McGrath Files Suit Against Governor
HELENA – Attorney General Mike McGrath filed an application for a writ of prohibition in the Montana Supreme Court Thursday, charging that Governor Judy Martz has violated the Montana Constitution and exceeded the authority given to her under state law. The application asks the Supreme Court to declare that the governor does not have authority, independent of the state Land Board, to involve the state of Montana in court proceedings, or to order the attorney general to intervene in such proceedings on behalf of the state.
On Oct. 18, the Land Board – the governor, auditor, superintendent of public instruction, secretary of state and attorney general – voted 3-2 to deny a request that the state intervene in a lawsuit over the ownership of the “bed and banks” of the Tongue River. Despite the Land Board vote, on Oct. 22, the governor’s legal counsel James Santoro filed a motion in federal court seeking to intervene in the suit. Santoro filed the motion as “attorney for the state of Montana.”
On Oct. 26, McGrath ordered Santoro “to refrain from taking any action on behalf of the State or the state Land Board” in the Tongue River case.
In a response on Oct. 28, the governor disagreed with McGrath and directed him to assist her counsel, citing a provision of Montana law that gives her that authority. The lawsuit claims that state law, passed before the Montana Constitution was adopted in 1972, is unconstitutional because it interferes with the attorney general’s responsibilities under the 1972 provisions.
“The attorney general is an independent constitutional officer,” McGrath said, “And as the state’s chief legal officer, it is the attorney general who has authority to involve the state in litigation.”
In the prior correspondence, McGrath advised Martz that she could pursue legal action on behalf of the Governor’s Office but not the state of Montana.