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By almost every measure, the constitutionally mandated commission that oversees judicial complaints in Montana is like every other similar board in other states. However, a new audit of the Montana Judicial Standards Commission says that the confidential nature of its work — handling the discipline and conduct of judges — gives rise to the appearance of secrecy and self-dealing, and could be improved.
In no small part, the Legislative Audit Division’s report to the Legislature, after lawmakers had requested an audit of the commission, shines a bright light on the rift between the judicial and legislative branch that has been raging for the past few years. The audit report was released on Thursday, on the heels of a contentious stand-off between leaders in the judiciary and Republican lawmakers on a special select committee examining judiciary.
For months, Republican lawmakers have searched for evidence to support their concerns that the judicial branch has purposefully ignored the will of the Legislature and laws it has passed, or overturned many of its bills because of a liberal bias. Democratic lawmakers have refused to participate on a special oversight committee, calling it a waste of time.
However, the report, which details how the judicial branch polices itself, illustrates some of the fault lines and tension, and provides a larger perspective on how Montana compares with other states. It also points out that the bulk of the complaints are unsubstantiated, and that personnel matters, like mental health issues or addiction, must be kept confidential because of state law and the constitutional guarantee of personal privacy in Montana.
The audit report, which will be discussed at the Legislative Audit Committee next week, also provides some recommendations to improve transparency and the operations of the Judicial Standards Commission, established as a five-person committee consisting of judges, an attorney and citizens to oversee complaints about judges.
The auditors and an independent expert in judicial review were given the confidential records of the JSC for the past decade and determined that from 2012 through 2022, the JSC handled a total of 656 complaints. It determined that the commission dismissed 92% of those outright, which is among the lowest percentage in the nation, meaning that the commission accepted or dealt with a higher-than-average amount, despite some concerns that the disciplinary committee rarely metes out punishment for judges. Some states, for example, Oregon and Nebraska, have a 100% dismissal rate.
“According to the National Center on State Courts, the vast majority of complaints filed with (judicial conduct boards) are dismissed due to lack of jurisdiction, because the complainant’s court cases could be appealed, or because litigants were simply disappointed in the outcome of their case. In Montana, some litigants filed complaints that concerned the actions of their attorney, which should instead be filed with the Montana Office of Disciplinary Counsel, the JSC equivalent for grievances against lawyers. Other complaints indicated the litigant made a legal error; in these cases, it is more appropriate for the litigant to appeal to a higher court. Litigants who lost their court cases also file complaints because they believe the JSC can overturn the judge’s decision, an action the commissions cannot take.”
The auditors also broke down the categories of complaints filed with the Montana Judicial Standards Commission, and 97% were alleged ethical violations, with nearly two-thirds of the complaints being categorized as concerns with impartiality, bias, prejudice or a lack of confidence in the judiciary itself.
Room for improvement
Although auditors concluded the JSC largely operated similarly to other states, they recommended some changes, nearly all of which were accepted by the judiciary’s representative, Montana Supreme Court Justice Mike McGrath.
For example, it found that the investigatory process was not formalized, and that members who are appointed to the five-person commission do not receive any training, which auditors said represents a steep learning curve or inconsistent understanding among members.
“With inconsistencies and apparent informalities in how complaints are investigated, there is a risk the JSC will not address all investigations similarly,” the audit said.
The audit said the JSC should use a procedure similar to that used by the Office of Disciplinary Counsel, which oversees attorney complaints and is under the purview of the Montana Supreme Court. The Judicial Standards Commission is an autonomous commission, established through the Montana Constitution, that is outside any government branch, although it is required to submit reports to the Legislature and its members are appointed by all three branches of government.
“During the complaint review, we observed some JSC members express frustration with the lack of guidance in how the commission makes decisions. The code provides some guidance for deliberation of grounds for discipline, including the seriousness of the transgression, the facts, and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others. However, rules do not guide JSC members on how these factors are weighed and used in determining disciplinary action. It is unclear how the group makes decisions, such as when to request a response from a judge or to conduct an investigation, and there is no clear method to determine when an alleged violation should be treated with corrective action. However, the rules do allow for some discretion.”
In a survey of the judges by auditors, they found that most were unaware if a complaint had ever been filed against them, and most had never dealt directly with the commission. Nearly two-thirds of the judges said they believe the JSC holds its members to ethical standards, protects the public from improper ethical decisions and maintains confidence in the judiciary.
Yet more than half said they were either uncertain or did not agree that the JSC creates more public awareness of judicial conduct.
Auditors are recommending that the JSC adopt “a more defined approach to complaint review and decision points for investigation” to maintain a consistent approach. They also said it may be worth considering whether to expand the number and types of sanctions, or disciplinary tools, the current Montana JSC has.
“Over time, JSC members have expressed concern that the JSC rules prevent greater authority to issue other types of discipline. We observed complaints where some violations were not addressed because they ‘do not rise to the level of misconduct’ but members felt they were still worthy of communication with the judge,’” auditors said.
Auditors also pointed out a flaw in the system that they recommend closing. Currently, the Montana judicial branch doesn’t allow for removing judges, even temporarily. Though there is a procedure to legally switch or “bump” judges, and there is a recusal process, those are not tied to discipline or judicial inquiry.
“Commission members shared that it would benefit from the authority to suspend a judge when there are exigent circumstances or if there is an emergency during the informal and investigative phases of a complaint to protect the public and the public’s trust,” the audit report said.
Auditors said that those cases of needing to temporarily remove a judge may be exceedingly rare, but may be helpful to consider. During the audited period, only 18 judges received more than 10 complaints. That slim number of judges receiving so many complaints represent nearly one-third of the overall complaints during the audited period.
There are currently 165 judges in Montana, ranging from municipal court judges to the Montana Supreme Court, that fall under the jurisdiction of the JSC. However, during the period the auditors examined, there were judges who retired or came on the bench, making the surveyed number higher.
More transparency = more confidence
The auditors found that Montana’s JSC had clung to privacy more than other states, and that more specific communication would help provide transparency, and therefore boost public trust.
For example, auditors said that when a complaint is filed, then dismissed, the commission rarely gives any reason or explanation. And if disciplinary action is taken, that’s not communicated either.
“The reason for dismissal is generally not provided to the complainant. For informal corrective actions, including private letters of admonition, private letters of reprimand, or negotiated resignation, the complainant receives a dismissal letter without indicating any corrective action was issued by the JSC,” the report said. “This limited information to complainants results in a lack of public trust in the judiciary and perceptions that the JSC does not hold judges accountable.”
Auditors said that the judiciary could be unintentionally contributing to its own public perception problems because while it reported a dismissal rate of 96%, the true number is lower because while it often dismisses complaints, some have informal or corrective actions, but those are known only to the commission. The real rate of dismissal is 92%, which would mean only Tennessee (89%) and Wyoming (87%) discipline judges at a higher rate than Montana.
Auditors recommended more transparency to help the public understand the process and that many judges are, in fact, disciplined comparatively:
“Confidentiality is important in judicial discipline — to protect judges and their careers when frivolous allegations of ethical violations are filed against them. However, the opaque nature of JSC proceedings may decrease public faith in the process if there is no transparency in reporting. The JSC has informally and privately negotiated resignations and retirements in cases where the judge has committed ethical violations and wishes to avoid the publicity of a formal filing with the Supreme Court, or when the JSC does not have sufficient evidence but is nonetheless confident that misconduct has occurred. Private removals may save the commission time and money because the complaint is not handled through formal filing and a hearing. However, withholding a judge’s name and reason for removal is problematic for the public. They may not know that a judge was removed due to a complaint and may perceive that the JSC does not hold judges accountable.”