VII.11. Removal and Discipline Section 11. Removal and discipline.

(1) The legislature shall create a judicial standards commission consisting of five persons and provide for the appointment thereto of two district judges, one attorney, and two citizens who are neither judges nor attorneys.

(2) The commission shall investigate complaints, and make rules implementing this section. It may subpoena witnesses and documents.

(3) Upon recommendation of the commission, the supreme court may:

(a) Retire any justice or judge for disability that seriously interferes with the performance of his duties and is or may become permanent; or

(b) Censure, suspend, or remove any justice or judge for willful misconduct in office, willful and persistent failure to perform his duties, violation of canons of judicial ethics adopted by the supreme court of the state of Montana, or habitual intemperance.

(4) The proceedings of the commission are confidential except as provided by statute.

History

Sources

Section 11 is an entirely new section. It is modeled with some modification from the New Mexico Constitutional provision adopted by the people of that state in 1967. Notably, Section 11 provides for a commission of five persons compared the thirteen in the New Mexico Constitution. Article VI Section 32 of the New Mexico Constitution provides:

“There is created the "judicial standards commission", consisting of two justices or judges, one magistrate, one municipal judge and two lawyers selected as may be provided by law to serve for terms of four years, and seven citizens, none of whom is a justice, judge or magistrate of any court or licensed to practice law in this state, who shall be appointed by the governor for five-year staggered terms as may be provided by law. If a position on the commission becomes vacant for any reason, the successor shall be selected by the original appointing authority in the same manner as the original appointment was made and shall serve for the remainder of the term vacated. No act of the commission is valid unless concurred in by a majority of its members. The commission shall select one of the members appointed by the governor to serve as chair. In accordance with this section, any justice, judge or magistrate of any court may be disciplined or removed for willful misconduct in office, persistent failure or inability to perform a judge's duties, or habitual intemperance, or may be retired for disability seriously interfering with the performance of the justice's, judge's or magistrate's duties that is, or is likely to become, of a permanent character. The commission may, after investigation it deems necessary, order a hearing to be held before it concerning the discipline, removal or retirement of a justice, judge or magistrate, or the commission may appoint three masters who are justices or judges of courts of record to hear and take evidence in the matter and to report their findings to the commission. After hearing or after considering the record and the findings and report of the masters, if the commission finds good cause, it shall recommend to the supreme court the discipline, removal or retirement of the justice, judge or magistrate. The supreme court shall review the record of the proceedings on the law and facts and may permit the introduction of additional evidence, and it shall order the discipline, removal or retirement as it finds just and proper or wholly reject the recommendation. Upon an order for retirement, any justice, judge or magistrate participating in a statutory retirement program shall be retired with the same rights as if the justice, judge or magistrate had retired pursuant to the retirement program. Upon an order for removal, the justice, judge or magistrate shall thereby be removed from office, and the justice's, judge's or magistrate's salary shall cease from the date of the order. All papers filed with the commission or its masters, and proceedings before the commission or its masters, are confidential. The filing of papers and giving of testimony before the commission or its masters is privileged in any action for defamation, except that the record filed by the commission in the supreme court continues privileged but, upon its filing, loses its confidential character, and a writing that was privileged prior to its filing with the commission or its masters does not lose its privilege by the filing. The commission shall promulgate regulations establishing procedures for hearings under this section. No justice, judge or magistrate who is a member of the commission or supreme court shall participate in any proceeding involving the justice's, judge's or magistrate's own discipline, removal or retirement. This section is alternative to, and cumulative with, the removal of justices, judges and magistrates by impeachment and the original superintending control of the supreme court.”

Drafting

Delegate Proposals

Three Delegate Proposals mentioned removal of judges:

Delegate Proposal 7 (Berthelson and Pemberton)

Section 13 subsection 2 of Delegate Proposal 7 addressed removal. The proposal provided “[a] research and qualifications committee. A majority of the Committee shall be members of the judiciary and bar and the remainder shall be members of the public. Members of this committee may also be members of the nominating committee. The committee shall have the power to investigate, upon complaint by any citizen or on its own motion, charges which would be the basis for retirement, censure, or removal of a justice, judge or magistrate. For this purpose, it shall be authorized to conduct hearings and subpoena witnesses and documents. Such proceedings shall be confidential. Upon finding charges to be well founded, the Committee shall file a formal complaint before the Supreme Court. The Supreme Court shall hear such a complaint, and if it is substantiated may retire, censure, or remove from office any justice, judge, or magistrate, If the complaint be against a justice the court shall call in a district judge as provided in section 6 of this article.”

Delegate Proposal 44 (Loendorf)

Section 7 of Delegate Proposal 44 addressed removal. It provided “The justices of the Supreme court and all other judges or magistrates shall have such qualification, and shall be selected or appointed, and shall serve or be removed, in such manner and under such conditions as the legislative assembly shall provide by law.”

Delegate Proposal 92 (Arness and Blend)

Both Section 3 and section 5 of Delegate Proposal 92 address removal. Section 3 provided “The judges of the court of appeals shall be subject to the same provisions of law concerning disqualification as shall the judges of the inferior court

Committee Proposals

Majority Proposal

Section 19. Removal and Discipline of Judges. A Judicial Standards Commission is hereby created to consist of five persons, three of whom shall be judges. The three judges shall be selected by the justices and judges of the supreme court and district courts. Not more than one of the said three judges may be a member of the supreme court. The remaining two persons shall be citizens shall be citizens of the state of Montana, selected and appointed by the governor. Neither of Said two persons shall be a justice, judge or magistrate of any court or licensed to practice law in this legislative departments of the state of Montana. The original three judges shall be appointed for terms of one, three and five years respectively and the original gubernatorial appointees shall serve for two and four years respectively. Thereafter each commissioner shall serve for a term of five years. If a position in the commission becomes vacant for any reason, the successor shall be selected by the original appointing authority in the same manner as the original appointment was made and shall serve the remainder of the term vacated. No act of the commission is valid unless concurred in by a majority of its members. The commission shall select one of its members to serve as chairman. In accordance with this selection, any justice, judge or magistrate of any court may be disciplined or removed for willful misconduct in office or willful and persistent failure to perform his duties or habitual intemperance, or he may be retired for disability seriously interfering with the performance of his duties which is, or likely to become, of a permanent character. The commission may, after investigation it deems necessary, order a hearing to be held before it concerning the discipline, removal or retirement of 3 justice, a justice, judge or magistrate, or the commission may appoint three masters who are justices or judges of courts of record to hear and take evidence in the matter and to report their findings to the commission. After hearing or after considering the record and the findings and report of the masters, if the commissions finds good cause, it shall recommend to the supreme court the discipline, removal or retirement of the justice, judge or magistrate. The supreme court shall review the record of the proceedings on the law and facts and may permit the introduction of additional evidence, and it shall order the discipline, removal or retirement as it finds just and proper or wholly reject the recommendation. Upon an order for his retirement, any justice, judge or magistrate participating in a statutory retirement program shall be retired with the same rights as if he had retired pursuant to the retirement program. Upon an order for removal, the justice, judge or magistrate shall thereby be removed from office, and his salary shall cease from the date of the order. The Judicial Standards Commission shall make rules implementing this section and providing confidentiality of proceedings. Comments

Section 19 is an entirely new section. It is modeled with some modification from the New Mexico Constitutional provision adopted by the people of that state in 1967. We have modified the composition of the Judicial Standards Commission to conform, in our opinion, to the needs of Montana. The balance of the article is drafted from the provisions of the New Mexico Constitution. We have examined the Alaska, Puerto Rico, Hawaii, California, Colorado, Idaho, Virginia and Kansas Constitutions as well as New Mexico, and have determined that the New Mexico Provision is more in keeping with the needs of Montana than those provisions appearing in other constitutions. It is the purpose of this section to prove for the situation, short of impeachment, where a judge because of age or other disability or bad habits becomes derelict in the performance of his duties. Order this provision his retirement or censure or removal from office can be accomplished without an undue amount of bad publicity to the judicial system or embarrassment to anyone concerned. In the event removal becomes necessary then the commission makes its recommendation to the supreme court who will look into the matter and may order a hearing in the matter, and then make such disposition of the case as may be proper. 

Minority Proposal

Section 13. Removal and Discipline of Judges and Lawyers. There is created a judicial standards commission consisting of three judges, selected by the district judges, of which not more than one can be a member of the supreme court; two members of the Montana Bar, and two citizens who do not hold any public office of the state of Montana or any office of a political party, appointed by the governor. Each vacancy on the commission shall be filled in the same manner as the original appointment was made and the appointee shall serve for the remainder of the term vacated. No act of the commission is valid unless concurred in by a majority of its members. The commission shall select one of its members to serve as chairman. Its proceedings shall be confidential. The commission shall have the power to investigate, including power to subpoena witnesses and documents, upon complaint by any citizen or on its own motion, charges which could be the basis for retirement, censure or removal of any justice or judge or for the discipline, censure, suspension or disbarment of any practicing lawyer in the state of montana. Pon finding charges to be well founded the commission shall file a formal complaint before the supreme court. The supreme court shall hear such complaints, and if substantiated may retire, censure or remove any justice or judge or discipline, censure, suspend or disbar any practiciing lawyer. If the complaint is against a justice, the court shall call in a district judge as provided in section 3 of this article. Comments

It may seem contradictory to go into such detail in this section, but the minority feels that the seeming current distrust of the legal profession in general and the courts in particula warranted this detail, in an effort to [allay?] this distrust and to give adequate avenue for duress by the public. In cases where censure or removal of a justice or judge is indicated, such action can be taken, without the trauma caused by a public proceeding. At the same time it makes possible disciplinary action for reasons that are not of much magnitude as to warrant an impeachment proceeding. 

In addition the minority feels that it is essential that the public be given the opportunity for redress of grievances against any practicing attorney. We feel that this section will do much to keep the legal profession at the high caliber that it must maintain if it is to be accorded the respect necessary to have the judicial system which we think Montana ought to have. Section 3 Supreme Court Organization [In Relevant Part] District judges shall be substituted for the chief justice or the justices in the event of disqualification or disability, in any cause, and the opinion of the district judge sitting with the supreme court shall have the same effect as an opinion of a justice of the supreme court. Comments

[In Relevant Part] Similarly, in a shorter paragraph we have provided for the seating of a district judge in the event of a disqualification of a supreme court Justice. 

Style and Drafting Committee

The style and drafting committee moved section 10 to become section 11. 1971–1972 Montana Constitutional Convention vol. II, 915 (1979).

The style and drafting committee commented on the section 11 changes as follows:

"Subsection (2) was redrafted to differentiate the requirements laid upon the commission and its discretionary power to subpoena. Other changes in the section clarify." 1971–1972 Montana Constitutional Convention vol. II, 922-23 (1979).

Floor Debate

Delegate Aronow offered an amendment to section 10 which was later adopted. Aronow's amendment stated:

“Section Ten. Removal and Discipline of Judges. Subsection one: The legislature shall create a judicial standards commission and provide for the appointment of three district judges, one attorney, and one citizen who is neither a judge nor an attorney. Subsection two: The commission shall investigate complaints, subpoena witnesses and documents, and make rules implementing this section and providing for confidentiality of proceedings. Subsection three: Upon recommendation of the commission, the supreme court may: (a) retire any justice or judge for disability that seriously interferes with the performance of his duties and is or may become permanent; or (b) Censure, suspend or remove any justice or judge for willful misconduct in office, willful and persistent failure to perform his duties, or habitual intemperance” 1971–1972 Montana Constitutional Convention vol. X, 3470-3471 (1979).

Amendments

In 1980, a constitutional amendment changed section 11, subsection (2) to read “The commission shall investigate complaints, make rules implementing this section and keep its proceedings confidential. It may subpoena witnesses and documents. Mont. Const. art. VII, § 11 (amended 1980) (emphasis added).

In 1984, the electorate amended subsection (3)(b) to include: “violation of canons of judicial ethics adopted by the supreme court of the state of Montana.” Mont. Const.. art. VII, § 11(3)(b) (amended 1984). Adoption

Adoption

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Interpretation

The Montana Supreme court found that the constitution limited the commission's power to act in matters of judicial discipline to only those instances specifically enumerated. State ex rel Shea v. Judicial Standards Commission 198 Mont. 15, 643 P.2d 210 (1982).

Commentary

Jean M. Bowman, “The Judicial Article: What Went Wrong?,” 51 Mont. L. Rev. (1990).