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HELENA — Two Montana judges fielded questions from state lawmakers Tuesday as part of an official legislative review of the Judicial Standards Commission, the constitutionally derived body that investigates allegations of judicial misconduct. 

Among a slew of bills proposed this year to reform and alter the judicial branch, lawmakers in April passed HJ 40, a resolution to study and audit the Judicial Standards Commission. The bill requires an interim committee to look into the history and processes of the commission, explore how other states resolve complaints against members of the judiciary, and take into consideration the results of the forthcoming audit from the legislative auditor to assess whether the commission can be improved through legislation.

In their opening remarks before the bipartisan 12-person Law and Justice Interim Committee, state Supreme Court Chief Justice Mike McGrath and Lewis and Clark District Court Judge Mike Menahan, who chairs the Judicial Standards Commission, affirmed the goals of the study bill and thanked the committee for soliciting their input. Menahan acknowledged that, due to strict confidentiality rules outlined in the Constitution, most Montanans know very little about how the commission functions.

“It’s just not something that’s very well known,” Menahan said. “It’s a very important job for those that are doing it, but it’s essentially shrouded in secrecy. And I think because of that, there’s a lot of questions about what it is that the Judicial Standards Commission does.”

Though their testimony was tailored to explaining the mechanisms of judicial oversight, the judges’ appearance also provided an opportunity for some committee Republicans to ask targeted questions connected to a broader conflict between lawmakers and the judicial branch. Earlier this year, Republicans accused judges and justices of acting unethically when publicly released emails showed members of the judiciary sharing critical assessments of some of the bills meant to overhaul parts of their branch of government. 

While a separate committee led by Republican legislators continues to delve into those allegations, lawmakers have not filed any formal complaints against individual judges through the Judicial Standards Commission.

WHAT THE COMMISSION DOES

In Tuesday’s testimony, Menahan explained the makeup of the five-person standards commission, in which two district judges are selected to serve by their peers, one lawyer is appointed by the Supreme Court, and two members are appointed by the governor. Any person can file a complaint with the commission and explain why they believe a judge’s actions have violated the Montana Code of Judicial Conduct

According to a report sent to the Legislature this year, the commission said the vast majority of complaints it reviewed in recent years were dismissed. 

In 2019, 44 out of 50 complaints were dismissed, while the remainder resulted in judges retiring, being suspended without pay, or receiving formal admonishment. In 2020, 36 out of 42 complaints against judges were dismissed, with most of the remaining cases still pending at the time of the commission’s report. 

“[I]t’s essentially shrouded in secrecy. And I think because of that, there’s a lot of questions about what it is that the Judicial Standards Commission does.”

Chair of the Judicial Standards Commission Mike Menahan

Menahan said the high dismissal rate is due to the fact that most complaints have to do with a disagreement about the law rather than allegations of ethical violations. In those cases, the parties have an avenue to appeal to the Supreme Court.

“Most of the complaints that we get are a complaint from a party who’s upset with the decision and they say the judge made a mistake,” Menahan said. “[The judge] believed my ex-wife and they believed my ex-business partner and they believed the policemen … the issue that they’re raising is an appealable issue, not one that is an ethical issue.”

Sen. Keith Regier, R-Kalispell, returned to the high dismissal rate later in questioning.

“Do you think you can understand how the average citizen looks at all of those dismissed and they get cynical towards the judiciary?” he asked.

“Yes, I do,” Menahan said, adding that the audit outlined in HJ 40 could be a beneficial way to examine the commission’s decisions while maintaining the privacy of the people involved.

The commission’s rules dictate that most of the details in complaints will not become public information except in specific situations, Menahan explained. A complainant may publicly discuss their case only when their allegation is dismissed. Additionally, if the commission finds that a complaint is legitimate it will then recommend action by the Supreme Court, at which point the procedure becomes public. 

RENEWED FOCUS ON JUDICIAL EMAILS

Republican lawmakers took the opportunity Tuesday to ask Menahan and McGrath about specific email exchanges released after Republicans subpoenaed the Department of Administration for a trove of judicial records in April. The Supreme Court later ruled the subpoena effort an invalid use of the Legislature’s authority

Republicans on the interim committee continued to cite the emails on Tuesday as examples of what they suggested was improper behavior by judges including Menahan and McGrath. 

Rep. Tom McGillvray, R-Billings, compared some of Menahan’s comments, in which he called a proposal to change the Judicial Standards Commission “ridiculous,” to overtly political statements made by former Lewis and Clark Justice of the Peace Mike Swingley about the conspiracy theory QAnon in 2019. Swingley self-reported his misconduct and was later disciplined by the Supreme Court.

“I’m just wondering if you feel like there’s a difference between what Judge Swingley was disciplined for and what you yourself took part in,” McGillvray said.

“Yes, I do think there’s a difference,” Menahan said. “As an elected official, judges can testify at the Legislature on legislation that affects the judicial branch and affects the courts. And so if a judge testifies against the bill and says that they think that it’s a bad policy, there’s nothing wrong with that. It’s not violating the code of judicial conduct,” he said. Swingley’s case was different, he said, because he used his public email account to improperly share political views that were not related to his duties as a judge.

“If you have a judge who does something like that … it’s outside the scope of his duties as a judge, and it hurts the judicial branch of government,” Menahan said.

Rep. Barry Usher, R-Roundup, later directed similar questions at McGrath, highlighting an email in which the chief justice described one bill, HB 685, as “straight out of the book ‘Where Democracies Go To Die.’” The bill failed to advance after a vote before the full House.

“What it sought to do was reform the Judicial Standards Commission and have more citizen oversight of the judicial branch,” Usher said. “Is giving Montanans more oversight, citizen oversight, of that branch, of your branch, really equivalent to killing democracy?”

“Representative Usher, I thought that bill was, and I still do,” McGrath said. “The bill gave a citizens group the authority to actually remove an elected official from office. It didn’t require any kind of due process. It didn’t require any kind of standards … It just meant that if there was a mob that was mad about something that a judge had decided they could remove that judge from office, even though the judge is elected by the people. And yes, that is the first step in the demise of a democratic system.”

At various points in the hearing, Republicans asked the judges what would likely happen if a complaint were brought to the Judicial Standards Commission about a judge who sits on the commission. In those instances, Menahan said, the judge would recuse himself and the commission would evaluate the complaint without bringing in an alternate member.

In the case that a complaint against a Supreme Court justice is substantiated and brought to the Supreme Court for further action, McGrath said, the justice against whom the complaint was filed would “obviously” not deliberate on the case.

Democratic lawmakers on the interim committee addressed few questions to McGrath and Menahan. Rep. Laurie Bishop, D-Livingston, asked that legislators limit their questions to the specifics of the Judicial Standards Commission, a request Republicans seemingly ignored when they proceeded to ask the judges about their emailed statements.

During the public comment period, other Montanans involved in the legal system voiced support for studying the judicial oversight process.

“The Judicial Standards Commission process is of extreme interest to lawyers because there are circumstances where a judge doesn’t act within the judicial standards that are set by the Supreme Court,” said Bruce Spencer, who represents the Montana Bar Association. “We need and want a system that solves that problem.”

Any changes to the commission, Spencer cautioned, should be based on a careful review of evidence and reliable information. 

“I encourage you to look at the results of the legislative audit that’s going to be coming so that you can base any decisions you make on facts,” Spencer said. “Because I think legislative audit is going to give you facts. Not opinions or stories of individuals, but rather the facts.”

HJ 40 is one of several responsibilities the committee is tasked with handling before September 2022. Any reports or proposed legislation will be updated on the committee’s web page throughout the duration of the interim.

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Mara covers Montana’s social welfare, criminal justice and legal systems. She also tracks policy and social issues that affect LGBTQ+ people. Prior to joining Montana Free Press, Mara worked at Slate and WNYC, where she focused on radio and podcasts. She got her start in audio journalism as an intern at Montana Public Radio. Contact Mara at msilvers@montanafreepress.org, 406-465-3386 ext. 3, and follow her on Twitter.