By making speeches, accepting endorsements and traveling with state Democrats during the final week of the 2014 elections, former Democratic state senator and current Supreme Court Justice Mike Wheat may have violated the state’s Code of Judicial Conduct.
The Code, which was developed over several years and finally adopted by the state Supreme Court in 2008, spells out expectations of behavior for all judges in the state in order to maintain the impartiality, integrity and independence of the judiciary.
According to the Billings Gazette, Wheat accompanied 2014 statewide candidates Amanda Curtis and John Lewis to five different cities across hundreds of miles as part of a 17 city, four day Get Out The Vote tour of the state to whip up votes for Democrats. The Gazette even featured a photo of Wheat speaking to Democrats at the Billings Education Association as part of it’s coverage of the tour.
According to the Montana Code of Judicial Conduct, judges and candidates for the judiciary may not:
-act as a leader in, or hold an office, a political organization,
-make speeches on behalf of a political organization, or any partisan candidate for public office,
-solicit funds for, or make a contribution to a political organization or partisan candidate for office,
-attend or purchase tickets for dinners or other events sponsored by a partisan candidate for office,
-seek, accept or use endorsements from a political organization or partisan candidate for office,
Additionally, judges and candidates for the judiciary are charged to “act at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary.” In fact, Wheat was featured less than two months before in an article with John Adams of the Great Falls Tribune saying that “good judges can set aside their partisan past and make good decisions based on law.”
Current Montana Republican Party chairman noted at the time that Wheat’s campaigning with state Democrats came just days after widespread condemnation of the so called “Stanford Mailers” which were sent to a group of voters in Montana identifying Wheat as the candidate who’s donors most closely matched those supporting President Barack Obama as part of an academic study by Stanford University and Dartmouth College.
Democratic Secretary of State Linda McCulloch quickly filed a complaint with Commissioner of Political Practices Jonathan Motl over the use of the Montana official state seal, which prompted a quick ruling from Motl and apology from the out of state academics, including clarification mailers to the voters who received the first voter guide. Dave Skinner, in a column for the Flathead Beacon, noted at the time that the data the mailers were based off of showed Montana as having the 6th most liberal Supreme Court in the entire country based on academic studies of Justices’ rulings, appointments and campaign finance records.
The Montana Code of Judicial Ethics replaced the Canon of Judicial Ethics in 2008. In 2003 the state Supreme Court established a Commission to bring Montana’s code of conduct for judges closer in line with the American Bar Association Model, which at the time was being used by the majority of other states. Comments on the code by those involved show a delicate balancing act in which judges crafted rules that sought to maintain the impartiality of the judiciary, while also giving judges some wiggle room to maintain personal beliefs. For example, while the Code prohibits displaying bias on the basis of sexual orientation, judges are allowed to belong to religious organizations which may oppose same-sex marriage. Phone calls to members of the Judicial Standards Commission and the Commision Secretary regarding Wheat’s campaigning with state Democrats were unreturned as of press time.
A Media Trackers analysis of the campaign finance records of state Democrats, Wheat and candidates Curtis and Lewis show no expenditures for the events, despite the time, money, personnel, and equipment needed to stage a multi-day, multi-city tour. State campaign finance law requires reporting of in-kind, or non-monetary donations of “anything of value” must also be reported in campaign finance disclosures. Additionally, many of the websites that previously announced the tour have disappeared, although some social media events listing the Montana Democratic Party as hosts of events are still active.
This is not the first time Wheat has been accused of partisanship by state Republicans. In 2014 Eric Fulton of the Gallatin County Young Republicans filed a complaint alleging Wheat had violated state election law by contributing to Democratic legislator Franke Wilmer. The matter went all the way to the State Supreme Court, but was later rejected when Wheat’s wife wrote a letter to the Political Practices office stating her own contribution has been misreported by Wilmer’s campaign as coming from her husband.