Race for Montana Supreme Court seat turns negative

By SANJAY TALWANI Independent Record | Posted: Friday, May 18, 2012 7:30 pm

HELENA – The campaign for a seat on the Montana Supreme Court, typically a more collegial and positive contest, is turning negative, with one candidate accusing the other two of judicial code violations and then having one of his own legal filings highlighted as “the Christmas Day Killer Lawsuit” by an opponent.

The three candidates – Great Falls-area attorney Elizabeth Best, state public defender Ed Sheehy and Choteau District Judge Laurie McKinnon – have each touted their legal experience. The two with the most votes in the June 5 primary will face off again in the general election in November to replace Associate Justice James Nelson.

But despite the risk of alienating a future Supreme Court justice, Sheehy and McKinnon have also taken shots at their opponents.

Sheehy has charged that Best violated the Montana Code of Judicial Conduct by including on her campaign website endorsements from current officeholders. Best said the inclusion of the endorsements was inadvertent and she has since removed those endorsements from the site.

“With these endorsements and testimonials, it can be inferred that Ms. Best is not honoring the judiciary as a public trust,” Sheehy said in a written statement. “Ms. Best says she would be a justice of ’integrity.’ This cannot be honestly claimed when she failed to follow the Code of Conduct which is designed to promote public confidence in the integrity of the judiciary.“

Sheehy criticized McKinnon for mailing a letter from District Judge Nels Swandal – who ran as a self-proclaimed conservative in his 2010 loss in a Supreme Court race – endorsing her and soliciting contributions.

“Judge McKinnon was required to take reasonable measures to not allow this to occur,” Sheehy wrote. “With this activity by her or her campaign staff, it cannot be said that she is honoring the judiciary as a public trust or maintaining, enhancing, or striving to maintain confidence in our legal system.”

This week, a mailer supporting McKinnon reached voters, charging Best with filing an “environmentalist, global warming lawsuit,” that would “seize control of the state’s atmosphere.” It tagged one of Sheehy’s legal efforts as “the Christmas Day Killer Lawsuit.”

Sheehy said that as a lawyer appointed to that case and one of the few in the state qualified to work on death-penalty appeals, he was ethically bound to make all such challenges.

“This is totally false and misleading,” Sheehy wrote of the mailer.

He also said false allegations by third parties must be disavowed by candidates.

The McKinnon mailer was paid for by Montana Growth Network Inc. One of those who received it this week was Mary Baker, program director for the Montana Commissioner on Political Practices. She noticed the company was not registered as with that office, and she said she contacted its officer, Republican state Sen. Jason Priest of Red Lodge, to encourage him to file the appropriate forms. Lawyer Chris Gallus did so for the company on Wednesday.

McKinnon said she has no affiliation with the group that sent the material and did not authorize it.

“I have absolutely nothing to do with Montana Growth Network and did not authorize or contribute to their mailer,” McKinnon said.

***

Sheehy, on his own campaign website, provides an opportunity to contribute well beyond the maximum allowed. He attributed it to the details of web design and said he would reject any contributions beyond the legal limit.

Sheehy is behind McKinnon and Best in fundraising, with just $3,116 on hand for the primary as of April 5, according to his most recent report, with $300 available for the general election. McKinnon reported $16,478 on hand for the primary and $3,410 for the general election; Best had $60,956 for the primary and $32,636 for the general election.

“It almost appears as if she’s trying to buy the election, in my mind, and that’s not what is about,” Sheehy said of Best. He said much of McKinnon’s haul may have resulted from the Swandal letter.

Regarding qualifications for the post, McKinnon notes she’s the only judge in the race and would be the only former district judge on the high court.

“As a judge, I do not get the luxury of specializing in a particular area of the law, like my opponents,” McKinnon wrote in an email.

Sheehy said he’s the most qualified because he’s about to start his 35th year practicing law, and has handled every type of civil and criminal matter in almost every county, and argued more cases before the Montana Supreme Court than the others.

Best said she has the highest possible rating from her peers, and have been endorsed by several former Montana Supreme Court justices and current district court judges.

She’s also been appointed to serve on the Montana Supreme Court commissions on civil procedure and evidence, and the Montana Federal Court Local Rules Committee.

“In these positions, I have succeeded at objectively considering all sides of issues, encouraged active participation from all sides, and been able to build consensus on important issues,” she said.