HELENA — A state district judge heard arguments Wednesday on whether to remove Lawrence VanDyke from the 2014 ballot as a candidate for Supreme Court in a dispute over his eligibility.
District Judge Mike Menahan must issue a decision in the case by April 30, the Montana Supreme Court has ordered
VanDyke, the state solicitor general for Attorney General Tim Fox, filed on March 10 as a candidate for justice of the Supreme Court. He is challenging Justice Mike Wheat, who has been on the court since 2010.
On March 21, five delegates to the 1972 Montana Constitutional Convention sued, challenging VanDyke’s eligibility to run for the Supreme Court.
A week later, VanDyke asked the Supreme Court to take jurisdiction over the case. He cited the need for quick resolutions because the state’s overseas absentee ballots for the June 3 primary election were to be mailed by April 18.
At the hearing, attorney Mike Meloy of Helena, representing the five Constitutional Convention delegates, said the only question is whether VanDyke meets the constitutional requirement that a candidate for the Supreme Court has been admitted to the practice law for at least five years in Montana before the Election Day.
“If you count his inactive time, he doesn’t qualify,” Meloy said.
VanDyke, a Harvard Law School graduate, was admitted to practice law in Montana in October 2005. He went on “inactive” bar status in Montana from March 2007 until November 2012 while he worked out of state, including as deputy solicitor general in Texas.
After Fox was elected attorney general in November 2012, VanDyke petitioned the Montana Supreme Court that month to regain his active bar status here in preparation for joining Fox’s staff.
“An inactive member is prohibited from practicing law in Montana,” Meloy said. “Our position is for the portion of time Mr. VanDyke was inactive, he was not eligible to practice law (in Montana). He did not have the privilege of practicing law (here).”
Thus, Meloy said, the period of time when VanDyke was on inactive Montana bar status doesn’t count toward the five-year requirement to run for the Supreme Court.
VanDyke’s lawyers, Rob Cameron and Nathan Bilyeu of Helena, disagreed.
Bilyeu cited a “presumption of eligibility” in the language of the Montana Constitution. He said Montana voters would be harmed if they were denied a choice in the Supreme Court race if VanDyke isn’t allowed on the ballot.
Cameron called it “really a simple case,” one involving “whether in fact Mr. VanDyke has been admitted to the practice of law for five years preceding his election.” He said the time VanDyke was inactive status still should count to meet the constitutional five-year requirement to file for the court.
He said a bylaw of the State Bar of Montana “conclusively refutes the notion that inactive members are ineligible (to practice law).” VanDyke was never suspended nor “un-admitted” from practicing law in Montana, Cameron said.
An attorney going from inactive bar status in Montana to active status simply has to sign a form and pay a fee to ask the Supreme Court to authorize the change, Cameron said.
In response, Meloy said, “Because he did not possess the right to practice (in Montana), he doesn’t qualify under that constitutional provision.”
“If nothing else is clear in this case, being admitted to practice law doesn’t mean eligible to practice law,” Meloy said.
The Supreme Court directed Judge Menahan to issue a decision by April 30. After that, the Supreme Court will set an expedited briefing schedule for the losing side to appeal his ruling, its order said.
Assistant Attorney General Cory Swanson, representing Secretary of State Linda McCulloch, said the overseas absentee ballots were mailed on schedule last week. Under court precedents, if VanDyke’s name is removed from the ballot, his vote totals won’t be counted or announced, he said.
Afterward, VanDyke, who watched the arguments, said, “I think the people of Montana should have the right to decide who they want on the Montana Supreme Court.”