McMahon, Gustafson vie for Montana Supreme Court seat

Amid contention, a bright light will shine on elections to the high court this year

By: - March 8, 2022 10:49 am

First Judicial District Court Judge Mike McMahon is challenging Juustice Ingrid Gustafson for a seat on the Montana Supreme Court (Arren Kimbel-Sannit/The Daily Montanan; Gustafson image courtesy of Gustafson campaign)

The first contested Montana Supreme Court race of the 2022 election cycle is beginning to take shape.

Incumbent Justice Ingrid Gustafson is looking to keep her spot on the bench. And this week, First Judicial Court District Judge Mike McMahon filed his paperwork with the Secretary of State, initiating what could be a high-profile judicial race at a time of heightened public visibility for Montana’s Supreme Court, thanks to numerous constitutional challenges to laws passed in the 2021 session and a not-quite resolved separation of powers conflict with legislative Republicans.

Judicial elections are non-partisan, and both of the jurists running in this race emphasized in interviews with the Daily Montanan that they eschew political labels and generally profess to avoid the fray over at the Capitol, even when criticism comes their way. They also resisted direct philosophical comparisons with their opponent, each pointing to a broad array of their own experiences as a judge and attorney.

McMahon ran a successful campaign for his district court seat in 2016, defeating Judge DeeAnn Cooney, an appointee of Democratic governor Gov. Steve Bullock and wife of former Democratic Lieutenant Gov. Mike Cooney. Gustafson was appointed to the Supreme Court by Bullock in 2017, capping off an extensive tenure as a judge in Yellowstone County that began in 2004, when she was appointed to the bench by Republican Gov. Judy Martz.

“I think I’ve done a good job for Montanans and I haven’t taken people’s problems and issues before me lightly,” Gustafson said in a Zoom interview last week. “I think litigation affects people deeply. And I think they need to have an opportunity to be heard and to have judges seriously considering cases.”

More candidates could still file to run for Gustafson’s seat, as they can for the seat of Justice Jim Rice, who’s also running for re-election. The top two vote-getters in each nonpartisan primary will advance to the general election.

McMahon said he considered running against Associate Justice Jim Shea in 2019, but ultimately decided against it. Now, entering his sixth year in the district court, he said he’s ready to reaffirm his commitment to the law.

“I think it’s important that attorneys, whether it’s civil or criminal, have good direction from the Supreme Court that they can rely upon,” McMahon said to reporters last week.  “And that’s my goal, is to make sure if I’m elected to continue that process.”

Two judges

Gustafson and McMahon followed distinct paths through the legal system.

McMahon began his private practice career in North Dakota and came home to Montana in 1996, where he continued to work in civil defense, he said. He defended doctors and attorneys in malpractice cases and represented Blue Cross Blue Shield in insurance defense cases, he added. However, he also did pro bono divorce and family law work.

Gustafson was a public defender in Rosebud County for a period in the 1990s and entered into a civil practice representing individuals in personal injury, malpractice and product liability cases, as well as family law, probate, real estate, business law and more.

“I think the best way to evaluate a judicial candidate as a voter is to look at their life experiences, and mostly what you can look at is what they did as a lawyer before they became a judge,” said Mike Black, an attorney and former Supreme Court candidate who worked as civil bureau chief in the Montana Department of Justice under Attorneys General Steve Bullock and Tim Fox.

“His practice was on behalf of larger institutions, and that influences who you are,” Black said. “Her practice when she was a lawyer was kind of the flip side.”

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In some ways, though, Gustafson and McMahon are quite similar. Both come from a background of competitive athletics — Gustafson’s exploits as an alpine ski racer at Montana State University have earned her a spot in the university athletic hall of fame — and they’re both involved in youth sports in Billings and Helena, respectively.

Gustafson started the Yellowstone County felony drug treatment court, worked on court improvement projects to decrease child removal and developed a family law clinic for people without attorneys to more efficiently, cheaply and accurately complete divorce proceedings and draft parenting plans.

“I will tell you that the drug court experience allows you an opportunity to see real transformative change in people where they improve their lives and become really very productive citizens,” she said. “And you really do it in sort of breaking the cycle of recidivism and getting them out of the justice system.”

McMahon similarly oversees family treatment court in the First District.

“We have big civil trials, we have big criminal trials. Those are important to those folks,” he said.  “It’s just as important as for the mother who comes trying to amend her parenting plan. And you try to show those people the respect that they deserve and give them the opportunity to be heard.”

McMahon could have filed to run against Justice Jim Rice but said that, in his opinion, his and Rice’s philosophies generally align — and that Rice’s 20-plus-year incumbency advantage could make winning that race tough.

“When I read his decisions, I see a lot that I like from a standpoint of, let’s say, a stricter construction,” McMahon said.

Some may believe that he and Gustafson have more divergent philosophies, McMahon said.

“And I guess that’s up to the voters to decide what type of judicial philosophy they want on the court,” he added.

Gustafson said her philosophy is based on the entirety of her work as a judge and attorney, and that she doesn’t “spend a lot of time comparing myself to other judges.”

One notable case where Gustafson authored a ruling on the high court that reversed a McMahon decision was that of William Scott Rogers and more than 90 other plaintiffs who alleged they were illegally strip-searched by Lewis and Clark County jail officers despite being arrested on misdemeanor or traffic offenses.

The district court had concluded that to ensure safety, “society would always insist that an arrestee’s (constitutional) privacy right must yield when they are placed in a jail, detention center, or prison’s general custody.”

But Gustafson disagreed, ultimately reversing and remanding the prior ruling on the grounds that a restriction in state law on “suspicionless strip searches is unambiguous,” and that the lower court erred in reading an exemption into the law that isn’t there. 

“The underpinning of that case had a lot to do with our right to privacy,” Gustafson told the Daily Montanan. “In Montana, we have a right to privacy, and it is a right to privacy in our homes and in our bodies and our medical records.”

Privacy and politics

Whoever takes the seat will do so under tremendous political scrutiny, as much as they may try to avoid it. That became crystal clear last week, when Attorney General Austin Knudsen told Republican activists at a dinner in Havre that Gustafson is a “hardcore leftist” and fellow justice Jim Rice is a Republican with “Stockholm syndrome.” 

McMahon, meanwhile, had a reputation as a conservative, thanks in part to his campaign against a Bullock-appointed district court judge. But his favor among some of the Republican faithful has waned.

“This race cries out for a conservative with the judicial philosophy held by most Montanans,” said GOP-aligned attorney Matthew Monforton, adding that McMahon panders “to woke voters.”

Monforton is one of the backers of a proposed ballot measure to cap property tax growth that was temporarily halted when McMahon enjoined the initiative campaign from collecting signatures while a legal challenge played out. Another Lewis and Clark County district court judge later lifted the injunction. 

Several political factors are at play. Lawsuits challenging more than a dozen bills passed by a dominant Republican Party in the 2021 session are winding their way through the court system, with some having already gone before the Supreme Court in one form or another. McMahon, as a judge in Helena, has presided over multiple of these cases.

In one instance, for example, he ruled against part of a law passed last year preventing the Montana Board of Regents from banning the carrying of firearms on college campuses. His opinion was straightforward, grounded in the plain language of the constitution, which states: “The government and control of the Montana university system is vested in a board of regents of higher education which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system.”

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McMahon has also received criticism for his handling of a case involving the accidental shooting death of Helena medical doctor Eugene Walton, with whom McMahon had a personal relationship through mutual work with the Capital High School athletics program. McMahon sentenced Gregg Trude to 20 years, with 16 1/2 years suspended, for negligent homicide. 

The state’s sentencing review division would later rule unanimously that McMahon’s ruling was “clearly excessive,” and reduced Trude’s sentence to 15 years with all but one suspended. 

“Mr. Trude pled guilty to one charge. I found him innocent of a different charge,” McMahon said. “I sentenced him in accordance with what I thought was the best sentence. I would strongly encourage anybody that’s genuinely interested in that case to look at the record of this case.” 

Also of special note is a legal fight over abortion, one that implicates a 23-year-old state Supreme Court ruling, Armstrong v. State, which found the expansive, explicit privacy protections in the state constitution protect Montanans’ access to the procedure. 

If litigation before the U.S. Supreme Court stemming from a Mississippi 15-week abortion ban leads to a full or partial reversal of Roe v. Wade, Armstrong will protect access to abortion in Montana. But its fate too is questionable.

The Montana Legislature passed several bills last year restricting the practice, including a 20-week ban. Armstrong forms the basis of lawsuits from Planned Parenthood challenging four of those laws. 

The Montana Attorney General’s office, on the other hand, has argued that the high court should reverse the ruling, writing in one brief that the Armstrong court “invented from whole cloth a state constitutional right to elective abortion even though the framers of the Montana Constitution were perfectly clear that decisions about abortion policy are to be firmly in the hands of the Legislature.”

Gustafson acknowledged the constitution’s privacy protections, but said it would be inappropriate to comment on how they might play into abortion litigation before the court.

McMahon was somewhat more direct. 

“I can tell you that I’m Catholic, but that has nothing to do with the decision I would have to make on what the law is,” he said. “In my view, just as (fellow First District Court) Judge Menahan found recently, the 1999 decision by the Montana Supreme Court is binding. The U.S. Supreme Court may do something differently. the Montana Legislature may do something differently, but you know, I’m not in the business of giving advisory opinions.”

Intense political interest

As animating a cause as abortion is for conservatives in the state, the bigger political issue might be a protracted jurisdictional conflict between the court and Legislature rooted in longstanding conservative suspicions of a judiciary substantially shaped by Democratic appointments. 

That animus reached a fever pitch in the last year. Republicans pursued a series of judiciary reforms, including SB140, a bill abolishing the judicial nominating commission in favor of direct appointments by the governor. Though the state Supreme Court upheld the law following a lengthy legal challenge, the proceedings spawned a separate fight.

Republican lawmakers learned that judges had responded to a Montana Judges Association poll on the impact of SB140 and other judiciary bills. They sought the results of these polls, but court administrator Beth McLaughlin said she hadn’t kept all of them, triggering legislative subpoenas for judicial records, claims of improper lobbying and judicial self-dealing, allegations that justices were “pre-judging” the outcome of challenges to laws passed in the 2021 session and litigation over the extent of legislative subpoena power that the state has appealed all the way up to the U.S. Supreme Court. 

Most of the justices ruled that subpoenas for their own records were invalid. Justice Jim Rice, however, took his case to McMahon, who ruled that the Legislature’s quest interfered with the role of the Judicial Standards Commission, which investigates ethics complaints against judges, and wasn’t grounded in a legitimate legislative purpose. 

“This court would have to be ‘blind’ not to see what ‘all others can see and understand’ that the Justice Rice subpoena does not represent a run-of-the-mill legislative effort but rather a clash between separate government branches over records of intense Legislative political interest,” McMahon wrote, quoting another ruling.

McMahon told reporters last week that he felt the concerns with judicial polling were “blown out of proportion.”

Gustafson has served in leadership roles with the Montana Judges Association, and also defended its lobbying practices. She said, however, that she “can’t recall” participating in a poll.

She said the MJA would issue polls on bills that would either “help the work of the judiciary or create some obstacles,” 

“But it isn’t a hidden thing,” she said. “There’s judges who routinely testify before the legislature.”

She also acknowledged at least the perception of threats to the judiciary’s independence.

“I think that a strong and independent judiciary is very important. I think it’s the cornerstone of our democratic system of government, to have checks and balances.”

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.