In a clearly split decision that required some creative reading of the Montana Constitution and straightforward requirements to be an active lawyer, the Montana Supreme Court decided 4-3 that the eminently unqualified Lawrence VanDyke should be on the ballot for election to the Supreme Court this November. Despite a Constitutional requirement that one must be admitted to the practice of law in Montana for five years before election to the Court and the fact that VanDyke was “inactive” from 2007-2012, the Court ruled against a plain reading of the law and common sense to let VanDyke run.
The dissent, citing the By-Laws of the State Bar of Montana, makes clear that VanDyke “was not admitted to practice law in Montana while inactive because he was barred during that timeframe from practicing law in any Montana courtroom,” making him ineligible for the office. In fact, as the dissent notes, if VanDyke had attempted to practice law in Montana he would have been subject to prosecution and contempt of court charges.
Despite the incorrect decision, the majority opinion did get one element absolutely correct: VanDyke is unqualified to sit on the Court. From a delegate to the 1972 Constitutional Convention, Ben Berg, the majority opinion included this passage:
It was the belief of the committee, and I’m sure I’m speaking now on behalf of both majority and minority, that it takes experience in the courtroom, it takes experience in the actual practice in Montana in order to understand the procedures that we use, and that it would be harmful to the carrying out of justice in our courts if we had people on the bench who were not intimately familiar not only with Montana substantive law, but more especially with procedural law, and we felt very strongly that one of the most significant qualifications would be actual trial practice in court.
And that captures why VanDyke should not be elected to the Supreme Court. To elect someone with almost no practical experience in the Montana legal system to the highest court in the state will certainly “be harmful to the carrying out of justice in our courts.” VanDyke would certainly be the least experienced member of the Montana Supreme Court since 1972, and likely in the history of the state. As the Supreme Court doesn’t offer a probationary period for justices to learn the law before interpreting it, electing VanDyke to the court could preserve disastrous for Montanans seeking justice.
It’s not just that he’s unqualified. VanDyke also certainly lacks the judgment to sit on the Court, as his peculiar relationship to creationism made clear.
While I think that Wheat will win re-election, given his qualifications and actual experience with Montana law, the fact remains that the McKinnon election demonstrates that “non-partisan” Supreme Court elections are some of the easiest for right-wing interest groups to buy in Montana. While Jason Priest will probably be otherwise engaged in the legal system, the framework he established when his Montana Growth Network bought Justice McKinnon a seat is still in place—and I would be astonished if we’re not subjected to a flood of negative, dishonest attack ads targeting Justice Wheat over the next few months.
On qualifications and judicial temperament, the choice is clear: Mike Wheat should be re-elected to the Montana Supreme Court. In races like those for the Court, which are equally important and overlooked, be sure to let your friends know about the right choice.
Update: James Conner disagrees with my conclusion about the decision, but suggests VanDyke is the TEA Party candidate.