Colleague questions candidate's skills for court

HELENA — A former co-worker of Montana Supreme Court candidate Lawrence VanDyke is questioning whether the ex-solicitor general has the experience and temperament for a seat on the state's highest court.

Montana Department of Justice Civil Division Bureau Chief Mike Black told The Associated Press he decided to publicly campaign against VanDyke after working with him during his 1 1/2 years as Republican Attorney General Tim Fox's solicitor general.

"My primary reason has nothing to do with his politics," Black said. "It has to do with the fact that I just don't think he has the maturity or the work ethic to aspire to this position."

VanDyke dismissed Black's campaign against him as an extension of a long-running dispute between the two men, which ultimately led to VanDyke quitting his job.

"He's had a long, sort of mysterious vendetta against me, and I'm not sure why," VanDyke said.

VanDyke is attempting to unseat incumbent Justice Michael Wheat in the Nov. 4 election.

Fox appointed VanDyke as Montana solicitor general in 2013, taking him from private practice in Texas, where he specialized in constitutional and appellate cases. VanDyke, 41, graduated from Harvard Law School in 2005 and also clerked for federal appellate Judge Janice Rogers Brown.

VanDyke was on the job for less than a year before he gave his notice to Fox in January. He told the AP he had not planned a Supreme Court run when he resigned, nor did he know what his next job would be, but he decided to quit because the work environment had become strained.

Black has been an attorney for 25 years and with the Department of Justice for the last three years. Fox wrote a recommendation when Black applied for a Supreme Court vacancy earlier this year to replace former Justice Brian Morris, with Fox calling Black an "accomplished litigator with considerable court room experience."

When Black questions VanDyke's maturity, he said he means his lack of experience. The current Supreme Court justices spent an average of 28 years practicing law before they were elected or appointed to the Supreme Court, according to the justices' biographies.

By work ethic, Black said VanDyke didn't seem interested in gaining the skills and experience to work on the cases assigned to him.

Their dispute came to a head in a case they were both involved with opposing a lawsuit that sought married benefits for same-sex couples. It is captured in hundreds of pages of emails released by Fox's office in a public-records request by the Great Falls Tribune.

Black said one email in particular underscores VanDyke's lack of experience and concerns him about his Supreme Court candidacy.

The Jan. 23 email from VanDyke to his bosses at the attorney general's office, VanDyke said he wanted off the same-sex benefits case in part because he has little experience or expertise in matters such as discovery issues, dealing with experts, stipulations and conferring with opposing counsel.

"You're going to be sitting on Montana's highest court judging what those lawyers do," Black told the AP. "If you don't have experience dealing with that, I think you'll have a difficult time doing it well."

Another email from Black to his bosses accused VanDyke of avoiding work and not having the skills to perform or desire to learn how to perform the work of a lawyer. Attorney general chief of staff Scott Darkenwald told Black in the email chain that "your frustration does not exceed ours."

A separate email from Fox to Mattioli says he believed Black was putting his personal grudges against VanDyke above his responsibilities to the office.

Department of Justice spokesman John Barnes declined to assess VanDyke's performance as solicitor general, saying it would not be appropriate "to do or say anything that could be construed as injecting itself in a political race between two candidates for the court."

VanDyke said Supreme Court justices mainly deal with constitutional questions and reviews of lower decisions that don't require those skills as a trial lawyer.

"We've got lots of people with lots of trial experience on the court," VanDyke said. "I think what we need is somebody who actually focuses on the law and the constitution, has some expertise in that."

Lee Newspapers of Montana previously reported that of 6,600 cases to go to the Supreme Court since 2006, there were only 34 notices of constitutional challenges. Supreme Court Clerk Ed Smith confirmed those numbers Wednesday.