VanDyke back on ballot for Montana Supreme Court

2014-07-22T14:32:00Z 2014-10-06T11:50:04Z VanDyke back on ballot for Montana Supreme CourtBy CHARLES S. JOHNSON Gazette State Bureau The Billings Gazette

HELENA—In a 4-3 decision on Tuesday, the Montana Supreme Court overturned a lower-court ruling and put Lawrence VanDyke back on the November ballot as a candidate for Supreme Court justice.

As a result, VanDyke will face Justice Mike Wheat in the general election. Wheat recused himself from the case.

“I’m very, very happy with the decision,” VanDyke said. “I’m looking forward to making up for lost time on the campaign trail. The lawsuit really did make it difficult to campaign. I’m very excited about being back on the campaign trail.”

The Supreme Court reversed an April 24 decision by District Judge Mike Menahan of Helena, who found VanDyke ineligible for the general-election ballot.

Four delegates to the 1972 Montana Constitutional Convention had sued, contending VanDyke was ineligible to run because he wasn’t admitted to the practice of law in Montana for at least five years prior to the general-election date.

Menahan agreed. He calculated that VanDyke will have been an active member of the Montana Bar for about three years and three months by Election Day on Nov. 4, or short of the five-year requirement. The district judge found that VanDyke was an active member of the State Bar of Montana from Oct. 17, 2005, to March 6, 2007, and then went on inactive status here to practice law in the Washington, D.C., area and Texas before returning to Montana to work as state solicitor general for Attorney General Tim Fox starting Jan. 8, 2013. Van Dyke left Fox’s staff May 30.

The Supreme Court ‘s majority disagreed.

VanDyke’s admission to the practice of law here in 2005 satisfies the Montana Constitution’s requirement that a candidate for the Supreme Court be admitted to the practice of law for at least five years prior to the date of appointment or election, “notwithstanding his choice to take inactive status for some of those years,” Justice Beth Baker wrote for the majority.

“VanDyke has paid his (license) tax and received his certificate from the clerk of this court for each year since his admission,” Baker wrote. “His admission was not conditional and has not been terminated, suspended or subjected to any form of probation or other disciplinary action at any time. VanDyke did, by voluntary action, choose not to engage in the practice of law in Montana, selecting inactive membership for a period of approximately six years. But he did not resign or surrender his license or his admission to the bar was not withdrawn. In short, he has never been ‘un-admitted.’”

In her dissent, Justice Patricia Cotter said the State Bar by-laws “clearly and plainly prohibited VanDyke from practicing law in Montana while on inactive status.”

“Moreover, for over five years VanDyke availed himself of the benefits of inactive status by paying reduced bar dues, freeing himself from the payment of assessments to the Lawyers’ Fund for Client Protection and avoiding CLE (continuing legal education) requirements imposed on active bar members,” Cotter wrote.

“Having done so, he should be estopped from now asserting that he was admitted to practice law in Montana during those same five years. He cannot have it both ways, and the court errs by concluding otherwise.”

Mike Meloy, the Helena attorney for the four Con-Con delegates, said he was “surprised and disappointed” by the ruling.

“I thought Judge Menahan’s ruling was very sound and virtually unassailable, and I still think he was right,” Meloy said. “I’m not sure I really understand the majority opinion, but it is what it is. So it’s going to be up to the voters of Montana to see if they agree with Judge Menahan that he’s not qualified to be on court.”

VanDyke’s praised the work of his lawyers, Rob Cameron and Nathan Bilyeu, both of Helena.

Joining Baker in the majority were Justices Laurie McKinnon and Jim Rice and District Judge Daniel A. Boucher of Havre, who filled in for Wheat.

Signing Cotter’s dissent were District Judges Dirk M. Sandefur of Great Falls and Edward P. McLean of Missoula, who were filling in for Chief Justice Mike McGrath and Justice James

Jeremiah Shea, respectively, after they recused themselves.

Copyright 2014 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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