Legislative efforts to reshape judicial procedures are gaining steam

This story is excerpted from Capitolized, a twice-weekly newsletter that keeps an eye on the representatives you voted for (or against) with expert reporting, analysis and insight from the editors and reporters of Montana Free Press. Want to see Capitolized in your inbox every Tuesday and Friday? Sign up here.

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.