Lawmakers look to place discipline of judges in citizens’ hands

Opponents warned the bill may violate separation of powers

By: - March 31, 2021 6:22 pm

Gregg Trude set his loaded .300 Winchester Magnum down in the backseat of his car in October 2018.

The gun discharged and fatally struck Dr. Eugene “Buzz” Walton of Helena. Trude pleaded guilty to negligent homicide and was sentenced to 20 years in prison with 3 ½ years suspended, according to an article published in the Helena Independent Record.

The sentencing judge, District Judge Mike McMahon, coached at the same high school Walton volunteered. McMahon disclosed their relationship, but Trude and his lawyers argued that McMahon was biased, and the partiality impacted his sentence. Ultimately the Montana Supreme Court’s Sentencing Review Division ruled the sentence was “clearly excessive” and reduced it to 15 years with 14 years suspended, according to the article.

Now Trude is trying to revise how judicial complaints are handled in Montana. Records show that Trude was involved in the drafting of House Bill 685, which would send a constitutional amendment to voters that would change Montana’s Judicial Standards Commission’s makeup and operation — the body tasked with handling judicial complaints.

The bill would give seven citizens appointed by the governor, one retired judge, and one attorney the power to investigate judicial complaints and discipline judges. Currently, the commission comprises two district judges, one attorney, and two citizens.

The bill is sponsored by Rep. Brad Tschida, R-Missoula, and passed out of the House Judiciary Committee on Wednesday on a 10-9 vote.

“They spent a year of their life in prison for something that was not illegal. A gun discharged, the authority said that it was an accident. The witnesses said that it was an accident. But the judge did not recuse themselves. As a result, this person lost one year of their life and hundreds of thousands of dollars,” Tschida said Wednesday, alluding to Trude’s case.

Supporters of the bill argued under the current process not enough complaints are investigated due to the commission’s self-governing nature and contend that a more impartial body would create more accountability.

“Part of the problem is that you have the same individuals overseeing their peers. It’s not always a bad thing, but this is almost tantamount to having a fraternity admonish their members,” Tschida said.

The commission was created as a result of the 1972 Constitutional Convention. The bill is one of many proposed this session that would change Montana’s judicial system.

As it stands now, the commission makes recommendations to the Supreme Court. The Supreme Court can then decide to censure, suspend or remove any judge for willful misconduct in office, willful and persistent failure to perform their duties, violation of canons of judicial ethics adopted by the Supreme Court, or habitual intemperance.

The proposed changes to the bill would broaden those definitions by removing “willful” from “willful misconduct” and “willful and persistent” from “willful and persistent failure to perform their duties.” And it would allow the commission to bypass the Supreme Court and handout punishment with a majority vote from members.

Supporters of the bill described the proposed procedure as a way to ensure checks and balances, while opponents said it violates the separation of powers.

Bruce Spencer, who testified against the bill on behalf of the Montana State Bar Association, said, “You heard comments about the three separate branches of government. And I think this bleeds over with the executive and frankly the legislative impeding in the third branch of government, the judiciary.”

Anthony Johnstone, a constitutional law professor at the University of Montana Alexander Blewett III School of Law, said the bill was unique. “I’m not aware of any provision in the constitution that would give political appointees in one branch the power to remove elected officials in another branch.”

Bart Crabtree, who testified in support of the bill and is a member of the Montana State Council on Judicial Accountability, argued the opposite. In the past, Crabtree has had problems with the court.

He was found guilty of a felony for embezzling money from the Electric City Heat Girls Softball Team in 2017. His appeal to the Supreme Court was denied.

“We currently have the proverbial fox guarding the henhouse here. We currently have judges overseeing judges; I’m sure they’re doing the best job that they can,” he said.

Tschida agreed and said the bill is there to provide checks and balances.

“We have checks and balances for a reason, and the reason that the legislature is involved in this is to take a look at what is going on within the judiciary branch,” he said. “I’m not setting up a citizens vigilante to go after members of the judiciary. I just believe that citizens have a right to ask their judicial counterparts to be as professional and as above-board and ethical as it can possibly be, and I see this as a tremendous way to allow that to happen.”

Opponents said many of the complaints to the commission do not fall under their authority and would be better served through an appeals process and that lawyers and judges are more fit than citizens to handle the complaints.

The Judicial Standards Commission’s current chairman, District Court Judge Mike Menahan, said the two citizens currently on the commission are crucial. Still, he said, “They don’t understand the law, and they struggle to understand the issues that we face when we take up complaints against judges.”

Menahan said the complaints the commission gets are usually based around bias and judicial rulings.

“Most of the complaints that we get involve litigants who are disgruntled with the district court judge … And they allege things like the judge made an incorrect finding of fact, (or) the judge misapplied the law,” he said. He said the legal issues raised in most complaints do not fall under the commission’s purview. “We don’t have the jurisdiction to take up legal issues that the complainants raise with us; we can look only specifically at conduct that is alleged to have violated the code of Judicial Conduct.”

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Keith Schubert
Keith Schubert

Keith Schubert 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. Keith is no longer a reporter with the Daily Montanan.