Serving the Flathead Valley & Montana since 2006. A reality based independent journal of observation & analysis. © James Conner.
Yesterday, Montana’s supreme court ruled 4-3 that Lawrence J.C. VanDyke meets the constitutional requirements for serving on the state’s supreme court. He’ll be on the general election ballot in November. His opponent is current justice Mike Wheat.
Vandyke was admitted to Montana’s law bar in 2005, but took inactive status (probably to save money in dues and fees) while he practiced law out-of-state. In 2012, he was returned to active practice in Montana. That, a district court concluded, meant he didn’t meet constitutional requirements for serving on the state’s supreme court. Overturning the district court, the supreme court ruled that VanDyke’s taking inactive status did not vitiate his admission to the bar, which the four-justice majority believes is functionally indistinguishable from the practice of law.
After reading Justice Beth Baker’s not all that distinguished opinion, I reluctantly concluded the court decided the case correctly. Montana’s constitution requires that candidates for attorney general must be actively engaged in the practice of law in Montana for at least five years, but does not impose that requirement on candidates for the supreme court. The fault is with the 1972 constitution:
Section 9. Qualifications.
History: Amd. Const. Amend. No. 19, approved Nov. 8, 1988.
They who drafted the 1972 thought there was no reason to require a minimum age for serving as a supreme court justice. Perhaps they believe that four years as an undergraduate, three years in law school, and five years of practicing law, with perhaps a year or two clerking at a court, set a de facto minimum age of 29–31, and thus there was no need to put a number in the constitution. Perhaps At least there’s an argument for omitting a formal minimum age. But there’s no good argument for not requiring the active practice or teaching of law; for making the requirements for serving on the supreme court less rigorous than those for serving as attorney general. The constitution’s framers blundered.
Here’s how I think Section 9(1) should read:
A citizen of the United States, at least 45 years of age, who has resided in the state two years immediately before taking office is eligible to the office of supreme court justice or district court judge if admitted to, and actively engaged in, the (a) full time practice of law in Montana for at least five years prior to the date of appointment or election, or (b) teaching of the law for ten years at an accredited school of law in Montana. Qualifications and methods of selection of judges of other courts shall be provided by law.
Montana Supreme Court elections are officially nonpartisan, but the political affiliations of justices and candidates are no secret. Mike Wheat is a Democrat. Lawrence C.J. VanDyke is a Republican, and not just a Republican but a tea party Republican. Voting for a particular candidate is ostensibly a choice of judicial philosophies, but it’s at least as much a choice of political philosophies. So don’t be fooled by the official nonpartisan label. This is a de facto partisan election that likely will become unmistakably indecorous long before the final ballot is cast. If you like your law with tea, vote for VanDyke. If not, vote for Wheat.
And if you prefer a wholesome way of selecting supreme court justices, work to amend the Montana constitution to have justices appointed by the governor and confirmed by the legislature.