Republican operative publicizes ethics complaints against Supreme Court incumbent

Mara Silvers

Montana Free Press

A prominent Republican operative backing Montana Supreme Court candidate James Brown has filed two ethics complaints against Brown’s opponent in the race, incumbent Supreme Court Justice Ingrid Gustafson, with less than a month until Election Day. 

Jake Eaton, a longtime Republican political consultant and treasurer of the conservative political action committee Montana for Judicial Accountability Initiative, sent copies of the two complaints he filed with the Judicial Standards Commission to members of the media Friday, the same day election administrators began mailing ballots to absentee voters. The constitutionally created commission is tasked with evaluating and investigating complaints of misconduct by judges.

Both complaints say Gustafson did not recuse herself from adjudicating a recent lawsuit after she received campaign contributions or endorsements from attorneys involved in the case, Cliff Edwards and Jim Goetz, and endorsements from two plaintiffs, 1972 Constitutional Convention delegate Mae Nan Ellingson and former Republican state lawmaker and secretary of state Bob Brown. 

By emailing copies of the complaints to the public, Gustafson’s campaign says, he violated the Judicial Standards Commission’s confidentiality rules.

Procedures governing the five-member Judicial Standards Commission specify that “all papers filed herewith and all proceedings before the Commission shall be confidential while pending before the Commission.” Violation of that confidentiality, the rules say, “may result in summary dismissal of the complaint.”

Retired Supreme Court Justice Pat Cotter, who helped revise the code of judicial conduct, said Eaton’s actions appear to be a “clear violation” of the confidentiality rules. Cotter has endorsed neither Gustafson nor James Brown.

“Anyone can accuse a judge at any level of misconduct. And if it’s publicized without any attention to whether there’s any merit to that, it can unfairly impugn the character of that judge and impair their ability to do their job,” Cotter said in a phone interview Sunday. 

“That’s not how the process is supposed to work,” she added.

In partial response to a list of questions from Montana Free Press, Eaton said publicizing his complaints against Gustafson does not violate the confidentiality rules and described the judge’s conduct as “a textbook definition of the appearance of impropriety.”

The Judicial Standards Commission, made up of judges, attorneys and members appointed by the governor, is not scheduled to meet again until Nov. 14, nearly a week after Election Day, according to commission secretary Shelly Smith. 

In the first complaint, Eaton references a July fundraiser for Gustafson hosted by Edwards that Eaton said, without documentation or explanation, raised “up to $27,400” for the campaign. Campaign finance records show only Edwards’ $700 donation to Gustafson in March, during the primary. Fundraising disclosures show Goetz donated $150 to Gustafson’s campaign around the same time. 

Eaton’s complaint also notes that the endorsements from case plaintiffs Ellingson and Bob Brown are featured on Gustafson’s campaign website, which Eaton said violates Gustafson’s ethical responsibility to “avoid impropriety and the appearance of impropriety” to promote public confidence in the judiciary.

Judges are not explicitly required to recuse themselves from cases in which an attorney has donated to their campaigns, nor if they’ve received public endorsements from people with business before the court, according to the code of judicial conduct. The same policy does not prohibit specific endorsements, but says judicial candidates are not allowed to promote endorsements by partisan officeholders in the course of their campaign. Ellingson and Brown are not currently elected partisan officeholders.

In a statement issued Monday by her campaign manager, Tim Warner, Gustafson’s campaign said Eaton’s filings were “unlawfully” shared with the public and “a gross, blatant, and obvious ‘October Surprise’ political stunt” intended to create “sensationalized news stories” as ballots arrive in voters’ mailboxes. The statement also said that “Montana’s judicial campaign contribution limits in themselves protect against the influence and conflict inappropriately asserted” in Eaton’s complaints.

“Because judges are elected in Montana, Justice Gustafson has been running her re-election campaign throughout Montana, attending dozens of events with supporters from a broad spectrum of backgrounds and professions,” the statement continued. “She has received donations from nearly two thousand donors, all within the legal limit determined by the Montana State legislature and signed into law by the governor of Montana.”

The case referenced in Eaton’s complaints, McDonald et al v. Jacobson, would have put a constitutional amendment on the ballot to make Supreme Court justices elected by regional districts, rather than statewide. After the case was decided in March by a district court judge in Butte, the state appealed the decision to the state Supreme Court in May. 

The higher court decided Aug. 12 to prevent the Republican-sponsored proposal from being put on the ballot, saying it echoed another bill that was ruled unconstitutional a decade earlier. Gustafson, along with justices Laurie McKinnon, James Shea and Dirk Sandefur, joined the 36-page opinion written by Chief Justice Mike McGrath. Justices Beth Baker and Jim Rice dissented.

Smith, secretary for the standards commission, told MTFP Monday that the commission members last met Sept. 19. She said she typically passes new complaints to commission members for review two to three weeks before their scheduled meetings. 

Eaton told MTFP he filed the complaints Oct. 14, rather than in August, because he’s “a busy guy.”

“I’ve three kids to raise and a business to run, I got around to filing these complaints as quick as I could,” Eaton wrote. 

Eaton, who lives in Billings and runs the consulting firm The Political Company in addition to working for the political action group supporting James Brown, has a long track record in Montana politics. He recently managed the campaigns of Republican Gov. Greg Gianforte and Republican Attorney General Austin Knudsen and has coordinated endorsements and polling in support of Brown and against Gustafson throughout this year’s election. 

Gianforte and Knudsen both have endorsed Brown in the Supreme Court race.

In April, Eaton sent two emails to members of the media with the subject line “Friday fun facts” accusing Gustafson of improper association with former Democratic Gov. Steve Bullock and donors who have supported Democrats in past elections. 

Eaton also previously served as executive director of the state Republican Party. He resigned that position in 2008 under high-profile legal scrutiny for attempting to challenge the registration of 6,000 voters in liberal-leaning Montana counties. At the time, U.S. District Court Judge Donald Molloy called the unsuccessful tactic “political chicanery” and “a tawdry political ploy.”

Eaton told MTFP that his motivation in sending out copies of his complaints against Gustafson was “to see her held accountable.” Consideration of his political support of Brown’s candidacy, Eaton said, “is nothing more than a distraction.” 

Lee Banville, a political analyst and dean of the University of Montana School of Journalism, said Eaton’s decision to bring the allegations into the public arena puts voters, rather than the constitutionally appointed oversight body created to evaluate such complaints, in the position of scrutinizing the justice’s conduct. 

“It’s literally not supposed to be interpreted for a layperson,” Banville said. “This is not our job. I mean, what’s the appearance of impropriety? It could be being endorsed by the governor of the state for a nonpartisan role,” he added, referencing Gianforte’s endorsement of Brown earlier this year.

“The fact that you file it on the day that ballots go out gives the appearance, at a minimum, that this is a political act more than it is a judicial good governance action,” Banville said.

While there may be grounds for a legitimate discussion in Montana about the rules for judicial recusal, Banville said, the increasing influence of partisan interests in the race between Gustafson and Brown makes it difficult to see the complaints in any other than a political light.

“Are we going to have a thoughtful conversation about the recusal process in the Montana High Court, or is this just another sort of sling and arrow being hurled at Justice Gustafson in an attempt to kind of knock her off?” he said. 

The course of a complaint filed with the standards commission can take a number of different routes, according to the commission’s procedural rules. If an allegation is dismissed during the initial investigation process, the commission is not required to publish a public explanation of the commission’s actions. A case dismissed at this stage is no longer confidential and can be publicly discussed by the complainant. If an investigation finds reason for disciplinary action, the commission will file a complaint with the Montana Supreme Court for further adjudication. At that point as well, the deliberations and accusations would become public. 

Because the commission has not reviewed Eaton’s filings at a scheduled meeting, neither criteria for public airing of the complaints has been met.  

The general election is Tuesday, Nov. 8.