Wheat's record under attack; what's actually in the record?

HELENA — From high-profile criminal cases to multimillion-dollar business decisions, Supreme Court Justice Mike Wheat has ruled many ways on some of Montana’s biggest cases since joining the court in 2010.

Yet in his re-election race, his opponent — Lawrence VanDyke — and pro-business groups are blasting Wheat as a “liberal” judge who favors plaintiffs’ attorneys, environmentalists and criminal defendants.

They’ve picked a handful of cases to make their point and featured those decisions in TV ads, mailers and public talking points.

“My problem with Mike Wheat is not that he’s a liberal Democrat,” VanDyke said in an interview this week. “My problem is he judges like a liberal Democrat.”

Wheat, a former Democratic state senator who worked 28 years as a lawyer in a Bozeman firm that represented plaintiffs and small businesses, said the accusations are distorting his record.

“It’s unfair and disingenuous,” he said Wednesday. “There is much more to the story than the tiny little sliver they take out of (a case) to attack me. It’s the lowest form of political advertising they have.”

When asked to back up the claim that Wheat favors trial attorneys, VanDyke and his supporters point to several cases.

In one case, Wheat said attorneys for a woman who won a judgment against a Thompson Falls youth camp after her daughter committed suicide should get $1.2 million in fees. In another, he said part of state workers’ compensation law should be struck down so a woman could get more than $3,000 for the workplace death of her son.

VanDyke said in both cases, in which Wheat was the minority, Wheat clearly sided with plaintiff attorneys’ financial interest.

“None of the other justices thought (it) was warranted,” he said of the first case. “You can’t hide behind your colleagues here.”

Wheat said in the Thompson Falls lawsuit he sided with the district judge who heard the case — and that the $1.2 million was the amount of money that the woman and her attorneys had agreed should be the payment.

In the other case, Wheat said if the woman’s son had been killed in anything other than a workplace accident, she could have recovered far more in damages for the loss of her son, who lived with her, and his support.

Either way, Wheat said he called those cases like he would any other case: By looking at the facts and the law.

“(Trial) lawyers don’t get a break from me when they come before the court,” he said. “There are cases ... where the trial lawyers have not prevailed; there are others where they have. I try very hard to make those decisions based on the facts and the laws.”

Wheat’s critics also have labeled him “soft on crime,” focusing on a few cases where he voted to overturn convictions because of various rights violations.

Wheat said he could just as easily point to the April 2014 Supreme Court decision, which he wrote, that reversed and vacated the highly publicized 31-day sentence for Billings teacher Stacey Rambold for having sex with a 14-year-old student, who later committed suicide.

The decision allowed a state court to resentence Rambold to 10 years in prison.

Wheat also has come under fire for a pair of decisions on environmental cases. In 2012, he wrote a majority opinion that upheld a lower-court ruling invalidating a state permit for a proposed silver mine near Libby.

And that same year, he dissented from a Supreme Court decision that approved permits for Fidelity Exploration to drill 23 new natural gas wells near Baker, in eastern Montana.

“There is a pattern of Mike Wheat letting his environmental views influence his decisions on the court,” VanDyke said, noting that Wheat says on his website he is a “defender of Montana’s constitutional right to a clean and healthful environment.”

Wheat said in the Libby mine case he voted to uphold the decision of the trial judge, who had examined a lengthy record on the long-running dispute over the permit.

On the gas-well case, Wheat said he dissented because the state hadn’t followed the law on analyzing the “cumulative impacts” of the new wells, particularly on endangered sage grouse breeding grounds.

“I wasn’t saying you can’t (drill),” he said. “I just said, if you do it, follow the rules and analyze the cumulative impact.”

Wheat also has been part of many significant cases before the court, some of which are mentioned by his critics — and some of which are not.

Earlier this year, Wheat wrote a lengthy decision upholding Montana’s stream-access law. He also voted against the 2013 decision that sent convicted murderer Barry Beach back to prison, for the decision upholding Montana’s ban on corporate campaign spending, and against a ruling that upheld Montana’s laws preventing same-sex couples from getting the same benefits as heterosexual married couples.

In all of the cases, Wheat said he and other justices look at the facts presented to them by the parties who appeal their cases to the high court.

“We’re confined by the arguments that the lawyers have raised,” he said. “We just decide typically whether a (lower-court) judge has made the right decision.”

VanDyke said he’s been mentioning certain cases because the voters should know about them and make their own judgment.

“Put all of this before the voters and let them decide whether these are just flukes or whether (Wheat) is letting his views influence his decisions,” he said.

Distributed by MCT Information Services