Cross v. VanDyke Ex Rel. McCulloch , 375 Mont. 535 ( 2014 )

July 22 2014
DA 14-0259
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 193
LOUISE CROSS, WADE DAHOOD,
JEAN BOWMAN, MICHAEL McKEON,
ARLYNE REICHERT,
Plaintiffs and Appellees,
v.
LAWRENCE J.C. VANDYKE,
STATE OF MONTANA, by and through
LINDA McCULLOCH, in her capacity
as Secretary of State,
Defendants and Appellants.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADV-2014-224
Honorable Mike Menahan, Presiding Judge
COUNSEL OF RECORD:
For Appellant Lawrence J.C. VanDyke:
Rob Cameron, Nathan Bilyeu, Gough, Shanahan, Johnson & Waterman,
Helena, Montana
For Appellees:
Peter Michael Meloy, Meloy Law Firm, Helena, Montana
Gene Jarussi, Bishop & Heenan Law Firm, Billings, Montana
Submitted on Briefs: June 25, 2014
Decided: July 22, 2014
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Lawrence J.C. VanDyke appeals the First Judicial District Court’s grant of summary
judgment to the Plaintiffs and Appellees, declaring VanDyke ineligible to seek election to
the position of Justice of the Montana Supreme Court in the 2014 general election and
directing the Montana Secretary of State to strike his name from the ballot. The only issue
on appeal is whether VanDyke’s decision to take inactive status with the State Bar of
Montana while he practiced law in other states disqualifies him from meeting the
constitutional requirement of admission to the practice of law in Montana for five years prior
to the election. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 VanDyke was admitted to the Bar of the State of Montana on October 17, 2005. He
voluntarily chose inactive status on March 6, 2007, while he was practicing law outside of
Montana. On November 28, 2012, VanDyke petitioned this Court for reinstatement to active
status in the State Bar of Montana. The Chief Justice signed an order on behalf of the Court
on December 5, 2012, directing that, “upon payment of the appropriate fees to the State Bar
of Montana, [VanDyke] shall be admitted to the active practice of law in the state of
Montana.” According to State Bar records, VanDyke was returned to active status on
January 8, 2013. The Clerk of this Court issued VanDyke a license “to practice law as an
attorney and counselor-at-law in all the courts of this state” each year from 2005 through
2013. The license shows his “Membership Status” as “Inactive” or “Inactive Attorney
Member” for the years 2007 through 2012. VanDyke’s Membership Status is listed as
“Active” for the years 2005, 2006 and 2013. Consistent with Article I, Section 3(a) of the
2
By-Laws of the State Bar of Montana, the license indicates that “[t]he class of inactive
members shall include those persons who are eligible for active membership but are not
engaged in the practice of law in Montana and have filed with the association written notice
requesting enrollment in the class of inactive members.”
¶3 On March 10, 2014, VanDyke filed with the Montana Secretary of State his
Declaration of Nomination as a candidate for election to the Montana Supreme Court. On
March 21, 2014, the Plaintiffs and Appellees, Louise Cross, Wade Dahood, Jean Bowman,
Michael McKeon, and Arlyne Reichert (referred to collectively in this Opinion as “Cross”)
filed their Complaint in the First Judicial District Court, seeking to have VanDyke’s
candidacy invalidated. Each of the Plaintiffs is a registered Montana voter and each served
as a delegate to the 1972 Montana Constitutional Convention. The Complaint alleged that
VanDyke is ineligible to seek election to the Montana Supreme Court at the November 4,
2014, general election because he was not “admitted to the practice of law in Montana for at
least five years prior to the date of . . . election” as required by Article VII, Section 9, of the
Montana Constitution. Cross sought a declaration of VanDyke’s ineligibility and a
temporary and final injunction excluding his name from both the June 3, 2014, primary
election ballot and the November 4, 2014, general election ballot.
¶4 VanDyke filed a petition for writ of supervisory control with this Court on March 28,
2014, urging the Court to take immediate jurisdiction over the action, given that the ballots
for the primary election would be printed by mid-April 2014. After receiving Cross’s
response, we declined to exercise original jurisdiction over the matter, noting Cross’s
concession that “[i]t is too late for any judicial action affecting the printing of the [primary]
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ballots.” Order on Supervisory Control, VanDyke v. First Jud. Dist. Ct., S. Ct. No. OP
14-0178 (Apr. 9, 2014). We observed that the District Court had scheduled a hearing on the
parties’ cross-motions for summary judgment on April 23, 2014, and directed the court to
issue its ruling within seven days of that hearing.1 The District Court entered its Decision
and Order on April 25, 2014, from which VanDyke now appeals.
STANDARD OF REVIEW
¶5 This Court exercises plenary review over matters of Constitutional interpretation.
State v. Trier, 2012 MT 99, ¶ 10, 365 Mont. 46, 277 P.3d 1230.
DISCUSSION
¶6 Article VII, Section 9(1), of the Montana Constitution, provides in relevant part:
A citizen of the United States who has resided in the state two years
immediately before taking office is eligible to the office of supreme court
justice or district court judge if admitted to the practice of law in Montana for
at least five years prior to the date of appointment or election.
¶7 The District Court ruled that VanDyke does not meet these minimum eligibility
requirements because, when he elected to assume inactive status, VanDyke “could not
practice law or represent himself as authorized or qualified to practice law.” The court
agreed with Cross that “being admitted to the State Bar of Montana is not synonymous with
being admitted to the practice of law.” Accordingly, although VanDyke was a member of
the Bar continuously from October 2005 to the present day and will have been a member for
1
Our Order noted that neither Justice Mike Wheat, who is running for re-election to the position
sought by VanDyke, nor the Chief Justice had taken any part in consideration of the Petition for
Supervisory Control. Both also recused themselves from participation in VanDyke’s appeal in this
case, as did Justice James Jeremiah Shea. (Orders, Cross v. VanDyke, S. Ct. No. 14-0259, May 7,
2014, and May 28, 2014.)
4
more than nine years by the time of the election, the District Court reasoned that he “will
have only been admitted to the practice of law as an active member of the State Bar for a
period slightly more than three years.”
¶8 Van Dyke argues that there is no textual basis for a distinction between “licensed to
practice” and “admitted to practice.” He cites numerous cases from other jurisdictions
recognizing the two characterizations as interchangeable. VanDyke contends that the
District Court’s reading of Article VII, Section 9, imposes an “actual practice” requirement
that is at odds with the plain language of the Montana Constitution, which does not require
the “active practice of law” for judicial candidates but does for the Attorney General. Mont.
Const. art. VI, § 3(2). To the extent there is any ambiguity, VanDyke submits that the 1972
Constitutional Convention transcripts support his interpretation of the eligibility
requirements. VanDyke warns of unintended consequences from an interpretation that
would not only affect inactive Bar members but also would prohibit some judicial members
of the Bar—also restricted from active practice—from running for the Supreme Court. He
concludes that the strong presumption of eligibility, applied by many jurisdictions to afford
voters maximum choice in selecting candidates for office, “makes this an easy case.”
¶9 Cross agrees with VanDyke that Article VII, Section 9 is “plain and clear on its face,”
but contends that the plain language supports the opposite conclusion. Pursuant to the
By-Laws of the State Bar of Montana, adopted by this Court in fulfillment of its authority
under Article VII, Section 2(3), to make rules governing “admission to the bar,” Cross points
out that VanDyke “must have paid dues and assessments and met the other requirements for
an active membership” in order to practice law in Montana. Because VanDyke was
5
prohibited from practicing law in Montana during the time that he chose to be on inactive
status, Cross contends that VanDyke cannot count that time toward the five-year eligibility
requirement. The unintended consequences of a ruling in VanDyke’s favor, Cross posits,
would open the door to judicial candidates who have no experience with Montana law and
have never been permitted to practice law in this State. Cross thus counters that, if there is
an easy answer to the question presented in this case, it is the one given by the District Court.
¶10 This Court applies the same rules in the construction of the Constitution that it applies
in the construction of statutes. Martien v. Porter, 68 Mont. 450, 464, 219 P. 817, 819
(1923); Keller v. Smith, 170 Mont. 399, 404, 553 P.2d 1002, 1006 (1976). “[T]he intent of
the framers of the Constitution is controlling and that intent must first be determined from
the plain language of the words used.” State ex rel. Racicot v. District Court, 243 Mont.
379, 384, 794 P.2d 1180, 1183 (1990). We have recognized that the qualifications of
Supreme Court Justice “are dictated solely by the Constitution” and “covered exclusively in
Article VII, Section 9.” Reichert v. State, 2012 MT 111, ¶¶ 62, 74, 365 Mont. 92, 278 P.3d
455.
¶11 In construing the phrase, “admitted to the practice of law in Montana,” “we must
implement [the framers’] intent by viewing the plain meaning of the words used and
applying their usual and ordinary meaning.” In re M.N., 2011 MT 245, ¶ 27, 362 Mont. 186,
261 P.3d 1047. The ordinary meaning of the word “admit,” as used in this context, is “to
allow to enter, let in, receive (a person or thing) . . . into any office, position or relation[.]”
The Compact Edition of the Oxford English Dictionary (Oxford University Press, 1971). At
the time the Montana Constitution was adopted, Montana did not have a unified bar
6
association. As noted, the Constitution gives the Montana Supreme Court authority over
rules governing “admission to the bar and the conduct of its members.” Mont. Const. art.
VII, § 2(3). On January 29, 1974, pursuant to its Constitutional authority, this Court issued
an order for Unification of the Bar of the State of Montana. Application of Mont. Bar Ass’n
President, 163 Mont. 523, 518 P.2d 32 (1974). That Order was followed by the adoption in
January 1975 of a Constitution and By-Laws of the State Bar of Montana. In re the Unified
Bar of Montana, 165 Mont. 1, 530 P.2d 765 (1975).
¶12 Although this Court has approved various amendments to the Constitution and
By-Laws during the last forty years, the substance of provisions pertinent to this case
remains the same. Article II of the current Constitution of the State Bar of Montana, titled
“Organization,” provides:
All persons admitted to the practice of law in the state of Montana are
members of the State Bar of Montana. All such persons except judges of
courts of record are dues paying members. Membership in the State Bar of
Montana is a condition to practicing law in this state. Non-payment of
membership dues and assessments shall result in suspension of membership
and the right to practice law until payment of all dues, assessments and
penalties in the manner provided by the by-laws.
¶13 The By-Laws of the State Bar of Montana (By-Laws) provide for eight classes of
membership: active, judicial, inactive, active military service, senior, emeritus, resigned, and
paralegal associate. By-Laws, art. I, § 3(a), in Montana Rules of Court vol. I, 473 (West
2014). With the exception of emeritus members—who provide only pro bono or volunteer
services to low-income individuals—“only active and active military service members may
practice law in the State of Montana.” By-Laws, art. I, § 3(b). No inactive member, judicial
member, senior member, or—except as to qualified pro bono services—emeritus member
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“may practice law in this state or hold office or vote in any election conducted by the State
Bar.” By-Laws, art. I, § 3(f).2
¶14 An inactive, emeritus or senior member may be reinstated to active status by
submitting a written, verified application to the Clerk of the Montana Supreme Court and
satisfying all of the following requirements:
(i) payment of dues for active membership, for the year in which they are
reactivated . . .;
(ii) completion of CLE, as may be ordered by the Supreme Court . . .;
(iii) payment of all license taxes, including those waived during emeritus or
senior status, in compliance with Section 37-61-211, MCA.
By-Laws, art. I, § 3(e). A lawyer may terminate membership in the State Bar by voluntary
resignation. “When a member who is licensed to practice law files with the State Bar office
a written notice of such member’s surrender of his or her license, such person shall
thereupon cease to be a member of the State Bar[.]” By-Laws, art. I, § 4(f).
¶15 This Court also may take actions that affect a lawyer’s ability to practice law in
Montana. The Montana Rules for Lawyer Disciplinary Enforcement (MRLDE) allow the
Court to suspend a lawyer from the practice of law, to place a lawyer on probation, to
transfer a lawyer to disability/inactive status for a disabling mental or physical condition, and
to disbar a lawyer from the practice of law in Montana. Rule 9, 28, MRLDE. Subject to
review by this Court, a lawyer may be conditionally admitted to the practice, subject to
2
VanDyke points out that a District Judge who wishes to run for the Supreme Court already will
have met the five-year admission requirement; however, a judicial member of the Bar who has
served as judge of the Water Court or Workers Compensation Court could be ineligible to seek
election to the Supreme Court under Cross’s interpretation, despite serving in that capacity for
“decades,” if he or she had not attained five years of practice prior to being appointed to the judicial
position. Cross does not directly dispute this interpretation, but observes that the five-year
admission requirement need not “immediately” precede election or appointment to office.
8
requirements imposed by the Supreme Court’s Commission on Character and Fitness. Rules
of Procedure of the Commission on Character and Fitness of the State Bar of Montana, §§
5(d), (6). And the Court may admit a lawyer pro hac vice, limiting the lawyer’s appearance
to a specific case or cases. Rules for Admission to the Bar of the State Montana, Rule IV.
¶16 VanDyke was admitted to the practice of law in Montana in 2005. “An attorney or
counselor at law admitted by the supreme court of the state to practice within the state is
required to pay a license tax of $25 a year.” Section 37-61-211(1), MCA. Pursuant to this
statute, inactive Bar members are required to pay the annual license tax. VanDyke has paid
his tax and received his certificate from the Clerk of this Court for each year since his
admission. His admission was not conditional and has not been terminated, suspended, or
subjected to any form of probation or other disciplinary action at any time. VanDyke did, by
voluntary action, choose not to engage in the practice of law in Montana, selecting inactive
membership for a period of approximately six years. But he did not resign or surrender his
license and his admission to the Bar was not withdrawn. In short, he has never been
“un-admitted.” His status as an inactive member of the Bar restricted him from “practic[ing]
law in this state[.]” By-Laws, art. I, § 3(f).
¶17 To resolve whether that restriction renders VanDyke ineligible for the 2014 ballot, we
are guided by the principle that, when interpreting the Constitution, “if possible, effect must
be given to every section and clause.” Martien, 68 Mont. at 464, 219 P. at 819. For
example, in Reichert, where we determined that Article VII, Section 9(1), did not permit a
legislative referendum to require that Supreme Court Justices be elected from legislatively-
created judicial districts, we considered the language of that section together with other
9
relevant provisions of the Constitution. Reichert, ¶¶ 63, 65. We construe the Constitution
“as a whole[,] with each provision bearing upon the same subject matter receiving
appropriate attention.” Racicot, 243 Mont. at 390, 794 P.2d at 1186.
¶18 The Constitution provides a key relevant distinction between the qualifications for
judicial officers and the qualifications for Attorney General. While candidates for both
offices must reside within the state for two years immediately preceding election and both
must be admitted to the practice of law in Montana, a candidate for Attorney General must
have “engaged in the active practice thereof for at least five years before election.” Mont.
Const. art. VI, § 3(2). Article VI, Section 3, and Article VII, Section 9 establish the
minimum qualifications to hold statewide office in the executive and judicial branches of
government; it is appropriate to view them together as part of the Constitution’s framework
for the structure of state government. “The process of reading relevant statutory schemes in
their entireties is what allows the Court to give true effect to the will of the Legislature.”
Friends of the Wild Swan v. Dep’t of Nat. Res. & Conserv., 2005 MT 351, ¶ 16, 330 Mont.
186, 127 P.3d 394.
¶19 The “active practice” requirement is omitted from Article VII, Section 9(1). The plain
language of these two provisions demonstrates a distinction in eligibility requirements.
Given the Constitution’s explicit requirement of the “active practice” of law in Article VI,
Section 3(2), we are reluctant to conclude that the framers “somehow meant to imply” a
similar requirement in Article VII, Section 9(1). Friends of the Wild Swan, ¶ 18; see also
Keene Corp. v. United States, 508 U.S. 200, 208, 113 S. Ct. 2035, 2040 (1993) (“‘Where
Congress includes particular language in one section of a statute but omits it in another . . . ,
10
it is generally presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.’” (quoting Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296,
300 (1983))). We strive to adopt a construction that will give effect to all relevant provisions
without inserting what the express language of Article VII, Section 9(1) omits.
Section 1-2-101, MCA.
¶20 Cross insists that she is not advocating for an “active practice” requirement, but for a
construction that “admitted to the practice” means an unrestricted ability to engage in the
practice of law. As discussed above, however, although VanDyke could not engage in the
practice of law while on inactive status, his admission to the practice was not affected. The
By-Laws expressly distinguish between voluntary inactive status and voluntary resignation
of membership, which requires a lawyer to “surrender” his or her license to practice law.
This interpretation finds additional support in this Court’s rules governing the conduct of
members of the Bar. Under the Rules for Disciplinary Enforcement, the disciplinary
jurisdiction of the Supreme Court extends to:
Any lawyer admitted to practice law in the state of Montana and any lawyer
specially admitted by a court of the state of Montana for a particular
proceeding, or appearing by pleading or otherwise in any judicial proceeding
in the state of Montana, or otherwise engaging in the practice of law in the
state of Montana[.]
Rule 7, MRLDE. Concluding that an inactive member is not “admitted to the practice of
law” would place that member outside the reach of this Court’s disciplinary jurisdiction.
¶21 The District Court, agreeing with Cross’s interpretation of the eligibility requirement,
concluded that being a member of the State Bar of Montana “is not synonymous with being
admitted to the practice of law.” Construction of the operative language in Article VII,
11
Section 9(1), is a matter of first impression. We concluded in State ex rel. Racicot that
where both parties’ constructions of the constitutional language at issue “appear to be
plausible[,] . . . the sentence is ambiguous as to the present issue.” Racicot, 243 Mont. at
385, 794 P.2d at 1183. “[T]o the extent the plain language of the statute leaves any doubt,
we look to the legislative history to determine whether” the District Court’s interpretation is
correct. State v. Gregori, 2014 MT 169, ¶ 13, ___ Mont. ___, ___ P.3d ___. Therefore, as
in Racicot and in Reichert, ¶¶ 64, 80-81, we examine the Constitutional Convention
transcripts to shed additional light on the framers’ intent.
¶22 At the 1972 Constitutional Convention, the Majority Report of the Executive
Committee proposed that the Montana Constitution require candidates for all statewide
executive offices to be “a citizen of the United States, a resident of Montana for two years
next preceding the election, and . . . otherwise a qualified voter.” Montana Constitutional
Convention, Committee Proposal, February 17, 1972, Vol. I, 435. In addition, “any person
to be eligible to the office of attorney general shall be an attorney in good standing admitted
to practice law in the state of Montana, and have engaged in the active practice thereof for
five years before election.” Mont. Const. Conv., Vol. I at 435-36.
¶23 The Majority Proposal of the Judiciary Committee recommended similar
qualifications for the office of District Court Judge, but slightly different qualifications for
Supreme Court Justice. Mont. Const. Conv., Vol. I at 487-88. For District Judge, the
Majority Report proposed in pertinent part:
No person shall be eligible to the office of judge of the district court unless
engaged in the active practice of law in the state of Montana for at least five
years prior to filing for or being appointed to the office of district judge, and in
12
addition shall be a citizen of the United States and admitted to practice law in
the supreme court of the state of Montana.
Mont. Const. Conv., Vol. I at 488. For Supreme Court Justice, the Majority Report
proposed:
A United States citizen who has been a resident of Montana for two years shall
be eligible for the office of justice of the supreme court if admitted to practice
law in Montana and experienced with the law in Montana for at least five
years immediately prior to filing for or being appointed to the position of
justice.
Mont. Const. Conv., Vol. I at 487.
¶24 The Minority Proposal from the Judiciary Committee suggested a Judiciary Article
that was considerably shorter than that proposed by the Majority Report. In offering its
recommendation, the Minority commented that its proposal provided “strength” in “[i]ts
elasticity and flexibility” and “force” in its “clarity.” In the Minority Proposal, “citizens’
choices and options have been enhanced, the judiciary has been strengthened, and the entire
judicial system has been made more flexible to change and review by the people.” Section 8
of the Minority Proposal provided identical qualifications for both Supreme Court Justices
and District Judges; it used the language that candidates must “have been admitted to the
practice of law in Montana for at least five years prior to the date of appointment or
election.” Mont. Const. Conv., Vol. I at 512. Comments to the Minority Report pointed out
that it “specifies five years of practice at law as a qualification for either a supreme court
justice or a judge of the district court.” Mont. Const. Conv., Vol. I at 522.
¶25 On February 24, 1972, the delegates debated the Executive Article. When the topic
turned to qualifications for Attorney General, Delegate Joyce explained that the five-year
13
practice requirement was adopted “to conform with the Judicial Article.” Mont. Const.
Conv., Vol. IV at 893. Delegate Joyce explained that the Executive Committee’s intention
was to “put the Attorney General on the same status as the district judge, that he’d have to
practice law in Montana for 5 years, learn the procedure of Montana so, therefore—so that he
could then be a good, qualified, experienced lawyer when he became Attorney General . . . .”
Mont. Const. Conv., Vol. IV, at 895. The delegates adopted the Majority Report for the
qualifications of executive officers. Mont. Const. Conv., Vol. IV at 899.
¶26 Two days later, the Convention took up consideration of the vastly differing proposals
between the Majority and Minority Reports on the Judiciary Article. Mont. Const. Conv.,
Vol. IV at 1010. Following impassioned speeches from members of the divided Judiciary
Committee, the delegates voted to proceed with the Minority Proposal. Mont. Const. Conv.,
Vol. IV at 1035. By February 29, 1972, they had reached discussion on the Qualifications
section. Delegate Berg explained:
We have changed the 1889 Constitution in some particulars with regards to the
qualifications of judges. First of all, we eliminated the age requirement, but,
secondly, we required five years practice of law for either a District Court
judge or a Supreme Court judge, and by that we mean that he must be
admitted to the practice of law in the State of Montana for at least five years
before he’s qualified to hold that office. It was the belief of the committee,
and I’m sure I’m speaking now on behalf of both majority and minority, that it
takes experience in the courtroom, it takes experience in the actual practice in
Montana in order to understand the procedures that we use, and that it would
be harmful to the carrying out of justice in our courts if we had people on the
bench who were not intimately familiar not only with Montana substantive
law, but more especially with procedural law, and we felt very strongly that
one of the most significant qualifications would be actual trial practice in
court. We did not feel, however, that we should specify that in particular, but
we feel that these are the kind of qualifications that do lend to the making of
good judges.
14
Mont. Const. Conv., Vol. IV at 1119-20. There was no further discussion on this provision
of the Minority Proposal. The section was adopted on a voice vote. Mont. Const. Conv.,
Vol. IV at 1121.
¶27 Cross selected the above quote from Delegate Berg to argue to the District Court that
the requirement for five years’ admission to the practice of law in Montana “was premised
upon the expectation that Montana Supreme Court Justices would be experienced in the
actual practice of Montana law and procedures.” Including the same quote in its Decision
and Order, the District Court stated, “Explicit in [Delegate Berg’s] reasoning is the principle
that to be eligible for office, a judicial candidate must be engaged in the practice of law in the
state for five years.” In the context of the entire discussion, however, Delegate Berg’s
remarks reflect the Minority Proposal’s streamlined approach to the Judicial Article and the
distinction between being eligible to seek election to office and being qualified to serve in
the office sought. The Minority Proposal removed all eligibility requirements except
admission to the practice of law. After considering proposals that would have imposed
specific eligibility requirements for both supreme court and district court candidates, the
delegates chose an approach with more “elasticity and flexibility,” abandoning requirements
for “active practice” or “experience[] with the law in Montana.”
¶28 Given the extensive discussion of the Executive Article and the specific “active
practice” requirements for Attorney General, followed by the deliberate decision to adopt a
simplified Judiciary Article, the convention transcripts make clear that the delegates
understood and intended the difference between the qualifications for Attorney General and
15
the qualifications for Supreme Court Justice. The Constitutional Convention record thus
supports our analysis of the plain language of Article VII, Section 9(1).
¶29 Although we have not previously interpreted Article VII, Section 9’s requirement for
admission to the practice of law, we applied liberal construction to a similar statutory
eligibility requirement in Shapiro v. Jefferson Co., 278 Mont. 109, 923 P.2d 543 (1996). In
that case, the Jefferson County Commissioners had filled a vacancy in the position of county
attorney with an attorney who had been admitted to the State Bar four years prior to her
appointment but had practiced under this Court’s “Student Practice Rule” for an additional
year. The applicable statute, § 7-4-2701, MCA, imposed an eligibility requirement that a
person be “admitted to the practice of law for at least 5 years prior to the date of election or
appointment.” This Court ruled that, because the attorney “was entitled to engage in the
practice of law only by virtue of this Court’s order enacting the Student Practice Rule and
only after she met the requirements of and was certified to practice pursuant to that rule, the
Court’s order did admit her to the practice of law.” Shapiro, 278 Mont. at 115, 923 P.2d at
547. The dissenting justices sharply disagreed, noting that “[t]he phrase ‘admitted to the
practice of law’ . . . is a different matter entirely from ‘practicing law’” and that the attorney
had not been admitted to the practice of law under the Student Practice Rule when she had
not completed all the eligibility requirements for admission to the Bar under statute and
Court rules. Shapiro, 278 Mont. at 117-19, 923 P.2d at 548-49.
¶30 Although Shapiro has limited applicability here, it is instructive for the Court’s broad
interpretation of minimum eligibility requirements and for its recognition that admission to
the practice of law is conferred in accordance with the rules of this Court and not by an
16
attorney’s active Bar membership status. Even the dissenting justices’ distinction between
admission and practice supports a determination in this case that VanDyke meets the
constitutional eligibility requirements. Under either approach, “admission to the practice of
law in Montana” does not connote active membership in the State Bar.
¶31 Finally, as in Racicot, “[w]e have been presented with extensive arguments as to the
potential for unreasonable results and even abuses of the Judicial selection system. We limit
our decision to the facts and issues of the case before us.” Racicot, 243 Mont. at 391, 794
P.2d at 1187. While unintended consequences possibly could occur under either
construction of the provision, a construction that would disallow Bar members whose
admission status has never been withdrawn, suspended or terminated and that could
disqualify licensed attorneys who have served most of their careers in judicial positions
would be an unreasonable construction of the eligibility requirement. To the extent the
construction could open the door to long-inactive attorneys to run for judicial positions, the
Constitution—as Delegate Berg recognized—determines minimum eligibility; the voters
decide who is qualified to serve.
¶32 The Constitution’s grant of authority to this Court to govern the practice of law and to
develop rules for admission to the bar does not, as the Dissent suggests, authorize the Court
to revise the minimum eligibility requirements that are set by the Constitution. Thus, a
careful analysis of the intent of the framers in adopting these constitutional requirements is
integral to proper resolution of this case. The Court has exercised its power to regulate
through the imposition of various administrative prerequisites to actively engaging in the
17
practice of law; at least in this case, however, those administrative regulations did not affect
VanDyke’s admission to the practice.
CONCLUSION
¶33 We conclude that VanDyke’s admission to the practice of law in Montana in 2005
satisfies the Constitution’s requirement that a candidate for Supreme Court Justice be
“admitted to the practice of law in Montana for at least five years prior to the date of
appointment or election,” notwithstanding his choice to take inactive status for some of those
years. The judgment of the District Court is reversed.
/S/ BETH BAKER
We Concur:
/S/ LAURIE McKINNON
/S/ JIM RICE
/S/ DANIEL A. BOUCHER
District Court Judge
sitting for Justice Michael E Wheat
Justice Patricia Cotter dissenting.
¶34 I dissent. I would affirm the decision of the District Court, though on slightly
different grounds, and direct the Montana Secretary of State to strike VanDyke’s name from
the ballot.
¶35 In my judgment, the Court goes astray by relying upon Article VII, Section 9 of the
Montana Constitution and its gleaning of the framers’ intent, to the neglect of the clear
import of Article VII, Section 2(3). Article VII, Section 2(3) of the Montana Constitution
provides that the Supreme Court “may make rules governing appellate procedure, practice
and procedure for all other courts, admission to the bar and the conduct of its members.”
18
Thus, the framers placed in this Court’s hands the full authority to define and circumscribe
what constitutes the practice of law in Montana. We have stated that Article VII, Section 2
of the Montana Constitution “places the governance and control of the practice of law solely
with the Supreme Court,” In re State Bar for Dues Increase, 2001 MT 108, ¶ 19, 305 Mont.
279, 53 P.3d 854, and that it “specifically grants this Court the power to make rules
governing admission to the bar and the conduct of its members.” In re Pres. of Mont. Bar
Assn., 163 Mont. 523, 524, 518 P.2d 32 (1974) (citing Mont. Const. art. VII, § 2); see also In
re Matt, 252 Mont. 345, 348, 829 P.2d 625, 627 (1992) (citation omitted) (“[T]he ultimate
decision regarding the admission of attorneys in Montana rests exclusively with this
Court.”); In re Verified Pet., 250 Mont. 325, 329, 820 P.2d 1288, 1290 (1991) (“In matters
relating to the admission of attorneys to the Montana Bar, and the conduct of members of the
bar, this Court’s power is both broad and exclusive.”).
¶36 In January 1974, this Court invoked its constitutional power “to govern and control
the practice of law in Montana” when it issued its Unification Order and directed the Bar to
present for this Court’s adoption proposed rules for the Bar’s government, admission of
attorneys to the practice of law, and the conduct of its members. Pres. of Mont. Bar Assn.,
163 Mont. at 526-28, 518 P.2d at 33-34. The Court makes reference in its Opinion to our
exercise of this constitutional power but fails to acknowledge its significance to the
resolution of this case.
¶37 When the drafters adopted Article VII, Section 3(2) of the Montana Constitution and
“place[d] the governance and control of the practice of law solely with the Supreme Court,”
State Bar for Dues Increase, ¶ 19, they gave us a clean slate upon which to write the rules
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regulating the practice of law. In the years since our 1974 Order unifying the Bar, the By-
Laws of the State Bar, initially adopted by us and subsequently amended pursuant to our
constitutional power, have clearly delineated who can practice law in this state and who
cannot. State Bar for Dues Increase, ¶ 18; see also e.g. In re the Unified Bar of Mont., 165
Mont. 1, 5-8, 530 P.2d 765, 767-68 (1975) (approving initial Unified Bar By-Laws).
Because the drafters of the Constitution tasked this Court with making the rules that would
govern the practice of law, it is unnecessary to engage in a present-day debate about what the
drafters may have intended in 1972 by the language “admitted to the practice of law.” See
Opinion, ¶¶ 21-28. What they clearly intended then and did in fact do was delegate to this
Court the full authority to give meaning and parameters to that phrase. Thus, what matters
here and now is how this Court has defined and constrained the admission to the practice of
law in this state.1
¶38 We therefore look to the By-Laws of the State Bar of Montana to determine whether
VanDyke was “admitted to the practice of law in Montana” while on inactive status. Though
he was licensed and eligible to practice law in Montana, VanDyke was not admitted to
practice law in Montana while inactive because he was barred during that timeframe from
practicing law in any Montana courtroom. Article I, Section 3(b) of the By-Laws provides
1
The inclusion of Section 3(2) in Article VII governing The Judiciary also readily explains why the
contents of Article VI governing The Executive carry no persuasive value. The Court states that the
two articles must be viewed together. Opinion, ¶ 18. However, their respective inclusions and
omissions dictate otherwise. Article VII confers upon this Court “the ultimate decision regarding the
admission of attorneys in Montana,” permitting this Court to fashion practice qualifications for all
attorneys. Verified Pet., 250 Mont. at 328, 820 P.2d at 1290. Because there is no corresponding
provision in Article VI conferring upon the executive branch the authority to determine the practice
qualifications for any attorneys, including the Attorney General, elaboration concerning those
qualifications in Article VI was necessary.
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that, “[e]xcept as provided in subsection (g) of this section, only active and active military
service members may practice law in the State of Montana.” Inactive members are those
“who are eligible for active membership but are not engaged in the practice of law in
Montana.” By-Laws, art. I, § 3(a)(iii). “[N]o . . . inactive member . . . may practice law in
this state.” By-Laws, art. I, § 3(f).
¶39 In order to practice law in a Montana courtroom, VanDyke was required to meet
certain “practice requirements.” Article I, Section 5(a) of the By-Laws states: “To practice
law in the state courts of Montana, a member must: (i) have paid dues and assessments for
active membership . . ., (ii) have completed all continuing legal education . . ., (iii) have paid
all license taxes . . ., [and] (iv) be free of suspension or other discipline imposed by the
Montana Supreme Court Commission on Practice.” Because VanDyke opted not to meet
these requirements, he could not practice law in Montana. Indeed, had he attempted to do so,
VanDyke would have been subject to misdemeanor prosecution and a contempt of court
citation. By-Laws, art. I, § 5(b).
¶40 The Court overcomplicates the analysis of the question presented. The State Bar By-
Laws clearly and plainly prohibited VanDyke from practicing law in Montana while on
inactive status. Moreover, for over five years VanDyke availed himself of the benefits of
inactive status by paying reduced Bar dues, freeing himself from the payment of assessments
to the Lawyers’ Fund for Client Protection, and avoiding the CLE requirements imposed on
active bar members. Having done so, he should be estopped from now asserting that he was
admitted to practice law in Montana during those same five years. He cannot have it both
ways, and the Court errs by concluding otherwise.
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¶41 Because VanDyke was not “admitted to the practice of law in Montana for at least
five years prior to the date of . . . election,” as required by Article VII, Section 9(1) of the
Montana Constitution and as circumscribed by the State Bar By-Laws approved by this
Court, he is not qualified to have his name placed on the ballot as a candidate for the position
of Supreme Court Justice. I dissent from the Court’s contrary conclusion.
/S/ PATRICIA COTTER
District Court Judges Dirk M. Sandefur and Edward P. McLean join the dissent.
/S/ DIRK M. SANDEFUR
District Court Judge
sitting for Chief Justice Mike McGrath
/S/ EDWARD P. McLEAN
District Court Judge
sitting for Justice James Jeremiah Shea
22