Unhappy With Judicial Standards Rules Process, GOP Votes Against Acknowledging Separate Audit
By Blair Miller for the Daily Montanan
The Republicans on the Legislative Audit Committee voted not to acknowledge receipt of a two-year audit of the Judicial Standards Commission (JSC) presented Wednesday by the Legislative Audit Division, but not because of issues with the audit itself.
Rather, they did so because of the way the proposed JSC rule changes – based in part on the audit’s results – were written.
As Audit Division Director Angus Maciver told the committee, the vote not to acknowledge the report meant little, as he had already publicly released it last week in accordance with the law.
“I don’t want to call it symbolic, but essentially that’s what it is,” Maciver said.
The committee composed of six Republicans and six Democrats had spent the day hearing audit reports from division staff on many of the state government’s agencies contained in the Single Audit Report.
The audit of the Judicial Standards Commission, which handles complaints and discipline for Montana judges, was the last item on the committee’s agenda but was a key one.
Audit Committee Chairperson Jason Ellsworth, the Hamilton Republican and Senate president, had last week grilled members of the commission on the proposed rule changes in a day-long meeting in the other committee he chairs, the Senate Select Committee on Judicial Oversight and Reform.
Legislators, especially Republicans, have been critical of what they say is a lack of transparency surrounding what information comes out of the commission about discipline for judges. Ellsworth formed the oversight committee because he has been unhappy with court decisions that struck down bills passed by the legislature.
Tina Chamberlain, a performance auditor with the Legislative Audit Division, spent nearly two years going through every complaint filed with the JSC against a judge over the past 11 years, 656 of them, to analyze how the commission functioned, how often it was doling out punishment for ethical violations, and whether the commission was transparent enough about its work.
The Daily Montanan reported the findings of auditors and their six recommendations last Friday.
Supreme Court Administrator Beth McLaughlin, representing the judicial branch because Chief Justice Mike McGrath had an excused absence, said Chamberlain did an “excellent job” and that the judiciary and JSC had agreed to the recommendations.
“Last summer, she lived in a dark office in our office and did nothing but look at complaints, and we appreciate her dedication to trying to get this right,” McLaughlin told the committee. “We very much appreciate her recommendations and what she came up with, and we concurred with all of them.”
Committee Told New Transparency Measures Unique to Montana
McLaughlin answered most of the questions from lawmakers about the report, the audit, and the proposed changes to the Judicial Standards Commission rules, which commissioners told lawmakers last week were being made in direct response to the audit and Senate Bill 313 from last year, for nearly an hour before Ellsworth launched back into arguments he made last week that he believes the commission is not following the law or constitution.
Lewis and Clark County District Court Judge Mike Menahan, who is the chairperson of the Judicial Standards Commission, said the rule changes are also being made in response to SB 313, which he told Ellsworth made Montana unique in that it is now the only state that must release the names of every judge against whom a complaint was filed, no matter how frivolous.
“Personally, I think, as a matter of policy, that is a terrible idea. There are reasons why judicial standards around the country have not adopted that. The judges are in a difficult position. They make difficult decisions, and they are not in a position to defend themselves when somebody files a complaint against them,” Menahan said. “But we’re complying because this is what the legislature passed, and the governor signed.”
Keith Fisher, a distinguished fellow at the National Judicial College and an expert on judicial ethics who consulted with the audit division on the report, said auditors did a “superb” job. He also commented on the transparency changes mandated by last year’s legislature.
Fisher explained that when a frivolous complaint against a judge is allowed to be publicized, people can use that to negatively affect the reputation of the judge and the entire judiciary. He said complaints found to have merit should be publicized to be sure “all laundry gets aired.”
“But I’m not aware of any other state in which the mere submissions of a complaint would trigger any kind of public disclosure, because as we’ve said, in most states, over 90% of the complaints that are filed lack any merit whatsoever,” Fisher said. “So, it’s kind of unfair, as well as injurious, to the institution of the judiciary in your state, and it undermines its ability and the ability of the judges to perform the functions that are so vital to that branch of government.”
Republicans Vote to Not Acknowledge Report Because of JSC Rule Change Process
Representative Emma Kerr-Carpenter, D-Billings, made the standard motion that the committee had agreed upon all day for the rest of the audits: “I move that the committee acknowledge receipt of the audit report and that it was reviewed by the committee, filed, and that copies of the audit report be distributed in accordance with law.”
Ellsworth made an alternate motion, which he said was non-debatable: “We’re doing the opposite, which is we’re not accepting it and not acknowledging it,” Ellsworth explained.
Kerr-Carpenter asked several times for a parliamentarian to clarify what such a motion would mean, which Ellsworth attempted to shut down, saying discussing what the motion even meant would constitute debate.
Maciver eventually stepped in and recommended the committee vote on the standard motion, explaining that it doesn’t mean the committee accepts the report because he already issued the report last week.
“Just to be clear for everybody, a legislative committee cannot countermand state law. And in fact, the Legislative Audit Act has already required me to release this report, and it has been released to the relevant bodies.”
Senate Minority Leader Pat Flowers, D-Belgrade, asked Ellsworth “why we’re going down this road.” Ellsworth said he was still upset that a court attorney wrote the rule changes for the Judicial Standards Commission and that voting not to receive the report was “a way for us to go, ‘We’re not happy.’”
“So that’s the purpose; it’s to show a level of dissatisfaction. It is not anything other than that, because guess what? It’s already been released. It is public. We can’t unwind that clock,” Ellsworth said.
Maciver said he’d like it “on the record” that the proposed rules changes were “distinct” from the audit report from his staff.
Representative Fiona Nave, R-Columbus, said she was not sure the origin of the JSC rules was something the auditors could do anything about.
“I am concerned that a vote on this motion, mostly it’s going to disparage the auditors who did a good job, and it’s not going to reflect where you want it to,” she said. “I’m wondering if there’s another way that we could do this instead.”
Flowers said he felt that no one had asked Audit Division staff to look at the Judicial Standards Commission’s jurisdiction.
“I don’t think that we should criticize our own staff by not approving this or in any way kind of besmirch their work because there’s a disagreement over constitutional interpretation,” Flowers said.
Ellsworth said that was not how he wanted audit staff to feel and said he was instead offering the standard motion as well to receive the report.
“If that’s how people are perceiving this, then let’s just make the motion as we do in our standard, and then I can come up with something after the fact,” he said. “…Senator Flowers, I think you make a valid point. We certainly don’t want our staff to think their work was bad, because their work was actually what got our eyes open, right? Or at least mine.”
The committee took a roll call vote in which all Republicans voted against the standard motion and all Democrats voted for it, meaning the motion failed in the 6-6 tie and the committee did not acknowledge receipt of the audit report.
So juvenile. Not acknowledging receipt of the audit report. The legislature needs to stop attacking the judiciary. Checks and balances are vital to a healthy government.