HELENA — Supreme Court candidate Lawrence VanDyke on Friday asked the state Supreme Court to take jurisdiction of a lawsuit filed in a lower court challenging his eligibility to run for justice on the high court.
On March 21, five delegates to the 1972 Montana Constitutional Convention filed a lawsuit in state District Court in Helena, arguing that VanDyke was ineligible to serve as a Supreme Court justice. They said he had not been admitted to practice law in Montana long enough to meet the state’s constitutional requirement.
Van Dyke disagreed, saying he meets the requirements.
His attorneys asked the Supreme Court to take jurisdiction of the case and requested that it be heard before April 18, if possible. That’s when ballots for the June 3 primary election will be mailed to military and overseas absentee voters.
“Furthermore, with every day that this action persists, a black cloud lingers over Mr. VanDyke’s candidacy, which unfairly harms his ability to campaign and fundraise and which diverts his attention from normal campaign affairs,” wrote Rob Cameron and Nathan Bilyeu, Helena lawyers representing VanDyke.
Asked by The Gazette State Bureau for a response to VanDyke’s motion, Mike Meloy of Helena, one of the lawyers for the five Constitutional Convention delegates, said later Friday, “As any experienced Montana attorney knows, our Supreme Court does not like to exercise original jurisdiction and supervisory control, particularly since the District Court has had no opportunity to review our claims.”
That’s why they filed in District Court and to expedite matters, made an immediate motion for a summary judgment, with a hearing on April 22, Meloy said. The proper course, he said, is for VanDyke to respond to the delegates’ motion for summary judgment and then the parties can exercise their appeal rights before the primary.
VanDyke’s lawyers said the five Constitutional Convention delegates lacked the standing to challenge his eligibility to serve on the Supreme Court. They can’t “demonstrate that they are in immediate danger of suffering a direct personalized injury distinct from injury threatened to all Montanans,” they wrote.
Although Supreme Court candidates run as nonpartisan candidates, the two candidates have political ties.
VanDyke is the state’s solicitor general under Attorney General Tim Fox, a Republican and donated to Fox’s 2012 campaign, according to the National Institute on Money in State Politics, a nonpartisan group based in Helena.
He is challenging Supreme Court Justice Mike Wheat, a former Democratic state senator from Bozeman and an unsuccessful Democratic candidate for attorney general in 2008.
The lawsuit was filed by a number of past supporters of Wheat, VanDyke’s motion said, without mentioning Wheat by name.
“Nonpartisan elections should be free from even the appearance of politically motivated efforts to co-opt the judiciary for political advantage,” VanDyke’s petition said.
The issue involves whether VanDyke meets the constitutional requirement that he must have been admitted to practice law in Montana for at least five years before the date of appointment or election.
VanDyke was admitted to practice law in Montana in October 2005. His attorneys said VanDyke went on “inactive status” from March 2006 until November 2012. Fox, then a deputy solicitor general in Texas, petitioned the Montana Supreme Court in November 2012, to regain his active status here as he prepared to join Fox’s staff in Montana in January 2013.
The plaintiffs argued that by Election Day 2014, VanDyke will have been admitted to actively practice law in Montana a total of 1,204 days, or 3.29 years. That falls 621 days short of the five years or 1,825 days required, they said.
In response, VanDyke’s lawyers said this challenge is “based on a strained interpretation” of the Montana Constitution and State Bar bylaws that were enacted years after the constitution was adopted in 1972.
They argued that VanDyke, a Harvard Law School graduate, has been a member of the bar in Montana since October 2005.
“Although he opted for inactive status from March 2006 to December 2012 while practicing law out of state, Mr. VanDyke has remained a dues-paying member of the State Bar of Montana in good standing for the past consecutive eight years, from Oct. 2005 to the present,” they wrote.
The two sides did not agree on when VanDyke became an inactive member of the Montana Bar, with those challenging his qualifications to run for justice putting the date at March 2007, while VanDyke said it was from March 2006.