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January 27, 2023
Republican-backed legislative efforts to reshape judicial procedures — and the relationship between the judicial branch and the rest of the government — are gaining steam.
On Tuesday, Rep. Kerri Seekins-Crowe, R-Billings, presented House Bill 326 to the House Judiciary Committee. The bill proposes giving the Legislature more of a role in the appointment of the Judicial Standards Commission, the body tasked with reviewing complaints of judicial misconduct.
Under current law, the commission consists of five members: two district court judges, both elected by other district court judges; one practicing attorney appointed by the Montana Supreme Court and confirmed by the state Senate; and two lay people appointed by the governor and again confirmed by the Senate. The commission’s current chair is Lewis and Clark County District Court Judge Mike Menahan.
Seekins-Crowe’s bill would provide for two district court judges appointed by the speaker of the Montana House of Representatives and confirmed by the Senate and a practicing attorney appointed by the Montana attorney general. The process to appoint the commission’s citizen members would not change.
In effect, the bill would give more power to partisan — at the present time, Republican — political figures to appoint and confirm members of the commission.
The Billings Republican said she’s bringing the bill to resolve a situation in which “the fox is guarding the hen house.”
“It’s judges judging judges,” she testified Tuesday.
After the commission decides to hear a complaint, it makes a recommendation to the Montana Supreme Court, which is the final arbiter.
The work of the Judicial Standards Commission is a key component in a broader conflict between Republican lawmakers and the judiciary that consumed much of the 2021 session. Republicans, spurred by several court rulings that struck down laws they passed last session as unconstitutional, have accused members of the court of bias and improper lobbying and, in general, being hostile to the conservative agenda. The court has defended its integrity, and its supporters — including legislative Democrats — have said Republicans are trying to stack the judiciary with judges more friendly to the GOP.
That tension drove a number of bills reshaping judicial processes in 2021 and has already fueled several proposals this session. Also on Tuesday, Republicans passed a bill limiting the circumstances in which judges can issue injunctions and temporary restraining orders. Other bills in the mix would revise judicial recusal laws, give the partisan clerk of the Supreme Court oversight of the Supreme Court administrator and more.
As the Judicial Standards Commission is the body tasked with judicial discipline — and, according to judges, the more proper venue for judicial grievances than the Legislature — Republicans have zeroed in on its work, implying that the role of the court in appointing members to the commission compromises its ability to rule fairly.
Specifically, Seekins-Crowe pointed to the fact that the commission dismisses most of the complaints it receives. The bill, she said, provides “a way for us to have a place where these complaints can land, a place where they can be heard at least and not just dismissed.”
It’s a matter, she said, of checks and balances. The courts provide a check on the Legislature when they rule against its bills, and now the Legislature can provide a check against judges.
“I’ve heard some people say, ‘Well it’s legislative overreach,’” she testified. “I’m gonna push back on that a little bit. We are supposed to be a government with three different legs … and our job is to hold one another accountable.”
But the presumption that the number of dismissed complaints is evidence of something awry is false, testified Bruce Spencer, a lobbyist for the Montana Judges Association, which opposed the bill.
“The overwhelming majority of judicial complaints get dismissed because the complaints are about the decision issued by the judge,” Spencer said. “They aren’t about judicial standards, which is the judge was drunk at 9 a.m., the judge has a serious mental impairment, the judge has acted inappropriately and discriminated in the courtroom.”
By contrast, he said, “the judge didn’t rule fairly in my divorce, the judge declared our statute unconstitutional” are not issues that should come before the Judicial Standards Commission. Unhappy litigants in those cases can appeal those decisions in court, he continued. And if they’re still not pleased, they should enlist someone to run against the judge in an upcoming election.
Sean Slanger, representing the state bar, was more pointed.
“We believe that HB 326 politicizes the court and endangers its independence,” he said.
The bill would remove the role of the court in appointing members to its own disciplinary body, he said, and not for the better, noting that no other state in the region has made such a change.
“Under the bill, complaints against nonpartisan judges would be resolved by partisan appointees,” he said.
Spencer said he understands the optics of the Judicial Standards Commission’s current makeup can be challenging in the eyes of the bill’s backers. But the optics of “shifting the members of this commission to a political arena” seem no less suspicious, he said.
The vast majority of complaints before the commission stem from someone’s unhappiness with a ruling, Seth Berglee, a former Republican lawmaker who now sits on the commission, told Capitolized.
“In my experience, I think we’re doing a good job,” he said. “I think there’s a balanced approach.”
But he said the judiciary does revolve around the Supreme Court in a way some might find difficult to stomach. The high court is involved in the bar association, the Judicial Standards Commission and its own administrator.
“They have a lot of control over a lot of the checks and balances,” Berglee said.
But giving more control to the explicitly partisan Legislature has its own problems, he said. Either way, there are pros and cons.
“As you know, politics is kind of pervasive in everything,” Berglee said.
—Arren Kimbel-Sannit
Bill report
House Bill 234, sponsored by Rep. Bob Phalen, R-Lindsay, passed the House Judiciary Committee Jan. 31 on a 12-7 vote. The proposal would apply criminal penalties to public school employees who display or distribute to minors any material that is determined to meet the state’s definition of obscene. HB 234 was amended prior to the vote to exempt public library and museum staff from the law.
Senate Bill 99, carried by Sen. John Fuller, R-Kalispell, received a party-line vote in the Senate Judiciary Committee Jan. 31, passing 7-4. The bill, amended once after last week’s five-hour hearing, would ban gender-affirming health care for transgender minors experiencing gender dysphoria, including puberty blockers, hormone therapy and rare mastectomies for older teenagers. The bill would also prohibit the use of public funds for those treatments and bar public facilities from promoting social transition methods, i.e., a minor’s use of a gender-affirming name, hairstyle, clothing and pronouns.
Senate Bill 191, sponsored by Sen. Steve Fitzpatrick, R-Great Falls, passed the Senate on second reading Tuesday, 33-17. The bill, part of a broader package from Fitzpatrick, changes the circumstances in which courts can issue injunctions and temporary restraining orders. The bill received an amendment to remove language initially in the proposal that prevented courts from issuing temporary restraining orders against the state without notice.
House Bill 1, the 68th Legislature’s feed bill, which funds the current Legislature, was signed by Gov. Greg Gianforte Jan. 30.
Rules Row Redux
The House Rules Committee on Tuesday batted down an appeal from House Minority Leader Kim Abbott, D-Helena relating to the proper scheduling of committee hearings.
Abbott raised a point of order on the floor last Friday stemming from the fact that the House Judiciary Committee scheduled a bill, HB 303, without three legislative days’ notice. House Speaker Matt Regier, R-Kalispell, ruled against her point of order, leading Abbott to appeal to the committee.
At issue is a legislative rule that encourages committee chairs to schedule bills with three legislative days’ notice in order to allow for public testimony. While there are three days between Friday and Monday, there are not three legislative days. Abbott said that the three-day rule should only be overlooked when circumstances like pending transmittal deadlines between the chambers truly demand it.
“It’s not meant, on day 20, to put a bill in committee with no notice because someone’s got a light load or is bored,” she said before the House Rules Committee Tuesday.
Several other bills have been scheduled on similarly abridged timetables, she said, warning that the Legislature could set an unfortunate precedent for both the public and for lawmakers who need to know when their bills are being heard.
The Republican-majority committee ultimately determined that no rule had been broken. Nevertheless, legislative leadership has met with whips and committee chairs to encourage adherence to the three-day rule and to deviate only when exigency demands it, said Speaker Pro Tempore Rhonda Knudsen, R-Culbertson.
—Arren Kimbel-Sannit
EYE IN THE CAPITOL
Conservative talk radio host Aaron Flint taped his show, Montana Talks, in the state Capitol building Jan. 31.
Wait, Republicans want to raise corporate taxes?
A wonky change to Montana’s tax code generated political memes on Twitter this weekend as a disaffected lawmaker, Sen. Greg Hertz, R-Polson, lambasted Senate Democrats for voting against his Senate Bill 124 on the floor Jan. 25.
The bill, a low-profile component of Gov. Greg Gianforte’s budget proposal, would tweak how the state calculates corporate income taxes for multistate firms that do business in Montana — companies like Amazon, Anheuser-Busch and California-based semiconductor producer Applied Materials, which operates a manufacturing facility in Kalispell.
SB 124 would adjust the formula that determines how much of a company’s revenue is considered in-state income so that it’s based entirely on the company’s Montana revenues, rather than, as currently, a combination of in-state sales, property ownership and employment. Proponents say the shift will generally reduce taxes on companies that have built large facilities and maintain significant payrolls in the state, while increasing them on Amazon-style e-commerce businesses that sell into the state with relatively little physical presence.
The governor’s budget office estimates the change will provide a moderate boost to state revenues overall, increasing corporate income tax collections by about $17 million a year.
Even so, all Democrats (joined by maverick Republican Sen. Brad Molnar, R-Laurel) voted against the bill as it passed the Senate, spurring consternation from the measure’s Republican backers.
One of Hertz’s Sunday tweets included a meme image that likened Democrats to UNO card game players who chose to “draw 25” cards into their hand rather than enact tax cuts for Montana businesses. Another now-deleted tweet mocked the vote with images of orange-jacketed Canadian rapper Drake.
In an interview, Hertz told Capitolized the measure would benefit IT companies, beef processing plants and other Montana operations with out-of-state customers. “It really helps locally operated businesses in Montana,” he said.
Senate Minority Leader Pat Flowers, D-Belgrade, said Tuesday that Democrats thought Republicans were recklessly rushing forward with tax proposals too early in the legislative session — and were also worried about raising corporate income taxes.
“It was a tax increase,” Flowers said. “And yes those are multistate corporations, but they also employ Montanans.”
— Eric Dietrich
heard in the halls
“There’s a reason we’re bringing it up now, and there’s a reason that the main sponsors of this legislation and proponents of this legislation came from groups like Moms for Liberty who are pushing similar legislation across the country that doesn’t just talk about obscene materials but talks about outright bans on any LGBTQ representation across the country. So I want it to be very clear that this legislation is not what it purports to be about, and what it is actually about is LGBTQ people and removing us from schools.”
—Rep. Zooey Zephyr, D-Missoula, speaking in opposition Jan. 31 to a proposal to revise Montana’s obscenity law. Proponents framed House Bill 234 as a measure designed to protect public school students from exposure to sexual material. Zephyr countered that specific examples of allegedly obscene material mentioned by supporters weren’t classic coming-of-age stories like “Catcher in the Rye,” which contains sexual references, but rather LGBTQ-centric books such as “Gender Queer.” That graphic-novel-style memoir, Zephyr added, “is a coming-of-age story about people like me.”
—Alex Sakariassen
On Background
Lawmakers question judges about ethics standards: Read this story for an explanation of a legislative effort to study the Judicial Standards Commission (MTFP).
Judicial Standards Commission complaints 2021-2022: The court provided the Legislature an accounting of complaints before the Judicial Standards Commission between 2021 and 2022.
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