5 February 2020 — 1213 mst
Updated with statement by Kimberly Dudik
Retired Democratic legislator questions whether Raph Graybill
meets the constitutional qualifications for MT Attorney General
Billings resident Dave Wanzenried has filed with Montana’s Commissioner of Political Practices a complaint alleging that Raph Graybill, who is seeking the Democratic nomination for MT Attorney General, may not meet the constitutional qualifications for the office.
Now retired, Wanzenried worked in Gov. Ted Schwinden’s administration, and later represented Montana legislative districts in Kalispell and Missoula. He’s well known and widely respected within Montana’s Democratic Party.
Graybill, Gov. Steve Bullock’s chief legal counsel, belongs to Great Falls’ distinguished Graybill family. Barely 30, he has degrees from Montana, Yale (J.D.), and Oxford (M.Phil). His primary opponent is Missoula Rep. Kimberly Dudik.
Austin Knudsen and Jon Bennion are seeking the Republican nomination for position.
Wanzenried supports Dudik. He and his wife held a fundraiser for her on 9 September 2019. He donated $100 to her campaign on 5 July 2019, and on 6 January 2020 donated another $100. Graybill’s campaign refers to him as “the Dudik fundraiser.”
This morning I asked Wanzenried whether he filed his complaint independently of Dudik’s campaign. He replied, “I am acting independently and without having consulted with Kim Dudik in the preparation or submission of the complaint.”
I also sent Dudik an email asking if she would like to comment on the situation. When, if, she replies, I will update this post as necessary.
Update, 1432 MST. Kimberly Dudik sent Flathead Memo the following statement:
It’s deeply concerning to learn details of my opponent’s apparent failure to meet the eligibility requirements for this office. I understand and respect his desire to serve the citizens of our state but there is too much at stake in this election to take a chance on a nominee that is not eligible for the office. Fully grasping the laws and legal requirements of our state should be the top requirement for being the chief law enforcement officer.
I know Dave Wanzenreid because we served at the same time in the Montana Legislature in 2013 and he supports my candidacy. I did not file this complaint though or request it to be filed. I believe the complaint raises serious questions regarding my opponent’s eligibility and qualifications that he needs to address.
Wanzenried argues that Graybill has not practiced law in Montana for at least five years as required by Montana’s constitution. Graybill filed a three-page response (response attachments, PDF) arguing that he possesses the legal credentials and experience required by Montana’s constitution.
Part VI. Section 3. Qualifications. (1) No person shall be eligible to the office of governor, lieutenant governor, secretary of state, attorney general, superintendent of public instruction, or auditor unless he is 25 years of age or older at the time of his election. In addition, each shall be a citizen of the United States who has resided within the state two years next preceding his election.
(2) Any person with the foregoing qualifications is eligible to the office of attorney general if an attorney in good standing admitted to practice law in Montana who has engaged in the active practice thereof for at least five years before election.
Insofar as I can determine, whether the experience practicing law must be in Montana has never been definitively adjudicated. Commonsense suggests to me that the experience should be in Montana, but commonsense also tells me that the constitution’s authors were smart people who opted for ambiguity to avoid unproductive provincialism.
Graybill provided a Kentucky court decision on a case there that raised similar issues of qualification. The National Attorneys General Training and Research Institute summarized the case in its journal.
Wanzenried’s complaint now awaits a declaratory ruling from Commissioner of Political Practices Jeffrey Mangan, whose summary of the issues includes the following:
STATEMENT OF MATTERS OFFICIALLY NOTICED FOR DECLARATORY RULING
1. Mr. Wanzenried’s request for declaratory ruling (former campaign finance complaint) alleges a potential violation of Montana’s deceptive election practices statute, Mont. Code Ann. § 13-35-207(4).
2. The request alleges that Mr. Graybill does not meet the Constitutional qualifications to campaign for the Office of the Montana Attorney General which provide that:
(1) No person shall be eligible to the office of governor, lieutenant governor, secretary of state, attorney general, superintendent of . public instruction, or auditor unless he is 25 years of age or older at the time of his election. In addition, each shall be a citizen of the United States who has resided within the state two years next preceding his election.
(2) Any person with the foregoing qualifications is eligible to the office of attorney general if an attorney in good standing admitted to practice law in Montana who has engaged in the active practice thereof for at least five years before election. Mont. Const. Art. VI, Sec. 3, (1) and (2).
3. The request alleges that Montana’s Campaign Finance and Practices Act’s definition of “election” applies to the provisions of the Montana Constitution, Mont. Code Ann. § 13-1-1o1(12).
4. The request alleges that Mr. Graybill has not actively practiced law for five years as required by the Constitution. Specifically, the request alleges that neither Mr. Graybill’s experience clerking for the Ninth Circuit, nor his experience in practice of law outside of Montana constitutes active practice of law in Montana.
5. Mr. Wanzenried asserts that these issues are of statewide importance and should be resolved prior to the closing of candidate filing with the SOS in March 2020, prior to the primary election in June, or no later than the November 3, general election.
Mangan gave both parties until 1700 MST on 7 February to submit argument and evidence. I suspect he will rule before 9 March, the date when filing for elective office in Montana ends.
If Mangan dismisses the complaint, the next step for Wanzenried probably is filing suit in Montana district court.