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The lawyer-delegates of the 1972 Constitutional Convention

By Joe Menden

This spring marked the 50th anniversary of Montana’s momentous 1972 Constitutional Convention.
That year, 100 Montanans gathered in Helena for the monumental task of drafting a new constitution over 56 days. The result of their work was a document signed by all 100 delegates – 58 Democrats, 36 Republicans and six Independents. Of those 100 delegates, 24 were lawyers – 14 Democrats, nine Republicans and an Independent.
The document created by the 100 delegates who gathered in Helena 50 years ago was not without detractors or controversy. Voters ratified it by the slimmest of margins of only 2,532 votes, and it survived a court challenge by a 3-2 decision in the Montana Supreme Court. But it has stood the test of time, thanks in large part to the 24 lawyer-delegates, who brought expertise from a variety of subject matters – taxation, government, water law, property law, and, of course, a deep understanding of how the law works and how to make the constitution stand up to the scrutiny they knew it would receive. In 2010, the Constitution’s lasting strength was demonstrated when voters rejected a proposal for a new constitutional convention by a 59-41 margin.
Despite the fact that delegates were required to run as a member of a political party and Democrats held a large majority, the convention was by all accounts a nonpartisan affair. That nonpartisan atmosphere was cultivated by Convention President Leo Graybill, a lawyer from Great Falls, who set the tone by seating delegates in alphabetical order rather than by party affiliation.
Among Graybill’s other important decisions were his choices for committee assignments. Over 80% of the delegates were assigned to their first choice of committees, and all but four were assigned to one of their top four choices. But, as Graybill noted in his foreword to the transcript of the convention, he also took care to ensure each committee was balanced based on party representation while also containing people who were strong advocates of opposing ideologies on the subject.
Noted Thomas Joyce, a lawyer-delegate from Butte who served as the chairman of the Executive Committee: “no vote in the Convention itself other than the election of officers was decided on party lines.”
Illustrating that nonpartisan spirit was James Garlington of Missoula, a Republican who at 64 was the elder statesman among the lawyer-delegates. Garlington would go on to be one of the most outspoken advocates for its ratification after the convention.
“I think our Constitution is the finest gift to the young people of Montana that it is within our power to give,” Garlington said, in a speech before the document was signed. “We are giving them the gift of participation in their present, and the management of their future, on a ship of state that is far more manageable and sensitive than the old one which we have had. I shall therefore be intensely proud to sign our document tomorrow. My act of signing will also be my act of commitment to do all I can to procure its ratification, and beyond that, to help whenever I can in its transition to full power and effectiveness.”
Lawyers played major roles in many of the substantive committees. Wade DaHood, a Republican from Anaconda, chaired the Bill of Rights Committee, which also contained lawyers Bob Campbell, a Democrat, and Marshall Murray, a Republican. Dave Holland of Butte chaired the Judiciary Committee, whose members included lawyers Cedor Aronow, John Schiltz and Ben Berg. The Style and Drafting Committee, chaired by Schiltz, also included lawyers Dave Holland, Bob Kelleher, Berg and Garlington as members. The Rules Committee, chaired by attorney Marshall Murray, also included attorneys Thomas Ask, Jerome Loendorf and Joyce.
Mae Nan Ellingson, who at age 24 represented Missoula as a Republican at the convention, was the youngest of the 1972 delegates. She was not a lawyer at the time, but inspired by the process, and at the urging of several of the lawyer delegates, she began law school the year after the convention. She earned her J.D. from the University of Montana School of Law in 1976 and went on to a long legal career. Ellingson co-authored a 2011 Montana Law Review article detailing the contributions the lawyer-delegates made to the convention. In a foreword to that article, she wrote that she often felt overpowered by them because their opinions seemed to carry more weight by virtue of their law degrees. But she added:
“The truth is that as a result of their experience, legal education and the skills and knowledge they honed in their respective practices, the lawyers were more knowledgeable than many of us non-lawyer delegates. And the decisions made by the convention as a whole were better and more informed as a result of the lawyers’ scrutiny … .”
Much has been written, both in Montana and nationally, about the constitution and its delegates over the years. Upon its ratification, it was considered a groundbreaking achievement – the New York Times once referred to it as a “prairie revolution” and according to a 1999 survey found the group of 100 delegates second on the list of most influential Montanans of the 20th century, trailing only Mike and Maureen Mansfield.
Following are brief biographical sketches of the 24 lawyers who played such a pivotal role in drafting and advocating for the 1972 Montana Constitution.
The 24 Lawyer Delegates
Franklin Arness, Democrat-Libby. Arness was born March 27, 1933, in Grafton, N.D. Prior to the convention he was elected county attorney in Lincoln County and served as city attorney in Libby before working for Fernesey and Crocker Law Firm. He and his wife, Raila, had two children. He served on the convention’s Local Government Committee. Arness, now 89, is one of 10 living delegates, including three attorney-delegates.
Cedor B. Aronow, Democrat-Shelby. Aronow was born Sept. 10, 1910, in Odessa, Russia (now Ukraine). He served on the convention’s Judiciary Committee. His family came to Montana in 1911. Prior to the convention, he served in the Montana House of Representatives from 1949-1953, and he served as a delegate to the 1956 Democratic National Convention. He and his wife, Jane, had three children. He died in 1991.
Thomas Ask, Republican-Roundup. He was born on July 19, 1925, in Forsyth. He graduated from the University of Montana with a law degree and a degree in business administration in 1953. After a year in private practice he was elected county attorney of Musselshell County in 1954, serving in that role for 12 years. During the convention he served on the Local Government Committee and the Rules and Resolution Committee. He and his wife, Margaret, had four children. He died in 2015 just short of his 90th birthday.
Ben Berg, Republican-Bozeman. Born Dec. 17, 1916, Columbus. He served for 15 years as city attorney in Bozeman before he was elected to the convention. He served on the convention’s Judiciary Committee and the Style, Drafting and Transition Committee. He and his wife, Joan, had four children. He died in 2011 at age 94.
Geoffrey L. Brazier, Democrat-Helena. Born Nov. 8, 1929, Helena. A 1957 graduate of the University of Montana School of Law, he was He served on the convention’s Natural Resources and Agriculture Committee. He served as the first Chairman of the Montana Consumer Counsel from 1973-1979. He and his wife, Marie, had three children. He died in 1995.
Bruce Brown, Independent-Miles City. Born Feb. 25, 1922, in Miles City. He served on the convention’s Executive Staff as the Eastern District Vice President and the General Government and Constitutional Amendments Committee and ex officio on the Public Information Committee. He and his wife, Margaret, had five children. He died in 2000 at age 78.
Robert Campbell, Democrat-Missoula. Born Dec. 21, 1940, in Sidney. During the Convention, Cambell served on the Bill of Rights Committee and submitted proposals on the Preamble, the right of privacy, a clean and healthful environment, and making the age of majority uniform at 18. These proposals were included in the final document. He and his wife, Mary Ann, had two children. He died on April 5 at age 81. See obituary on page 36,
Jerome J. Cate, Democrat-Billings. Born Sept. 19, 1939, in Baker. He received his J.D. from the University of Montana School of Law in 1966. He was a Legal Intern in the office of Attorney General, State of Montana in the summer of 1965, and became an associate of the law firm of Sandall, Moses and Cavan in Billings, Montana from 1966 to 1972. Cate was active in politics much of his life, including serving as president of the Carroll College Young Democrats in 1960. He would be chairman of Yellowstone County Central Committee and serve on the Executive Committee of the Montana Democratic Party. Cate served on the Convention’s Legislative Committee. He and his wife, Mary, had two children. He died in 1995.
Wade DaHood, Republican-Anaconda. Born Dec. 31, 1927, Brooklyn, N.Y., and his family moved to Montana in 1928. He and his wife, Grace, had five children. He served as chair of the Bill of Rights Committee during the convention. He is founder and past president of the Montana Trial Lawyers Association. His firm, Knight & DaHood, is still operating in Anaconda. He died on April 18 at age 94. See obituary on page 36.
Carl M. Davis, Democrat-Dillon. Born Nov. 21, 1922, Dillon. Davis earned an LL.B degree from the University of Montana in 1949. That year he opened a general practice in Dillon that lasted as Schulz, Davis and Warren for his entire 40-plus career in law. He was inducted into the Hall of Fame of Western Montana College, which he attended from 1940-1942 and where he served on the Executive Board for 14 years. He and his wife, Martha, had four children. He died in 2012 at age 89.
James Felt, Republican-Billings. He was born in Glendive on Dec. 9, 1920. Graduated from the University of Montana Law School in June 1943. After earning a Master of Laws in Taxation from New York University in 1946, he opened his own law office in Billings specializing in taxation. A devoted Republican, Felt served five terms in the Montana House of Representatives from 1954-60, and from 1965-69, Speaker of the House. He served on the convention’s Executive Committee. He and his wife, Merice, had seven children. He died in 1993 at age 72.
James C. Garlington, Republican-Missoula. March 24, 1908, Missoula. Graduated from UM with BA and LL.B. degrees. Was principal of several firms in Missoula before founding Garlington, Lohn and Robinson in 1955, now one of the state’s largest firms. President of the Montana State Bar Association 1949-50. He was Vice Chairman of the Convention’s Executive Committee and served on the Style, Drafting and Transition Committee. He and his wife, Nancy, had three children.
Leo C. Graybill Jr., Democrat-Great Falls. Born in Belt, March 28, 1924.Graduated from both Yale Law School and the University of Montana School of Law. During the convention, Graybill served as the Convention’s President and as ex-officio on all Committees and was widely praised for overseeing the tremendous task. Graybill was the second generation in a long line of Montana attorneys. His father, Leo C. Graybill Sr., moved to Montana after World War I and formed a law partnership with his brother F.L. Graybill. He and his wife, Sherlee, had three sons, and two more generations of Graybills followed him into the practice of law.
Otto Habedank, Republican-Sidney. Born Oct. 8, 1917, Bowdoin. Studied law by correspondence while working as a court reporter. After passing equivalency tests from the University of Montana, passed the bar and formed what would become the oldest law partnership east of Billings, eventually known as Habedank Cumming, Best, Maltese & Savage. Served on the General Government Committee. He and his wife, Arleen, had four children. He died in 2010 at age 92.
David L. Holland, Democrat-Butte. He was born June 27, 1924, in Butte. Holland had a long career in public service before the convention, serving as an assistant attorney general, Butte City Attorney, Chief Deputy County Attorney, and U.S. Commissioner. He served on the convention‘s Judiciary Committee as chairman and on the “Style, Drafting and Transition” Committee. He and his wife, Mary Loy Murphy, had four children.
Thomas Joyce, Democrat-Butte. He was born April 18, 1923, Anaconda. After he earned a mathematics degree from the University of Montana he went on to receive an LL.B. in 1949, both with honors. After bar admission, he served as an assitant attorney general, a deputy county attorney and city attorney of Butte from 1957-59. He was a partner in the law firm of Burgess, Joyce & Whelan in Butte. He served as the chair of the convention’s Executive Committee and served on the Rules Committee. He and his wife, Dorothy, had 12 children. His Montana legal legacy is continued by three of his children who are now lawyers in Butte: Eileen, Bill and Tom.
Robert Kelleher, Democrat-Billings. Born March 30, 1923, Oak Park, Ill. He served on the Convention’s Legislative Committee and the Style, Drafting and Transition Committee. Was a frequent candidate for public office after the convention as a member of the Democratic Party, Green Party, and Republican Party, including winning the Republican primary for U.S. Senate in 2008, losing to Sen. Max Baucus. Died in 2011 at age 88, a practicing lawyer until his death according to news reports at the time. He and his wife, Geraldine, had six children.
Jerome T. Loendorf, Republican-Helena. He was born June 5, 1939, in Wolf Point. Earned his J.D. from the University of Montana School of Law in 1964. He was Lewis and Clark County Attorney at the time of the convention. During the convention he served as vice chair of the Legislative Committee and served on the Style, Drafting and Transition Committee. He was a partner with Harrison, Loendorf, Poston and Duncan from 1966 through 2003. Now 82, he currently resides in Helena and is a member of the 50th anniversary Constitutional Convention Celebration Committee.
Russell C. “Swede” McDonough, Democrat-Glendive. Born Dec. 7, 1924, in Glendive. Earned his J.D. from George Washington University in 1949. He served on the convention’s Revenue and Finance Committee. After the convention he was elected as a judge in Montana’s Seventh Judicial District in 1982. In 1987 he was appointed to the Montana Supreme Court. He retired from the court in 1993. He died April 3, 2018. He and his wife, Dora, had six children.
Michael “Mick” McKeon, Democrat-Anaconda. Born July 17, 1946, in Anaconda. McKeon graduated from Notre Dame in 1968 before earning his J.D. from the University of Montana School of Law in 1971. He was elected as a delegate to the Constitutional Convention that year. At 25 years old, he was the second youngest delegate to the convention. He served on the convention’s Revenue and Finance Committee and the Administration Committee. In 1992 he and Rick Anderson, his law partner at the time, won a federal court verdict of $11.5 million, which at the time and for years later was the largest verdict in Montana. Mick and his wife, Carol, had two sons, Michael and Matthew, who are both Montana attorneys. McKeon died on April 15, 2020, at age 73.
Charles B. “C.B.” McNeil, Republican-Polson. Feb. 17, 1937. McNeil was a 1966 graduate of the University of Montana School of Law.After the convention he was elected to five terms and served 29 years as a judge for Montana’s 20th Judicial District. He served on the convention’s National Resources and Agricultural Committee. He and his wife Jo Ann, had two children. His son Charles is a lawyer in Missoula. He died in 2017 at age 80.
Marshall Murray, Republican-Kalispell. Born Aug. 29, 1932 in Eureka. He graduated with a law degree from the University of Montana in 1956 and began practicing law in Kalispell in 1959. He served in the Montana House of Representatives from 1960-64. Chair of the Rules Committee and served on the Bill of Rights Committee and was the convention’s floor manager. After the convention he became a special assistant attorney general for the State of Montana, and in 1975 he became the first president of the unified State Bar of Montana. He eventually moved back to Kalispell, becoming the senior principal attorney in the firm Murray, Kaufman, Vidal & Gordon. He and his wife, Joan, had three children. Daughter Marsha was an attorney for 35 years in Portland, Oregon. Now 89, he is one of three attorney-delegates who survive.
John Schiltz, Democrat-Billings. Born May 29, 1919, in Kremlin. After earning an LL.B. from the University of Montana, he practiced in Billings for 26 years with classmate and future Montana Supreme Court Justice John “Skeff” Sheehy. His long career in Montana law was interrupted by two stints in Texas, including handling the $50 million Howard Hughes estate at the behest of the Texas attorney general. Schiltz served in the Montana House of Representatives in the 1951 and 1953 sessions. Though he ran as a Democrat for the convention, he served as a Republican in the legislature. Chair of the Style and Drafting Committee and served on the Judiciary Committee. He and his wife, Edna Marie, had four children. He died in 2012 at age 93.
William Swanberg, Democrat-Great Falls. Born Aug. 29, 1916, in Great Falls. Swanberg graduated from the University of Montana in 1940 with an LL.B. degree. After a year as a law clerk for the Montana Legislature, he was drafted into the Army in 1941, serving in the Pacific Theater before being discharged to the Army Reserve in 1945. After the war, he practiced law in Great Falls from 1945-1961. During that time he served two terms each as a city alderman and mayor of Great Falls. During the convention he served on the Public Health Welfare and Labor Committee. He and his wife, Marie, had seven children.