Seekins-Crowe: Judicial Standards Commission selection is ‘fox guarding the henhouse’

Montana Judges Association urges legislators to wait the findings of a commission audit

By: - February 1, 2023 11:13 am

Photo illustration by Getty Images.

If the Judicial Standards Commission is doing something bad, the legislative auditor will find out and put it in a study.

So wait for that study — it’s in the works, said Bruce Spencer, with the Montana Judges Association.

That was Spencer’s perspective on a bill to change the way appointments to that commission are made, and he shared it Tuesday with the House Judiciary Committee.

“You haven’t had a chance to get the facts,” Spencer said.

But Republicans have been displeased with the judiciary and have pitched bills to change the judicial branch since last session. Some members of the GOP think judges are too liberal, and some don’t like their bills getting tossed for being unconstitutional.

At the hearing Tuesday on House Bill 326, sponsor Rep. Kerri Seekins-Crowe, R-Billings, proposed a change to the way appointments are made to the Judicial Standards Commission, and she said the way members get selected now is akin to the “fox guarding the henhouse.”

Made up of five members, the Judicial Standards Commission has jurisdiction over the conduct of judges and makes recommendations to the Montana Supreme Court about reprimanding or even removing judges, according to its rules.

Here’s how the commission is assembled now: District court judges elect two judges in an election the Montana Supreme Court certifies; the Supreme Court chooses one attorney; and the governor selects and Senate confirms two citizens who aren’t judges or lawyers.

Rep. Kerri Seekins-Crowe, R-Billings. (Provided by the Montana Legislature)

Seekins-Crowe said having the Supreme Court so heavily involved is a bad look, and she believes her bill would help the public “regain trust” in the judiciary.

She’d like the Speaker of the House to appoint the two judges and the attorney general to pick the lawyer instead.

“I would think the judges would be thrilled to have a bill like this,” Seekins-Crowe said.

She said the commission chooses which cases to investigate, and she believes investigators can be partisan and decisions about investigations can be inconsistent.

As the judicial branch holds the legislature accountable, so too will the legislature hold the judicial branch accountable with her legislation, Seekins-Crowe said.

Sean Slanger, with the State Bar of Montana, also opposed the bill. He and Spencer were the only two members of the public to testify, both against the proposed legislation.

Slanger said the change would remove any input from judges into their own oversight commission, and if Montana moves ahead, it will be the only state where the judiciary doesn’t participate in choosing some members, at least in the Rocky Mountain West.

“We believe HB 326 politicizes the court and endangers independence,” Slanger said.

In response to a question from Rep. Zooey Zephyr, D-Missoula, Slanger said the current process allows the judicial, legislative and executive branches to all participate in selecting members.

One problem with the commission, though, is people misunderstand its purpose, Spencer said.

He said one of the reasons the sponsor wants the change is because of the number of complaints the commission dismisses, but it’s about average compared to nearly every other jurisdiction in the country.

The issue is people file a complaint when they don’t like the outcome of a case, he said. They might disagree with the way a judge ruled in their divorce or a constitutional question.

But the commission isn’t a place for them to appeal those outcomes, so those cases aren’t accepted, he said. Rather, he said, the commission handles allegations such as a judge having a mental impairment or being drunk on the job.

He said the high number of complaints dismissed is one area auditors will evaluate, and he looks forward to the report. He said it’s the first audit of the Judicial Standards Commission.

“I hope it is an incredibly thorough and complete audit,” Spencer said. “I welcome it.”

On the other hand, he said he wouldn’t welcome the changes in the bill.

“You’re now shifting the members of this commission into a political arena,” Spencer said. “There’s just no way around it. The legislature is political. And we don’t believe that is a good thing (for the commission).”

The committee did not take immediate action Tuesday.

The Legislative Audit Division confirmed a study of the Judicial Standards Commission will take place, likely starting in the spring with an estimated publication date in the last quarter of 2023.

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.