Five people who were delegates to the 1972 Montana Constitutional Convention filed a lawsuit Friday challenging the state Supreme Court candidacy of Lawrence J.C. VanDyke.
The lawsuit, filed Friday in District Court in Helena, argues that VanDyke is not qualified to run for the high court because he has not been admitted to practice law in Montana for as long as required by the Montana Constitution.
The lawsuit also names as defendants the state of Montana and Secretary of State Linda McCulloch, who supervises statewide elections. It was filed by Peter Meloy, of Helena, and Gene Jarussi, of Billings, on behalf of Louise Cross, Wade Dahood, Jean Bowman, Michael McKeon and Arlyne Reichert, all of whom were delegates to the constitutional convention.
VanDyke, the solicitor general for Attorney General Tim Fox, a Republican, said the lawsuit was politically motivated.
Although judicial races are nonpartisan, VanDyke’s opponent, incumbent Justice Mike Wheat, is a former Democratic state senator who ran unsuccessfully in the Democratic primary in the race for Montana attorney general in 2008.
VanDyke said the lawsuit is not so much about him, “it’s more about protecting their candidate.”
“In a way, I think it’s a bit of a compliment that they would go to so much trouble to keep me off the ballot,” he said.
The lawsuit cites a provision of the Montana Constitution that says that to be eligible for the state Supreme Court or a district court judgeship, candidates must have been “admitted to the practice of law in Montana for at least five years prior to the date of appointment or election.”
To practice law in Montana, the suit continues, an attorney has to be an active member of the State Bar of Montana licensed to practice in the state. VanDyke was admitted to the state bar on Oct. 17, 2005, the suit says, then became an inactive member on March 6, 2007.
He applied for reinstatement to the bar on Nov. 28, 2012, when he still lived in Texas, where he was a deputy solicitor general, and he was not reinstated to active status in the Montana bar until Dec. 5, 2012, the lawsuit says.
As of Election Day, next Nov. 4, he will have been admitted to practice law in Montana for only 1,204 days, or 3.29 years, the lawsuit says, 621 days short of the required five years.
The plaintiffs ask to have VanDyke’s name stricken from the ballot, or, if it is too late to do so and he wins election, that he be barred from taking office.
VanDyke said he thinks there are “some serious problems with this lawsuit” because it delves into the various classes of membership in the Montana bar in an attempt to demonstrate that he is ineligible.
The constitutional requirement seeks only to ensure that candidates are experienced in the practice of law, he said. An attorney could live out of state for 20 years, pay full dues and remain an active member of the Montana bar and never practice law in the state but still be eligible to run for the state high court, he said.
He, on the other hand, has more experience with constitutional and appellate law than many practicing attorneys in Montana, he said.
Jarussi said none of that matters. VanDyke may have practiced law in Texas, Jarussi said, “but he wasn’t active in Montana.”
He said VanDyke choose to become an inactive member of the Montana bar in 2007, “and that has consequences.”
He can talk about this being a partisan issue, Jarussi said, but “I can’t do anything to make him qualified. … You can throw rocks about Wheat all you want, but he’s qualified. This guy is not.”
