Questions of judicial ethics and fairness, along with the influences of campaign spending on courts, dominated the discussion at a Montana Supreme Court election forum in Missoula on Monday night.
Although only one seat on the ballot is contested, all four candidates appeared at the University of Montana School of Law to speak to a few dozen people, primarily students. Chief Justice Mike McGrath and Justice Jim Shea are unopposed but appear on the ballot for retention votes. Longtime Cascade County District Judge Dirk Sandefur and former adjunct professor of law Kristen Juras are competing for an 8-year term on the court after Patricia Cotter announced she would not be seeking re-election.
Shea, a former judge for the state’s Workers’ Compensation Court who was appointed by Gov. Steve Bullock to fill a vacant seat, opened the forum by calling for increased public interest in judicial elections. He noted that in 2014, when two seats were contested, 40,000 Montanans who cast a ballot “just skipped the Supreme Court races.”
“It’s like the third largest city in Montana just staying home,” he said. “We are the third co-equal branch of government in this state and there are only seven of us on the Supreme Court. These are important races.”
The seven-member court rules on hundreds of civil and criminal appeals that originate primarily in state district courts. The court also has jurisdiction over appeals from the Montana Water Court and the Montana Workers’ Compensation Court, among other limited duties. The court is the final arbiter on numerous important state issues, including criminal convictions, civil suits and the constitutionality of state law.
From wills to water rights, most cases draw little public attention but nonetheless are important to the individuals involved. A handful, however, are high profile, such as recent rulings to uphold 2011 legislative reforms to limit the sale of medical marijuana, to require online travel companies to collect state lodging taxes from customers and to strike down a 2012 law approved by voters to require employees offering state services to inquire about the residency status of clients.
Shea and McGrath spoke frequently about how the public and Legislature misunderstands the role of the court.
“We’re the only ones who don’t make decisions with an eye toward making everybody happy,” Shea said, echoing a similar remark by McGrath that the ability to make impartial decisions, regardless of personal beliefs or public reaction, is critical for a strong government. “To quote Justice Roberts, the job of a judge is to call balls and strikes. We don’t get to change the strike zone because the Mariners are one game back to the wild card.”
“Our job is to be a backstop, to ensure the Constitution is enforced and enforced evenly, no matter what you’re accused of,” he said.
But the spike in spending on judicial campaigns has heightened public concerns over whether the justices who are elected can do that.
More than $1.1 million has been raised by Juras, Sandefur and organizations supporting their campaigns, according to state campaign finance records. The Republican State Leadership Committee’s Judicial Fairness Initiative, a DC-based political group funded primarily by large corporations, has bought ads to attack Sandefur, while various political action committees of the Montana Trial Lawyers Association have lined up to oppose Juras in what could be another record-setting fundraising year.
“We have out-of-state corporate money being dumped into Montana by the Koch brothers and major companies not in Montana, who don’t give a hoot,” Sandefur said. “Don’t give a hoot about crime victims. Don’t give a hoot about criminal justice."
McGrath called it “unfortunate” that the state’s strict rules on campaign contributions and disclosure were largely erased by the Supreme Court of the United States’ Citizens United ruling, leading to unlimited and often undisclosed independent expenditures in campaigns. He argued in an opinion that the nation's top court ultimately struck down that the ruling, which had focused on federal elections, did not consider the influence of big money on state-level judicial races. Federal judges are appointed.
“It’s easy to cherry pick somebody’s record, like they did Dirk (Sandefur)’s, and distort what they did in that particular case,” McGrath said, referencing advertisements paid for by the Republican State Leadership Committee, a national nonprofit that does not have to disclose its donors except sometimes in tax filings months after Election Day. “We don’t know who those people are or what the source of their money is.”
Sandefur suggested that spending was intended to buy the goodwill of his opponent.
"They’re doing it because they think she will best suit their needs do their bidding on our court," he said.
Juras defended her impartiality, saying the rule of law must prevail when making decisions, and tossed the accusation right back at Sandefur.
“I’d just as soon not have any independent expenditures in the race. Frankly, we have no control over it,” she said. “Through a PAC, a single law firm can donate hundreds of thousands of dollars.…Those same attorneys appear before the Montana Supreme Court. I do think that causes concern.”
Sandefur called the comparison “false equivalency” because the trial lawyers, unlike the GOP group and its corporate donors, actually live and work in Montana.
The opponents also contrasted their credentials for the Montana Supreme Court.
“I have relevant experience, she doesn’t,” Sandefur said, noting that he has spent the last 14 years as district judge deciding the kinds of cases that end up before the state’s top court.
“With all due respect, both Judge Sandefur and I have relevant experience. We have different experiences,” she said. “To suggest that representing farmers and ranchers in their daily issues, to suggest that water rights background, easement disputes, contract disputes, quiet title actions, is not relevant experience is wrong and I think small businesses would also agree.”
At the forum, the candidates broadly agreed on one issue: That many Montanans lack access to civil courts and often cannot afford legal representation.
"The biggest problem we have in the court system is all people don't have access and there are a lot of reasons for that," McGrath said, celebrating the expansion of legal aid programs and shifted procedure rules that have helped in recent years.
"It's a right," Shea said, arguing that legislative funding and cooperation was ultimately needed. "The problem with that is when you do have people who can't (access) or navigate the court system, it becomes more of an illusion."