Judicial Watch: An Update Of The 2023 Judicial Reform Bills
"Many judicial reforms are focused on re-establishing the separation of powers through greater accountability and oversight of the judiciary."
Last fall, the Special Joint Committee on Judicial Accountability & Transparency report released an explosive report that inspired many Montana legislators to introduce bills seeking to reestablish the judiciary’s legitimacy in the eyes of Montanans.
These bills can be broken down along three broad areas of reform: promoting transparency, eliminating conflicts of interest & bias, and increasing accountability & oversight. Below I provide a summary and update on some crucial judicial reform bills that are still alive as we approach the halfway mark of the 2023 Session.
Promoting Transparency
Several of these reforms aim to tackle the lack of transparency about the beliefs of judicial candidates and their performance once elected.
HB 464 aims to improve transparency about the political leanings of judicial candidates in Montana, helping to ensure the judiciary is accountable to the people. This bill allows judicial candidates to indicate their party affiliation or endorsement. Their party affiliation will appear next to the candidate’s name on the general election ballot. As of March 2nd, HB 464 did not pass the House.
SB 302 requires judges and justices to designate their party affiliation only for the general election. This bill allows political parties to endorse and support the judge or justice they believe will best serve Montana. By requiring judges and justices to identify their party affiliation during the general election, SB 302 aims to increase transparency and better inform voters of judicial candidates’ political leanings. As of March 2nd, this bill failed to pass the House.
SB 709 creates a publicly available display that uses already collected data that indicates a judge’s performance. This performance report would take into account things like public confidence and trust, the number of cases overturned by a higher court, caseload, among other metrics.
SB 252 expands the code of ethics for elected and government officials and government employees to include judges and justice for the judicial branch.
You can read more about judicial recusal laws in other states here.
Eliminating Conflicts of Interest & Bias
These bills aim to reduce bias in the courts. The Special Joint Committee’s report highlighted how judges and justices often fail to recuse themselves due to conflicts of interest.
SB 201 ensures that judges and justices are removed from cases when they have received significant campaign contributions from one of the parties in the case. A litigant can require a judge to recuse themselves if they have received a campaign contribution exceeding $700 for the Montana Supreme Court justice race or $400 for district judges by the other litigant in the last six years. SB 201 aims to ensure a litigant’s financial support will not create a conflict of interest.
SB 355 requires a judge to be disqualified from a case when one of the parties contributed more than $700 for the Supreme Court justice race or $400 for the district judge race. Under this bill, a judge is disqualified from presiding over a case where one of the entities contributed to the most recent or upcoming election.
HB 772 requires a judge or justice to disqualify themselves if a litigant made one or more contributions directly or indirectly that supported or opposed the judge or justice in the election within the previous six years. Disqualification is required if the litigant directly contributed a combined amount exceeding $350 for Supreme Court justice races or $200 for district judge races. The judge or justice is disqualified If the litigate indirectly contributed to a political committee of $37,500 for Supreme Court justice races or $1,000 for a district judge race. As of March 2nd, this bill was tabled in Committee.
Increasing Accountability & Oversight
Many judicial reforms are focused on re-establishing the separation of powers through greater accountability and oversight of the judiciary. These bills focus on increasing the Judicial Standards Commission’s (JSC) independence from the judicial branch, ensuring a client’s money is returned to the client and making its procedures public.
HB 326 seeks to rebalance the JSC, the oversight body for the Judiciary, to ensure greater independent oversight. Currently, three of the five members of the JSC are appointed by the Supreme Court. If passed, two members, both district judges, will be appointed and confirmed by the House Speaker and Senate, respectively. The third member, who must be an attorney, will be appointed by Montana’s Attorney General.
SB 313 aims to increase accountability and ensure transparent oversight of the judiciary. This bill requires the JSC to disclose certain proceedings publicly. After investigating judicial misconduct complaints, SB 313 requires the JSC to publicly and in writing disclose whether the complaint will be dismissed or move forward. If the complaint is moved forward, and the charges are true, the JSC must publicly recommend the necessary course of action to the Supreme Court.
SB 440 seeks to ensure interest collected via the interest on lawyer trust account (IOLTA) program is returned to the client. The money allocated by these IOLTA accounts is allocated to organizations that the Supreme Court and Bar Association support. The Montana Supreme Court has effectively taxed and spent over $8 million through IOLTA without any oversight by the legislature.