State moves to disqualify district judge from ‘bathroom bill’ lawsuit

The State of Montana wants to remove Missoula County District Court Judge Shane Vannatta from hearing a lawsuit over a bill that states there are only “two sexes, male and female,” alleging his social media accounts show personal bias.

But the ACLU of Montana said the state could have substituted the judge — for any reason — early on in the case, and its motion is a “baseless attack on the judiciary.”

A brief arguing for the judge’s removal and citing the Montana Code of Judicial Conduct identifies one shared article on Facebook in 2017 and accounts the judge follows on Instagram as key features among the information it argues should disqualify him.

“Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives,” reads the brief.

But the ACLU of Montana said most of the “purported evidence” is many years old — available to the state well before the lawsuit even started — and the state relinquished its chance to remove the judge with its “unreasonable delay.”

“They waited more than five months — only after the judge had granted a preliminary injunction against them, they had filed an appeal, and the trial court had entered a scheduling order — before seeking disqualification,” argued the ACLU of Montana.

Attempts to swap judges are common in Montana district courts, but “bumping” a judge happens earlier in a proceeding, and those motions to “substitute” are automatically granted, according to a University of Montana law school faculty member.

This motion is different. It’s a motion to “disqualify for cause,” and such motions are rarely granted, according to the Clerk of the Montana Supreme Court.

Attorney General spokespeople Emilee Cantrell and Chase Scheuer did not respond to a question about why the state did not move to replace the judge early on in the case.

Vannatta is overseeing Perkins vs. State of Montana, a lawsuit where the plaintiffs, including transgender and intersex Montanans, argue House Bill 121 violates their rights to equal protection, privacy and ability to pursue life’s basic necessities.

HB 121 restricts access to public restrooms, changing rooms and sleeping spaces based on an individual’s sex assigned at birth. The bill sponsor and other supporters, including Gov. Greg Gianforte, argue it adds protection and safety for women.

IN THE court filing to disqualify Vannatta, Attorney General Austin Knudsen and lawyers for the state argue the alignment between an article the judge shared on social media and his own reasoning demonstrates bias.

The state also alleges groups the judge follows and his affiliation with the American Bar Association’s Sexual Orientation and Gender Identity Commission are “external influences” that could improperly affect his judgement.

Additionally, the state argues the social media activity of his spouse is evidence Vannatta should be disqualified.

On Facebook in 2017, Vannatta shared a TIME Magazine story called “Gender Laws Are at Odds with Science,” according to the court record. It said the story argues “the legal recognition of only two biological sexes is ‘incongruous with science.’”

Vannatta posted the story, said it was a “fascinating article authored by a California judge,” and “liked” comments agreeing with the article, the court filing said.

“This post, comment and ostensible agreement with other comments may not have held much significance in 2017, but years later and in the context of litigation Judge Vannatta determined he could preside over, they bring on new significance that raise reasonable questions about bias and impartiality,” the court record said.

Vannatta took office two years later in 2019 as the state’s 49th district court judge, the youngest judge in the district, and the first openly gay judge to serve in the state, according to a Missoulian story.

As a judge, the court brief said Vannatta made arguments that align with the “viewpoints” in the TIME article and show his “judicial reasoning was driven by personal political beliefs rather than neutral legal analysis.”

Many scientists define sex as not exclusively male or female. The American Medical Association says roughly one in 50 births are variations, or intersex, and based on numerous factors.

Other members of the health care community including researchers with the Yale School of Medicine say genetic, hormonal or anatomical variations can make a person’s sex ambiguous. The topic has been frequently in the news and is a subject of numerous scientific journal articles.

The motion did not point to other posts by Vannatta, but it said the groups he follows on Instagram, such as “The Dark Left,” show a progressive bent, and “reasonable observers” could interpret Vannatta as partisan as a result.

It said the American Bar Association commission on which he sat “has direct ties” to the American Civil Liberties Union, pointing to a link on the commission’s website to transgender resources. The list named legal and advocacy organizations including the ACLU.

It said the ACLU is representing the plaintiffs, so Vannatta should recuse himself in such cases.

THE UNIVERSITY of Montana School of Law’s Constance Van Kley said it can be challenging to look at standards for disqualification, but she also said it isn’t difficult to allege bias.

“If you dig hard enough for just about anybody on some of the significant constitutional issues of the day, you can find something that you could at least allege demonstrates bias,” Van Kley said.

She also said many people allege bias because they don’t get the result they want — but that’s not enough to disqualify a judge.

In May, Vannatta granted a preliminary injunction, pausing enforcement of the bill by the state until the case fully plays out in court.

Vannatta said transgender Montanans have been subjected to unequal treatment in the last three legislative sessions. He also said the state had not provided evidence, so far, of how transgender females threaten female privacy and safety.

But Van Kley, a constitutional scholar, said a judge can hold competing views.

“Having a view on the political merit of legislation is not the same thing as having a view on its constitutionality,” Van Kley said. “We trust judges to make those determinations. That’s their job.”

Van Kley also said views vary on where to draw the line for when judges should hear a case or step aside.

In recent challenges to U.S. Supreme Court Justices Samuel Alito and Clarence Thomas overseeing matters in which they had personal connections, the court said if a conflict of interest doesn’t exist, and a justice can hear a case, then the justice must hear the case, Van Kley said.

“That’s one perspective, but it’s not the only perspective,” Van Kley said.

Others believe that even if an appearance of impropriety exists, a judge should step down to prevent distrust in the process of the judiciary, she said — the argument the state made in its motion to disqualify Vannatta.

But how do you measure it?

“Is it enough for one party to say you appear biased to me? Because you can get a lawyer willing to say that in a lot of cases,” Van Kley said.

THE ACLU of Montana said the state waited too long to try to replace the judge, and it only did so after he’d ruled against them by temporarily stopping the bill from taking effect.

It said the state could have invoked its right to substitute the judge within 30 days of the first summons being served or adverse party appearing, and the timeline “serves a crucial purpose.”

“It conserves judicial economy by ensuring judges are substituted before the case and the judge’s familiarity with it have developed, and it permits litigation to proceed according to orderly schedules without interruption,” said the ACLU of Montana.

But it said “no-cause” substitution also “prevents gamesmanship and politicization of cases to the detriment of the orderly administration of justice.”

The information the state relies on is so old, predating the judge’s appointment to the bench, or already cited in the state’s own cases, the state should have found it “with reasonable diligence,” the ACLU of Montana said.

The ACLU also said typically, disqualification for cause is more time-consuming than substitution, because the chief justice assigns it to a different district court judge, who must restart the hearings, often delaying the process.

“Defendants have attempted to set this protracted process in motion in the middle of discovery and a case schedule that Defendants themselves requested move expeditiously to trial,” the ACLU wrote. “… In short, Defendants’ motion is disruptive, dilatory, and wasteful of judicial resources.”

Typically, motions to disqualify are handled within days, but a timeline isn’t set, according to Clerk of Court Bowen Greenwood. Greenwood said the request is in the hands of the chief justice and was pending early Monday afternoon.

In the meantime, the Perkins case is on hold, Van Kley said.

“Nobody can hear the merits of the case until this (motion to disqualify) gets resolved,” Van Kley said.