Supreme Court candidates address Citizens United ruling

The University of Montana School of Law’s recent forum for four Montana Supreme Court candidates prompted lively debate over issues ranging from outside spending in nonpartisan Supreme Court races and rights of criminals to the controversial Barry Beach case and jury nullification.

Anthony Johnstone, a constitutional law professor and former Montana state solicitor, moderated the event, which was co-sponsored by the conservative Federal Society and the progressive American Constitution Society. About 150 law students and members of the public attended.

Incumbent high court Justices Mike Wheat and Jim Rice were joined on the stage by challengers Lawrence VanDyke and W. David Herbert at the event.

Wheat, a former Democratic lawmaker from Bozeman, was appointed to the Supreme Court by former Gov. Brian Schweitzer in 2010. Wheat is facing a challenge from VanDyke, the former solicitor general under Republican Attorney General Tim Fox.

Rice, a former Republican lawmaker from Helena, was appointed to the Supreme Court by Republican Gov. Judy Martz  in 2001. Rice is squaring off against Herbert, a Billings attorney and former Libertarian U.S. House candidate in Wyoming.

In his opening statement, Wheat warned against the dangers of outside spending in Montana’s nonpartisan judicial elections in the wake of U.S. Supreme Court’s 2010 Citizen United decision that undid Montana’s restrictions on campaign spending.

“I don’t want to let us forget what this race really is all about,” Wheat said. “It’s about how our court may be under attack from out-of-state money, from out-of-state corporations who want to come into this state and influence who’s going to be on the court.”

VanDyke said he is not seeking partisan endorsements, but he does believe in organizations’ right to free speech. VanDyke said the Montana Trial Lawyers Association spent more than $300,000 in former justice Jim Nelson’s re-election campaign in 2004, and he said he expects the group to spend “high six-digit figures” in support of Wheat this time around.

“I’m not asking for any partisan endorsements, but I do believe in free-speech rights of organizations to say what they believe,” VanDyke said. “The issue is whether or not the trial lawyers are going to be the only ones who are spending money.”

Rice also expressed concerns over outside spending in judicial campaign races. Rice was among the six Montana Supreme Court justices who recently signed a “friend of the court” brief defending a state ban on judicial candidates from seeking or accepting partisan endorsements.

Rice said he was proud to sign his name to the brief because Montana’s law is supported by a history of corruption in judicial races.

“The state of Montana has a compelling interest in protecting and preserving an air of an independent an impartial judiciary,” Rice said.

Herbert criticized a May 2013 Montana Supreme Court decision Rice wrote in which a man hurled a sexual slur at a Gallatin County Victim Assistance Program worker. The man was convicted under the state’s privacy in communications law, and Rice wrote the Montana Supreme Court decision affirming the lower court’s decision.

Herbert said that decision prompted him to run for the high court, and he accused Rice of impeding on freedom of speech. Herbert also criticized Rice’s decision in the State v. Barry Beach murder case. That 2013 decision sent Beach, who had been released from prison pending a new trial, back to prison.

Herbert repeatedly advocated for jury nullification, which is the principle that juries have the right to rule against the law if the law is “unjust or unfair.”

“Not all laws are fair and just,” Herbert said.

Herbert said juries have a “right and a duty not to enforce an unjust law.”

Rice disagreed, stating that Herbert’s advocacy of nullification seeks to overturn the fundamentals of our system of government.

“That is subversion of democracy,” Rice said.

VanDyke and What traded barbs over VanDyke’s critique of “results-oriented judges.”

“Nothing is going to stop a results-oriented judge from picking the cases they want,” VanDyke said.

Rice and Wheat both touted high ratings given to the Montana Supreme Court in a recent survey of law professionals from around the state. Wheat said of the 404 respondents to the recent survey, 90 percent said the court was fair in their decisions.

“People who are using the court system, the lawyers in the state, they have faith in it. They recognize that we’re doing a good job,” Wheat said. “All this results-oriented talk is hot air.”