On September 2, 2022, President Joe Biden nominated Anthony Johnstone to the United States Court of Appeals for the Ninth Circuit. Johnstone is the Helen & David Mason Professor of Law and an affiliated professor of public administration at the University of Montana’s Blewett School of Law, where he has taught since 2011. Mr. Johnstone has also worked as a solo practitioner at Johnstone PLLC since 2015 and he previously served as the Solicitor for the State of Montana from 2008 to 2011.
Anthony Johnstone was born in Minneapolis, Minnesota in 1973. He graduated with a B.A. from Yale University in 1995 and earned his J.D. from the University of Chicago Law School with honors in 1999. After law school, Johnstone clerked for the Honorable Sidney R. Thomas, Circuit Judge of the United States Court of Appeals for the Ninth Circuit.
After his clerkship, Johnstone practiced as a litigation associate at Cravath, Swaine and Moore in New York from 2000-2003. There, he worked on small teams litigating complex civil cases involving antitrust, securities, and other commercial matters. He also participated in civil rights impact litigation involving the indigent defense system in Montana.
From 2004 to 2011, he practiced at the Legal Services Division of the Montana Department of Justice. There, he worked with the Appellate Services Bureau handling criminal appeals before the Montana Supreme Court and the Civil Services Bureau defending the State of Montana in various civil cases before federal and state courts. He also assumed the subject matter duties of the Department’s elections law, nonprofit supervision, and antitrust work. From 2008-2009, he was designated as the State Solicitor, where he focused on major litigation on behalf of the State. Since 2015, he has provided legal services through Johnstone PLLC, primarily as a consultant and outside counsel to the State of Montana.
Johnstone has tried five cases to final decision as sole counsel, chief counsel, or co-counsel for the State of Montana and has argued seven cases on appeal, including three before the Ninth Circuit. He has also submitted six briefs before the Supreme Court. The following cases are illustrative of his record:
Johnstone has spent most of his litigation career representing the State of Montana in federal and state constitutional law cases.
In Seven-Up Pete Venture v. Brian Schweitzer, Johnstone represented the State of Montana in constitutional challenges to an initiative that banned a certain form of op-pit gold mining and processing. The plaintiff mining company argued that the initiative constituted a taking of its property interests without just compensation as guaranteed under the state and federal law. After the State prevailed at the Montana Supreme Court, Johnstone assisted on the brief in opposition to the petition for certiorari. The Supreme Court denied the petition. He also served as co-counsel in and agued a parallel proceeding’s appeal to the United States Court of Appeals for the Ninth Circuit. The Circuit held the Eleventh Amendment precluded federal jurisdiction over an action seeking compensation for a taking of property by a State.
In American Tradition Partnership v. Attorney General, Johnstone represented the State of Montana in a constitutional challenge to the Montana Corrupt Practices Act, a law prohibiting corporate expenditures in candidate campaigns, where the plaintiff argued that the Act violated the Free Speech Clause of the U.S. Constitution. He served as lead counsel through summary judgment in the district court and on the briefs on appeal. He also assisted the Attorney General at argument before the Montana Supreme Court and the brief in opposition to the petition for certiorari. The Montana Supreme Court upheld the Act, distinguishing it from Citizens United. The Supreme Court summarily reversed, invalidating the Act.
In Canyon Ferry Road Baptist Church v. Unsworth, Johnstone represented the Montana Commissioner of Political Practices in facial and as-applied constitutional challenges to Montana’s ballot issue campaign disclosure laws. The plaintiff, a church that held an event in connection with a state constitutional initiative banning same-sex marriage, argued that state campaign disclosure laws violated the Free Speech and Free Exercise Clauses of the U.S. Constitution. Johnstone served as lead counsel through summary judgment in district court, on the briefs on appeal, and argued the case at the U.S. Court of Appeals for the Ninth Circuit. The Court invalidated the application of disclosure laws to the church as a violation of the Free Speech Clause and did not reach the facial or Free Exercise Clause challenges.
In Baxter v. State of Montana, Johnstone represented the State of Montana in a challenge to homicide laws as applied to physician-assisted death of terminally ill persons. The plaintiff argued that the state constitutional rights to dignity and privacy provide a right of a competent, terminally ill patient to physician assistance in dying. He served as lead counsel through summary judgment in district court, on the briefs on appeal, and argued the case at the Montana Supreme Court. The court avoided the constitutional issue, instead holding that a statutory consent defense was available to physicians who aid in the deaths of their competent, terminally ill patients.
In State of Montana v. Talen, Johnstone represented the State of Montana in a public land trust claims to the riverbeds of the Clark Fork, Madison and Missouri Rivers. The State argued that segments of the rivers are navigable for title and the defendant hydropower companies should pay full market value to use them for hydropower projects. He served as lead counsel in the first phase of the case, including through multiple rounds of summary judgment briefing in district court, a successful settlement with two or three of the original counterclaim-defendants, and in a trial on damages. Damages were granted to the State and the ruling was affirmed by the Montana Supreme Court. The Supreme Court granted certiorari to hear the case and Johnstone assisted in preparing for the merits briefing and argument before the Court. After the case was remanded, he assisted with pretrial litigation as a consultant, appeared as counsel of record for trial proceedings, written trial briefs and served as co-counsel through a ten-day liability phase trial on remand. The District Court post-trial decision is pending.
In In re: The Bair Family Trust, Johnstone represented the State of Montana as intervenor in a breach of trust action resulting from a charitable trust’s closure of a rural art museum. The petitioners, a group of the museum’s neighbors and supporters, argued that the trustee and board of advisors had breached their fiduciary duties by closing the museum. Johnstone served as the State’s sole counsel at summary judgment and trial, on briefs on appeal, and he argued the case at the Montana Supreme Court. The Court held for the State and the petitioners.
In Montanans for Justice v. State of Montana Johnstone represented the State of Montana in a case that involved a challenge to three ballot issues after claims that deceptive practices were used during the petitioning process. Johnstone served as co-counsel at trial and lead counsel on appeal to the Montana Supreme Court. Although the State was a nominal defendant, it argued for the disqualification of petition signatures obtained by deceptive practices. The court held for the plaintiffs and disqualified the ballot issues.
Prior to joining the Montana Department of Justice, Johnstone worked as a litigation associate at Cravath, Swaine and Moore. During his time there, Johnstone represented Citibank in a case involving federal securities fraud and state law claims arising from a former client’s trading and hedging losses in Caiola v. Citibank. Johnstone conducted legal and factual research, resolved discovery issues, prepared witnesses for depositions and prepared documents and witnesses for trial. The parties stipulated to dismiss the case.
Professional Activities and Accolades
Since 2011, Johnstone has taught a range of courses at the University of Montana Blewett School of Law, including Montana Constitutional Law, U.S. Constitutional Law, Legislation, Comparative Constitutional Law, Native American Voting Rights, Regulatory Process, Public Regulation of the Business, Philosophy of the Law, Supreme Court Practice, Election Law and First Amendment Law. He has written extensively on topics including federal campaign finance law, federalism, and state constitutional law.
Johnstone has received many awards in recognition of his scholarship and teaching skills, including the Boone Law Faculty Scholarship Award (2013, 2016, and 2022), the Garlington, Lohn & Robinson Teaching Award (2021), the Montana Faculty Service Award (2019), the Law School Merit Award (2016, 2017, and 2019), the Howard W. and Jane S. Heman Memorial Award for Excellence in Teaching (2018), the Toelle-Bekken Family Memorial Fund Award (2018), and the Native American Law Student Association Teaching Award (2016).