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Black v. McKinnon: Montana Supreme Court race heats up
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Black v. McKinnon: Montana Supreme Court race heats up

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Voters will choose in November between re-electing Justice Laurie McKinnon to a second term on the Montana Supreme Court or replacing her with longtime civil attorney Mike Black.

Challenger's narrative

Black's campaign narrative suggests that McKinnon favors corporations over individual consumers. She “is clearly opposed to Montanans seeking public access to public land and water,” his campaign material says. Black argued McKinnon’s dissent in one case shows she doesn’t respect Montana law allowing for access to an abortion.

A page on his campaign website is devoted to summarizing and criticizing various McKinnon dissents. In his op-ed on Sept. 17, Black said McKinnon "has an agenda, working over and over against the fundamental rights guaranteed to Montanans by the Montana Constitution."

In response, McKinnon argues that those criticisms show Black is aligning himself with specific political interests and failing to uphold the principle of an independent judiciary. She said each court case involves complex issues that can’t be reduced to mere pro-public access or anti-public access positions, for instance.

She gave the example of the Lucky Minerals case, on which the court heard oral arguments on Sept. 30. The Canadian mining firm is seeking to clear the way for exploratory drilling north of Yellowstone National Park. It is appealing a district court finding that the company’s drilling license was granted in error.

“You just can’t go into those very important cases with a position or supporting a particular interest,” she said. “Now clearly the Constitution provides for a clean and healthful environment, as a constitutional right. But if it were that simple, they wouldn’t be arguing this case in front of the Supreme Court.”

McKinnon also said that the case Black points to when asserting she doesn't respect Montana law on abortion access was only in its preliminary stages when the court was asked to weigh in. The dissent by Justice Jim Rice that she joined — and the court's opinion — pertained to legal procedure and not the merits of the case, she said. The case was decided 4-3.

In return, Black counters that the underlying law relevant to the case was settled and the dissenting opinion was legally incorrect because of it. In other words, McKinnon and the two other dissenting justices should have recognized that the case involved an irreparable injury and warranted a preliminary injunction, Black argues. Rice’s dissenting opinion found no evidence had been introduced yet in the case and a preliminary injunction was not appropriate at that stage.

Dark money

State supreme court elections across the country have grown more expensive in recent years due to spending from third-party groups.

Black said he expects an influx of such spending in his race.

“We know the dark money interests are coming and they’re not going to support me,” he said. “They don’t like me. They never have.”

In 2012, Montana Growth Network spent $121,065 attacking public defender Ed Sheehy and supporting McKinnon, his opponent. It broke state law in the process and later agreed to a fine and settlement after an investigation by the Commissioner of Political Practices. 

Black says McKinnon should have sued Montana Growth Network to disclose its donors, noting that one later appeared before her in court in a stream access case involving the Ruby River. In his op-ed, he accused her of "hoping to hit a home run for her wealthy patrons."

During the 2012 race, McKinnon issued a news release denouncing the group's attack ads against Sheehy. Sheehy had called upon her to do so. “Mud-slinging diminishes the prestige of our highest court," she wrote. "I ask for your vote based on who I am, not on negative portrayals of my opponent.”

Black said that’s insufficient.

“It’s important to the integrity of our elections to fight back, and not just say, ‘Oh, I’m against dark money.’ No, you’ve got to fight back,” he said. “Because their influence is so pernicious that you just can’t let them, I mean — you can get drowned out by them.”

McKinnon said in a debate with Black, hosted by Montana Television Network’s Mike Dennison, that she wasn’t obligated to take on the group that spent on her behalf.

Black had zeroed in on the Ruby River case, in which media mogul James Cox Kennedy sought to restrict stream access near his Madison County property. The court upheld the public access at issue in that case. McKinnon was one of two justices to dissent. 

“I had no association with the dark money, no control over the independent expenditures, and I don’t believe that I was elected through Montana Growth Network’s injection of money into that race,” she said. “I believe that the people of Montana understood who was the most qualified candidate. So I don’t have to answer to why I didn’t look up who was supporting Montana Growth Network at the time the (stream access case) was made. I had no idea.”

As with this year, McKinnon was the only Supreme Court candidate in 2012 with judicial experience. 

In April, before the primary, five retired Montana Supreme Court justices wrote an op-ed endorsing Black and noting their concerns that partisanship and dark money “played a key role” in McKinnon’s election.

Like Black, McKinnon makes her own argument about protecting the image of the court.

“We have got to preserve the integrity of that court. And when you have retired justices suggesting that my vote has been bought — and they know it hasn’t. They’ve been in my position. They know it hasn’t,” she said.

Support

In addition to the endorsement from the five retired justices, Black has endorsements from Planned Parenthood of Montana, Montana Conservation Voters, Montana Sportsmen Alliance, Montana AFL-CIO, Montana Federation of Public Employees and the Montana Board of Smart Transportation union. 

Asked about endorsements, McKinnon said she didn't want endorsements from any groups that had an agenda, calling it problematic for the independence of the judiciary

Among McKinnon's donors are Republican gubernatorial candidate Greg Gianforte and his wife Susan, Republican Senate Majority Leader Fred Thomas, retired U.S. District Judge Richard Cebull, Missoula District Judge John Larson and retired District Judge Nels Swandal, who served as a Republican state senator after leaving the bench. 

"I have a judicial philosophy which, if they support that, then they contribute,” McKinnon said. 

McKinnon noted she has voted with the court's majority 94% of the time, over the course of 1,965 opinions she’s participated in during her tenure. 

“So I don’t think you can characterize me as conservative unless you want to characterize the court as a whole as conservative,” she said.

When she hasn't joined with the majority, she authored a dissent 75% of the time and joined a dissent 25% of the time. 

Both candidates talked about the importance of keeping partisan politics out of the courts. 

Commissioner of Political Practices records show no records of McKinnon donating to any campaigns other than her own. McKinnon said she has never donated to a campaign — partisan or judicial.

Black has given $14,410 to Democratic candidates, according to FollowTheMoney.org. The database shows no Black donations to Republican candidates, but Commissioner of Political Practices records show Black has given to at least one Republican candidate — $160 to state senate candidate Tammi Fisher in 2014.

Black acknowledged he has donated to more Democratic candidates than Republicans over the years. He said he donates to people he knows who solicit contributions. He added he'd given more money in total to the University of Montana, his alma mater, than he had to electoral candidates. 

“On some level as human beings, we should be involved in civic discourse," Black said. "We should be supporting the universities we go to. We should be supporting people we know who are running for public office, because it’s hard. And if you think they’re good people, support them. This is not a partisan race, and I am not partisan.” 

McKinnon said Black's history of donations is a problem. She said it detracts from the appearance of an impartial court. 

"People are not dumb," she said. "They do their research, especially when they are appearing in front of the Supreme Court. They do look at backgrounds."

The current Montana Supreme Court has justices who previously served in partisan electoral office under both major political parties. 

Reversing course

Black filed as a candidate in the race in June 2019 after McKinnon announced she would not seek another term on the court. 

But in November, she changed course, saying colleagues at a judicial conference had urged her to reconsider, and that fearing a negative campaign or an election loss was not a good reason to quit public service. 

Black said he sees the situation as McKinnon challenging him, and not the other way around, due to her initial decision not to run. 

Black has focused on McKinnon's change of mind, pressing her to state who exactly persuaded her to reconsider.

McKinnon said it was other judges, including Chief Judge of the D.C. Court of Appeals Anna Blackburne-Rigsby, Fourth U.S. Circuit Court of Appeals Judge Al Diaz and retired Justice Mark Martin of the Supreme Court of North Carolina. 

Black has focused on a home in North Carolina that McKinnon bought in the summer of 2019 as an indicator she was leaving Montana "for greener pastures."

McKinnon said she and her husband have owned a North Carolina vacation home for years and that they'd sold their first one and used the proceeds to purchase a different one during the summer of 2019.  

Primary

In the June primary McKinnon received 169,546 votes, or 53% of the total. Black received 94,445 votes, or 30%. Missoula attorney Mars Scott received 54,036 votes, or 17%.

No sitting Montana Supreme Court justice has lost to a challenger since 1996. In that year Justice Charles Erdmann lost to challenger Jim Regnier. Erdmann had been appointed to the bench the year before. 

The Montana Supreme Court has seven justices. They serve eight-year terms. 

Election Day is Nov. 3. Election officials have advised voters voting by mail to return their ballots early to ensure they are counted.

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