In Yellowstone County, the five District Court judges have been on the bench a total of 57 years.

Despite all those years of service, only two of them have ever faced an opponent in a judicial election.

Judge G. Todd Baugh ran in a contested election once, back in 1984, when the state created a fifth district judgeship here. After winning that race, he ran unopposed in 1990, 1996 and 2002.

Judge Russell Fagg, the last person to challenge a sitting Yellowstone County District Court judge, defeated Russell Fillner in 1994 and then ran with no opposition in 2000 and 2006.

The other three judges in District 13 - Susan Watters, Gregory Todd and Ingrid Gustafson - were appointed to the bench to fill vacancies and have never run in a contested election.

It's not that nobody wants to be a district judge, a job that pays $99,234 a year. When Watters applied to succeed Judge Robert Holmstrom, who retired from the bench in 1997, she was one of 16 candidates for the position.

Why then, in a country where political campaigning seems to have become a never-ending spectator sport, are judgeships so rarely contested?

The reasons are many, according to the judges themselves and to observers in the legal community, and they revolve around time, money and the traditions of the legal community.

The rarity of contested races for district judge touches on a deeper issue as well: the question of whether judges ought to run for office at all, or whether they should be appointed on the basis of merit.

On the most basic level, it costs a lot of money to run for District Court. Fagg said he spent $30,000 to unseat Fillner 14 years ago, partly because the district, which is now restricted to Yellowstone County, then covered four counties. That same year, Dan Schwarz spent about $32,000 in his unsuccessful race against Diane Barz.

Schwarz, then a deputy county attorney and now the chief deputy, spent that much even though he wasn't challenging a sitting judge. He and Barz were competing to succeed Judge William Speare, who did not seek re-election in 1994.

Barz had won election to a different judgeship in Yellowstone County in 1978, then retained her seat in 1984 against a challenge by Fillner. Barz was appointed to the state Supreme Court in 1989, resigned 15 months later, became an assistant U.S. attorney and ran for judge again in 1994.

Campaigning for a judgeship can be costly in another way, by taking an attorney away from his or her practice. If you have your own practice, you might take an earnings hit, and if you're part of a firm, partners may have to pick up some of the slack. Either way, Baugh said, campaigning "cuts into your earnings pretty substantially."

It's not surprising, then, that Fagg and Schwarz were deputy county attorneys, and Barz a U.S. attorney, when they stood for election.

Another potential obstacle is that clients may have second thoughts about sticking with a lawyer who might soon become a judge.

"When you're running for judge, your clients already think you're gone," said Billings attorney Martha Sheehy, who serves on the state Judicial Nomination Commission.

Money also matters in regard to how much district judges earn.

"A great many of the people that would consider the job would have to take a significant pay cut, as I did," Todd said.

Or, as Watters put it, judges' salaries "are good for Montana, but we're 51st in the nation behind Guam."

It also takes a special breed of attorney to want to take on the responsibilities of being a district judge. Instead of specializing, as most attorneys do, district judges find themselves having to make decisions in criminal cases and cases involving family disputes, employment contracts, probate matters and countless other areas of law. Their decisions, particularly in criminal cases, can have life-altering consequences for the people who come before them.

And District Court judges are saddled with a lot of work - about 1,200 cases a year for each of the five judges in District 13. Last year, a study commissioned by the Montana District Court Council recommended adding new judges to this district.

A natural deference

Other barriers to seeking judgeships come from the nature of the legal profession, where deference toward a man or a woman wearing black robes is virtually a job requirement.

Schwarz, who applied for the opening to which Watters was appointed in 1997, three years after he ran unsuccessfully for a District Court seat, said he would never run against a sitting judge.

"The courts deserve respect," he said. "It's unseemly to run against an incumbent."

Barz, now a retired judge, said deference toward judges also plays into campaign fundraising. Few people outside the legal profession really care about those elections, she said, so most campaign contributions come from attorneys.

But attorneys, if they do contribute, usually give their money to the incumbent, on the assumption that an incumbent is more likely to win - and thus more likely to be the judge they will eventually appear before in a trial or other pleading. If attorneys really favor a challenger, Barz added, they'll probably donate money to both the challenger and the incumbent, thus hedging their bets.

An even bigger obstacle in challenging a sitting judge, however, is finding a message that will resonate with voters. In nonpartisan judicial races, you can't run a typical political campaign, and unless the incumbent is quite unpopular or has appeared to be incompetent, how do you frame an election challenge?

"In general, at least in my time here, we've had good, competent judges," Gustafson said, which means an attorney interested in running for a judgeship would be hard-pressed to find an issue the public cares about or understands.

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Schwarz agreed. "Unless you get nasty, how do you run against an incumbent judge?" he asked. "The way you get elected nowadays, unfortunately, is by running a negative campaign."

Rough-and-tumble race

Fagg ran an aggressive campaign against Fillner in 1994. He said he decided to challenge Fillner, among other reasons, because Fillner had been too lenient on criminals and had had more judgments reversed by the Montana Supreme Court than any other district judge.

Fagg was only 34 at the time, and before mounting his challenge he tried to talk a number of older, more experienced attorneys into taking Fillner on.

"Nobody would do it," Fagg said. "I finally figured out nobody was going to run against Judge Fillner if I didn't do it."

Fagg had previously run three times for the state House, winning two elections, but he did a lot of soul-searching before filing to challenge Fillner.

"I definitely got the impression that my running was not appreciated by a majority of the local bar," he said, because of his age and because he was taking on a sitting judge.

Since winning that election in 1994, Fagg has stood for re-election twice, with no challengers, which he said has been something of a surprise. He said he thinks judges should be challenged on occasion because "it keeps them on their toes."

He also says he wouldn't take it personally if an attorney decided to run against him. Still, the fear of repercussions is definitely on the minds of attorneys contemplating a challenge to a sitting judge. That fear is something all the local judges acknowledged but also dismissed.

As Baugh said, "Any attorney has some reluctance, I suppose, because he thinks there might be some ramifications if he loses. But there wouldn't be."

Maybe, but Roberta Anner-Hughes, president of the Yellowstone County Bar Association, when asked if she thought there would be unpleasant consequences for an attorney who ran against a sitting judge, said, "I would hope not, but at the same time, I think nobody wants to find out."

Election vs. appointment

There is still another factor that could play a part in how rarely judges run in contested elections. 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 run for the position.

When a judge retires, attorneys who apply for the vacant position are scrutinized by the seven-member Judicial Nomination Commission. The commission forwards three to five nominees to the governor, who ultimately selects a successor. If the Legislature meets before the next election, the appointment is confirmed or rejected by the state Senate. If the Legislature does not meet before then, the judge has to run in the next election, and then again when the previous judge's six-year term would have ended.

Barz said she retired in 2003 because her husband's job took them to the Flathead Valley, but she said she is among those who believe the public sometimes "doesn't have the appropriate means of evaluation" when it comes to judicial candidates.

"An appointment of merit ought to be the preferred method of picking our judges," at least when they first apply to the bench, and then they could stand for re-election, Barz said. Barz, the first female district judge in Montana history and a former state Supreme Court justice, also served on the Judicial Nomination Commission for nearly 10 years.

Todd agreed that some judges might opt for early retirement because they "object to the partisan nature of the electoral process" and would rather see a successor appointed. One good thing about the nomination commission, Todd said, is that "they've screened out political party hacks."

Gustafson said that if a judge believes in the appointment process and is ready to retire for whatever reason, what harm is done?

Watters, too, sees some advantages in having candidates vetted by the commission.

"As judges, we believe in the political process," she said, "but sometimes it's harder to determine the qualifications of a candidate, as opposed to going through the Judicial Nomination Commission."

Schwarz, however, said that voters might not always pick the most qualified person to be a judge, "but you know what? They're going to choose it right nine times out of 10."

He said it comes down to whether you trust our republican form of government and believe in the electoral process.

"Maybe the end result isn't as important as the process. It's the opportunity," he said.

Supreme Court Clerk Ed Smith said one solution might be to have an interim appointment if a judge retires before his term ends. The appointee could serve until the next election and couldn't run for the seat. That way the system would be truly an elective one, rather than the "hybrid thing" Montana has now, he said.

Karla Gray, chief justice of the Montana Supreme Court, said good arguments can be made for any of the many ways judges are selected around the country, but for now, "the people of Montana apparently continue to want to elect their judges."

"We could talk forever about the wisdom of electing or appointing, or a mix of both, which is basically what we have," she said.

During the drafting of the new Montana Constitution in 1972, Gray said, there was an effort to create a judicial system in which judges are appointed to the position and then are retained or rejected by the voters in subsequent elections. Since then, the question has never really been debated.

"It's a fascinating conversation to think of having with the people of Montana," she said.

Contact Ed Kemmick at ekemmick@billingsgazette.com or 657-1293.

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