. L.J. EO , 95 G at 1105. at 1105. Id. . Thanks to Dmitry Bam, Jeanto Dmitry Bam, . Thanks Vol. 16, No. 1 (Spring 2015) (Spring 2015) No. 1 Vol. 16, ROCESS Despite reform efforts that Despite reform Economic Crisis and the Rise of Judicial Rise of Judicial the Crisis and Economic . 1061 (2010). (2010). . 1061 1 P EV .L.R NTRODUCTION 2 (as Federal Election Commission Citizens United v. ARV I. I RACTICE AND P
, 123 H , 123
PPELLATE A New Challenges to States’ Judicial to States’ Selection New Challenges Roy A. Schotland, See Recent deregulation of campaigns and elections through elections through and of campaigns Recent deregulation Judicial elections are approaching their second century in in century their second are approaching Judicial elections OURNAL OF J HE T 2. emerged in the twentieth century and continue today, states that today, continue century and in the twentieth emerged selection reject alternative hold judicial elections reliably state judges in the United Nearly ninety percent of methods. to election. States are subject successful constitutional challenges now has reached judicial now has reached judicial challenges successful constitutional and ethical the legal of and elections. Many campaigns and finance, once a speech constraints on judicial campaign office distinct the respecting of electoral exceptionalism realm University of Montana* Associate Professor of Law, as School of Law. The author served of Montana in counsel for the State the United States, and they are not going away anytime soon. anytime and they are not going away the United States, the early nineteenth in Democracy Jacksonian After the rise of independence calls for increased judicial century, and popular the election states hard-wired most the political branches, from of judges into state constitutions. A PAST AND FUTURE OF JUDICIAL ELECTIONS: ELECTIONS: OF JUDICIAL AND FUTURE A PAST OF MONTANATHE CASE Anthony Johnstone* 1077 (2007). Schotland reports judges (appellate and 1077 (2007). Schotland that general-jurisdiction all state “[o]f contestable elections type of election. Facing in some . face the voters trial courts), 89% . . . . of our trial judges; facing only retention are 60% . . . of our appellate judges and 80% . trial judges.” 9% of and of appellate 26% elections are another American Tradition Partnership v. Bullock amicus) and American Tradition Partnership v. James Nelson, James Sample and Jeff Wiltse for Greg Munro, Howell, Bowman, Larry for helpful researchAnne Sherwood Rogala and insightful comments, to Zachary support.. my family for their assistance, to and Shugerman, Handelsman financial crises, see Jed For a recent account of this history emphasizing the role of post-Jacksonian 1. Elections and Judicial Review Judicial Elections and
EW EW N (May era. HE ROCESS P Citizens Citizens :T AGAZINE ENCH M B RACTICE ANDRACTICE Citizens United P EGISLATURES L test state courts with test state courts 4 ANKROLLING THE TATE PPELLATE ., B , S A 2013–2014 at 1 (2015) (“Over the last decade and a half, a last decade and the (“Over (2015) at 1 2013–2014 REYTAK ET AL OURNAL OF OURNAL
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HE These Unified States
LECTIONS COTT E Citizens United v. F.E.C., 558 U.S. 310 (2010) (holding that the U.S. Citizens United v. F.E.C., 558 S 3 UDICIAL see also J Karl Kurtz, era, prompting a flood of attack ads financed by of attack ads a flood era, prompting See generally See Meanwhile, state courts in general, and state supreme state supreme general, and courts in state Meanwhile, This is the new normal in judicial elections. It follows the It follows the elections. in judicial This is the new normal OLITICS OF P 3. expenditures speech by banning corporate federal government may not suppress political to identify themselves in materials both require donors for electioneering, but that it may excess of established in and to disclose campaign-related expenditures that they underwrite thresholds); United fully not of which are some independent expenditures, disclosed. 48 T 48 political- their alongside these challenges fell to judge, of a protect a exceptions, which remaining The analogues. campaign are violations, due process from judicial impartiality core of These judicial campaigns. modern to most inconsequential of the the political tactics learned quickly campaigns important increasingly players in remain courts in particular, One-party concerning state law and politics. polarized debates by encouraged branches, executive and state legislatures legislative margins, historically large contentious laws and constitutional questions. In states where a questions. In states and constitutional contentious laws the political compromise, once encouraged balance of power moneyed The same resort to litigation. losing party now may over state loom also agenda legislative interests that help set the must decide the high-stakes courts. Those judges and justices that follow, knowing their and politically charged cases their next election campaigns. decisions may set the course for up neatly with moneyed judge who does not line A moderate defeat. Case by risks electoral interests on one side or the other the polarization of the by term, case, issue by issue, term political branches runs to the courts. the in political elections of new normal Judicial candidates seeking to interpret the laws are nearly as the laws are nearly to interpret seeking Judicial candidates issues as are the legislative free to speak on legal and political non- Even in traditionally laws. candidates seeking to write the 2013) (“For the first time in more than 50 years, one party controls both chambers of the time in more one than 50 years, 2013) (“For the first in states, Democrats legislature and the in 23 in 37 states—Republicans governor's’ office 14.”). state Supreme Court elections have been transformed into politicizedstate Supreme Court elections have been transformed and costly contests, to their liking.”). dominated by special interests seeking to shape courts 4.
Citizens Citizens , followed by Citizens United 49
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for elected judges. LECTIONS IN LECTIONS E . But that principled stand was short-lived, drawing a. But that principled stand was This article searches for lessons from Montana’s experience This article searches for lessons Montana’s 2014 election for one of two contested seats on election for one of two contested Montana’s 2014 UDICIAL a close analysis of an election held in its aftermath: the hard- in its aftermath: a close analysis of an election held Justice Mike Wheat between incumbent fought 2014 campaign Part V suggests some and challenger Lawrence VanDyke. of conclusions about the meaning preliminary United Despite state Court. the Supreme from rebuke quick and brief influence on judicial outside concerns about financial and and a half, and their a century that date back campaigns continued relevance to judicial politics today, the Supreme of implications with the Court so far has refused to grapple Citizens United Part II considers judicial elections. of American for the future and history of reforms in the origin of judicial elections substantial worries about both by Montana, which is marked courts and by several state outside political intervention in III reviews the practice responses to it. Part innovative of judicial selection model established by Montana’s reformed the Montana IV examines over the past four decades. Part with Citizens United Court’s engagement Supreme J free to be as may parties political elections, judicial partisan political to endorse as they are judicial candidates endorse to donations limit laws Campaign-contribution candidates. but face renewed judicial or political, campaigns, candidates’ free to spend unions are as and Corporations challenges. fundsmember and of shareholder amounts on unlimited as they just campaigns, in judicial independent expenditures are free to choose their Contributors in political campaigns. may candidate of disclosure by selecting among preferred levels Careful transparent vehicles. or less super PACs, campaigns, candidate enjoy significant influence in contributors may a triggering either or political—without campaigns—judicial to identify or even the obligation disqualifying conflict themselves. In 2011, new normal. this court exemplifies the state supreme stand against this a lonely Court took the Montana Supreme to distinguish Montana’s state of affairs by attempting the presidential from including judicial campaigns, campaigns, decision in Court’s addressed by the Supreme campaign
5 L. HE :T OCKY OCKY R ATER ROCESS P &W YNCHING L AND LECTIONS E USTICE IN THE J RDERLY O RACTICE ANDRACTICE P EFORMS OPULAR Miners, Vigilantes, & Cattlemen: Cattlemen: Miners, Vigilantes, & UDICIAL ECENT R :P J S ’ ,AD PPELLATE ONTANA A LLEN M A LECTION ONTANA -E M Andrew P. Morriss, Morriss, P. see Andrew REDERICK , https://dojmt.gov/highwaypatrol/history-of-the-montana- OURNAL OF OURNAL
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(2004). For a colorful contemporary account of the vigilantes, see account a colorful contemporary (2004). For (indicating that the numbers were added to the patch in 1956). 1956). patch in to the were added (indicating that the numbers ISTORY OF ISTORY OF , T AND See generally / (2015) IMSDALE IGILANTES II. A H (1953). Even today, the Montana Highway Patrol patch features theHighway the Montana (1953). today, Even V J. D A. The Territorial Origins of Montana’s Elected Judiciary A. The Territorial Origins of Montana’s Twenty-five years of territorial status forged Montana’s Twenty-five years of territorial Judicial selection in Montana is both distinct from and from in Montana is both distinct Judicial selection . 581 (1998). . 581 (1998). ONTANA OUNTAINS EV HOMAS vigilantes’ mysterious warning “3-7-77,” in “a tribute to the Vigilantes, the first law enforcement group in the Montana Territory.” Montana Department of Justice, History of Patrol the Montana Highway highway-patrol , 33 L in the Private Provision of Law, 33 Rider Problems Free Overcoming M M Territorial justices, appointed by the President, “owed allegiance President, by the Territorial justices, appointed at the sameyet parties, and to political to the federal government from a public-choice perspective, 5. For a sympathetic overview of customary legal institutions in the American West attitude toward its courts. In the gold rush that opened its courts. In attitude toward courts and the miners’ Montana’s territorial history, customary justice. and criminal civil storied vigilantes dispensed 50 T 50 the in elections for judicial developments legal other recent and respond. how states might states, and 150- practice across the states. Montana’s its representative of territorial days, when outside judges in began judiciary year-old among D.C., produced resentment appointed in Washington, the new as these territorial judges helped Montanans even first constitution toward statehood. The state’s territory develop for judicial by providing popular resentment responded to this adopted typical Progressive Era, the state elections. In the only but election reforms, nonpartisan and campaign-finance corruption. By the second of corporate after exceptional agonies other had joined many half of the twentieth century, Montana elections, though it did so states in reconsidering judicial deliberation through of popular through the extraordinary means in short, is a microcosm a constitutional convention. Montana, American states. of judicial election reform in the T R
, :A ONTANA M ONTANA , M ANG L. L . 27, 39–40 (2011). 39–40 (2011). . 27, OVERNMENT IN EV G ILLIAM .L.R &W ONT On the eve of the second On the eve of the second 11 OEDER Despite the quality of some of some quality Despite the , 72 M OLITICS AND 9 P Yet territorial justices were Yet territorial justices were 51 8 B. R ICHARD
ONTANA ERRITORIAL 110 (1991). 110 (1991). ,R M
,T
ALONE note 6, at 231. 6, at 231. note 6,note omitted). (quotations 218 at PENCE ENTURIES C P. M Montanans complained about “‘breaking in’ about Montanans complained supra supra supra C. S 10 , , WO LECTIONS IN LECTIONS T E These tensions played out when Territorial Secretary Secretary when Territorial out tensions played These at 43–45. 43–45. at ICHAEL 7 6 LARK PENCE PENCE Id. [t]he President has nominated another carpetbagger for another President has nominated [t]he Associate of Montana. Court Justice of the Supreme laws Seventy-fivethousand people in the Territory to make Once the territorial government settled in, “Montana gained settled in, “Montana government Once the territorial ISTORY OF UDICIAL 9. S 9. 10. the Judicial Article of Montana’s Constitution ‘Reforming’ About or Continuity? Thinking Opting for Change P. Morriss, Andrew 11. S 11. 1864–89 at 212 (1975). (1975). at 212 1864–89 7. territorial justices, residents chafed at their lack of democratic lack chafed at their residents justices, territorial legitimacy. Eastern have known nothing of who States Judges from pilgrim our people, laws and customs.” in 1884, one newspaper convention Montana constitutional that complaint popular the editorial captured C 6. “[h]ampered . . . by an unfamiliarity with mining law, and by law, and mining with . . . by an unfamiliarity “[h]ampered the cleavages and local political from stemming resentment dislike of ‘foreign’ officials.” Thomas Meagher, a Union Democrat serving as acting governor, acting governor, serving as a Union Democrat Meagher, Thomas convention a constitutional 1866 with for statehood in pushed a two-member When sessions. extraordinary legislative and two declared the Republicans, both territorial court, of the majority the state sessions null and void, acts of the extraordinary Congress those justices to the wilderness. legislature redistricted in the of all laws enacted a rare nullification responded with the clear its “irritation toward To make sessions. extraordinary the province,” western of this ill-mannered populace Democratic judicial also revoked the legislature’s Republican Congress salaries by and raised the territorial judges’ districting power $1000. most efficient court systemsrecognition as having one of the western territories.” among J the territory within pressures to insensitive not were time itself.” H 8. M 8.
ROCESS P 12 The 1889 14 18 RACTICE ANDRACTICE P PPELLATE A , for an excerpt from the text of the address , for an excerpt was shorter, as the Constitution Constitution was shorter, as the 16 note 8, at 111. note 8, at 111. supra supra , The convention’s address to voters The convention’s 13 OURNAL OF OURNAL
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. of 1884 (proposed), Memorial. (proposed), 1884 . of art. 75. 1889, . of 15 ” for six-year terms, and would be “required to and would be ” for six-year terms, OEDER ONST ONST ,R Still, the judicial provisions retained primary primary retained provisions judicial Still, the .C .C 17 text accompanying note 14, , Address 3. , Address 3. (emphasis in original). ALONE ONT ONT Id. Id. See When Montana finally attained statehood in 1889, the When Montana finally attained The present system is manifestly wrong again; by it the is The present system manifestlyby it the wrong again; people have voice in selecting the judges. Theyno are sent the off East, probablyto us from far in deference to the traditional idea that it was from all thence the of “wise litigation is such that, men” came. . . . The character of our however learned in the law our eastern judge may be, he embarrassed in his new field. much will find himself for themselves, and a Hoosier sent out sent a Hoosier and to tell Indiana from for themselves, long! how Lord; oh long, have done. How us what we the unsuccessful Constitution, 1884 The proposed Id. 14. 18. Constitution contained several stylistic and procedural changes, and procedural changes, contained several stylistic Constitution M 12. convention’s address to voters provisions to the in all its fundamental proposed was similar by a large been ratified of 1884, which had Constitution majority. in the recommended as the only article specifically importance is better system in this the judiciary we think “yet address: people.” of our interests wants and suited to the Under the proposed state constitution, justices would be “elected Under the proposed state constitution, by the people to years prior at least two or Territory in the State have resided their election.” 52 T 52 that secured statehood, Constitution of the 1889 predecessor to its memorial In of outside influence. this suspicion reflected policy to redress “the sought statehood the convention Congress, rule over us strangers to prevailed of sending which has so long offices.” and fill our lines more Notably, the address devoted detailed the grievances. and than it devoted to the legislative to the Judicial Department judicial system combined. The proposed executive branches justices: distrust of outsider territorial responded to popular 13. M 13. 15. 16. accompanying the judicial article of the proposed 1884 constitution. 1884 article of the proposed judicial accompanying the M 17.
, : 20 INGS . 299 UTTE K B State ex EV Caperton , Howell, See Howell, OPPER The Origins of The Origins .L.R rev’d sub nom. sub nom. rev’d C ONT ATTLE FOR B HE . 1, 5 (2008) (explaining 5 (2008) (explaining . 1, ,T , 73 M , 73 Citizens United AR OF THE EV W HE .L.R ALONE note 8, at 201–31. Scholars have Scholars have note 8, at 201–31. ,T ONT The Montana Supreme The Montana Supreme 271 P.3d 1, 8 (2011), 8 (2011), 1, P.3d 271 P. M . 25 (2012); Jeff Wiltse, 21 , 1864–1906 story canonical The (1995). supra EV , , 69 M , 69 ICHAEL LASSCOCK .L.R ANG 53 RONTIER F ONT &L , ___ U.S. ___, 132 S. Ct. 2490 (2012). (2012). Ct. 2490 S. 132 U.S. ___, , ___ , 73 M
ONTANA OEDER Once Upon a Time in the West, in a Time Upon Once ORTHERN M N Judicial Elections Today Elections Today Judicial ,R
“Purely the Creature of the Inventive Genius of the Court”: Some of those out before rough contests played Some ALONE 22 and the Creation and Evolution of the Montana Supreme Court’s Unique Court’s Unique Supreme Evolution of the Montana and the Creation and LECTIONS IN LECTIONS OLITICS ON THE E 19 , art. VIII,, art. §§ 6–7, 10. B. The Copper Kings and Their Influence on Montana’s Their Influence Kings and B. The Copper &P W. Tradition P’ship, Inc. v. Attorney General v. Inc. W. Tradition P’ship, Id. With statehood, Montana’s judiciary transitioned from judiciary transitioned statehood, Montana’s With engaged in a decades- personalities These larger-than-life note 20; Larry Howell, note 20; Larry Howell, INING UDICIAL and the War of the Copper Kings Copper and the War of the recently reconsidered the consequences of the era for current legal questions. supra Montana’s Corrupt Practices Act: A More Complete History Complete A More Practices Act: Montana’s Corrupt that the War of the Copper Kings occurred “at a time when the spread of electricity and of a time when the spread occurred “at Kings Copper that the War of the world’s most important natural resources”). the of copper one telephones made 21. C.For the classic account, see B. G (2012). 22. Am. Tradition P’ship, Inc. v. Bullock Inc.Tradition P’ship, Am. Court once recounted the broad history of “[t]hose tumultuous history of “[t]hoseCourt once recounted the broad tumultuous for political and economic contests years . . . marked by rough between Butte, center of the mining in primarily domination trusts or by foreign and industrial enterprises controlled mining corporations.” is M A detailed contemporary telling (1935). 19. federal appointees unfamiliar with mining law to elected law to elected with mining unfamiliar federal appointees and with the corporate overreach familiar officials all too Copper of the to be known as the War came corruption that of with outside investment industry matured Kings. The mining 1884 and 1889 so-called Copper Kings: the capital from the United President (and disgraced Convention Constitutional the giant A. Clark; the head of William States Senator) and the Marcus Daly; Mining Company Anaconda Copper Augustus Heinze. aggressive young industrialist F. “richest hill on earth,” of Butte’s for domination long struggle for control of the state’s and incidental to that struggle, its courts. government—including rel. Whiteside Writ ofand Controversial Supervisory Control J for requirements and residency terms the elected retained but justices. M is summarized in M 20. Larry Howell, Howell, Larry 20.
ROCESS P 28 . amend. XVII XVII . amend. ONST RACTICE ANDRACTICE P See U.S. C Clark won his 1899 United his 1899 United Clark won Montana Attorney General Montana Attorney 23 24 PPELLATE A note 8, at 213–14. note 8, at 213–14. They only reluctantly testified to the reluctantly testified to They only supra 27 , OURNAL OF OURNAL
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HE &L In re Wellcome, 58 P. 45, 45, 47 (1899). Election of United States(1899). 47 45, In re Wellcome, 58 P. 45,
The justices “did not pursue any official legal legal official pursue any not The justices “did 26 note 20, at 41. 20, at 41. note See OEDER , 58 P. at 49. P. at , 58 ,R supra 25 at 40. at at 42–44. at ALONE . at 218–21. The bribery came before the Montana Supreme Court in disbarment bribery came before the The . at 218–21. Id Wellcome Id. Id. Heinze waged a more focused battle, largely in the courts, focused battle, Heinze waged a more The corruption didn’t stop there: Once the court accepted accepted didn’t stop there: Once the court The corruption Clark and Daly feuded mainly in the political arena. In the in the political Daly feuded mainly Clark and attempted bribery under subpoena from the Senate Committee bribery under subpoena from attempted investigation of Clark’s its on Privileges and Elections in in support of the evidence election, providing important notseat Senator Clark. to recommendation Committee’s to extend his mining holdings in Butte and defend them against holdings in Butte to extend his mining Copper Company, industry consolidation by the Amalgamated M 23. the case, Clark supporters approached all three justices with the case, Clark supporters approached to an offer of a ex parte conversations overtures ranging from $100,000 bribe. to influence them, attempting the persons against recourse would reflect poorly on the deciding that exposing the effort reputation of the Court.” 54 T 54 for judicial a backdrop provide and judges, state elected in Montana today. elections Anaconda to bested Daly’s Helena Fight,” Clark’s 1894 “Capital capitol. designation of state win the after taking office resigned shortly but campaign, States Senate bribed that he had found evidence committee when a Senate scale. on a massive state legislators C. B. Nolan then explained that the local grand jury would not explained that the local grand C. B. Nolan then they felt that said county “the people of because indict Clark on account to the said Clark an obligation due were discharging of Lewis and rendered to the said county of the assistance as the state of the city of Helena selection Clarke in the capital.” 24. Senators by popular vote did not become law until 1913. proceedings against Clark’s lawyer and bribery bagman John B. Wellcome, during which Wellcome, during which bagman John B. proceedings against Clark’s lawyer and bribery Wellcome had the Court initiallycrimes charged against dismissed the petition because the not been prosecuted. (providing that “[t]he Senate of the United States shall be composed of two Senators from Senators from of two be composed shall United States Senate of the (providing that “[t]he thereof”). the people by each State, elected 25. Howell, 26. 27. 28.
29 and 30 199 (1959). (1959). 199 AND L Indeed, “in a burlesque of Indeed, “in a burlesque Governor Joseph Toole, Governor Joseph Toole, 33 36 55 NCOMMON note 8, at 226. 8, at 226. note U Amalgamated responded in kind, Amalgamated N 35 supra :A , 34
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note 21, at 173 (reporting that Judge Clancy then announced he that Judgeannounced he Clancy then note 21, at 173 (reporting note 21, at 142–43. 21, at 142–43. note ,M note 20, at 34–41. note For their four-year terms, “[w]ith his allies sitting terms, “[w]ith his allies sitting four-year For their OEDER supra OOLE supra 32 , ,R , , supra note 21, at 140, 142 (1995) (explaining that even against the liti- 142 (1995) (explaining , supra note 21, at 140, T supra supra , Morse v. Montana Ore-Purchasing Co., 105 F. 337, 348 (D. Mont. 1900) Mont. 1900) (D. 348 337, F. Co., 105 Ore-Purchasing v. Montana , Morse LECTIONS IN LECTIONS OSS E where he could more easily influence the judges. In the judges. In easily influence he could more where at 172–73. 172–73. at ALONE ALONE ALONE ALONE 31 Id. See, e.g. After years of delaying cases to the strategic advantage of After years of delaying cases to UDICIAL would “break away to the woods tomorrow” for hunting). hunting). for woods tomorrow” away to the “break would 36. 32. Howell, Howell, 32. gious standards of early American mining, “[w]hat happened at Butte . . . seemed to be in a . seemed to be . . happened at Butte gious standards of early American mining, “[w]hat class by itself,” a “carnival of litigation” costing thousands tens of millions of jobs and of rep- a who earned part because Heinze, in large dollars at the turn of the twentieth century, of thirty-seven attorneys). force a legal miner,” employed utation as a “court-house 30. M 33. shutting down its Montana operations and throwing more than and throwing more shutting down its Montana operations 15,000 employees out of work. eventually of Clark and Heinze, elected in 1900 with the support a special He called demand. to Amalgamated’s capitulated 29. M 29. through a series of corporate maneuverings turned to state turned maneuverings a series of corporate through court, Clancy and William of the re-election his support for 1900, with DistrictSecond Judicial Harney for the of Edward the election Heinze with jurisdiction over Butte, trial court Court, the state did just that. to two devastating blows Heinze, Judge Clancy dealt ownership of awarding on October 22, 1903: first, Amalgamated from Amalgamated Healy mine the strategically crucial Minnie holding from Amalgamated the to Heinze; and second, enjoining its Montana subsidiaries. J in 1889. interests Anaconda Daly’s purchased had which court, in federal results as a defendant mixed Heinze met of the titans easily drive Heinze could on the local courts, that kept vexatious litigation absurd lengths” of Standard Oil to Oil by Standard formed company holding Amalgamated—a ore literally, mined while Heinze, sometimes officers—at bay feet. under the company’s out from with Clancy found in Heinze’s favor William judicial dignity, monotonous regularity.” 34. K.R 34. 35. M 35. (“[U]pon the ground that there was undue influence exerted as to the jury by the jury by to the as influence exerted undue was that there the ground (“[U]pon the court will grant a objectionable publications [by the anti-Amalgamatedpress], Helena new trial.”). M 31.
38 , 72 ROCESS P Montana Judicial Montana Judicial RACTICE ANDRACTICE P 37 , http://courts.mt.gov/supreme/ In 1909 the legislature . § 3-1-804(1) (2015). 3-1-804(1) . § 42 PPELLATE Chief Justice Brantly won his NN A A 43 note, 8 at 229. at 229. note, 8 note 8, at 229. ODE .C W. William Leaphart, First Right of Recusal supra supra , , ONT OURNAL OF OURNAL
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see generally see During the politically tumultuous years in During the politically tumultuous Thus, Brantly was re-elected and Heinze’s was re-elected and Heinze’s Thus, Brantly note 20, at 16 n.104. 16 20, at note 41 39 OEDER OEDER supra ,R ,R supra . 287, 287–89 (2011). A one-substitution variation of the law, still calledone-substitution the A (2011). 287–89 287, . 160 ch. 113 11th Leg. Assembly (Mont. 1909); see also 1909); Assembly (Mont. Leg. 11th 160 ch. 113 EV An Act to Provide for Non-Partisan Nominations for Judicial Offices, 1909 at 177–79; ALONE ALONE AWS Brief History of the Montana Judicial Branch 40 Id. 1895 Mont. Pol. Code §§ 1310–1320 (addressing methods of nomination, (addressing 1310–1320 §§ Pol. Code See 1895 Mont. See See Wiltse, Progressive opposition to the Company solidified with the solidified with to the Company Progressive opposition Heinze turned his attention to the Montana Supreme Court Supreme to the Montana his attention Heinze turned .L .L.R ONT ONT “Clancy Law,” remains in effect, adverse party “[e]ach is entitled providing that to one M district judge.” substitution of a Branch, history (characterizing the law as “a largely forgotten experiment in nonpartisan brief and Journal of Appellate on file with copy 2015; 18, judicial elections”) (accessed August Practice and Process). 38. M 38. enacted a short law that limited judicial candidates to to judicial candidates enacted a short law that limited exclusion of nominations by citizen petition to the nominations by party convention or primary. 37. consolidation of economic power in the Amalgamated, in the Amalgamated, power economic consolidation of interests of Clark’s mining its purchase by eventually completed included a constitutional in 1910. Sweeping political reforms in 1906 and referendum providing for initiative and amendment in 1912 including a Corrupt a series of electoral reforms Practices Act. judicial reform to attempted legislature Montana between, the Previously nominations. non-partisan elections by providing for through judges ran for office like other elected officials, by political parties. nominations 56 T 56 the allowing law Trials” “Fair an unprecedented to enact session district judge. of a substitution peremptory Dixon a bribe Joseph Congressman reportedly offering in 1904, Theodore Brantly. to Chief Justice an opponent to support “unimpeachable then showing was Brantly Chief Justice . . . corruptintegrity during his first as he completed times” on to become Montana’s longest-serving and would go term, Chief Justice. war when he Harney lost. Heinze “lost the Judges Clancy and in the courts,” and sold out to Amalgamated lost control of 1906. 40. M 40. 42. related subjects). and certification of nominees, 43. M 39. Howell, Howell, 39. 41. M
. ONT the the TLAS OF TLAS 47 ,A See 1919 M 1864 at 130, 134 at 130, 134 1864 ILSON at 208, 237, 261, 272 261, 237, at 208, at 108, 113 (reporting at 108, 113 (reporting INCE B. W S Id. See id. See AUL &P OLITICS P 48 ALDRON note 8, at 303. 8, at 303. note ONTANA W M 57 supra , LLIS ANG In 1935, at the height of the New Deal In 1935, at the TLAS OF
45 ONTANA A &L M N
389, ch. 182 (Mont. 24th Leg. Assembly, 1935). The Legisla- The Assembly, 1935). (Mont. 24th Leg. 389, ch. 182 note 44, at 229, 251, 261 (explaining that all three that all three justices were 251, 261 (explaining note 44, at 229, ,A
OEDER : (1978). 1889–1976 at 289 AWS ,R supra .L , ALDRON ONT W ALONE including a sweep of the supreme court, of the supreme a sweep including LECTIONS IN LECTIONS LECTIONS E E 46 ALDRON LLIS See M The War of the Copper Kings left lasting scars on the left lasting scars on the Kings of the Copper The War In 1911, a Republican candidate a Republican In 1911, judge Butte police for 44 86, ch. 31. 31. 86, ch. ONTANA AWS UDICIAL 47. W 47. 48. 1935 M 1936). and 1934, 1930, (discussing the elections of 1924, 1935 48. elected as Republicans in 1928, that two associate justices were elected as Democrats in as Democrats justices were elected two associate in 1928, that elected as Republicans Democrats in 1934). elected as were justice an associate chief justice and 1932, and that the Justice Albert this period, Associate H. In an example of the effect of partisanship during in F. Morris C. 1928, lost to Democrat in elected as a Republican Angstman, an incumbent as a and reelected was elected (who A. Matthews John won over incumbent 1934, and then election. nonpartisan 1936 in the 1930) and Democrat in 1924 (1958). When he ran as a Republican in 1904, Brantly alone garnered 30,956 votes in a votes in 30,956 alone garnered Brantly in 1904, Republican ran as a he When (1958). race with little ballot perhaps due to the party labels. falloff, 65,765 total votes for governor and total votes for chief 63,026 justice). “The spectacular the general 1910 and one-time nonpartisan election of in the participation drop of voter decline of voter participation electionsin nonpartisan party labels after 1932 suggest that were important for many voters.” E L 44. E 44. M legislature brought non-partisan judicial elections back for good non-partisan judicial elections legislature brought reform. comprehensive with a more including its courts. in Montana, integrity of state government General Solicitor Roosevelt’s President Shortly after it ended, to litigation smoke-wars bringing the so-called worried about by forest and farmlands end the deadly pollution of a will be filed in noting that “[t]he suit smelter, Amalgamated’s the battleground between the territory which has heretofore been . . where open confessions and Heinze interests . Amalgamated J in 1910, held election non-partisan the first in reelection second a four- 12,493 votes in a plurality of by winning though only of ballot falloff a total of 31,960—a race that drew candidate the congressional votes cast for the 65,774 half from more than seat. and the state non-partisan election reform, challenged the to two-to-one voted Republican justices) court (all supreme the law’s title defects in to constitutional law due the invalidate and transition process. and the Democratic Party’s unprecedented dominance over state over dominance Party’s unprecedented and the Democratic politics, 45. 204 (1911). P. 115 O’Leary, Holliday v. 46. State ex rel. ture had by then expanded the Supreme Court from three to five seats. ture had by then expanded the Supreme
IR A ROCESS P ONTANA accelerated ,M 52 Legislative Council OPPER Going forward, Going 50 RACTICE ANDRACTICE ,C Report No. 6: Legislative 6: Report No. P In 1967 the new 53 , Mining and Scientific Press 92Mining and Scientific , The Montana Supreme The Montana Supreme NACONDA 55 , 246 F. Supp. 454 (1965). (1965). 454 Supp. F. , 246 PPELLATE :A 1 (1971) [hereinafter A n. 8,at 393–94. ARS W supra , This corporate domination lasted domination This corporate ANG MOKE 51 OURNAL OF OURNAL
,S J &L , 1890–1920 (2000). at 173
HE C. A New State Constitution ILLAN
OURTS note 21, at 210. 21, at 210. note OEDER M A mining trade publication observed at the time observed at the publication trade A mining C The Amalgamated and Mr. Heinze Mr. Amalgamated and The ,R AC 49 M supra , The resulting Legislative Council Report concluded The resulting Legislative Council ALONE AND THE 54 , (quoting ALONE ONALD See M See Herweg v. Thirty-Ninth Leg. Assembly Id. Reapportionment of the state legislature in 1965, ordered in of the state legislature Reapportionment ]. OLLUTION Council Report on the Montana Constitution on the Montana Council Report Report 54. (1967). 22 No. Rep. S. Mont. (1967); 17 No. Rep. H. Mont. Convention Commission, Montana Constitutional 55. 53. 52. in 1968 that just forty-eight percent of the sections in the 1889 in 1968 that just forty-eight percent “present a major did not that they in were adequate Constitution obstacle to effective government.” P the declining political influence of the Anaconda Company and Anaconda Company political influence of the the declining unions. its antagonists in the mining D 49. decades, until a mix of political and social changes in the 1960s 1960s in the of political and social changes mix decades, until a a new state constitution. and eventually reform, brought calls for revolution, the wake of the one-person one-vote if [the 1889 “to determine a report legislature commissioned needs of the the current is adequately serving Constitution] people.” In a series reform. constitutional have hastened Court itself may Constitution, of the 1972 to ratification up leading of decisions of the more some to revise several attempts the court voided 58 T 58 were lightly influence judicial even and political of of sales looked upon.” politics debauched, its a State has been judiciary of that “[t]he of mine owners while two parties obsessed, its people mired, of the acquirement laws to mining our awkward have twisted of property.” the destruction and territory Amalgamated’s successor the Anaconda Company “dominated “dominated the Anaconda Company successor Amalgamated’s any dominated single company like no other Montana after 1906 tiny Dupont the possible exception of the other state, with of Delaware.” satrapy 50. (Feb. 17, 1909)). (Feb. 17, 1909)). M 51.
. EV .L.R ONT , 71 M , 71 Professor Ellis Ellis Professor 56 59 note 55, at 39. at 55, note 60 . 1 (1967). . 1 (1967). supra , EV
ONTANA M .L.R The Constitutional Initiative inThe Montana
The Legislative Council stopped short of The Legislative Council stopped
ONT 59 The Role of the Montana Supreme Court in Constitutional Revision, Court Supreme Role of the Montana The The Blueprint’s primary focus was judicial was judicial focus The Blueprint’s primary , 29 M . 227, 229 (1974). (1974). 229 . 227, 58 EV LECTIONS IN LECTIONS E at 11. at .L.R 57 Id. Legislative Council Report Legislative Council The Council also indicated that the practice of judicial The Council also indicated that The judiciary, including judicial selection, emerged as a judicial selection, emerged The judiciary, including 1. A Call for a New Constitution Constitution 1. A Call for a New ONT UDICIAL 59. 57. Ellis Waldron, (2010). 325, 335–36 Ellis 57. 35 M criticizing judicial elections, but noted that the method of noted that the method criticizing judicial elections, but basic question,” and that the judicial selection presented “a by the American Missouri Plan had been recommended Bar Association, and the Judicature Society, the American National Municipal League. Johnstone, Anthony 56. elections in Montana resembled the policy of the Missouri Plan: Missouri of the the policy elections in Montana resembled and subsequent elections judges are appointed initially “many the judge should be whether of are essentially on the question usually are not to fill vacancies retained,” and “appointments administration and organization, particularly of the inferior and organization, particularly administration to judicial to enact alternatives courts. Yet it included an option in the time fit at some see elections, “[i]f the legislature should selection] or some merit [of the Missouri Plan future to adopt thereof.” variant J 1889 Constitution. of the provisions inflexible In a 1967 “Blueprint reformers. constitutional central concern of and William Professors David Mason for Modernization,” the state’s revision of a comprehensive Crowley proposed “designed the 1889 judicial article as criticizing judicial system, and inefficient buggy society . . . cumbersome, for a horse and expensive.” Waldron concluded at this time that the Montana Supreme Court Supreme that the Montana time concluded at this Waldron become to its willingness in ‘activist’ “notably had been notably revision, and of constitutional in the processes involved people and their the power of the in its view of ‘conservative’ basic constitutional to change representatives constituted rules.” 58. Judicial System—A Blueprint & William F. Crowley, Montana’s David R. Mason for Modernization 60.
64 :A ROCESS P This was, This ORKINGS OF A ONSTITUTION 61 C :W TATE S RACTICE ANDRACTICE ONTANA P 11 (1972). 11 Report No. 7: Constitutional 7: Report No. M ONTANA M HE PPELLATE EOPLE OF P A ,T As the Convention approached, the As the Convention approached, E THE A subcommittee of the Revision of the Revision A subcommittee NYDER Judicial elections played a more Judicial elections 66 S 67 note 44, at 289–304. 65 at 157 (noting that “[o]nlyat 157 of fifteen appointed seven ., W RITZ OURNAL OF OURNAL
J supra ,
&F HE ET AL , 159 (1983) 1977). 1889 to elections from judicial (counting
ILSON see alsosee id. LISON OPACH 9 (2001). 9 (2001). &W These elections often were competitive. The were competitive. elections often These .L M. E The subcommittee, in consultation with a Judicial in consultation The subcommittee, Twenty incumbent justices lost reelection bids. Twenty incumbent UIDE 62 68 63 G OVERNMENT at 8–9 (also indicating that the Commission included representatives appointed that the Commission at 8–9 (also indicating at 158 (counting judicial elections from 1889 to 1977). 1977). to judicial elections from 1889 (counting 158 at at 290–92; G ALDRON ARRY AMES J Id. Id. Id. Id. In a 1970 referendum, Montana voters called a Montana In a 1970 referendum, EFERENCE OPULAR 63. J 63. R 67. Reform Committee appointed by the Montana Bar Association, Association, Montana Bar by the Committee appointed Reform Blueprint, adding that also largely endorsed the Mason-Crowley P Legislative Council’s 1968 report was supplemented by a 1969 was supplemented Legislative Council’s 1968 report in-depth staff and by report, Revision Commission Constitution authorized Constitutional reports prepared by a legislatively Convention Commission. 1945 to 1967 to from noted five failed attempts Commission Missouri Plan in adopting the amendments ballot constitutional Montana. 61. W 62. Before 1972, one-third of supreme court justices were initially court justices were of supreme Before 1972, one-third went on to be one-third of those appointees appointed, but only term. elected for a full 60 T 60 persons.” informed with consultation without made was fifty- court justice winning a supreme total for average vote elections, and the period of partisan judicial two percent during judicial during the period of nonpartisan sixty-two percent elections. the court than the supreme of composition the role in significant Council suggested. Convention. Constitutional however, consistently true only for district court judges, and wascourt judges, for district only consistently true however, Indeed, from the court justices. case for supreme the less often in 1972, to its replacement the 1889 Constitution of adoption court justice were for supreme elections of sixty-eight sixty-four contested. 64. Provisions Proposed by Constitution Revision Subcommittees Constitution Revision by Provisions Proposed by the legislative, executive, and judicial branches). judicial and by the legislative, executive, Montana Constitutional Convention Commission, 68. 65. justices seeking an elective term were successful between 1889 and 1977”). 1977”). and 1889 successful between elective term were an justices seeking L 66.
72 Report 69 By 1972, four of the The report explained The report 73 70 61 party could be elected to political party could be elected to political 74 note 70, at 138. 138. at 70, note
ONTANA M
supra
(1972) (including appendices of model judicial articles from the of model judicial (1972) (including appendices note 63 and accompanying text. accompanying and 63 note It noted the sweep of judicial elections across most across most of judicial elections It noted the sweep 71 In Montana, where non-partisan elections lack the In Montana, where non-partisan LECTIONS IN LECTIONS E 75 at 16. at 133. 133. at at 134–35 (also explaining that at the time of the Convention, seventeen states seventeen explaining that at the time of the Convention, at 134–35 (also at 136. at Id. Id. Id. Id. See supra The report explained that “[t]he major criticism of the criticism major The report explained that “[t]he When the Constitutional Convention delegates met in early met delegates Convention Constitutional When the UDICIAL five supreme court justices had been appointed before being five supreme court justices had those four at the time elected, though this was an anomaly; half of the sevenjustices represented more than appointees elected since statehood. who would “candidates nomination, of party intermediation by a never be nominated as a large campaign fund, aoffice by such irrelevant factors 14: The Judiciary No. a groups, and League, and other reform American Bar Association, National Municipal Missouri Plan). description of the 71. elective system of judicial selection, be it partisan or non- it partisan be of judicial selection, elective system of candidates and their partisan, is that voter knowledge a basis for a rational is insufficient to form qualifications choice.” 69. 70. Commission, & Montana Constitutional Convention Sandra R. Muckelston Like the earlier Council Report, the Convention Commission Council Report, the Convention Like the earlier “the original in practice, repeated that Report misleadingly is trial court judges and selection of most of Montana’s appellate not by the people but by the governor.” J a merit adopt to the legislature permit should constitution “the of selection, of judges.” require election and not system report on the Montana of a detailed had the benefit 1972, they in general. state judiciaries courts and concerns of a combination from arose elections that judicial authority of the common-law judicial review, about checking of lawyers law, and populist critiques judges to make interstitial as a class. switch states’ many century, nineteenth of the half latter in states in the politics to machine in reaction to nonpartisan elections selection under of merit and the advent early twentieth century, century. of the twentieth latter half in the the Missouri Plan 72. selected judges by partisan elections, fourteen states by nonpartisanselected judges by partisan elections, fourteen elections, fourteen states by merit selection). nine and states by appointment, 73. 74. 75. al., Muckelston, et
Yet 78 ROCESS ELECTION P S UDICIAL J The nominating The nominating RACTICE ANDRACTICE 81 P ETHODS OF The bill was defeated in in The bill was defeated , M 82 PPELLATE A 79 Opponents complained that the bill that the bill Opponents complained SSOCIATION A 83 AR OURNAL OF OURNAL
B J
HE One of the more heavily debated bills was was bills debated heavily the more One of
One Montana justice estimated that he spent that he spent estimated justice One Montana 80 ONTANA 77 House J. 35th Leg. Sess. 399 (Mont. 1957). 1957). (Mont. 399 Sess. Leg. J. 35th House Non-partisan elections, the report found, also may also may the report found, elections, Non-partisan (citing M see also 76 at 140. 140. at 148. at (citing 1971 interview with Justice Frank Haswell). (citing 1971 interview with Frank Justice 149. at at 148–49 (citing H.B. 48 35th Leg. Sess. § 6 (Mont. 1957)). 1957)). (Mont. 6 § Leg. Sess. 35th H.B. 48 (citing 148–49 at ; Id. Id. Id. Id. Id. Id. Id. Id. These concerns led to legislative consideration of a merit of a merit consideration These concerns led to legislative commission contemplated by the 1957 proposal consisted of five by the 1957 commission contemplated the state, the president of different regions district judges from and three gubernatorial of the Montana Bar Association, or rancher, a labor a farmer by the senate: appointees confirmed and a businessman. union member, forty-four, with broad support the House by forty-six votes to who Democrats, most from but opposition Republicans from the majority. were then in 76. (1956)). 80. nine months of an election year campaigning for office. of an election nine months have been of the campaigning may much without party labels, judicial relatively low-information in roll-off ballot futile due to Chief ballot the adoption of the non-partisan “Prior to the races. of the votes years polled 91 to 94 percent Justice race in various seventeen to 77 [percent] this decreased cast for the governor; of the plan.” years after initiation between five times least at in Montana plan for judicial selection 1945 and 1969. proposed in 1957, after Court had Montana Supreme “the by cases caused, in part, a three-year backlog of amassed in 1956,” and “somejustices’ campaigning for re-election was to the court’s backlog representatives felt a solution of the election of judges.” elimination 62 T 62 the on place preferential or a image, television pleasing ballot.” with associated problems finance the campaign aggravate base, a judicial party’s financial a judges. Without electing upon or depend his own resources must “use candidate his impartiality affect may ‘friends,’ which from contributions from judges who receive financial support as those just as much party coffers.” 77. 78. 81. 79. 82. 83.
. 53, 86 . 53, 86 EV .L.R 85 ONT , 72 M Again, however, this 86 63 note 44, at 289. The convention report viewed the merit report The convention note 70, at 149. 149. at 70, note
ONTANA supra 84 , The delegates’ consideration of the judicial The delegates’ consideration of M
88 supra
ILSON &W LECTIONS IN LECTIONS 87 E ALDRON Id. Id. 2. The Constitutional Convention of 1972 of 2. The Constitutional Convention studies set the stage for an The 1972 report and the earlier Thus, according to the report, a merit plan would be more more plan would be to the report, a merit Thus, according [b]ecause district judgesmost court justices and supreme interim by the governor to an were initially appointed vacancysubsequently as an incumbent and elected by the expired, when the appointive term term people for another two elements of the were already plan merit in existence: election. retention and appointment gubernatorial UDICIAL 88. 1972 Montana of the Lawyer-Delegates Ellingson, The Fritz Snyder & Mae Nan Constitutional Convention: Their Influence and Importance (2011) (noting that “[v]ery few delegates other than(2011) (noting that “[v]ery lawyers participated in the debate on the Judicial Article”). overstated the role of appointments in judicial selection, overstated the role of appointments Court of 1957: Supreme Montana particularly with respect to the judges (who outnumbered half of district While approximately nearly two- at that time, court justices) were appointed supreme been elected had court justices supreme thirds of then-sitting initially. 84. al., 85. Muckelston, et 86. W 87. unusually deliberative discussion of judicial selection by the one of unusually deliberative discussion Convention. Constitutional the hundred elected delegates of lawyers, and those lawyer- Twenty-four of the delegates were debate on the judicial article of the delegates carried on most themselves. among democratic, since “[t]hrough citizen representation on the “[t]hrough citizen representation since democratic, have had the electorate in effect would commission nominating non-existent choice of a judge—an element a voice in the initial under Montana’s present system.” divided at the and most the longest article was among J to the right of the people and “deprived “undemocratic,” was legal profession of the members what themselves decide for as judges.” should sit plans favorably, but rebutted the opponents’ arguments by arguments the opponents’ but rebutted plans favorably, that claim misleading the repeating
. 492, at 30 The The 1010– The The EV Id. ROCESS 89 94 P .L.R ONSTITUTIONAL ONT C RANSCRIPT T 51 M RACTICE ANDRACTICE ONTANA P ERBATIM ,V in I M ]. PPELLATE A Yet the Judiciary Committee’s Committee’s Judiciary Yet the ONVENTION note 90, at 495 (Majority Proposal § 6). § 6). (Majority Proposal 90, at 495 note In extensive commentary, the In extensive commentary, C 91 95 RANSCRIPT T 90 supra , note 66, at 11 (“The voters elected on a note 66, at 11 (“The delegates OURNAL OF OURNAL
J Democrats controlled the Committee six six the Committee Democrats controlled supra 485 (1972) (indicating that “the members 485 (1972) (indicating that “the of the committee 92 ].
, HE ONVENTION The Judicial Article: What Went Wrong? 93 ONSTITUTIONAL
C ROCEEDINGS note 10, at 30. 10, at 30. note P NYDER supra ROCEEDINGS &S ROCEEDINGS P see also Judiciary Committee Report ONTANA ,P at 511–12 (Minority Proposal § 7). Proposal § (Minority 511–12 at ONVENTION LISON Id. The majority report retained much of the 1889 of the 1889 retained much report The majority The convention’s proceedings were notable for a general for a general were notable proceedings The convention’s ONVENTION ONVENTION 90. Jean M. Bowman, 497 (1990); 95. minority observed “that today, few, if any, of the voters are at all if any, observed “that today, few, minority and “the present candidates,” acquainted with the judicial fails to attain” completely utterly and of elected judiciary system M IV 89. C Judiciary Committee divided five-to-four, issuing a majority and and a majority issuing five-to-four, Committee divided Judiciary of how issue sharply on the most and “split report, a minority be selected.” judges should judicial elections. including provisions, Constitution’s plan, in which “the merit report proposed a modified minority court or district a supreme the state shall nominate governor of provided by manner selected in the nominees court judge from a contested election after law,” with one opportunity for elections for each followed by retention appointment, of office. succeeding term 64 T 64 of debate. full days two nearly consuming Convention, of bipartisanship. atmosphere extent the to even divided along party lines, votes substantially non-lawyers the divide between lawyers and that party “trumped on the Committee.” broke into a though in their work they to three, members the majority supporting of five Democrats working majority supporting a Republicans and a Democrat proposal, and three proposal. minority partisan basis, but the sentiment in the convention was to organize it in a bipartisan fashion. to organize it in was the sentiment in the convention partisan basis, but of the convention president The alphabetical rather than by party. was Thus seating to chair committees, aappointed both Democrats and Republicans and he appointed committee.”) each co-chairperson of be a to opposite party delegate from the Morriss, 92. 93. Democrat.” a relatively conservative been have “may enforcement background, Melvin of Gallatin County, who had a law- in the minority, J. Mason The Democrat n.19. C 94. had philosophical differences, particularly about selection of judges”) [hereinafter particularly about selection of judges”) differences, had philosophical C 91. E 91. 1180 (1979) [hereinafter C [hereinafter 1180 (1979)
at 533– ROCEEDINGS Delegate John P 100 ONVENTION This modified Missouri Missouri This modified 97 note 90, at 58 (summarizing Schiltz note 58. 58. note supra 65 note 89, at 1014 (statement of Del. Holland). Del. Holland). of (statement 1014 at note 89, , note 44, at 290 (discussing Schiltz as a candidate note 44, at supra 99 note 89, at 1026 (statement of Del. Schiltz). of (statement 1026 at 89, note supra supra supra , , , made a case for judicial elections based elections based judicial made a case for
ONTANA 101 at 534. M ROCEEDINGS ILSON
P Id.
&W RANSCRIPT RANSCRIPT Noting how the Anaconda Company and its Noting how the Anaconda Company T T Mason & Crowley, Crowley, & Mason At the same time, the minority was “especially “especially was the minority time, same At the 102 96 ALDRON ONVENTION LECTIONS IN LECTIONS C E at 520. 520. at at 521. 521. at but added the intervening opportunity for a contested intervening opportunity for a but added the ONVENTION ONVENTION See Id. Id. See generally 98 Despite the legal establishment’s support for a merit plan plan support for a merit establishment’s Despite the legal UDICIAL 101. for chief justice). C 102. biography); W 36 (Appendix C). Interestingly, Francis Mitchell, a representative of the political reform Interestingly, Francis Mitchell, 36 (Appendix C). the Montana Plan and favored partisan electiongroup Montana Common Cause, opposed justices. Court of Supreme M. Schiltz, a former legislator and an unsuccessful candidate for legislator and M. Schiltz, a former chief justice in 1970, on personal and political history. In Montana, he explained, “we on personal and political history. where, if I can elect a corporate influence; have strong and appoint the nominate Governor, and through that office can run this state. . . . I I Court judges, district and the Supreme can own it.” could dominate Power Company Montana affiliate the former 96. more like the minority’s hybrid proposal, the Judiciary hybrid proposal, minority’s more like the that a in the state found nearly 500 lawyers poll of Committee’s a hundred elections; over judicial favored slight majority favored Trial Lawyers Association Montana of the members margin. than a two-to-one more elections by J democratic of “the survival for necessary electorate the informed institutions.” of [Montana’s] character political of the future apprehensive an overwhelming that revealing citing “statistics judges,” justices) had court supreme not the judges (but of majority” governor.” by the “been appointed election after appointment. Plan of commission nomination, executive appointment, and executive appointment, nomination, Plan of commission Montana of the so-called reflected elements voter retention Plan, 100. C 100. 97. 98. including the Montana Plan named proponents of The Committee witness list 99. of the Montana Dean the Law; of the Montana School of Crowley and Professors Mason T. J. Supreme Court, of the Montana Robert E. Sullivan; the Chief Justice Law, School of William Bellingham; Bar Association, Harrison; the President of the Montana representatives of Society and Montana Citizens for the American Judicature Court Robert and Lessley, Hatfield, W. W. Improvement, several state district judges (Paul Wilson); and federal district judge Russell Smith. See C
108 ROCESS P RACTICE ANDRACTICE P note 88, at 86 (asserting that 106 supra He suggested that such an He suggested that PPELLATE 105 A Snyder & Ellingson, OURNAL OF OURNAL
Over the lengthy debate, however, Over the lengthy debate, J
107 HE He expressed “utmost sympathy” for judicial for judicial sympathy” “utmost He expressed
103 note 90, at 495 (reporting that “much of the majority report report (reporting that “much of the majority 90, at 495 note 104 supra at 1027 (statement of Del. Schiltz). (statement of 1027 at (statement of Del. Garlington). at 1032 (statement of Del. Garlington). Garlington). Del. (statement of 1032 at (statement of Del. Garlington). (statement of at 1034–35; see also Id. Id. Id. Id. Id. In a series of sharply divided votes the delegates eventually the delegates eventually In a series of sharply divided votes Because the minority proposal represented a greater change change a greater represented proposal Because the minority you cannot pick a committeeyou cannot Montana that in the State of will be totally And I am kind of influence. free of that one or the between if I have to choose and it, afraid of I had because every electorate going to the time, other, I’m might With another few bucks, I to be elected. a chance . . . it. have made Garlington, C. argued for also a lawyer, Delegate James 103. amendments transformed key provisions of the minority report of the minority key provisions transformed amendments plan. election report’s the majority resembling into something proposals and adopted and minority rejected both the majority original text suggests its Article VII, section 8, whose 104. candidates who “must undergo the type of ordeal that Mr. undergo the type of ordeal “must candidates who described.” feelingly Schiltz very “who lawyers office unattractive for most judicial ordeal makes because the judicial practice” have any kind of a stable, private from the private completely candidate “must sever himself return to practice after losing a practice of law,” and should he . . . no rock bottom “he then begins at absolute campaign, clients, no office, no library, no nothing.” because delegates perhaps article, and the current judicial from the Convention reforms, receptive to its were initially more contained in the changes it instead of the minor debate voted to proposal. majority 66 T 66 Convention the Constitutional including processes, appointment that itself, he concluded Commission all on the part of is clear agreement “There judicial appointment. question is how good judges,” he noted, “[t]he that we do need to recruit them.” 105. actually was adopted” and noting “the lack of major substantive change from the 1889 1889 from the major substantive change noting “the lack of and actually was adopted” Constitution” in the judicial article of the new constitution). 106. 107. “[w]ith that vote, it became clear that a majority of the delegates favored judicial reform”). delegates favored of the a majority became clear that it that vote, “[w]ith Bowman, 108.
114 113 Public 115 Its second Its second ONSTITUTION FORONSTITUTION 110 1972 C 13 (1972). 13 (1972). The result, in other The result, in other 112 ROPOSED , P at 31–64 (listing delegate biographies). (listing delegate biographies). 31–64 at note 90, at 508 (setting out Separate XPLANATION E See id. See supra note 90, at 508 (setting out Separate note 90, at 508 Majority Its third section provides for an section provides Its third 67 , ONVENTION 111 , 424 U.S. 1, 58–59 (1976) (holding that campaign (holding 58–59 (1976) 1, U.S. , 424 EXT WITH C supra T , note 88, at 88–90 (referring to principles involved, to principles (referring 88, at 88–90 note In a concession to merit selection, its selection, merit to a concession In
ONTANA supra 109 ROCEEDINGS M FFICIAL FFICIAL
P :O
ROCEEDINGS . art. VII, § 8(1) (1973). (1973). § 8(1) VII, . art. P ONSTITUTIONAL C See Buckley v. Valeo See Buckley ONTANA ONST M ONVENTION ONVENTION .C LECTIONS IN LECTIONS E ONT ONTANA . art. VII, § 8(2). . art. VII, § 8(3). ONVENTION Id Id 3. Public Financing for Judicial Elections 3. Public Financing debate at the Constitutional A collateral consequence of the TATE OF S UDICIAL Proposal on Campaign Expenses). The proposal also prohibited expenditures “in excess of also prohibited expenditures The proposal Expenses). Campaign Proposal on that would even then have been found the amount appropriated,” an expenditure limit unconstitutional. of candidates, and direct restrictionsexpenditure limits on the ability “place substantial political expression, restrictions that citizens, and associations to engage in protected the tolerate”). First Amendment cannot 115. of all nine committee members includes the names The reprinted report under the Berg as “(original and the names of Delegates Pemberton, Bowman, proposal, but denotes unsigned).” C Majority Proposal on Campaign Expenses). These were the three Republican delegates on on delegates were the three Republican These on Campaign Expenses). Majority Proposal Democrats. were the Committee; the others 111. 112. 113. M 113. Unlike the primary selection proposal, the public-financing selection proposal, Unlike the primary on the committee. proposal enjoyed broad support 109. Snyder & Ellingson, election “[i]f an incumbent does not run.” incumbent election “[i]f an but of contested judicial elections, maintenance words, was the a selection from by nominees appointment plan of with a merit that noted, of vacancies. Based on a campaign committee in case changed,” election of judges is not revealingly “[c]ontested the including Constitution, ratified the 1972 the people narrowly new judicial article. for public financing of judicial Convention was a failed proposal proposed a section The Judiciary Committee campaigns. funds for the contested requiring the legislature to “appropriate candidates for the offices of expenses general election campaign district court judges.” court and of justices of the supreme floor debate). portions of describing and committee, hoc of ad summarizing work M 110. J origins. complicated first section provides “replacement . . . for any vacancy” by the vacancy” by the . . . for any provides “replacement first section the manner selected in nominees “from appointment governor’s to senate confirmation. by law,” subject provided but as the default, elections provides for retention section elections. contested permits THE 114. C 114.
ROCESS P These included These included RACTICE ANDRACTICE P 116 PPELLATE A Looking toward a future of big- Looking toward a future of 119 n. 89, at 1137 (statement of Del.n. Schiltz). supra , OURNAL OF OURNAL
J More broadly, he turned to the national More broadly, he turned to
HE
118 RANSCRIPT T But Delegate Jean Bowman, who favored the who But Delegate Jean Bowman, 117 120 at 509 (including comments on Separate Majority Proposal on Campaign Proposal comments on Separate Majority at 509 (including (statement of Del. (statement of Schiltz). (statement of Del. Schiltz). (statement of ONVENTION Id. Id. Id. Id. Delegate Schiltz opened the debate on the public-financing the public-financing the debate on Delegate Schiltz opened (1) the necessity that the judge demean himself and his himself judge demean (1) the necessityand his that the by funds; position seeking campaign contributions; people can make wrong (2) the fact that the (3) the fact thatlawyers and are the biggest contributors of themselves funds to the detriment solicitors of campaign than the candidate; (4) the fact that candidate with the the most spend money to of and likelymerit; is the to win regardless more of justice suffers in that the appearance the (5) the fact process. Unlike votes on the primary majority and minority proposals, votes on the public-financing on votes and minority proposals, primary majority the Unlike votes on party lines. along broken to have proposal appear 116. money campaigns, that “this is going to come to he warned other, better place to start as an Montana, and I can think of no than on the money of amount for a very small experiment Judiciary.” the minority of plan appointment-and-retention-election The committee’s solution to these problems prompted a these problems prompted solution to The committee’s elections. in judicial finance prescient discussion of campaign financing judicial of taxpayers cost to provision, noting that the benefits,” including an the in view of elections was a “pittance was not “that one man “independent Judiciary” and assurance buying the job.” noting that Edmund presidential election then underway, or to cost him was “going campaign Muskie’s presidential $40 million.” somebody 68 T 68 the pre- any of raised in not was elections judicial of financing with the Judiciary appeared to originate studies, and convention proposals and minority majority Because the itself. Committee the judicial elections, non-partisan contested both contemplated have we problems “the same recognized entire committee running for office. with judges always had” 119. Expenses). 117. C 118. 120.
To the criticism that public 126 127 69 So it was. Several lawyers spoke in lawyers So it was. Several 124
ONTANA M “As a taxpayer,” the Republican Bowman Bowman the Republican “As a taxpayer,”
121
Delegate William Burkhardt reported that a lawyer Burkhardt Delegate William 122 125 LECTIONS IN LECTIONS 123 E (statement of Del. Bowman). Del. Bowman). (statement of (statement of Del. Bowman). Del. Bowman). (statement of at 1164–65. 1164–65. at at 1165 (statement of Del. Burkhardt). Burkhardt). Del. (statement of 1165 at at 1166 (statement of Del. Dahood). Dahood). Del. (statement of 1166 at at 1167 (statement of Del. Graybill). Graybill). Del. (statement of 1167 at (statement of Del. (statement of Graybill). Id. Id. Id. Id. Id. Id. Id. Opponents, however, doubted that the legislature would Opponents, however, doubted only the so-called “big boys” can afford to support can funds so that they campaign with enough [candidates] being the imperfectbe successful; and as a consequence, beings that they are, just like the rest of us, subconsciously, at least, it has an effect upon their their decision and upon highest tribunal of this behalf as part of the our work in state. The delegates gave the public-financing proposal gave the public-financing The delegates UDICIAL financing would simply relieve lawyers from funding judicial from relieve lawyers financing would simply asserting that “[t]he by Delegate Graybill continued campaigns, people who have is the common people that it’s going to relieve major some against Court occasionally to go to that Supreme is there constantly.” interest who 121. provide sufficient funding, and asked why only the judiciary provide sufficient funding, and financing entrenched in the should have public campaign friend wrote to him, stating that he hoped it would be “well stating that he hoped it would him, friend wrote to its death.” debated before Dahood argued that Wade support. Delegate Graybill asked whether President Leo Delegate and Convention Judiciary continue to get its to let the the delegates were “going it offices by getting Court for contested Supreme money to run who have a lot of big . . . corporations and concerns from Court.” litigation in the Supreme J in to run had candidates judicial that if suggested proposal, for the political parties should look to elections, they contested support. financial do not wish Schiltz, “I really Democrat response to the argued in campaign go to someone’s taxes part of my to have expenses.” that but voted later by a narrow margin, approval preliminary debate on and opened a deeper the proposal, day to reconsider the issue. 122. 123. 124. 125. 126. 127.
at Id. ROCESS P ...... Delegate Delegate Delegate Then the 128 130 132 at 1170–71 (motion of RACTICE ANDRACTICE P 133 PPELLATE A 129 OURNAL OF OURNAL
J By the end of the day’s debate, several By the end of the day’s debate,
HE 131
at 1168 (motion of Del. Babcock); see also id. (motion of Del. Babcock); at 1168 In response, the delegates suspended the rules to In response, the delegates suspended id. , 134 at 1169 (statement of Del. Bates). Schiltz later respondedby indicating at 1169 (statement of Del. Bates). to Bates (statement of Del. Eskildsen). (statement of at 1173 (statement of Del. Garlington). Garlington). Del. (statement of 1173 at at 1177 (statement of Del. Swanberg). Swanberg). Del. (statement of 1177 at at 1178–79, 1181. 1181. 1178–79, at at 2189 (statement of Del. Champoux). Champoux). Del. (statement of 2189 at Id. Id. Id. Id. See, e.g. Id. Id. Two weeks later, with the judiciary article reported out of article reported Two weeks later, with the judiciary when you look for political office, then toyou got to expect it yourself to finance funds and campaign your own find do anything we should I don’t think Judiciary for the that do for the Legislature and, especially, we we don’t that Governor. for the do don’t delegates voted to delete the provision. court as applied to supreme reconsider the proposal, but only 128. Joe Eskildsen, originally a proponent of the proposal on the of the proposal a proponent originally Joe Eskildsen, that Committee, argued Judiciary concerns, a lawyer, raised free speech Delegate Garlington, rights of citizen the would “inhibit the measure worried that an interest in” judicial elections. groups to take take “a chance to think about delegates moved to adjourn and were defeated. this overnight,” but those motions Delegate Rick Champoux the Style and Drafting Committee, Schiltz: “[I]f we by Delegate earlier point made recalled an judges, somebody else will, the expenses for these don’t provide that large companies the main, and that other group will be, in or do it directly they whether before this court, come indirectly.” 70 T 70 the and all . . the Governor it for . can’t do “If we constitution. “why, Grace Bates, Delegate candidates,” announced rest of the Court.” it just for Supreme we should do I don’t feel William Swanberg, another lawyer, raised concerns about concerns raised lawyer, Swanberg, another William state “[T]he for the basic will be on the [hook] circumvention: way of will find some candidate expenses, and some campaign getting around it.” that he hoped Montana would “someday” finance the campaigns of in political candidates pointing out that “in the meantime judicial races, but well as those in campaigns as partisan ticket.” on a of running [candidates for political have the advantage offices] 1177 (statement of Del. Schiltz). Del. Schiltz). 1177 (statement of 129. 130. 131. 132. Del. Babcock asking for proposal to be printed and distributed overnight so that the and distributed overnight so that to be printed for proposal asking Babcock Del. it in the morning). study delegates could 133. 134.
Others 138 141 at 2432 (Statement of at Id. at 2200–01 (statement of Del. (statement of Del. at 2200–01 This time, the delegates the delegates This time, 140 And Delegate Dave Drum Dave Drum And Delegate see also id. 137 71
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Delegate Dahood responded by arguing that “[t]he Delegate Dahood responded by Judges “are supposed to decide fairly and evenly evenly and decide fairly to supposed “are Judges 136 LECTIONS IN LECTIONS 139 E 135 at 2190–91. at 2190–91. at 2198 (statement of Del. Graybill). Graybill). Del. (statement of 2198 at at 2196 (statement of Del. Garlington). Garlington). Del. (statement of 2196 at at 2201 (statement of Del. Drum). Drum). Del. (statement of 2201 at at 2199 (statement of Del. Erdmann); (statement of Del. Erdmann); at 2199 at 2201 (statement of Del. Dahood). Dahood). Del. (statement of 2201 at at 2204–05. Yet the debate was not quite over. Delegates adopted the Style and not quite over. Delegates adopted Yet the debate was at 2204–05. Id. Id. Id. Id. Id. Id. Id. Delegate Garlington, however, had already advised against however, had already advised Delegate Garlington, UDICIAL raised fiscal concerns that voters might reject a new constitution reject voters might fiscal concerns that raised have been included “in to that seemed with spending mandates aspirations of our lawyers order to finance all the political justice or other higher Court wanting to run for Supreme offices.” taxpayer, above all, should have paramount interest in this paramount taxpayer, above all, should have that is affected by the quality “[h]e is the one proposal” because of justice, more than anyone else.” 135. 136. observed that public financing might upset the longstanding upset the financing might observed that public may whereby “you primary, lawyers-money tradition of the Court justice who the as a Supreme wind up with the gentleman be the best judge.” legal fraternity generally thinks will votes to thirty-two. adopted the proposal by fifty-five J justices. Graybill Delegate they get elected,” all of us after between followed, pointing the debate that delegates during the reminded or a congressman to support a senator “[i]t’s one thing out that it’s another thing a bureaucracy; help you out with him and have with a help you out have him a judge and to support decision.” financing: for public provision constitutional an unprecedented to here is to leave this judgment the proper to me “[I]t seems to be an prove in our own state genuinely as it may such time and then our people’s representatives, needs correction, evil that so.” can do the Legislature, 137. 138. 139. Kamhoot expressing concern about taxpayer reaction on concern about to funding mandates when voting Kamhoot expressing new constitution). whether to approve the 140. 141. Del. Toole). Del. Toole). Drafting Committee report on the reconsidered proposal by voice vote, but not before “talked to a number said that he had legislator, a former Republican Toole, Delegate John of the unanimous to be seem[ed] “[t]hey and this in the last few days,” of Legislators about opinion they will appropriate $1” for judicial campaign expenses.
The The ROCESS P 145 In 1973, a 147 RACTICE ANDRACTICE After an agonizing After an agonizing P 144 PPELLATE A note 90, at 520–21 (Minority Proposal § 7 at 520–21 note 90, The Convention sent the Sergeant to sent the The Convention supra , 143 OURNAL OF OURNAL
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ROCEEDINGS P The minority report, however, had “purposely report, however, The minority But when the Convention reached the final section final section reached the the Convention But when 146 142 at 2434–49. The votes became so routine, in fact, that the President of the of fact, that the President in so routine, became The votes at 2434–49. at 521. 521. at at 2450. 2450. at at 2453 (showing the final vote tally on the public-funding section of the judicial section the public-funding tally on the final vote (showing at 2453 ONVENTION Id. Id. Id. Id. The implementation of the new constitution’s hybrid merit merit hybrid of the new constitution’s The implementation All that remained was final consideration of the judicial of the final consideration was that remained All 4. Implementation and Modifications 4. Implementation at 2441 (Statement of Del. Graybill). Graybill). Del. (Statement of 2441 at minority report, “not satisfied with the current process of report, “not satisfied with minority power of judges,” had gubernatorial appointive unlimited be elected by should committee expressed a preference that “the in and “bi-partisan terms” the legislature for staggered character.” a enacted—and in the legislature majority Democratic bill creating a seven-member governor signed—a Democratic refrained from attempting to provide for the organization of the to provide refrained from attempting is better the legislature that committee in the belief nominating operation.” able to vigilantly oversee its 142. of the judicial article, on campaign expenses, the ayes fell three ayes fell three expenses, the campaign article, on of the judicial of a majority. votes short reconsider. to their return and voted upon find absent delegates, the present, of the delegates with all but three But in a final vote, proposal fell short again. public-financing 72 T 72 thirteen sections— adopted the first The Convention article. section—by wide judicial-selection the compromise including margins. series of debates, what would have been a major innovation in innovation what would have been a major series of debates, failed by just two votes. state judicial elections commission though a judicial nomination plan for appointees even for a compromise. fell short of the reformers’ aspirations “the governor shall judicial article, According to the new judicial office] from [for a vacant appoint a replacement by law.” provided selected in the manner nominees comments). 147. Convention, Delegate Graybill, noticed that delegates were forgetting to vote:Delegate several Convention, “I if you want to don’t want to disturb you people—(Laughter)—but vote, now is the time.” Id. 143. 144. article as forty-nine to forty-eight). 145. 8(2). § Art. VII, Const. Mont. C 146.
. § 3-1- . § ONTANA H.B. 353 H.B. 353 NN A 148 See :M 152 ODE . § 3-1-1002. 3-1-1002. . § .C NN A ELEGATES ONT ODE .C 100 D ONT in , Sometimes popular backlash Sometimes 153 73 But he also pointed out that “when But he also pointed 1972 at 31 (1989). 31 (1989). 1972 at 149 The judge for whom Delegate Bowman Delegate Bowman The judge for whom
ONTANA 151 n. 63, at 150 (quoting 1980 Interview with Justice John C. M
Judiciary Committee note 56, at 355. One of those amendments comprehensively note 56, at 355. One of those
supra note 90, at 498. 90, at 498. note , . 1177, ch. 470, § 1 (1973). The commission consists of “four lay consists of “four The commission (1973). 1 § 470, 1177, ch. ONVENTION OF supra C supra AWS .L Delegate Jean Bowman, also in the minority on the also in the minority on the Bowman, Delegate Jean LECTIONS IN LECTIONS E 150 ONT OPACH ET AL L Id. The legislature and voters appear to agree that the agree that the to appear and voters The legislature Proponents of broader reforms hardly welcomed the welcomed hardly reforms of broader Proponents ONSTITUTIONAL UDICIAL Harrison). Johnstone, 153. revised the selection provision in 1992, twenty years after its adoption. 152. 150. Bowman, 151. (Mont. 52nd Leg. Sess. 1992) (proposing language that became language amendment 22 to the Sess. 1992) (proposing (Mont. 52nd Leg. Montana Constitution). members who are neither judges nor attorneys” appointedmembers who are neither judges nor attorneys” by the governor from different court from different by the supreme regions and vocations, two attorneys appointed judges. M by the district district judge elected one regions, and prompted these judicial reforms. these judicial reforms. prompted C later clerked, Justice John C. Harrison, reached a harsher later clerked, Justice John C. in fifty states.” the “worst judiciary article judgment: M 148. Judiciary Committee, agreed, writing years later that the 1972 agreed, writing years later that Judiciary Committee, of selection process,” because method the “bungles Constitution selection and, at nor merit it “provides for neither pure election in the in the constitution uncertainty best, constitutionalizes of selection.”method The judicial article is Convention left room for improvement. in the Montana articles the most frequently amended among all four constitutional with voters approving Constitution, the article. referenda amending J of four controlled by a majority commission nomination judicial legislature. governor, not the appointed by the members a Melvin, Mason Delegate article. judicial compromise report minority the reform-minded who signed onto Democrat later Committee, on the Judiciary three Republicans with the of mechanics the tossed that “the Legislature noted with regret by into the political kettle” judges right of the appointment of the majority the power to appoint the giving the governor commission. nominating Montanans decide to take another step in insulating the Judiciary Judiciary the step in insulating to take another Montanans decide be will politics—corrections the other branches—and from made.” 149. Mason Melvin, 149. 1001. The members serve staggered four-year terms. M serve staggered members 1001. The
. EV ROCESS .L.R P ONT Further, the Further, the , 48 M , 48 158 Yet concern about about Yet concern RACTICE ANDRACTICE Constitutional Initiative 30: P 159 155 156 By the end of the decade, end of the decade, By the 154 PPELLATE A Bari R. Burke, Bari R. Burke, see also The court emphasized that section eight that section eight The court emphasized OURNAL OF OURNAL
J The Montana Supreme Court in Politics Court Supreme The Montana . 53 (1987) (criticizing the legislature). . 53 157 note 56, at 357–59. 56, at 357–59. note
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supra .L.R note 154, at 296 (“The court’s insistence that it supra must have the ONT Lopach, Lopach, at 1185. 1185. at Johnstone, See Johnstone, See James J. Lopach, See James J. Lopach, Id. Id. In 1992, critics of the decision upholding these judicial these upholding In 1992, critics of the decision Calls to broaden the scope of judicial elections, and narrow the scope of judicial elections, Calls to broaden In the 1980s, the Montana Supreme Court confronted the confronted Court Supreme the Montana 1980s, In the 267 (1987) (criticizing the court); 155. 156. court noted that “[t]he current makeup of the judiciary reflects court noted that “[t]he current makeup and election,” as appointment the delegates’ recognition of both District Court serving “[e]ighteen of the thirty-six currently Court serving Supreme Judges and three of the seven currently their offices as appointees.” Justices began 154. appointments proposed a constitutional amendment requiring amendment proposed a constitutional appointments regardless of whetherappointees to stand for election the senate during one of its them confirm had yet had an opportunity to argued that too the amendment biennial sessions. Proponents of for years pending office “holdover” appointees held many 74 T 74 of the constitutionality cases involving in repeatedly legislature and welfare reform. tort immunity by the amendments and constitutional on the court vote changes controversy. of the much people resolved lingered. overreach potential the court’s in intensified for judicial appointments, opportunities remaining appointments, case upholding three judicial response to a 1990 without made court appointment, including a supreme possible next to an election on the the appointees submitting VII, Article Court interpreted Supreme ballot. The Montana justice or the election of an appointed section 8, to postpone or to confirm the senate had the opportunity judge until after appointee. reject the provided “a selection system which gives recognition to both provided “a selection system history the incomplete and election,” reiterating appointment of the judges most (in fact, of the justices and judges” that “most but few of the appointed initially. justices) were What Constitutional Rights Did Montanans Surrender in Hopes of Securing Liability of Securing Liability in Hopes What ConstitutionalMontanans Surrender Rights Did Insurance? 48 M last word in state policymaking has severely damaged democratic politics.”). democratic politics.”). severely damaged policymaking has state last word in 157. 1990). (Mont. 1180 P.2d Court, 794 Dist. v. State ex rel. Racicot 158. 159.
162 Montanans for Just. v. State for Just. v. Montanans Montana Secretary of State, State, Secretary of Montana 5 (1992). 5 (1992). See See at 24. Three retired justices wrote in wrote justices Three retired at 24. 75 1972–Present Historical Constitutional Initiatives1972–Present and at 22 (statements of Rep. Edward B. Butcher, Rep. Diane Diane B. Butcher, Rep. at 22 (statements of Rep. Edward
ONTANA Id. M
, 7 (Feb. 26, 2013), http://sos.mt.gov/Elections/forms/history/ http://sos.mt.gov/Elections/forms/history/ 2013), 26, 7 (Feb. ,
20 (2006) (addressing Constitutional Initiative No. 98). Proponents Proponents Initiative 98). No. (addressing Constitutional 20 (2006) 23 (statements of former Justice John C. Harrison, former Chief (statements of former Justice John 23 Id. Montanans ratified the amendment by a three-to-one a three-to-one by the amendment ratified Montanans The election results suggested that voters viewed viewed that voters results suggested The election LECTIONS IN LECTIONS E 160 161 The constitutional journey of judicial reform began with the journey of judicial reform The constitutional UDICIAL 160. Voter State, 1992 Information of Montana Secretary these holdover appointments as a bug, not aappointments these holdover feature, of the process. constitution’s judicial-selection Constitutional merit selection. At the for Montana Plan on report’s emphasis through the minority Convention, it moved With with retention elections. commission nominations to an uneasy 8, it led section original of the ratification the and contested elections during of appointments compromise ended (for first two decades. The journey state constitution’s an emphatic doubling now, at least) with the 1992 amendment, judicial elections. on referendum, down, by constitutional 161. Montana Secretary of State Constitutional Amendments file with Journal of copy on 8, 2015; Sept. constitutionalmeasureslist2012.pdf (accessed andclarified that “Supreme court justices Appellate Practice and Process). The amendment district court judges shall be electedthat by the qualified electors as provided by law,” and whether confirmed or unconfirmed, shall serve past the term appointee, of his “[n]o 8. VII, § Art. Mont. Const. election.” without standing for predecessor In 2006 voters petitioned for a constitutional amendment providing for recall of 162. electoral dissatisfaction justice or with a acknowledging for “any reason justices judges and law. by prior required standard than that broader a judge,” J amendment The election. for standing without confirmation of the use the improper for potential “the eliminated a under to the proponents, according process,” appointment of selection the electoral “for that provides constitution judges.” margin. opposition to the amendment because “[t]he rightsopposition to the and protection amendment because “[t]he of our citizens are the judges were a fair, impartial“[i]f dependent upon and unbiased judiciary,” and be would recall elections, they and repeated the threat of constant confronted with expense in defending great distracted from thetheir duties and subjected to performance of recall elections.” 2006 Voter Information in the legislature argued that it would “be a powerful tool for judicial accountability and too removed been for too long has that of government democratic oversight of a branch from the will of the people.” who judges challenge us to “allow would, they argued, It Lange). Michael Rep. Rice, and radical political street, ‘legislate’ and pedophiles out on the throw violent criminals Id. destroy our constitutional freedoms.” agendas or Justice Jean Turnage, and former Justice John C. Sheehy). The amendment was decertified was amendment The C. Sheehy). John former Justice and Justice Jean Turnage, ballot for fraud in the petition process. and struck from the ex. rel. McGrath, 146 P.3d 759 (Mont. 2006). 2006). (Mont. 759 146 P.3d McGrath, ex. rel.
In 167 ROCESS Of the P note 163. note 44, at note 44, 163 supra supra , LECTIONS , (on file with Author) E ILSON RACTICE ANDRACTICE P &W Earlier commentators Earlier commentators UDICIAL Justices Dataset J 164 166 Montana Statewide General Election Montana Statewide General ALDRON ALDRON PPELLATE TATE A S OURNAL OF OURNAL
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supra ., Yet there is no evidence since 1972 that justices 1972 Yet there is no evidence since ODERN A. Appointments, Retention, and Elections and Elections Retention, A. Appointments, 165 Justices Dataset OPACH ET AL , 1912–2014, http://sos.mt.gov/Elections/archives/index.asp (accessed http://sos.mt.gov/Elections/archives/index.asp , Nov. 10, 1912–2014, Id. Id. Despite arguments during the Constitutional Convention Convention Constitutional during the arguments Despite Every incumbent justice who sought reelection won except sought Every incumbent justice who III. A M 167. Four appointees retired before the ends of their terms. Two appointees of 166. Governor by (appointed C. Sheehy governors: John Republican Democrats retired under R.C. and in 1991) Stan Stephens Governor under and resigned 1978 in Thomas Judge in 1987 and resigned under Governor Ted Schwinden by Governor (appointed McDonough the appointing retired during of a Republican 1993). One appointee Marc Racicot in resigned 1989 and Stan Stephens in by Governor governor’s term: Diane Barz (appointed appointee of a Republican, John Stephens was still in office). The other in 1991 when in 2003 Judy Martz Governor by (appointed Democratic governor a Warner, retired under 2009). in Brian Schweitzer Governor under and resigned contests for open seats, the candidate who raised the most contests for open seats, the candidate [hereinafter of State, Secretary state of Montana. Montana Canvass The page on file with Journal of Appellate Practice and Process). 2015; copy of main is available in W 1910 1889 to source data from 163. Anthony Johnstone, Johnstone, Anthony 163. about whether appointed or elected justices were the norm in or elected justices were about whether appointed amendment renewed debate during the 1992 Montana, and the 1972 increased slightly since of justices appointments campaign, under Eleven of the 27 justices seated comment. without notable appointed percent—were forty-one the new constitution—or under the old constitution. one-third initially, up from reelected. were six eleven appointees, party of the same to coincide with a governor retirements timed as the governor who appointed them. who lost to the slightly a recent appointee for Charles Erdman, 1996. in Regnier James practitioner better financed private 76 T 76 described “justices who resigned before completion of a term so who resigned before completion described “justices a replacement,” allied governor could appoint that a politically conditions to “endured under personally adverse and others who by an unfriendly being appointed prevent a replacement governor.” 289–92. Included in the eleven appointees is Justice Frank Haswell, who was appointed to to appointed was who Haswell, is Justice Frank in the eleven appointees Included 289–92. Associate Justice in 1977. Chief Justice from 164. L 165.
Two 170 Id. See id. See Of twenty-seven Of twenty-seven 168 172 Id. John W. Bonner served as Attorney served as Attorney John W. Bonner 169 77
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B. Increasing Partisanship B. Increasing Partisanship
A half-dozen justices came to the bench with to the A half-dozen justices came 171 LECTIONS IN LECTIONS E Id. Id. Party affiliations appeared as an issue in the hard-fought issue in the hard-fought Party affiliations appeared as an Partisanship only recently emerged as a major issue in issue in as a major emerged only recently Partisanship UDICIAL experience as state legislators, including two-term Chief Justice including as state legislators, experience as a state legislator, and who served two decades Jean Turnage, Rice and Mike Wheat. Justices Jim current when three of justice, associate 2000 races for chief justice and the four candidates in the general election had histories of 168. 169. Harrison J. C. Ford; Sam Rankin; D. Galen; Wellington J. Albert The six are 170. Freebourn; R.V. Bottomly; and Mike McGrath. Id. elections for supreme court justice since 1990, including post- justice since 1990, court for supreme elections first of an appointee’s remainder elections for the appointment twelve were uncontested. term, governors, became justices, and two justices governors became H. Anderson, who associate justice Forrest including former Montana Constitutional governed during the 1972 Convention. Court. Supreme to the then and Governor, elected as was he General before 171. serving as as governor before both served Bonner W. and John Sam V. Stewart C. justice. Sam as a lieutenant governor before serving as R. Adair served Hugh justices. governor. serving as justices before Anderson served as H. Ford and Forrest 172. A. James Turnage, A. Jean C. Sheehy, John Anderson, H. Adair, Forrest R. Hugh Rice, and Mike Wheat all served C. in the legislature before joining the court, and Henry leaving the bench. state senate after Smith served in the J lost who in 2004, McLean Edward Judge except for won money and more money, raising Morris despite Solicitor Brian to State Nels District Judge Baker, who beat Beth private practitioner campaign. in a relatively low-dollar Swandal that That is not to say campaigns. Court Montana Supreme or legislative judicial and a barrier between voters respected began in even after non-partisan elections executive offices, to the occasionally elected partisan politicians 1935. Montanans political office. to partisan elected justices court, and supreme in front of the bench to from Six state attorneys general moved Mike McGrath. Justice behind it, including current Chief
. In UST J 173 , Helena ROCESS FOR P . TR C , http://leg.mt.gov , No. AF 08-0203 AF 08-0203 No. , RENNAN RACTICE ANDRACTICE 175 P 177 , available at B PPELLATE Nels Swandal (R) SD 30 SD (R) Nels Swandal A http://helenair.com/news/local/supreme-court- , and in an increasingly polarized polarized and in an increasingly , OURNAL OF OURNAL
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He lost the election, and went on to be elected He lost the election, and went on 176 Citizens United Justice Jim Rice (a former legislator) and Justice John John Justice legislator) and Jim Rice (a former Justice , Montana Legislature 64th Session, Legislature 64th , Montana at 6–7 (Rice and Warner, JJ., concurring and dissenting). and concurring JJ., Warner, (Rice and 6–7 at 174 In the Matter of Code of Judicial Conduct the 2008 Montana Id. such practices reflect the realitysuch practices reflect culture, partic- Montana of . . I re- . small, rural communities. our many ularly within which dinner in a rural county call attending a Republican was also attended by large a contingent of local Democrats. ear to ear, because it was from Everyone was grinning anything else. community about more than After See, e.g. (Sept. 27, 2010), http://www.brennancenter.org/sites/default/files/legacy/Buying%20Time(Sept. 27, 2010), Sept. (accessed %202010/STSUPCT_MT_SWANDAL_SET_RECORD_STRAIGHT.pdf and Process). Practice of Appellate file with Journal on copy 2015; 8, 177 /css/Sessions/64th/leg_info.asp?HouseID=2&SessionID=109&LAWSID=16524 (May 14, (May /css/Sessions/64th/leg_info.asp?HouseID=2&SessionID=109&LAWSID=16524 copy on file with2014) (accessed Sept. 8, 2015; Journal of Appellate Practice and Process). partisan atmosphere in the state, judicial elections came to the came elections in the state, judicial partisan atmosphere 2011 the Montana Legislature forefront of party politics. In measure a Republican-sponsored referred to the voters LR-119, to party lines. It was a carried by a vote that hewed closely which amendment, (not a constitutional legislative referendum to elect supermajority) would have required a legislative the chief justice by districts and select by court justices supreme 173. Erin P. Billings, 2008, the supreme court revised the Code of Judicial Conduct to Conduct to Code of Judicial the court revised supreme 2008, the partisan campaign attending from judicial candidates prevent events. Nels Judge associate justice contest, a 2010 in More recently, partisan from ad purportedly distancing himself Swandal ran an supported Republican has “always politics, explaining his family have never influenced candidates,” but his “political opinions my decisions.” as a Republican state senator in 2014. 2, Nov. 2000, Indep. Record, candidates-give-primarily-to-democrats/article_581b74e1-80cc-5a96-928a-97caef5d0983.h tml. 174. 2008). (Dec. 12, 175. 78 T 78 to candidates. Democratic amounts significant contributing the that suggest change on grounds the dissented from Warner in past Montana politics partisan role of background informal, Rice observed that Justice judicial campaigns. 176. for Justice, Swandal
2002, , (on file 2004 But the But the , , Missoulian, The focus 182 are adjusted to are adjusted 2006 , 180 followthemoney.org, followthemoney.org, 2008 , 2010 , which puts supreme which puts supreme 2012 , available at 183 After the 2012 elections, 2012 elections, After the , ]. The source data are available from are available from The source data ]. 2014 179 = Contributions to State Supreme Court Contributions to State Supreme y & In a In by a brought challenge MT 178 = 79 s ? ch. 203. ch. 181 AWS .L http://missoulian.com/news/state-and-regional/montana- showme
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Campaign-Finance Dataset Campaign-Finance Emails Document GOP Leadership Power Struggle GOP Leadership Emails Document
available at LECTIONS IN LECTIONS Reichert v. State ex rel. McCulloch, 278 P.3d 455, 483 (Mont. 2012). 2012). 483 (Mont. 455, P.3d 278 McCulloch, ex rel. Reichert v. State E Id. See S.B. 268, 2011 M 2011 268, See S.B. Since 1990, which marks the earliest extent of detailed the earliest Since 1990, which marks www.followthemoney :// UDICIAL 2014 dollars and rounded to the nearest thousand. (The adjustment takes the nominal nearest thousand. (The adjustment rounded to the 2014 dollars and amount reported for a campaign year, multiplies Price Index for 2014, it by the Consumer year.) campaign for the Price Index the Consumer then divides it by 183. Calculations for contested elections candidates exclude noncompetitive who raised candidate. winning the raised by amount of the less than ten percent http Candidates in Elections in Montana Selected Years Candidates in Elections in Montana Selected National Institute on Money in State Politics, National Institute on Money in Jan 16, 2013, Jan 16, 2013, legislature/emails-document-gop-leadership-power-struggle/article_ce884f7c-5ffd-11e2-96 b6-0019bb2963f4.html 181. Johnstone, Anthony 182. with Author) [hereinafter 2000,1998,1996,1994,1992,1990&f-core=1&c-exi=1&c-r-ot=J#[{1|gro=d-Ins{4| (2015). Dataset For comparability, all cited amounts from the Campaign-Finance 179. Press, Associated 180. 178. group of voters including Constitutional Convention Delegates Delegates Convention Constitutional voters including group of the Bowman, and Jean Dahood, Reichert, Wade Arlyne unconstitutional” “facially held the referendum Court Supreme constitutional by statute the to amend it attempted because to justice. for election qualifications 1. Direct Contributions of the average amount records in Montana, campaign-finance all statewide by race raised per contributions campaign and general elections is about candidates in both primary contested elections. $231,000 overall and $460,000 in about $139,000 overall, court candidate raised average supreme and $212,000 in a contested election, J the justices. vote of majority several Republican legislative leaders discussed a plan to plan a leaders discussed legislative several Republican Court.” Montana Supreme of the “chang[e] the face “long term part of developing a became on judicial elections of conservatives in both a majority elect to actually strategy . . . and have Senate), adopt conservative legislation (the House and uphold it.” a court that will
ROCESS P Citizens The largest The largest The other 184 185 . (2013); R. § 44.10.338(1) RACTICE ANDRACTICE P DMIN .A 187 26 (discussing I-118). (discussing I-118). 26 ONT In 1994 Montana voters PPELLATE A 189 note 182. note 182. note 182. note 182. supra supra , , OURNAL OF OURNAL
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NN A 190 ODE Less than six percent of campaign contributions contributions percent of campaign Less than six .C 186 Two years earlier, Trieweiler had raised the second- had raised the second- Two years earlier, Trieweiler ONT , three supreme court campaigns stand out as the most stand out as the most campaigns court , three supreme Campaign-Finance Dataset Campaign-Finance Campaign-Finance Dataset Campaign-Finance Id. Id. Id. Id. Id. Under the lower contribution limits, some candidates relied candidates relied some Under the lower contribution limits, Before the rise of independent expenditures after of independent expenditures after Before the rise 188 Montana Secretary of State, of Montana Secretary 191. approved I-118, which reduced individual contribution limits for contribution limits approved I-118, which reduced individual (about $1200 in 2014 $750 court candidates from supreme is now adjusted for inflation dollars) to $200, an amount that ($320 in 2014). 184. more on their own bank accounts and less on individual and more on their own bank accounts the 2000 election for In political-committee contributions. of Cotter raised $366,000 (most associate justice, Justice Patricia and candidates in primary to fend off three other it self-financed) general elections. (again, most of itfor chief justice, raising $436,000 self- 185. 186. 187. 188. 189. M 190. source of campaign contributions in supreme court elections, not not court elections, in supreme campaign contributions source of In inflation-adjusted and lobbyists: is lawyers surprisingly, $6.24 million raised about court candidates supreme terms, of that total—$1.97 a third and nearly 1990 and 2014, between lobbyists. and lawyers from million—came their is the candidates themselves, source significant of nearly a quarter or $1.35 million, to amounting contributions the total. sources. out-of-state from have come United Terry In 1992, Justice contribution terms. expensive in Chief Justice $275,000 challenging incumbent Trieweiler raised defending his successfully who raised $360,000 Jean Turnage, seat. a seat Montana to win in highest total of any judicial candidate than half of the $452,000 more as associate justice in 1990; just from his own pockets. came 80 T 80 (non- the second-tier end of the low near campaigns court elections in Montana. statewide gubernatorial)
, 197 with .R. .R. 4f4a9c 4f4a9c - DMIN af1d - .A 574e - ONT 6203 M - 194 Compare Montana Commissioner of Political http://helenair.com/news/local/gray-asks In inflation-adjusted terms, terms, In inflation-adjusted article_829f8d56 See / 192 There is, however, evidence of evidence of There is, however, race - 81 195 in - (Jan. 30, 1997) (Closing Report). (Closing 1997) (Jan. 30, available at available In the 2004 contest between Justice Justice 2004 contest between In the
spending ONTANA In that race for chief justice, still the most most still the In that race for chief justice, - 193 Form C-6 Form M , 196
party -
third - . § 13-1-101(15) (2015) (defining “electioneering communication” as communication” as “electioneering (2015) (defining . § 13-1-101(15) NN A reject LECTIONS IN LECTIONS - E to - Montana Law-Pac Montana ODE Id. Id. Id. Independent-expenditure records are more limited than than limited records are more Independent-expenditure .C ONT UDICIAL trieweiler § 44.10.323(3) (2013) (defining “independent expenditure” as express advocacy) advocacy) as express “independent expenditure” (defining (2013) § 44.10.323(3) M - expensive in Montana history in terms of direct contributions, terms expensive in Montana history in Justice Terry Trieweiler opponent Justice Karla Gray asked her in the campaign, to oppose independent expenditures Association, whose the Montana Trial Lawyers particularly from appearance of gave “the Trieweiler prior affiliations with Justice to Justice Gray. coordinated effort,” according an improperly 192. 193. 194. Montana regulations interpreted the elections considered here, At the time of 195. to include only “communications expressly reportable independent expenditures narrowly and not the broader categoryadvocating the success or defeat of a candidate,” of reportable “electioneering law.communications” in current these were the third-highest and highest fundraising totals for a fundraising totals and highest the third-highest these were dollars, million at just short of one and candidate, court Montana Court expensive Supreme most to the amounted the campaigns record. on race then 2. Independent Expenditures contributions. those for direct J Gray, Karla Justice colleague his against a contest in financed) won. $499,000 and who raised NelsonRepresentative challenger Republican State and James to defeat Nelson raised about $286,000 Cindy Younkin, the in both candidates putting $382,388, Younkin, who raised contributions since 1990. top ten for campaign in the competitive in races beginning money outside significant and associate justice, nearly all for chief justice 2000 campaigns the Association affiliate, the Montana Trial Lawyers of it from Montana Law PAC. 79ed5a.html. publicly distributed candidates”). materials referring to “clearly identified 196. (2014 $18,000 raised about PAC A 1996 filing suggests that the Law Montana dollars) to support challenger James Regnier. 197. Erin P. Billings, Gray Asks Trieweiler to Reject Third-Party Spending in Race 18, 2000, July Record, Helena Indep. Practices,
, - 201 ROCESS , Billings localnews localnews complaint / P - files - 20040927 / stories RACTICE ANDRACTICE , Great Falls Tribune, Sept. Sept. Great Falls Tribune, , / Campaign-Finance Dataset Campaign-Finance P news/local/gray / prompting Younkin to prompting news / billingsgazette.com/news/state-and com 200 . 202 :// Montana Judicial Race Joins Big-Money Judicial Race Joins Montana http PPELLATE A stribune.com ll billingsgazette :// available at http OURNAL OF OURNAL
J In the 2000 campaigns, In the Law the Montana
archive.greatfa HE :// Gray Files Complaint over State Trial Lawyer Mailing 198 , Missoulian, Sept. National Poll, Missoulian, to Disavow Cotter Tweeten Asks
“Outside Money” Haunts Court Race Haunts Court “Outside Money” note 200; Shaila Dewan, note 200; Shaila Dewan, available at available at , http note 201 (reporting on “a 2004 race in which the Montana Trial the in which 2004 race 201 (reporting on “a note Younkin: Trial Lawyers ‘Bought the Race’ for Nelson; Morris Beats Nelson; Race’ for ‘Bought the Trial Lawyers Younkin: http://missoulian.com/uncategorized/tweeten-asks-cotter-to-disavow- supra One commentator “a Younkin victory noted that 2000 supra , The Montana Law PAC also spent $150,000 in Law PAC also spent $150,000 The Montana 203 199 available at Nov. 4 Nov. , In a bitter 2004 campaign for one of two associate justice justice one of two associate for campaign In a bitter 2004 e note 182. 182. note tt claim that “[t]he Montana trial lawyers bought the race, and I that “[t]he Montana trial lawyers claim affairs in state of judicial the think that’s a sad commentary on Montana.” 198. Erin P. Billings, P. Erin 198. available at 8, 2000, seats, the Montana Law PAC raised significant amounts of amounts PAC raised significant Law seats, the Montana the of Nelson in anticipation Justice James money to support behalf of his the race on Commerce entering U.S. Chamber of Cindy Younkin. challenger, Republican State Representative year, It spent as much as $409,000 that national-poll/article_2820aa41-2226-541e-bad5-23a7c2a2f591.html. 199. Erin P. Billings, 82 T 82 one candidate justice, associate for race that year’s In an being taken by . . . purportedly of a “push poll complained . to unjustly influence group . . national interest unknown voters.” Montana of at a cost Justice supporting out mailings PAC sent Trieweiler about at a cost of Patricia Cotter and Justice about $82,000 $85,000. recent in the 2002 campaign; two candidates support of William and Justice who ran unopposed, appointee Jim Rice, significant and enjoyed faced a challenger Leaphart, who lawyer contributions. support from trial Gaze 27, 2004, 27, 2004, over-state-trial-lawyer-mailing/article_ea448fc9-ee5f-544d-8c3a-c60e24fcec24.html. Dennison, Mike 200. Lawyers Association contributed $326,000 to retain a justice, James C. Nelson”); Nelson”); a justice, James C. contributed $326,000 to retain Association Lawyers Law PAC had $138,000 in its supra n. 200 (reporting in September Dennison, that “[t]he late October.”). isn’t due until report its next and of June, account as Iwanski, Len 203. 2, 2004, Press, Nov. Assoc. McLean, /1310006.html (indicating that “[t]he Montana Law PAC spent $150,000 on ads and Montana Law PAC spent $150,000 /1310006.html (indicating that “[t]he literature to help Court candidates in 2002”); two Supreme supra Dennison, 201. trial director of the the executive A11 (quoting at 2014, 3, Nov. Times, Fray, N.Y. as “trying election in that its work characterized who race, the 2004 about lawyers’ group who law,” and with Montana experience and had to ensure that candidates were credible noted that “the challenger inexperienced and the group anticipated a large amount of was never materialized”). Commerce that of Chamber U.S. spending from the Dewan, 202.
, , Billings Campaign- beats/article_1 - note 201 (quoting 201 (quoting note morris - supra , High Country News, Oct. Oct. News, Country , High nelson - http://www.publicintegrity.org/ for - 205 race Several races from 2006 races from Several - The Montana Trial Lawyers The Montana Trial 204 the - Best’s loss in the primary Best’s loss in the primary available at 207 208 83 bought - note 182; Dewan, note 182; Dewan, supra blames-mystery-nonprofits-attacks-defeat; , nelson-to-retire/article_e3f72dcc-2e33-11e0-b328-001c - - http://billingsgazette.com/news/state-and-regional/mont came in 2012, when independent in 2012, came lawyers
- ONTANA M justice
trial - Montana Supreme Court Justice Nelson to Retire Court Justice Nelson to Supreme Montana -
Judicial Candidate Blames Mystery Nonprofit’s Attacks for Defeat note 200; see also Ray Ring, State Judges Get Political: Special- note 182. 182. note available at court - http://www.hcn.org/issues/284/15051. note 201. 201. note supra supra judicial-candidate Three candidates announced: trial lawyer Elizabeth announced: trial lawyer Elizabeth Three candidates / , supra 206 supreme LECTIONS IN LECTIONS - E available at Citizens United Campaign-Finance Dataset Campaign-Finance The first Montana Supreme Court campaign waged entirely Court campaign waged entirely Supreme The first Montana UDICIAL regional/montana/younkin Montana Trial Lawyers Association executive director’s summary of independent Association Montana Trial Lawyers zero”). anything—nothing, didn’t spend we ’10, ’12, 2006, 2008, expenditures: “In 208. Gazette, Feb. 1, 2011, 1, 2011, Gazette, Feb. ana/montana 11, 2004, 11, 2004, Dewan, 205. Press, Associated 206. Interest Money Pours into Hotly Contested Judge Campaigns Center for Public Integrity (May 16, 2013), Center for Public Integrity (May 2013), 16, 013/05/16/12656 cc4c002e0.html. cc4c002e0.html. Beckel, Michael 207. Association provided significant support through its members’ support through its members’ Association provided significant independent did not make but contributions to Best’s campaign, expenditures in the primary. credited Sheehy’s name of whom some surprised observers, - Best, district court judge Laurie McKinnon, and criminal Best, district court judge Laurie Best raised more the primary, defense attorney Ed Sheehy. In most of it from combined, money than the other two candidates but finished a close third in other lawyers and her own funding, what was nearly a three-way tie. J in a court seven-member the of balance political tip the could law enforcement,” and interests favored by business direction appear. Chamber did not but the to or did not appear uncontested 2010 either were through As the Montana expenditures. significant independent involve York told the New director executive Association Trial Lawyers “[i]n ‘12, we 2006, 2008, ‘10, campaign, during the 2014 Times zero.” didn’t spend anything—nothing, after expenditures played a larger role and raised new questions about about a larger role and raised new questions played expenditures Nelson groups. Associate Justice James so-called dark-money judicial 2011, noting that in early retirement announced his and increasingly consuming time “are expensive, campaigns partisan.” Finance Dataset 277e654-8312-5a0f-ad31-e75b59096ce7.html. 277e654-8312-5a0f-ad31-e75b59096ce7.html. Dennison, 204.
, region region - ROCESS and P missoulian note 207; note 207; - :// state / Tax filings http 03c4fc80-d352-11 03c4fc80-d352-11 _ 212 news / com . RACTICE ANDRACTICE available at American Tradition Tradition American P , http://helenair.com/news/local 214 A significant amount of A significant amount 2012 , irepublic ll 213 209 rava PPELLATE Oct. 16 available at available :// A , p tt h Form 990: Return of Organization Exempt from Income Return of Organization 990: Form , Missoulian , Pro-Business Group’s Ad Attacks , Pro-Business Montana Group’s Supreme OURNAL OF OURNAL
available at available J Montana State Senators Raise Big Bucks with Secretive Big Bucks Senators Raise State Montana Although the group disclosed spending Although the
Dissecting a Montana Primary of Surprises, Crossover Voters Surprises, Crossover of Dissecting a Montana Primary HE 211
That group was founded by a Republican state That group was regional/pro-business-group-s-ad-attacks-montana-supreme-court-can note 207. 207. note - 210 ] (accessed Sept. 10, 2015; copy on file with Journal of file with 2015; copy on (accessed Sept. 10, MGN 990] and , Mike Dennison , Mike - supra note 212. 212. note ; Michael Beckel, ; Michael Beckel, , Helena Indep. Record, May 4, 2014, May 4, 2014, Record, Indep. , Helena supra Id. Id. See, e.g. The decisive factors included mailers from an organization an organization from mailers factors included The decisive Ravalli Republic,June 9, 2012, 211. 212. that spending bought mailers and broadcast advertisements broadcast advertisements and that spending bought mailers the general election. in Sheehy attacking 209. Charles S. Johnson, show that the group spent about $690,000 that year on ads spent about $690,000 that show that the group and the as well as “energy fairness” concerning “judicial raised and healthcare,” and the economy taxes and environment, donors including four most of its funds from five unnamed contributions of more than $100,000. mailing with a major Partnership also entered the campaign than related to a more perhaps attacking Sheehy, a development from Montana Growth year $50,000 transfer it received that 84 T 84 Supreme Montana of a longtime nephew as the recognition Sheehy. John “Skeff” Court Justice and criticized Best Network, which Montana Growth called the and to Democrats contributions for past campaign Sheehy supreme choice for only non-partisan as “the praised McKinnon court justice.” mailers it sent two additional election in the general senator, and Sheehy. attacking either than primary—more in the the mailers about $42,000 on campaigns—it raised in their own primary McKinnon or Sheehy its general election expenditures. did not disclose didate/article_4af2a4cc-17f1-11e2-b259-001a4bcf887a.html; Beckel, supra didate/article_4af2a4cc-17f1-11e2-b259-001a4bcf887a.html; Beckel, .com/news/state (2012), http://www.publicintegrity.org/2014/05/03/14709/montana-growth-network- Tax (2012), http://www.publicintegrity.org/2014/05/03/14709/montana-growth-network- filing [hereinafter Process). Appellate Practice and 214. e3-8f16-0019bb2963f4.html (indicating that the e3-8f16-0019bb2963f4.html group’s general-election expenditures cast their not explicitly urge people to with state regulators because it did “went unreported Network, votes against Sheehy”). Growth Montana 213. Court Candidate on Death Penalty /montana-state-senators-raise-big-bucks-with-secretive-nonprofit/article al/article_31bce989-b1ff-5899-9bc6-ffb102777ccd1.html. al/article_31bce989-b1ff-5899-9bc6-ffb102777ccd1.html. Beckel, 210. Supreme Court Heavily during Spent Nonprofit; Conservative Montana Growth Network Elections
, , , in which RGANIZATIONS Montana Commissioner Montana O VanHyningvMTGrowthNet VanHyningvMTGrowthNet See / FTERMATH A The states drew on the UTSIDE 219 , Driscoll v Montana Growth Network , Driscoll v Montana Growth Network ONEY ,O M 2recentdecisions / http://missoulian.com/news/state-and-regional/ 85 ARK ARK D ., 2009 WL 2365205. 2365205. WL ., 2009 note 213. 213. note content LECTION IN THE / A. The Setting E supra ARTISANSHIP AND
ONTANA , available at :P M
Montana Supreme Court Candidate Disavows Negative Ads Disavows Montana Supreme Court Candidate
note 215. UDICIAL Docket of Formal Complaints . The case concerned federal elections, but also federal elections, . The case concerned MGN 990 NITED Brief for the States of Montana, et al., as Amici Curiae in Support of in Support of Amici Curiae Montana, et al., as for the States of Brief Caperton v. A.T. Massey Coal Company the scope of that activity set the stage for the stage for set the of that activity the scope U supra Section II(B). McKinnon disavowed the attacks on her opponent, her opponent, on the attacks disavowed McKinnon 217 Citizens United v. F.E.C United v. Citizens IV. A J Montana led twenty-six states in an amicus brief brief amicus in an Montana led twenty-six states LECTIONS IN LECTIONS While the sources and total amount of independent of independent amount and total the sources While 215 E 218 216 ITIZENS See supra See generally Weeks after newly appointed Justice Mike Wheat took the took appointed Justice Mike Wheat Weeks after newly C OF UDICIAL 0005, http://politicalpractices.mt.gov COPP-2013-CFP-0011, http://politicalpractices.mt.gov/content/2recentdecisions/Driscollv COPP-2013-CFP-0011, COPP-2013-CFP Network Growth Van Hyning v Montana MTGrowthNetworkComplaint; Missoulian, Oct. 30, 2012, Missoulian, Oct. 30, 2012, - 215. Mike Dennison, Mike 215. of Political Practices, urging the Supreme Court not to reach the regulation of regulation reach the Court not to urging the Supreme in the states. corporate electioneering recent case of disproportionate” campaign and the Court held that “significant Dennison, 216. 217. Network remain the Montana Growth complaints against practice Several campaign pending before the state’s Commissioner of Political Practices. J Network. of our highest the prestige diminishes saying “[m]udslinging court.” never be Court race may Supreme in the 2012 expenditures determined, campaigns. 2014 judicial Court issued 2010, the United States Supreme bench in January Citizens United Montana in particular, and would affect the states in general, Due in large part to its Court. especially the Montana Supreme of corruption including history of corporate corruption, judges, workComplaint; http:/ Hamlett v Montana Growth Network, Inc. COPP-2012-CFP-0053, /political practices.mt.gov/content/2recentdecisions/HamlettvMTGrowthNetworkIncCompl Practice and with Journal of Appellate copies on file aint (all accessed 2015; Sept. 10, Process). 218. 219. Neither Party, montana-supreme-court-candidate-disavows-negative-ads/article_079c224-22f2-11e2-afd8 montana-supreme-court-candidate-disavows-negative-ads/article_079c224-22f2-11e2-afd8 -0019bb2963f4.html;
“In ROCESS 220 P Court did And yet, as 223 Justice Stevens Brief of Amici Curiae Brief of , including its 224 RACTICE ANDRACTICE P see also 225 221 Citizens United , 2009 WL 2365225 at *2 (arguing that at *2 (arguing 2365225 2009 WL , PPELLATE A Citizens United Citizens In other words, “[t]he fact that In other words, , 556 U.S. at 887); , 556 222 OURNAL OF OURNAL
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Citizens United v. F.E.C. , 558 U.S. at 460 (Stevens, Ginsburg, Breyer & Sotomayor, JJ., Breyer & Sotomayor, Ginsburg, (Stevens, at 460 U.S. 558 , , 558 U.S. 310, 359 (quoting McConnell v. F.E.C., 540 U.S. 93, 297 U.S. 93, v. F.E.C., 540 (quoting McConnell 359 , 558 U.S. 310, , amounted to a violation of due process. to a violation of , amounted note 21, at 59. 21, at 59. note supra at *15–*16 (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 884 868, U.S. Co., 556 Coal Massey A.T. v. (quoting Caperton at *15–*16 at *16 (quoting at *16 (quoting Id. Id. Citizens United Id. Citizens United The states accepted accepted The states In holding that contribution limits in the federal election in the federal election contribution limits In holding that Professor Larry Howell observes, “if the elected officials in Howell observes, Professor Larry that.” exactly question are judges, it means except for Montana. The consequences for judicial elections, on corporate electioneering, state chose to defend its prohibition enacted 1912 Corrupt which dated back to the popularly 220. the majority of states with judicial elections at some level, level, at some judicial elections of states with the majority that such situations help ensure laws corporate-electioneering states the a single individual,” acts of ‘extraordinary’ remain as usual.” than business argued, “rather officials influence over or access to elected have speakers may are corrupt.” officials does not mean that these the concerns about when “[a]t a time noted in dissent that reached a fever pitch, . . . the conduct of judicial elections have of corporate and union Court today unleashes the floodgates races.” general treasury spending in these 86 T 86 in at issue those like expenditures independent including funds, United Citizens the Amendment, the First law violated not address judicial elections. Instead, in a crucial passage elections. Instead, in a not address judicial on a relied of corruption, it arguably narrowing the definition in the “It is elections: to judicial that was inapplicable principle policies, and, favor certain representative to nature of an elected who to favor the voters and contributors by necessary corollary, support those policies.” (2009)). 221. Justice at Stake et al., “[e]liminating states’ longstanding ability to regulate corporate influence on judicial elections will cripple these essential reform efforts [aimed at “shoring up the public’s the and exacerbate nation’sconfidence in the fairness and integrity of the elected judges”] courts”). the pressure on of special interest recent explosion 222. (Kennedy, J., dissenting)). J., dissenting)). (Kennedy, 223. Howell, 224. 225. concurring in part and dissenting in part) (citations omitted) (recognizing in addition that elections”). popular through judges their the States select majority of “[t]he
: 228 604 The AWS LECTIONS E 227 .L note 21. 21. note ONT supra supra UDICIAL J It cited polls Citizens United Among those Among 1913 1913 M 231 229 OLITICS OF see also P for state judiciaries. On for state judiciaries. EW EW N HE . Am. Tradition P’ship., Inc. v. Bullock, ___ v. Inc. Tradition P’ship., . Am. , distinguishing , T 87 TAKE S
ONTANA . § 13-35-227(1) (2010) (“A corporation may not make . § 13-35-227(1) (2010) (“A corporation may a Citizens United M NN
A USTICE AT A secretive organization called Western Western called organization secretive A
judgment rev’d sub nom rev’d judgment ODE 226 , 230 .C Western Tradition Western It even quoted Mark Twain’s quip about Copper It even quoted Mark Twain’s ONT LECTIONS IN LECTIONS 232 M E at 6–7. 6–7. at at 11. at at 8. at at 10 (citing J cert. granted Id. Id. See , 271 P.3d Western Tradition, 271 P.3d at 11. Id. Id. The Court also addressed judicial elections in detail. It judicial The Court also addressed Ironically, perhaps, it took an elected court to comprehend to comprehend an elected court perhaps, it took Ironically, UDICIAL U.S. ___, 132 S. Ct. 2490 U.S. 132 S. Ct. (2012). ___, 2490 228. (prohibiting certain or contribut[ing] business corporations from “pay[ing] in order to aid, Wiltse, any person”); election of promote or prevent the nomination or 227. (confirming 1, 7 (Mont. 2011) Atty. Gen., 271 P.3d v. W. Tradition P’ship., Inc. that the organization’s stated purpose is “to solicit spend the funds ofand anonymously to influence the outcome of Montana elec- other corporations, individuals and entities tions”), 229. showing that three out of four Americans “believe that campaign that campaign “believe Americans showing that three out of four in states where judges are contributions affect judicial decisions elected.” legislatures bought to have Clark, who “is said King William By his example raiment. buy food and and judges as other men corruption that in Montana he has so excused and so sweetened 2010)). Hall ed., (Charles 2000–2009 226. Tradition Partnership led a challenge to the law. led a challenge Partnership Tradition not and they did legislature, on the activities focused plaintiffs’ judicial campaigns. funds in to spend corporate openly seek in Butte. judges recalled Heinze’s corrupt J Act. Practices clear. were electing judges for Yet the consequences of the implications the courtdistinguishing interests influence, counted “corporate and extractive dependence upon agriculture sparse population, and location as a transportation corridor, resource development, Montana which combine to “make costs,” low campaign of corporate control to to continued efforts vulnerable especially form of republican the and of democracy the detriment government.” December 30, 2011, the Montana Supreme Court upheld the the Court upheld Montana Supreme the 30, 2011, December state law in to protect interests has unique and compelling “Clearly Montana of this statute.” through preservation contribution or an expenditure in connection with a candidate or a politicalconnection with contribution or an expenditure in committee that a political party.”); a candidate or supports or opposes 230. 231. 232.
239 ROCESS P Finally, at length 236 , noting the 72 (1940)). 72 (1940)). Justice James C. Justice James Thus, the Court the Thus, RACTICE ANDRACTICE Caperton P 238 233 RUPTION E WAIN IN WAIN PPELLATE T A ARK 237 ,M WAIN T OURNAL OF OURNAL
J , 556 U.S. at 889 (quoting Republican Party of Minn. v. at 889 (quoting Republican Party U.S. , 556
was controlling. Justice Beth Baker sought a Beth Baker was controlling. Justice ARK HE
Caperton 235 It found support for this defense of an for this defense of It found support 234 at 13. at 11 (quoting M 11 (quoting at (quoting at 14 (Baker, J., dissenting). J., 14 (Baker, at at 18 (Nelson, J., dissenting). 18 (Nelson, at . at 12. . at Id. Id Id. Id. Id. Id. Id. Even the two dissenting justices only reluctantly conceded conceded reluctantly justices only Even the two dissenting Sounding a broader theme of the state’s vulnerability due to of the state’s vulnerability theme Sounding a broader Citizens United Nelson, noting that he “never had to write a more frustrating Nelson, noting that he “never of Citizens United dissent,” expressed his disapproval of a “the applicability while nonetheless acknowledging I profoundly disagree.” with which controlling precedent 233. that what preserve law “to saving construction of the Montana the legislature’s to further and of its constitutionality remains underlying intent to prevent corruption.” a Court will allow Supreme Justice Nelson doubted that “the a group and prohibit them as state to single out corporations United States Supreme Court’s acknowledgement there that there Court’s acknowledgement United States Supreme of the a state interest is, in consequence, “[j]udicial integrity highest order.” the resources, high-value elections and low-cost its relatively for media that “the total expenditure Court also noted for chief justice, about $60,000” in the last race advertising was millions. capacity to spend to corporations’ compared the court turned to former Sandra Day O’Connor’s then- Justice of in the impartiality that a “crisis of confidence recent statement in large part because of “the is real and growing,” the judiciary ‘super spender groups,’ which extraordinary spending power of corporate funded.” are mostly 88 T 88 smell.” an offensive has longer it no in impartial judiciary and independent, fair, concluded, the state’s preservation of clean judicial elections judicial elections of clean the state’s preservation concluded, interests: “[T]he are compelling independent judiciary and an than important no more corporations are rights of the free speech to a fair and courts in Montana litigants rights of the due process are constitutionally and both judiciary, independent protected.” 234. 235. concurring))). (Kennedy, J., (2002) 793 U.S. 765, White, 536 236. 237. 238. 239.
2U 245 i In 242 Citizens , Wall St. J., 05/30/gJQA4DC / Less than six Less than six 243 . 2012 / united Western the Western raised by - 246 240 citizens - The State of the Republican Form of State of the Republican Form The https://www.washingtonpost.com/opinions https://www.washingtonpost.com/opinions articles/SB100014240529702043681045771 / . 5, 14 (2013) (“The decision appears to be the decision appears to be (“The (2013) 14 . 5, Citizens United 89 com . EV court-on - , the Supreme Court’s one-paragraph Court’s one-paragraph , the Supreme wsj applies to the Montana state law.” applies to the Montana . available at .L.R Montana Attempts to Buck the Supreme Court on Attempts to Buck the Supreme Court Montana
ONTANA ONT supreme - M
the - http://www Citizens United, N.Y. Times Jan. 23, 2012, at on Citizens United, N.Y. Times Jan. 23, 2012, Montana Takes
Anthony Johnstone, Anthony , 74 M , 74 to-buck - With a curt citation to the Supremacy Clause the Supremacy to the With a curt citation , George F., Will, George Citizens United see also did not address judicial elections did not address judicial elections Tradition American available at LECTIONS IN LECTIONS majority. majority. The Supreme Court also took notice, staying the state notice, staying Court also took The Supreme 244 Order in Pending Case, Am. Tradition P’ship v. Bullock, No. 11A762 (Feb. 17, 17, (Feb. 11A762 No. Bullock, P’ship v. Tradition Am. Case, in Pending Order E at 2491. 2491. at (Ginsburg & Breyer, JJ., concurring in issuance of stay). in issuance JJ., concurring Breyer, & (Ginsburg (Breyer, Ginsburg, Sotomayor & Kagan, JJ., voting to deny certiorari). voting to deny JJ., & Kagan, Sotomayor Ginsburg, (Breyer, attempts 241 - Id. See, e.g. See Id. Id. The nation took notice of the Montana Supreme Court’s Supreme Court’s of the Montana took notice The nation As in Citizens United UDICIAL U_story.html; Editorial, Political Spending Ruling Court Supreme Tests Montana Bravin, A26; Jess Jan. 4, 2012, first time in decades that a divided Court summarily reversed a state court to invalidate a grounds.”). constitutional state law on 245. opinion in like the and several amici, even though the State of Montana ruling. 240. J., dissenting). 30 (Nelson, Id. at 241. Tradition Ginsburg, concurring in the stay, Justice an unusual statement Montana with the Breyer, sounded agreement joined by Justice and experience elsewhere,” experience, court that “Montana’s of warranted reconsideration an issued Court however, the Supreme months later, court’s reversal of the Montana summary extraordinary decision. that “the no serious doubt” “[t]here can be Court held that holding of and Ginsburg, Sotomayor, by Justices Justice Breyer, joined Court’s “this asserting that Kagan, voted to deny the petition, Court’s the Montana Supreme legal conclusion should not bar before it, that independent finding, made on the record in fact lead to corruption or the expenditures by corporations did appearance of corruption in Montana.” J he that noted as he even elections,” judicial in speaking from . concerns” of the . . some “share[d] for certiorari. filing of a petition pending the court decision /montana 39100369896494. 39100369896494. 242. 2012). 243. 246. United, Wash. Post, May 30, 2012, 30, 2012, May Wash. Post, United, Government in Montana Government 244. Ct. 2490 (2012) S. 132 U.S. ___, American Tradition Partnership v. Bullock, ___ (per curiam);
Am. 252 ROCESS Montana P , 132 S. Ct. , 132 S. Judicial Judicial Am.Tradition 247 for judicial Am. Tradition P’ship v. ]; Amicus Br. of Retired of Retired Amicus Br. ]; RACTICE ANDRACTICE P Citizens United PPELLATE Montana Brief Am. Tradition P’ship v. Bullock Am. Tradition A , “are not ‘representatives’ with , “are not ‘representatives’ with The Court did not engage these The Court did not engage these 249 note 247, at 3. at 247, note 251 supra supra OURNAL OF OURNAL
, J note 247, at 25–26. at 247, note
HE , 132 S. Ct. 2490 (2012), 2012 WL 1863412. WL 1863412. 2012 (2012), Ct. 2490 S. , 132
supra supra ,” and “[n]ot even Petitioners claim a right to a right claim even Petitioners ,” and “[n]ot , Br. in Opp. of Montana, Br. in Opp. of Montana, , or fail to meaningfully distinguish that case.” distinguish that , or fail to meaningfully Twenty-two states and the District of Columbia of Columbia Twenty-two states and the District , 132 S. Ct. 2490 (2012), 2012 WL 1829056 [hereinafter [hereinafter WL 1829056 (2012), 2012 Ct. 2490 S. , 132 Eight of the eleven then-living retired justices of the then-living retired justices of Eight of the eleven 250 ]. 248 See generally Montana Brief , 132 S. Ct. 2490 (2012), 2012 WL 1853624. 1853624. WL 2012 (2012), S. Ct. 2490 132 , 2491. Ct. at S. American Tradition, 132 Montana Justices’ Brief Montana Justices’ Beyond Montana, constitutional scholars noted that “[i]t is constitutional scholars noted Beyond Montana, arguments about the implications of about the implications arguments elections, but instead noted generally that “Montana’s arguments that “Montana’s arguments elections, but instead noted generally either were already rejected in in support of the judgment below Citizens United 247. elections, Montana argued, were “wholly unexamined in unexamined were “wholly Montana argued, elections, United Citizens yet corporate expenditures, through judicial campaigns influence the sweep broadly enough to undermine their arguments as the political as much system the judicial integrity of system.” special that “[e]normous argued Court Montana Supreme state judicial elections are threatening in interest expenditures to right central guarantees—the most one of the Constitution’s a fair trial.” due process and the Court intended to foreclose that imagine difficult to elections present compelling evaluation of whether judicial not involve did judicial interests in a case that government elections.” the presidential and unlike argued that state judges, the subject of the campaigns congressional candidates who were Citizens United in at issue outside influence by major offices open to the public, and factor in a legitimate as spenders is not recognized campaign judicial decision-making.” [hereinafter 1853622 WL 2012 2490 (2012), P’ship v. Bullock 90 T 90 of the consequences itself, highlighted Court Supreme Montana the for campaign expenditures and union corporate unlimited states. most justices in of judges and selection Resps., of in Support at Stake Justice Ct. and Mont. Sup. Justices of the Justices’ Brief 248. Tradition P’ship v. Bullock 251. at 17, Support of Resps. al. in York, et of New Amicus Br. 250. 8, at Resps. of Support James Sample in Dellinger and Walter of Amicus Br. Bullock 252. 249.
Lair v. Lair See . Relying on Relying on 255 In a challenge In a challenge Having learned Having 253 Citizens United 254 . Cox v. McLean, 49 F. Supp. 3d 765, 768 (D. 768 765, 3d F. Supp. 49 v. McLean, Cox 91 257 Citizens United Citizens see also The court concluded that “Montana The court concluded that “Montana blazed a trail for other challenges challenges other trail for a blazed ); 258
ONTANA note 244, at 11–12 (discussing challenges to note 244, at 11–12 (discussing challenges state election M
and held that the law was likely to fail the law was likely to fail the and held that the . § 13-35-231. 13-35-231. . §
256 supra NN , the court applied strict scrutiny to the speaker- strict scrutiny applied , the court A ODE American Tradition .C LECTIONS IN LECTIONS E at 745–46. 745–46. at at 746. 746. at at 747. 747. at ONT Id. See Johnstone, Id. Id. [i]f Montana were that partyconcerned [i]f endorsements Montana independence, electedmight undermine judges’ judges, with a bipartisan and expert panel its could appoint making nominations—a less restrictive alternative currently states.practiced by several American Tradition American UDICIAL 255. (9th Cir. 2012). 741 3d 698 F. Bullock, Comm. v. Cent. Cnty. Republican Sanders 256. The partisan-endorsement ban also was under-inclusive because ban also was The partisan-endorsement political parties but not by by “it forbids judicial endorsements special interest corporations, other associations, individuals, groups, and the like.” [the statute] or enforcing from forthwith must be enjoined party’s right to endorse with a political otherwise interfering 253. from the Montana about challenging Court a lesson Supreme from of experience with first-hand before state judges laws election forum of more favorable the to litigants turned elections, to One of thefederal courts. judges in the appointed laws first 1935 Corrupt Practices Act was Montana’s fall after the 1912 it unlawful for a election law, which made non-partisan judicial expenditure an “endorse, contribute to, or make political party to a judicial candidate.” to support or oppose Citizens United based restriction, Its ban on partisan endorsements requirement. narrow-tailoring because was overbroad laws following J Ninth Circuit Republican Committee, the brought by a county of the law. enforcement enjoined preliminarily following the reasoning of the reasoning following 257. 258. Mont. 2014) (preliminarily enjoining state law prohibiting complainant’s publication of his prohibiting (preliminarily enjoining state law Mont. 2014) complaint to the Standards Commission). Most recently, and with significant Judicial Ninth Circuit the Montana, judicial elections—among others—in consequences for remanded a challenge to the state’s limits contribution for consideration of whether they meet the narrower quid pro quo corruption interest identified in Bullock, 798 F.3d 736 (9th Cir. 2015) (amending and superseding opinion firstand superseding reported at 736 (9th Cir. 2015) (amending Bullock, 798 F.3d 989). 787 F.3d M 254.
ROCESS P Citizens Citizens Citizens declining declining 264 RACTICE ANDRACTICE P Sanders Cnty. Republican See Sanders Cnty. Republican Partisan influence, Judge Partisan influence, In early 2014, the Supreme In early 2014, the Supreme PPELLATE 261 . 69, 107 (2011)). 107 . 69, A 263 EV The result, she wrote, was that wrote, was that The result, she 260 OURNAL OF OURNAL
J , 86 N.Y.U., 86 L. R
HE Thus, Montana’s judicial elections not only elections not judicial Thus, Montana’s B. The Candidates and Issues
259 and their power to make unlimited independent unlimited to make and their power 262 at 751 (Schroeder, J., dissenting). The Ninth Circuit later clarified that its The J., dissenting). at 751 (Schroeder, at 749. 749. at (Schroeder, J., dissenting). (Schroeder, (Schroeder, J., dissenting). (Schroeder, at 750 (Schroeder, J., dissenting) (quoting Michael S. Kang & Joanna M. Kang Michael S. (quoting J., dissenting) at 750 (Schroeder, . Like the Supreme Court’s breach of the 100-year-old Court’s breach the Supreme . Like “threatens to further erode state judges’ ability to act state judges’ “threatens to further erode The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions Analysis Price of Justice: An Empirical The Partisan Id. Id. Id. Id. Id. The 2014 campaign of Mike Wheat and Lawrence of Mike Wheat The 2014 campaign Judge Mary Schroeder dissented from what she noted was what she from Schroeder dissented Judge Mary 263. VanDyke produced a contest between two lawyers who were VanDyke produced a contest between to southwestern Montana. born elsewhere but quickly moved service after home returned Wheat ended. There the similarities another opportunity to address judicial elections after elections judicial another opportunity to address United a matter within lead would this decision Corrupt Practices Act, elections. into Montana to a flood of new money of months Court denied Montana’s petition for certiorari, Court denied Montana’s petition 259. “parties can work to secure judges’ commitments to the parties’ the parties’ to commitments to secure judges’ “parties can work the state has of the non-partisan goal agendas in contravention process.” chosen for its selection under or against judicial candidates expenditures for United independently and impartially.” 92 T 92 such publicize to monies to expend and candidates judicial endorsements.” too. to be partisan political, they had had to be has chosen a non- though a state even case “to hold that the first have a right political parties process, judicial selection partisan to endorse candidates.” because parties is “particularly pernicious Schroeder explained, sprawling bundling agents that coordinate serve as ‘natural and of policy domains across all types political coalitions venues,’” decision invalidated the prohibition on party endorsements and independent expenditures, but not the prohibition on party contributions to candidates. Cent. Comm. v. Fox, 717 F. 3d 1090, 1092 (9th Cir. 2013). Cir. (9th 1092 1090, F. 3d 717 Fox, Cent. Comm. v. S. Ct. 1345 264. 134 U.S. ___, Comm., ___ Cent. Cnty. Republican Fox v. Sanders certiorari). (2014) (denying 260. 261. 262. Sheperd, Decisionmaking and Judicial
8a182a04-58 _ Wheat was one 269 experience/article - of - He graduated from the He graduated from http://missoulian.com/news/state-and- 265 years - http://missoulian.com/news/local/bozeman- touts - 93 available at available wheat - available at In 2008 he ran unsuccessfully in the In 2008 he ran unsuccessfully race -
ONTANA Montana Supreme Court Race; Wheat Touts Years of Touts Court Race; Wheat Montana Supreme 268 Bozeman’s Mike Wheat Appointed to Montana’s Supreme Bozeman’s M
For nearly three decades he practiced practiced For nearly three decades he court -
266 note 265. 265. note supreme - supra From 2003 to 2007 he served one four-year term in term 2003 to 2007 he served one four-year From LECTIONS IN LECTIONS 267 E , Missoulian, Oct. 19, 2014, 2014, 19, Oct. Missoulian, , Id. Id. Mike Wheat was born in Spokane, Washington in 1947, Washington was born in Spokane, Mike Wheat , Missoulian, Dec. 23, 2009, 23, 2009, , Missoulian, Dec. UDICIAL regional/montana 14-11e4-82be-b7c7a1293861.html. 14-11e4-82be-b7c7a1293861.html. Johnson, 269. Democratic primary for state attorney general. for state attorney primary Democratic by seat opened justice fill the associate to of eleven applicants Experience University of Montana School of Law, after which he served as of Law, University of Montana School Bow County, Montana, a deputy county attorney in Butte-Silver for three years. Judiciary the Senate chairing Senate as a Democrat, the Montana in 2005. Committee S. Johnson, Charles 265. Court s-mike-wheat-appointed-to-montana-supreme-court/article_6464ff9a-efea-11de-95a0-001c c4c03286.html. 266. 267. S. Johnson, Charles 268. “plaintiff-oriented and appellate litigation, with an emphasis on an emphasis litigation, with “plaintiff-oriented and appellate and insurance-related claims,” personal injury, product liability in Bozeman, classmate he founded with a law-school in a firm Montana. J of University at the school for law Vietnam in marine as a left VanDyke as a state prosecutor. and a short stint Montana School for Harvard Law Montana the D.C. a clerkship on and in Montana trial attorney had been a plaintiff’s Wheat Circuit. of in his first decade VanDyke was three decades. courts for at a national an appellate attorney as having started practice, as an elected Democratic politics eventually entered Wheat firm. for state attorney general. a campaign lost and later state senator to the but was attracted served in elective office, VanDyke never Attorney Texas docket of the Republican high-profile legal under the before landing an appointed position General’s office These Attorney General. Montana newly elected Republican of the the foundation would become biographical differences in the campaign. core political differences 1. Mike Wheat to Montana in 1948. and moved
LECTION ROCESS E P archived at https:// ENERAL . 199, 201 (2014). (2014). 201 . 199, G EV RACTICE ANDRACTICE .L.R P He argued that “the He argued that The Hercules of Helena: Justice of Helena: Hercules The ONT TATEWIDE TATEWIDE 273 http://billingsgazette.com/news/state- , 75 M , 75 PPELLATE A , 2010 S available at TATE S /http://www.wheatforjustice.com/ (accessed Sept. 18, (accessed /http://www.wheatforjustice.com/ Anthony Johnstone, Johnstone, Anthony . art. IX, § 1(1) (“The state and each person shall . art. IX, § 1(1) (“The state and each person shall Governor Brian Schweitzer, a Brian Schweitzer, Governor 270 OURNAL OF OURNAL
ONST J see also see In a 2010 uncontested retention election, retention election, uncontested In a 2010 ; .C
HE Id. 271
ONT note 268. 268. note ECRETARY OF 20141013014020 M S supra In response to criticisms of his decisions by the U.S. of his decisions In response to criticisms 275 As the campaign progressed, Wheat emphasized what emphasized progressed, Wheat As the campaign see also Justice Wheat became the second former legislator on the court, joining Justice 6-1, available at http://sos.mt.gov/Elections/Archives/2010s/2010/2010_General at http://sos.mt.gov/Elections/Archives/2010s/2010/2010_General 6-1, available ; ONTANA 274 See Mike Wheat for Justice, http://www.wheatforjustice.com/,See Mike Wheat Id. Id. Id. In his 2014 campaign for a new term, Wheat ran on “four ran on “four for a new term, Wheat In his 2014 campaign 272 ANVASS _Election_Official_Statewide_Canvass.pdf (accessed Sept. 18, 2015; copy on file 2015; with Sept. 18, (accessed _Election_Official_Statewide_Canvass.pdf Process). and Practice Appellate Journal of 273. web.archive.org/web/ 2015; copy on file with Journal of Appellate Practice and Process). Appellate Practice and of file with Journal on 2015; copy 274. maintain and improve environment a clean and healthful in Montana for present and future generations.”). Johnson, 275. C 270. 271. voters retained Justice Wheat with seventy-eight percent of the seventy-eight percent Wheat with Justice voters retained vote. personal experience in life and he called a “depth of professional common sense I call judicial develop what that I think helps me in going on in the case,” and just understanding of what’s was twenty-five years contrast to an opponent who implicit younger. 94 T 94 three finalists one of and Warner, John of Justice the retirement Nomination state Judicial the from a nominee as to emerge process. Commission as his as well experience,” service and public decades of legal Court. Supreme on the Montana time Democrat, appointed Wheat to fill the remainder of Justice remainder of to fill the appointed Wheat Democrat, initial subject to an ending in 2014, eight-year term Warner’s in 2010. election deserve a of Montana by the Constitution to us rights afforded specifically on guardian,” and focused strong and independent “a clean right to state constitutional distinctive his defense of the land and as well as public access to environment” and healthful water. 272. M 272. Jim Rice, who served three terms as a Republican state representativeserved three terms as a Republican Jim Rice, who his before Sworn in as Ex-Legislator McKee, Lawyer, subsequent election. Jennifer appointment and 2010, 5, Justice, Billings Gazette, Jan. and-regional/montana/lawyer-ex-legislator-sworn-in-as-justice/article_902b9e3a-fa86-11de elected as a was previously Mike McGrath Chief Justice -9e48-001cc4c03286.html. previously elected as Nelson was James C. Democrat for state attorney general, and Justice Republican court by to the appointed was Nelson attorney (though a Democrat for county Racicot). Marc Governor James C. Nelson and the Jurisprudence of Principle of Jurisprudence and the Nelson C. James
, 279 http:/ TATE TATE OURT support C - ONTANA as well , M 280 , 2012 S deserve - UPREME available at S MEA-AFT Public , rice - Citizens United EFORM , Billings Gazette, Oct. R , 2014 wheat 2 - ONTANA EGAL , Great Falls Tribune, Oct. 11, , Great Falls Tribune, Oct. 2 Bar Survey and Bench 2014 L , http://www.instituteforlegalreform In general, Wheat rejected Wheat rejected In general, 7 (2012) (ranking Montana forty-fifth 7 (2012) (ranking EASURES 277 M LIMATE available at 95 2014 MCV Endorsed Candidates C NSTITUTE FOR I 8939c216-4a43-11e4-947e-6b1003c5c88e.html AWSUIT AWSUIT
ONTANA ERFORMANCE HAMBER HAMBER P :L M
, Bozeman Daily Chronicle, Oct. Daily Chronicle, , Bozeman Let’s Keep Rice, Wheat on Supreme Court Wheat on Supreme Rice, Let’s Keep
http://billingsgazette.com/news/opinion/editorial/gazette-opinion/ OURT URVEY note 268. 268. note Interestingly, he also criticized criticized he also Interestingly, C S U.S. C 278 http://www.greatfallstribune.com/story/news/2014/10/12/wheat-vandyke http://www.greatfallstribune.com/story/news/2014/10/12/wheat-vandyke supra “The chamber is more of a political organization,” organization,” a political of is more “The chamber LECTIONS IN LECTIONS UPREME YSTEMS see also http://courts.mt.gov/portals/113/supreme/measures/2014/bar-survey14.pdf. http://courts.mt.gov/portals/113/supreme/measures/2014/bar-survey14.pdf. 276 S E S ; 281 Id. Id. Compete for Supreme Court Post Wheat, VanDyke See Candidates? the Recommended Election 2014: Who Are available at ONTANA IABILITY UDICIAL .com/uploads/sites/1/Lawsuit_Climate_Report_2012.pdf; M among states for their “legal climate”), M /www.bozemandailychronicle.com/opinions/editorials/editorial and echoed traditional concerns and echoed traditional influences” in about “outside have an Montanans explaining that “[w]e judicial races, or want outside corporations and we don’t independent attitude affairs.” us how to run our group[s] telling special interest newspapers, major from endorsements Wheat received and and teachers union MEA-AFT the public-employee as from Montana Conservation group advocacy the environmental Voters. 276. L J percent eighty-five an cited Wheat of Commerce, Chamber survey of biennial court’s anonymous level in the approval lawyers. it better views make its policy that suggesting Wheat argued, lobbying the legislature. suited to any complaints that he might bring a particular agenda to the a particular bring that he might any complaints mostly and the justices act collectively that court, noting unanimously. 2014, -compete-supreme-court-post/17068781/. Opinion: Gazette 280. (2014) (showing that, averaged across ten performance measures, eighty-five percent(2014) (showing that, averaged across ten performance of well), performed agreed that the court attorneys and faculty, judges, law 404 respondent available at Johnson, 277. 278. 279. available at 7, 2014, gazette-opinion-let-s-keep-rice-wheat-on-supreme-court/article_f38ff427-a3d1-567f-8591- must (“The Montana Supreme Court remain a venue where a former f52f00e67487.html aside personal put together, work can lawmaker Democratic a former and GOP lawmaker will get that result if Voters Montana. for the people of just decisions biases and make fair, for Deserve Support Wheat, Rice and Wheat to the court.”); Editorial: they return Rice Court Montana’s Supreme Schools Public Service (Oct. 2014), http://www.mea-mft.org/Articles/election_2014_who_ http://www.mea-mft.org/Articles/election_2014_who_ Schools Public Service (Oct. 2014), are_the_recommended_candidates.aspx; -for-montana-s-supreme-court/article_ high balance to the with distinction.And they bring have both served (“Wheat and Rice Gov. appointed to fill by Republican were the terms of retiring justices—Rice court. Both Brian Schweitzer.”). Gov. Democratic by Judy Martz, Wheat 281.
284 ROCESS P candidate-s- - , A.P., Oct. 25, 2014, 2014, , A.P., Oct. 25, questions - 604622ecd1ee.html. 604622ecd1ee.html. - Ted Cruz Longest-Serving Longest-Serving Ted Cruz RACTICE ANDRACTICE a83d P - colleague / 5390 - result-oriented/article_a85a5b9c-501 result-oriented/article_a85a5b9c-501 - http://missoulian.com/news/state-and- http://missoulian.com/news/state-and- as 1b41 - - He graduated from Harvard Harvard Hegraduated from regional - , Austin-American Statesman: PolitiFact PPELLATE , Alex Wilts, A 282 and - wheat - 6cdf44c8 state / _ available at available at see also, e.g. see criticizes news - / OURNAL OF OURNAL
J VanDyke Cites Experience, Criticizes Wheat as Result- VanDyke 285 In 2012, VanDyke became an assistant became VanDyke In 2012,
court/article HE - 283 (n.d.), http://mtvoters.org/node/2161 (both accessed Sept. 18, (both accessed Sept. 18, http://mtvoters.org/node/2161 (n.d.), Montana Supreme Court Candidate VanDyke Says Appeals Are Says VanDyke Court Candidate Montana Supreme
note 283. One of VanDyke’s former colleagues told former colleagues note 283. One of VanDyke’s a reporter that experience note 282; - OTERS supreme missoulian.com supra - supra V :// http montana - Lawrence VanDyke was born in Midland, Texas, in 1972 Texas, in 1972 born in Midland, VanDyke was Lawrence , Missoulian, Oct. 30, 2014, 2014, Oct. 30, , Missoulian, for - ONSERVATION Solicitor General of Texas, Jerry Falwell Said regional/montana-supreme-court-candidate-vandyke-says-appeals-are-focus/article_39b9c6 regional/montana-supreme-court-candidate-vandyke-says-appeals-are-focus/article_39b9c6 40-5854-5fed-8158-060ae2f771bd.html. Johnson, 284. http://www.politifact.com/texas/statements/2015/mar/25/jerry- 2015), Texas (Mar. 23, falwell/ted-cruz-longest-serving-solicitor-general-texas-j/ (indicating was that Ted Cruz file on copy 2015; 21, Sept. (accessed than five years) for more solicitor general in Texas Appellate Practice and Process). with Journal of Dennison, 285. “I just don’t think he has the maturity or the work ethic to aspire to this position.” Matt Volz, Court Supreme Skills for Montana Questions Candidate’s Colleague available at skills C solicitor general in the office of Republican Texas Attorney Texas Attorney in the office of Republican solicitor general leading role in office noted for a General Greg Abbott—an with the state’s and defenses consistent constitutional challenges U.S. including and for developing alumni, conservative politics, politics. who are influential in Republican Senator Ted Cruz, Fox Tim Montana Attorney General Newly elected Republican his general in as solicitor tapped VanDyke in 2013 to serve after eighteen months, the post Van Dyke left administration. co-workers over his with “saying he had disagreements approach to the job.” 96 T 96 Van Dyke 2. Lawrence Montana in 1973. to and moved Law School in 2005, after which he clerked for Judge Janice for Judge which he clerked in 2005, after Law School years then spent five Circuit, and Brown of the D.C. Rogers cases for on pro bono litigation and working practicing business causes with the civil and religious liberty groups supporting in Washington, Gibson, Dunn & Crutcher national law firm D.C., and Texas. 2015; copies on file with Journal of Appellate Practice and Process). Practice and Appellate of with Journal on file 2015; copies Charles S. Johnson, 282. 2014, Oriented, Missoulian, Oct. 9, regional/vandyke-cites 1f-11e4-ad31-c3d720ff006c.html. 1f-11e4-ad31-c3d720ff006c.html. Dennison, Mike 283. Focus
“My 289 https://web.archive VanDyke received http://www.greatfallstribune http://www.greatfallstribune archived at 291 His campaign slogan slogan His campaign 286 Debating Who Won, Plus NRA LikesDebating Who Won, Plus NRA note 282. 282. note available at available note 283. 283. note supra supra supra 97 292 note 279. 279. note
ONTANA In interviews, he repeatedly cited the U.S. the U.S. he repeatedly cited In interviews, M supra
Wheat’s Record under Attack: What’s Really in the Record? under Attack: Wheat’s Record 290
note 283; Johnson, note 283; Johnson, note 282 (mentioning the Chamber of Commerce, Realtors, 282 (mentioning the Chamber note note 282 282 note note 282; Dennison, Dennison, 282; note He said that he decided to run because “working decided to run because “working He said that he 288 supra supra supra supra supra supra LECTIONS IN LECTIONS VanDyke reportedly declined to answer “whether he’s to answer reportedly declined VanDyke E 287 VanDyke’s campaign emphasized his experience in experience his emphasized campaign VanDyke’s UDICIAL 286. Johnson, 286. was “Following the Law, Not the Politics,” and his campaign his campaign and Not the Politics,” the Law, was “Following background partisan political Wheat’s highlighted materials own in his partisan alignments the while de-emphasizing career. to the I came appeals and constitutional lawyer, as the state’s top to live up to Wheat has failed Mike opponent conclusion that my neutrality.” of complete requirement the essential Democrat,” he’s a liberal is not that with Wheat Mike problem is he like a judges problem reporter, “[m]y VanDyke told a liberal Democrat” what he called the report and criticized of Commerce Chamber cases. court’s unpredictability in business the of Commerce, the Montana Chamber from endorsements of Montana Association Montana Contractors Realtors, Federation, and the Bureau Association, the Montana Farm Association. National Rifle 287. Van Dyke Justice for vandykeforjustice.com, (n.d.), 289. Dennison, Great Falls Tribune, Mike 290. 31, 2014), http://www.dailyinterlake.com/news/local_elections/DailyInterLake.com (Oct. wheat-s-record-under-attack-what-s-actually-in-the/article_a9f59eac-6155-11e4-98ad-3b38 the most significant issue inDyke thought the that Van (indicating as well e855072b.html undermines our entire system“activist or of agenda-driven judging race was how with Journal of Appellate Practice and file copy on 2015; government”) (accessed Sept. 21, Process). Johnson, 291. J litigation. and constitutional appellate explained that warrior,” and instead a partisan conservative [to let personal is to put that tendency “[j]ob one for judges your own decisions] aside and not apply biases influence preferences.” (accessed Sept. 21, .org/web/20141017104149/http://vandykeforjustice.com/view/compare/ Process). Appellate Practice and of file with Journal on 2015; copy Dennison, 288. Johnson, 292. Farm Bureau endorsements); Contractors, and , Great Falls Tribune, Sept. 30, 2014, 30, 2014, Falls Tribune, Sept. Great , VanDyke .com/story/opinion/2014/09/30/debating-won-plus-nra-likes-vandyke/16516839/ (noting of any judicial that its endorsement was the NRA’s “only endorsement of Van Dyke for 2014”). candidate in Montana
ROCESS P Wheat Wheat 293 297 RACTICE ANDRACTICE P Cross v. Van Dyke v. Van Cross note 285 (“We’ve got lots of people lots of people 285 (“We’ve got note . P. 27. PPELLATE supra PP A Early in the campaign, these 296 .R.A ONT M Less than two weeks after VanDyke weeks after VanDyke Less than two OURNAL OF OURNAL
See J 298
HE
note 283. note 290. note 282 (reporting that “[t]he Supreme Court Clerk’s office said 282 (reporting Supreme note that “[t]he Volz, 282; see also Volz, note . art. VII, § 9(1). VII, § . 9(1). art. supra supra supra VanDyke’s response was that Wheat’s long was that Wheat’s VanDyke’s response supra ONST .C 295 Wheat also criticized VanDyke’s lack of trial experience, VanDyke’s lack of trial experience, also criticized Wheat ONT C. The Qualifications Challenge: Challenge: Qualifications C. The Both candidates made their experience as practicing practicing as experience their made Both candidates While VanDyke was admitted to the State Bar of Montana to the State was admitted While VanDyke 294 that since January 2006, the court has had only 34 out of 6,602 cases in which a party gives a party which cases in of 6,602 34 out had only has the court 2006, that since January is atnotice to the court that a constitutional issue reported in this question.”) The figure notice requirement the story understates the constitutional because caseload, however, applies only to “a party who challenges the constitutionality of any act of the Montana legislature,” or facial challenges to laws, and does not apply to the constitutionality of or local laws. executive actions with lots of trial VanDyke said. “I think what we need is some- experience on the court,” in that.”). expertise has some constitution, and the law on the actually focuses who body Johnson, 294. 298. 2014). 216 (Mont. 215, P. 3d 332 VanDyke, Cross v. political issues about experience became a legal question became political issues about experience be requires judges to Montana Constitution because the Montana for at least five to the practice of law in “admitted or election.” appointment years prior to the date of in 2005, he took inactive status—a class of bar membership for class of bar membership in 2005, he took inactive status—a in the practice of law in lawyers who “are not engaged Montana”—in 2007. he was sued for lack of filed for office in March 2014, practice of law in to the under the “admitted qualification Johnson, 293. lawyers a primary qualification for serving on the bench, and on the bench, and for serving qualification a primary lawyers experience. relevant for a lack of his opponent each criticized experience, VanDyke appellate to his own specialized Pointing one on our court it would hurt to have at least said “I don’t think appellate and constitutional issues.” that focuses on the kind the candidate who “has was himself stating that Wheat of a kind for this required of law that’s the area in of experience position.” him of cases made too on the plaintiffs’ side experience to trial lawyers. sympathetic 98 T 98 responded that “it’s not the kind of job that demands a demands “it’s not the kind of job that responded that the court faced a much that given specialist,” constitutional a law is just of issues of which constitutional broader docket part. 295. Dennison, Dennison, 295. Dennison, 296. M 297.
s, The court 303 The majority, The majority, , followthemoney.org , followthemoney.org 304 : Admitted Only Means VanDyke attacked the VanDyke http://missoulian.com/news/local 300 http://billingsgazette.com/news/government- available at The court concluded that the that the The court concluded 99 . art. VI, § 3(2) (addressing qualifications for 88 (2014) (summarizing facts, background, and and 88 (2014) (summarizing facts, background, . art.. VII, § 9(1) (addressing qualifications 9(1) (addressing qualifications § for VII, . art.. 305 ONST 301 ONST NLINE available at available .C The district court disqualified VanDyke, VanDyke, court disqualified district The
ONTANA .C . O 299 M Judge Orders Montana Supreme Court Candidate Removed Removed Montana Supreme Court Candidate Orders Judge ONT Court to VanDyke: McGrath, Wheat Already Recused Selve Recused Wheat Already McGrath, VanDyke: Court to
EV ONT at 219 (noting requirement of construing state constitution “as a requirement of construing state at 219 (noting
Tyler Stockton, Note, Cross v. VanDyke .L.R Considering the case without them, a divided case without them, a divided Considering the ONT 302 LECTIONS IN LECTIONS , 332 P.3d at 215–16. 215–16. P.3d at , 332 , Missoulian, Apr. 24, 2014, 2014, , Missoulian, Apr. 24, E Contributions to Mike Wheat: 2014 Supreme Court – 2 Court Supreme Wheat: 2014 Contributions to Mike The court contrasted this qualification for justices with the constitutional , Cross Id. Id. Id. See generally On appeal, Justice Wheat and Chief Justice McGrath, who Justice McGrath, Chief and Justice Wheat On appeal, UDICIAL opinions, and analyzing reasoning) (accessed Sept. 22, 2015; copy on file with Journal on of 22, 2015; copy reasoning) (accessed Sept. opinions, and analyzing Process). Appellate Practice and 304. 305. justices)). Justice Baker writing for the court, focused on the word focused on the for the court, writing Justice Baker or inactive— that bar membership—active and held “admitted” satisfied that requirement. 299. 300. 301. Charles S. Johnson, from Ballot /judge-orders-montana-supreme-court-candidate-removed-from-ballot/article_4ff9de60-ccc Two of a-11e3-ba8b-0019bb2963f4.html. the five plaintiffs, Wade Dahood and Michael contributed to the Wheat campaign. of their attorneys, Gene Jarussi, had one and McKeon, See, e.g. Billings Gazette, May 7, 2014, and-politics/court-to-vandyke-mcgrath-wheat-already-recused-selves/article_4847f972-4d9 6-5a1a-943a-0e16767ae3b1.html. 303. J provision. Montana” ballot. the primary him from excluding campaign, recused to Wheat’s $200 contributed each had themselves. in a four-to-three vote. Court reversed Supreme of main page on file 2015; copy with http://followthemoney.org/ (accessed Sept. 21, (n.d.), Practice andJournal of Appellate Process) (click “start here,” then enter individual contributors’ names to find records). 302. Charles S. Johnson, suit as “brought by Mike Wheat campaign donors to eliminate donors campaign Wheat by Mike suit as “brought lawsuit.” by competition to take decision “whether VanDyke’s the issue as framed practiced he State Bar of Montana while the inactive status with the meeting from him states disqualifies law in other of law in to the practice of admission requirement constitutional years prior to the election.” Montana for five attorney general) and M whole,” and citing both M whole,” and qualification for attorney general, which requires “active practice [of law] for at qualification for practice [ofleast attorney general, which requires “active law] five years before election.” Id. , 75 M Admitted, 75
see See, ROCESS P note 201; supra note 89, at 1119–20); RACTICE ANDRACTICE P supra , The dissent emphasized emphasized The dissent 307 PPELLATE A 306 RANSCRIPT http://www.wsj.com/articles/judges-step-up- T Surprisingly, however, the amount Surprisingly, however, the amount 310 available at available Neither the majority nor the dissent Neither the majority ONVENTION OURNAL OF OURNAL
note 301. note J 308
Judges Step Up Electioneering as Outside Money Pours intoJudges Step HE supra D. Financing the Campaign
note 3. note supra ., ., 309 , 332 P. 3d at 224 (Cotter, (explaining 3d Sandefur & McLean, JJ., dissenting) , 332 P. ET AL at 222. 222. at at 224 (Cotter, Sandefur & McLean, JJ., dissenting). District Judge Dirk M. District Judge JJ., dissenting). Sandefur & McLean, at 224 (Cotter, at 221 (quoting IV C , at 222 (“The record thus supports our analysis Constitutional Convention of the See Joe Palazollo, Id. Id. Cross Id. For the dissent, Justice Cotter focused on the word focused on Cotter Justice dissent, For the With the field set, the candidates and allied advocacy the field advocacy and allied set, the candidates With , Wall St. J., Oct. 13, 2014, 2014, , Wall St. J., Oct. 13, , followthemoney.org, , followthemoney.org, REYTAK also id. Article VII, Section 9(1)”). of plain language 310. Races electioneering-as-outside-money-pours-into-races-1413149643; Dewan, G 306. groups began what would become a million-dollar judicial judicial a million-dollar what would become groups began of national note. campaign by both candidates was below contributions raised of campaign 100T voters and “the eligibility” minimum “determines constitution serve.” is qualified to decide who was disqualified that VanDyke and concluded “practice” law in practice of from “the he was prohibited because status. while on inactive Montana” to the that the delegates argument adopted the plaintiffs’ the including of 1972 (presumably constitutional convention candidates supreme-court intended to limit plaintiffs themselves) for five Montana in had actually practiced only to those who law and with Montana be familiar would they years so that procedure. the court’s power to establish the qualifications to practice law to to establish the qualifications the court’s power short of falls inactive status in which the ways in Montana and “cannot that VanDyke it took the position those qualifications; have it both ways.” 307. 308. plainly prohibited from practicing State and VanDyke law that “[t]he clearly Bar By-Laws availed VanDyke that “for over five years and while on inactive status,” in Montana freeing himself from Bar dues, reduced himself of the benefits of inactive status by paying the Client Protection, and avoiding the payment of assessments to the Fund for Lawyers’ done that, “[h]aving concluding active bar members,” and CLE requirements imposed on estopped from now asserting that he was admitted to practice law so, he should be in years”). those same five Montana during 309. e.g. Sandefur was sitting for Chief Justice McGrath, and District Judge Edward P. McLean was McLean District Judge Edward P. and Sandefur was sitting for Chief Justice McGrath, to the had contributed sitting for Justice James Jeremiah who Wheat campaign. Shea,
http:// available at 312 101 note 182. note 182. Seltzer v. Morton, 154 P. 3d 561, 609, 615 609, 561, P. 3d 154 v. Morton, Seltzer See Thirty percent of VanDyke’s Thirty percent of VanDyke’s 313 supra note 3, at 16. at 3, note ,
ONTANA On the other hand, Montana drew an drew other hand, Montana On the supra M ., 311
, Missoula Independent, Oct. 9, 2014, 2014, Oct. 9, Independent, , Missoula Crowding the Race: Partisan Politics, PAC Money Permeate Permeate Money Crowding the Race: Partisan Politics, PAC
315 ET AL , REYTAK LECTIONS IN LECTIONS He defended these contributions, contrasting the He defended these contributions, E at 70. 314 Id. Dataset Campaign-Finance Id. See G Lawrence VanDyke raised $132,999 from about 700 raised $132,999 from Lawrence VanDyke UDICIAL 312. 313. Supreme Court Campaign 314. Mayrer, Jessica 315. contributions came from outside Montana, the highest rate of the highest rate of from outside Montana, contributions came court candidate on supreme out-of-state contributions for any record. at Gibson, Dunn & colleagues donors, including former their gain “personally” from Crutcher, who have nothing to would be appearing lawyers who with in-state contributions, before the court. 311. 1. Fundraising by Van Dyke 1. Fundraising by with from a range of interests, support came contributors. His from bar: twenty-two percent the from relatively little support retirees, ten percent from lawyers, twelve percent from construction, with fifteen agriculture, and five percent from and four percent of his percent of his contributors unidentifiable contributions self-funded. J to its relatively Due court race. supreme a Montana for average stood out for its Montana campaign the limits, low contribution the with donors, compared small reliance on candidates’ state other in most or more of $1000 large donors of dominance campaigns. judicial of independent groups by national spending amount exceptional the Committee; Leadership State including the Republican groups financed by outside spending campaign three-quarters of in any independent expenditures share of was the second-highest in 2014. court race state supreme missoulanews.bigskypress.com/missoula/crowding-the-race/Content?oid=2093248. In fact, In missoulanews.bigskypress.com/missoula/crowding-the-race/Content?oid=2093248. Dunn & Crutcher has appeared before the Gibson, Montana Supreme Court in at least one party. a counsel and both major case as (2007) (affirming $11 million abuse-of-process judgment against Gibson, Dunn & (2007) (affirming & against Gibson, Dunn judgment $11 million abuse-of-process Crutcher, one of its lawyers, and his client, including $9.9 million of punitive damages for “legal thuggery”). court called what the
, Judges Are you ROCESS P The ad https://youtu 319 Don’t Trust the In one ad, In one Nothing Changes if 316 available at available https://youtu.be/MhzDHV RACTICE ANDRACTICE P https://youtu.be/IzYiJjwaFvQ. https://youtu.be/IzYiJjwaFvQ. available at Following the Law, Not the Politics https://www.youtube.com/watch?v=YQ_ https://www.youtube.com/watch?v=YQ_ PPELLATE In his closing argument, In his closing argument, A 320 https://youtu.be/B_y4-5aB4E4 (accessed Sept. 22, https://youtu.be/B_y4-5aB4E4 VanDyke demurred, explaining that explaining demurred, VanDyke available at 317 OURNAL OF OURNAL
J 321
available at HE YouTube (Sept. 8, 2014), (Sept. 8, 2014), YouTube
available at 2014), available 24, (Oct. , YouTube In its final weeks, the VanDyke campaign In its final weeks, responded 318 , YouTube (Oct. 20, 2014), (Oct. 20, 2014), , YouTube Lawrence VanDyke for Montana Supreme Court, television ad, Court, television Supreme for Montana VanDyke See Lawrence Id. Id. Lawrence VanDyke for Montana Supreme Court, television ad, Supreme for Montana VanDyke See Lawrence The campaign produced ads reinforcing VanDyke’s basic VanDyke’s reinforcing ads produced campaign The 2015; screen shot of YouTube page on file with Journal of Appellate Practice and Process Practice and Process of Appellate on file with Journal page of YouTube 2015; screen shot (no transcript available)). 317. file screen shot of page on with Journal Sept. 22, 2015; YouTube of (accessed iG3xqygA transcript available)). (no Process Appellate Practice and 320. 321. for Montana Supreme Court, television ad, VanDyke Lawrence Nothing Changes .be/Ysd6TbILnC8 (featuring a soundtrack that concludes with Van Dyke’s campaign .be/Ysd6TbILnC8 YouTube- 22, 2015; the Politics”) (accessed Sept. Not the Law, slogan, “Following Practice and Process) ; Lawrence generated transcript on file with Journal of Appellate ad, for Montana Supreme Court, radio VanDyke 30, 2014), (Sept. YouTube Democrat? Republican or transcript on file with Journal of YouTube-generated 2015; Sept. 22, (accessed MgYsw Process). Appellate Practice and 318. 319. for Montana Supreme Court, television ad, VanDyke Lawrence Wheaties VanDyke criticized “shadowy groups supported by Montana VanDyke criticized “shadowy percent of money that “ninety-four trial lawyers,” claiming and that “eighty- trial lawyers,” is from supporting Mike Wheat donors have recently had three percent of Mike Wheat’s lawyer cases in front of him.” 316. the candidate noted voters often asked him, “So are you a “So are you him, asked often noted voters the candidate or a liberal,” a conservative are you or a Democrat; Republican acting justices to some gotten used “people . . . have because official.” like a partisan “[t]hat is decisions on their own politics, when judges base wrong.” and as “anti-gun,” “anti-death penalty,” also portrayed Wheat development.” “anti-resource 25, 2014), Shouldn’t Legislate (Sept. from the Bench, YouTube 102T Not the Politics.” Law, the “Following message, groups” funded by “dark money it called what to attack ads from poured have wealthy trial lawyers who group of “the same for court elections into Montana supreme buckets of money Wheat “Mike ads by asserting that those decades,” countering before lawyer years as a personal injury spent over twenty political career as a Democrat.” starting his partisan
Buying Time 2014 2014 Buying Time His closing 326 Advertisements, http:// Criticism of his Criticism 325 montana [hereinafter (Sept. 30, 2014)) (accessed Sept. 22, 22, (accessed Sept. 2014)) (Sept. 30, - As negative advertising by As negative advertising 2014 324 - 103 note 182. note 182. time Wheat’s campaign advertising campaign Wheat’s - (Oct. 27, 2014)) (accessed Sept. 22, 2015; copy of Sept. 22, 2015; (Oct. 27, 2014)) (accessed 323 , Buying Time 2014—Montana supra , buying /
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analysis / org . Only three percent of Wheat’s contributions came came Only contributions percent of Wheat’s three LECTIONS IN LECTIONS E 322 (scroll down to 327 Campaign-Finance Dataset Campaign-Finance Id. Id. Id. Id. Mike Wheat raised $161,662 from more than 900 more from raised $161,662 Mike Wheat As their campaign advertising suggested, the candidates suggested, As their campaign advertising brennancenter . UDICIAL www 322. argument was a request to “please vote to retain me, and tell vote to retain me, was a request to “please argument seat are for nor my vote that neither your these corporations sale.” against Van Dyke Expenditures for Wheat 3. Independent state and Several neared. bit players as the election became of dollars of thousands spent hundreds groups national advocacy 323. 324. for Justice, Brennan Center from outside Montana. from the campaign, groups increased late in independent-expenditure the messengers, against however, Wheat leveled his attacks of state corporations . . . as “[t]hese out characterizing them record.” and my me distorting the truth about “the secondary to naming opponent’s experience was unnamed want to buy my seat on the Koch brothers and others who lawyer.” court for an inexperienced supreme J by Wheat 2. Fundraising lawyers from on contributions He relied mostly contributors. the in concentrated the remainder percent), with (fifty-three (including government percent from sectors: twelve following percent of retirees, with five percent from education) and eight self- and five percent of contributions contributors unidentifiable funded. emphasized his legal experience as a criminal prosecutor and in in and prosecutor as a criminal experience his legal emphasized court: “It’s important as well as on the supreme private practice, asserted, of legal experience,” he have plenty that to elect judges helped me the years has I gained over and “[t]he knowledge the court.” decisions on make 2015; copy of storyboard on file with Journal of Appellate Practice and Process). Appellate Journal of file with on storyboard of 2015; copy 325. ] (scroll down to —Montana] storyboard on file with Journal of Appellate Practice and Process). Appellate Practice and of file with Journal storyboard on 326. 327.
, , Mont. ROCESS P 334 Most of its 331 RACTICE ANDRACTICE P In total, MLJ spent 332
PPELLATE A It self-identified as “a coalition “a coalition as It self-identified http://missoulian.com/news/local/independent- note 182. note 182. note 182. note 182. 330 supra supra supra , , note 3, at 53 (“Montana’s 2014 nonpartisan election saw 53 3, at note OURNAL OF OURNAL
available at available J
HE supra , Independent Groups Raise Profile of Montana Supreme Court of Montana Supreme Raise Profile Groups , Independent .,
The trial lawyers’ Montana Law PAC remained Law PAC remained lawyers’ Montana The trial ET AL , 328 The contributions to MLJ, erroneously called a “dark The contributions to MLJ, erroneously Yet it spent only $36,283 on direct campaign campaign $36,283 on direct spent only Yet it 333 REYTAK 329 Campaign-Finance Dataset Campaign-Finance Id. Campaign-Finance Dataset Campaign-Finance , Missoulian, Oct. 8, 2014, 2014, 8, , Missoulian, Oct. groups-raise-profile-of-montana-supreme-court-race/article_c85a3734-4e8d-11e4-b633-abf 3456caa6f.html. 332. Montanans for Liberty and Justice, Form C-6 Political Committee Finance Report 2014). & Oct. 29, 2014 Political Practices (Oct. 23, Comm’r of Mont. 333. 334. the highest percentage of negative ads of any race this cycle, with 93 percent of all spots in tone.”). characterized as negative 329. 330. of Organization C-2 Statement Justice,Montanans for Liberty and Form 2014). 10, Oct. & 27, 2014 Practices (Aug. Comm’r of Political 331. Charles S. Johnson Race $394,640 on research, polling, consulting, and print and consulting, and print and polling, $394,640 on research, with the in- combined advertising, which broadcast campaign to Law PAC, amounted Montana kind contributions from on behalf of Mike $519,840 of independent expenditures Wheat. money” group by the VanDyke campaign, were disclosed in campaign, money” group by the VanDyke individual level, including the nearly all cases down to the Law PAC’s transfers. contributions behind the Montana G 328. active in 2014, raising more than $161,483 in disclosed direct in disclosed more than $161,483 2014, raising active in law lawyers and trial from each $10,000 up to of contributions firms. with smaller trial lawyers, however, from funding came of the MEA-MFT the political committee from contributions union. and teachers public-employee 104T the attacking mostly media, broadcast and mailers on candidates. and client letters polling, research, including expenditures, of its The PAC most transferred Wheat. supporting Mike the form of in of in-kind contributions money—$125,200 a new and purchases—to production for broadcast payments and Justice for Liberty called Montanans political committee for the arm functioned as the new campaign (MLJ). This group an office and Lawyers Association, sharing Montana Trial association. officers with the conservationists, trial lawyers, women, of groups representing rights advocates.” and human hunters and anglers
http:// , YouTube (Oct. 9, 9, (Oct. YouTube , available at , including an including 335 About Us Its one campaign campaign Its one 339 , Registration C-2 Statement of Form Lawrence VanDyke Lawrence That ad attacked Lawrence attacked Lawrence That ad 336 note 324 (showing that the Republican State State Republican that the (showing note 324 105 337 supra (Oct. 31, 2014) (accessed Sept. 23, 2015; copy of 2015; copy 23, Sept. 31, 2014) (accessed (Oct. , (Oct. 7, 2014)) (accessed Sept. 23, 2015; copy of copy of 2015; Sept. 23, (accessed (Oct. 7, 2014)) The advertisement answersnoting by The advertisement
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Pocket Rev Bishop & Heenan Law Firm, Law Heenan Bishop &
It shared an office and officer with a prominent a prominent It shared an office and officer with https://youtu.be/RS6a8OYIxW8 (accessed Sept. 23, 2015; transcript on (accessed Sept. 23, https://youtu.be/RS6a8OYIxW8 338 LECTIONS IN LECTIONS E (scroll down to (scroll down to Buying Time 2014—Montana Buying Time Id. Id. Compare id. with Compare id. available at available Less is known about a third outside group supporting about a third outside group Less is known MLJ ran two television advertisements in the last month of last month the in advertisements television ran two MLJ UDICIAL advertisement, posted online, contrasts Wheat’s practice Wheat’s practice online, contrasts posted advertisement, is opponent asking, “Who against his experience with an attack Lawrence VanDyke?” VanDyke’s relatively short career in Montana, his work as his work in Montana, VanDyke’s relatively short career Gibson Dunn,” his firm “[c]orporate lawyer for a California 335. Americans for Prosperity purchases and made $65,360 of television Leadership Committee Journal on file with 23, 2015; copy Sept. television purchases). (accessed made $69,580 of and Process). Practice of Appellate 336. Wheat. Montana Lawyers for Experienced Judges filed as an Lawyers for Experienced Judges Wheat. Montana the less than a month before committee political incidental any contributions or election, but did not disclose expenditures. firm. Montana personal-injury law J than the other time on television It spent more the campaign. groups combined, expenditure independent estimated $153,880 on its first commercial, more than three more than three first commercial, on its $153,880 estimated purchase. largest the next times who interests,” special of out of state as “in the pocket VanDyke lobbies for D.C. lobbying firm that worked for a “Washington “112 out-of- who has groups,” and as someone corporate interest “his own as It then praised Mike Wheat donors.” state campaign “impartial,”man,” second MLJ and “experienced.” The run in the an updated version of the first, commercial was election. closing days of the storyboard on file with Journal of Appellate Practice and Process). Process). Practice and Appellate of file with Journal storyboard on 337. storyboard on file with Journal of Appellate Practice and Process). Practice and Appellate of file with Journal storyboard on 338. Judges, for Experienced Montana Lawyers 2014). Political Practices (Oct. 9, Comm’r of Mont. 339. www.heenanlawfirm.com/about-us/ (indicating that John Heenan, who is listed as who is listed as thatHeenan, (indicating John www.heenanlawfirm.com/about-us/ Judges C-2, is a partner at Treasurer in the for Experienced the law firm) Montana Lawyers and Process). Practice of Appellate file with Journal on 2015; copy 23, (accessed Sept. 340. Judges, Experienced for Montana Lawyers 2014), file with Journal of Appellate Practice and Process). of Appellate file with Journal
, Mike ROCESS See 342 P https://www http://rslc.gop/ 2014 (all accessed = 341 registered the registered the cycle 343 available at available & available at RACTICE ANDRACTICE , , P 050532524 = Form C-2 Statement of RegistrationC-2 Statement of Form Republican State Leadership Committee: ein About RSLC PPELLATE ? A https://www.opensecrets.org/527s/527cmtedetail https://www.opensecrets.org/527s/527cmtedetail http://missoulian.com/news/state-and-regional/at- contribs.php _ OURNAL OF OURNAL
https://www.opensecrets.org/527s/527comtedetail_contribs https://www.opensecrets.org/527s/527comtedetail_contribs J available at
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527cmtedetail / available at 527s / Unlike the trial-lawyer groups, the RSLC PAC was the RSLC PAC groups, Unlike the trial-lawyer org . At Least $1.5M Spent on Wheat-VanDyke Race for Montana Supreme Court Supreme Race for Montana on Wheat-VanDyke $1.5M Spent At Least , Mont. Comm’r of Political Practices (Oct.Comm’r of 1, , Mont. 2014). 344 Id. a. The Republican State Leadership Committee Leadership Committee State a. The Republican On the other side, the campaign saw the unprecedented saw the unprecedented the campaign side, On the other opensecrets . funded almost entirely by lump-sum transfers from its parent transfers from funded almost entirely by lump-sum 341. 342. Out PAC, is not the anti-abortion group Women Speak anti-Wheat committee, One addressed in this section. It sent mailers attacking Wheat but did not register or report its impossible. in the campaign makes analysis of its involvement which spending, Dennison, at Missoulian, Nov. 26, 2014, available 106T of his circumstances and the Dunn lawyers, Gibson from support of Justice. Department the Montana from departure Wheat Dyke against for Van Expenditures 4. Independent Court a Montana Supreme in political party entry of a national “the (RSLC), Committee State Leadership race. The Republican elect down- is to whose mission only national organization officeholders,” Republican state-level ballot, least-m-spent-on-wheat-vandyke-race-for-montana/article_7de6d55b-cda1-574e-b16b-beaa faa719c3.html (reporting that the its spending to Women Speak Out group “did not report the state Political Practices Office”). 343. Republican State Leadership Committee, Republican State Leadership Committee—Judicial Fairness Committee—Judicial Leadership State Republican oppose to support VanDyke and PAC Initiative Montana Wheat. Sept. 23, 2015; copies on file with Journal of Appellate Practice and Process). Process). Practice and Appellate Journal of with on file copies 2015; Sept. 23, Leadership Committee, Republican State 344. (Amended) , Contributors 2014 .php?ein=050532524&cycle=2014 (accessed Sept. 23, 2015; copy on file with 2015; copy on Journal of (accessed Sept. 23, .php?ein=050532524&cycle=2014 Appellate Practice and Process); Opensecrets.org, about_rslc/ (accessed Sept. 23, 2015; copy on file with Journal of Appellate Practice and with Journal of Appellate Practice and copy on file 2015; about_rslc/ (accessed Sept. 23, aggregates contributions and expenditures at is a 527 organization that Process). The RSLC a high level that makes it impossible to trace the funding sources for the Montana Supreme raised more RSLC Court campaign expenditures. In 2014, the than $38 million from a conduit of of Commerce (itself Chamber corporations ranging from the U.S. none contributions fromCross/Blue Shield to Koch Industries; other corporations) to Blue State Leadership of its major donors, Republican Opensecrets.org are Montanan. 2014 Committee: Overview .php?ein=050532524&cycle=2014. In 2014, it spent more than $10 million on it In 2014, .php?ein=050532524&cycle=2014. contributions to and parties. Opensecrets.org, state and local committees, candidates, 2014 Expenditures Republican State Leadership Committee:
348 (Oct. (Oct. 7, (Oct. 7, 352 Critical Critical The second The second 349 It opened with a clip of a with a clip of It opened Form C-6 Political Committee Finance 347 note 324 (scroll down to note 324 (scroll note 324 (scroll down to note 324 (scroll In the Montana Supreme Court Supreme Montana In the note 324 (scroll down to Tired of Stories 107 345 The advertisement also explained also explained The advertisement supra supra State v. Strong, 236 P. 3d 580 (Mont. 2010) 2010) 580 (Mont. 3d P. Strong, 236 v. State See supra , , , 351
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in which he joined majority opinions siding siding opinions in which he joined majority 350 346 LECTIONS IN LECTIONS E Id. Buying Time 2014—Montana Id. Id. 2014—Montana Buying Time Buying Time 2014—Montana Buying Time b. Americans for Prosperity b. Americans even less transparent for Prosperity (AFP) was Americans The RSLC’s first advertisement supported VanDyke as “no supported VanDyke first advertisement The RSLC’s , Montana Comm’r of Political Practices (Oct. 23, 2014). 2014). 23, Practices (Oct. Comm’r of Political , Montana UDICIAL that “Lawrence VanDyke will protect Montana families.” that “Lawrence VanDyke will protect 345. Republican State Leadership Committee, report about a “convicted Anaconda rapist granted new trial,” granted new Anaconda rapist a “convicted report about like these.” if they were “tired of stories then asked viewers defendants. with criminal sources. It reportedly spent than the RSLC about its funding Report 346. 347. J in Washington. organization Montana.” no agenda, all politics, or identify not cite the case it alluded to, did The advertisement the between Wheat and connection any or Justice Wheat that general claims rapist.” It made “convicted Anaconda our defend and “will not a politician,” VanDyke “is [and] enforce protect our property rights, constitutional rights, for violent criminals.” strict punishment race, it spent a total of $430,263 on mail and broadcast and broadcast mail of $430,263 on spent a total race, it advertising. of attacking the judicial record specific, was more advertisement with two in connection Mike Wheat” “partisan politician cases criminal 7, 2014)) (accessed Sept. 28, 2015; copy of storyboard7, 2014)) (accessed Sept. 28, 2015; on file with Journal of Appellate Process). Practice and 348. 349. 350. 2014)) (accessed Sept. 28, 2015; copy of storyboardfile on 2014)) (accessed Sept. 28, 2015; with Journal of Appellate Process). Practice and 351. that of thead as in the RSLC the case characterized One of those decisions—in the other dissent of one justice, and for the partial but unanimous rapist”—was “Anaconda dissent. decision generated only one (including specially concurring opinion by Nelson, J., and dissenting opinion by Rice, J.); opinion by Rice, and dissenting J., Nelson, by (including specially concurring opinion and dissenting opinion (including concurring 2010) (Mont. P. 3d 1284 235 State v. Sage, reversal). for of two grounds one C.J., on by McGrath, 352. 2014)) (accessed Sept. 28, 2015; copy of storyboard on file2014)) (accessed Sept. 28, 2015; with Journal of Appellate Process). Practice and
Most ROCESS P 358 It conflates but did not did not but Montana Deserves Montana Montana Deserves Montana 356 353 RACTICE ANDRACTICE Such a claim would would claim Such a P http://politicalpractices.mt.gov 355 Graybill v. W. Tradition P’ship et al., See See PPELLATE available at A note 324 (scroll down to note 324 (scroll note 324 (scroll down to note 324 (scroll After criticizing the legislative After criticizing the legislative 357 supra supra , , OURNAL OF OURNAL
J . § 13-1-101(15) (2015) (defining reportable “electioneering . § 13-1-101(15)
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note 201. 201. note ODE .C The likely basis for the group’s failure to disclose group’s failure basis for the The likely supra ONT 354 Montana Wildlife Fed. v. Bd. of Oil & Gas Conservation, 280 P.3d 877, 877, 280 P.3d Oil & Gas Conservation, Wildlife Fed. v. Bd. of see Montana ; Id. Buying Time 2014—Montana Buying Time See M Buying Time 2014—Montana Buying Time (Oct. 27, 2014)) (accessed Sept. 29, 2015; copy of storyboard on file with Journal of (accessed Sept. 29, 2015; copy 2014)) (Oct. 27, Process). Appellate Practice and 357. /content/2recentdecisions/GraybillvWTPandCoalitionforEnergyandEnvironmentDecision fact were in distributing organizations as “issue ads” (finding that ads characterized by the specificintended to persuade voters to vote against P’ship v. candidates); W. Tradition 2011) (rejecting constitutional 14, (Dec. Dist. LEXIS 83, *30 Gallik, 2011 Mont. challenges to disclosure requirement as applied to it purported “issue ads,” and noting in could be argued that mailers painting a candidate a negative light are advocating for the law). under Montana candidate defeat of the 356. votes on taxes and fees, the advertisement elides them into the them elides the advertisement and fees, votes on taxes as “vot[ing] no on them dissenting judicial votes, characterizing Montana jobs.” clean burning natural gas, jeopardizing Dewan, 353. or Commissioner of Political Practices online records contain no registration 354. AFP. by reports for this expenditure 355. register with or report to the Montana Commissioner of Political of Political Montana Commissioner or report to the with register Practices. the context the advertising and given the text of be questionable advertisements AFP ran two televised of a judicial election. a deserves argues that “Montana The first Wheat. against Mike “has a that Wheat then claims court,” supreme fair and impartial partisan measures.” extreme history of supporting 108T alone, advertising television on $170,000 about did so advertising,” and only in “issue that it engaged would be “electioneering of a broader recent enactment the prior to requirement. disclosure communications” four of Wheat’s votes as a state senator with one of his dissents votes as a state senator with one four of Wheat’s robe. of Wheat in a judicial over a photograph as a justice, all fees, while concerned new taxes and higher The legislative votes and of oil assessment held an environmental the judicial dissent under the Montana insufficient permits gas drilling Policy Act. Environmental communications” as paid communication broadly distributedcommunications” as paid communication of the within 60 days initiation of voting in an election that refers to one or more clearly identified candidates in broad the even under arguably were reportable that election). But the AFP advertisements then in effect. definition of campaign expenditures of storyboard on file with Journal of (accessed Sept. 29, 2015; copy 2014)) (Oct. 27, Process). Appellate Practice and 894 (Mont. 2012) (Wheat & Morris, JJ., dissenting on procedural grounds). grounds). procedural dissenting on Morris, JJ., (Wheat & 2012) 894 (Mont. 358. No. COPP-2010-CFP-0016 (Oct. 21, 2010), 21, (Oct. 2010), No. COPP-2010-CFP-0016
, 361 , Form 363 The second The second How Do the Votes Votes Do the How Form C-6 Political Form C-6 Political Form C-6 Political 359 note 324 (scroll down to down to (scroll note 324 109 360 , Mont. Comm’r of Political Practices (Oct., Mont. 23, supra
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, Mont. Comm’r of Political Practices (Oct. 22, 2014) (listing , Mont. Comm’r of Political Practices (Nov.(listing 2014) 24,
One of its mailers, supporting VanDyke as supporting VanDyke One of its mailers, n. 331. n. 331. note 315. note 362 supra supra LECTIONS IN LECTIONS E public comment on cases before the court. on cases public comment Id. , 2014—Montana Buying Time c. Montanans for a Fair Judiciary Fair Judiciary for a c. Montanans It late. entered the campaign Fair Judiciary Montanans for a UDICIAL “fair, honest and impartial,” landed in Wheat’s mailbox. Wheat’s landed in “fair, honest and impartial,” 359. 360. AFP advertisement is more sophisticated in its attempt to its attempt in sophisticated is more AFP advertisement with Justice the legislature votes in Senator Wheat’s compare rights, and cases involving taxes, property Wheat’s votes on the to call with a request but again ends energy development, of politics out his extreme keep Wheat to “tell Mike court and Court.” the Montana Supreme for “a more by radio and mail described itself as campaigning Court,” and was led by a stable and business-friendly Supreme Montana Republican Party. Executive Director of the former raised from a handful of It disclosed spending about $60,000 of the total than half from out-of- individual contributions (more consisting of transfers of its money state donors), with most energy, and real- other PACs in the banking, construction, from estate sectors. copy of storyboard on file Sept. 29, 2015; with 28, 2014)) (accessed Compare? (Oct. Process). and Practice Appellate Journal of Johnson, 361. 362. of Organization (Amended) C-2 Statement Fair Judiciary, Form Montanans for a for a Montanans Fair Judiciary (Oct. 16, 2014); Mont. Comm’r of Political Practices Finance Report C-6 Political Committee J legislative- from borrowed a tactic ends with it implausibly, Wheat “call Mike to viewer the asking ads by issue campaign of our supreme politics out partisan him to keep his and tell as if to invite ex number court’s phone providing the court,” and parte of individual $5,050 PAC and 2014) (listing $15,000 contribution from Contractors’ contributions from Montana); Montanans for a Fair Judiciary, Report Committee Finance total of $30,000 contributions from Montana Prosperity PAC and $5,500 of individual contributions from Texas); Montana Prosperity PAC, Connecticut and Committee Finance Report Committee Finance Gas & Oil PAC, PAC, Montana of contributions from the $24,500 Montana REALTORS Peak Cloud and the Bankers PAC, PAC, Montana Montanans for Affordable Housing Energy Employee PAC). Mayrer, 363.
, “If 370 ROCESS P Citizens Citizens , Great Falls Partisanship , He estimated that He estimated RACTICE ANDRACTICE P 368 http://missoulian.com/news/local/ ates Debate Funding ates Debate d citing independent spending PPELLATE A 367 available at e Court Candi e Court http://www.greatfallstribune.com/story/news/local/ http://www.greatfallstribune.com/story/news/local/ m OURNAL OF OURNAL
J VanDyke responded that voters should VanDyke responded that voters For VanDyke this was an issue of “free- For VanDyke this was an issue Still, questions of campaign finance took of campaign Still, questions tana Supre
366 HE n 369 Supreme Court Candidates Square off in Missoula Candidates Square Court Supreme 364
Mo , note note 366. note 365. 365. note Wheat, on the other hand, criticized on the other hand, criticized Wheat, Citing a report that the national Republican Party Party the national Republican that Citing a report supra 371 supra 365 Missoulian, Sept. 24, 2014, 2014, 24, Sept. Missoulian, , Id. Id. Id. a. The Debate a. The Debate justice for two associate the four candidates time By the this his perspective on “what by framing Wheat opened 2014/09/23/supreme-court-candidates-square-missoula/16135685/. Kidston Martin 366. someone says speech, be skeptical,” he they’d shut down someone what they can and people telling a huge problem argued, “it’s can’t say.” at available 2014, Tribune, Sept. 24, More at UM by trial lawyers in prior judicial elections. by trial lawyers in prior believe.” say what they speech rights of organizations to Adams, S. 364. forum. candidate of the as moderator served The author John 365. intended to spend $5 million campaigning in judicial races, judicial races, campaigning in million spend $5 to intended be vigilant,” as outside money Wheat said that “[w]e have to all want—fair, independent and “starts pecking away at what we justices.” impartial have their “hypocrisy filter on,” spend hundreds of thousands the trial-lawyer PAC again would “[t]he issue is whether or saying that of dollars in the campaign, to be the only ones who are not the trial lawyers are going spending money.” 110T of the Campaign Close 5. The on of Montana at the University a candidate forum for seats met not yet had the advertising campaign 23, 2014, September peak. reached its debate between Wheat and VanDyke. center stage in the be under attack court may . . . how our is all about. race really out-of-state who corporations from out-of-state money, from to be on state and influence who’s going this want to come into the court.” montana-supreme-court-candidates-debate-funding-partisanship-more-at-um/article_94637 b28-439a-11e4-ae18-77d63833d048.html. 367. Adams, 368. 369. 370. Kidston, 371.
5 - see also , Bozeman empowered empowered Citing studies Missoulian, Sept. 25, 25, Sept. Missoulian, 374 In a subsequent 376 Although the version in 375 http://www.bozemandailychronicle.com/news/ 111 and that “Citizens United and Will Montana Judges Be for Sale? Be Judges Will Montana
ONTANA , note 373 (referring to “opaquely named conservative (referring to “opaquely named note 373 available at available 373 M 372
supra
http://missoulian.com/news/opinion/columnists/will-montana-judges-be- LECTIONS IN LECTIONS Ex Justices Say Candidate for Supreme Court a Corporate Puppet Court a Corporate Say Candidate for Supreme Ex Justices E (referring to studies published by two progressive-leaning research groups, the (referring to studies published by two progressive-leaning and sided with his colleague and fellow candidate Justice Justice candidate and fellow his colleague sided with and Id. Id. Id. b. The Retired Justices’ Commentary Commentary Justices’ b. The Retired Court justices Montana Supreme former Meanwhile, seven available at available at UDICIAL 2014, for-sale/article_2c81d34e-44c4-11e4-8b97-8b098cd6b8d6.html (containing no mention of for-sale/article_2c81d34e-44c4-11e4-8b97-8b098cd6b8d6.html but indicating that the Dyke, other justices sponsoring the broadside included Terry Van John Warner); and Sheehy, Bill Hunt, John Trieweiler, Jim Regnier, Bill Leaphart, Troy Carter, Chronicle, Oct. 17, 2014, politics/ex-justices-say-candidate-for-supreme-court-a-corporate-puppet/article_0e4fc104 interview, former Justice James Nelson called it “political called it “political Nelson Justice James former interview, print did not mention any candidate, the justices clearly any candidate, print did not mention outside spending. support from appeared to target Van Dyke’s with a line that could They began their concluding paragraph “Montanans advertisement: well in a campaign have served and non-partisan judges and independent deserve fair, impartial, political hacks, bought justices elected by Montana voters—not money.” and paid for by out of state dark 372. 373. James C. Nelson, et al. Jim Rice, who argued that “[t]he state of Montana has a Montana has state of “[t]he argued that Rice, who Jim a fair and and preserving protecting interest in compelling judiciary.” impartial significant to pour opaque, feel-good names organizations with into judicial elections.” of dark money amounts J United expenditures in against independent published a broadside civil justice that “our the state, claiming newspapers across is at stake,” system the finance on judicial behavior, of campaign on the impact of expenditures and out that “the amount retired justices pointed a directly with how to judicial races correlates contributions benefiting justice votes on cases.” organizations headquartered in Washington, D.C.,” and calling out the Republican State State the Republican calling out and D.C.,” in Washington, organizations headquartered Prosperity by name). for and Americans Committee Leadership 375. 58d-11e4-8401-636fb002328c.html (indicating that the version of the broadside distributed version of the (indicating that the 58d-11e4-8401-636fb002328c.html name). by Dyke Van referred to have may to newspapers et al., Nelson, 374. American Constitution Society and the Center for American Progress). Center for Constitution Society and the American 376.
381 ROCESS P The mailer The mailer 380 The mailer was was The mailer 382 RACTICE ANDRACTICE P PPELLATE A 379 OURNAL OF OURNAL
J
HE Former Justice Terry Trieweiler praised praised Trieweiler Terry Justice Former VanDyke dismissed the criticism, claiming claiming the criticism, VanDyke dismissed
377 378 note 373. 373. note supra Id. Id. , No. COPP Decision 2014-CFP-046, and Dartmouth McCulloch v. Stanford Id. Id. c. The Research Mailer c. The Research was down to its final days, a winding Just as the campaign all of the former justices all of the former justices who have criticized me in this race have extensive ties to the Trial Lawyers, . . . [t]he organization of wealthy lawyers been that for decades has of spending huge sums to get justices on the court money fee awards, big attorney sure they get who will make whether theydeserve it or not. , at Exhibit (May noting—in small guide print—that 11, 2015) (also “[t]his is non- 378. 379. 380. Practice Campaign Violation of Montana’s a Finding Sufficient Facts to Demonstrate Laws partisan and does not endorse and party” and that candidate or it “was created as part of a Dartmouth”). Stanford and at project joint research 381. 382. 377. Carter, 377. contained columns for both “Nonpartisan Supreme Court for“Nonpartisan Supreme both contained columns from a continuum contained Justice” races, and under each with Barack Obama Conservative,” “More Liberal” to “More respectively. each end, positioned near and Mitt Romney slightly put Wheat the mailer Under the Wheat-VanDyke race, and Vandyke slightly conservative) right of Obama to the (more right of Romney. conservative) to the (more in Montana, approximately sent to 102,780 registered voters new and surprising voice emerged. A mysterious mailer, the A mysterious mailer, new and surprising voice emerged. Voter Information Guide, 2014 Montana General Election the State of Great Seal of the official appeared featuring for by researchers at attribution of “[p]aid an with Montana, but College.” Stanford University and Dartmouth 112T a call Wheat to supporters or his VanDyke for hypocrisy judge.” partisan shift would totally “VanDyke’s election warned that Wheat and right-wing activism the direction of on the court in the balance that and agenda,” the corporate service of in total labor laws and protection laws laws, consumer “[e]vironmental are all at risk.” that
. OL 387 The .J.P 385 M , 58 A , 58 Nearly all of these After a flood of of a flood After 388 383 386 Instead, it was “part of an of an it was “part Instead, 384 note 182. note 182. 113 Mapping the Ideological Marketplace the Ideological Mapping supra supra ,
ONTANA M
note 342. 342. note
supra Adam Bonica, Adam VanDyke had approximately $794,081 spent on his $794,081 VanDyke had approximately LECTIONS IN LECTIONS see also 389 E at 7. at at Exhibit. at ; Id. , No. COPP 2014-CFP-046, at 18–19. at 18–19. 2014-CFP-046, COPP McCulloch, No. See Dennison, Dataset Campaign-Finance Id. Id. Id. d. Total Expenditures d. Total Expenditures By the end of the campaign, estimates put the total estimates By the end of the campaign, . 367 (2014) (describing the methodology of mapping ideology based on campaign- (describing the methodology (2014) . 367 CI UDICIAL 389. contribution records). No results of the research study have been published, and as theas published, and research study have been results of the contribution records). No the mailer, it seems study unlikely that the to ignore letter of apology asked Montana voters data. useful generated any 386. 387. 388. S funds were disclosed and originated in-state, mostly from in-state, mostly funds were disclosed and originated lawyers. side, including $133,818 in direct contributions, plus allied $133,818 in direct contributions, plus allied side, including the Republican from $430,263 independent expenditures of 383. complaints to state election officials, the Presidents of the Presidents officials, to state election complaints “to the apology a remarkable and Stanford sent Dartmouth was the mailer that explaining citizens of Montana,” voters and of Montana despite by the State with or endorsed not affiliated the state seal. of its inclusion of to voters a comparison publishing research study,” academic donated had about who on “public information candidates based whether voters “to determine in order campaigns” to each of the likely to vote.” are more information who are given more $1.6 million, race at around spending for the Wheat-VanDyke state history. in race expensive judicial it the most making his side, including $162,658 in Wheat had $780,981 spent on direct contributions, plus allied independent expenditures of Montanans for coalition the trial-lawyer-led $519,840 from support from Montana Lawyers Liberty and Justice, $62,200 of the (net of transfers) from for Experienced Judges, and $36,283 Law PAC. traditional trial-lawyer Montana J electorate. the state of percent fifteen Montana Commissioner of Political Practices, however, found of Political Practices, however, Montana Commissioner campaign expenditure subject to to be an independent the mailer to influence the given that its purpose was finance disclosure, voter turnout. election by affecting 384. 385.
Yet ROCESS 396 P Id. available at available at , RACTICE ANDRACTICE P After nearly $300,000 in After nearly $300,000 PPELLATE 391 By the time Election Day Election Day By the time A 394 http://missoulian.com/news/state-and-regional/ , (1920-2014) Voter Turnout Montana 2014 Statewide Primary Election Canvass Election Primary 2014 Statewide . OURNAL OF OURNAL
J A poll from early October showed Wheat Wheat A poll from early October showed . § 13-13-205 (requiring ballots to be “available for absentee . § 13-13-205 available at available supra
NN 393 HE Montana’s Hottest Race May Be for State Supreme Court, Montana’s Hottest Race May Be for State A
note 342. Then, three-quarters of primary voters cast a Then, three-quarters of primary E. The Election and Its Aftermath E. The Election and ODE 392 supra .C These numbers are less precise because only the the because only are less precise numbers These ONT 390 Turnout was low by Montana standards—fifty-five Turnout was low by Montana 395 See M Id. 354, & 343 See notes In the June primary only one-third of registered voters only one-third In the June primary montana-s-hottest-race-may-be-for-state-supreme-court/article_609d8176-0993-5b09-ac38 -5df9b9bc1823.html. 395. http://sos.mt.gov/elections/2014/2014-Primary-Official-Statewide-Canvass.pdf (accessed (accessed http://sos.mt.gov/elections/2014/2014-Primary-Official-Statewide-Canvass.pdf copy on file with Journal Practice and Oct. 5, 2015; of Appellate Process) Wheat swept votes. lost by seven where he County, River one, rural Powder but every county Dennison, Mike 394. 1, 2014, Missoulian, Nov. voting at least . . . 25 days prior to election day”). prior to days . 25 . voting at least . of State, Montana Secretary 396. http://sos.mt.gov/elections/Voter_Turnout/index.asp (indicating that “Montanahttp://sos.mt.gov/elections/Voter_Turnout/index.asp consistently has had one of the highest voter turnout rates in the nation” and that turnout in the 2012 leading VanDyke twenty-five percent to thirteen percent, with percent, to thirteen twenty-five percent leading VanDyke sixty-two percent undecided. arrived on November 4, early voting had been ongoing for a 4, early voting arrived on November month. non-gubernatorial year. percent of registered voters in a 390. 391. ballot in the supreme court race and Wheat won with sixty-two with sixty-two won Wheat court race and the supreme ballot in percent of the vote. 393. Montana Secretary of State, 114T Americans from $170,000 at least Committee, Leadership State Fair for a Montanans $60,000 from and about for Prosperity, Judiciary. from the coming funding of total campaign one-quarter and for a Fair Judiciary Montanans campaign VanDyke the of contributors; disclosure full political committee provided $600,000) (approximately amount remaining contributors of the entirely it originated almost Presumably were not disclosed. funding national out-of-state sources, given the dominant from RSLC and AFP. sources for the Dennison, 392. candidate contributions and $1.3 million in independent in independent and $1.3 million candidate contributions and VanDyke race between Wheat the money expenditures, ended in a draw. both Congress and U.S. in turned out despite the primaries Senate races.
, 397 2d6249 2d6249 - available at 9af0 , - 401 2691-5254 - Melinda Gann Hall & Chris W. Melinda Gann The heavy campaigning The heavy campaigning . The heavy campaigning campaigning The heavy See 399 398 supra There he will work for the . 457 (2008). (2008). . 457 402 Wheat won thirty-five of fifty-six of fifty-six won thirty-five Wheat CI 115 nevada/article_bb0d1a91 http://missoulian.com/news/state-and-regional/ex- - .S 400 OL 2014 Statewide General Election Canvass Election General Statewide 2014 .J.P
ONTANA M M Ex-Montana Solicitor General Taking Post in Nevada Taking Post Solicitor General Ex-Montana
, 52 A , 52
text accompanying note text accompanying note 393, 403 LECTIONS IN LECTIONS E see also Mobilizing Interest: The Effects of Money on Citizen Participation in State ; Id. Id. Id. Id. Justice Wheat took office for the third time in five years in in five years office for the third time took Justice Wheat UDICIAL Missoulian, Dec. 10, 2014, available at 10, 2014, Missoulian, Dec. montana-solicitor-general-taking-post-in 398. of State, Montana Secretary (accessed http://sos.mt.gov/elections/2014/2014-General-Official-Statewide-Canvass.pdf Process). Practice and Appellate of file with Journal on copy Oct. 5, 2015; 399. 400. 401. Press, Associated 402. Bonneau, Bonneau, Court Elections Supreme state’s new Attorney General, Adam Laxalt, a Republican who who Laxalt, a Republican state’s new Attorney General, Adam Leadership State Republican won with the support of the Committee. and fifty-six percent, respectively) percent elections was seventy-two general and 2010 Process). Appellate Practice and of file with Journal on 2015; copy Oct. 5, (accessed 397. one quarter of ballot “roll-off” of around an average Judicial elections experience judicial candidates; not cast votes for do but races top select candidates in the voters who ballot roll-off. higher campaign spending reduces had a less demonstrable impact on persuading voters to choose on persuading voters to impact had a less demonstrable with fifty-nine election Wheat won the Wheat or VanDyke: favor of in points vote, a move of just three percent of the primary. VanDyke since the in 2010 in 2010, election his appointment January, 2015. After will and re-election in 2014, he that term, of for the remainder 2022. A month through December term serve a full eight-year office as a state solicitor again took after the election, VanDyke in Nevada. time this general, J was lower roll-off ballot campaigns, judicial for than usual a voters casting general-election of percent with eighty-eight race. Wheat-VanDyke the ballot in leading only in rural counties. counties, with VanDyke had a demonstrable if minor impact recognition; the on name if minor had a demonstrable and Rice Justice Jim between lopsided—race more quieter—and drew only eighty-one David Herbert unknown the relative who cast a ballot. percent of voters 11d9a8.html. 11d9a8.html. 403.
- 405 at 43 at http:/ id. ROCESS 2162da6c P _ http://missoulian available at available RACTICE ANDRACTICE P Again, however, tort available at available Montana Supreme Court Hears Hears Supreme Court Montana 406 ONTANA M PPELLATE A at 375 (Nelson, J., dissenting). J., dissenting). (Nelson, 375 at see also id. OURNAL OF OURNAL
ESSONS FROM FROM ESSONS J , Missoulian, Sept. 23, 2014, , Missoulian, Sept. 23, supremecourtdocket.mt.gov (enter case number into search number into search supremecourtdocket.mt.gov (enter case But little mention was made of several made was But little mention
HE 404 V. L note 3, at 48 (“[O]ver half the spots that aired in 2013–14 (both2013–14 that aired in half the spots (“[O]ver at 48 note 3,
supra , available at Polson Judge Reduces Damage Award to $73M in Crash Award to $73M Damage Reduces Judge , Vince Devlin, Polson REYTAK Olsen v. Hyundai Motor Co., No. DA 14-0500, Stipulated Motion to DismissNo. Motor Co., See Olsen v. Hyundai See, e.g. Donaldson v. State, 292 P.3d 364, 374 (Mont. 2012) (indicating that Justice374 (Mont. 364, P.3d State, 292 v. See Donaldson What most distinguished the Wheat–Vandyke campaign is campaign Wheat–Vandyke the distinguished What most /missoulian.com/news/state-and-regional/montana-supreme-court-hears-arguments-in-jury- in The argued case, award-cap-case/article_4f9ce400-4685-11e4-86ce-9f65a9e381d5.html. which the court did not reach the punitive-damages issue, is Masters Group Int’l, Inc. v. case was settled on appeal before other The 2015). 1101 (Mont. 352 P.3d Comerica Bank, briefing. 2015), (Jan. 14, filing upon 2015 14, on January was dismissed sheet indicating that case docket box to see of file with Journal on copy 5, 2015; Oct. of a stipulated motion to dismiss) (accessed Process). Appellate Practice and , Missoulian, Sept. 27, 2014, 27, 2014, Case, Missoulian, Sept. Cap Award Arguments in Jury reform was not a major issue in the campaign, except as an as an except in the campaign, issue was not a major reform G 404. Associated Press, 4285-11e4-a2cc-2b338b9819a1.html; controversies that emerged in other states. For example, in 2012 in 2012 example, in other states. For emerged controversies that a vote by a four-to-three Court rejected Supreme the Montana on civil unions for same-sex claim state constitutional a dissent that with Justice Wheat joining procedural grounds, couples. spousal benefits for same-sex would have recognized in the unnoticed went largely other states, the issue Unlike in before the election in the months Similarly, judicial campaign. damages punitive cases involving two well-publicized capping those state law of the the constitutionality challenged of the challenges at in one the court heard argument damages; in September. the height of the campaign 116T aired their allies openly candidates and to which the the extent of campaign questions finance, partisanship, subliminal usually the exclusive became questions never issues. These and related of biography, Conventional themes attention. center of Staple values pervaded the campaign. experience, and also justice and natural resources criminal controversies around played their part. positive and negative) related to whether candidates were ‘tough on crime.’”); on were ‘tough related to positive and negative) whether candidates .com/news/local/polson-judge-reduces-damage-award-to-m-in-crash-that/article 406. that Killed Missoula Cousins (characterizing Wheat–VanDyke campaign as “Big Business Clashes with Environmental with Environmental “Big Business Clashes as campaign (characterizing Wheat–VanDyke Interests”). 405. Cotter); dissent of Justice Wheat joined the
icle t ar source / - ana t available at , mon - association https://www.open https://www.open - , Missoulian, Oct. 25, Citizens United http://missoulian.com/ ermine t de - governors - bcf887a.html; Opensecrets.org, bcf887a.html; available at See Missoulian State Bureau, 4 could - a available at ion t 6-001 d republican / The law is almost entirely The law is almost dona - k 2-86 - 407 s e ein=113655877&cycle=2014 (includingein=113655877&cycle=2014 some local - / ? 117 -11 hill - news o / -t 1ee8 - 2012 Statewide General Election Canvass Election General Statewide 2012 . In 2012, Montanans overwhelmingly overwhelmingly . In 2012, Montanans com .
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er , Missoulian, Oct. 20, 2012, 2012, , Missoulian, Oct. 20, t . § 13-35-503. 13-35-503. . § note 244, at 22–26. 22–26. at note 244,
vo / NN missoulian and American Tradition, Steve Bullock, win the A :// article1340ba48 / supra http and establishes as state policy that and establishes ODE 527cmtedetail / 409 regional - .C 408 More recently, several Montana legislators rebuffed rebuffed legislators More recently, several Montana LECTIONS IN LECTIONS E donation and - - 410 ONT k e - t s a each elected official in Montana . . . and appointed advance beings with are not human the philosophy corporations that and that each rights constitutional elected such and is charged whenever appointed official to act to prohibit, to or making contributions from possible, corporations of candidates or ballot expenditures on the campaigns issues. There is reason to believe that campaign finance is an is an finance campaign that reason to believe There is - t American Tradition s available at / hill - UDICIAL of Republican Governor’s Association: Contributors 2014, Association: Contributors Governor’s Republican secrets.org/527s Montana Governor’s Race Montana Governor’s news 410. Charles S. Johnson, - 407. of State, Montana Secretary symbolic, general who litigated election saw the state attorney The same Citizens United of opponent took advantage after his race for governor, but only accept to limits contribution invalidation of state an election-eve were reinstated on the limits a $500,000 donation before appeal. for (343,549 votes (showing http://sos.mt.gov/elections/2012/2012_General_Canvass.pdf with Journal of Appellate on file 2015; copy 5, (accessed Oct. against) and 116,554 Process). Practice and Johnstone, 408. J financing by trial campaign around questions behind implication and corporations. lawyers The colorful to Montana voters. political issue salient especially the of at the turn in Montana of corporate corruption history the force shaping a powerful remained century, which twentieth Convention, remerged after 1972 Constitutional M 409. and Corporate on I-166, the “Prohibition approved initiative a by Act,” Montana Elections Expenditures in Contributions and one. to three of nearly margin _467e5fb4-1b1e-11e2-ad85-001a4bcf887a.html . The money’s source turned out to be . The money’s source turned the _467e5fb4-1b1e-11e2-ad85-001a4bcf887a.html Leadership State national affiliate of the Republican Association, a Governor’s Republican Committee that shares many of its corporate donors. Republican Governor’s AssociationRepublican Governor’s Source of Hill’s $500K Donation 2012,
. ROCESS P http://missoulian clarified that clarified that Citizens United 413 RACTICE ANDRACTICE available at P ) (accessed Oct. 5, 2015; copy on file 2015; copy on (accessed Oct. 5, ) PPELLATE A supra Late-Night Soul-Searching Pushed Garner to Garner Late-Night Soul-Searching Pushed Republican Party of Minnesota v. Republican Party of Minnesota This history makes Montana a Montana history makes This 411 OURNAL OF OURNAL
, Missoulian, Mar. 29, 2015, Mar. 29, 2015, Missoulian, , J
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, Charles S. Johnson, S. Johnson, , Charles emphasized the principle that judicial elections are not that judicial elections the principle emphasized at 788. 788. at 412 See, e.g. Id. The Supreme Court in Notwithstanding its distinctive history, however, Montana history, however, Montana distinctive its Notwithstanding A. Background: Challenges to Judicial-Election Exceptionalism to Judicial-Election A. Background: Challenges White politics-free contests. Its holding that “the First Amendment its goal by leaving the [a state] to achieve does not permit preventing candidates from of elections in place while principle are about,” discussing what the elections mentioned indonors note 343, of the RSLC particularly uninviting target for what Montanans might might for what Montanans target uninviting particularly to be out-of-stateconsider groups. dark-money states. elections in other campaigns and hold lessons for may to judicial applicable specifically some Those lessons include Any reforms and elections. elections must to judicial campaigns to judicial-election around the challenges recognize and work First Court’s by the Supreme presented exceptionalism these in Part IV(A) above, As discussed doctrine. Amendment independent and of unlimited the impact in culminate challenges under the rationale of partisan expenditures offered by protections the marginal overwhelms That impact in political campaigns, regulations of judicial conduct remaining due process in the most backstop of and even the ultimate the limited acknowledge cases. Once policymakers extreme given the reforms election judicial efficacy of these specific several ordinary of independent expenditures, primacy responses to the as workable emerge reforms campaign-finance in judicial elections. current role of money Appellate Practice and Process). with Journal of 411. 118T a Medicaid to defeat for Prosperity Americans by efforts brought backlash that Legislature, a in the 2015 expansion to state disclosure reforms major legislators to support several law. campaign-finance .com/news/state-and-regional/late-night-soul-searching-pushed-garner-to-forefront-of-dark/ article_0532cdfd-f5de-5171-813c-e98db825f449.html. 412. (2002). U.S. 765 536 413. Forefront of Dark Money Fight
417 415 119
presents no general solution to concerns presents no general solution to ONTANA M 416
LECTIONS IN LECTIONS And Justice Stevens opined that “the judicial opined that Justice Stevens And E at 820 (Ginsburg, J., dissenting). J., (Ginsburg, 820 at at 802 (Stevens, J., dissenting). J., (Stevens, 802 at at 884. 884. at 414 Id. Id. Id. Despite the hopes of its majority and fears of its dissenters, and Despite the hopes of its majority UDICIAL 414. about judicial-campaign finances. It recognized a due process finances. It about judicial-campaign stake in a particular “when a person with a personal problem influence in placing case had a significant and disproportionate funds or directing the judge’s the judge on the case by raising election campaign whencase was pending or imminent.” the significant have appear to may stated the rule as While facts of the case suggest the applications in judicial campaigns, to nearly unheard-of be limited that its practical scope may than who funds “more incidents involving a single contributor other [of the candidate’s] the total amount spent by all by [the candidate’s] spent the amount supporters and three times It has not turned out quite that way. As the Wheat and Van Dyke way. As the Wheat out quite that It has not turned on judicial candidates still campaign demonstrated, campaigns views, of with any diversity Before electorates impartiality. because particular issues can backfire on public commitments and of a candidate’s impartiality image the they compromise supposed attacks on their opponents for candidates’ undermine in code, as they campaign judicial candidates partiality. So to recognize and advertise on always have, counting on proxies topics need not be debated win voters. Hot-button that the issues to their them leave arguing they can by the candidates because face no ethical which groups, expenditure allied independent of opposing candidates. constraints on their characterizations Caperton Massey v. J In speech. to judicial fully apply protections of speech freedom that clause” of an “announce the invalidation from dissent on views expressing from judicial candidates prohibited that predicted Justice Ginsburg legal issues, particular win on issues “to commitments would express candidates votes.” is compromised and open-mindedness impartiality reputation for personal the candidate’s that emphasizes by electioneering office.” his qualifications for judicial than rather predilections 415. 416. (2009). U.S. 868 556 417.
. .L. and ICH ROCESS P Citizens Citizens but see James , 109 M 422 Citizens United RACTICE ANDRACTICE P distinguished these distinguished these PPELLATE Caperton’s treatment of judicial-campaign A and the Illusion of Coherence But in practical terms, terms, But in practical Its deregulation of independent Its deregulation at 471. If possible disqualification If possible from re-election at 471. Citizens United 420 Id. 421 OURNAL OF OURNAL
J ’s holding was limited to the rule was limited Caperton’s holding The dissenting justices were not reassured reassured not were justices dissenting The
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418 , 558 U.S. at 360. at 360. U.S. , 558 419 for judicial campaigns based on , 66 N.Y.U. Ann. Survey Am. L. 727 (2011) (arguing for a distinction from (2011) (arguing for L. 727 Am. Survey Ann. N.Y.U. , 66 at 463. The court held that the justices were “potential” candidates whose court held that the justices were “potential” candidates whose The at 463. in their treatment of independent expenditures is unpersuasive);in their treatment of independent expenditures at 873. 873. at at 893, 894 (Roberts, C.J., dissenting). C.J., (Roberts, 894 893, at answered them. Democracy at the Corner of First and Fourteenth: Judicial Campaign Spending Judicial Campaign Spending Fourteenth: of First and Corner at the Democracy Id. Id. Id. Citizens United Richard Hasen, Citizens United See Richard Hasen, The following year, The following . 581, 611–15 (2011) (arguing that the distinction between (2011) (arguing that the distinction 611–15 . 581, EV R 418. by these limits. In his dissent of forty questions, Chief Justice Chief Justice of forty questions, In his dissent limits. by these to contributions about “What asked, for example, Roberts candidate?” supporting a outside groups independent and “What by an is made expenditure large if the ‘disproportionately’ or the group, union, physicians’ association, trade industry plaintiffs’ bar?” 120T committee.”own questions in form: “ questions in form: not that the litigant’s political recused, be must that the judge banned.” speech could be United of networked the subsequent proliferation expenditures, and and “industry “outside groups” engaged in associations” of the direct, an anachronism makes spending, campaign at issue in Caperton contributions disclosed, and overwhelming courts enjoy work of the the Now big donors hoping to influence conduits for campaign a range of national and state-based to track for a litigant are practically impossible spending that recusal motion. later have grounds for a who might Caperton Sample, 419. and Equality Citizens United expenditures as “contributions”). expenditures as “contributions”). 422. Court itselfThe Montana Supreme has recognized of recusal the impracticality 455 P.3d 278 ex rel. McCulloch, State In Reichert v. electoral consequences. based on challenge would place that court heard a constitutional to a referendum the (Mont. 2012), the justices in seven districts for election. legislators the referendum who supported Several standing for not currently were who justices of four the recusal sought intervened, and would the referendum re-election in the future because for election but might have stood have disqualified from re-election any sitting justicehis assigned did not relocate to who district. 420. 421. reelection bids “could possibly” be hindered by the referendum, and that there was unethical conduct on the part of any or bias, prejudice, therefore no “actual evidence of on the case. justice or judge sitting” it justifying recusal, bias” of to judicial office is insufficient to trigger “actual evidence litigants likely will would seem that large campaign contributions by be insufficient too, at into independent expenditures. intermediaries through least if they are funneled
Citizens Caperton , the Supreme Citizens United Caperton. Nor are they likely to Williams-Yulee v. State Bar of 121 is impracticable in a post- in is impracticable
ONTANA is no match for the flood of independent is no match M Caperton
which presented a challenge to a prohibition against which presented a challenge LECTIONS IN LECTIONS E 423 , regime in which in and even interest groups, particular regime Just as Caperton Recusal under under Recusal UDICIAL Florida of campaign solicitation a judicial candidate’s personal 423. Ct. 1656 (2015). S. ___ U.S. 135 ___, Court’s recent decision in United large route and able to aggregate litigants, are particular of trade game a shell through expenditures campaign The primitive committees. and political organizations a world of campaign- is naive in direct expenditures tactic of Republican for Prosperity, the like Americans finance conduits interlocking and home-grown Committee, State Leadership Justice and for Liberty and Montanans super PACs like a Fair Judiciary.Montanans for Copper King If a latter-day would be no a latter-day Judge Clancy, there wanted to elect independent contributions or even corporate need for direct treasury run his corporation’s he could expenditures. Instead, Gas Natural organization like America’s funds into a trade like the national committee a like-minded through Alliance, and into a state Committee, State Leadership Republican Montana PAC. Initiative the Judicial Fairness affiliate like lawyer with a major a trial transparently, though more Similarly, to the Montana Supreme award on its way punitive damages the Montana Trial Lawyers write a big check to Court might Law PAC, knowing that most Association to fund its Montana an affiliate like Montanans forof his funds would transfer to litigator could or the the industrialist Liberty and Justice. Either contributions to a single- direct PAC hedge his bets with more to his interest in the campaign candidate super PAC, signaling on the race, and then double down that might related committees of a simply Short candidate. also signaling his support to the straight through the transfer of $1,000,000 enormous is none of these maneuvers committees and into the campaign, likely to draw scrutiny under given the nature of recusal standards, satisfy ordinary the aggregation of any one “independent” expenditures and by others. made donor’s contributions with those expenditures authorized by J
at at at . See ROCESS See id. P see also id. Citizens United Citizens United RACTICE ANDRACTICE P that “a State has compelling , 135 S. Ct. at 1672. 1672. Ct. at S. Williams-Yulee, 135 PPELLATE Williams-Yulee, only Justice A Consistent with the logic of of the logic with Consistent Williams-Yulee 424 ). Justice Alito’s ). Justice dissent did not cite a case. , 558 U.S. at 359 (quoting McConnell v. F.E.C., 540 U.S. U.S. 540 v. F.E.C., McConnell , 558 U.S. at 359 (quoting OURNAL OF OURNAL
might suggest significant Williams-Yulee might J White ’s reach is a development that the dissenting justices in ’s reach is a development to
HE and its narrowing of the corruption interest so interest so and its narrowing of the corruption
, 135 S. Ct. at 1673–74 (Ginsburg, concurring in part and concurring concurring (Ginsburg, S. Ct. at 1673–74 , 135 ’s theory that “[i]t is in the nature of an elected in the nature is that “[i]t ’s theory , the vast majority of money spent in the Wheat in the Wheat spent of money majority , the vast Citizens United B. The Primacy of Independent Expenditures B. The Primacy of Independent Expenditures anticipate by their surprising lack of reliance on anticipate U.S. United States v. Stevens, 559 J., dissenting) (citing at 1682 (Scalia, Citizens United Caperton 425 to Williams-Yulee The crucible of campaign finance in Montana between finance The crucible of campaign Citizens United 424. It is possible that the Court has opened a path to limit the reach of Citizens United Citizens of independent was in the form campaigns and VanDyke the by solicited been not have that could expenditures no demonstrated, Montana campaign As the 2014 candidates. message raises $150,000, the campaign how a candidate matter loudly by independent more four times will be delivered $600,000. In expenditures of of independent the primacy 2010 and 2014 established The series of cases from expenditures in judicial campaigns. White in judicial elections with its recognition in interests in regulating judicial elections that extend beyond its interests in regulating judgespolitical elections, are not politicians.” because 122T seems little effect to have likely or endorsements, contributions environment. in the present addresses a joined by Justice Breyer, Ginsburg’s concurrence, and office for judicial between campaigns possible distinction Citizens United necessary by and, favor certain policies, representative to those support the voters and contributors who corollary, to favor policies.” Court’s the Supreme from landscape arising shifts in the Montana’s judicial campaigns. decisions of issues specific to in the that no development experience suggests, however, impact has had as much constitutional law of judicial campaigns as 425. in the judgment); Williams-Yulee Williams-Yulee 2729 Ct. S. 131 ___, U.S. Entertainment Merchants Ass’n, ___ v. 460 (2010); Brown 2537 (2012)); 132 S. Ct. ___, U.S. ___ Alvarez, (2011); and United States v. 377 (1927) J. dissenting) (citing Whitney v. California, 274 U.S. 357, 1684 (Kennedy, and concurring) (Brandeis, J., 93, 297 (Kennedy, J., concurring in part and dissenting in part)). Perhaps this potential J., concurring in part and 93, 297 (Kennedy, limitation of 1685.
— ) with Citizens not only not only That broke note 182, and are 426 . The Wheat– . White because supra trumps Caperton trumps , Citizens United details the primacy of details the primacy 427 Citizens United Citizens American Tradition American preempts Citizens United Citizens United 123 Campaign-Finance Dataset
ONTANA because, in the judicial in the judicial Williams-Yulee because, M
Citizens United ) denotes the winner of a particular race. of a particular winner the ) denotes * LECTIONS IN LECTIONS E overwhelms overwhelms In short, The chart on the following page the following The chart on In 2002, the Montana Law PAC reportedly spent (nominal) toward two In 2002, the Montana Law PAC reportedly $150,000 Information relevant to particular campaigns: Information relevant to particular campaigns: An asterisk ( In 2012, the Montana Growth Network disclosed spending $42,000 to support can- $42,000 disclosed spending Network Growth the Montana In 2012, UDICIAL independent expenditures after independent expenditures after 426. Cir. 2012). (9th 741 3d 698 F. 427. All data in the chart are from Chart excludes both uncontested races and inflation-adjusted to 2014 dollars. The noncompetitive campaigns candidates who raised less than of ten percent of the amount candidate. winning raised by the J from arising influence undue about concerns exclude as to expenditures. independent unlimited the barrier between national party treasuries and state judicial judicial and state treasuries national party the barrier between the flood of outside money. adding to campaigns, can sift of due process or recusal practicably because no form and—at litigant’s independent expenditures, out a sophisticated to the reasoning of least according longer corrupt. And independent expenditures can no United candidates need not worry about public campaign promises once promises not worry about public campaign candidates need lining up. starts private money reached judicial elections (through (through elections judicial reached but it of that extension, consequences of the little consideration of the partisan the invalidation crucial role in a also played in elections ban for judicial and expenditure endorsement Committee Republican Central Sanders County nor supporters most, neither candidates that matter campaigns ease and efficacy of the given rely on direct contributions indirect independent expenditures. candidates, but only one race was contested; all of that amount is allocated as spent on was one race candidates, but only behalf of candidate William Leaphart. spending $687,720 later reported on a tax form but didate Laurie McKinnon in the primary, likely on public education mailings and advertising, in the form of campaign-related “issue emphasis on the and legislativebased on the group’s ads” targeting judicial candidates; Partner- transfer to American Tradition $50,000 judicial campaign in the primary and a in a mailing—half of that amount opponent Sheehy is McKinnon’s ship—which targeted Growth the Montana much how known It is not of McKinnon. on behalf allocated as spent but and Ed Sheehy, Network ultimately targeted for theLaurie McKinnon race between even a conservative estimate of the share dedicated to the judicial race pegs it as a major campaign. factor in the 2012
2014 J Wheat* J 2014 2014 J VanDyke J 2014
ROCESS
P Sheehy J 2012
2012 J McKinnon* J 2012
2012 J Best J 2012
2010 J Swandal J 2010
2010 J Baker* J 2010
2008 CJ Waterman CJ 2008
2008 CJ McGrath* CJ 2008
RACTICE ANDRACTICE
P Morris* Jb 2004
Undisclosed (Estimated)
2004 Jb McLean Jb 2004
2004 Ja Younkin Ja 2004
2004 Ja Nelson* Ja 2004 2002 J Leaphart* J 2002
PPELLATE
A Eddleman J 2002 a Judicial 1990-2014 Campaigns: a Judicial Trieweiler CJ 2000
matters to judicial campaigns in judicial campaigns in to matters 2000 CJ Gray* CJ 2000
2000 J Tweeten J 2000
2000 J Renz J 2000 2000 Ja Cotter* Ja 2000
OURNAL OF OURNAL
J 1996 J Regnier* J 1996
for Judicial Campaigns
HE Erdmann J 1996
Independent Expenditures Turnage* CJ 1992 1992 CJ Trieweiler CJ 1992
Citizens United 1990 J Trieweiler* J 1990 1990 J Greely J 1990 Reforms C. Ordinary Campaign-Finance $0 Because In 2014, the Republican State Leadership Committee reported independent In 2014, the Republican State Leadership Committee reported independent Contributions Financing of Contested Montan of Contested Financing $900,000 $800,000 $700,000 $600,000 $500,000 $400,000 $300,000 $200,000 $100,000 the same way it matters to all political campaigns, there are campaigns, to all political way it matters the same campaign- include improved common responses to it. These electioneering communications finance disclosure, especially of to contribution limits and conduit organizations; recalibrating without campaigns fundraising directly to candidate draw more and reconsidering increasing corruption concerns; significantly judicial Eliminating public financing for judicial campaigns. frustrated with recent many a solution proposed by campaigns, 124T record only on expensive the most was campaign VanDyke election related and independent expenditures of because raised relatively themselves Indeed, the candidates spending. standards by historical contributions campaign of amounts small in defense of a seat Justice Nelson’s races. Only for contested close campaigns. to the 2014 2004 came expenditures on behalf of candidate Lawrence VanDyke, but received most of but received most expenditures on behalf of candidate its Lawrence VanDyke, from its national affiliate.contributions as an opaque transfer
L. ASON Citizens .M EO ’s endorsement of disclosure in ’s endorsement 125 , 19 G Disclosure, 19 for Case A Madisonian
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, 558 U.S. at 369 (“[W]e reject Citizens United’s contention that the, 558 U.S. at 369 (“[W]e This empowers state law to reach campaign- state This empowers 428 LECTIONS IN LECTIONS On both sides of the Wheat–VanDyke campaign, the On both sides of the Wheat–VanDyke Anthony Johnstone, Anthony Johnstone, E ’s validation of electioneering communication communication electioneering of ’s validation 429 Citizens United See Campaign-finance disclosure law should embrace embrace law should disclosure Campaign-finance . 413, 443–49 (2012). (2012). 443–49 . 413, EV UDICIAL R candidates and even the super PACs used campaign-finance used campaign-finance PACs candidates and even the super a central supporters each side’s financial to make disclosure been difficult to develop a It would have issue in the campaign. on trial lawyers versus out-of-state Montana clearer referendum provided in the themselves corporations than those interests 2014 campaign. 428. disclosure requirements must be limited is the functional to speech that equivalent of express advocacy.”) 429. targeted advertising, like the Americans for Prosperity for Prosperity like the Americans targeted advertising, evade currently that may Wheat, attacking commercials a candidate. vote for or against appeals to disclosure by avoiding United More broadly, Citizens more robust application of general enables states to consider organizations like the to conduit disclosure requirements Republican State Leadership Committee’s Montana-based PAC, its from contribution a massive than which disclosed little more of corporate funds. Improved parent organization’s aggregation recusals at the enables not because it is important disclosure cases—but because it in extreme courthouse—though it may the money trail. Revealing campaign the on enables rejoinders giving of factions, behind a candidate raises consciousness such special interests on the voters an opportunity to check ballot. J not that may resort a last is developments, campaign-finance in influence about political concerns most important resolve the of money amounts toward increased selection. The trend judicial of undue influence, the challenge presents campaigns in judicial ways in which revisit the to an opportunity presents but also aggravate, that not or at least finance mitigate, law can campaign trend. Disclosure 1. Effective Campaign-Finance United disclosure.
L. 432 . 217 . 217 OWA OWA EV ROCESS R P Y ’ , 99 I , 99 See generally OL L. & P , 798 F.3d at 748–49 ALE RACTICE ANDRACTICE P , 32 Y , 32 see also Lair PPELLATE A 431 . § 13-37-229(2). 13-37-229(2). . § NN The System of Campaign Finance Disclosure Campaign of System The OURNAL OF OURNAL
. § 13-37-216 (2014); J A NN
HE A ODE
.C ODE ONT .C ,M ONT Anthony Johnstone, Anthony Johnstone, . 143, 159–60 (2014). (2014). 159–60 . 143, —discourage such retail-level campaign contributions contributions campaign retail-level —discourage such See See, e.g. See M ULL Montana has relatively low contribution limits. contribution low Montana has relatively Another element of effective campaign-finance disclosure disclosure campaign-finance of effective element Another 430 .B EV R 431. (remanding for reconsideration of whether those limits are constitutional). Law Recalibrating Campaign Finance Anthony Johnstone, 430. 2. Recalibrated Contribution Limits 2. Recalibrated Contribution Limits by the same made many Independent expenditures, including allowed to a contribution the maximum contributors who make less effective. First, they limits candidate campaign, render these enough funds to a candidate to raise difficult for it more make expenditures. Second, counter attacks funded by independent disclosed, accountable from they divert contributions away opaque, less sometimes toward candidate campaigns groups. In Montana a accountable independent expenditure without significant benefits in preventing corruption. Judicial preventing corruption. benefits in without significant bases that with relatively narrow donor already start campaigns a few large donors willing to leave candidates dependent on allied PACs. In a or their their campaigns to either contribute not but (or reported an anonymous campaign, million-dollar dollars will go unnoticed, disclosed) contribution of a hundred countering the way toward will go a long but enough of them effects of outside spending. 126T could be particularly This reform disclosure thresholds. is higher sit may money where the smart judicial campaigns, in important a for fear that and clients’ pockets of lawyers’ idle in thousands a consciously affect or could unconsciously contribution idle of that case. A little future in a judgment candidate’s contributors, of potential across thousands money, aggregated the who know of constituents influence the could boost independent of and counter the impact candidates best low disclosure Relatively interests. by outside expenditures which trigger in Montana, dollar the thirty-five thresholds—like or donor of the size of the constituency applies regardless base 432. (2014).
435 A judicial candidate can raise a can raise candidate A judicial 127 note 182. 434 A proposal also must minimize the minimize A proposal also must 436 supra In 2014, a candidate in a contested a candidate In 2014, , 433
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. to $320 per (2014) (limiting contributions R. § 44.10.338(1) DMIN .A LECTIONS IN LECTIONS Buckley v. Valeo, 424 U.S. 1, 58–59 (1976) (invalidating limits for 58–59 (1976) U.S. 1, Buckley v. Valeo, 424 Davis v. Federal Election Comm’n, 554 U.S. 724 (2008) (invalidating so-called 724 U.S. Election Comm’n, 554 Federal Davis v. E ONT Campaign-Finance Dataset Campaign-Finance See See One of the most important ideas to come out of Montana’s out to come ideas One of the most important UDICIAL or penalize candidates who self-fund or benefit from or penalize candidates who independent expenditures. looking to exploit public risk of strategic behavior by candidates 433. election could accept $320 in the primary election and another election and another primary in the $320 accept could election the general election. $320 in J and 500 of between a base has court candidate supreme typical raises if the law that may increase (a number 1000 contributors thresholds). disclosure many contributors that assuming thousand dollars few hundred a that, at most, this means amount; give the maximum fraction for a credit take contributors could candidate’s leading A modest fundraising total. of the candidate’s of one percent a be large enough to enable would limits increase in contribution independent the new scale of to respond to judicial candidate or one donor enough to prevent any small but still expenditures This candidate’s campaign. credit for the group from taking especially concerns, additional corruption would pose few unlimited alternative of diverting to the current compared super PACs. An increased contributions to single-candidate back toward contributions can channel larger limit contribution expenditures. candidates and away from independent Campaigns 3. Public Financing for Judicial is not in law, in concept if 1972 Constitutional Convention, Any new proposal public financing of judicial elections. limited expenditures to limit take care not for public financing must M 434. election for supreme court candidates in 2014). in 2014). court candidates election for supreme 435. independent expenditures, a candidate’s expenditures from his or her own personal funds, personal funds, own from his or her expenditures a candidate’s independent expenditures, expenditures). and overall campaign 436. “millionaires amendment” lifting limits for candidates facing self-funded contribution ___, U.S. Bennett, ___ v. Club PAC Enterprise Club’s Freedom Free opponents); Arizona that candidates for publicly financed (2011) (invalidating matching funds 2806 Ct. 131 S. groups). that of independent-expenditure and spending opponents’ by were triggered
. ONT ROCESS these P See M Western ONVENTION 438 Citizens United note 89; C RACTICE ANDRACTICE P . He once defended Judicial Selection in the States: Judicial ’s impact on judicial judicial on ’s impact supra supra , PPELLATE . 299, 310 (2010). (2010). 310 . 299, A EV RANSCRIPT T .L.R Citizens United ONT Citizens United His own experience had been that His own experience had been OURNAL OF OURNAL
J For some, the world after the world For some, , 71 M , 71 440 http://www.judicialselection.us/judicial_selection/index.cfm? http://www.judicialselection.us/judicial_selection/index.cfm?
, Nat’l Center for State Courts, Center for State Nat’l , 439 HE ONVENTION Keeping Faith with the Vision: Interpreting a Constitution forKeeping Faith C
note 90. See, e.g. Preserving an independent judiciary, an original original an judiciary, an independent Preserving available at available supra , 437 while decrying . § 13-37-216(5) (2015) (“If there is a contested primary, then there are two (“If there is a primary, then there are two (2015) contested . § 13-37-216(5) NN See generally There is a final option that would be unthinkable for other option that would be unthinkable There is a final A ODE ROCEEDINGS 439. the most recent state to change from judicial elections to merit Rhode Island was selection, in 1994. state=RI (accessedcopy on file with Journal of Appellate Practice Oct. 7, 2015; and Process). Nelson, C. James 440. Generations Future This and Rhode Island, C P “Montanans want nonpartisan judges and will not elect and will not judges “Montanans want nonpartisan test,” and, he pointed out, candidates who fail that threshold restrictions, “Montana, with its severe campaign-contribution that have problems has not faced the sort of buy-a-judge (or their example, candidates law, for allies)Under current Montana have an 437. incentive to recruit a primary challenger so as to double the contribution limits. purpose of judicial elections, may justify the public expense the public expense justify may of judicial elections, purpose As delegates campaigns. candidate finance judicial to necessary between distinctions are significant in 1972, there argued campaigns; other political campaigns and judicial for example, Consider, abolition now more than ever. demands dissented in Nelson, who Justice James former Tradition writing in 2010 that in Montana, judicial elections as practiced make with whom I am familiar “[t]he elected judges and justices law as they see it, regardless based on the facts and the decisions and also noted that “a of whose ox is gored in the process,” basis of one unpopular decision judicial election decided on the is relatively rare.” 128T financing. differences might draw even those opposed in general to public in general to public those opposed draw even might differences to support it for judicial elections. financing of elections Elections 4. Abolishing Judicial as ambitious abolish judicial elections. As elective offices: least the be, this is likely financing may disclosure and public to realistic response elections. Voters have not surrendered their power to elect their power to not surrendered have elections. Voters judges for decades. elections to which the contribution limits apply.”). elections to which the contribution 438.
446 .& RAC .P Citizens PP , N.Y. Times, May , 14 J. A But as But as As a result, Nelson As a result, Nelson 441 442 Other jurists, like former like former Other jurists, (2014) (providing for merit selection, 443 Take Justice Off the Ballot Justice Take 21, 21 (Feb. 2015) (also acknowledging that he that he acknowledging (also 2015) 21, 21 (Feb. 129 and she continues to oppose them and she continues Retention Redux: Iowa 2012 Retention Redux: Iowa AWYER 444 , .L
ONTANA M ONT
It’s Time to Make a Change in Selecting Judges in a Post Judges in Selecting Change a Make It’s Time to
, 40 M , 536 U.S. at 792 (O’Connor, J., concurring) (“If the State has a problem has a problem (“If the State concurring) J., (O’Connor, U.S. at 792 , 536 , Todd E. Pettys, , Sandra Day O’Connor & InstituteDay for the , Sandra Advancement of the American World The O’Connor Judicial Selection Plan Judicial O’Connor The LECTIONS IN LECTIONS E Citizens United Citizens (footnote omitted) (footnote impacted campaigns, including the 2014 judicial 2014 judicial including the campaigns, impacted 47 (2013) (contrasting two sets of Iowa retention elections). of Iowa (contrasting two sets (2013) 47 445 Id. See White See, e.g. See, e.g. Id. In light of the origins of judicial elections in arguments arguments of judicial elections in of the origins In light ROCESS UDICIAL had “always been a strong proponent for electing Montana’s judges and justices,” but a strong proponent for electing and justices,” had “always been Montana’s judges clear from this is last election cycle because “[i]t mind his had changed announcing that he potentially, other State judicialthat campaigns for Montana's Supreme Court—and, huge expenditures of dark money, attack ads, offices—will henceforth be characterized by of out of state money and organizations—all misleading mail stuffers, and the involvement seat or seats on the a elections and buying directed to the end of influencing Montana’s Court”). 443. 444. gubernatorial appointments, and non-partisan, no-opponent performance evaluations, retention elections); O’Connor, Sandra Day WK9. at 22, 2010, 446. with judicial impartiality, it is largely by continuing the the State brought upon itself one electing judges.”). practice of popularly 445. Legal System, Appointive systems without retention elections may free judges elections may without retention Appointive systems 441. United judicial against turned sharply Nelson Montana, in campaign expenditures threat of independent only does the Not elections. office, for judicial from running qualified attorneys discourage of independent expenditures but the promise Nelson now argues, candidates to run. encourages unqualified elections well O’Connor, opposed judicial Justice Sandra Day before the concerns and Constitution, leading to the 1889 Montana around the 1972 Montana about judicial appointments expressed what we wish for. The be careful we might Constitution, still requires retention selection Plan” of merit “Missouri shows, are also susceptible as Iowa’s experience elections that, integrity. judicial that threaten to compromise to campaigns J are sky-is-the-limit there where in states elections poisoned contributions.” and corporate individual now argues for a constitutional amendment establishing “a establishing amendment a constitutional now argues for of committee by a selection system” purely merit-based and civic leaders. designated legal today. P James C. Nelson, 442. Citizens United
447 ROCESS ROCESS P .&P RAC .P PP RACTICE ANDRACTICE , 5 J. A P —on grounds that undue that undue —on grounds The Hydraulics of Campaign Finance of Campaign Finance The Hydraulics PPELLATE A Confirmation Gridlock: The Federal Judicial Confirmation Gridlock: The Federal Judicial ONCLUSION VI. C OURNAL OF OURNAL
Citizens United Citizens J
HE . 1705, 1713 (1999) (“Money, like water, will seek its own level. seek its own level. water, will like (“Money, (1999) 1713 . 1705,
EV , John Anthony Maltese, .L.R it seems safe to say that, like water or money, that, like water or money, safe to say it seems EX 448 See, e.g. , 77 T , 77 State courts, no less than federal courts, pose critical State courts, no less than federal 447. Bush W. George Bill Clinton and Process under Appointments over1, 3 (2003) (referring to “confirmation battles judicial nominees” and “a dramatic judges”). confirmation process for federal the slowdown of 448. Samuel Issacharoff & Pamela S. Karlan, Reform political influence will find its way through any judicial- will find its way through any political influence selection landscape. the rule of under and accountability questions of independence to those questions for all law. There is no one right answer of suspicion a territorial Montana’s answer reflects jurisdictions. concern about corporate outside influence, a progressive-era deep deliberation among corruption, and an extraordinarily for judicial selection models competing ordinary citizens about The result is a hybrid constitution. of its 1972 in the formation election, retention election, of contested model sharing elements representation on the and (with strong gubernatorial merit, models. After the commission) straight appointment nominating prohibition, Montana invalidation of its partisan-endorsement for model, a partisan-election of elements some now also shares better or worse. 130T concentrating of at the cost but politics, of elective burden of the for the responsible elected officials on the those politics critic of A selection. for state judges whose general even more them and would raise far greater law powers allow them a common jurisdiction and on state To electorates than their federal counterparts. impact applied to campaign sometimes metaphor use the hydraulics finance, influence is far more pervasive than the Supreme Court Supreme than the pervasive is far more influence that recognize also decision—must in that acknowledged on the appointer. that influence selection concentrates appointive and legislative of executive appointment The federal model stakes, only raises these political terms for life confirmation The price of apparent containment may be uncontrolled flood damage elsewhere. . . . The . The . . containment may be uncontrolled flood damage elsewhere. The price of apparent somewhere.”). go process must campaign the formal out of squeezes money that reform
Citizens United Citizens , the influence of trial lawyers lawyers influence of trial , the 131
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, but the United States Supreme Court States Supreme , but the United Citizens United Citizens
LECTIONS IN LECTIONS E As in other states with similar models of judicial elections, elections, of judicial models similar with states other As in UDICIAL disrupted the traditional practice of judicial elections in elections of judicial practice the traditional disrupted the justices Court itself invited Montana Supreme The Montana. in judicial elections of that case for the implications to consider Western Tradition expenditures, super PACs, corporate the aftermath, In declined. flooded even national political parties and dark money, with court campaigns supreme small Montana’s relatively Montanans out-of-state corporate influence the sort of exactly a prompted for the last 150 years. This had fought against between of the campaign debate, in the context vigorous public the Montana Lawrence VanDyke, about and Mike Wheat and Constitution J in politics. new normal tested by a model is being Montana’s development, any other recent More than at all. The electing judges of and corporations, and the merits of course. Instead, it raised did not settle that debate, campaign in a new era of campaign old questions about judicial selection 1889, 1972, and 2010, and in finance. In 2014, as in 1864, those questions continue to call Montana as in its sister states, for answers.