Guest opinion: Judge Abbott is right; don’t move the goalposts

“The principle itself is straightforward: the goalposts should not be moved during the game.” Those words jumped out at me in a recent opinion by Montana District Court Judge Christopher Abbott. 

The case involves Montana Attorney General Austin Knudsen’s recent interpretation of our state’s term-limit law. That interpretation would make certain legislative candidates who have already filed, campaigned and won their primary elections ineligible to run in November. Judge Abbott disagreed and issued an injunction preventing the new interpretation from being applied to those candidates. 

A central concern in Abbott’s opinion was fairness. These candidates entered the race under one understanding of the rules, spent time and money campaigning, won their primaries — and then faced a different interpretation of those rules after the election was already underway. 

Abbott put the problem in language anyone can understand: “The principle itself is straightforward: the goalposts should not be moved during the game.” 

I nearly spit out my coffee when I read that — not because Abbott is wrong, but because he is absolutely right. 

I just wish that principle had applied when I was in his courtroom. 

My case was a legal-malpractice action brought on behalf of my late uncle Gregory Engellant’s estate against Crowley Fleck and one of its attorneys. The history is complicated, but the rules under which I entered Abbott’s courtroom were not. 

In 2019, a Montana probate court entered a formal order admitting my uncle’s 1978 will to probate and appointing me personal representative. I was charged by that court with administering Greg’s estate under that will. 

Later, Abbott himself explained my legal role in the malpractice case. He ruled that the estate “stands in the shoes of the decedent” and described the lawsuit as “the estate’s claims (that is, Greg’s claim).”  

I relied on those rulings and spent years prosecuting Greg’s claim. 

Then we reached trial. 

Abbott signed a pretrial order containing 20 “agreed facts” — facts the order said were “admitted, agreed to be true, and require no proof.” Fact No. 20 stated that the probate court had granted my petition and “admitted Greg’s Jan. 6, 1978, will to formal probate.”  

That wasn't my opinion. It was an order of the probate court, and its existence and effect had been expressly recognized as an agreed fact before trial. 

But when Abbott instructed the jury, there were suddenly only 19 facts. Fact No. 20 — the probate order — was gone.

Worse, the jury was affirmatively told something very different. Abbott instructed jurors that the probate court had reached “no final resolution” about whether the 1978 or 2012 will was Greg’s last valid will. He told them to disregard evidence and comments about what the probate court had ruled and then instructed them to decide for themselves which will was valid.  

The jury did exactly what it was instructed to do. It answered “yes” when asked whether the 2012 will was Greg’s valid last will. Based on that single answer, judgment was entered for the defendants. The jury never reached the underlying malpractice questions.  

Think about the change. 

I entered the case under a probate court order appointing me personal representative. Abbott ruled that I stood in Greg’s shoes pursuing Greg’s claim. We entered trial with the formal probate of the 1978 will as an agreed fact requiring no proof. Yet at the end, that fact disappeared, and the jury was told there had been “no final resolution.” 

If that isn't moving the goalposts during the game, what is? 

This matters beyond my case because Montana is debating judicial reform, including proposals for partisan judicial elections. I am a Republican and serve on my local Republican central committee, but putting an R or D beside a judge’s name makes me deeply uncomfortable. 

I don't want Republican judges or Democratic judges. I want judges. 

Judges should call balls and strikes, apply rules consistently and leave politics outside the courtroom. But judicial independence carries a corresponding responsibility. Citizens must be able to rely on court orders and on the rules judges themselves establish. 

That is precisely why I find Abbott’s new opinion so ironic. He speaks of “predictability, reliance and confidence.” The legislative candidates relied upon the rules as they existed when they entered the race. Abbott concluded it would be unfair to change those rules after they had already campaigned and won their primaries. 

Again, I agree. 

But shouldn't an ordinary citizen be entitled to the same predictability and reliance when he enters a courtroom carrying an actual court order? 

More than two years after my trial, a formal probate order admits one will, while a civil jury — after being told there had been no final resolution—declared another will valid. The jury verdict did not itself vacate the probate order or admit the 2012 will to probate. 

That is not predictability. It does not reward reliance. And it certainly does not build confidence in our judiciary. 

Abbott now says, “the goalposts should not be moved during the game.” 

On that, Abbott and I completely agree. My question is why the goalposts moved when the game was mine. 

Daren Engellant is a Flathead Valley business owner.