The seven seats and court of the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).
A bill to allow political parties to make financial contributions to a judicial candidate could increase transparency about where dollars are flowing from, but opponents worry about increasing partisanship of an independent branch of government.
Legislators in the Montana House heard the first of a 27-bill package aimed at judicial reform on the third day of the 69th Montana Legislature.
Sponsoring his first piece of legislation, freshman Rep. Tom Millett, R-Marion, presented before the House Judiciary Committee on House Bill 39, characterizing political party involvement in judicial elections as “a positive force for our judicial selections.”
“Let me begin by acknowledging the core principle that judges must remain impartial and independent when making decisions in court. This principle is fundamental to ensuring that justices serve fairly without political interference,” Millet said. “However, we must also recognize the reality that judges are public figures subject to elections in this state and that process of selecting judges is inherently tied to the broader political landscape.”
The bill is a requested piece of legislation stemming from the Senate Select Committee on Judicial Oversight and Reform that met more than a dozen times during the interim. While the committee requested 27 draft bills, more than 100 bills related to courts and the judicial branch have been requested by legislators and Republican leaders in the House and Senate have made judicial reform a priority for this session.
Sen. Barry Usher, R-Billings, who served as vice chair of the interim judicial oversight committee, spoke to the merits of allowing partisan funding.
“We already know the judiciary has partisan money,” he said. “It doesn’t matter … whether it’s the state GOP, a county central committee, they can go and find a third party to put their money in a PAC. So the money is coming, and to me this could be more transparent.”
A companion piece of legislation, Senate Bill 42, also requested by the judicial oversight committee, would allow judges and justices to be elected on a partisan basis. A similar bill failed during the 2023 session.
Usher was the only proponent who spoke on behalf of the bill, but four individuals spoke against it.
Patrick Yawakie, representing the Blackfeet Tribe and the Rocky Boy Tribe, called the bill a “direct attack on the sanctity of the judicial branch.”
“As of 2024, there are only eight states in the country who have implemented partisan politician donations into their elections. They have seen major problems arise when parties put their weight on the scale of their preferred candidate,” Yawakie said. “When states implement these partisan elections, floods of money flow into the state from interests who are not from Montana, influencing Montana electors from true Montana values. The biggest risk we have to partisan judicial elections is when decisions are made not on the basis of the Montana constitution or law, but on the opinion of party lines.”
Representing the Montana State Bar, attorney Bruce Spencer expressed his reservations to increasing any appearance of partisanship among judges.
“If you allow political parties to contribute to judges, you automatically and necessarily tag that judge with a political label … if you do so, you impede the partiality of the judge,” Spencer said. “Even when judges are elected, as they are here in Montana, a judge plays a different role than a legislator or an executive branch official. They don’t make decisions based on the express views of the majority.”
Spencer referenced the American Bar Association’s Code of Judicial Conduct, which sets narrowly tailored restrictions on political activities of judges and judicial candidates.
“Even when judges are elected, as they are here in Montana, a judge plays a different role than a legislator or an executive branch official. They don’t make decisions based on the express views of the majority,” Spencer said. “They can’t. It’s improper. They make decisions based on the law and the facts of the case before them only.
“If you pass this bill, you’re disagreeing … that judges should be free from political pressure,” he added.
Millet, the bill sponsor, emphasized that while critics of the change argue that judges should be wholly free from political influence, that isn’t how things currently are, and he hoped for increased transparency across the board.
“Unless you’re asleep, you know that there’s already politics in our judiciary. This is not going to inject very much more,” Millet said.
He added that having political parties involved in judicial elections could offer resources beyond funding, including offering organizing abilities, increased vetting of candidates, and additional accountability from judges.
“There will be many solutions presented this session to restore that trust, and the people of Montana are looking at all of us to do something about it. That’s why they sent us here,” Millet said. “Allowing political parties to contribute directly to judicial candidates is one step in the right direction towards addressing this crisis, and will be an essential part in building a vibrant and transparent electoral system for selecting all of our judges and justices.”