Herbert challenging Rice for Supreme Court
Montana Supreme Court candidate W. David Herbert of Billings said he decided to challenge veteran Justice Jim Rice for the court after reading the justice's opinion in a 2013 case.
Herbert cited Rice's partial concurrence and partial dissent in the case of state of Montana v. Randall Jay Dugan.
Dugan had been charged with using "obscene, lewd and profane language" to an employee of the Gallatin County Victim Assistance Program in violation of the state's Privacy in Communication Act.
Five Supreme Court justices and a district judge substituting for a justice overturned most of Dugan's conviction.
Rice wrote in his partial dissent that Dugan chose to speak "in a manner that was as debasing, injurious and abusive as can be spoken in our society, in a direct, personal and individual attack on a public employee who was duty-bound to receive communications from Dugan." Rice said Dugan's speech should have been deemed unprotected.
Herbert disagreed with Rice's views.
"Who the heck is he?" Herbert asked. "I was kind of ticked off about this case. My wife said, 'If you're so upset, do something about it.' I decided to run."
In an interview, Rice said Herbert likes to say he doesn't believe in free speech, which the justice called ludicrous.
"I wasn't willing to say that the right of freedom of speech extended to any member of the public being able to say anything they wanted, even if it's a degrading term, and that the public employee would have to sit there and listen to it," Rice said.
Herbert said he grew up learning to protect constitutional rights.
As a 6-year-old boy, Herbert said, he learned about unjust laws on his family's cattle ranch in Salinas, California. In a tin building, his grandfather hid the farm equipment, furniture and other belongings owned by his friend, Jerry, a Japanese-American who had been sent to an internment camp during World War II.
His grandfather feared being sent to jail if he was caught hiding Jerry's equipment.
"Why would anyone want to send my grandfather to jail for helping Jerry?" Herbert asked.
A California native, Herbert received a bachelor's degree in pre-veterinary medicine from California State University, Chico, in 1965. He flew the F4 Phantom jet in Vietnam and won a military medical scholarship, getting a doctor's degree in podiatric medicine at Kent State University in 1976. He retired from the military as a lieutenant colonel.
Herbert went on to receive a law degree from University of Pacific's McGeorge School of Law in Sacramento in 1986.
In California, Herbert practiced law, specializing in representing prison inmates who were seeking parole from the parole board.
"I thought California's justice system was bad," he said. "Then I came here and it's even worse."
He decried the number of veterans of Vietnam and other wars who are imprisoned in Montana, saying they "truly are POWs in their own country."
Herbert, 71, has lived in Montana since 2008. He still practices podiatry in Wyoming occasionally.
He calls himself a "Ron Paul Libertarian" who is a former chairman of the Wyoming Libertarian Party. He lost bids for the U.S. Senate and House in Wyoming.
Herbert visited Montana, and his wife, who has a master's in nursing, found a job in Billings, so they moved here. He also owns some rental property in Montana.
Herbert believes in jury nullification -- where a jury can acquit a criminal defendant, even if the jurors believe he is guilty, if they disagree with the law the defendant was accused of breaking.
Through Sept. 5, Herbert had raised about $5,700 in his campaign for the Supreme Court race, while Rice had collected nearly $80,000.
Despite the disparity, Herbert said he believes he can win, although he said he would have to take a pay cut to serve as justice, which pays nearly $125,000 a year.
"If you want to put justice back in the justice system, I think you'd have a better job with me than with him," Herbert said. "I'm a two-issue guy -- liberty and justice."