Montana Supreme Court race brings unprecedented spending & lobbying
The election contest between sitting justice Ingrid Gustafson and Republican utility regulator James Brown for a seat on Montana’s highest court is the most expensive Supreme Court race in state history.
The race is fueled by out-of-state funding, high-profile endorsements from party members and years-long political sparring over Montana's judicial branch.
After Nov. 8, either Gustafson or Brown will serve an eight-year term on the bench. The winner will be one of seven justices who interpret and apply the state’s bill of rights.
Brown, the current president of the Montana Public Service Commission, says his philosophy as a justice would be to apply the Constitution as a static document — not interpreting beyond what’s written or the statute’s intent.
“What I’ve believed for years is that Montana judges are stepping out of their roles as neutral arbiters of the law and thinking of themselves as policymakers," he said.
Brown says the current Montana Supreme Court sometimes oversteps its authority, and pointed to two examples when it struck down laws passed in 2021 by the Republican majority in the state Legislature.
He disagrees with the court’s recent unanimous affirmation of a lower court decision that blocked a law that would expand concealed carry of firearms on college campuses. The Constitution says the state board of regents is “responsible for long-range planning, and for coordinating and evaluating policies and programs for the state's educational system.”
He also thinks the court overreached when it ruled a proposal for voters to elect Supreme Court justices by district instead of at-large was unconstitutional.
Sitting Montana Supreme Court Justice Ingrid Gustafson, who recused herself from the concealed carry case and voted with majority in the other, says the court did their job as required.
“There are times when things, on the face of them, are unconstitutional," she said. "And it is the job of the court to make a tough decision, and decide that.”
Gustafson and Brown often point to their respective professional experience in their campaigns.
Gustafson has been a judge for nearly two decades. In 2004, she was appointed by former Republican Gov. Judy Martz to Yellowstone County District Court. Gustafson helped create the drug court there in 2011.
“My experience in the district court is probably the most invaluable experience a person can have for the job that I have now, because you see all of the different types of cases," she said. "You have bench trials, you have jury trials, you have summary judgment hearings, you know what goes on in district court. And I just can’t imagine doing this job without that experience.”
Former Democratic Gov. Steve Bullock tapped Gustafson for the state’s high court in 2017.
Gustafson graduated with a business marketing degree from Montana State University and received her law degree from the University of Montana.
Brown has worked as a private attorney on agriculture, business and first amendment issues. He’s argued cases before district courts, the state supreme court and the 9th Circuit Court of Appeals. He won election to the state’s utility oversight board, the Public Service Commission, in 2020.
Brown spoke about his work as an attorney during a recent forum with the Montana Chamber of Commerce.
“Part of my motivation in running for the Montana Supreme Court is to bring balance back to the Montana Supreme Court," he said. "One area where balance needs to be restored as each of you listening today knows, is the area business-related litigation.”
Brown was a double major in history and political science from the University of Montana. He received his law degree from Seattle University and his masters degree in tax law from University of Washington.
Money, politics and justice
Political interests are making their voices heard in the race through unprecedented spending and endorsements.
The voices are getting louder, especially with the likelihood of high-stakes issues like abortion, voting process, and legislative attempts to regulate the judicial branch coming before Montana’s high court in the near future.
While it’s not uncommon for justices to have prior political affiliation — current Chief Justice Mike McGrath was previously elected as a Democrat for Attorney General and Justice Jim Rice was elected as a Republican into the state Legislature — the current level of partisan interest in this race is unusual.
Republicans are lobbying hard for Brown. The party has long expressed frustration with the Montana judicial branch blocking their legislative priorities, what they say is an infringement on the state Legislature's power and a bias for Democrats.
At the state GOP convention in Billings this summer, party chairman Don Kaldtschmidt said it’s imperative to elect Brown.
“It’s going to be historic for the sake of our conservative values that we don’t forget about James Brown and elect him to the Montana Supreme Court," Kaldtschmidt said.
Republican Gov. Greg Gianforte is also publicly supporting Brown. A sitting governor has not endorsed a Supreme Court candidate in recent memory.
The national Republican State Leadership’s Judicial Fairness Commission is spending half a million dollars on attack ads against Gustafson in support of Brown’s campaign.
Democrats and Montana trial attorneys are throwing their full weight behind Gustafson. The state trial attorneys political committee, Montanans for Liberty and Justice, has more than $300,00 on hand to keep Gustafson on the bench.
Planned Parenthood of Montana PAC has spent more than $100,00 to send out fliers in support of Gustafson, betting she’d vote to uphold the privacy precedent that protects abortion access in Montana.
Former Republican Gov. Marc Racicot has also endorsed Gustafson, calling her a "a fine lawyer and a jurist that can be trusted."
Both candidates are getting out-of-state financial support, with the majority going to Brown, according to campaign finance reports filed with the state.
Gustafson says the money flowing into the race is concerning.
"Outside corporate lobbyists have put a lot of money in and they would like to buy a seat on the supreme court so they can get a judge that rule the way they want them to," she said. "That should be concerning to all Montanans."
Brown says he wouldn’t run for public office if he was going to be beholden to outside interests. He’s critical of the donations going to Gustafson’s campaign.
"Attorneys who practice before judges and have cases before judges are spending money on behalf of those judges while they have cases pending. It calls into question the impartiality and fairness of the court," he said.
Gustafson disagrees that there’s widespread mistrust of the high court. She points to a surveythe Supreme Court conducted in September of the state’s legal community that showed 88% of 385 respondents approved of the court’s performance.
Douglas Keith, an expert on state Supreme Court races at the Brennan Center for Justice, says state court candidates should avoid the ratcheting up of fundraising and politicization seen in most other races for political office across the country.
“What all of this tells us is that the way judicial elections are operating today is no way to pick judges for the branch of government that’s supposed to be a little bit separate from politics in its decision making," Keith said.
Keith says most of the financial push to influence the courts has come from conservatives across the country. The Republican State Leadership Committee, which is backing Brown, aims to advance conservative legislative priorities and push back against what they call a biased agenda in the courts nationwide.
Whether the push and pull of political influences prove successful will become clear on Election Day, Nov. 8.