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Judge says Gianforte administration must keep judicial advisory meetings open – Daily Montanan [1]

['Darrell Ehrlick', 'More From Author', '- January']

Date: 2024-01-04  

An order from a Lewis and Clark County district court judge said that an advisory council appointed by Gov. Greg Gianforte broke the state’s open meetings law when it shut out reporters and the public from a meeting designed to interview candidates for an open spot on the bench.

The case stems from a March 23, 2023 meeting of an advisory council convened by Gianforte, a Republican. That committee was considering the applicants who applied for a judicial opening in the Ninth District, which includes Teton, Pondera, Glacier and Toole counties.

Jennifer Stutz, an assistant Teton County attorney, was appointed as the chairwoman of the committee, and she closed the meeting to the public, over the objections of reporters from the Montana Free Press and the Choteau Acantha, as well as members of the public. Both of those publications sued, claiming that Stutz, with the support of the Gianforte administration, barred them illegally from the meeting.

Stutz said that the individual candidates’ had a privacy interest, had invoked it, and closed the meeting.

Lewis and Clark County District Judge Mike Menahan ruled this week that Stutz and the committee had closed the meeting illegally, and that those who apply to become a judge do so voluntarily and therefore in most cases, the process should be open.

“No reasonable expectation of privacy exists in relation to a judicial candidates’ qualifications,” Menahan wrote in his order.

Stutz and the state had argued that because a personnel or privacy matter could be raised during the interview process, the meeting should be closed. However, Menahan pointed out that such a concern should be addressed in the meeting, but shutting out the public completely robbed them of the right to observe and participate, rights enshrined in the state’s constitution.

The media organizations had also asked Menahan to declare the actions taken at the meeting void, a remedy that Montana law allows when open meetings violations occur. However, Menahan cited a similar Montana Supreme Court ruling from 1994 that addressed the subject.

Menahan ruled that since the committee is merely advisory and no recommendations are binding that it made little sense to void the action since the power to appoint judges rests solely with the governor.

In this particular case, the judicial advisory committee recommended forwarded two candidates. Gianforte ultimately selected Gregory Bonilla, a former Cascade County Deputy Attorney.

“The council’s only role was to make a recommendation which Gianforte was then free to accept or ignore,” Menahan wrote. “In this instance, Gianforte did not appoint the council’s recommended application.”

The legal challenge isn’t the first time the process has come under fire during Gianforte’s tenure. The 2021 Legislature opted to change the judicial selection process, wresting power from a nomination committee comprised of attorneys and the public, and giving the governor the power to appoint judges, with the option of a non-binding advisory committee. Previously, the governor selected from a slate of candidates forwarded by the judicial selection committee.

The new law was challenged and upheld by the Montana Supreme Court which said lawmakers had the right to alter the selection process because the power to select judges is one held by the executive, subject to a process outlined by the Legislature.

The governor’s office told the Montana Free Press that it intends to appeal Menahan’s decision.

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[1] Url: https://dailymontanan.com/2024/01/04/judge-says-gianforte-administration-must-keep-judicial-advisory-meetings-open/

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