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Bench Memos

NRO’s home for judicial news and analysis.

A Case Study on Politicized Judging from Montana



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In 2011, the Montana Supreme Court famously decided it didn’t need to follow the U.S Supreme Court’s decision in Citizens United. The decision was exceptional even for Montana, whose supreme court has been ranked by the U.S. Chamber of Commerce as one of the least fair, competent, and impartial in the country. Unsurprisingly, that lawless decision was summarily reversed by the U.S. Supreme Court. 

Apparently the disregard for clear precedent has filtered down to the lower courts in Montana as well. A recent case illustrates the willingness to explain away obvious legal authority and could turn into another Montana Supreme Court power-grab.

Montana Solicitor General Lawrence Van Dyke (whose appointment I noted here) is preparing to run for state Supreme Court. He is up against the machine of the Montana Trial Lawyers’ Association which for decades has had a stranglehold on the judicial elections and which supports his opponent, incumbent Justice Mike Wheat.

A native Montanan, VanDyke has been a member of the Montana State Bar since 2005, and thus complies with the state constitution’s requirement that a candidate for judicial office be a member of the state bar for at least five years. But his opponents at the MTLA have engineered a lawsuit that grasps at the thinnest of legal straws to argue that, because he was on inactive status during a portion of that time when he practiced out of state, he is not eligible. 

The legal issue is straightforward and obvious not only on the constitutional text itself, but from the constitutional convention, which considered making the requirements for judicial office more stringent and ultimately rejected the proposition. But that didn’t prevent a Montana trial judge from ruling against VanDyke on grounds that even his opponents in the case said had no legal merit.

Now the Montana Supreme Court is set to hear the appeal, but that court with its reputation for politicized rulings could be even less impartial than normal: of the six sitting justices, Justice Mike Wheat is VanDyke’s opponent in the upcoming election, and Chief Justice Mike McGrath was his first campaign donor. It would be manifestly unfair to have VanDyke’s eligibility to run be determined by a court including either of those two justices.  

While it takes a lot of chutzpah to flout clear U.S. Supreme Court precedent, hearing a case in which one is so obviously biased could do even more damage to the judicial office in Montana. I hope Chief Justice McGrath and Justice Wheat are quick to step aside to allow a neutral court to decide what should be a simple case.



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