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Republican lawmakers propose changes to Montana judicial practices

Posted at 6:23 PM, Feb 02, 2023
and last updated 2023-02-08 15:25:29-05

HELENA — Over the last two years, Republicans in the Montana Legislature have raised concerns about the practices of the state’s judicial branch. Now, GOP lawmakers are proposing a series of bills that they say would support transparency in the judiciary.

Starting in 2021, lawmakers on a special committee conducted an investigation into the judicial branch. GOP members issued a report in December, accusing state judges and judicial employees of improperly mishandling public records and expressing opinions on bills whose constitutionality could eventually be decided by the courts. The judicial branch pushed back against those allegations, and Democrats have accused Republicans of a political attack against the judiciary.

Sen. Greg Hertz, R-Polson, chaired the committee. He said studying the judiciary “opened his eyes” to potential issues, and several of these bills came out of that investigation – but he denied lawmakers were attacking judges.

“I don’t think the legislative branch is trying to pin in the judicial branch at all,” he said. “We’re trying to provide more transparency and making sure the system is fair for anybody who may have to use our court system.”

On Thursday, the Senate Judiciary Committee held a hearing on Hertz’s Senate Bill 224, which would require a yearly report on how often each district court judge is substituted out of a case. Hertz said the public should have access to that information.

“Reflecting anybody's work, whether as a judge and a legislator or even the governor – I think we're all open to transparency, and you need to see how our work is progressing, and the public deserves the right to know,” he said.

In Montana, judges can recuse themselves in case of a conflict of interest, but parties can also request that a judge be substituted without providing a reason.

Hertz has also proposed Senate Bill 201, which would require judges to recuse themselves from a case if they’ve received the maximum allowable campaign contribution from any lawyer or party involved in the case within six years. The Legislature approved a similar provision in 2021, but a judge struck it down, saying the way lawmakers added it to an existing bill violated the state Constitution.

Other Republicans have also introduced bills on the judiciary. On Thursday, the Judiciary Committee also heard testimony on Senate Bill 230, from Sen. John Fuller, R-Kalispell. The bill would shift the power to appoint the state court administrator from Montana Supreme Court justices to the clerk of the Supreme Court – a partisan elected position.

“I see this as a natural result of the idea that the separation of powers and influence is beneficial to preserving the will of the people,” Fuller said.

Under current law, the court administrator administers funding for district courts, coordinates between local courts and the Supreme Court, oversees pretrial and treatment court programs and performs other duties under the direction of the Supreme Court.

Representatives of state judges’ associations opposed the bill, saying it made the most sense for the administrator to take direction from judges.

“This bill reaches into a branch of government and removes a vital cog in how it's run from the supervision of that branch of government,” said Bruce Spencer, representing the Montana Judges Association.

Sean Slanger, speaking for the State Bar of Montana, argued the bill would be unconstitutional because the state Constitution gives the Supreme Court authority to supervise lower courts, and the court administrator’s primary role is to assist with that.

The current clerk of the Supreme Court is Bowen Greenwood, a Republican. He said during Thursday’s hearing that he wouldn’t speak in favor of or against SB 230, but that he felt his office and the court administrator would be a “good fit,” if the Legislature takes that step.

The committee took no immediate action on SB 224 or SB 230. Sen. Keith Regier, R-Kalispell, the committee’s chair, said they will likely vote on SB 201 on Friday.

Another bill is House Bill 326, sponsored by Rep. Kerri Seekins-Crowe, R-Billings, which would change how members are appointed to the Judicial Standards Commission – the body that investigates complaints against judges. Currently, it has five members: two district court judges elected by the other judges, an attorney appointed by the Supreme Court and two citizens appointed by the governor. HB 326 would give the Legislature the authority to choose the two judges and the attorney general the power to pick the attorney.

HB 326 passed the House Judiciary Committee on a 13-6 vote Thursday. It will now go before the full House.