Interview with Supreme Court Candidate Kristen Juras

Originally published September 19th, 2015.

In the upcoming election cycle, the Montana Supreme Court will be filling an open position on the Court. Candidates running for the the position as Supreme Court Justice are non-partisan and as such, talking with them about their view of law is vitally important so as to make an informed voting decision. The Montana Supreme Court is a powerful piece of the Montanan government, but candidates rarely get the same acknowledgement as the governor’s race or as much as some of the national races.

We were fortunate to be able to sit down with on of the Montana Supreme Court Candidates, Kristen Juras, a few weeks ago. The official interview is about twenty five minutes long and we highly recommend that you listen to the complete audio as the summary does not do full justice to the candidate. The audio is available below. In regards to the layout, the bold text below is the interviewer, and the regular font is the candidate’s response.

Complete Audio Interview

Kristen Gustafson Juras is running for a position on the Montana Supreme Court in 2016. Kristen is a fourth-generation Montanan with strong family values and deep agricultural roots. She was born and raised in the rural community of Conrad, graduating with high honors from the University of Montana in 1977 and magna cum laude from the University of Georgia School of Law in 1982.
She has practiced law for more than thirty years, primarily representing individuals, agricultural producers, and small business owners in the areas of agricultural law, business law, family law, estate planning, property law, tax law, and water law.
Since 2000, she has taught as a professor at the University of Montana School of Law, where she also serves as the faculty advisor of the Christian Legal Society.
She provides several hundred hours of free legal assistance to individuals and nonprofit organizations each year and in 1999 was the recipient of the Robert P. Goff Pro Bono Award. Kristen also serves on the board of directors of several nonprofit corporations, including the Pondera Healthcare Foundation and Montanans Against Assisted Suicide.
Kristen and her husband of more than thirty years, John Juras, reside in Great Falls. They have three grown sons and one granddaughter.

Could you explain why you are qualified to serve on the MT Supreme Court and could you tell us about the principles you live by?

Yes, and thank you for allowing me to be here and for the opportunity to speak with you. My qualifications for the Supreme Court are my thirty plus years of practice representing individuals, small business owners, and agricultural producers in the daily issues they face. That includes contract and property issues, water rights, family law, tax planning, estate planning probates, wills…it is a very broad experience. Currently there is not a justice on the MT Supreme Court that has that sort of experience. I am running for the MT Supreme Court because I believe that is a voice that should be represented on the MT Supreme Court. Approximately 40% of the cases that the court hears address those sort of issues. I’m not saying the experiences of the sitting justices are not valuable, they are, but it is important to have diversity of perspective when addressing important legal issues.

So, number one, my depth of experience and the type of experience I have. Number two, for the past fifteen years, in addition to a private practice, I have been teaching law at the University of Montana School of Law. That has honed my ability to break down the law into understandable segments and to apply the law to specific fact situations. I have become much more knowledgeable about the law by having to teach; it brings out the depth and a fuller understanding of the law. I have also conducted research and exercised my analytical skills in writing numerous publications as well as being in the class room and providing lectures to attorneys and non-attorneys throughout the state in these and other areas of law. That is an additional qualification that I have learned as a professor.

I am also very dedicated to the access of the legal system especially by those who are low income or are somehow marginalized or face barriers in hearing their cases or simply getting their cases to the judicial system. That is one of the reasons I provide so much pro bono (free) legal service. This past year I have spent over 400 hours with some particularly difficult cases. Two of my clients have mental health issues and that has opened my eyes so see how important it is to improve access to the legal system for those individuals. I would be devoted to working on the court to help people get into the court system who otherwise wouldn’t be able to do it.

Do you have one of your publications that you could recommend to us?

I have a number of publications and presentations available on my website. (Click here for one such example.)

How would you describe the law and its purpose? How would you, as a Supreme Court Justice here in Montana, fit in with that?

To adequately describe the law and its purpose would take a long time. There are two sources of law. In academic circles we speak of natural law — which is not man-made law — and then man-made law, which is often addressed as positive law. For example, when you talk about property law, you have to ask some initial questions: how are property rights created? How are they protected? Is that part of a natural law/ natural system or does man add to it by creating laws to define and protect property rights. I believe that property law, for example, is a combination of both. From ancient times, in Genesis, Lot and Abraham looked at the land and divided it amongst themselves. Even in other cultures there are origins of private property and concepts of property. But today in the system of law, most scholars would say that property law means that you don’t have a property right unless it is protected by the state. The state has an important role in defining what property rights are and you can see across cultures that property rights are defined differently. For example, Native Americans originally had a communal concept of property rights instead of private ownership. Boundaries changed and it was based on use of land. In China today there is not private ownership. But in the United States, generally we have private property law which has developed over hundreds of years.

How does law develop? And what is the purpose of the law? You have to look at both of those things. The purpose of the law is to regulate affairs between citizens of a given state or country and those laws vary culture to culture, land to land. We are blessed to live in the United States of America and the democratic process where we have today citizens who elect legislators who create the law. The court’s role is not that of a legislative body. The court’s role is to interpret fairly and consistently apply those laws to the particular disputes that come before the court. So part of my judicial philosophy is that the court is not the body that creates public policy/laws —with rare exceptions like when there might be gaps that must be filled that the legislature has not addressed. Its job is to interpret and apply the laws that the legislature has enacted.

How would you approach a situation where the written law violates natural law?

In our legal system today, the role of the courts is to interpret and apply the laws that have been adopted by the legislature. In a minute I am going to address court created laws such as the recent U.S. Supreme Court decision. Even if I personally would not have supported a particular law, would not have voted for it, and I believe the law is not wise, as a judge, it is my responsibility to interpret, enforce, and apply that law. Even if I am not a fan of that law, my personal opinions/preferences aren’t important in that case.

There are exceptions. If a law is unconstitutional, then it is the role of the court to not enforce a particular law and declare it to be unconstitutional. Under our rule of law, our judicial system, the personal preferences of judges don’t allow them to disregard laws they don’t personally agree with. It is the role of the legislature and the role of the citizens to go to their legislators and tell them to go back and change those laws that they believe are immoral.

The U.S. Supreme Court has ruled against traditional marriage, invoking the Constitution. It has also denied the unborn their right to life. Here in Montana, what can you do on the Supreme Court to protect the dignity of the person and all life while still respecting the rule of law?

So under the Supremacy Clause of the United States Constitution the courts of Montana are bound to apply the decisions of the U.S. Supreme Court in areas where the Court has jurisdiction. Now, just a few comments on the gay marriage ruling. Until this case, most scholars would have stated that the laws of marriage are primarily a matter of state law. Since the inception of our country, states have been the jurisdiction where laws regarding marriage are defined. And we do have laws defining marriage like laws of sanguinity (can’t marry within a certain relationship), you can’t have more than one spouse, and the age at which you can marry. There are also laws governing the requirements to support your spouse and children, so states have been very active in this area. The U.S. Supreme Court determined it was appropriate for the Court to address marriage and they did determine — even though there is not an express right of marriage for same-sex people in the Constitution— that it does exist. I am bound to apply that law whether I personally agree with it or not.

My biggest concern about the U.S. Supreme Court ruling is its effect on religious liberties. In the U.S. Constitution there is a right to the free exercise of your religion. Where I believe the courts now have an important role is as various issues come up from this ruling like the right of a pharmacist, a Catholic pharmacist to refuse to sell birth control to the rights of ministers not to perform marriages they believe are not biblical — how are we going to address the conflict between the right of the free exercise of religion and the right determined by the US Supreme Court of marriage of same-sex spouses. That is where courts are going to have a very important role in the next ten or twenty years in developing these rights. It’s going to be up to the courts to protect the exercise of religious freedom, as well as the legislators. The legislators should be trying to face this conflict and establish parameters and grant exemptions based on religious beliefs.

What, if any, is your main area of concern in American law today?

My biggest concern about the U.S. Supreme Court ruling is its effect on religious liberties. In the U.S. Constitution there is a right to the free exercise of your religion. Where I believe the courts now have an important role is as various issues come up from this ruling like the right of a pharmacist, a Catholic pharmacist to refuse to sell birth control to the rights of ministers not to perform marriages they believe are not biblical — how are we going to address the conflict between the right of the free exercise of religion and the right determined by the US Supreme Court of marriage of same-sex spouses. That is where courts are going to have a very important role in the next ten or twenty years in developing these rights. It’s going to be up to the courts to protect the exercise of religious freedom, as well as the legislators. The legislators should be trying to face this conflict and establish parameters and grant exemptions based on religious beliefs.

Today in America, we primarily have legislators as our source of law in the United States who codify laws and create laws. We also historically have these court created laws which continue to be applied today. None-the-less, I believe the role of the courts today is not to create new laws that is best done through the legislative process. There are exceptions, there are gaps the courts need to fill, but those should be rare and such situations where you don’t really have time to wait for the legislative response.

I am going to add one other thing in regard to common law. The courts didn’t just create out of clean cloth a law. What they looked to was the customs of the peoples so they were actually analyzing what are the people doing themselves in regards to these traditions and setting these out in written opinions building a body of law that in fact emanated from the people and their customs not the courts. So even under the common law systems, the courts couldn’t just create law out of clean cloth, they were applying the customs of the people. That is why I believe that even under the common law system, the role of the courts in creating law does exist but is limited and should be exercised very carefully. I think many courts today have moved beyond that and do create new laws where it is best to allow it to go through the legislative process where you have public debate, accountability — not all judges are elected like legislators.

As we have seen in the past, the Supreme Court eventually overruled itself in regards to slavery and the treatment of blacks. What do you foresee in the future and can you describe for us from a legal standpoint how that process occurred?

Yes. In our judicial system in the United States, we have a principle called stare decisis. The principle means that as a general rule, you follow precedent. So if there is a court created law, unless it is changed by the legislature (which always has the ability to change court created laws subject to constitutional limitations), courts will adhere to their prior precedents. That provides predictability, consistency, helps the citizens regulate their affairs. As a general rule, courts do adhere to their precedent. However, it is appropriate at times to depart from a prior precedence. That is what happened with slavery. It usually takes decades, maybe even a century, though technology is perhaps shortening that period. For example, if a law no longer furthers the purpose it served because of changes in technology or changes in society it is appropriate to change that law; to no longer follow precedent. I still believe that the most important place to overturn precedents is through the legislative process. If the legislature is not happy with judicial decision, they can change it as long as what they do is within constitutional bounds. In Montana, the Baxter decision, the Montana Supreme Court interpreted Montana law. We have a statute that says as a general rule the consent of the person who someone else assists to die or kills is not a valid defense to the charge of murder. The Montana Supreme Court said that within certain specific parameters a physician can assist with the person’s suicide with their consent. So they made an exception to that consent defense. The legislature can go back and change that rule. And ever since that decision came out, legislation has been introduced to change it. Last year, it was 50-50, a tied vote. But that is the legislative process, that is another available process to change opinions citizens are unhappy with.

Now, can we go back and change the U.S. Supreme Court decision on gay marriage? In Montana, you can’t prohibit same sex marriage under the U.S. Constitution. Because of Constitutional limitations, there are some Court precedents you can’t change.

A question in this regard, whereas the State of Montana can’t limit same-sex marriage, what about an individual like a County Clerk who says they can’t issue same-sex marriage licenses because of their religious beliefs?

[Under the Judicial Code of Ethics, as a judicial candidate] I can’t say how I would rule in those cases, but this is exactly the area where we are going to see conflicts between the exercise of free religion and the exercise of the right to marry regardless of gender. I personally believe that the legislature should address this conflict in the 2017 session, how they are going to reconcile the competing claims. What are the exceptions for free exercise of religion? It starts in the legislature.

Having said that, if the legislature doesn’t act, the courts are going to be addressing these issues. And even if the legislature does act, I wouldn’t be surprised, whatever form of exemptions it adopts, if the exemptions are either challenged as too broad or not broad enough. So the courts are going to have a role, but it should start in the legislature because behind the legislature are the people.

Any last thoughts you want to share with us?

I do believe that the Montana Supreme Court race is often a race that falls to the bottom of the pile. There is the gubernatorial election, and presidential election which are both perhaps much more important and visible. I truly encourage all citizens to become informed about the candidates running for the Montana Supreme Court. What are their qualifications? What distinguishes them?

You also need to recognize that it is not a partisan race because we aren’t a legislative body, so what are you looking for in a justice? Are you looking for a justice who is going to be deferential to the legislature which is accountable to the electorate? Or, are you going to elect a judge who is more willing to create new laws? That is one question voters should be asking.

As I previously stated, what is the background and what should our court look like? What voices should be present at the table and are there voices that are missing that you believe should be there?

Although I am a Christian, I must apply laws that as a Christian I personally would not have voted for or personally do not approve; it is still my responsibility as a judge to enforce those laws. But, where judges do have the ability to fill gaps is either with ambiguous laws or where we are going to see gaps in the legislation resolving freely exercising religion and the rights of gays to marry. Voters should keep that in mind and make an informed decision. And by all means, get out and vote!

Thank you so much for your time!

If you are interested in learning more about Kristen Juras, you can visit her site at JurasforJustice.com.