There’s no doubt that Montana’s Supreme Court has some egg on its face from the last couple years. But calls for reform to protect the impartiality and integrity of the judiciary have been caught up in the usual toxic partisanship rather than the full and reasoned dialogue the situation deserves. Montana leaders should set aside the partisan mudslinging for a second and fairly consider the very real, significant issues with Montana’s judiciary raised by legislative Republicans, as well as the potential reforms outlined for consideration.
Much Ado About The Judiciary
Much Ado About The Judiciary
"Ensuring the independence, impartiality and integrity of the judiciary should be a Montana issue, not a partisan issue."
During the 2021 legislative session it was revealed that Montana justices and judges were routinely polled, and often opined, about the merits of proposed legislation to lobbyists. Legislative Republicans immediately decried the practice as unethical “pre-judgement” of legislation, concerned that the practice compromised the impartiality of judges who may hear court cases challenging the legality of legislation. Reasonable spectators agreed that “pre-judgement” of legislation possibly bound for courtrooms was not a good look for Montana’s judicial branch of government, creating a potential conflict of interest that is antithetical to the American system of fair and impartial courts.
As predicted, when “pre-judged” bills from the 2021 Legislature eventually did land in courtrooms, several justices involved were forced to recuse themselves for disqualifying conflicts of interest. Even more troubling, according to the legislature, are the justices who simply refused to recuse themselves and others who executed their recusals inconsistently.
In response to the situation, the Legislature created a special joint select committee on judicial accountability and transparency to investigate the issue. Last month the Republican majority on the select committee released its final report outlining issues and possible solutions. The majority of the report honed in on Montana’s lack of public accountability for judicial disqualifications. The authors of the report floated several ideas for possible solutions, among them:
• Automatically disqualify judges who have expressed opinions on legislation from hearing cases about said legislation
• Clearly define what constitutes a conflict of interest for a judge or justice and mandate disqualification/recusal from cases where a conflict of interest is present
• Amend Montana’s ethics statutes to be clearer on judicial lobbying activities and recusal requirements
Given that national judicial ethics standards typically call for a judge to be disqualified if the judge’s “impartiality might reasonably be questioned,” increasing accountability for judicial recusals is a reasonable proposition. But Montana’s official code of judicial conduct lets justices decide for themselves whether they have a disqualifying conflict of interest in a case. The only real oversight over disqualifications is the judicial standards commission, which is controlled by the judicial branch. This is a system ripe for abuse.
Other states have adopted heightened legislative standards for judicial recusals, so increased accountability in law is nothing new, nor solely a Republican effort. Left-leaning policy organizations like the Brennan Center, for example, have recommended that state legislatures increase oversight of judicial recusals by further defining what qualifies as a conflict of interest and creating a wholly independent commission to adjudicate disqualification motions.
For their part, even members of the Montana judiciary acknowledge some of the issues raised by the Republicans and plan to implement some changes on their own. Legislative Democrats, however, characterized the select committee’s report as an “unseemly” “outrageous attack” on the judiciary.
Montanans should be wary of this sort of partisanship seeping into this discussion of judicial reform. Ensuring the independence, impartiality and integrity of the judiciary should be a Montana issue, not a partisan issue.
The column originally appeared in Lee Newspapers.