Supreme Court candidate speaks in Havre

Montana Public Service Commission Chair James Brown is running for a seat on Montana's Supreme Court this year, and spoke with the North Central Pachyderms Wednesday about his campaign and what he believes needs to change in Montana's judicial system.

Brown said he attended the University of Montana as an undergraduate, doing a double major in history and political science, then worked as a congressional aide to Montana's then-Sen. Conrad Burns, which he said was a great learning experience, and during a time when Congress was much more collegial.

After that, he said he attended law school at Seattle University and graduated with high honors. He was offered a full ride to the tax law program at the University of Washington but moved back to his hometown of Dillon to care for his mother, who'd been diagnosed with terminal cancer.

After his mother's death he was hired by the Doney Crowley P.C. Attorneys at Law in Helena which he worked at for five years, litigating cases regarding water rights and land use as well as the delisting of the grizzly bear.

Brown said he mainly represented small businesses and the agriculture industry.

He said he also served as counsel for the Montana GOP for years as well, and now has his own private practice.

Brown said he ran for the PSC to get the agency back on track and put an end to the infighting that plagued it, something he said has been successful and something he now wants to do with the Montana judiciary.

"You'll notice from the lack of attention to the PSC by the press right now, I would say things are correcting," he said.

He said he was asked to run for the Supreme Court by Gov. Greg Gianforte, who was impressed by his work at the PSC and after some thought he decided to run.

Brown spent a great deal of time Wednesday criticizing the Montana Supreme Court as well as Montana's court system in general, the former of which he said is well known for not following legal precedent and acting as a "court of equity," rather than a court of law.

Montana has some great judges, he said, but the Supreme Court especially needs reform.

He said in his time as an attorney he's had clients who should have won on the law but didn't.

He also said the court is famously "anti-business and pro-government," and during the pandemic have allowed the state government to unilaterally impose mandates and business closures as government officials seek to prosecute people for operating private businesses and the court did not check their power.

For centuries, courts, including the U.S. Supreme Court, have maintained that mandates can be legally implemented during public health emergencies.

He said the court system is acting as a "shadow legislature," determining the merits of policy and "vetoing" it.

Brown pointed to a Billings judge who he said struck down the efforts of the 2021 legislature to implement election security bills.

Judge Michael Moses did not strike down these laws, but temporarily suspended them, saying plaintiffs make a compelling case that they are unconstitutional.

Brown pointed to a number of other cases which he said indicate the poor state of Montana's judicial system, including when the Montana Supreme Court ruled in 2011 in American Tradition Partnership, Inc. v. Bullock, that the free speech protections given to corporations in Citizens United v. FEC do not apply to Montana's campaign finance laws, a ruling that was later reversed by the U.S. Supreme Court.

He also criticized the record of his opponents, including incumbent Ingrid Gustafson who he said has been criticized by the Montana Chamber of Commerce, but had more to say about Lewis and Clark County District Court Judge Mike McMahon, who he said ruled improperly in a case regarding the Legislature's efforts to allow carrying firearms on college campuses without a permit.

McMahon's ruling says the Montana Constitution gives the Montana Board of Regents the sole power to determine firearm policies on campuses within the Montana University System.

Brown said the ruling is an infringement on Montanan's constitutional rights on campuses.

He also criticized McMahon's handling of an accidental death case involving Helena doctor Eugene Walton.

Gregg Trude pleaded guilty to negligent homicide in 2019 in the case and McMahon sentenced him to 20 years in prison with all but three and a half years suspended, disclosing during the sentencing hearing that he knew Walton.

The Montana Supreme Court's Sentence Review Division unanimously ruled that the sentence was excessive and reduced it to 15 years with all but one suspended.

The decision came after Trude challenged McMahon's decision, alleging he was not impartial, an evaluation Brown agreed with, saying he should have recused himself.

Brown also said Montana's court system in general is very inefficient with judges often sitting on decisions for years longer than they should pointing to a case of his where a county withheld the mugshot of a former county commissioner who was accused of criminal activity, a case which he won, but said took far longer than it should have.

He said Montana should adopt a law that required rulings to be delivered in a timely manner otherwise an ethics complaint can be filed against the judge and the case can be given to another, though he implied the courts would strike down that law as well.

Brown said the Montana Supreme Court also improperly ruled on the Legislature's attempted subpoena of judicial records last year.

Lawmakers have alleged that Montana judges acted improperly by expressing opinions on pending legislation, taking specific issue with Court Administrator Beth McLaughlin's role in coordinating polls of district judges on behalf of the Montana Judges Association, which represents the judicial branch during the legislative session, and her failure to retain comprehensive email records of those polls.

The Legislature subpoenaed all of McLaughlin's records and communications which she asked the Montana Supreme Court to stop.

The court ruled that the subpoenas exceeded the scope of legislative authority and were overbroad.

Brown said the supreme court should never have ruled on the mater as it directly affects them, and broadly criticized judges for expressing opinions on pending laws.

He also praised Montana Attorney General Austin Knudsen for going against the judiciary, which he said takes guts as a lawyer.

In addition to all of this he also said the Montana Supreme Court does not represent the diversity of Montana, saying the court should represent all aspects of the state, not just its government, criminal defendants and prosecutors.

This lack of diversity, he said, is part of why he's running for a seat on the court which has substantial holes in its collective knowledge of many areas of Montana law.

Brown expressed his support for electing judges by district and requiring them to declare a political party, or at least to disclose who they are endorsed by.

Montana Sen. Mike Lang, R-Malta, attended the event and said Brown is a man of integrity.

While most of Brown's time was spent talking about his candidacy and his criticism of the Montana Supreme Court, he also talked about things going on at the Public Service Commission, including the recent lawsuit against Montana Secretary of State Christi Jacobsen that required the redrawing of the Public Service Commissioners' districts.

The suit, brought by three Montana voters including former Republican Montana Secretary of State and Senate President Bob Brown, alleged that the districts were outdated and did not have an even enough number of voters in each, and as such the district map violates the "one-person-one-vote" principal.

The federal judges ruled in favor of the voters and required that the districts be redrawn to better reflect the populations of Montana.

The judges drew new districts and imposed them on the state, although they did not preclude a special session being called for the Legislature to draw the new districts.

James Brown said the lawsuit had merit considering the disparity in population between the districts and the redrawn districts are reasonable, though he questioned why the plaintiffs sued the Secretary of State rather than the Legislature.

He said he doubt the Legislature will make many changes to the new district map, which he said isn't perfect, but it does meet constitutional requirements in terms of population disparity between districts.

"I think that's what the legislature would have done anyway," he said.