Ed Kemmick
Yellowstone County District Court Judge Russell Fagg, as you may know, has an occasional column, “Ask the Judge,” in the Billings Gazette.
I wasn’t sure it would be appropriate for me to pose a question through the Gazette, so I called Fagg directly the other day and asked him why he was retiring from the bench this fall, roughly 15 months before his latest six-year term ends.
The Gazette story on his planned departure said that Fagg would be stepping down to start a private practice and to consider another run for public office, having served two terms in the state House before becoming a judge 22 years ago.
So, why did I ask? Because in 2008 I wrote a story about how often judges were appointed to the bench, how exceedingly unusual it was for a sitting judge to have any electoral opposition, and about how often judges “retired” before their terms on the bench expired.
Here’s one paragraph from that story: “Fagg said he suspects that some judges retire before their terms are up because they believe that an attorney, at least initially, should be appointed to the bench, rather than run for the position.”
That’s because when a judge retires, lawyers who file to fill the vacancy are first scrutinized by the Judicial Nomination Commission, which forwards several nominees to the governor, who ultimately chooses a successor. If the Legislature meets before the next election, the state Senate can confirm or reject the nominee.
If the Legislature does not meet before then, the appointed judge has to run in the next election, and then again when the previous judge’s six-year term would have ended.
Fagg, however, said that consideration was not part of his decision to leave the bench next fall.
“The truth is, that’s not why I did it,” he told me. “I just had this feeling that it was time to make a change.”
Fagg acknowledged that there is some expectation on the part of voters that judges will serve out the terms to which they are elected, but he added: “I’m also a spiritual person and when I have a feeling that it’s time to move into another chapter, I listen to that.”
Fair enough. Who am I to second-guess a judge? But still, nearly all the judges I talked to for that story in 2008 not only acknowledged that “some judges” did indeed retire early to pave the way for the appointment of a successor, but said it was undoubtedly a good thing.
Judge Ingrid Gustafson, who is still on the Yellowstone County bench, said that if a judge believed in the appointment process and was ready to retire anyway, what harm is done?
Judge Gregory Todd, likewise still on the bench, went even further, saying the nomination commission was good at screening out “political party hacks.”
I thought then what I think now, that their points made sense. If there’s anybody who ought to be screened for competence it’s a district court judge. These are people who hold people’s lives and fortunes in their hands, perhaps even more often than, say, a surgeon.
But if we almost have a system of de facto appointment, why maintain the fiction that we favor the election of judges? Why not just change the Montana Constitution to provide for judicial appointments?
Some judges do run for their seats, but usually only when a new judgeship is created. Of the six district judges in Yellowstone County, two (Gustafson and Todd, coincidentally) were appointed after their predecessors retired early.
Judge Mary Jane Knisely had to run for her seat in 2016, after a sixth judgeship was created in this district, and Judge Rod Souza had to run because Judge G. Todd Baugh, who planned to retire early, was suspended by the Supreme Court for the last 30 days of his term.
Baugh was the judge whose controversial remarks about a juvenile rape victim sparked criticism from all over the country, and eventually led to his suspension and a formal censure.
Judge Michael Moses was appointed to the county bench after his predecessor was appointed to the federal judiciary. That leaves one district judge—Fagg. He actually got on the bench by challenging a sitting judge, Russell Fillner, was back in 1994.
As far as I know, going back to the early 1980s at least, Fillner is the only sitting judge in Yellowstone County to have drawn an electoral opponent. So we should probably take Fagg at his word when he says he supports judicial elections. But again, if most justices get to the bench by appointment and an overwhelming majority of them never have a contested election again, what’s the point?
When I talked to people for the 2008 story, many reasons were given for not wanting to challenge a sitting judge. Some said lawyers were hesitant to challenge a judge, lest they lose the election and then have to appear in his or her court.
When I asked the then-head of the Yellowstone County Bar Association if lawyers really might face unpleasant consequences if they challenged a judge, she answered, “I would hope not, but at the same time, I think nobody wants to find out.”
Others said judges deserved deference and respect, not an electoral challenge. It was also said that it was expensive to run for a judgeship, and that lawyers often took a pay cut to fill what is in some sense a public-service position.
Dan Schwarz was then and is now a chief deputy county attorney, who ran once, unsuccessfully, for a county judge seat—one that became vacant when the judge decided not to seek re-election but served out his term. Schwarz told me in 2008 that it all comes down to whether you believe in the electoral process.
Maybe judge candidates need to be screened, he said, but “maybe the end result isn’t as important as the process. It’s the opportunity.”
I especially liked a comment made in that 2008 article by Karla Gray, then chief justice of the Montana Supreme Court. She pointed out that during the drafting of the new state Constitution in 1972, some people did favor a system whereby judges would be appointed to a position and then retained or rejected by the voters in subsequent elections.
But that didn’t fly and we have the system in place, and it’s never really been debated since 1972.
“It’s a fascinating conversation to think of having with the people of Montana,” Gray said.
I couldn’t agree more. But will we ever have it?
