A History Lesson, Retrospective

(This is a multi-part series I have written with help from our friend, Firefly. Part 1, Part 2, and Part 3, can be found below.)

I have always found one particular phrase particularly interesting in the Canons of Judicial Ethics. That is the one in Canon 1 to the effect that a judge must avoid even the "appearance of impropriety." In other words, not only does a judge have to act properly, but he or she also has to act in a way that does not even appear improper.

Why such a high standard? I think it is because the drafters of the Canons recognized a very basic reality about the judiciary. Judges, by definition, sit in judgment of others. They hold the ultimate power to declare what is right and wrong. Lacking the executive's power of the military and the legislature's power of the pocketbook, the judiciary's currency of choice is necessarily credibility.

And, if judges are held in public disrepute, their credibility is dashed. Who will respect that judgment of a flawed tribunal? Can a known thief sit in judgment of a theft trial? No. Respect for the decision flows from respect from the tribunal and the official. We all recognize that judges are human and possess human failings; there is no perfect human. To maintain the credibility of the judiciary, though, we must at least engage the fiction of absolute virtue.

Which is why Harris's accusations destroyed Mike Smartt. After the scorn and humiliation heaped upon him by Harris and others, he could no longer sit in judgment of others. Once it became public, it became over.

By no means do I intend to sit in judgment of my friend, Mike Smartt. While I do not advocate public officials using their computers to search pornography, and while I certainly recognize and appreciate that many religious and moral codes would hold his conduct reprehensible, I do not believe what he did points to some deep character flaw that would render him incapable of sitting on the bench. Clearly he did nothing illegal, and what he did was something personal and private. By itself, personal and private, it did not prevent him from acting as a judge.

I would submit that most, if not all of us, have our own personal demons hiding back in the dark somewhere. Most of us keep them there and lead happy and productive lives, perhaps tormented on the occasional sleepless night. Most of us are allowed to keep our skeletons in the closet because others, whether through basic human decency or because of their own shortcomings, are slow to judge and quick to forgive. Most of us, upon learning the failings of a friend, an acquaintence, or a colleague, at least try to react with compassion and understanding. There but for the grace of God go I, and all of that. But that's not the treatment Mike Smartt received.

No, what struck me (and many other lawyers I have talked to) about the whole affair was how unnecessary it all was. It was Judge Harris's public rendition of it all that destroyed Mike Smartt's ability to judge. Mike Smartt's credibility was systematically and purposefully destroyed.

Had this matter been handled between two, rational adult human beings, Mike Smartt could well be alive today. Imagine if, instead of creating a public furor from his own offense and righteousness, Judge Harris had instead confronted Smartt privately and, failing that, privately sought the admonishment of others to implore Smartt to take his problems home, away from his chambers. If Smartt had still insisted in engaging his desires at the Courthouse, couldn't we then at least credit Harris for trying to solve the problem in a way less damaging to the man and the office?

While I did not often agree with Justice Terry Trieweiler, I think the following excerpts from his dissent in Mike Smartt's case provides a suitable requiem for Mike and his case:

After all the pious outrage shown by everyone involved in this case, including Justice of the Peace Samuel Harris, the Judicial Standards Commission and the majority of this Court, the facts are that Michael S. Smartt is being removed from the position to which he was elected for conduct committed in private which had absolutely no effect on his job or anyone else. After all evidence which was illegally gathered is excluded, the incredible testimony of Troy Dye disregarded, and the Court's consideration limited to those allegations which were actually charged in the complaint filed against Smartt, Smartt has been removed from his position without pay because two co-workers discovered that he had viewed three sexually explicit photos on a county-owned computer, in the privacy of his office. The majority and concurring opinions demonstrate far greater concern for the majority's sense of good taste than for the constitutional right of privacy. The result in this case reflects more poorly on Smartt's accusers than on Smartt.

* * *

With all the complaining that has gone on in recent years about judicial case loads, I assumed that members of the judiciary had better things to do than repeatedly and illegally sneak into another judge's office, pry into the hard drive of his computer, and when something offensive to others is discovered, spend the resources we have spent investigating him, trying him, publicly humiliating him and his family and taking away the source of his livelihood. It would be different if Smartt was the one who had violated another co-worker's constitutional rights by invading his privacy, as Harris did, but Smartt 1) violated no laws; 2) violated no county policies; 3) did not intentionally impose his bad taste on anyone else; 4) was not found to have neglected his duties; and 5) was not shown to have cost his employer one extra cent because of his personal and private viewing habits. Nevertheless, Smartt has been
reported by Harris to the FBI, investigated by the Department of Justice, sexual harassment charges have been filed against him, he has had to defend himself before the Judicial Standards Commission, and he has now been suspended from his employment without pay. The resources that have been wasted following the inadvertent discovery of one sexually explicit computer screen is more befitting the Salem witch hunts than a busy judiciary with any sense of priorities. (The majority's protestations to the contrary notwithstanding),

Cascade County Commissioner, Tom Stelling, testified that there had been a history of poor relations between Harris and Smartt prior to the events which have led to Smartt's discipline. My impression from a review of the entire record is that because of that poor relationship, Harris embarked on a personal crusade to destroy Smartt after viewing the sexually explicit photos which were so upsetting to him that he printed them, took them home with him, and then snuck back into Smartt's office repeatedly with a digital camera to see what else he could find. Am I missing something or has the wrong justice of the peace been sanctioned? On a scale of disgusting and deplorable conduct, I would have to rank the gross and repeated invasion of Smartt's privacy by his co-worker far worse and, if unpunished, of greater consequence to society and the judiciary than anything that Smartt was actually found to have done. If the public confidence in the judiciary is the Court's concern, it will be interesting to see what discipline is imposed on Harris who is actually responsible for the negative public perception the Court is so concerned about by invading Smartt's right to privacy in violation of the law and then using the fruits of his illegal search to advise the public that a fellow justice spent his private time in a manner that Harris knew would be offensive to large numbers of people.

* * *

However, in this case, Smartt's conduct, until he was investigated and prosecuted, did not cost the taxpayers a cent. After thorough investigation, it was concluded that he had not violated any laws and had not sexually harassed anyone in the workplace. He did not knowingly expose anyone else to offensive material and there has been no evidence presented in this case that how he spent private time in his chambers in anyway compromised his performance of his job. This Opinion strikingly illustrates the blatant hypocrisy in government which is, after all, the greatest cause of public contempt for and distrust of government. Therefore, if the majority's purpose is to restore public confidence, this decision is a misguided effort. Smartt simply viewed material in the privacy of his office which most people consider offensive. For that, his job has been taken away. God protect us from the wrath of the righteous

Justice Trieweiler's words would ring especially true, wouldn't they, if we were to learn that the conduct of the accuser wasn't all that different from the conduct of the accused? If, perhaps, the self-righteous weren't so righteous?

More to come...


Treasure State Jew said...

You know, one of the problems that I have with the public election of judges is that most of us (myself definitely included) are not really qualified to determine who should sit on the bench.

Most judicial elections are simple popularity contests, with copies of a candidates CV as the only means of differentiation. Thank you for giving me some perspective on Judge Harris.

Wulfgar said...

This has been an impressive series. Thank you for providing it.

As an IT guy, I can tell you for truth that even the most pious of individuals really *REALLY* don't want their activities exposed to the vindictive scrutiny of others.

WolfPack said...

While I feel that Smartt should have lost his job for letting his private life bleed into his work place. This doesn’t mean Smartt was a bad man just the wrong man for the job. I also feel that Harris's work antics are enough reason for him to be voted out by the electorate. I’m all for law and order judges but Harris just seems looney mean.

Anonymous said...

I disagree with Wolfpack. What a person does in their private life, even if it is from a computer at work where there is no computer policy, which is what the situation was at the time at Cascade County, is their business. Further, when your office is locked and someone repeatedly breaks into it to dig up dirt, and that person is an elected official as well, I just think its wrong. While the law may tolerate what happened to Mike Smartt, as evidenced by the decision of the Montana Supreme Court, the law isn't always morally right. But for the Grace of God goes the members of the Montana Supreme Court. I am sure they have all done something, at least one thing, they wouldn't want the public to know, especially as it relates to one's sexual life.

I just wish this story was being told. Sam Harris is a smoking gun. The County has paid more than one insurance settlement as a result of actions by Judge Sam Harris. For example, when two deaf people wanted to get married, they asked for a signer to sign their vows, Harris refused. They sued the County, which settled with them for $6,000 each for a total of $12,000. Is that how you all want your tax dollars spent? He recently incarcerated a woman for failing to pay a debt that was civilly litigated. Last I heard, debtor's prison was abolished, but apparently Harris went to the wacky law school. Who knows how many other settlements paid out to victims of Sam Harris.

For someone who claims to be so damn righteous, he is an unGodly man. He should not be re-elected.

GeeGuy said...

Actually, I don't think that is entirely accurate, anonymous.

I think the county paid $5,500.00 to the couple that was married, and $5,500.00 to an advocacy group that represented them. $11,000.00 total.

Anonymous said...

Yes, you are right, it was $11,000, and I stand corrected.

WolfPack said...

I agree with all that Harris has done and will do numerous numbskull things. I’m just not in agreement that Smartt wasn’t also acting oddly. I think that Smartts sexual activities at work definitely speak to some sort of unusual mental state which was only made worse by Harris’s self-serving moral crusade. In order to justify the idea that Harris is a bad JP/man we don’t need to imply that he bares the primary responsibility for Smartts death. I didn’t know Smartt but from GeeGuy’s accounts I believe he was a good man. I also believe he was a man with mental problems that led to his death. Inappropriate behavior at work doesn’t make you a bad person so we don’t have to twist reality to believe that sexual activity at work is a private matter as long as you can get it done behind a closed door. In this case the needlessly risky behavior (I’m sure Smartt new the risks) may have been a clue to a ticking time bomb.

Clearly this topic is personal to friends of Mr. Smartt’s and he is not able to defend himself, I do not have any first hand knowledge of these events so I apologize if any of my discussion offends.

GeeGuy said...

Wolfpack, I believe you to be a reasonable person from reading your comments on this and other issues.

And I certainly agree that Smartt's behavior could be construed as wholly inappropriate. (I may be blinded by my friendship.) I do not argue that it is unreasonable for someone to think that a judge should not look at pornography in his chambers. Whether I agree with that proposition or not, it is not patently unreasonable.

I strongly disagree with you, though, that Mike's viewing of pornography suggests he had "mental problems." I further disagree that he had any such "mental problems," unless perhaps he was driven a little bit 'off' by the whole Harris incident. He was as sane as you and I.

The real point of all this is that we need to be very careful about pointing the fingers at other people, or listening when others do so. We all judge; we all have skeletons. This 'series,' though, should remind us all, including me, that none of us are pearly white. I don't think this is a license to do anything, and we can each bring our own moral codes (and the law) to bear on an issue. But we should all remember that someone much wiser than I am once said "let he who is without sin cast the first stone."

And, when we come across the sins of others, we should try to remain compassionate, and approach those sins with the perspective of the 'accused,' as well as our own.

I think this is doubly true for one who aggressively seeks to sit in judgment of others.

WolfPack said...


It's not the porn but the needlessly risky behavior that suggest trouble. As an employer and lawyer I’m sure you know the pit falls of workers viewing porn at work, behind locked doors or not. These same concerns drop to zero if restricted to home or private property. If found out, what happened is what one might expect to happen to a sitting judge. I’m not making a moral judgment but a “judgment” judgment. From the story as I’ve read it, Mr. Smartt must have had some personal troubles manifesting themselves in risky behavior. That doesn’t mean that I think he was completely crazy, maybe just a significant depression which does affect work performance. A healthy mind would not take the risk of being caught and then commit suicide over getting caught. I have had a couple people in my life suffer from significant depression and it is a limited/departmentalized kind of crazy. The troubles of my loved ones were not caused by outside events but only hastened by them. Many of their daily acquaintances would have no idea they were suffering.

The only point I was trying to make is I don’t think Harris is responsible for Smartt’s death as it was not a foreseeable outcome. I think that Harris’s bullying methods just happened at an unfortunate time in Smartt’s life. I do agree that Harris’s quirky-jerky implementation of justice and his own out of touch sense of morality is a problem for this county. I believe your point in this is that Harris at a minimum does not possess the temperament or sense of fair play to be JP and I agree. I think the lesson in the Smartt story is that being right does not legitimize vindictive behavior. I’m not part of the moral police and would be happy to come over sometime for beer and porn.

Anonymous said...


I am not an attorney but have observed the breed for more decades than most people have lived. There are good attorneys, there are poor ones and lots in between. Sort of like the rest of us.

A friend who taught at the Law School in Missoula once remarked that Montana is better served by a JP court that is not run by attorneys. Sam Harris is the quintessential example of an attorney who should not be a JP!

Sam Harris is a sneak. He is a snitch and he is an abuser of his office and it is long past time to show him the door!

I know of other examples of his utter incompetence to hold office and if asked I probably would discuss them.

When Mike Smartt ended his life he left a family and he left a life in what seemed to be utter shards. Sam Harris did not belong in another Justice's office and he should not have taken pictures and browsed his computer. I would imagine the computer had confidential information and other data about cases Justice Smartt was working on; if that is true then Harris invaded attorney / client priveleges and Judge / appellant and defendant privelges?

In the last election cycle Harris essentially was left alone and was reelected; this time the situation can be addressed by the electorate and a fine opponent with eminent qualifications has presented his name.

Kick out the snitch!

Montana Fats