As Montana’s 2022 elections unfold, attentive court watchers and much of the state’s legal community will be drawn to a particular pair of races with stark political overtones. The campaigns for two seats on the Montana Supreme Court currently held by Justices James Rice and Ingrid Gustafson are attention-grabbing not just for their slate of candidates, but also for the political moment in which they’re taking place.
Members of the state’s highest court have spent much of the last year defending their branch of government while prominent Republican officials publicly challenge the judiciary and scrutinize its operations. Now, some of those same Republican officials have thrown their weight behind a candidate challenging Gustafson and levied public smears against both incumbents during a recent Republican fundraiser, inserting overtly partisan messaging into traditionally nonpartisan races.
“Our system is not designed to be political or to be partisan, and it appears that there is a huge push to try to turn the court into a more partisan body,” Gustafson said in a recent interview. “We don’t need partisan folks on the court. We need people who are going to be independent, who are going to be fair, that understand the challenges that face Montana voters and not be ruled by some sort of party agenda for something.”
In more typical election years, the campaigns of Rice and Gustafson might not have merited much fanfare. Both justices tout more than 20-year careers as members of the Montana judiciary.
Rice, a former attorney and three-term Republican legislator, was appointed to the state Supreme Court by former Republican Gov. Judy Martz in 2001. He’s remained on the court ever since, easily winning re-election in 2002, 2006 and 2014.
Gustafson was appointed by Martz to a district court judgeship in Yellowstone County in 2003. She remained on that court until 2017, when former Democratic Gov. Steve Bullock appointed her to the state Supreme Court. She retained her seat in 2018 in an unopposed race.
Rice and Gustafson both said in recent interviews that the last year of political fights and legal challenges has been unusual. Gustafson said many of the criticisms against the judiciary, including that judges were wrong to weigh in on bills that would affect the judiciary, “have just been hoopla.”
Justices have also been highly critical of Republican challenges to the judiciary in formal legal opinions, including in the court case about legislative subpoena powers.
Last spring, Knudsen’s office told the court that the Legislature would not adhere to a court order temporarily blocking its subpoenas. “The Legislature does not recognize this Court’s Order as binding and will not abide it,” Lieutenant General Kris Hansen wrote in an April letter. In a later opinion, Rice described that letter and other actions by Knudsen and the Legislature as “extraordinary, indeed extraconstitutional,” “obviously contemptuous,” and “destructive to our democratic system of government.”
Rice’s re-election campaign announcement echoed that message.
“A properly functioning Court, acting with impartiality, is in a position of strength to ensure that other branches of government stay within their respective constitutional boundaries,” Rice said. “I believe this important judicial responsibility will become even more critical in the years ahead.”
In February, as the filing deadline for this year’s election approached, there were no announced challenges to Rice or Gustafson. But any hope that the judicial races wouldn’t become political lightning rods evaporated on the last Sunday of the month, when Knudsen spoke to a Republican gathering in Havre. In comments first reported by Hi-Line Today, he urged attendees to pay close attention to the upcoming races.
“Folks, we cannot afford to be willy-nilly with our judges’ elections. This is the last bastion of the Democrat Party,” Knudsen said. “… Judge Ingrid Gustafson is up [for re-election]. Hardcore leftist,” Knudsen said. “… Jim Rice is up. I’d like to go on about him. He had some choice things to say about me in a few opinions. But, [Rice is a] former Republican legislator who I think now has Stockholm syndrome. Been on the court for a long time and he just, he goes with the Democrats on the court.”
Asked about the attorney general’s characterizations in an interview with Montana Free Press, Rice was reserved.
“It’s a line at a political dinner, from a political speech, and that’s what politicians do,” Rice said. “It’s not an action that undermines the court. It’s part of the political rhetoric, and I don’t have any comment on that.”
Gustafson, in a separate interview, was more critical, calling Knudsen’s comments about her judicial record “completely and totally inaccurate.”
“Being on the bench as long as I have been on the bench, people will say one thing or another,” Gustafson said. “Throwing around insulting labels is not helpful — is not helpful to the voters of Montana. We need highly competent people. We need the best-qualified people to do this job. And so this is not a partisan game to me at all.”
In March, three challengers emerged for the two seats on the court. District court judge and former civil defense attorney Mike McMahon of Helena entered the race against Gustafson. A few days later, president of the Public Service Commission James Brown of Dillon did the same. Private personal injury attorney Bill D’Alton of Billings filed to run against Rice. (D’Alton was not available for an interview before publication.)
McMahon was the first to declare his candidacy, a move that surprised some members of the state bar who didn’t expect him to challenge an incumbent. In a March interview, McMahon described himself as a conservative judge who wants to help the high court deliver reliable and consistent interpretations for lower court judges and litigants. He said that while he respects Gustafson’s judicial experience, his judicial philosophy more closely aligns with Rice’s.
“It’s not a matter of me versus her. It’s a matter of, in my view, what do the Montana voters, what kind of Supreme Court justice do they want. And I’ve laid out, I think I’m conservative and I use common sense,” McMahon said.
Before becoming a judge, McMahon represented Blue Cross Blue Shield of Montana and other entities as a civil defense attorney. During his time on the bench, he said, he’s also gained experience in criminal law and family court.
McMahon’s self-described conservatism has not stopped him from rankling Republicans in recent high-profile cases. When members of the Supreme Court were subpoenaed by the Legislature, Rice was the lone justice who challenged his subpoena in district court. The case appeared before McMahon, who found the subpoena invalid and outside the bounds of lawmakers’ authority.
Months later, McMahon again made headlines for striking down the so-called campus carry bill passed by the Legislature. His ruling said the Legislature was “respectfully, incorrect” when it argued it, rather than the Board of Regents, had authority to decide policies for Montana’s public universities. Knudsen, whose office argued the case for the state, quickly publicized his criticism on Twitter, calling McMahon “an activist judge” who curbed students’ right to “protect themselves on campus.”
McMahon, who identified himself as a firearm owner, said he never regarded the case as a debate on the Second Amendment, but rather about how the Montana Constitution constructed education authority. He nevertheless faced waves of criticism after the decision — McMahon said his voicemail was “very full.” Asked if he listened to all the complaints, he smiled and shook his head.
“No. I just delete,” he said. “If we agree to disagree, great. But I’m not going to have a debate.”
McMahon said he doesn’t see himself as a candidate who is out to “save the judiciary.” He said his motivation is to apply the law the best way he knows how, regardless of personal ideology or partisan politics.
“People will say things about me, about my decisions. I mean, I had a brother tell me, ‘My God, Mike, you’ve pissed off the Republicans and you’ve pissed off the Democrats. There’s only going to be 16 people that vote for you,’” McMahon said. “I look at that and say, well, I guess I’m doing my job.”
Shortly after McMahon entered the race, attorney and PSC President James Brown launched his own challenge for Gustafson’s seat. In his announcement, Brown said he is running to “preserve our rule of law, follow the Constitution, bring accountability back to the judicial branch, and to protect our Montana way of life.”
Brown has operated his own solo-practice law firm in Helena since 2012, where he’s represented clients in a wide variety of civil cases, including agricultural and public lands issues. Though he started winding down his law practice when he was elected to the PSC in 2020, Brown said he gained a breadth of legal experience by running his own practice.
“To be a solo attorney in Montana, you really can’t be a specialist, because we’re just not a big enough population state,” Brown said. “And so I’ve taken a wide variety of cases, everything from representing a newspaper on a ‘right-to-know’ request … to representing single mothers in parenting plan disputes.”
That diverse litigation background is one of the strengths Brown said he could bring to the court. As a currently practicing attorney, Brown also said he’s interested in advocating for more expediency in lower courts, where he said clients have sometimes been frustrated by lengthy wait times for rulings. Brown said that reform would improve the public’s trust in the judicial branch.
Some members of the bar, who requested anonymity in order to speak candidly, pointed to Brown’s legal background as a complicating factor in his race for a nonpartisan judgeship. From 2009 to 2015 Brown was counsel for the Montana Republican Party and has continued to represent the GOP in more recent cases. He’s also well-known in the legal community for representing American Tradition Partnership, a conservative political organization involved in a series of high-profile campaign finance cases. ATP, in a case before the U.S. Supreme Court after Citizens United, successfully overturned Montana’s Corrupt Practices Act, which limited corporate donations to political campaigns. While represented by Brown, the group was also sanctioned by a district court judge in Helena for failing to produce documents related to campaign finance disclosures.
That professional history may also help Brown in his current race. Three days after Brown announced his candidacy, he received a coordinated trio of endorsements from some of the state’s most prominent Republican elected officials: Sen. Steve Daines, Gov. Greg Gianforte and Attorney General Knudsen. The announcements were later shared by the Montana Republican Party on Twitter. Knudsen’s statement credited Brown as having “a tremendous track record in the legal and public policy arenas. He has the experience, integrity and temperament we need on the bench.”
Members of Montana’s legal community interviewed for this article were unsettled by the endorsements, saying they were unusual displays of favoritism from sitting elected officials. Gustafson described the endorsements as a “highly disappointing” move in a nonpartisan race.
Brown declined to comment on the endorsements, citing the judicial rules of conduct that prohibit candidates from seeking, accepting or using political endorsements. Asked if the support from prominent Republicans and his past experiences as an attorney would affect voters’ ability to see him as a nonpartisan candidate, Brown disagreed.
“If I didn’t think that I could be fair and impartial as a judge, I wouldn’t be running for this office,” Brown said. “That is the number one criteria for serving in a judicial capacity. And the entire history of my legal practice has been to fairly and equally apply the law and to advocate for my clients in a manner that falls within the rules of professional conduct and law.”
Montana Supreme Court elections are unique in more ways than one, from primaries to political contributions.
In each race, the two candidates with the most votes in the June primary will proceed to the November general election. While the primary for Rice’s seat will provide an indication of D’Alton and Rice’s comparative popularity as both enter the general election, the stakes are higher in the race for Gustafson’s seat. Come June, one candidate will be forced out of the three-way race entirely.
Campaign donations and spending have already started to turn the wheels of both races, though mostly for the incumbents. As of Monday, Gustafson reported $13,642 in her campaign account. Rice reported $11,024. McMahon reported having $10,570 in his account, largely self-funded — he told MTFP he will limit contributions from other attorneys to $50 to avoid the appearance of conflicts of interest in future cases. Brown reported loaning himself $3,000, his sole listed contribution so far. D’Alton had no reported contributions as of Monday.
As the campaigns go on, the candidates are expected to speak at public forums and perhaps appear on panel discussions hosted by civic groups. While they are limited in what they can say about public policy to avoid even the appearance of bias on any given issue, candidates can answer questions about their qualifications and what they think they could bring to the bench.
Many candidates said the campaign season will be an important opportunity to talk to voters about the fundamentals: how the Supreme Court works and its role as an arbiter for state law. Rice said public perception of the justices’ role can miss the mark.
“The courts aren’t the sudden-death-overtime for the political battle,” Rice said, laughing. “I mean, we do have the final word, but it’s on the basis of law. We don’t engage in policy debates and we don’t root for one side or the other … Our purpose is limited to that call when the debate crosses the line.”
The primary election will be held on June 7. The general election is Nov. 8.
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