Second half of Legislature will tell whether state’s judiciary will be changed

But constitutional concerns have been raised about some of the bills

By: - March 6, 2021 8:05 am

The Old Supreme Court Chambers in the state capitol in Helena (Photo by Martin Kraft, Wikimedia Commons license).

Halfway through the 67th legislative session, Republican-led efforts in Montana to reshape the judicial system have found some success but have fallen short of an outright transformation.

The Republican-controlled House and Senate have advanced bills that give the governor more power to fill judicial vacancies, allow judges to announce campaign endorsements, alter the Judicial Nominating Commission and change how Supreme Court judges are elected. Those same lawmakers have thwarted efforts to make judicial elections a partisan affair and to modify how complaints filed against judges are handled.

But the bills still alive at the halfway point are navigating in constitutionally murky territory, experts said.

Of all the overhaul efforts, the closest to becoming law is Senate Bill 140, which flew through both chambers on partisan lines and will soon be on Gov. Greg Gianforte’s desk. The bill would eliminate the judicial nominating commission and give the governor the nearly unfettered ability to fill district and Supreme Court vacancies.

While the governor has not publicly said he will sign it, Lt. Gov. Kristen Juras has been a strong advocate for it and was involved in its drafting.

The commission was put in place after the 1972 Constitutional Convention to correct historical corruption in the judiciary by creating an oversight process and moving away from direct political appointments to a merit-based commission.

The commission comprises four lay people appointed by the governor, a district court judge, and two lawyers appointed by the state supreme court. Upon vacancies, the commission reviews applicants and sends a list of three to five candidates to the governor.

Legislators voted down two amendments to the bill that would have made it more palatable to its opponents. One would have given the governor the power to replace the majority of the commission at the start of their term. The other would have allowed the governor to request a second list of nominees to appoint if they were unhappy with the first.

Ed Bartlett, who opposed the bill but supported the amendments on behalf of the State Bar of Montana, said, “they can change the nomination commission, but they can’t eliminate it.”

Opponents of the bill have argued that eliminating the commission would be unconstitutional. And while the Constitutional Convention reshaped the judicial selection process, it was ultimately left to the legislature to decide how nominees would make it to the governor. Because of that, supporters believe the bill is within constitutional bounds.

The constitution states, “the governor shall nominate a replacement from nominees selected in the manner provided by law for any vacancy in the office of supreme court justice or district court judge.” Supporters believe, the phrase “in a matter provided by law” will allow the bill to hold up against constitutional challenges.

But Anthony Johnstone, a constitutional law professor at the University of Montana Alexander Blewett III School of Law, said it is not that simple.  As a scholar of the Montana Constitution, Johnstone said interprets the law, but does not take sides. He has not supported or opposed any of the judicial bills making their way through the legislature.

“This bill presumes it is working within the constitutional text, but even if it is within the technical letter of the constitution, there is still a question as to whether it is in the spirit of the constitution and the original meaning of those words,” he said in a previous interview with the Daily Montanan.

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House Republicans also advanced a bill with an attached legal note stating it may “present constitutional conformity issues.”

House Bill 325, sponsored by Billings Republican Rep. Barry Usher, would send a legislative referendum to the voters to elect Supreme Court justices by the district. Usher said districting the Supreme Court would align it more correctly with the electorate and make for a more diverse bench.

The bill would split the state into seven districts, four of which are likely to vote Republican.

Montanan’s voted yes on a nearly identical referendum in 2011, but it was ultimately overturned by the State Supreme Court which, ruling on itself, found it unconstitutional to require a judge to reside in a specific district.

Due to that ruling, Usher has removed the requirement from his bill, but opponents and the legal note still warn it may be unconstitutional.

In its decision to overturn the 2011 referendum, the Supreme Court wrote judges do not represent “particular constituencies or interest groups” and that “the requirements and protections of the Constitution and the law do not vary from one county or district to another.”

The ruling went on to say, “These principles are implicit in the constitutional design, which establishes the office of Supreme Court justice as one subject to selection by electors statewide.”

The broader constitutional concern, Johnstone said, lies with the fact that Supreme Court makes statewide decisions, and thus the elections should be statewide.

During the bill’s committee hearing, Usher dismissed the constitutional concerns.

“We’re not here to find if it’s constitutional … I find it appalling that any of us think we shouldn’t let the voters decide,” Usher said.

The bill is scheduled to be heard by the Senate Judiciary Committee on March 9.

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Constitutional questions were also raised about Senate Bill 271 that would allow judges to announce campaign contributions and endorsements — does the bill violate the separation of powers by allowing the legislature to make rules for the judiciary?

“The Supreme Court doesn’t make the legislature’s rules, and the legislature can’t make the courts rules,” Johnstone said.

Right now, the court regulates judges’ partisan endorsements, and allowing the legislature to determine the rules could be argued as unconstitutional.

Echoing Johnstone’s statement, John Mudd, executive director of the Montana State Bar, said, “the regulation of judges’ conduct is something that belongs to the Supreme Court, and it is in the Supreme Court’s jurisdiction of the constitution.”

During floor discussion on the bill, Sen. Bryce Bennett, D-Missoula, argued the bill would threaten judicial elections’ integrity. Currently, parties can endorse candidates, but candidates can’t run on their endorsement.

“People will say what they want to say about our judicial candidates, and that is within their First Amendment rights, but by allowing the judge to say I am endorsed by this party would … how can anyone who doesn’t have the same party affiliation as the [judge] think they are going to get a fair trial in front of that judge?” Bennett said.

The bill’s sponsor, Kila Republican Sen. Carl Glimm, responded to Bennett’s assertions saying, “We all know judges have their opinions, and this just gives us a little insight into who they are,” which he said is good for Montana voters.

The bill passed the Senate on a 28-22 and will go on to be heard in the house.

Despite GOP’s support for allowing judges to announce their party endorsements, they stopped short of endorsing full-on partisan judicial elections with two bills that would have required judges to be nominated and elected on a partisan ballot failing to gain traction.

HB355, carried by Great Falls Republican Rep. Scot Kerns, died on the house floor on a 44-56 vote after an amendment to apply it only to Supreme Court races got it out of the House Judiciary Committee.

And Matt Reiger, R-Kalispell, had an identical bill, HB342, which applied to district and Supreme Court judges, die on the House floor in February.

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The constitutionality of HB380, which would require Senate confirmation of all Judicial Standards Commission members, was questioned for similar reasons as SB271 — the legislature’s degree of power over the judiciary.

The commission establishes disciplinary and ethical standards for judges. It is made up of two district court judges, one attorney and two citizens. All serve four-year terms. Currently, the judges and attorneys are appointed by the Supreme Court and the two citizens are appointed by the governor.

Because the discipline and regulation of the judiciary are within the constitutional jurisdiction of the Supreme Court, there is an argument to be made that requiring the commission members selected by the Supreme Court to be confirmed by the Senate, may be unconstitutional, Johnstone said.

“The Senate has roles involving the judiciary, but the whole question is to what degree,” Johnstone said. “Allowing the Senate to confirm to members of the Judicial Standards Commission whose job it is to regulate the judiciary itself could intrude on the judicial power too much.”

Initially, the bill only sought to require senate confirmation for the two citizens, but an amendment requested by Rep. Kerri Seekins-Crowe, R-Billings,  extended it to all members.

Seekins-Crowe said during a hearing the commission has weaponized its powers in the past to go after judges in the state, and said that Senate oversight of who is on the commission would allow for better balance on the commission.

The bill passed house 64-34 in late February and has been referred to the Senate Judiciary Committee.

While lawmakers favored giving themselves more power over the commission, they did not support giving the commission more work.

SB366, which failed in the Senate Judiciary Committee, would have required the commission to investigate all complaints filed against judges. It carried a fiscal note saying investigating each complaint would cost around an additional $300,000 per year.

It would have been costly, time-consuming, and not necessary because “the commission goes through the process and determines if it is a substantial complaint that requires an investigation,” Bartlett said.

Despite all the possible changes, the voters will still decide a judge in Montana, Johnstone said.

“No matter how the bills and the laws play out, we are still a state that has judicial elections, and in the end, as in the beginning, the voters are going to have the ultimate say to who sits on our courts,” Johnstone said.

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Keith Schubert
Keith Schubert

Keith Schubert is a reporter for the Daily Montanan. Keith was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. He can be reached by text or call at 406-475-2954 .

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