Politics raises the stakes in Gustafson-Brown high court race

Montana voters will decide two Supreme Court races this fall, and one is attracting an unusual share of partisan attention.

In that race, incumbent Justice Ingrid Gustafson, with 18 years of experience as a judge, faces challenger James Brown, current president of the Public Service Commission and former legal counsel to the Montana Republican Party.

Although Brown has never been a judge, GOP endorsements have ranged from Republicans Gov. Greg Gianforte and U.S. Sen. Steve Daines to a host of Republican state officials and lawmakers.

Supreme Court races are designated as nonpartisan, and the Montana Code of Judicial Conduct prohibits judicial candidates themselves from "seeking, accepting and using endorsements" from politicians. But there's nothing to prevent partisans from weighing in.

The backdrop of this race includes tension between the governor's office, the GOP-controlled Legislature and the state's Supreme Court. Republican lawmakers and GOP Attorney General Austin Knudsen have criticized the court for overturning several laws passed during the 2021 legislative session, including one to end same-day voter registration.

n his website, Brown called Gustafson a "liberal activist," who has failed to protect Montana businesses and jobs. He also said she was "soft on crime" and a "threat" to Second Amendment gun rights. He also charged that she failed to recuse herself in a case in which the state's Republicans unsuccessfully sued the Supreme Court for access to its emails.

Brown, who calls himself a "constitutional conservative" and says courts "are not designed to make the law, but to apply it," has also described the Montana Supreme Court as "one of the most liberal state courts in the entire country."

One of Brown's TV ads begins by saying "Joe Biden and liberal activists are attacking our way of life" and ends by urging voters to "stand up to Joe Biden" by backing Brown's candidacy.

For her part, Gustafson's campaign videos repeatedly urge voters "to keep politics out of Montana's courtrooms and the Montana Supreme Court."

Robert Saldin, a political science professor at the University of Montana, said the tension between Republican leaders and the courts is key to understanding the partisan overtones of this race.

"If you aren't able to get your agenda through, I think the Republicans look at the situation and say, well, there are a couple of potential ways of dealing with this," Saldin said. "You can either change the people that are on the Supreme Court and hope that you get different rulings, or you can change the (state) Constitution."

Gustafson was appointed to Yellowstone County's 13th Judicial District Court, the state's largest, by former Republican Gov. Judy Martz in 2004. She said no experience could have better prepared her for the Supreme Court, to which she was appointed by former Democratic Gov. Steve Bullock in 2017. She won election to the seat a year later.

Gustafson responded to Brown's critiques of her being anti-business by saying that judges decide cases based on the facts, not the well-being of the businesses involved. To the critique of being weak on crime, she said judges don't let people out of the system just because they can.

She pointed to her work in creating two drug courts and a child welfare specialty court that she said saved people time and money in the court system and improved the lives of children and families. If reelected, she vowed to continue this work and protect Montanans' constitutional rights.

"This gentleman (Brown) hooks himself to constitutionality and that he's going to uphold your constitution. But he is taking money and taking endorsements and taking help from folks that are actively wanting to get rid of it and take over the court," Gustafson said at a fundraiser in Missoula.

Brown said he decided to join the race after encouragement from people close to him looking for someone who would uphold "shared Montana values of hard work and good judgment."

"If I felt that I was going to be influenced by people or groups that contributed to my campaign, then I wouldn't be qualified to sit on the Montana Supreme Court," Brown said. "That would just be a disqualifier in my mind if I felt like that."

Brown was elected to the PSC in 2020 and maintained that he would recuse himself from PSC cases if they came before the Supreme Court, referencing the court's rules for handling such a situation.

He has practiced law at his firm, with offices in Dillon and Helena, for 10 years representing farmers, ranchers and small business owners.

Brown, who filed for the Supreme Court race three days before the deadline, said he is concerned about the length of time it takes the court to process cases and is determined to restore faith in the judicial system. One of his critiques of the current court is that it legislates from the bench.

The most recent campaign finance filing information shows Brown has raised over $230,500, including donations from two political action committees, the Montana Acre PAC, which represents the state's rural electric cooperatives, and the Montana Independent Bankers PAC. Brown is listed as MIB's executive director.

He also received nearly $150,000 in support from the Republican State Leadership Committee to purchase television ads in the primary.

Justice Gustafson has raised over $300,000, notable donors including several former Supreme Court justices and many lawyers. She's received support from the Montana Law PAC. In the primary, she received roughly $150,000 for mailers and social media ads from the independent group, Montanans for Liberty and Justice, which also supported the campaigns of then-Justice Mike Wheat in 2014 and current Justice Dirk Sandefur in 2016, according to spokesman Allen Smith Jr. olitics are nothing new in Supreme Court races.

Justices have frequently held political positions before ending up on the court, including the longest-serving justice on the current state Supreme Court, Justice Jim Rice, who served three terms as a Republican state legislator before joining the court. The late Chief Justice Jean Turnage served as a Republican legislative leader before joining the court. Current Chief Justice Mike McGrath, won two terms as Montana's attorney general, running as a Democrat.

Rice said he has been working to resist efforts to undermine the courts. When politics get in the way of the role the three branches of government are supposed to serve, it can be destructive, he added.

"If extremism and polarization is the fuel to the flame, I think it's ultimately driven by a lack of proper understanding of our institutions and the critical role that they play," he said.