The MT GOP plans to impeach a Montana Supreme Court Justice

We just don't know which one, yet.

Rep. Steve Gunderson (R - HD 1), a member of the newly formed Freedom Caucus in Montana, has requested a Resolution introducing Articles of Impeachment. The status of this Resolution can be tracked at this link, or by searching for Bill Draft Number LC2389 at this website. To date, the target is unknown but introduction of a Resolution in the House is the first step towards impeaching a public official under Montana law. Given that every other statewide office in Montana is held by far-right Republicans, the target is almost certainly a Montana Supreme Court Justice and—based on the Final Committee Report submitted by the Special Joint Select Committee on Judicial Accountability and Transparency in December 2022—the target is most likely Chief Justice Mike McGrath.

An Overview of the Impeachment Process in Montana

Clearly, there is a lot to unpack and there will be more to unpack moving forward. But the best place to start is at the beginning, and here that means explaining the impeachment process.

Under Article V, Section 13, of Montana’s Constitution, the governor, and others—including judicial officers—are subject to impeachment. The Constitution empowers the Legislature to determine how an impeachment may proceed, what causes for impeachment may be, and whether the Senate serves as the tribunal for impeachment. Through this grant of authority, the Legislature has enacted several statutes defining impeachment proceedings. See generally § 5-5-401, MCA, et seq.

There are three grounds to impeach a public official: a felony, a misdemeanor, or malfeasance in office. §5-5-401, MCA. The Montana Supreme Court has determined that malfeasance in office refers to conduct in or arising out of the duties or responsibilities of the office and does not apply to alleged misconduct outside of the office. State ex rel. Shea v. Jud. Standards Comm'n, 198 Mont. 15, 38, 643 P.2d 210, 222 (Mont. 1982). For example, a public official is not subject to impeachment based on malfeasance in office because they were issued a parking ticket.

The first step towards impeachment is the introduction of Articles of Impeachment in the form of a Resolution in the House. § 5-5-411(1), MCA. Two thirds of the House must then vote in favor of the Resolution. Mont. Const. art. V, § 13(3). Montana Republicans currently control 68 seats in the Montana House. A two thirds majority requires 67 affirmative votes. If the Resolution receives the required number of votes in the House, the House then appoints Managers—selected from the House membership—who are then tasked with preparing and presenting the Articles of Impeachment to the Senate. § 5-5-411(2), MCA.

Much like impeachment proceedings in Congress, the Montana Senate serves as the tribunal for impeachment. § 5-5-403(1), MCA. This means the Senate essentially acts as a jury to decide whether the public official should be impeached. In order to convict, two thirds of the Senate must vote in favor. Mont. Const. art. V, § 13(3). This requires 34 votes. Currently, Montana Republicans control 34 seats in the Senate.

Once articles of impeachment are presented to the Senate, the targeted officer is temporarily suspended from office and may not act in an official capacity until the officer is acquitted. § 5-5-413(1), MCA. The office is then temporarily filled by an appointment made by the Governor, with the advice and consent of the Senate. The temporary officer serves until the acquittal of the party impeached or until the vacancy is filled at the next election as required by law. § 5-5-413(2), MCA.

The Senate then sets a hearing date, § 5-5-414(1), MCA, and the defendant must be personally served with the articles of impeachment not less than 10 days before the day of the hearing. § 5-5-414(2), MCA; § 5-5-415, MCA. The defending officer is entitled to counsel, and the Senate is allowed to appoint counsel if necessary. § 5-5-418, MCA.

Once the defendant has been served with the articles of impeachment, she has two options at the hearing: she may object, in writing, to the sufficiency of the articles of impeachment or she may enter an oral plea of not guilty. § 5-5-149, MCA . If the defendant objects in writing, the Senate votes to either sustain or overrule the objection. If the objection is overruled, the defendant is required to immediately answer the articles of impeachment—again by an oral plea of guilty or not guilty. § 5-5-420, MCA. If the defendant pleads not guilty, the Senate is empowered to set the time for trial on the impeachment. § 5-5-420, MCA.

After trial, the Senate must decide whether or not to convict. If thirty four Senators vote to convict, the Senate is empowered to enter judgment against the defendant either suspending or removing her from office. § 5-5-431, MCA. The Senate is also empowered to disqualify—forever—the defendant from holding any office of “honor, trust, or profit” in the State, § 5-5-431, MCA, and may disqualifying the defendant from receiving any future salary, fees, or other emoluments of the office they currently hold, 5-5-432, MCA.

More to come—stay tuned.