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June 8, 2023

It’s been a busy couple weeks for judicial politics. 

In the last edition of Capitolized, we reported on the pending retirement of Yellowstone County District Court Judge Michael Moses and his imminent replacement by deputy Billings city attorney Thomas Pardy.

On Wednesday, Montana Free Press broke even bigger news: Neither Montana Supreme Court Chief Justice Mike McGrath nor Justice Dirk Sandefur is planning to run for re-election in 2024, leaving two of the high court’s seven seats up for grabs at a time of heightened political visibility for the judicial branch. 

“I’ll be 77 at the end of this term, and I don’t feel like I can commit to another what would be nine and a half years at this point,” McGrath, who was first elected to the Supreme Court in 2008, told MTFP Tuesday. “It’s time to move on.” 

Both judges will serve the remainder of their terms, which conclude at the end of 2024. 

So far, only one candidate has filed to run for the chief justice spot: former U.S. Magistrate Judge for the District of Montana Jeremiah Lynch. No one has yet filed for Sandefur’s seat — there is still a year until the primary, after all. 

Other potential candidates for the chief justice spot include Montana Water Court chief judge Russ McElyea. McElyea, who’s presided over the Water Court since 2013, told a Senate committee during a confirmation hearing this session that he may not finish out his term as he’s considering running for McGrath’s seat. 

Reached by phone Thursday, McElyea said he’s still weighing his options. 

Lynch, who retired from his judgeship in 2019, could not be reached for comment. 

“When you’re going 100 miles an hour for 35 years both in the legal practice and as a judge, to just stop, it’s a bit difficult,” he told the Missoulian at his retirement, speaking to the possibility of being recalled to do pro bono magistrate court work. “I can’t just completely disengage.”

Races for Montana Supreme Court have become costly, high-profile and sometimes brutally political affairs, despite their nominal nonpartisanship.

In 2022, Public Service Commission President James Brown challenged incumbent Justice Ingrid Gustafson, launching what became the most expensive Montana Supreme Court race in history. The Montana GOP and prominent Republican officials rallied behind Brown, a former attorney for the party and for other conservative causes. Democratic groups aligned behind Gustafson, as did reproductive rights advocates following the U.S. Supreme Court’s Dobbs decision

Access to abortion in Montana is protected under the state Constitution thanks to the Montana Supreme Court’s unanimous 1999 decision in Armstrong v. State.  A district court is currently evaluating the constitutionality of five abortion measures passed by the GOP-dominated Legislature this session. The likelihood that those and other abortion issues will end up before the state Supreme Court — which could eventually be in a position to dial back the Armstrong ruling — strongly suggests the forthcoming races for both seats on the SupCo bench will be costly, contentious affairs. 

—Arren Kimbel-Sannit

But Wait, There’s More!

The high court isn’t the only chamber in the judicial branch that could see some changes. 

Gov. Greg Gianforte this week announced that he is soliciting applications for Montana Workers’ Compensation Court judge, a position the Legislature created in 1975 to resolve disputes related to — you guessed it — the state Workers’ Compensation Act. 

Former Democratic Gov. Steve Bullock appointed the current Workers’ Compensation Court judge, David Sandler, in 2014, filling a vacancy created by Judge Jim Shea’s ascendance to the Montana Supreme Court. Sandler successfully applied for a full six-year appointment in 2017. 

This is the first time a judge will be appointed to the Workers’ Compensation Court under the process created by 2021’s Senate Bill 140, a law that eliminated the state’s long-standing Judicial Nomination Commission. Under SB 140, Gianforte has unilateral power to name a judge to the court, so long as the applicant is a lawyer in good standing who meets the same qualifications as a district court judge.

Sandler said this week that he’s not sure whether he’ll put in for another term. Applications for the judgeship are due July 5, after which there will be a 30-day period for the public to comment. 

—Arren Kimbel-Sannit

Party Time

The Montana GOP will hold its 2023 officers’ convention in Missoula this weekend. Party delegates will have the opportunity to elect leaders, mingle, attend workshops and hear from high-level elected officials. 

If last year’s platform convention is an indicator, it will also be an opportunity to air intra-party grievances and to vie for control. And to party. 

Don “K” Kaltschmidt, a Whitefish car dealer who’s chaired the party since 2019, is angling for a third term. He’ll face at least one challenger: Darin Gaub, chair of the Lewis and Clark County Republican Central Committee and state director of the hard-right Montana Freedom Caucus. 

Delegates will also elect a vice chair, a secretary, a treasurer and an assistant treasurer. Per party bylaws, the chair and vice chair have to be of the opposite sex. The current vice chair is Great Falls Rep. Lola Sheldon-Galloway.

Concurrent with the officers’ convention, the party will also hold its annual state central committee meeting, where committee members will consider amendments to party bylaws. That, as dry as it sounds, can also be a venue for fireworks, since those bylaws lay out requirements for committee membership, nominations, and other functions that shape the party’s political direction and personnel. 

Arren Kimbel-Sannit

Campaign Update

Tim Sheehy, the ex-Navy SEAL and millionaire founder of Bridger Aerospace whom national Republicans are priming to challenge Democratic Sen. Jon Tester in 2024, has still not decided whether he’ll run, he told HuffPost in a story this week.

Sheehy provided further insight into his plans in an April appearance on conservative talk radio show Montana Talks. 

“We’ve put a lot on the line for the country,” he said then. “We’re being asked again to consider serving, and we’re certainly considering it.”

—Arren Kimbel-Sannit

Court Report

Conservation groups and the Montana Association of Counties filed separate lawsuits Wednesday challenging Gov. Greg Gianforte’s veto of Senate Bill 442, bipartisan legislation passed in 2023 that reconfigures the state’s allocation of recreational marijuana tax revenues. 

On May 2, the last day of the 68th Legislature, the governor vetoed the bill, arguing that its funding for county road construction and maintenance puts the state on the hook for matters better left to local governments. 

But the Senate adjourned before the governor’s veto had been read across the rostrum, as is standard practice under legislative rules, and many of the lawmakers who voted to end the session — including SB 442’s sponsor, Rep. Mike Lang, R-Malta — seemed not to know the governor had vetoed the bill. 

That means lawmakers didn’t have a chance to try to override the veto while the Legislature was in session. The lawsuit seeks to make sure that they’ll now have that opportunity through a mail poll. 

Mail-in override polls are common for bills that are vetoed after the session. But the governor’s office appears to be operating under the assumption that Gianforte vetoed the bill while the Legislature was still in session — the House met for several hours after the Senate adjourned — and that post-session polling is thus inappropriate. He’s not yet sent the bill with his veto to the secretary of state, a procedural step necessary before polls can be sent to legislators. 

But the plaintiffs in the two suits — Wild Montana and the Montana Wildlife Federation in the first, and the Montana Association of Counties in the second — contend that unless the court compels the governor to initiate the veto override process, there will be a precedent that allows governors to ignore the will of the Legislature if they time their vetoes correctly. 

“The two chambers of the Legislature typically adjourn at different times on or after the 87th legislative day,” the MACO lawsuit reads. “If one house adjourns before the other and then a veto message is delivered, the experience with SB 442 serves to prevent the Legislature from exercising its constitutional power of override. If the precedent set by SB 442 is not corrected, a future governor may block widely supported bills from going into effect without regard to the constitutional system of checks and balances.” 

Arren Kimbel-Sannit

On Background

Neither Chief Justice Mike McGrath nor Justice Dirk Sandefur will seek re-election to Montana Supreme Court in 2024: For more on the decision by justices McGrath and Sandefur not to seek re-election — and on the thorny politics of judicial races — see Montana Free Press’ scoop from Wednesday. 

Lynch, Montana’s longest-serving federal magistrate and Butte native, hangs up the robe: As a longtime federal magistrate judge, Jeremiah Lynch could have a good shot at the Montana Supreme Court — though it’s admittedly too early to speculate. For more on his professional background, see his interview with the Missoulian about (what seemed at the time like) his retirement. 

Rules of the Montana Republican Party: What’s in the Montana GOP’s bylaws? We thought you’d never ask.