Who Watches the Watchmen? The State of Judicial Accountability in Montana
"Most concerning is the near complete lack of functional oversight and accountability by the Judicial Standards Commission (JSC), the official supervisory body for the judicial branch."
The Special Joint Select Committee on Judicial Accountability and Transparency recently released a shocking final report on judicial accountability. The report outlines several concerns with the judiciary, from deleting public records to commingling official government functions with the advocacy interests of the judiciary’s private association. Most concerning is the near complete lack of functional oversight and accountability by the Judicial Standards Commission (JSC), the official supervisory body for the judicial branch.
The structure of Montana’s JSC is made up of five members. These five members include two district judges, one attorney and two non-lawyers. The judicial branch decides three of the five members, while the Governor chooses the two other members. This makes the judiciary the majority stakeholder in its own supervisory body, a dynamic that can be easily abused.
Worse still, the JSC can only recommend public actions like censure, suspension or removal to the Supreme Court. With such a structure, it’s little wonder that one attorney said that “[the JSC is] where ethics complaints go to die.”
For the JSC to become truly independent, it must be structurally reformed. Below is a quick overview of California, Texas and Utah’s independent review commissions.
California’s JSC is called the Commission on Judicial Performance (CJP). Their Constitution requires their members to be appointed by multiple government stakeholders. Of the eleven-member commission, four members are appointed by the governor, two non-lawyers appointed by the Senate Committee on Rules and two are appointed by the Speaker of the Assembly. Of the Governor’s four appointees, two must be lawyers. The judiciary appoints five other members of the commission from varying court levels. The CJP can publicly admonish, censure, retire or remove a judge after an investigation. Such actions are subject to Supreme Court review if the judge seeks to challenge the CJP’s findings.
The Texas Commission on Judicial Conduct (TxCJC) is a thirteen-member body. Three different stakeholders appoint members. The Governor appoints five non-lawyers, and the State Bar Association appoints two lawyers. The Texas Supreme Court appoints six judges, one from each court level. Unlike California, Texas does limit the TxCJC’s public sanctions. The TxCJC can publicly admonish, warn, reprimand or censure, subject only to review by the Supreme Court. However, the TxCJC can only recommend the judge’s removal or retirement to the Supreme Court.
Finally, look at Utah’s Judicial Conduct Commission (UtJCC). Their eleven-member commission requires four members of the legislature, four members appointed by Utah’s Supreme Court, and three non-lawyers appointed by the Governor. Each house of the legislature appoints two members and both parties get equal representation. Of the three independent commissions, Utah provides the least amount of independence to publicly sanction. Like the JSC, the UtJCC can only recommend reprimand, censure, suspension, removal or retirement to the Supreme Court, who has the ultimate say.
Above are three existing alternative structures to Montana’s current structure for the judicial standards commission. Surprisingly enough, California provides its commission with the most significant level of independence and latitude. There can be much debate about how much power the commission should have to publicly sanction judges, but what is overwhelmingly clear is that none of these states’ judiciary has the authority to appoint the majority of the members responsible for its own oversight, except Montana.