HELENA (Daily Montanan) – Montana Supreme Court Chief Justice Mike McGrath and 1st Judicial District Court Judge Mike Menahan appeared before the Law and Justice Interim Committee on Tuesday to discuss the Judicial Standards Commission, a body the committee is studying for possible reform during the 2023 legislative session and was the subject of Republican scrutiny during the last session.
The judges again defended themselves for their responses to online polling by the Montana Judges Association about legislation impacting the judiciary. The judges also defended the commission and the need for an independent judiciary, but they said they welcomed the study.
“We think this is a good thing,” McGrath said. “I think this is … a very good process and welcome the opportunity to have some input.”
Overhauling the commission was one of many Republican efforts to change the shape of the judiciary during the 67th legislative session. The commission is tasked with investigating complaints from citizens alleging a judge violated the Judicial Code of Ethics. The commission comprises two district judges, two civilians appointed by the governor and one attorney appointed by the Supreme Court.
Many of the concerns brought up during Tuesday’s meeting were similar to those raised during the legislative session. Essentially, detractors argue the commission is judges self-policing, and as a result, it is not an effective body.
“Looking over the cases that were presented to the Judicial Standards Commission, most of them were dismissed,” said Sen. Keith Regier, R-Kalispell. “When I looked at it, I thought it was probably just disgruntled party didn’t have things go their way. But do you think you can understand how the average citizen looks at all of those dismissed, and they get cynical towards the judiciary?”
When all people look at is the number of dismissed complaints, Menahan said, “I think it’s easy to draw that conclusion.” But he explained most of the complaints the commission investigates are from parties unhappy with the outcome of their case.
“The vast majority of complaints that we get do not allege a violation that’s an ethical violation,” he said. “[The complaints] are essentially saying that the judge made a mistake in law. And the issue that they’re raising is an appealable issue, not one that is an ethical issue. So the vast majority of the complaints we dismiss.”
McGrath said several safeguards — like judicial elections — are in place to make sure the state’s judiciary is held accountable.
“If you look around, my argument would be that it’s actually the independent court system that is the linchpin of our economy,” McGrath said. “It’s the linchpin of our society in terms of stability. And it’s extremely well designed and thought out for that reason.
“The judicial Standards Committee is one of many institutions in Montana that are designed to make sure that the judiciary is fair and impartial.”
Controversy over the commission started when emails showed judges criticizing House Bill 685 in an email chain polling judges on their opinions about legislation impacting the judiciary. HB685 would have changed the commission’s makeup to a supermajority of politically appointed citizen members with the ability to remove elected judges and change the name of the commission to the “The Judicial Inquiry Commission.”
Sponsored by Missoula Republican Rep. Brad Tschida, the bill died 47-52 on its second House reading.
Among the emails was a response from McGrath saying the proposed title was straight “out of the book, ‘Where Democracies Go To Die.’”
Rep. Barry Usher, R-Billings, and other Republican members of the interim committee again pushed the judges on their email conduct.
McGrath defended his response on Tuesday: “That bill gave the citizens the authority to actually remove an elected official from office. It didn’t require any kind of due process; it didn’t require any kind of standards … it just meant that if there was a mob that was mad about something that a judge did, they could remove that judge from office, even though that judge is elected by the people, and yes that is the first step and the demise of a Democratic system.”
Sen. Tom McGillvray, R-Billings, also pushed Menahan on emails the judge wrote that said it was hard to get his judicial work done while having to testify on bills at the Legislature so often and calling HB685 a “ridiculous bill.” In committee Tuesday, Menahan said he spent more time than he wished testifying at the Legislature and that it was not outside of judicial ethics to comment on legislation impacting the judiciary.
The Billings Republican also asked why judges commenting on legislation relating to the judiciary isn’t subject to the same discipline of Lewis and Clark County Justice of the Peace Michael Swingley, whom the commission reprimanded for emailing epithets for a Washington Post reporter about his coverage of the QAnon conspiracy theory.
“I’m just wondering if you feel like there’s a difference between what Judge Swingley was disciplined for and what you took part in certain email polls?” McGillvray asked.
Menahan, who has sat on the commission since 2015, said it does not violate the Judicial Code of Ethics to testify or comment on legislation relating to the judiciary. Swingley’s behavior, he said, was “outside of the role and scope of his duty as a judge, and it hurts the judicial branch of government.”
Livingston Democrat Rep. Laurie Bishop said she was disappointed in the line of questioning from her fellow Republicans.
“I didn’t see the usefulness of it other than to beat a drum that really is aimed at compromising the independence of our judiciary,” she said. “It was very clear that my [Republican] colleagues came in armed with coordinated information that was intended to go after the justices and not in an effort to better understand the commission.”
The committee also finalized its work plan on Tuesday, and in addition to studying the Judicial Standards Commission, it will study telecommunications contracts with prisons, criminal justice system data, the Montana Women’s Prison, mental illness in the criminal justice system as well as the implementation of a handful of bills.
The committee will use what it learned at Tuesday’s meeting to inform their legislative priorities before the 2023 legislative session and will meet again in October.