The Journal of Appellate Practice and Process Volume 16 Issue 1 Article 4 2015 A Past and Future of Judicial Elections: The Case of Montana Anthony Johnstone Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess Part of the Judges Commons, and the State and Local Government Law Commons Recommended Citation Anthony Johnstone, A Past and Future of Judicial Elections: The Case of Montana, 16 J. APP. PRAC. & PROCESS 47 (2015). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol16/iss1/4 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. A PAST AND FUTURE OF JUDICIAL ELECTIONS: THE CASE OF MONTANA Anthony Johnstone* I. INTRODUCTION Judicial elections are approaching their second century in the United States, and they are not going away anytime soon. After the rise of Jacksonian Democracy in the early nineteenth century, and popular calls for increased judicial independence from the political branches, most states hard-wired the election of judges into state constitutions.1 Despite reform efforts that emerged in the twentieth century and continue today, states that hold judicial elections reliably reject alternative selection methods. Nearly ninety percent of state judges in the United States are subject to election.2 Recent deregulation of campaigns and elections through successful constitutional challenges now has reached judicial campaigns and elections. Many of the legal and ethical constraints on judicial campaign speech and finance, once a realm of electoral exceptionalism respecting the distinct office * Associate Professor of Law, University of Montana School of Law. The author served as counsel for the State of Montana in Citizens United v. Federal Election Commission (as amicus) and American Tradition Partnership v. Bullock. Thanks to Dmitry Bam, Jean Bowman, Larry Howell, Greg Munro, James Nelson, James Sample and Jeff Wiltse for insightful comments, to Zachary Rogala and Anne Sherwood for helpful research assistance, and to my family for their support.. 1. For a recent account of this history emphasizing the role of post-Jacksonian financial crises, see Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 HARV.L.REV. 1061 (2010). 2. See Roy A. Schotland, New Challenges to States’ Judicial Selection, 95 GEO. L.J. 1077 (2007). Schotland reports that “[o]f all state judges (appellate and general-jurisdiction trial courts), 89% . face the voters in some type of election. Facing contestable elections are 60% . of our appellate judges and 80% . of our trial judges; facing only retention elections are another 26% of appellate and 9% of trial judges.” Id. at 1105. THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 16, No. 1 (Spring 2015) 48 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS of a judge, fell to these challenges alongside their political- campaign analogues. The remaining exceptions, which protect a core of judicial impartiality from due process violations, are inconsequential to most modern judicial campaigns. These campaigns quickly learned the political tactics of the Citizens United era, prompting a flood of attack ads financed by independent expenditures, some of which are not fully disclosed.3 Meanwhile, state courts in general, and state supreme courts in particular, remain important players in increasingly polarized debates concerning state law and politics. One-party state legislatures and executive branches, encouraged by historically large legislative margins,4 test state courts with contentious laws and constitutional questions. In states where a balance of power once encouraged political compromise, the losing party now may resort to litigation. The same moneyed interests that help set the legislative agenda also loom over state courts. Those judges and justices must decide the high-stakes and politically charged cases that follow, knowing their decisions may set the course for their next election campaigns. A moderate judge who does not line up neatly with moneyed interests on one side or the other risks electoral defeat. Case by case, issue by issue, term by term, the polarization of the political branches runs to the courts. This is the new normal in judicial elections. It follows the new normal in political elections of the Citizens United era. Judicial candidates seeking to interpret the laws are nearly as free to speak on legal and political issues as are the legislative candidates seeking to write the laws. Even in traditionally non- 3. See generally Citizens United v. F.E.C., 558 U.S. 310 (2010) (holding that the federal government may not suppress political speech by banning corporate expenditures for electioneering, but that it may require donors both to identify themselves in materials that they underwrite and to disclose campaign-related expenditures in excess of established thresholds); see also SCOTT GREYTAK ET AL., BANKROLLING THE BENCH:THE NEW POLITICS OF JUDICIAL ELECTIONS 2013–2014 at 1 (2015) (“Over the last decade and a half, state Supreme Court elections have been transformed into politicized and costly contests, dominated by special interests seeking to shape courts to their liking.”). 4. See Karl Kurtz, These Unified States, STATE LEGISLATURES MAGAZINE (May 2013) (“For the first time in more than 50 years, one party controls both chambers of the legislature and the governor's’ office in 37 states—Republicans in 23 states, Democrats in 14.”). JUDICIAL ELECTIONS IN MONTANA 49 partisan judicial elections, political parties may be as free to endorse judicial candidates as they are to endorse political candidates. Campaign-contribution laws limit donations to candidates’ campaigns, judicial or political, but face renewed challenges. Corporations and unions are as free to spend unlimited amounts of shareholder and member funds on independent expenditures in judicial campaigns, just as they may in political campaigns. Contributors are free to choose their preferred levels of disclosure by selecting among candidate campaigns, super PACs, or less transparent vehicles. Careful contributors may enjoy significant influence in candidate campaigns—judicial or political—without triggering either a disqualifying conflict or even the obligation to identify themselves. Montana’s 2014 election for one of two contested seats on the state supreme court exemplifies this new normal. In 2011, the Montana Supreme Court took a lonely stand against this state of affairs by attempting to distinguish Montana’s campaigns, including judicial campaigns, from the presidential campaign addressed by the Supreme Court’s decision in Citizens United. But that principled stand was short-lived, drawing a quick and brief rebuke from the Supreme Court. Despite state concerns about financial and outside influence on judicial campaigns that date back a century and a half, and their continued relevance to judicial politics today, the Supreme Court so far has refused to grapple with the implications of Citizens United for elected judges. This article searches for lessons from Montana’s experience for the future of American judicial elections. Part II considers the origin of judicial elections and history of reforms in Montana, which is marked both by substantial worries about outside political intervention in state courts and by several innovative responses to it. Part III reviews the practice established by Montana’s reformed model of judicial selection over the past four decades. Part IV examines the Montana Supreme Court’s engagement with Citizens United, followed by a close analysis of an election held in its aftermath: the hard- fought 2014 campaign between incumbent Justice Mike Wheat and challenger Lawrence VanDyke. Part V suggests some preliminary conclusions about the meaning of Citizens United 50 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS and other recent legal developments for judicial elections in the states, and how states might respond. II. A HISTORY OF MONTANA’S JUDICIAL ELECTIONS AND JUDICIAL-ELECTION REFORMS Judicial selection in Montana is both distinct from and representative of its practice across the states. Montana’s 150- year-old judiciary began in territorial days, when outside judges appointed in Washington, D.C., produced resentment among Montanans even as these territorial judges helped the new territory develop toward statehood. The state’s first constitution responded to this popular resentment by providing for judicial elections. In the Progressive Era, the state adopted typical campaign-finance and nonpartisan election reforms, but only after exceptional agonies of corporate corruption. By the second half of the twentieth century, Montana had joined many other states in reconsidering judicial elections, though it did so through the extraordinary means of popular deliberation through a constitutional convention. Montana, in short, is a microcosm of judicial election reform in the American states. A. The Territorial Origins of Montana’s Elected Judiciary Twenty-five years of territorial status forged Montana’s attitude toward its courts. In the gold rush that opened Montana’s territorial history, customary miners’ courts and the storied vigilantes dispensed civil and criminal justice.5 Territorial justices, appointed