We have two Montana Supreme Court races this year, each, as always, extremely important. One of those races, however, demands even more urgent attention than our judicial races normally require…namely the election involving Justice Ingrid Gustafson and her challenger, Republican Public Service Commission Chairman James Brown.
In 2003, Republican Gov. Judy Martz appointed Gustafson to the Yellowstone County District Court after 16 years in private practice. That was a year before her opponent finished law school. In 2017, Judge Gustafson was appointed to the Supreme Court by Democrat Governor Steve Bullock and retained her seat by a vote of the people the following year.
Gustafson’s opponent has been a lobbyist, counsel to the Montana Republican Party, and presently serves as the Republican chair of the Montana Public Service Commission, having initiated his first and only term less than two years ago in 2021.
The separation of powers and the Rule of Law embodied in our Constitution is unequivocally indispensable to the life of a democratic republic. In Alexander Hamilton’s words, there can be no liberty if the “power of judging” is not clearly and completely separated from the legislative and executive functions. “Having neither the power of the purse or the sword,” a free people cannot and will not exist without the complete independence of the judiciary. That’s why federal Article III judges have lifetime tenure and why the elections of members of the judiciary in Montana are nonpartisan.
It is also why the Montana Code of Judicial Conduct provides in Rule 2.4 that a judge is prohibited from conveying or permitting others to convey the impression that any person or organization is in a position to influence a judge. In addition, the Code also provides in Rule 3.1 that a judge shall not participate in activities that would appear to a reasonable person to undermine the judge’s impartiality. And finally, Rule 4.1 prohibits a judicial candidate from seeking, accepting, or using endorsements from a political organization, or partisan or independent non-judicial office holder or candidate.
Both of Gustafson’s appointments to a judicial vacancy were based upon the recommendations of the Judicial Nomination Commission, a seven-member body designed to provide judicial independence and created in 1973 to examine applicants for judicial vacancies and then forward three to five names to the governor, who would then appoint one of the nominees to serve until the next election.
Regrettably, after 48 years of serving to protect and defend the impartiality and independence of the judiciary, the 2021 Montana Legislature passed, and Republican Gov. Greg Gianforte signed, a bill that eliminated the Judicial Nomination Commission in favor of allowing the governor to directly fill judicial vacancies between elections.
Important to note as well, there were an astounding 18 bills introduced by Republicans in the 2021 Legislature focused upon reshaping and controlling the judiciary in Montana, including bills to require the partisan elections of judges and the election of supreme court justices by politically “gerrymandered” districts instead of statewide.
Brown made it publicly known early on in the Supreme Court race that Gov. Gianforte had “called and asked me to consider running for the state Supreme Court of Montana” because of the governor’s concern “that what we’re seeing in Montana is we’re seeing the court systems acting as a shadow Legislature.”
In addition, according to a June 7, 2022, Montana Republican Party press release, Brown has been “endorsed by Governor Gianforte, Senator Daines, Congressman Rosendale, Attorney General Knudsen, the Montana Republican Party and over 80 Republican legislators.” That release has been followed by Republican campaign materials distributed throughout Montana emphasizing the same endorsements listed above.
Apparently, the independence and impartiality of the judiciary, required by the Montana and United States Constitutions, and without which our democracy cannot survive, cannot compete with the desire of the aforementioned Republicans to control all three branches of state government. Sadly, that approach fulfills neither the express promise, nor the spirit, of the constitutional oath of office taken by each of the aforementioned officeholders.
Having been appointed by both Republican and Democratic governors, Gustafson has served, as a district judge and supreme court justice, with fidelity, integrity, and tireless dedication to the people of Montana for 19 years. Throughout, she has abided by her oath to impartially and independently support, defend and protect our constitutions and the Rule of Law.
Based on the foregoing, I would urge my fellow Montanans to once again place their trust in Justice Gustafson and reelect her to the Montana Supreme Court.
Marc Racicot is the former Republican governor of Montana.
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