The race to be the partisan clerk of Montana’s nonpartisan Supreme Court

This story is adapted from Capitolized, a weekly newsletter featuring expert reporting, analysis and insight from the reporters and editors of Montana Free Press. Want to see Capitolized in your inbox every Thursday? Sign up here.

The clerk of the Montana Supreme Court is a unique position.

Unlike the actual justiceships on the high court, the clerkship is partisan. And unlike almost every other state supreme court clerk in the country, Montana’s is elected, a requirement laid out in statute. 

That means that every six years, would-be clerks must make a case for themselves on the same ballot as court justices, U.S. senators and other high-profile elected officers. They also have to explain what exactly it means to be a partisan officer in an ostensibly non-partisan building. 

Different candidates approach this apparent contradiction differently. 

This year, the incumbent clerk, Republican Bowen Greenwood, is running for re-election. Both he and his primary challenger, Senate President Jason Ellsworth, R-Hamilton, say it’s essential for a Republican official to exist in the same orbit of the high court, an entity that has faced escalating criticism from the GOP in recent years as the party, unbridled in 2021 by the Democratic veto pen for the first time in 16 years, sees instead an even greater obstacle: constitutional challenges. 

“The clerk of the Montana Supreme Court is a partisan office, and thank God. In a Montana Supreme Court where extremist, progressive ideologues rule the day, Republicans must preserve every advantage we can get,” Greenwood told Montana Free Press in a recent candidate survey. “I am the only Republican anywhere near that court. We cannot risk losing the gains we’ve made.”

On the other side of the aisle, attorney Erin Farris-Olsen said she’s a proud Democrat who wants to keep the clerkship as politically neutral as possible. She said Greenwood’s overt partisanship is a liability to the even-handed administration of justice, not an asset. 

“The court should serve all people, not politics,” Farris-Olsen told Capitolized. “That’s my drumbeat.”

But first: What does the clerk do? 

Despite the high-minded rhetoric from the candidates, the clerk’s role is, aptly, largely clerical. The clerk’s statutory duties include filing papers and court transcripts, maintaining a roll of attorneys who practice before the court, transmitting copies of documents to other courts and similar tasks. The clerk might be the first person a litigant or their attorney interacts with when they have business before the bench. 

“The clerk is the keeper of all the court’s legal records,” Greenwood told Capitolized. “That’s something that I have always believed in — that sunshine is good.” 

“It was the public information side of this office that really drew my attention to it,” he said. 

Partisanship aside, Greenwood said he has a variety of ideas for improving public access to the court’s arcane system of tracking documents. In the short term, he wants to make it easier for the public to access permanent web links to court opinions. In the longer term, he wants to allow members of the public to search opinions by keywords rather than party names or docket numbers. 

“Reporters would love it, but more to the reason I’m interested in it is the average Montanan doesn’t really know a docket number or party name or even a case title,” Greenwood told Capitolized. 

He said there are two essential elements to his campaign. 

“The first one is, every document that comes to the Montana Supreme Court is processed promptly according to the rules, whether Democrat, Republican, politician or prisoner,” he said.

Second, though, Greenwood said he has learned how different justices act during the court’s oral arguments, for example, information he said he can make available to conservative attorneys. 

“When attorneys in the attorney general’s office are defending our good pro-life laws, I can talk to them about, ‘Here’s what you’re gonna see from Justice [Dirk] Sandefur when you go into oral arguments,” he told Capitolized. “I think the best way for this office to make change is to be a loyal ally to the big guns.”

Asked whether that means he would provide less support to an ostensibly progressive or Democratic attorney, Greenwood said he’d make sure everybody knows the appellate rules. 

“But if I may be so bold, [prominent Democratic constitutional attorney and lieutenant governor candidate] Raph Graybill is getting paid a lot more money than I am to know this stuff,” Greenwood said. “He’s the lawyer. Not all attorneys practice at the Supreme Court as much as Raph does.” 

Greenwood is also interested in creating an independent public information office for the court. Currently, that responsibility is housed in the office of Court Administrator Beth McLaughlin, who reports to the chief justice and was the target of Republican attacks in 2021 due to her office’s handling of judicial records. 

Farris-Olsen, the leading Democrat in the race, sees Greenwood’s overt partisanship as a serious issue. 

“It’s one thing to say you’re a Republican or Democrat, and I think that can help educate voters about your values. But you have to be willing to put the rule of law first,” she said. 

His pledge to aid conservative attorneys “demonstrates, if not a lack of ethics, his incompetence as a clerk,” Farris-Olsen, whose husband is former Democratic state lawmaker Rob Farris-Olsen, told Capitolized. 

Unlike Greenwood, Farris-Olsen is an attorney. She’s previously worked as a law clerk within the high court and within the office of the clerk administrator. 

“I have a reputation for working across entities,” she said. “I can work with district courts, with the [state] bar, with the court administrator, with the Montana Legal Services Association.” 

Still, her practical priorities are largely the same as Greenwood’s — namely improving the e-filing system and online case search. But she points out that Greenwood ran for Montana secretary of state in 2020, not long after he began his role as clerk. 

“It looks like this is not the job that he really wants,” she said. “I want this job.”

The National Conference of Appellate Court Clerks specifies a code of professional conduct that touches on the question of partisanship. 

“A member is entitled to entertain personal views on political questions and is not required to surrender rights or opinions as a citizen,” it reads. “Many jurisdictions expressly prohibit political activity on the part of employees of the judicial branch of government. To the extent that political activity is not expressly prohibited, a member should avoid political activity which may give rise to a suspicion of bias or impropriety in any matter pending or impending before his or her court.” 

Farris-Olsen has a primary opponent, U.S. Navy veteran and Montana State University Northern student Jordan Ophus. Ophus could not be reached for comment, but he did respond to MTFP’s candidate survey. 

He said his goal is to “support the court in its regulation of state law, ensure that the cases before the court are scheduled and properly monitored, to maintain the court’s files and to report the statistics relating to the court’s activities in a manner that is transparent and direct.”

Ophus has not raised any money for his campaign, according to recent filings.

Ellsworth, the senate president, did not return requests for comment about his bid for the clerkship. The Republican candidates have not spoken about Ellsworth’s bid. On his campaign website, Ellsworth makes a similar case as Greenwood.

“Ellsworth believes there’s much to be done within the Montana Supreme Court,” his website reads. “By restoring co-equal power among the branches of government, improving oversight and addressing constitutional cases, he aims to strengthen the judiciary.”

Ellsworth has largely self-financed his campaign, according to campaign finance records. Contributions to Greenwood, on the other hand, read as a who’s who of Montana conservatives. There’s former Attorney General Tim Fox, staffers for incumbent Attorney General Austin Knudsen — who endorsed Greenwood, as has incumbent Secretary of State Christi Jacobsen — members of the influential Galt family, attorneys for the Montana Family Foundation and more. 

It’s a fairly low-stakes election for Ellsworth, who has another two years left in his Senate term if he doesn’t win the clerkship. 

There’s also a Libertarian in the race, attorney Roger Roots, who has run for a number of offices under that party’s banner since 2012. 

More recently, he’s known for his legal assistance to Jan. 6 defendants and Oath Keepers founder Stewart Rhodes.

“Presently the Supreme Court is extremely biased in favor of promoting intrusive expansive government,” he told MTFP. “I hope to perform clerical duties while always looking out for the freedoms of Montanans.”

Roots has two felony convictions — one of which was for possessing firearms as a felon — and was dismissed from a position with the Conrad Burns campaign in the 1990s because of his associations with known white supremacists.

He’s since publicly disavowed his racist past, and now says he’s running because “government at every level is out of control and I hope to protect Montanans’ individual freedoms.”