Sen. Keith Regier, R-Kalispell, testifies in front of the Senate Judiciary Committee on Friday, Feb. 17, 2023. (Photo by Blair Miller, Daily Montanan)
A lobbyist for the Montana Judges Association said Friday the association agrees there should be more transparency surrounding the Judicial Standards Commission and complaints filed against judges, and offered amendments to the bill the sponsor said he partially agreed with.
“It is obvious from comments over the years that people think there’s machinations going on behind the scenes that aren’t occurring, and the Montana Judges Association believes more transparency is a better thing,” said Bruce Spencer, the lobbyist for the group. “They just don’t agree on the particular language that’s contained in the bill.”
Senate Bill 313, sponsored by Sen. Keith Regier, R-Kalispell, would make changes to what the commission could keep confidential when complaints are made against judges, publicly identify judges who have complaints filed against them, and make public more specifics on the complaints, among other things.
Regier told the Senate Judiciary Committee he understands there are many frivolous complaints filed with the commission from people who’ve had cases decided in the prosecution’s favor and said his bill would expose them.
But when there is not much publicly released information about the complaint or the judge it was filed against, he said, it left the public with the “perception of impropriety and cronyism.”
“Senate Bill 313 would put some transparency on an important part of a system that serves the people of Montana,” Regier told the committee.
The commission, which can recommend to the Montana Supreme Court that judges be disciplined or removed because of their conduct or inability to perform their job after an investigation, has faced attacks from some Republicans who claim it is partisan and picks and chooses which cases it handles.
House Bill 326, which would put decision-making over which judges and members of the public sit on the commission in the hands of the House Speaker and attorney general, has already passed the House. It is sponsored by Rep. Kerri Seekins-Crowe, R-Billings.
Proponents of Regier’s bill told the Senate Judiciary Committee Friday they felt it would put more trust in the commission by providing more transparency to the complaint and investigation process.
“Some of these complaints, in fact a lot of them, will be frivolous, silly. But we want the public to see the frivolity, the silliness, as well as the seriousness of the complaints,” said proponent Pascal Redfern. “Let the public know.”
Spencer was the first opponent to speak, but said his proposed amendments constituted a “very valid attempt at putting more needed transparency in the judicial standards process.” He said while the commission dismisses more than 90% of complaints, that is because many involve a judge’s decision to convict and incarcerate a person – not any ethical lapses or misconduct.
“But I get it. All you see is a list that says all these complaints have been dismissed, and you don’t know why, you don’t know what the complaint was about. I get it and the judges get it,” he said. “And I think their amendment is an attempt to walk the line between the legitimate concerns of the judge and having a fair hearing, and the public disclosure of the commission about what’s going on.”
The judges’ proposed changes to Regier’s bill include getting rid of Regier’s proposal to allow complainants to publicly release their complaints. Regier said he was willing to take that line out of his bill.
Regier’s bill would allow the commission to publicly tell a judicial officer subject to a complaint that the complaint would be dismissed if they take corrective actions. The judges propose making that process confidential again.
The judges proposed final decisions be made public within 10 days of their issuance, and that portions of those orders could remain under seal to protect privacy matters involving a judicial officer’s health or family members. Regier did not address that part of the proposal during the hearing.
Regier said he agreed with the judges that his proposal to make complaints requested by the public available five years after they are dismissed should see a longer timeframe before they are released, if they are released at all.
The judges proposed keeping the identity of a judicial officer who faces a complaint private, as opposed to making them public to the legislature. Regier said he needed more time to consider that proposal: “Judges are elected just like we are, so I’d have to think about that part,” he said.
Regier said he also wanted more time to consider a proposal to form a select committee of four legislators who could observe all of the commission’s meetings and hearings if they keep the information confidential.
“We’re still keeping the judge’s name confidential,” Regier said. “Even though a few legislators might know, then they’re held in confidence too.”
Spencer said the judges felt the proposal was a reasonable way to better inform the public, would keep some confidentiality for judges who generally do not respond to complaints publicly, and also provide more disclosure of the proceedings. He said the judges strongly encouraged lawmakers to look seriously at the amendments.
“They are offered in the best of reasons. We want to work with the committee on this and believe more transparency is needed. This is our offer. We’re happy to work through the language if it needs to change,” Spencer said.
In his closing, Regier told the committee he would have amendments coming on the measure.
Regier says he plans to amend resolution on courts and law
Regier also presented his Senate Joint Resolution 11 to the committee, which he said is aimed at reinforcing that the legislature has the sole power to make laws in Montana – not the Supreme Court. He said he felt some courts were “legislating from the bench.”
In his opening statements, he said he would be removing what is perhaps one of the more controversial statements in the resolution: “WHEREAS, decisions by the Supreme Court are labeled as opinions, should be advisory only, and should be treated as such.”
Sen. Susan Webber, D-Browning, asked him if the state need not abide by the U.S. Supreme Court’s majority opinion in the Dobbs case last year, which overturned Roe vs. Wade.
“We do need someone to be the final arbiter,” Regier said.
In his closing statements, the senator said he agreed the three branches of government – the executive, legislative and judiciary – needed to be separate but equal. He said his resolution did not create a law, just acted as a check on the judiciary.
“This resolution is a good reminder to the courts that it is the legislature that defines what a law is,” Regier said. “We spend almost 90 days here defining laws we put into the code that hopefully the courts will uphold in their decisions.”
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