With roughly two weeks until primary ballots are counted, the race for one of two contested seats on Montana’s Supreme Court is barely clinging to its nonpartisan label, largely because of the high-profile Republican endorsements encircling one candidate.
In the three-way contest, Supreme Court Justice Ingrid Gustafson is running for re-election against challengers James Brown, an attorney and president of the Public Service Commission, and Michael McMahon, a district court judge in Helena. The two contenders with the most votes on June 7 will proceed to November’s general election.
Of the three candidates, Brown is receiving the most overtly partisan support from a long list of elected Republican officeholders. His campaign gained momentum in March with the coordinated endorsements of Gov. Greg Gianforte, Attorney General Austin Knudsen, U.S. Sen. Steve Daines and the state Republican Party. Since then, according to an op-ed endorsement penned by the state’s Republican House Speaker Wylie Galt and Senate President Mark Blasdel, 83 legislators have also endorsed Brown.
According to the Montana Code of Judicial Conduct, elected officeholders can endorse judicial candidates as long as the candidate does not “seek, accept, or use” those endorsements during their campaign.
This month, Brown appeared to blur that ethical line when he referenced Gianforte’s support of his candidacy at a Republican candidate event in Butte.
“In February, I’m pleased to say that the governor of the state of Montana called me and asked me to consider running for the state Supreme Court of Montana,” Brown said, according to a recording of the May 13 forum, which was open to the media. “And the governor’s theory was that what we’re seeing in Montana is we’re seeing the court systems acting as a shadow Legislature. And each of you is seeing that every time you open up a paper in 2022, we are seeing another judge somewhere in the state striking down democratically passed legislative enactments that you, as the voters of Montana, sent your legislators to Helena to pass. It is your agenda that is being struck down by courts across Montana.”
In his remarks, Brown also critiqued the Montana Supreme Court for having a reputation as one of the country’s “most liberal courts” and said the court has been referred to as a “judicial hellhole” — a nod to a blog of the same name run by the American Tort Reform Foundation.
Former Supreme Court Justice Pat Cotter, who helped rewrite the judicial code of conduct in 2008 and reviewed Brown’s remarks at the request of Montana Free Press, described his reference to Gianforte’s endorsement as ethically unclear.
“I think I would say that Brown is approaching the line, if not crossing it, when he informs a partisan group that he is the candidate that has been solicited by the governor and is being supported by the governor in his run for judicial office,” Cotter said.
The rules for judicial conduct are enforced by the state’s constitutionally created Judicial Standards Commission, which can censure, suspend or remove judges who are found to have violated provisions of the code. If a complaint is filed against a judicial candidate who is not a judge, they can be subject to an investigation by the commission upon taking office. Complaints filed with the commission are confidential while investigations proceed.
Under the code’s same rule section governing political campaigns, judicial candidates are also prohibited from making “any statement that would reasonably be expected to affect the outcome or impair the fairness” of a matter likely to come before the court or “make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.”
In his comments in Butte, Brown was explicitly critical of district court decisions in recent high-profile cases, including a ruling by McMahon striking down House Bill 102, which would have allowed permitless concealed carry of firearms on college campuses. McMahon found that the law infringed on the authority of the Board of Regents, which is constitutionally empowered to decide firearm policies on college campuses.
“Basically, that judge said that college students do not have a constitutional right to own or possess guns on college campuses,” Brown said at the event. “Now does that jive with the Second Amendment to the [U.S.] Constitution or Montana’s protection of firearms?”
Brown later referenced other political issues that are being debated in state law and policy.
“We’ve seen attacks on parental rights and individual liberty. We’ve seen attacks on the Second Amendment. We’ve seen attacks on private businesses,” Brown said. “Folks are gravely concerned about government overreach, unilateral mandates and the fairness of court rulings.”
By referencing specific policy issues and court decisions, Cotter said, Brown seemed to be “hinting” at how he might approach cases, but did not appear to be in clear violation of judicial conduct rules. However, Cotter said, Brown’s comments were “carving out a partisan political platform” — a strategy she said goes beyond the rhetoric of previous Supreme Court candidates who have accused judges of legislating from the bench.
“The elephant in the room is the elephant,” Cotter said. “It’s reflective of what we’re seeing in our society right now in terms of partisanship that is crossing over into the judiciary.”
In response to a list of questions from MTFP, Brown said his statements at the Butte forum did not violate the code of judicial conduct. He said the governor’s solicitation of his candidacy was one of countless calls of support he received in the lead-up to the March filing deadline.
“I was humbled to hear from them, as well as the governor, as I weighed this decision,” Brown said.
The governor’s press secretary, Brooke Stroyke, confirmed to MTFP that the governor called Brown “to encourage him to run” for the Supreme Court seat.
“The governor is confident Jim will make a strong Supreme Court justice by interpreting laws, not making them from the bench,” Stroyke said.
Jeremy Johnson, a professor of political science at Carroll College, said the partisan messaging from Brown’s Republican supporters is unsurprising given the broader political climate. He said recent state Supreme Court elections and congressional battles over presidential appointees to the U.S. Supreme Court demonstrate an increasing politicization of judicial positions.
“At least rhetorically, people [used to] talk about the courts being above partisan politics,” Johnson said. “Now it’s just partisan warfare.”
Since March, Gustafson’s campaign has criticized the overt Republican support rallying around Brown. In a May statement, Gustafson emphasized that judicial races are nonpartisan.
“They are supposed to be without influence or control of any political party. Montanans deserve and our law requires judges to independently consider the litigants and issues coming before them,” Gustafson said. “There is a partisan effort afoot to weaken the judicial branch and remove it as a check and balance to the other branches of government.”
Some Republicans have defended the party’s efforts to buoy Brown through the primary, pointing to how the Montana Democratic Party and Democratic Gov. Brian Schweitzer publicly supported and financed Supreme Court Justice Dirk Sandefur’s campaign against Kristin Juras, now Gianforte’s lieutenant governor, in 2016.
“They’re joking, right?” said Kyle Schmauch, communications director for Senate Republicans, responding on Twitter to a March interview in which Gustafson described Brown’s endorsements from Gianforte, Knudsen and Daines as “disappointing.” Schmauch also posted a link to Schweitzer’s 2016 endorsement video for Sandefur.
This year, the state Democratic Party has not endorsed any Supreme Court candidates. Former Democratic Gov. Steve Bullock, who appointed Gustafson to the court in 2017, was among the hosts of an April fundraiser for her campaign in Helena, but is not listed among her contributors in the most recent public finance reports. Gustafson’s campaign manager said she has not attended any events hosted by political parties during her campaign, and has not “spoken at a Republican, Libertarian or Democratic event” during her time on the Supreme Court or previously as a district court judge in Yellowstone County.
According to May campaign finance filings, Gustafson has outraised her two opponents in direct campaign contributions, with Brown close behind. Gustafson has tallied more than $111,000 raised, with $37,700 remaining cash on hand. Brown has reported raising more than $91,800 since announcing his campaign in mid-March, and has roughly $31,500 cash on hand. McMahon’s report listed more than $18,000 raised since March, with about $16,000 in cash remaining.
Of the three candidates, Brown has received the largest number of financial contributions from sitting elected officials, including donations from Daines, Juras, Secretary of State Christi Jacobsen, state representatives Seth Berglee, Larry Brewster, Llew Jones, Denley Loge, Terry Moore, Amy Regier, Matt Regier and Jerry Schillinger, and state senators Greg Hertz, Mike Cuffe, Terry Gauthier, Bruce Gillespie, Mike Lang and Keith Regier. All are Republicans.
While not directly contributing to Brown’s campaign, Attorney General Knudsen is the honorary chair of a political action committee called Leadership in Action that has donated $700 to Brown, according to his May campaign finance report. In April, the PAC also gave a total of $3,500 to an independent entity called the Montana Judicial Accountability Initiative, whose treasurer is Republican political consultant Jake Eaton, who worked as campaign manager for Gianforte and Knudsen in 2020. While that group has yet to do any recorded spending, Eaton told MTFP this week that the PAC will “likely get involved” in the Supreme Court race.
A review of Gustafson’s contributions so far shows direct financial support from dozens of attorneys around Montana, but only a few from elected Montana officeholders, including Democratic state Rep. Rob Farris-Olsen of Helena and Helena City Commissioner Eric Feaver.
Gustafson has also received $700 from the Montana Law PAC, the political arm of the Montana Trial Lawyers Association. Montana Law PAC has also donated $70,000 to another political entity, Montanans for Liberty and Justice, which has spent approximately $150,000 on mailers and social media ads in support of Gustafson, according to the group’s treasurer, Allen Smith Jr., who is also the executive director of the trial lawyers association. Montanans for Liberty and Justice has previously thrown its financial weight behind Sandefur’s race in 2016 and former Supreme Court Justice Mike Wheat’s campaign in 2014.
The primary election will be held June 7.
This article was updated May 25, 2022, to accurately contextualize a quote from James Brown regarding Gov. Gianforte’s phone call encouraging him to run for the state Supreme Court.
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