Keeping our judicial branch independent

Every student of government learns about the three independent branches of government.  Succinctly put, the legislative branch writes the law; the executive branch administers the law; and the judicial branch interprets the law.

The key word is “independent.”

I have been fortunate to work for both the legislative and judicial branches.  My fifteen years in the judicial branch – as a law clerk, mediator and court administrator – put me in the circle of a number of outstanding state district court judges including the Honorable Joe Gary, Larry Moran, Mike Salvagni, Mark Guenther, Holly Brown and John Brown.

My favorite observation, time and again, is how inspiring it is – and what a relief it is – for every person walking into “the people’s courtroom” usually in a state of apprehension or terror, to know he/she can count on a fair chance.  That person might be fearful of going to prison.  He/she might be desperately fighting for custody of children, or suffering an injury from a malfunctioning tool, or was never compensated for property damage.  That person doesn’t need to worry about judicial bias because he is a Republican or Democrat, man or woman, white or dark, old or young, rich or poor.  What that person wants is his day in court.  Fairness.  And if that person thinks about it, he will be comforted that this judge knows the law, is respected by peers, understands the business of personal rights, goes to great length to establish the facts, and will decide the case accordingly.

But this expectation of fairness and professional breadth, which we have long taken for granted,  is at risk – not just in Montana, it seems, but all over the world – as executive and legislative branches of government chafe at the independence of judges and are going to extremes to get them under their political thumbs.  It is difficult to pinpoint the origin of this sentiment and fathom its intensity, but it would appear to surface where the respect of diverse opinions is being replaced by authoritarian notions.  Authoritarianism is identified as the rejection of political plurality.  It is the use of strong central power to (reduce) the rule of law, separation of powers and democratic voting.

The Montana Republican legislators, now a super-majority meaning that they can ignore the minority, started tackling court independence two years ago.  They were successful, for example, in changing the way court vacancies are filled.  The process of independent screening of candidates by a citizens’ committee – screening for a candidate’s appropriate education, experience, track record, ethics, and disposition – was eliminated.  It is a partisan governor who now fills the vacancies with no requirement of outside vetting of qualifications.

Changing the independence of the judiciary can be done in subtle and insidious ways.  The independence gets slowly washed away, like blood from a thousand cuts, but nonetheless washed away.

More than 50 bill drafts were requested this session that hammer at the door of Montana’s independent judiciary – some statutory and others constitutional amendments.  Broadly stated, they seek to insert legislative and executive control by meddling with court ethics, elections, administration, and outright legislative control.

They would tinker with the injunctive power and declaratory judgments of courts, change how dollars are allocated to district courts, shift the nonpartisan nature of the judiciary, assert more administration over the court administrator, and more.

As complicated as they are, the proposals that pass the legislature’s one-party super-majority, instead of going automatically to the 2024 ballot, should be referred to an interim committee to be studied at greater depth than the 90-day session allows.

If the proposed changes to the judiciary are truly to better the judicial process for all citizens, and not just for concentrating partisan political power, then such a deliberative discussion should be welcomed by all.

Montanans are increasingly concerned about protecting the independence of their judiciary.  Such an in-depth review of each and every proposed change is warranted before it heads for the ballot of the people. I hope the Republican super majority will see it that way.