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The first time I scheduled an interview with a retired Montana Supreme Court justice, I was nervous. I’m not a lawyer. I have what I assume is a thoroughly average understanding of how the courts work. When I read a legal opinion, I’m constantly Googling phrases and case references to get even a basic grip on what’s being argued or explained. With that resume, there’s something intimidating about questioning the highest-ranking officials who preside over our state’s legal disputes, governmental clashes and constitutional feuds.
Fast forward a few years. I’ve interviewed about a dozen current and former judges in Montana for a variety of stories and I still get nervous. But I have a sort of mental refrain that helps me remember why these interviews are worthwhile. Judges — like state lawmakers, the attorney general, the governor — are elected officials. The ballot box is where Montana’s judges and justices are held accountable to the public. Members of the media are messengers who can help communicate between the two.
Of course, deciphering a judge’s work involves hurdles. Unlike other officeholders, there’s a long list of ethical rules about what judges and judicial candidates can’t publicly discuss, not to mention an internal accountability process that gives teeth to those rules. Perhaps more fundamentally, as some judges point out, publicly sharing personal opinions or promises about future rulings would undermine the integrity of the same legal system they’re sworn to uphold and protect. That’s what two Montana Supreme Court candidates, incumbent Justice Ingrid Gustafson and attorney James Brown, indicated in their responses in a story we published this week about the campaigning of abortion-rights groups in their race. Essentially, zipped lips in respect of ethical restraints.
But putting specific questions to judges and candidates — about judicial philosophy and reasoning, for example, or what parts of Montana’s court system are working or broken, or how judges can build trust with the public — can help demystify this unique branch of government. That’s what MTFP aimed to do with the short survey we sent to the four candidates (click on an individual candidate to see their responses) vying for seats on the Montana Supreme Court this November.
Unfortunately, due to apparently insurmountable scheduling challenges, the statewide judicial candidates have failed to appear at a single public forum together during the general election campaign. If you’re fortunate enough to catch any one of them on the campaign trail, please let us know how it went and what information you gleaned about their judicial outlooks.
If, like many voters, you’re craving more insight into the candidates’ backgrounds, areas of expertise and ideas, we hope these survey answers and the rest of the MTFP 2022 Election Guide can help fill in some of the gaps. It won’t make any of us as well-versed about the judiciary as Montana’s judges and attorneys themselves, but it might help voters be a bit better equipped to decide who they want to put on the bench.
—Mara Silvers, Reporter
For the Record 📣
MTFP reached out to every candidate running for Montana’s two U.S. House districts this year to ask whether they will accept the results of their upcoming election as reported and certified by the Montana secretary of state’s office. Here’s what Heather Swift, a spokesperson for Republican western U.S. House candidate Ryan Zinke, had to say:
“We feel good about the security of Montana’s elections and applaud the legislature for taking measures to further enhance election integrity. Regarding contesting the results, Montana has an automatic trigger for a recount when the race is within certain margins and allows campaigns to fund recounts within a slightly larger margin, which is prudent and frequently used in close races. We remain concerned about inappropriate influence from email, social media and news media platforms and them censoring or discounting information their ‘fact-checkers’ disagree with.”
Most respondents to MTFP’s questions said they’d contest the results of their race only if the vote fell within the state’s statutory margins for a recount. Zinke, despite endorsements from former president Donald Trump and other top Republicans, nearly found himself in that position in June with his razor-thin primary victory over hard-right Flathead conservative Al Olszewski.
As officials in Lincoln County were hand-counting votes due to a physical error with the ballots, Zinke’s team sent out an email to supporters asking for donations to help fund a possible recount and, without evidence or clarification, to “expose the fraudulent election tactics that Democrats used in this race.”
—Arren Kimbel-Sannit, Reporter
Say What? 🤔
While digging through the Montana Commissioner of Political Practices’ Campaign Electronic Reporting System this week (i.e., the online database where you go to look up campaign finance reports), I was momentarily flabbergasted to see donations pop up attributed to “Daffy Duck” and “Bugs Bunney” — recorded as contributing $300 and $150 respectively to state Legislature candidate “J Coffee.”
As is usually the case with quirky entries in large public databases, further examination stifled my hopes of having stumbled across fodder for a Who Framed Roger Rabbit-esque expose about cartoon influence on Montana politics. The entry, while not explicitly labeled as such, appears to be a test item filed by COPP staff using fake data.
“J Coffee,” listed as running against actually uncontested state Rep. Steve Gunderson in Libby’s House District 1, reports the address of the political practices office for both their mailing and bank address (its name: “Bank of Coffee Beans”). In addition to Warner Bros. cartoon characters, the alleged campaign reports contributions from a COPP compliance specialist and the apparently fictional political committee “Montanans Against Big Soda.” The named campaign treasurer, “Tea Bag,” also lists a COPP office email.
Political practices staff confirmed the results of my intrepid sleuthing in an email Thursday.
—Eric Dietrich, Deputy Editor
Hot Potato 🥔
Over the past year, Montana’s code of ethics for public school teachers has bounced up and down the regulatory chain of command like a yo-yo. Educators on a state advisory council approved revisions to the aspirational-but-nonbinding document in February, only to have the Board of Public Education kick those changes back to them a month later. Last week, the council once again adopted new language, passing it to the board for consideration later this year.
Why all the heat over a list of ethical ambitions? When the Certification Standards and Practices Advisory Council began tackling the rewrite in 2021, members felt compelled to insert a reference to “equity” — a term that’s enjoyed a particular definition in educational circles for decades. But the word set off alarm bells within the parental rights movement, which has grown increasingly critical at the national level of what it perceives as a “woke agenda” in public schools. Gov. Greg Gianforte and Superintendent Elsie Arntzen also called for “equity” to be struck from the document, going so far as to challenge the council’s authority to implement such changes.
A lot of voices spoke out in defense of equity’s inclusion in the code of ethics, including members of both CSPAC and the Board of Public Education. That defense continued Oct. 6 as CSPAC members maligned the politicization of a word they argued plays an important role in successful, supportive classrooms. Even so, the council’s second pass at the revisions avoided any mention of “equity,” instead settling for the less controversial phrase “educational inclusion.” Prior to CSPAC’s vote, member Jill Rocksund — chair of the Columbia Falls School Board — acknowledged that a compromise was disappointing but necessary given the unshakeable belief in certain quarters that equity is part of a “hidden political agenda.”
“I would rather keep the Professional Educators of Montana Code of Ethics a regular part of the state’s educational best practices than to die on a hill over semantics,” Rocksund said. “It doesn’t serve students in the best way possible.”
—Alex Sakariassen, Reporter
Following the Law ⚖️
A federal judge in Billings has struck down two laws governing how disagreements between the owners of the coal-fired power plant in Colstrip are adjudicated. The ruling comes in the midst of an extended period of upheaval for Colstrip as plant owners based in Washington, Oregon and Montana fight over the continued operation of the nearly 40-year-old facility and plant co-owner and operator Talen Energy navigates Chapter 11 federal bankruptcy proceedings in Houston.
On Sept. 28, Kathleen DeSoto, a magistrate judge in Yellowstone County District Court, ruled that two bills the 2021 Montana Legislature passed to discourage the plant’s Pacific Northwest owners from pulling out of Colstrip violate federal laws and provisions of the Montana Constitution governing commerce, contracts and arbitration procedures.
Both measures were sponsored by Great Falls attorney Steve Fitzpatrick. Sen. Fitzpatrick, a Republican, sought to discourage the Pacific Northwest utilities from closing the plant to comply with climate change-spurred laws directing them to divest from coal by 2025 in Washington and 2030 in Oregon. Coal-fired power plants were responsible for more atmosphere-warming carbon dioxide emissions than any other electricity source in the U.S. in 2021, according to the U.S. Energy Information Association.
Senate Bill 265 would have changed pieces of the 41-year-old owners and operators agreement stipulating that disputes between owners are to be decided by an arbitrator in Spokane, Washington. Had the measure withstood DeSoto’s scrutiny, disputes would have been overseen by a three-arbitrator panel in a Montana-based process. Senate Bill 266 would have allowed the Montana attorney general to fine owners who engage in an “unfair or deceptive act or practice” by deciding not to fund maintenance of a jointly owned power plant up to $100,000 per day of noncompliance.
DeSoto sided with the Pacific Northwest owners in her ruling, which found that SB 266 “does not advance a significant and legitimate public interest” because it is “narrowly aimed at preventing PNW Owners from taking action to close [the plant] or objecting to Talen-proposed budgets, as permitted in the O&O [ownership and operation] Agreement.”
One of the motions included in the 18-month legal saga spurred by the passage of SB 265 and 266 was a request by NorthWestern Energy, Montana’s largest monopoly utility company, to force all owners into arbitration. (NorthWestern, which would like the plant to remain operational through 2042, has been pursuing arbitration since March 2021 to settle whether closing the plant requires unanimous agreement between all owners.) According to DeSoto’s ruling, the parties haven’t reached an agreement on terms to govern that process. The ruling also revealed that the Pacific Northwest owners intended to call a vote to close Unit 3 on May 19, 2021, but stopped short of initiating the vote due to the adoption of SB 266.
DeSoto didn’t grant NorthWestern’s motion to force the parties into arbitration, but left a window open for the utility to renew its request after Susan Watters, the more senior judge assigned to the lawsuit, reviews DeSoto’s ruling.
—Amanda Eggert, Reporter
By the Numbers 🔢
Number of Montana fifth-graders participating in the math portion of a pilot program designed to replace the state’s end-of-year standardized tests with multiple mid-year student assessments. The Office of Public Instruction announced Tuesday that a total of 46 public school districts across the state had signed on to administer the MAST pilot to their fifth- and seventh-graders, including districts in Butte, Hamilton, Glendive, East Helena and Havre.
—Alex Sakariassen, Reporter
Department of Corrections 🤥
As of last month, Montanans are once again allowed to register to vote on Election Day. But listeners of the Bozeman FM radio station The River (93.7) may have heard differently this month due to an outdated public service announcement from Secretary of State Christi Jacobsen.
The ad featured Jacobsen encouraging eligible Montanans to be “vote-ready” and informing them that they have until noon the Monday before the Nov. 8 election to register. However, the law that set that deadline — House Bill 176 — was struck down as unconstitutional by a Billings judge on Sept. 30.
According to SOS spokesperson Richie Melby, the radio ad was part of an ongoing messaging campaign Jacobsen started nearly a year and a half ago to notify voters about changes to state election laws enacted by the 2021 Montana Legislature. Melby confirmed that Jacobsen’s office was aware of the outdated ad and had notified the Montana Broadcasters Association to “verify that the one ad would lapse from running.” MBA President and CEO Dewey Bruce said he’d promptly alerted the association’s members to pull the ad from their airwaves.
The ad isn’t the only lingering shred of incorrect voter information drawing attention. An official voter info pamphlet distributed by Jacobsen’s office this week also contains outdated guidance about voter registration and voter ID requirements. And the secretary of state’s website still lists the registration deadline set by HB 176, though those references are now accompanied by an asterisk directing viewers to a footnote in red italicized text: “This provision will not be enforced for the 2022 general election based on the court order issued on September 30, 2022. This is subject to change.”
If you want the latest accurate voter info, you can always check our 2022 Election Guide’s “How to Vote” page.
—Alex Sakariassen, Reporter
On Our Radar 
Amanda — This essay by Outside travel writer Megan Michelson offering her defense of bringing crowds to under-the-radar recreation gems raised my hackles. It spurred some interesting conversations about responsible use of — and promotion of — sensitive areas.
Alex — Parking frustrations at the University of Montana campus have been a feature of casual fall conversation for as long as I’ve lived in Missoula. This season, though, there’s an added wrinkle: As the Montana Kaimin pointed out, construction and renovation projects have put 400 parking spots out of commission, and geographically speaking, there’s no easy avenue for relief.
Eric — The Texas Tribune’s Washington Bureau Chief Abby Livingston (who, it’s worth noting, started her career on Capitol Hill as an aide to a Republican senator) reflects on why she became so disillusioned with Congress she quit her job. I’ve been thinking a lot recently about what I do and don’t like about Helena’s political scene and found her insight into D.C.’s insider culture helpful context.
Arren — Vox has this fun explainer on the politics of New Hampshire: an “old, white, educated, libertarian, anti-tax, pro-choice” state with a 400-member state House, making it “the third-largest elected legislative body in the English-speaking world.”
Mara — The New York Times this week highlighted a Biden administration priority that caught my eye because of the impact I think it would have on Montana families: increasing financial incentives for states that place kids in foster care with their relatives instead of with strangers, a method known as “kinship placements.” If you’re involved with the foster system, give the piece a read and let me know what you think.
*Some articles may be behind a paywall.