The Montana State Capitol on Wednesday, May 3, 2023, a day after the legislature adjourned the 2023 session. (Photo by Blair Miller, Daily Montanan)
A long-simmering dispute between the legislative and judicial branches of Montana that has been going on for at least four years began heating up in the Montana Senate Judiciary Committee on Wednesday as lawmakers discussed bills that would attempt to change how courts in the Treasure State work.
The Senate Judiciary Committee heard two bills that take aim at how judges work and how complaints against judges are handled, both of which referenced the years-long spat between the two branches that culminated in a Senate Select Committee on Judicial Oversight and Reform, which is bringing more than two dozen bills this session, all without Democratic lawmakers’ support.
Those two bills, Senate Bills 30 and 48, wouldn’t affect how the law is necessarily applied, but rather how judges are selected and disciplined.
SB 30 sponsor Sen. Tom McGillvray, R-Billings, brought a bill that he said was a direct response to a legal challenge and crisis that embroiled all three branches of Montana government in 2021. In a tussle over email from the state’s judicial branch, lawmakers, along with Attorney General Austin Knudsen, claimed that most of the justices on the Montana Supreme Court could not hear the case because all judges who use email in the state could have a potential conflict-of-interest.
SB 30 would codify into state statute the concept of “judicial necessity,” which says that a judge must recuse himself or herself if there’s a conflict of interest; however, in a case where every judge could have a conflict, the law of judicial necessity says that a judge may sit on the case because every other judge is similarly situated. McGillvray’s bill mandates that if there are other judges in the state available, even if they’re on a lesser powerful court, they must be called upon to hear the case.
Lawmakers criticized the Montana Supreme Court during the dispute for invoking the law of judicial necessity, saying only they could take the case. McGillvray said that the legislation is necessary in order to make sure lower court judges could take the case. However, on occasion, state district court judges sit in on particular cases at the Supreme Court level when asked, due to illness or conflict.
“This would enhance public trust of the courts,” McGillvray said.
No one spoke against the bill.
SB 48: Judicial Standards Complaints
The second bill the Judicial Committee considered was one in which any complaint against a sitting judge could be disclosed the moment it’s filed, which would mark a significant departure that worried some lawmakers and attorneys.
Currently, Montana law said that until a complaint is reviewed and forwarded for action, the complaint not only remains sealed, but citizens are barred from disclosing anything about it. Bill sponsor Sen. Carl Glimm, R-Kila, characterized the bill not as a procedural problem, rather a concern about the First Amendment.
He said that Montanans cherish their right to speak freely, but this bill chills that, and that a constitutional right should trump the need for privacy.
“This is a free-speech violation. We should be free to speak about these things and not be under a gag order,” Glimm said.
Meanwhile, Bruce Spencer, a lobbyist and attorney who represents the Montana Bar Association as well as the Montana Judges Association, said that Montana — like its other counterparts — usually dismisses more than 97% of the complaints, largely because they deal with facts of a specific case or the outcome, both of which can be appealed to the Montana Supreme Court.
Other lawmakers questioned why legislators are subject to public release of complaints through the Montana Commissioner of Political Practices as soon as they are filed, even though many of them are also dismissed.
“So when someone files a frivolous complaint against us, we just have to grin and bear it,” said Sen. Theresa Manzella, R-Hamilton. “Why shouldn’t they?”
Spencer worried that the politicization of the courts will lead to it undermining the trust in the state’s judiciary.
“It will be used as a political tool to disparage the hard working men and women of your courts,” Spencer said.
Spencer said at other times, there is a reason for privacy, for example if a judge is undergoing some physical or mental issues. He also said that opening up the process would result in damaging the reputations of 98% of the judges named, and make Montana the only state to enact such a rule.
“There is no groundswell of support for this (legislation),” Spencer said. “It’s apparent that the only use is as a political tool to be used against the Supreme Court.”
Once a case is reviewed and has merit, Spencer said, the case becomes public. He also said that complaints against other professionals like law enforcement officers or doctors are usually not public until they’re reviewed.
Manzella questioned how the right of free speech, enshrined in both the Montana and U.S. Constitution, could be stopped by the rules of a Judicial Standards Commission.
“Isn’t the freedom of a speech an inalienable right,” Manzella asked Spencer.
“Yes,” Spencer replied. “But every right is also limited in some way.”
Glimm said that SB 48 was a chance to lead the country in freedom, a common refrain from Republicans this legislative session.
“Mr. Spencer said that this bill would make us an outlier, but really this would make Montana a leader in free speech,” Glimm said.