Montana Republicans Ask Judges About Ethical Standards
HELENA – Two Montana judges on Tuesday answered questions from state lawmakers as part of a formal legislative review by the Judicial Standards Commission, the constitutional body that investigates allegations of judicial misconduct.
Among a host of bills proposed this year to reform and change the judiciary, lawmakers in April passed HJ 40, a resolution to study and audit the Judicial Standards Commission. The bill requires an interim committee to review the history and processes of the commission, examine how other states are resolving complaints against members of the judiciary, and consider the results of the upcoming audit. legislative auditor to assess whether the commission can be improved by legislation.
In their opening remarks to the 12-person bipartisan Interim Committee on Law and Justice, State Supreme Court Chief Justice Mike McGrath and Lewis and Clark District Court Judge Mike Menahan, who chaired the Judicial Standards Commission, affirmed the objectives of the bill under consideration and thanked the committee for soliciting their contribution. Menahan admitted that due to the strict confidentiality rules set out in the Constitution, most Montanais know very little about the functioning of the commission.
“It’s just not something very well known,” Menahan said. “It’s very important work for those who do it, but it is essentially shrouded in secrecy. And I think because of that there are a lot of questions about what the Judicial Standards Commission does.
While their testimony was designed to explain the mechanisms of judicial review, the judges’ appearance also allowed some Republicans on the committee to ask focused questions related to a larger conflict between lawmakers and the judiciary. Earlier this year, Republicans accused judges and judges of acting unethically when published emails showed members of the judiciary shared critical assessments of some of the bills intended to be revised. parts of their branch of government.
While a separate committee led by Republican lawmakers continues to investigate these 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 composition of the five-person standards commission, in which two district judges are chosen to serve by their peers, one lawyer is appointed by the Supreme Court, and two members are appointed by the governor. . Anyone can file a complaint with the commission and explain why they believe a judge’s actions 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 has examined in recent years have been dismissed.
In 2019, 44 of the 50 complaints were dismissed, while the rest resulted in retirement, suspension without pay or formal reprimand from the judges. In 2020, 36 of 42 complaints against judges were dismissed, with most of the remaining cases still pending at the time of the commission’s report.
Menahan said the high dismissal rate is due to the fact that most complaints are about disagreement over the law rather than allegations of ethical violations. In these cases, the parties have the possibility of appealing to the Supreme Court.
“Most of the complaints we get are from a party who is unhappy 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 police … the issue they raise is an appealable issue, not an ethical issue.
Senator Keith Regier, R-Kalispell, returned to the high dismissal rate later during questioning.
“Do you think you can understand how the average citizen looks at all the fired and becomes cynical about the law? ” He asked.
“Yes, I think so,” Menahan said, adding that the audit described in HJ 40 could be a beneficial way to review the board’s decisions while preserving the privacy of those involved.
The commission’s rules dictate that most details of complaints will not become public information except in specific situations, Menahan said. A complainant can only publicly discuss their case when their allegation is rejected. Additionally, if the commission considers a complaint to be legitimate, then it will recommend action by the Supreme Court, at which point the proceedings become public.
RENEWED FOCUS ON JUDICIAL EMAIL
Republican lawmakers took the opportunity Tuesday to question Menahan and McGrath about specific email exchanges released after Republicans subpoenaed the Administration Department for a wealth of court records in April. The Supreme Court subsequently ruled that the subpoena effort was an invalid use of the authority of the legislature.
Republicans on the interim committee continued to cite the emails Tuesday as examples of what they suggested was inappropriate 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 the former justice of the peace. Lewis and Clark Mike Swingley on the plot. QAnon theory in 2019. Swingley self-reported his misconduct and was subsequently sanctioned by the Supreme Court.
“I’m just wondering if you think there’s a difference between why Judge Swingley was sanctioned and what you yourself were involved in,” McGillvray said.
“Yeah, I think there is a difference,” Menahan said. “As an elected official, judges can testify in the Legislature on laws that affect the judiciary and the courts. And so if a judge testifies against the bill and says he thinks it’s bad policy, there’s nothing wrong with it. It does not violate the code of judicial conduct, ”he said. Swingley’s case was different, he said, as he used his public email account to inappropriately share political opinions unrelated to his duties as a judge.
“If you have a judge doing something like that… it is outside the scope of his duties as a judge, and it hurts the judicial branch of government,” Menahan said.
Rep. Barry Usher, R-Roundup, then posed similar questions to McGrath, highlighting an email in which the Chief Justice described a bill, HB 685, as “straight out of the book” Where Democracies Go To Die. ”The bill failed to move forward after a vote in the plenary assembly.
“What he was looking to do was reform the Judicial Standards Commission and have more citizen control over the judiciary,” Usher said. “Giving the Montanais more surveillance, citizen surveillance, of this branch, of your branch, is it really equivalent to killing democracy?” “
“Representative Usher, I thought this bill was, and I still think so,” McGrath said. “The bill gave a group of citizens the power to remove an elected official from office. It didn’t require any kind of due process. It didn’t require any sort of standards… It just meant that if there was a crowd that was crazy about something that a judge had decided, they could remove that judge from office, even if the judge was elected by the people. . And yes, this is the first step in the demise of a democratic system.
At various points in the hearing, Republicans asked judges what would likely happen if a complaint were filed with the Judicial Standards Commission about a judge who sits on the commission. In those cases, Menahan said, the judge would recuse himself and the commission would assess the complaint without calling in an alternate member.
In the event that a complaint against a Supreme Court judge is substantiated and brought to the Supreme Court for further action, McGrath said, the judge against whom the complaint was filed would “clearly” not deliberate on the case.
Democratic lawmakers on the interim committee asked McGrath and Menahan a few questions. Representative Laurie Bishop, D-Livingston, has asked lawmakers to limit their questions to details from the Judicial Standards Commission, a request Republicans apparently ignored when questioning judges about their email statements.
During the public comment period, other Montanais involved in the legal system expressed support for the study of the judicial review process.
“The Judicial Standards Commission process is of extreme interest to lawyers, as there are circumstances where a judge does not act according to the judicial standards set by the Supreme Court,” said Bruce Spencer, who represents the Montana Bar Association. “We need and want a system that solves this problem.”
Any change to the commission, Spencer warned, should be based on careful consideration of reliable evidence and information.
“I encourage you to review the results of the upcoming legislative audit so that you can base your decisions on facts,” said Spencer. “Because I think the legislative audit will give you facts. Not opinions or stories of individuals, but rather facts. HJ 40 is one of the many responsibilities the committee is tasked with handling before September 2022. Any report or bill will be updated on the committee’s webpage for the duration of the interim.
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