MTSUPCO: No More Rules or Pesky Ethics?

For more than half a century since the adoption of the Montana Constitution, candidates for judicial office have run as nonpartisans.

The Montana Legislature is considering legislation, SB 42, that would upend that practice and require that judicial candidates run as a member of a political party. It also would allow political parties to endorse and contribute to judicial candidates.

We discourage the Legislature from adopting this dramatic change to the election of judges thereby requiring them to run for office as any other partisan candidate for the executive or legislative branch. The Judiciary plays a separate and distinct role in the separation of powers.

Unlike Executive or Legislative officials, judges do not make decisions based on the views of a constituency. Rather, Judges make decisions based on the Constitution, the laws and the facts of each case. Accordingly, judges must be free from political pressure. The Judicial branch has its own code of ethics. The Montana Code of Judicial Conduct is designed to assure that “an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society.” To that end, Rule 4.1 of the Code states that a judge or judicial candidate shall not identify as a political candidate nor seek and accept political endorsements.

SB 42 requires candidates to engage in what, up until now, has been considered unseemly and unethical campaigning.

SB 42 notes that the lack of party designation allows for “excessive influence of wealthy special interest groups.” To the extent this is a problem, Montana already has limits on campaign contributions to judicial candidates. SB 42 does nothing to address the influence of special interest groups, rather, ironically, it exacerbates the concern by positioning political parties such that they can systematically wield “excessive influence” over a judge.

Human nature being what it is, judges have their own set of biases and predilections. Our system of nonpartisan elections ethically requires judges and judicial candidates to put blinders on and rule based on the law. Senate Bill 42 does just the opposite – it requires the judicial candidate to cast aside those lofty aspirations of integrity and impartiality, take the blinders off and look to party officials for direction knowing that the parties have positions on everything under the sun. If elected to the court under SB 42, the judge need not even read the legal briefs, as long as he or she has the party platform handy.

It must be noted that SB 42, in the purported interests of “transparency,” decimates the Code of Ethics. It offers nothing in its stead. No more rules or pesky ethics.

Aside from the “numerous comments from constituents” noted in SB 42, there is no outcry for casting aside the nonpartisan model. Rather, a survey has shown that Montanans prefer to have judges elected as nonpartisans. Montanans have nothing to gain by requiring that judges run as partisans subjecting themselves to pressure to tow the party line or risk losing party support in the next election.

The obvious purpose of SB 42 is not to inform the voter, but to confer power on political parties to influence the judiciary. Montanans have long valued the independence of their judiciary. Let’s keep it that way.”

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Hon. William Leaphart, Justice Mont. Supreme Court (Retired)

Hon. James Regnier, Justice Mont. Supreme Court (Retired)

Hon. John Warner, Justice Mont. Supreme Court (Retired)

Hon. Terry N. Trieweiler, Justice Mont. Supreme Court (Retired)

Hon. Patricia Cotter, Justice Mont. Supreme Court (Retired)

Hon. Michael Wheat, Justice Mont. Supreme Court (Retired)

Hon. Ed McLean, Judge, 4th Judicial District, Missoula (Retired)

Hon, Greg Todd, Judge 13th Judicial District, Billings (Retired)