'Purely the Creature of the Inventive Genius of the Court': State EX REL Whiteside and the Creation and Evolution of the Montana Supreme Court's Unique and Controversial Writ of Supervisory Control

Montana Law Review Vol. 69, No. 1, Winter 2008

78 Pages Posted: 3 Dec 2011

See all articles by Larry Howell

Larry Howell

University of Montana School of Law


This article provides the first comprehensive examination of the Montana Supreme Court's unique writ of supervisory control, from its creation as a way of controlling one corrupt judge during the War of the Copper Kings to the current justices’ recent disagreements, and more recent agreements, over its use. Part II of the article examines the fascinating historical background of the Court's 1900 decision in State ex rel. Whiteside decision and its origins in one of America’s great political scandals: the openly corrupt election of "copper king" William Andrews Clark to the U.S. Senate in 1899. This Part examines the role of the plaintiff, state Senator Fred Whiteside, in exposing Clark’s efforts to bribe his way into the Senate, and how Chief Justice Theodore Brantly used Whiteside's case to take the Court further than any previous American court had gone in exercising a state supreme court’s constitutional power to supervise lower courts.

Part III of this article examines the Whiteside decision in the context of traditional nineteenth-century legal views regarding the authority of a jurisdiction’s highest court to review the actions of lower courts via direct appeal, on the one hand, and through prerogative, or extraordinary, writs on the other. This part begins with an overview of the broad power of “superintending control,” which was exercised by the court of King’s Bench in England over common law courts. Unlike the court of King’s Bench, American courts came to view superintending control as “a peculiar” power only to be exercised under extraordinary circumstances. Therefore, the Montana Supreme Court’s creation and frequent use of a powerful but previously unknown supervisory writ constitutes the most forceful assertion of the power of superintending control of any American court.

Part IV of this article establishes that the reason the Court strongly asserted this power when it did was to respond to Montana’s pervasive corruption. In particular, the writ was created to control a district judge in Butte, William Clancy, who had been “bought and paid for” by one copper king, and whose biased rulings in his patron’s favor were wreaking financial havoc on competing mining operations. Before Whiteside, the Court’s opinions reveal increasing frustration because jurisdictional limits on direct appeals and the traditional prerogative writs prevented the Court from responding in a timely way to Clancy's discretionary pretrial rulings. As that frustration built, the honesty of the Supreme Court justices themselves was called into question during the U.S. Senate investigation into William Clark’s election. A short while after that embarrassing experience, the Court invented a powerful new method of discretionary judicial review, which it began using almost exclusively to supervise the crooked Butte judge.

Part V of this article examines the development of the writ of supervisory control over the last century until Montana’s adoption of a new Constitution in 1972. At times over the decades before the 1972 constitutional convention the Court broadened the writ’s use, at other times the Court tried to constrict it, and at still others justices questioned the writ’s very legitimacy, coming within one vote of abolishing the writ in the 1950s.

Part VI then examines how, seven decades after the writ’s creation, the lingering debate about its legitimacy should have been silenced by adoption of the 1972 Constitution. Delegates to the Constitutional Convention rejected the Judiciary Committee’s proposal to abolish the Supreme Court’s power of supervisory control. Instead, the judiciary article they adopted strengthened those powers by eliminating any ability of the legislature to limit the Court’s supervisory jurisdiction. Part VII then analyzes the court’s jurisprudence concerning the writ after adoption of the new Constitution. In particular, this part will explains how in the 1980s and 1990s the Court confused its standards for exercising supervisory control over a lower court with its much more restrictive standards for exercising original jurisdiction over important litigation that bypassed trial courts altogether and was instead filed directly in the Supreme Court. This section also looks at how the Court, until the last few years, was in the midst of another periodic expansion of the writ, leading to strong internal disagreements, but has recently reached an apparent consensus that has resulted in few petitions being granted.

Finally, Part VIII returns to the Whiteside decision, and explains how the Court’s creation of the writ of supervisory control in 1900 was almost a century ahead of its time in resolving one of the most difficult issues in appellate law: whether and how to allow discretionary appellate review of important interlocutory orders when justice dictates, even though the black-letter final judgment rule prohibits “piecemeal” review of non-final decisions.

Keywords: supervisory control, Montana Supreme Court, War of the Copper Kings, William Clancy, Fred Whiteside, final judgment, writ, interlocutory appeal

Suggested Citation

Howell, Larry, 'Purely the Creature of the Inventive Genius of the Court': State EX REL Whiteside and the Creation and Evolution of the Montana Supreme Court's Unique and Controversial Writ of Supervisory Control. Montana Law Review Vol. 69, No. 1, Winter 2008, Available at SSRN: https://ssrn.com/abstract=1966732

Larry Howell (Contact Author)

University of Montana School of Law ( email )

Missoula, MT 59812-0002
United States
406-243-5286 (Phone)

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