Cross v. Vandyke

Decision Date22 July 2014
Docket NumberNo. DA 14–0259.,DA 14–0259.
Citation375 Mont. 535,332 P.3d 215
PartiesLouise 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.
CourtMontana Supreme Court


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.

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.


¶ 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 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] 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.


¶ 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.


¶ 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 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 VanDyke 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 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 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, ...

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