Missoula County District Court Judge Shane Vannatta recused himself from hearing a lawsuit over a bill that says there are only two sexes, but he noted the “facts” in a move to disqualify him are “exceedingly thin.”
In a Sept. 25 court filing, Vannatta said he would withdraw from jurisdiction of the case “in the interest of preserving the public’s confidence in the impartiality of the judiciary.”
The case from which he withdrew is Perkins vs. State of Montana, over House Bill 121.
HB 121 restricts access to public restrooms and other facilities based on an individual’s sex assigned at birth.
The plaintiffs, including transgender and intersex Montanans, argue the restrictions violate their rights to equal protection, privacy and ability to pursue life’s basic necessities.
Supporters argue the bill adds protection and safety for women.
In Montana, either party can move to substitute a judge for “no cause” within 30 days of the first summons being served, but the State of Montana did not do so in the Perkins case.
Attorney General spokespeople Chase Scheuer and Amy Braynack did not respond Thursday to a question about why the state did not move to substitute the judge; the Attorney General’s Office also did not answer the question in September.
In August, Attorney General Austin Knudsen and the Department of Justice filed a motion to “disqualify for cause” and alleged bias.
The state pointed to a news article Vannatta posted on social media before he was a judge and a couple of groups he follows on Instagram as evidence he should not oversee the lawsuit.
Vannatta took office in 2019 as the youngest judge in the district and first openly gay judge to serve in Montana, the Missoulian reported.
But the judge said the average person would likely not “reasonably question” his lack of bias after deconstructing the state’s allegations.
Vannatta already had ruled against the state in Perkins by granting a preliminary injunction, but citing an earlier order, the judge said “previous adverse rulings against a party” aren’t enough to show bias or prejudice either.
In his response, the judge outlined the standards for disqualification and the Montana Code of Judicial Conduct.
A disqualifying circumstance includes statements made “while a judge,” the response said. It also pointed to court guidance that said “schemes to drive a judge out of a case should not be allowed.”
The judge said the only “extrajudicial statement” the state cited is his characterization on social media of a 2017 TIME Magazine article as “fascinating” — a comment he said is “neutral on its face” and was posted two years before he became a judge and six years before the current case.
The TIME story was called “Gender Laws Are at Odds with Science.” In its motion, the state alleged Vannatta showed bias because he posted content that noted “the legal recognition of only two biological sexes is ‘incongruous with science.’”
The state also pointed to two Facebook “likes” on comments with the post, but Vannatta said he “liked” comments where others said “transpeople should be treated as people.”
He said he, and all judicial officers, have a duty to treat “transpeople as people in his professional and personal conduct.”
“Although made before he assumed the bench, the remarks align with the ethical duties of judicial officers,” Vannatta wrote.
“A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon” a number of factors, including sex, gender, and sexual orientation, as emphasized by Vannatta in this case.
The judge also said the state pointed to two liberal channels he follows on Instagram, but it “conveniently neglected to identify” conservative channels he follows, nor did it indicate whether he agreed with any content.
“Following channels on Instagram is akin to watching programming on television,” the judge said.
He said the state’s tactic was like snapping a photo of a judge watching TV in Walmart’s electronics department and attributing all the content — from Fox News or CNN or another channel — to the judge.
“Not only is the attribution preposterous, but it is patently unfair and misleading,” the judge wrote.
The judge said a “learned individual” needs to be able to canvass all news and commentary, not just material that’s politically correct.
“The State appears to want a judge who has never thought about the issue of transgenderism in society and who watches no news or commentary,” the judge wrote.
“That is unrealistic, especially in the present media environment where the issue of transgendered individuals is seemingly discussed on a daily basis.”
Knudsen and his team also said Vannatta’s work for the American Bar Association’s Commission on Sexual Orientation and Gender Identity starting in 2012 raised questions of bias.
In an affidavit, Michael Noonan with the Department of Justice said Vannatta’s social media “presence” and affiliation with the Commission on Sexual Orientation and Gender Identity were “unknown to me or any other defense counsel in this matter until very recently.”
Vannatta, though, said his professional history is “well-known” and was disclosed through two separate judicial appointment applications, one in February 2015 and one in October 2018.
“Both applications were public and available for comment,” the judge said.
Although the judge said he brings a wealth of experience to the bench, and it may be different than what heterosexual judges bring, his experience “does not presume bias or prejudice absent some statement or conduct.”
Nonetheless, Vannatta said he would step aside to protect the judiciary.
“With great reluctance and concern for the future misuse of the disqualification statute, the better approach is to recuse and allow another district judge to assume jurisdiction,” the judge wrote.
Given the recusal, Montana Supreme Court Chief Justice Cory Swanson ruled the disqualification motion from the state as moot.
The chief justice will appoint a different judge to hear the case, according to the Clerk of Court; a timeframe was not immediately available.