Judge Mike Menahan tells the Select Committee on Judicial Oversight and Reform that he and other JSC members have been waiting to address the committee’s questions for several hours. (Photo by Blair Miller, Daily Montanan)
Judges on the Judicial Standards Commission tried to convince Republican legislators this week they are working to increase transparency, and the lawmakers grilled them about their work.
But one judge said he wished the questions were about the substance of their work.
“In the three-plus hours that I’ve been here, nearly every question that I’ve heard has to do with process, which tells me that you don’t seem to be very interested in the proposed rule changes,” said Judge Mike Menahan, commission chairperson. “I may be wrong, but I would like to answer a few questions about the rules if you have any.”
Supreme Court Administrator Beth McLaughlin answers questions from the Senate Select Committee on Judicial Oversight and Reform regarding proposed Judicial Standards Commission rule changes. (Photo by Blair Miller, Daily Montanan)
The Judicial Standards Commission reviews complaints about Montana judges.
In recent years, Republican lawmakers have clashed with the judiciary, and the commission has received complaints it operates with less transparency than it should.
This summer, Senate President Jason Ellsworth, R-Hamilton, formed a judicial oversight committee after a series of court decisions struck down laws passed during the past two legislative sessions that went against Republicans’ favored outcome.
The commission itself also started working on some rule changes to increase transparency and align rules with legislation passed last year.
At an all-day meeting Thursday, Republican committee members fired questions at the judges about why the proposed changes were being made as well as the procedure behind the changes.
A public comment period for the changes in particular became a sticking point at the meeting. The judges, however, told the Republican lawmakers and a Republican citizen lawyer there was nothing nefarious afoot and they wanted all the input they could get.
Ellsworth, of Hamilton, had subpoenaed the five Judicial Standards Commission members, its secretary, Supreme Court Administrator Beth McLaughlin and the court’s staff attorney to appear at the meeting.
The judges said the proposed changes were being made to adhere to recommendations from the Legislative Audit Division in a report that was also released Thursday, as well as changes made to the commission’s appointment structure and transparency measures through Senate Bill 313 last year.
Friday, Chief Justice Mike McGrath extended the public comment period to Sept. 23 on the proposed rule changes following a request from Judges Mike Menahan and Randal Spaulding, chairperson and vice chairperson of the commission.
Thursday’s meeting of the Senate Select Committee on Judicial Oversight and Reform meeting was at times both tedious and tense, but the public comment period extension and some likely small tweaks to the proposed rule changes were the primary outcome of the seven-hour hearing.
A public meeting on the proposed changes is scheduled for Sept. 24.
Chief justice questions committee’s subpoena authority
Thursday’s meeting was the first for which Ellsworth used his subpoena power, which he said he would utilize last month because he believed the committee was not getting answers and was at times having trouble bringing witnesses in to testify.
Ellsworth and McGrath, the chief justice, have disagreed about the committee’s legitimacy, subpoena powers, and whether any judicial branch members would ever attend one of the committee meetings for at least a month, according to letters Senate Republican leadership released this week.
Senate President Jason Ellsworth, R-Hamilton (center), chairs the Select Committee on Judicial Oversight and Reform’s meeting on Sept. 5, 2024. (Photo by Blair Miller, Daily Montanan)
At the start of the hearing Thursday, Ellsworth had the legislature’s chief legal counsel Todd Everts reiterate the committee’s legitimacy and powers and told the committee and audience that Supreme Court administrator McLaughlin had provided him with another memo from McGrath that contends the committee does not have legislative subpoena powers because of its makeup, which includes nonvoting members and members of the public.
Accompanying the memo was a letter from McLaughlin saying the Supreme Court’s staff attorney and JSC’s secretary should not be subject to questioning by a legislative working group because they are not elected or appointed, nor do they have policy-making authority.
One of them was already scheduled to be out of town this week, and neither of them appeared at Thursday’s hearing. The lawmakers on the committee said at the end of the meeting they would consider whether to try to seek contempt charges for the two employees in the coming days and weeks.
Committee presses JSC on rule change process, transparency
For the first three hours of the meeting, the committee, largely led by Ellsworth and attorney Joan Mell, a citizen member, pressed JSC members Roger Webb and Seth Berglee, both appointed by the governor, and attorney Jill Gerdrum, appointed by the Supreme Court, mostly about the process behind the rule changes and whether the members believed they should have made it a public one.
The Judicial Standards Commission is established under the judiciary in Article VII of the constitution as an autonomous commission created by the legislature that investigate complaints about members of the judiciary, can submit formal complaints to the Supreme Court to hand down discipline, and whose proceedings are confidential except for any carve outs created by the legislature.
Judge Randal Spaulding answers questions from the Select Committee on Judicial Oversight and Reform on Sept. 5, 2024. (Photo by Blair Miller, Daily Montanan)
In short, the JSC members told the committee Thursday, its meetings are not typically open to the public, and its crafting of the proposed rules alongside a Supreme Court attorney was not done in a public hearing.
They said they received the original draft proposal in June following meetings with the Audit Division and draft recommendations that would be coming forward in the audit, which were implemented in the rule changes. The commission had also discussed implementing legislative changes in its rules.
“Prior to them being adopted and signed, there would be a public participation through the Supreme Court side of the process,” Berglee said.
Mell needled at Gerdrum over the six-day notice for an original Sept. 10 hearing, which was set by the court and not the JSC, asked her to read aloud the commission’s meeting minutes from August, which she declined to do, and asked why the court would even need to have its rule changes approved by the Supreme Court.
“Ceding JSC authority to the Supreme Court, I would not approve of that. Do I approve of the Montana Supreme Court’s final approval of our rules? I do because the rules still allow us to adopt them with a majority of commissioners,” Gerdrum said.
Sen. Barry Usher, R-Yellowstone County, pushed the question for Gerdrum, who was appearing remotely, saying that the JSC was “ceding authority” to the Supreme Court on the commission’s ability to change rules. But Menahan went to the podium and interrupted.
Judge Mike Menahan pressed the committee to allow the judges from the Judicial Standards Commission to testify. (Photo by Blair Miller, Daily Montanan)
He said he had not been properly subpoenaed and that he and the JSC members had shown up to the hearing on their own free will, but he and Spaulding, from Musselshell County, had not yet been called three hours into the meeting.
“I promise you that if I had an attorney who subpoenaed witnesses to appear in my court and I saw they sat outside the courtroom for three hours, that attorney would hear from me,” he said. “At what point are you going to ask a question of us?”
Ellsworth agreed to have Menahan speak with the committee at 1 p.m. following a shortened lunch break. At the start of the break, Menahan showed Ellsworth that comments from Usher regarding how the JSC is appointed after last year’s legislative changes were incorrect, which Usher apologized for when the committee returned to hear from Menahan.
Judge Menahan addresses transparency concerns
When Menahan took the stand, Ellsworth and Mell continued to press about open meetings law, alleging there was “secrecy” involved in adopting the proposed rule changes. Menahan outlined the process for rule changes he learned when joining the commission a decade ago saying it had not changed since.
“As I stated, the reason I came before the committee here today is to answer questions about the legislative rules. I haven’t heard many questions about the legislative rules,” Menahan said.
Judicial Standards Commission Chairperson Judge Mike Menahan talks with the Select Committee on Judicial Oversight and Reform on Sept. 5, 2024. (Photo by Blair Miller, Daily Montanan)
He pushed back on lines of inquiry implying that the Supreme Court should not be able to sign off on the JSC’s rule changes, saying he believed it was important because it has the final decision over whether a judge served with a formal complaint should be censured, disciplined, reprimanded or removed from office.
Another sticking point for the committee was the proposal to move to using the word “grievance” for initial complaints filed by people against judges, changing it from “complaint.” Some committee members postulated the JSC might be changing the rules so that they don’t conform with the constitution because it does not speak to any “grievance.”
Menahan explained that the Office of Disciplinary Counsel, which regulates lawyer discipline, uses the term grievance for initial complaints, and that the JSC’s change would align its language with that office’s to make things less confusing for the public. He said perhaps the JSC or Supreme Court, before signing off on the final proposal, could add a definition of “grievance.”
Menahan also said a claim the JSC hides unethical conduct of judges is “completely false” and discussed some of the audit findings, which said Montana has a relatively high sanction rate compared to other states and found no instances in which the commission failed to address ethical misconduct or other problems.
Ellsworth, who chairs the Legislative Audit Committee that will hear the report on the audit next Wednesday, has also been pushing Menahan to produce a separate biennial report the JSC must report to the legislature every two years.
But Menahan pointed out there are two conflicting statutes about that legislative report, which he says the JSC has always interpreted as being due at the end of December before the legislative session starts, but which Ellsworth believes should be handed over in September in even years.
Menahan said setting a deadline is the legislature’s prerogative, but issuing a report that details every complaint filed against a judge, even if it was unsubstantiated, would open up judges who are up for election in November to facing political attacks based on unsubstantiated complaints.
“I think that could have very negative consequences,” he told the committee.
The committee voted to give the chair of the committee discretion as to when it wants the report between the two options.
Spaulding and McLaughlin address other concerns
To wrap up the meeting, Usher said he still believes that the JSC rulemaking should be subject to a public process, saying if the legislature did not follow that process, its bills would get struck down in court. The committee is moving ahead with draft legislation discussed at its previous meeting and is scheduled to meet twice more this month.
“We were working at a pretty fast clip, starting to get some draft legislation. This was obviously not a planned event, it was reactionary, and all for the right reasons,” Ellsworth said of the meeting Thursday. “So I’m not disappointed that we stepped in and did what we did.”
Democrats appointed to the committee are not participating, calling the committee’s efforts a waste of time and resources.