Three candidates seek to stand out in primary race for MT Supreme Court Justice #5

Running any campaign is difficult–finding the best ways to spread your message and educating the public about your stance on issues.

But what if the position you’re running for requires you to be neutral on everything? How do you stand out among your opponents? How should voters decide?

That’s the conundrum facing the candidates for the fifth seat on the Montana Supreme Court. Current Justice James Nelson is retiring at the end of 2012.

Each of the three primary candidates believes he or she can be the most neutral.


Candidate and sitting District Judge Laurie McKinnon says she has had so many people saying ‘How should I know how to vote for a Supreme Court Justice?’ that is, not knowing how they feel politically, their stances. McKinnon says people need to start looking at the race in a different way.

“We’ve got to stop looking for partisan concepts in a judicial race because there should be nothing partisan about the role of a judge,” McKinnon said.

McKinnon believes her status as the only judge in the race makes her the best neutral choice. She’s been a judge for 6 years for Montana’s 9th Judicial District. She’s lives in Choteau with her family.

She says that takes switching from the attorney mindset, that is being an advocate for your defendant.

“That analysis and process of studying the law from a point of view that considers both sides and I know I’m better at it after 6 years,” she said.

Some Republican legislators point to the current Montana Supreme Court as being activist. They look, for example, at the Court’s recent decision to uphold Montana’s ban on corporate campaign spending, in possible violation of the U.S. Supreme Court’s Citizens United Decision. The U.S. Supreme Court has put a hold on that decision.McKinnon says she has disagreed with some decisions of the Montana court but “that said, I can’t change the philosophy of the other justices and I actually believe we all want to follow the rule of law.” She thinks the current court is doing a fine job, and continues to improve.


McKinnon’s opponent, Missoula Public Defender Ed Sheehy, does find legitimacy in the activist court claim. He says the state supreme court doesn’t legislate from the bench as badly as the U.S. Supreme Court “but the Montana Supreme Court has had a habit in the last several years of ignoring statutes that have been passed by the Legislature,” he said.

He says when you go to law school, you learn appellate courts are supposed to look at the findings made by a lower court. You look at the facts and you decide how the law applies to those findings.

“Whatour court does is they, instead of doing that they decide we want to reach some result and now we’ll find the law to get there, and that’s not how it’s supposed to work,” he said.

Sheehy says he’s in his 34th year practicing law, both in private practice and as a public defender since 2006. He says he’s handled more appeals to the Montana Supreme Court than his opponents. And he says he understands how the courtrooms in different Montana communities work.

“I’ve handled cases all over the state,” he said.


The primary’s third candidate, Elizabeth Best also stresses broad experience. She has worked in private practice with her husband for almost 30 years. She says they have tackled almost every kind of law imaginable.

“Family law, adoptions, divorces, property disputes between and among neighbors. I’ve wrote some wills, I’ve done some probates,” she said, adding more recently they have evolved to represent constitutional civil rights cases.

Best served on the Class C community Centerville’s School Board while her children were in school. She has chaired the board of labor appeals and is the current chair of the Montana State Fund. She says that experience has helped her recognize what it is to be a judge rather than an attorney.

“There is a difference in how you are expected to behave and how you are expected to evaluate the facts,” she said. “I think I do know the difference and I have demonstrated I can sit fairly and objectively with a strong background in the constitution to analyze cases fairly for both sides.”

As to the activist court question, she says that is an unfair criticism. Best says lawyers using the term judicial activism does a disservice to the system.

“These cases are often very difficult and I think the reason we have 7 people on the court is it comes down to balancing competing constitutional rights, competing rights of citizens and someone is necessarily going to be unhappy in every case,” Best said. Although, Best would like to see the Court be more open to the public about their schedule in advance. And she would like to see the court hold more arguments and proceedings in rural areas for the citizens there.


Each of the three candidates has been accused of ethics violations. Ed Sheehy’s donations web page asks for contributions which are more than the legal amount.

Current District Court Judge Nels Swandal sent out a letter asking for donations to Laurie McKinnon’s campaign. The Montana Judicial Conduct Code says judges are prohibited from soliciting or collecting money on a candidate’s behalf. McKinnon acknowledges her campaign distributed the Swandal letter and says she accepts responsibility for it but declined to speak to its contents.

And Elizabeth Best has been accused of accepting endorsements from partisan officials, which is also against the Judicial Conduct Code.

“I have worked hard to make this campaign a non-partisan campaign,” she said. “I have sought out and attended many events held by Republicans and likewise events held by democrats. I have sought out the Tea Party. I will seek endorsement and help from all people and all citizens of Montana. I have no partisan endorsements whatsoever.”

We then looked at Best’s website and found listed endorsements from Yellowstone County Commissioner Democrat Bill Kennedy and Cascade County Sheriff Democrat Bob Edwards.

“Well, I thought we removed Cascade County Sheriff Bob Edwards and I’d thought we’d removed Bob Kennedy,” Best said.

Edwards was removed from the ‘Endorsements’ page of her website, but he was listed on the ‘Testimonials’ page fully endorsing her candidacy. She responded, “that testimonial should have been removed, we removed it from the scroll on the right hand side of the page and we must have missed it on the other page when we were removing it. Both of those will probably be removed by the time this airs because those are inadvertent errors.”

The Montana Supreme Court will not acknowledge if any complaints against any of the three candidates have been filed. It will be up to the public on primary day to judge which two candidates move on to the general election in November.

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