Two district court judges are making their case to voters this year for election to the state's high court.
Katherine Bidegaray and Dan Wilson are on the ballot this year. They're vying to replace outgoing Montana Supreme Court Associate Justice Dirk Sandefur, who was elected in 2016.
Bidegaray, of Richland County, presides over a five-county judicial district in northeastern Montana. She was first elected to the bench in 2002 and, through substitutions of other judges, has heard cases in more than 40 of Montana's 56 counties.
Wilson hangs his robe in Flathead County, where he was elected district court judge in 2016. Prior to that election, Wilson spent time in court as a prosecutor, as a criminal defense attorney and in his private practice.
During a forum in Missoula this summer hosted by the State Bar of Montana, the two candidates shared similar viewpoints on questions that arose from the legal community: Is a judge's ability to strike down unconstitutional legislation sound jurisprudence? Should the judicial branch continue to regulate the legal community? Can the growing number of self-represented litigants present a burden on the docket?
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Wilson and Bidegaray answered with a decisive yes to each of these questions, illustrating how some issues facing the courts are simply that -- issues relating to the function of the judicial branch that transcend the politics continuing to stake out real estate in these nonpartisan races.
But the ongoing conflict among the political branches -- the state Legislature's and the executive offices' public campaign against judges who have ruled against them in court -- remains the dividing factor in Montana's judicial elections, both here and in the contest for Montana Supreme Court Chief Justice between retired magistrate Jeremiah Lynch and Broadwater County Attorney Cory Swanson.
Wilson said it's the other candidates who have cast the politics on the race and given voters a distorted view of what the courts do. The sooner these campaigns get away from this fracas, he said, the sooner the temperature might return to normal. Voters, generally, don't talk about the interbranch conflict when Wilson is knocking doors, he added. Things they talk about are familiar hopes for any candidate in any year at any level of judicial government.
"What they'd like to see in a Supreme Court is a timeless expression of a court properly operating, whether it's a justice court, a district court or a Supreme Court," he said. "This is what they want, this is what they expect and anything else seems outside of the realm of what they want to contemplate."
Bidegaray, meanwhile, has taken a stand on the campaign trail against what she calls "unwarranted attacks" by the political branches. It was the Senate president who issued a letter to a sitting judge suggesting "life and limb" was once the cost of failing to comply with a subpoena. Republican lawmakers have been repeatedly frustrated by lack of traction as they seek to investigate the judicial branch for perceptions of bias against them.
"That's a great concern to me, I don't think putting our heads in the sand is the answer to what's going on," Bidegaray said. "I think we need to be talking to each other and for the good of all of Montana we can't ignore what is really happening."
When the dust settled after the three-way primary election in June, Bidegaray was standing with nearly 37,000 votes over Wilson, a 14% margin. However primary results are hardly reliable narrators of what to expect in November, and the external forces at play have only ramped up in recent months.
Battle for the bench
Not unlike the chief justice election, candidates in this race have dug in against accusations of bias.
On the campaign trail, Bidegaray has consistently told her origin story as the daughter of immigrant sheep ranchers who taught her to work hard and to, in her father's words, "Don't be a sheep."
In an interview last week, Bidegaray said she hopes that story will signal to voters a strong determination in times of political turmoil.
"Right now, in this time in Montana, we need justices who are experienced and have developed the backbone to resist the concerted effort to politicize our courts," she said in a phone interview. "And I have that backbone. So, yeah, 'Don't be a sheep,' has probably been one of the mottos that has helped me develop that backbone, but I am committed to keeping politics out of the courtroom, keeping the judiciary fair and impartial and independent, upholding the unique rights the Montana Constitution provides us and upholding the rule of law."
Wilson has likewise remained consistent with his messaging to remain faithful to law and Constitution, rather than the noise outside the campaigns.
"I have avoided the temptation to pledge allegiance to the legal agenda of outside groups," he said in a phone interview. "Any time a judge agrees to a 'yes' or 'no' statement about a legal issue or agenda without qualifying it and putting it in their own words, we are giving up a measure of our judicial independence. And I think that you do that enough times and sign off onto some outside group's agenda, and eventually you forfeit a measure of your judicial soul."
While candidates may work to create some distance between themselves and those agendas, it's clear enough from political donations and outside spending that the GOP is supporting Wilson, and left-leaning groups are pushing for Bidegaray.
Politics, as noted by observers like the Brennan Center for Justice, has become a growing feature of state judicial elections, particularly after the U.S. Supreme Court's Dobbs decision put the issue of abortion access back to the states.
On Saturday, Montana Republican Party Chair Don Kaltschmidt was hosting a Missoula rally for Tim Sheehy, GOP candidate for U.S. Senate. That race bears the weight of national implications for Sheehy's potential to flip the chamber back into Republican control, but Kaltschmidt made sure to shout out every GOP candidate from Senate to city council, and made mention of the Supreme Court races.
"But when it comes to the Supreme Court, who do we vote for? The 'Sons of Montana,' Wilson and Swanson," Kaltschmidt said.
The audience responded in kind, apparently familiar with the slogan Republicans have placed on their preferred candidates. It's not a new strategy; in 2022, the GOP backed the campaigns of incumbent Justice Jim Rice and Republican Jim Brown, urging voters to remember "Brown Rice" when filling out their ballot.
Despite Republicans taking that election cycle in resounding fashion, incumbent Justice Ingrid Gustafson won the general election that year over Brown with 54% of the vote, a margin of nearly 40,000 votes.
And while Republicans have largely withheld issuing formal endorsements this year, Kaltschmidt on Saturday made sure to push the matter with the audience.
"You need to get that word out," he told the crowd of about 200. "It's really, really, important because we have a chance to take our Supreme Court back. Because unfortunately our Supreme Court, currently, for the most part, is run by activist judges who are really having a way with our Legislature."
The Montana Republican Party through September has spent nearly $400,000 this cycle, either supporting Wilson and Swanson, or opposing Bidegaray and Lynch. Montanans for Fair Judiciary, another GOP-linked political action committee, has spent nearly $50,000.
That tally is less than half of what's been spent to support Bidegaray and Lynch. Those backers include Wild Montana ($325,715), as well as Montanans for Fair and Impartial Courts ($587,905) and Montanans for Liberty and Justice ($546,050).
Planned Parenthood Votes, the super PAC for Planned Parenthood, will likely eclipse them all this month with a $2.2 million advertising run opposing Wilson and Swanson that the organization called "its largest state Supreme Court campaign ever."
"In this election for our state Supreme Court, Montanans have to decide what we want our future to look like," Planned Parenthood Votes spokesperson Quinn Leighton said in a press release. "The justice we elect will be responsible for protecting the rights established in the Constitution, including privacy and reproductive freedom. ... Planned Parenthood Votes will do everything in its power to make sure voters know exactly who will protect their freedom -- and keep Swanson and Wilson off the bench."
If individual contributions are any indicator of the actual candidates' momentum, Bidegaray raised $147,300 in the last reporting period, from Sept. 16 to Oct. 15. That's the biggest fundraising month she's had since the weeks leading into the primary election in June. After a $98,000 ad buy for the next two weeks, Bidegaray has about $100,000 cash in the bank.
Wilson has roughly $33,000 cash on hand in these final weeks before Election Day, having just spent over $150,000 on TV ads in Missoula and Billings markets. He reported raising nearly $61,000 in the latest reporting period, on par with each reporting period since the primary election in June.
Court maintenance
From inside the judicial system, both candidates also have ideas for improvements.
Wilson said the Supreme Court could do well by the legal community and the public at large to hold more public hearings. Oral arguments are far more common in the Ninth Circuit Court of Appeals, which has roughly 30 judges, Wilson noted, but hears cases from some of the most populous states in the country.
"Oral argument, I think, is indispensable," Wilson said. "It allows the attorneys to have direct access into the thinking of the judges, or in this case, the justices of the appellate court, through the questions and answers that they ask the attorneys. And there's no better training for lawyers."
Bidegaray is an ex-officio member of the Montana Justice Foundation, which, among other things, helps connect litigants with lawyers who can work on a pro bono basis. She said from the Supreme Court she would like to further advocate for that solution, tackling the obstacles that often come with self-represented litigants. Cases like adoptions, for example, can lose steam if people continuously get tripped up in the legal paperwork.
"You do implicate, directly, some serious constitutional issues," Bidegaray said. "So it's usually difficult types of cases, but not easy for someone, even with an online form, to navigate the system."
The general election is Nov. 5.
Seaborn Larson has worked for the Montana State News Bureau since 2020. His past work includes local crime and courts reporting at the Missoulian and Great Falls Tribune, and daily news reporting at the Daily Inter Lake in Kalispell.
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