Jack Shanstrom
General back-country elk rifle season opened Sept. 15 last fall in Montana, the same day Senior U.S. District Court Judge Jack Shanstrom worked as a judge for the last time. If you don’t know where he’d rather have been — then you don’t know Jack. On that day, we called Jack Shanstrom “Judge” because we had to. On Sept. 16, we started calling him “Judge” because we wanted to.
One day years ago, Shanstrom’s predecessor’s predecessor, Judge William Jameson, turned to his wife and said, “Mildred, I love the law.” Aaron Small chronicles this event in his wonderful biography, “Journey with the Law: The Life of Judge William J. Jameson.”
Shanstrom likes the law. He respects the law. But he does not love the law. He saves his love for his wife, Audrey, his two children and his grandchildren. Any left he rations among his friends — friends who might assemble in his basement for a poker game and who by the weekend might be installing a furnace or find themselves being chauffeured between appearances on “Face the Nation” and “Meet the Press.” Friends like Bobby G., the best sheet metal man in Montana, or former Supreme Court Justice Sandra Day O’Connor.
To say Shanstrom “liked” not “loved” the law is not to suggest that his passion for his craft was any less than Jameson’s. He kept the law in perspective.
Shanstrom broke some ground in the law. He graduated from law school in 1957 and immediately signed up for the Judge Advocates General’s Corps. In 1960, he filed for the county attorney’s position in Park County, and won. In his first case, he prosecuted the chief of police — for burglary. Next, he prosecuted a highway patrolman — also for burglary.
But a part-time prosecutor cannot stamp out all crime or please all the locals. The women on Livingston’s B Street, having practiced the world’s most senior calling for decades, remained employed. Occasionally, a good citizen would sidle into Shanstrom’s office demanding that he cleanse the town of its ignoble industry. To each he had a canned response: “Please fill out this form with all the firsthand knowledge of this operation you can attest to. I will get right after it.” No one admitted firsthand knowledge. The world did not end.
Shanstrom was a prosecutor for four years before Gov. Tim Babcock appointed him to replace a Park County district judge who died in office. That was how Jack Shanstrom became Judge Shanstrom at the age of 30.
As judge, Shanstrom continued to break ground — or tried to. In one case, his efforts to expand the contours of insurance “bad faith” were beat back by the Supreme Court. It was not until 2000 that the decision was overturned.
Today, we are accustomed to a 50-50 division of property when long-married couples divorce. We can trace the origins of this tradition, in part, to the work of Shanstrom. When he sat in for an absent justice on the Montana Supreme Court, he affirmed an uncommonly generous 50-50 award of the marital estate to the wife in the case.
That decision was used as precedent the next year to sustain a 50-50 division of property in another divorce case. It proved to be an important step in the progress of recognizing the contributions of a homemaker toward accumulating a marital estate. In that case, the Supreme Court affirmed the district judge’s 50-50 division. The district judge whose decree was affirmed was Shanstrom. Thus, Shanstrom created the precedent to affirm himself.
We don’t know why Shanstrom broke ground for the homemakers, but we could speculate. He watched his mom as a camp cook in Silver Gate while growing up. He knew what a mom’s hard work contributed to the household — knew it very well. What his mom did not teach him, Audrey did.
His 18 years on the state court bench necessarily gave him an appreciation for the law, and more importantly its limits. It also allowed him to run a 110-trap line from Gardiner to Livingston; with Audrey, raise two children; and fish the Yellowstone River before the world watched or even read “A River Runs Through It.” He hunted each fall in the far reaches of the Rockies, filling his elk tag with a bull yearly. His rich life away from the law gave him a better perspective of the law.
In 1982, Shanstrom moved from Livingston to Billings and became a U.S. magistrate judge. Here is where his mark and legacy on the law was made, and it will endure. He became a mediator. We know what mediation is because Shanstrom taught us, or taught the people who taught us.
Shanstrom soon cleaned up the local federal docket and then started getting calls from the Ninth Circuit and traveling to settle cases all over the West Coast. Because he liked the law, not loved it, he had no romantic illusion about how the law could bring great and noble justice. He knew it could be messy, and the court is a place to be avoided. Besides knowing the limitations of what the law could do, he knew of the limitless life one could lead if unburdened by a lawsuit.
There is no metric to judge Shanstrom’s contribution as a mediator. We do know that he mediated more than 1,000 cases. We also know that each of these mediations saved the litigants, on average, figured conservatively, $25,000 in attorneys’ fees and costs. Thus, at a minimum, $25 million was saved by his efforts. This rudimentary math ignores the angst and grieving avoided. Multiply this 100-fold by the progeny of mediators and mediations that have ensued and we have billions in savings for citizens both directly and indirectly through their taxes. A remarkable legacy.
In 1990, President Bush made Shanstrom an Article III judge. The “magistrate” was dropped and he succeeded Judge James Battin to the federal bench. One ruling many remember was “NOBODY MOVE!” During a six-week trial of numerous drug defendants, the lights went out and the backup power failed to start. The courtroom was completely dark. The judge’s order was faithfully followed until the generators kicked in.
He was the chief judge for many years, assuming senior status in 2001. His last day was spent in the Bighorn Courtroom in the new federal courthouse. He named the courtroom himself — kind of. He was told he could name his own courtroom, so he did. He wanted it to be called the Winchester courtroom. Shanstrom collected Winchesters. He also collected grimaces because they told him “no.”
For those who have never pulled back the hammer on a Winchester while a bugling elk slid into view, steam billowing from its nostrils on opening day, I cannot explain it. Either you’ve done it, or you haven’t. Shanstrom did not even try to explain to those who overruled the Winchester name the depth and breadth of the western hunting life. He knew it would be folly. Thus, Bighorn it is.
Shanstrom is best known, and most widely respected, for his “friends in high places.” He has, by the power of his personal grace alone, made the speaker list at the University of Montana’s Jones-Tamm lecture series the envy of Ivy League schools. Chief Justice John Roberts, Attorney General Eric Holder and Justice Antonin Scalia have been a few of the recent ones.
Ask Shanstrom how his fishing guest list became the A list’s A list, and he will tell you, “I had a boat and I knew Justice Byron ‘Whizzer’ White.” Really? My guess is that every Supreme Court justice knows dozens of people with dozens of boats. My guess is that these boats are a lot nicer than Shanstrom’s float boat.
But when a Supreme Court justice is in Shanstrom’s boat they are fishing. The law is left at home. The chatter is from the mother goose hissing away the human intruder and the beaver tail slapping the water. Human conversation is confined to hatches, hearth and home.
We talk about the things we love, not the things we merely like. It is Shanstrom’s ability to keep the law in balance that makes him a close friend to so many people in such high places. Plus, Jack does not “kibitz and tell.”
If Jack wants to give a damn boat the credit, well, we’ll humor him.
Mark Parker is a Billings attorney and president-elect of the State Bar of Montana. This article was adapted from his piece that appeared in the September 2013 issue of Montana Lawyer, published by the state bar.
