There are a lot of peculiarities in this year’s race for district court judge in Cascade County.
First, it is the only contested district court race in the state. Ten other district court judges will be elected this year without a challenger.
Second, it’s perhaps the most tangible distillation of the state Legislature’s open attacks on the judicial branch last year. While GOP lawmakers antagonized the co-equal branch of government, they also succeeded in passing a new law on how judges reach the bench.
David Grubich, the incumbent judge in the race, came to the bench through that new process. His challenger, Michele Levine, was the appointee left by the previous Democratic governor who Republicans rejected amid that newly heightened scrutiny.
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And while politics have been implied in Supreme Court elections for some time now in Montana, this is one of the few, if not the only, district court race to be similarly shaped by outside partisanship.
Grubich, 52, was Republican Gov. Greg Gianforte’s first judicial selection to pass through the new process for such appointments after the 2021 Legislature did away with the Judicial Nomination Commission.
Democrats and the legal community sharply criticized Republicans, including the Governor’s Office, for eliminating the commission they saw as a framework guarded by judges and attorneys to prevent political appointments to the nonpartisan branch of government.
Republicans saw a commission whose members were appointed by Democratic governors over the last 16 years and judges who have continuously found conservative legislative ambitious to be unconstitutional.
Levine, 42, was one of Democratic Gov. Steve Bullock’s final judicial appointments in his last year in office, and appears to have been the only judicial appointment in the 50 years the Judicial Nomination Commission existed to be rejected by the state Senate during a confirmation process that has long been something of a formality.
For six months, Levine sat on the bench Grubich came to occupy before state lawmakers rejected her confirmation, primarily wary of her three terms as a Democratic lawmaker. After being removed from the bench, Levine stayed in public service, rather than returning to private practice, and is now a prosecutor at the Cascade County Attorney’s Office.
Grubich and Levine’s pre-judicial legal careers are similar, primarily involving civil work on insurance cases and pro bono family law cases. Grubich came to the courts later in life, having served in the military and a 10-year stint in law enforcement before going to law school and settling into private practice in Great Falls. Levine has worked with nonprofits and was in private practice for 12 years before she was appointed to the district court bench.
Both Grubich and Levine have spent the last three years vying for this position. Both were forwarded by the Judicial Nomination Commission for consideration by the Bullock administration in 2020, ending in Levine’s appointment. After the Senate rejected that appointment six months later, they both applied to the panel of local stakeholders assembled by Gianforte and again both were forwarded to the Governor’s Office in 2021, which placed Grubich on the bench.
Next month the voters will decide how the saga ends.
In an interview in his chambers earlier this month, Grubich appeared uncomfortable with the implied politics hanging over the race.
“I’m not politically connected, my support came from Cascade County,” he said of his appointment last year. In his campaign, Grubich tries to leave potential voters with a sense that he’s an apolitical guy; people ask what his politics are, but he refuses the question.
Still, Lt. Gov. Kristen Juras, a Republican, attended a fundraiser for Grubich earlier this year. It’s not the first time the Governor’s Office has waded into the judicial campaigns. Supreme Court candidate James Brown in May got the benefit of a fundraiser at Gianforte’s home, along with his endorsement.
Judges and judicial candidates are bound by a code of conduct that forbids them from seeking or accepting partisan endorsements, and Grubich contends Juras’ praise at the fundraiser did not violate those terms.
“What she did there was simply explain why I was hired, what my qualities were,” he said. “I think the people in this state or in this community would want to know why I was hired, because sometimes that isn’t explained.”
Gregory Todd, who retired last year after 21 years on the district court bench in Yellowstone County, said in an interview this week that the lieutenant governor’s appearance on the judicial campaign trail is an “outlier” for district court races, but parallels conservatives’ attempts to change laws and get a Republican on the Supreme Court in order to see their legislation pass muster with the courts. Brown is currently the GOP president of the Public Service Commission.
Republicans won the 2020 elections with a gulf of statewide support, and Todd, who last year was president of the Montana Judges Association, said it’s a “dangerous trend” for partisan officials to lend their support to nonpartisan candidates on the campaign trail.
“The judiciary is a co-equal third branch, specifically designed to rule on cases. It’s not a political animal,” Todd said. “There’s a difference between disagreeing (with a ruling) and turning the courts into a partisan political animal and destabilizing and politicizing the judiciary. That’s a dangerous road to go down.”
A spokesperson for the Governor’s Office said Friday that Grubich is a former law student of Juras’, but did not respond to a question about whether she had any concerns about introducing a partisan backdrop to a nonpartisan district court race.
Grubich, who has long worked as a public servant, said he understands the weight of his authority, and what’s at stake if it were to be used as a partisan tool. He has a docket of roughly 750 cases; few, if any, of them are political in nature.
“When you wear a uniform in law enforcement, when you wear a uniform in the military, it’s kind of like wearing a robe,” Grubich said. “You’re representing more than just you, you’re representing a profession, you’re representing the law.”
Grubich said he believes a lot of the fury over Republicans’ decision to end the Judicial Nomination Commission was merely amplified by timing — the Jan. 6 riots had just happened, and the political world was saturated with suspicion.
“That’s why I think there was so much emotion that came with that removal of the nomination commission, because this was a time of division and a time when any move like that by the Legislature would have been looked upon with some distrust,” Grubich said.
He added that he couldn’t comment on if the distrust was justified, because that got into the political realm.
“This is the way I approach my campaign,” he said. “I want the vote of the farthest left liberal Democrat in this county and I want the vote of the farthest right Republican. Because both of those people deserve a good judge. I don’t limit myself, I don’t stay away from courting the vote of a person because of who they are and what their politics are. … I want all of them to have confidence that I’m doing my job the way it should be done.”
Levine, meanwhile, said she sees her rejection by the Senate as one of the blows Republicans landed on the judicial branch in 2021.
“I was just one piece of that puzzle of that struggle between the branches,” she said.
In her confirmation hearing last year, Republicans raised concerns with Levine’s ability to be impartial considering her past associations with groups such as Carol’s List, which helps progressive women get elected to office, and the Northern Plains Resource Council, which has opposed projects like the Keystone XL pipeline. They prodded her on the Second Amendment and her past votes as a Democratic lawmaker, particularly one against a bill that would have excluded undocumented migrants from receiving workers’ compensation.
Levine said she’s still had to explain to people on the campaign trail why she was removed from the bench, as well as the broader conflict Republicans are waging against the nonpartisan branch. That may be a hard pitch for a candidate who was rejected by Republicans and is running for the bench in a county where 58% of voters went for Donald Trump in 2020.
To potential voters who are wary of politicians sneaking into the nonpartisan branch, Levine said her work in all three branches of government, as a lawmaker, a prosecutor and a judge, better equips her to draw the line between the roles of each segment.
“I have support from people of all walks of life, and all political backgrounds,” Levine said. “I’ve told people, ‘I hear you and I hear that you want judges that stay out of (politics) and that’s what I’m working to do.’ … As a judge I again set aside my own beliefs and perspectives.”
And while Grubich has decided against lobbing attacks in the race, Levine said she has to push back against the political apparatus at play against her. Her confirmation had the support of district court judges, the Cascade County Attorney and local attorneys. Levine said lawmakers refused to acknowledge that support and rejected her confirmation based on politics — in turn, the new district court judge has raised money with the help of a prominent Republican.
She also points out that Bullock’s other two appointments that were confirmed were both men. Even with a little trading on both sides of the aisle to get the other appointments through, Levine said the questions did not appear uniform across the process.
“I got asked questions like, ‘What time do you get to work in the morning?’ which I think relates to having kids,” Levine said. “It was going to be a difficult road for all three of us. That was the word on the street. In the end, the boys got confirmed and the girl did not.”
While both candidates try to shrug off the politics hanging overhead, Cascade County has its own local issues that give this race importance. The pandemic created a backlog of cases in a judicial district that needs two more judges in order to process on an adequate timeline, according to Montana Supreme Court statistics. Both candidates say abuse and neglect cases are rampant in Cascade County, and that the area is short on mental health and addiction services.
Claire Lettow, the regional director for the public defenders office, said her office will not endorse a candidate, but said the general election’s winner ought to prioritize rehabilitation.
“At the end of the day most are not spending their lives in prison,” Lettow said. “I want to see a judge elected who is going to serve the rehabilitative goals.”
Levine fell 1,300 votes short of Grubich’s tally in the June primary, taking home 46% of the vote to Grubich’s 56%. Both candidates said they’re knocking doors, attending local events and touching base at civic group meetings in the final weeks before the score is settled on Nov. 8.