediation conference more successfully regulate emotions, Brandy Carestia
specializes in the me-
could be scheduled on an afternoon and make better decisions. diation and arbitra-
when one of the parties has another Removing the travel component tion of a broad range
commitment that morning; whereas, also results in less stress in many cases. of civil and commer-
scheduling mediation that day might cial disputes. You can
In a state like Montana, where parties reach her at bcares-
not be feasible at all if that party needed or their attorneys frequently reside in
tia@paxdrs.com
time in the morning to travel to the different locales, white knuckle driv-
mediation. ing for miles in the middle of a snow
While you may have consid- storm or the shrill cry of the baby in the
ered these side advantages of online
12 MONTANALAWYER WWW.MONTANABAR.ORGACCESS TO JUSTICE
CASA organizations around the state are among MJF grant recipients for 2022. (Photo courtesy of CASA of
Yellowstone County)
Montana Justice Foundation and CASA:
A powerful partnership for Montana kids
By Niki Zupanic According to CASA of Montana, even RELATED ARTICLES
Montana Justice Foundation though 914 volunteers were working
with 2,253 children in 2020, nearly 1,000 Development director
They are essential links in the chain children await an advocate of their own. for CASA of Yellowstone
of justice. They speak up for the young- Besides recruitment, groups face other County discusses
est and most vulnerable. They are CASA challenges that come with Montana’s CASA’s work, its needs,
volunteers, advocating for abused and great size and rural makeup. One of our and its partnership
neglected children in Montana. grantees, Eastern Montana CASA, covers with Montana Justice
CASA groups are the only organiza- 18 counties and 105 small towns! Their Foundation. Page 15
tions empowering local citizens to speak hard-working volunteers often drive See the list of organi-
on behalf of children in foster care. Their long distances on two-lane snow-covered zations and programs
work is vital in “normal years.” During roads to visit children. With gas costs ris- from around Montana
these challenging times, with Montana ing, a single trip for a volunteer can run that are 2022 MJF grant
facing alarming increases in child abuse as high as $200. recipients.
and neglect, they are even more essen- Our support of CASA organizations Page 16
tial. That’s why five of our grantees were dates back more than 20 years. In 2021
CASA groups in 2021, and why this year,
we hope to support them even more. MORE MJF, PAGE 15
WWW.MONTANABAR.ORG APRIL/MAY2022 1314 MONTANALAWYER WWW.MONTANABAR.ORG
For CASA programs, needs have never been greater
even as resources are tight, development director says
When it comes to serving I-90- corridor – which can lead to fam-
Yellowstone County’s children in fos- ily breakdowns. The cycle of substance
ter care, what is the current situation abuse is sometimes inter-generational.
for the CASA program? Poverty and untreated mental ill-
The needs are great. Right now, we ness, too. These are multi-dimensional
have 780 children in foster care in the challenges.
county, making us the largest popula- Who is an ideal CASA volunteer?
tion by county of children in need in A volunteer makes a commitment
Montana. But we have less than 300 of 18-24 months to help a child, 5 to 15
volunteer advocates. That means our hours per month is needed. We have
CASA staff need to go through and pri- retired teachers and nurses – these are
oritize, choosing cases where children people who have skills to bring, but
were most seriously abused or severely we also have young professionals and
neglected. We would like to serve each people with a variety of backgrounds.
child who would benefit from having a You can make it work So many poten-
volunteer advocate, but this is just not tial volunteers don’t even know that
possible at this time. they could excel in this role.
What other issues are surfacing? For some advocates, it can be tough,
A disproportionate number of the though. There really is such a thing as
Emily Gaudreau, development
children we serve are Native American. secondary trauma, which can affect a
director for CASA of Yellowstone
Since we are a child-focused organiza- person who is advocating for a child.
County.
tion, we need to embrace the cultures But it’s rewarding. Sometimes a CASA
our children come from and make our Has the pandemic affected how volunteer is the sole constant in a child’s
training and programs inclusive. We your organization works? life filled with turmoil and uncertainty.
don’t just want to be “checking a box” Yes, very much so. We likely lost These children go from home to home,
on surveys about diversity – these are about a quarter of our advocates dur- school to school in an overwhelmed
values we need to carry out in practical ing the whole time, and some of those system. Reliability from some adult
terms. We’re making real strides in this decreases are still going on. Some is important. Volunteers see children
area. volunteers were unable to keep helping through key milestones.
How has Montana Justice us because of Covid restrictions, or bal- Given the tough situation, what
Foundation helped with those ancing their own family needs. We will keeps you going?
challenges? need to rebuild. In a social system that is In my three years in this role, I’ve
Definitely by supporting training of overloaded, volunteers and profession- always found it personally inspiring. I’m
new volunteers. Helping us to create als alike are stretched thin. fortunate to be here. Everyone wants
quality materials and pay for the costs of The pandemic revealed stresses their community to be the best place
holding our recruitment events, train- that were already present, though, that to live and work and have friends and
ings and with recognition of quality contribute to child welfare cases going family. I’m no different. I truly believe
volunteers. Recruitment and retention up. Current challenges that we face are that the best way to invest in the future
efforts really are key to our success and an increase in methamphetamine use of our communities is to work with our
you support us in that way. – it’s linked to the trafficking along the children.
counties. Our grantees consistently grantees have been even more flexible
MJF deliver exceptional assistance, employ- and innovative during these uncertain
FROM PAGE 13
ing data-informed and evidence-based times.
and 2022, we made grants to CASA pro- strategies that result in better outcomes Your support through Montana
grams stretching from Libby to Ekalaka, for the children they serve. In December Justice Foundation makes a differ-
including organizations in eastern 2021, we invited CASA of Yellowstone ence to our grantees across the state.
Montana, and Yellowstone, Missoula, County to talk to our Board of Directors Unfortunately, our ability to fully
Lake, Sanders, Lincoln, and Flathead and highlight their work (see sidebar). It
was clear from that discussion that our MORE MJF, NEXT PAGE
WWW.MONTANABAR.ORG APRIL/MAY2022 15MJF announces $241K in Access to Justice Grants
The Montana Justice Foundation at Montana Fair Housing in Butte, MJF GRANT RECIPIENTS
is proud to announce the 2021-2022 and the Montana Innocence Project’s
recipients of our Access to Justice wrongful conviction program. MJF also The following organizations have
received Montana Justice Foundation
Grants. This past year, MJF made new awarded a grant to the International
Access to Justice Grants.
awards totaling $241,500 to 15 nonprofit Rescue Committee in Missoula, al-
organizations across the state. Our grant lowing them to continue providing Organization Award
programs serve ordinary Montanans: low- and no-fee immigration services Montana Legal Services Association $172,500
children in foster care, families work- to refugees, asylees, and immigrants Montana Legal Services Association
ing to make ends meet, veterans denied throughout the state. And as Montana Eviction Data Project $6,000
hard-earned benefits, seniors, and continues to grapple with the pandemic
Cascade County Law Clinic $4,875
survivors escaping abusive and violent recovery – and many communities face
environments. We support projects alarming increases in child abuse and SAFE Harbor $5,000
that help people stay in stable housing, neglect cases, in particular – Montana YWCA of Billings $5,625
receive medical care, and get back onto a Justice Foundation continues to provide YWCA of Missoula $2,000
path of safety and financial security. funding to Court Appointed Special
Community Dispute Resolution
Many of our grantee organizations Advocate (CASA) programs to en- Center of Missoula County $4,000
provide direct legal representation, such sure that children have a voice as they
Billings Mediation Center $3,500
as Montana Legal Services Association, navigate the legal system. [See Montana
Cascade County Law Clinic, and pro- Justice Foundation and CASA: Powerful Montana Fair Housing $5,500
grams that serve survivors of sexual Partnership for Children starting on Montana Innocence Project $3,000
assault and domestic violence, such as page 12] International Rescue Committee of
SAFE Harbor of Ronan and the YWCAs Funding for our Access to Justice Missoula $3,000
in Billings and Missoula. However, the Grants is made possible through the CASA of Yellowstone County $5,000
range of services provided by our grant- generous support of our donors and
CASA of Lake & Sanders Counties $4,500
ees includes so much more. Montana the Interest on Lawyers Trust Accounts
Justice Foundation grants went to the (IOLTA) program. MJF is grateful to at- CASA for Kids $4,500
mediation programs at the Billings torneys for maintaining their IOLTA ac- CASA of Missoula $3,000
Mediation Center and the Community counts, which helps us provide funding Eastern Montana CASA GAL $9,500
Dispute Resolution Center in Missoula, to impactful legal aid programs across
Total $241,500
the housing discrimination program our state.
MJF and even turn away new grantees. In across the state, and possibly offer our
FROM PREVIOUS PAGE each of our last 10 years, requests from current grantees technical assistance
worthy groups have exceeded our abil- or strategic advice. Your support will
fund the deserving organizations is ity to help. help expand the powerful partnership
in jeopardy. Historically low interest With additional funding from our between the legal community and orga-
rates have devastated our funding from foundation, CASA programs could nizations that make our justice system
IOLTA accounts. Even as the need for recruit, train and retain many more work better – for more than 3,000 of
assistance has never been greater, we volunteers. Your gifts would pay for Montana’s most deserving children.
have fewer resources for our grant- educational sessions, producing materi-
Niki Zupanic has been the execu-
ees. In 2021, we had no choice but to als and ongoing travel needs. With tive director of the Montana Justice
reduce all our existing grantees’ awards, your help, we could fund more groups Foundation since December 2015.
16 MONTANALAWYER WWW.MONTANABAR.ORGCOURT NEWS
Court approves Rules for Access
to Trial Court Public Record Portal
The Montana Supreme Court on court records available through local service, and
April 7 approved Rules for Access to Clerks of Courts’ offices. Access to offi- g. Not unduly burden the ongoing
the Trial Court Public Record Portal cial court records is governed by statute business of the judiciary.
proposed by the court’s Commission on and court orders. Best practice guides Section 2.00 - Who Has Access
Technology effective immediately. for searching and using the public por- under these Rules
The court considered the proposed tal, including links to the appropriate lo- Every member of the public will have
rules at a public meeting on April 5, cal court, are available at courts.mt.gov. the same access, at no cost, to the trial
inviting comments and questions from The public portal is intended to: court public portal as deployed by the
interested parties and the public. Maximize accessibility to court Office of Court Administrator under
Following is the text of the sections records, the direction of the Commission on
stating the purpose of the rules and who a. Support the role of the Technology. The COT recognizes the
has access under them. judiciary, rules will need to change as more courts
Section 1.00 - Purpose of these b. Promote governmental use e-filing and different technologies
Rules: accountability, become available to increase the type of
These rules provide policy guidance c. Contribute to public safety, information available in a centralized
for the use of the Full Court Enterprise d. Protect individual privacy public portal.
portal that provides public access to re- rights and interests, The court’s order and the adopted
cords filed with district court and courts e. Make most effective use of rules are posted online at
of limited jurisdiction. These rules are court and clerk of court staff, www.montanabar.org.
not intended to address access to official f. Provide excellent customer
Haladay, Mendenhall, Ogle tapped for Commission on Practice
The Montana Supreme Court has County. represent Area F, which consists of Lewis
appointed three attorney members to the Missoula attorney Carl Mendenhall and Clark and Broadwater counties.
court’s Commission on Practice repre- was reappointed to represent Area B, Haladay, Mendenhall and Ogle were
senting Areas A, B, and F. which consists of Missoula and Mineral selected after elections were conducted
Kalispell attorney Randall S. Ogle was Counties. in their respective districts. The top three
reappointed to the commission to repre- Helena attorney Andres Haladay candidates in each election were for-
sent Area A, which consists of Flathead was appointed to the commission to warded to the court for selection.
Intelligent, Experienced, Prepared, Impartial
- Mediator of Legal Disputes Before and During Litigation
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- Certified in Online Mediation
Regardless of the nature of a dispute, we are here to help you
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Visit www.tremperlaw.com for availability. | (406) 761-9400 | Great Falls, Montana
WWW.MONTANABAR.ORG APRIL/MAY2022 17MONTANA CONSTITUTION
50th Anniversary Constitution Celebration
event to be held at State Capitol June 15-16
“We the people of Montana grateful to immediately accepted the opportunity.
God for the quiet beauty of our state, the The committee has been working
grandeur of our mountains, the vastness of hard to put together a series of events
our rolling plains, and desiring to improve across Montana on the Constitution’s
the quality of life, equality of opportunity 50th Anniversary. The planned events
and to secure the blessings of liberty for highlight the Constitution’s uniqueness
this and future generations do ordain and and importance. We hope to promote a
establish this constitution.” – Preamble, better understanding of its provisions by
Montana Constitution. all Montana citizens.
On May 23, in conjunction with the
By Joel Krautter Mike Mansfield Center and Leadership
Montana, CCCC will conduct concur-
Every time I read the Preamble to rent “We the People” community discus-
our Montana Constitution I am filled sions about Montana’s Constitution in CELEBRATION
with pride and inspiration. Not only do I Billings, Bozeman, Butte, Great Falls, COMMITTEE MEMBERS
get to call this great state home, but, as a Helena, Kalispell, Lewistown, Missoula
Montana attorney, I am thankful to take and Sidney. On June 15-16, the 50th The Constitutional Convention
and adhere to an oath to “support, protect Anniversary Constitution Celebration Celebration Committee is made
and defend” our beautifully written and will culminate in Helena at the State up of Governors Ted Schwinden,
forward-looking Constitution. Capitol and the Montana Historical Marc Racicot, Brian Schweitzer
Fifty years ago,100 citizen-delegates Society, with a series of tributes, recep- and Steve Bullock, honor-
from every corner of the state came to- tions, panel discussions and keynote ary chairs; Co-Chair Mae Nan
gether to draft our Constitution. “We the addresses. In the spirit of the 1972 Ellingson of Missoula, retired
people” adopted it, and we are the source Constitution, all events are free and open attorney and ConCon Delegate;
of all political power. Many provisions to the public. For those in the legal pro- Co-Chair Jerry Loendorf of
have come to be taken for granted by fession, CLE credit approval for the panel Helena, retired attorney and
today’s Montanans – the right to privacy, discussions is pending. ConCon Delegate; Evan Barrett
the right to know about and participate I strongly encourage you to attend at of Butte, ConCon historian;
in government operations, the right to least one event near you or in Helena. I Norma Bixby of Lame Deer,
a clean and healthful environment, the also ask you to tell your friends, family, former MT State Legislator and
right to equality in educational opportu- neighbors, and fellow citizens about the Indian Education Specialist; Bob
nity, and the fundamental right to vote, schedule of events. This is a time for the Brown of Whitefish, former MT
to name just a few. Yet an awareness citizens of our State to be vigilant about Senate President and Secretary
of Montana history tells us that these our democracy and promote and foster of State; Tim Fox of Helena, for-
provisions mark a dramatic change from trust in our institutions, so as to strength- mer MT Attorney General; Mike
the Copper King era, and they make en support for its foundation, the rule of Halligan of Missoula, attorney
Montana’s Constitution a model for law. I hope that you will join us in cel- and former State Senator; Joel
other states. ebrating our groundbreaking Montana Krautter of Sidney, attorney and
Thus, when I received a phone call Constitution on its 50th Anniversary by former State Legislator; Nancy
asking if I would consider serving on the attending a “We the People” event and Leifer of Missoula, President of
Constitutional Convention Celebration the celebration in Helena on June 15 and the League of Women Voters of
Committee (CCCC), to help plan and 16! Montana; Rob Saldin of Missoula,
organize the 50th Anniversary celebra- UM Professor and the Maureen
tion of the 1972 Montana Constitutional Joel G. Krautter is an attorney with the and Mike Mansfield Center; and
Netzer Law Office, P.C., a former State
Convention and the Constitution itself Representative and a member of the
Chantel Scheiffer of Helena,
– I considered it the honor of a lifetime Constitutional Convention Celebration Executive Director of Leadership
to serve among this distinguished group Committee. He is a State Bar of Montana Montana.
of Montanans in this endeavor and Trustee representing Area E.
18 MONTANALAWYER WWW.MONTANABAR.ORGCriminal Law Section ‘CLE & 29 applicants pass
February bar exam
Breathe’ is June 10 in Choteau Congratulations to the 29 people
The Criminal Law Section of the Best who received passing scores on the
Montana State Bar is hosting the first ■ Brady & Giglio Issues: Keeping February 2022 bar exam in Montana.
CLE & BREATHE in Choteau on Officers Honest, presented by Adam They were among the 51 candidates
Friday, June 10, from 8 a.m to 1:15 p.m. Durek for admission to the Montana bar who
The CLE portion consists of 5 approved ■ Jury Instructions: To Appeal took the exam Feb. 22-23. They are:
CLE credits. The “BREATHE” portion or Not to Appeal, presented by Colin ■ Nicole Kathleen Auer
consists of the option to purchase a dis- Stephens and Jordan Kilby. ■ Jeffrey Keith Bass
counted ticket to the Front Range Yoga In an effort to promote lawyer well- ■ Abra Leigh Noelle Belke
Festival. ness, the section invites you to come for ■ Kevin Michael Bratcher
Following is the agenda for the CLE the CLE and stay for the weekend. The ■ Jordan Raymond Bridgman
programming: yoga festival begins Friday afternoon ■ Julie Ann Casey
■ Involuntary Commitments and and finishes Sunday afternoon. ■ Madeline Marie Clark
Mental Health in the Justice System: You can register online at www. ■ Kaitlin Lyn Crowell
Q&A with District Judge Elizabeth montanabar.org under “Events.” ■ Nathan Rolfe Eaton
■ Daniel Andrew Elsen
■ Lindsay Mikal Garpestad
■ Van Ellis Gillette
50TH ANNIVERSARY CONSTITUTION CELEBRATION ■ Emil Andrew Gjester
JUNE 15-16 — STATE CAPITOL, HELENA — CLE CREDIT PENDING ■ Daniel Rashad Horton
■ Sarah Genevieve Klein
Wednesday June 15th ■ Dustin Lee Kuipers
• Opening Greetings from former ■ Erin Elizabeth Mahaney
Governor Ted Schwinden, ■ Ralph Lewis Matthews
remarks from former Governor ■ Karla Lizeth Mendez Arellano
Brian Schweitzer, and welcome ■ Ryan Alexander Payne
from Governor Greg Gianforte. ■ Helena Theresa Pegram
• Panel Discussions 1-2: ■ Lee Ann Marie Pekovitch
о “The Beginning” – How it ■ Mason Breckenridge Reay
came to be: why, when, what, ■ Kelsey Sabol
and who” ■ Holly Ann Seymour
о “Let the Sunshine In” Right ■ Amanda Gail Smith
to Know, Right to Participate, ■ Kathleen Lynn Smithgall
Open Government at all levels. ■ Austin Irene Helene Wallis
• Evening cocktail reception at is unique among State
Constitutions in providing the ■ Lindsay Kay Whalen
the Montana Historical Society.
Right to a Clean and Healthful
Thursday June 16th Environment. What does this GALLAGHER
• Welcome from Chief Justice FROM PAGE 8
mean, and what have been the
McGrath implications? both the Federal Defender and private
• Lunch in the Rotunda with о “Montana’s Unique and communities.
guest speakers: Montana’s Comprehensive Declaration of In addition, Gallagher has contrib-
Constitution and Native Rights” uted to his local community in Great
Americans о “Revenue and Taxation” Falls and the surrounding area, serving
• Panel Discussions 3-7: – Basic provisions of the as a small college football official, and
о “The Basic Rule of Law: the Constitution. an American Legion baseball umpire for
Backbone of a Constitution” о “Education and Public more than 30 years. To this day, Tony
The separation of powers and Lands” continues to be a high school football
checks and balances in the three • Closing remarks with Mae Nan official.
branches of government. Ellingson, former Governors Although he is retiring from the ex-
о “Natural Resources and Marc Racicot and Steve Bullock. ecutive director position, after enjoying
Water” Montana’s Constitution retirement for a bit, he will continue to
practice federal criminal defense.
WWW.MONTANABAR.ORG APRIL/MAY2022 19FEATURE ARTICLE
THE LAWYERS
OF THE 1972
CONSTITUTIONAL
CONVENTION
24 Montana attorneys served among the 100
delegates at the convention. The landmark document
they helped create remains strong 50 years later.
By Joe Menden
Photos courtesy of Montana Memory Project and Digital Commons at Montana Tech
20 MONTANALAWYER WWW.MONTANABAR.ORGThis spring marked the 50th anni- a political party and Democrats held a
I think our Constitution is versary of Montana’s momentous 1972 large majority, the convention was by
the finest gift to the young Constitutional Convention. all accounts a nonpartisan affair. That
people of Montana That year, 100 Montanans gathered nonpartisan atmosphere was cultivated
in Helena for the monumental task of by Convention President Leo Graybill,
that it is within drafting a new constitution over 56 days. a lawyer from Great Falls, who set the
our power to give. The result of their work was a docu- tone by seating delegates in alphabetical
ment signed by all 100 delegates – 58 order rather than by party affiliation.
James C. Garlington, Missoula Democrats, 36 Republicans and six Among Graybill’s other important
Independents. Of those 100 delegates, decisions were his choices for commit-
in a speech to delegates before
24 were lawyers – 14 Democrats, nine tee assignments. Over 80% of the del-
the signing of the Constitution Republicans and an Independent. egates were assigned to their first choice
The document created by the 100 of committees, and all but four were
delegates who gathered in Helena 50 assigned to one of their top four choices.
years ago was not without detractors But, as Graybill noted in his foreword to
or controversy. Voters ratified it by the the transcript of the convention, he also
slimmest of margins of only 2,532 votes, took care to ensure each committee was
and it survived a court challenge by a balanced based on party representation
3-2 decision in the Montana Supreme while also containing people who were
Court. But it has stood the test of time, strong advocates of opposing ideologies
thanks in large part to the 24 lawyer- on the subject.
delegates, who brought expertise from Noted Thomas Joyce, a lawyer-
a variety of subject matters – taxation, delegate from Butte who served as the
government, water law, property law, chairman of the Executive Committee:
and, of course, a deep understanding “no vote in the Convention itself other
of how the law works and how to make than the election of officers was decided
James Garlington signs the newly
the constitution stand up to the scrutiny on party lines.”
drafted Montana Constitution on
they knew it would receive. In 2010, Illustrating that nonpartisan spirit
March 22, 1972. At his left is del-
the Constitution’s lasting strength was was James Garlington of Missoula, a
egate Jean Bowman, who is one of
three delegates who became law-
demonstrated when voters rejected a Republican who at 64 was the elder
yers after the convention. proposal for a new constitutional con- statesman among the lawyer-delegates.
vention by a 59-41 margin. Garlington would go on to be one of the
Despite the fact that delegates most outspoken advocates for its ratifi-
were required to run as a member of cation after the convention.
WWW.MONTANABAR.ORG APRIL/MAY2022 21You can also read
