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When current Lt. Gov. Kristen Juras ran for a seat on the Montana Supreme Court in 2016, she lost by 13 points to now-retired Justice Dirk Sandefur.
In her race, campaign and political fundraising exceeded $1.6 million, a record at the time, according to the Billings Gazette.
Juras said that “after decades of political parties refraining” from inserting themselves into judicial races, the Democratic Party endorsed her opponent, spending more than $60,000 in mailers during the final weeks of the campaign.
Under Montana law, political parties were unable to “endorse, contribute to, or make expenditures to support or oppose a judicial candidate” until the law was overturned in 2014.
Juras said the Democratic endorsement of her opponent “opened the floodgate.”
“Since then, both parties have continued to endorse candidates. Let’s align the reality on the ground with the law,” Juras said.
Juras appeared before the Senate Judiciary Committee on Thursday to testify that Montana’s judicial elections are “nonpartisan in name only.” She was also representing the Governor’s office in supporting legislation to make all judicial races in Montana partisan elections.
Senate Bill 42, sponsored by Sen. Daniel Emrich, R-Great Falls, is one of a suite of bills aimed at reforming Montana’s judicial branch, a stated goal by Republican leaders in the Legislature, and an idea backed by Republican Gov. Greg Gianforte.
Opponents of the legislation called it inappropriate and a degradation of judicial impartiality.
The intent of the bill, however, is not to inject more politics into the judiciary, Emrich and many proponents of the measure said. Instead it’s about making the races more transparent and educating voters.
Juras called it a voter education bill. She characterized judicial elections as “down ballot” races that don’t get much publicity, making it hard for voters to learn about who they are voting for.
Derek Oestreicher, chief legal counsel with the Montana Family Foundation, said that his office is inundated with calls each election cycle, and that nonpartisan judicial races generate the most confusion and concern for voters.
“Montana citizens consistently express frustration over the lack of available information about judicial candidates. They want to make informed decisions, but they are left in the dark,” Oestreicher said. “They don’t even have the most basic details, like party affiliation. Providing this basic information is a step toward an informed electorate.”
Lawyer and Rep. James Reavis, D-Billings, testified against the bill, saying that of the hundreds of clients he’s represented with the public defenders office, he only knew the partisan leanings of a handful.
“That is because their politics was not relevant to whether or not they had committed a crime or how someone’s property should be divided in a divorce,” Reavis said. “When we take our case before a judge, we don’t have to think about their politics, but rather what the facts of a case are.”
If all judges carry a partisan label, Reavis said that every speeding ticket, landlord dispute and relative’s estate “will be tainted by politics.”
“Partisan judges won’t bring fairness or impartiality to the law, they will bring partisanship to our everyday lives,” he said.
Bruce Spencer, a lobbyist with the State Bar of Montana, said the legislation doesn’t contain any option for judges to opt out if they want to remain apolitical and called the entire idea “inappropriate.”
Montana’s nonpartisan judicial elections hearken back to 1935 and Spencer said the same reasons they were first put in place are relevant today.
“The political winds of the day shift ,” Spencer said. “We don’t want the judiciary swinging on the whims of partisanship throughout history. We want them to be a stable part of our government.”
Eight states in the U.S. elect their Supreme Court justices in partisan elections, and nine do so for at least one lower level court.
Spencer said that states with a partisan judiciary routinely rank among the bottom in surveys of how well their court systems perform and are trusted. Montana, by contrast, was ranked 7th in fairness in a 2019 survey.
He pointed out that in Texas, a bipartisan commission in 2020 recommended the state end its practice of partisan elections, an idea backed by Republican Gov. Greg Abbott.
Spencer also cited a 2023 study by Montana State University, which showed 72% of Montanans oppose state Supreme Court justices running under political party labels.
Sen. Laura Smith, D-Helena, pointed to a contradiction if the Legislature passed a bill that three-quarters of Montanans opposed, and asked Emrich if he would support an amendment making the bill into a referendum, “so that people can actually decide for themselves” how the judiciary should be elected.
“Quite simply, no,” Emrich said. “This body represents every citizen in the state of Montana. They’ve elected us to come up to the legislature and make these decisions on their behalf.”
The Montana Legislature has made many overtures to change the nature of judicial elections in recent years.
During the 2023 session, Rep. Scott Kerns, R-Great Falls, and Sen. Emrich sponsored similar bills to create partisan judicial elections, but neither piece of legislation passed its respective chamber. A third bill to allow any nonpartisan candidates for office to claim a political affiliation died in committee.
Last year, a dozen GOP lawmakers called for a special session to consider allowing Supreme Court candidates to list a party affiliation ahead of the 2024 elections.
However, the appetite for judicial reform is strong this session, and a standalone bill to allow political parties to directly contribute to, and endorse, judicial candidates has already passed the House.
Gov. Gianforte addressed the issue in both his inauguration speech and his State of the State address.
“I’m asking you to send to my desk a bill that empowers Montana voters to know a judicial candidate’s political party,” he said in Monday’s address to the joint Legislature.
HB 169: Dinners, speeches and constitutional doubts
In the same partisan judicial vein, a bill that would allow judicial candidates to attend dinners and events sponsored by political parties, or even hold office within a political party, was presented in the House Judiciary Committee on Thursday morning.
House Bill 169, sponsored by Rep. Tom Millett, R-Marion, is part of a larger group of bills aimed at transforming Montana’s nonpartisan judiciary into one with some degree of political party designation, but Millett said that’s not necessarily the intent of his one-page bill.
Instead, he said that judges are often excluded from events in small communities, barred by the state’s canon of judicial conduct and law, from attending any event that has ties to a political party. He said it helps provide judges the same freedom of participation as anyone.
Other members of the Legislature, though, see the bill as allowing residents to understand the legal leanings of some judges and judicial candidates, which could help them decide whether to support them.
During the committee hearing, Republican lawmakers insisted that judges could participate in political parties, while still remaining neutral or impartial when it came to deciding issues.
Reps. Zooey Zephyr, D-Missoula, and Ed Stafman, D-Bozeman, questioned the bill because the state’s Constitution prohibits members of the judiciary from holding political office, and they wondered if the entire approach didn’t violate the state’s foundational document by stepping into the judiciary’s operations.
Stafman is an attorney.
Meanwhile, Spencer, the lobbyist representing the State Bar of Montana, said his group’s concerns centered on the perception of partisanship in Montana’s courts, which had been established as nonpartisan. He told lawmakers he worried that making Montana’s courts partisan would continue to erode confidence and only increase division.
“The appearance of impartiality is critical for judges as they are the independent arbiter of laws and facts,” Spencer said. “Courts don’t follow the majority of public opinion. But being part of political parties assumes that you’re leaning toward one side or another.”
“I’d urge you all not to stoop that low,” Spencer said.
Spencer also pointed to other work the Legislature was tackling, including making it so that the chairperson of the Judicial Standards Committee will not be a judge to avoid the appearance of impropriety, and asked why lawmakers seemed to be going in the opposite direction with HB169.
“This is one step toward weakening the respect toward one institution,” Spencer said. “And when you weaken one branch of government, you weaken them all.”
No members of the public spoke in favor of the bill, but at least two spoke against it, including Barbara Lodman.
“It puts judges in a political situation, and there’s already too much money in politics,” she said.
Millett reminded lawmakers that his legislation was optional and didn’t mandate judges or candidates participate in the political process.
“By allowing candidates to make political statements, I’d like to know how this strengthens the perception of impartiality,” said Rep. Denise Baum, D-Billings, to Millett.
“These aren’t things that they have to do,” Millett said. “These are things they may do.
“The Bar and the lawyer establishment thinks they’re above everyone else, and the pendulum has swung way too far. What I am attempting to do is bring it back a little, maybe even to the middle.”
Editor Darrell Ehrlick contributed reporting to this article.