Montana's judicial independence is on the ballot this election, says Helena judge

Posted at 6:21 PM, May 17, 2022

HELENA — Two seats on the Montana Supreme Court are up for reelection this year as constitutional challenges to GOP-backed laws flood the court’s docket.

Both Montana justices James Rice and Ingrid Gustafson are opposed in their races, with Gustafson facing two opponents, PSC President James Brown and Lewis and Clark District Court Judge Mike McMahon, in her primary contest. Supreme court races are nonpartisan and the two candidates with the most votes will continue through to November’s general election.

Gustafson’s message is simple; she’s done the job well since 2017 and will continue to be a dependable member of the state’s highest court.

“I have epitomized really consistency and stability,” Gustafson said in an interview with MTN News in April. “Really proven myself over a long period of time to be an independent, reliable, consistent jurist.”

Former Gov. Steve Bullock appointed Gustafson to her seat about five years ago. Prior to her appointment, Gustafson was a district court judge in Yellowstone County, one of the busiest judicial districts in the state. She championed drug courts and sat on the 2015-2016 Commission on Sentencing, which helped create a massive criminal justice reform bill that Bullock signed into law in 2017.

Gustafson ran unopposed in 2018 and retained her seat on the bench. However, the Montana Republican Party and its leadership have made it clear they would prefer Public Service Commission President James Brown on the bench rather than her. Gustafson's other opponent is Lewis and Clark District Court Judge Mike McMahon.

Gustafson acknowledged how the politicization of the judicial branch had heighted since she first took the bench.

“Well, I do think there is a movement under foot by partisan groups to reduce the authority of the judicial branches as an independent and separate entity of government,” Gustafson said. “Decisions would then be made by partisan ideology as opposed to, ‘These folks have come to the court and they need a fair shot, both sides, to present their cases.”

People don’t have to reach too far back to find a time in Montana’s history when money and influence held sway over all three branches of Montana’s government, Gustafson said. She said in the days of the copper barons “partisan ideology and interest groups basically owned government.” When Montanans wrote the state constitution in 1972, some of that hindsight guided them, Gustafson said.

Brown's fresh perspective

The oversized influence of the copper barons also caused Montanans to pass the Montana Corrupt Practice Act in 1912, which restricted corporate campaign donations. About 100 years later, Gustafson’s opponent Brown would help get that law thrown out as unconstitutional.

Brown represented American Tradition Partnership, sometimes called a “dark money” group due to its resistance to disclosing its donors or political campaign related spending. American Tradition Partnership, previously called Western Tradition Partnership, fought Montana’s campaign finance disclosure laws all the way to the U.S. Supreme Court.

“As part of my legal practice I’ve been a champion of defending the constitutional rights of Montanans,” Brown said. “And the cases that I’ve involved with, I defended the rights of Montanans to freely associate and to speak on political matters without interference and prohibition by government.”

Brown is a nonpartisan candidate, he said. However, the Montana Republican Party sent out flyers supporting Brown and listing the Republican leaders who have endorsed him, including Sen. Steve Daines, R-Montana, Gov. Greg Gianforte and Montana Attorney General Austin Knudsen.

The judicial canons prevent Brown from talking about political endorsements and therefore he couldn’t comment on the flyers, Brown said.

“What I can say is that the reason I chose to run for supreme court is based on my experience and knowledge as a private practice attorney in Montana,” Brown said. “I believe that I’m the best candidate because I can bring both a private business perspective being a private business owner as well as someone who has represented client in water court cases.”

In 2020, Brown ran and won as a Republican for the Public Service. His fellow commissioners later chose him to head the agency. While Brown was never a judge in a courthouse, some of his work for the PSC is similar as commissioners must hear petitions from customers and file orders.

The most recent campaign finance reports show Gustafson had raised about $80,000 in campaign contributions, Brown had raised almost $35,000 and McMahon’s campaign has raised a little more than $18,000.

'The independence of the judiciary is ground in my heart' - Judge Mike McMahon

McMahon’s lower fundraising dollars may have to do with his decision to limit contributions from attorneys to $75. To run for the Montana Supreme Court, McMahon wanted to be beyond reproach.

“I issue decisions based upon the law,” McMahon said. “I don’t issue a decision based upon who gave me money or who didn’t give me money.”

McMahon’s rulings in some cases have frustrated parties on both ends of the political spectrum. In 2021, McMahon ruled part of a law that sought to prevent the state board of regents from banning guns on campuses. In his ruling, McMahon said the Montana constitution explicitly gave the Board of Regents full power to control state universities – independent from the legislature – so the authority to determine firearms policy on campus belongs to them.

This is an important race for the independence of the judiciary, McMahon said. Special interest groups always try to influence Montana Supreme Court races and this year, the GOP is acting like one of those special interest groups.

“We need folks like me up there to make sure that the independence is preserved and protected,” McMahon said. “The independence of the judiciary is ground in my heart and that’s what I believe in.”

Even on issues where his own personal beliefs might conflict, McMahon follows the law, he said.

“I’m Catholic,” McMahon said. “I understand what the Catholic Church’s position is on abortion. I understand what my personal position is on abortion. But I also understand that Justice Nelson did an incredible job in his opinion in 1999.”

The decision McMahon’s referring to is the Armstrong decision, which established the Montana State Constitution’s privacy provision protected a woman’s right to a pre-viability abortion. The Montana Attorney General’s Office has asked the Montana Supreme Court to strike down the decision.

“Justice Nelson had the forethought to make sure that in Montana that privacy right as established in the Montana constitution was a right of the people,” McMahon said. “So, if there is one decision I’m proud of, that he had the forethought to do that and that’s where we’re at today.”

Both Riceand his opponent, Billings attorney Bill D'Alton, are expected to continue on to the general election in November. Montana's primary election is scheduled for June 7.