HELENA — In an election year dominated by high-profile campaigns, one statewide race that has dropped below many voters’ radar is the one unfolding for Montana Supreme Court.
District Judge Laurie McKinnon of Choteau and public defender Ed Sheehy of Missoula are in a close race to replace Justice James Nelson, who is retiring after nearly 20 years on the bench.
McKinnon touts her five years of experience as a district judge and said her philosophy is to protect constitutional rights, respect the role of the Legislature and be mindful of the separation of the branches of government.
“I can’t say strongly enough that I believe in judicial restraint, and I believe it is an undemocratic process for a justice to make a decision based on what they believe policy should be. That is the role of the Legislature,” she said.
Sheehy said the current Supreme Court justices sometimes appear to be legislating from the bench, and he believes they should instead apply and interpret the law as they are supposed to.
“They decide they want to reach some decision yet they ignore existing precedent,” he said.
Sheehy downplayed the importance of previous experience as a judge as a qualification for Supreme Court justice. He said he knows the law — his 34 years of practicing civil and criminal cases give him that expertise — and that’s what qualifies him, not time served as a district judge.
But those messages from the candidates appear to have gone largely unheard by the voters. A new poll commissioned by Lee Newspapers of Montana found the two are just about even with more than a quarter of the voters undecided.
That, in part, is because judicial campaigns are just different from any others in the state. They’re nonpartisan, so the candidates don’t identify with political parties.
That makes for a more low-key and low-cost race. Since the end of June, after the primary election, McKinnon and Sheehy raised just over $61,600 combined — and a part of that total comes from personal loans they made to their campaigns.
Compare that to the nearly $20 million raised by the candidates to date in the U.S. Senate race between incumbent Democrat Jon Tester and Republican challenger Denny Rehberg.
The effect has been fewer people getting their message amid the din of the more expensive races. The candidates say that is unfortunate with voters being asked to choose a person who can overrule an act of the Legislature with just three other justices’ votes to form a majority.
“With that large of an amount of undecideds, I can say the information is not getting to the voters about the race,” McKinnon said. “No matter how hard a candidate tries, it is different because a voter sees the other races.”
Even so, outside cash has still managed to touch the Supreme Court race in the form of attack ads. An anonymous third-party group has attacked Sheehy for seeking a lesser penalty than the death sentence for a man he defended who was accused of two killings.
Other ads claim Sheehy would be a partisan judge because he contributed more money in the past to the campaigns of Democrats than to Republicans.
McKinnon and Sheehy both decried the attacks, saying they have no place in a nonpartisan race. Sheehy also defended his record.
“Yes, I made political contributions to both Democrats and Republicans,” Sheehy said. “But there is no Democratic interpretation of the law, and there is no Republican interpretation of the law. The law is the law,” Sheehy said.
Sheehy, 60, was born in Butte and has a wife, two sons and a grandchild. He has worked for the Montana Office of Public Defenders since 2006, most recently in the major crimes unit.
Prior to that, he was in private practice for 28 years and was a clerk for Montana Supreme Court Justice Frank Haswell, who was chief justice from 1978-1985.
McKinnon, 52, was born, raised and went to law school in Maryland. She became a county prosecutor in Baltimore after being admitted to the bar in 1987, then started her own practice when her daughter was born.
She and her husband moved to Choteau in 1994, raised four children there and worked as an attorney and public defender in Glacier and Teton counties.
She became a district judge in 2007 and received judge of the year award in 2010 from the Court Appointed Special Advocates of Montana, which helps abused and neglected children.