2007 Montana Legislature

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HOUSE JOINT RESOLUTION NO. 43

INTRODUCED BY D. RICE

BY REQUEST OF THE HOUSE JUDICIARY STANDING COMMITTEE

 

A JOINT RESOLUTION OF THE SENATE AND THE HOUSE OF REPRESENTATIVES OF THE STATE OF MONTANA REQUESTING THE LEGISLATIVE COUNCIL TO DESIGNATE AN APPROPRIATE INTERIM COMMITTEE OR DIRECT SUFFICIENT STAFF RESOURCES TO CONDUCT AN INTERIM STUDY OF THE JUDICIAL BRANCH OF STATE GOVERNMENT; AND REQUIRING THAT THE FINAL RESULTS OF THE STUDY BE REPORTED TO THE 61ST LEGISLATURE.

 

     WHEREAS, the Judicial Branch of state government is created by Article VII of the Montana Constitution; and

     WHEREAS, the Constitution gives to the Legislature certain powers concerning the Judicial Branch, such as the creation of Courts of Limited Jurisdiction, allows the Legislature to review and disapprove of judicially created rules of procedure in the two legislative sessions following adoption of those rules, and requires the Legislature to take certain actions concerning the Judicial Branch, such as the creation of judicial districts and the creation of the Judicial Standards Commission; and

     WHEREAS, it is the Legislature that provides funding to the State Supreme Court, to all District Courts, to Courts of Limited Jurisdiction, to administrative offices, such as the Office of the Supreme Court Administrator, to the various boards and commissions associated with the Judicial Branch, such as the Sentence Review Division and the Judicial Standards Commission, and to the State Law Library, and it falls to the Legislature to ensure that funds appropriated to Judicial Branch entities are spent for purposes generally supported by the electorate; and

     WHEREAS, litigation in the state court system recently disqualified an attempt to place on the ballot a constitutional initiative revising the process for removing judges and justices from office that, while found legally deficient in the manner in which signatures were collected on the initiative petitions, did collect the number of valid signatures necessary to place the initiative on the ballot; and

     WHEREAS, a major change to the method of funding the District Courts was enacted in 2001 by the Legislature, converting over 400 local government positions to state employee positions, and there are subjects of interest to the Legislature concerning the implementation of the funding changes and the operations of the District Courts that would benefit from interim Legislative review; and

     WHEREAS, the Montana Supreme Court manages 20 specialized boards and commissions that are attached to the Supreme Court, some of which are created by statute and others by court order, and the work of those boards and commissions is largely unknown to most residents of the state; and

     WHEREAS, the Montana Supreme Court's Canons of Judicial Ethics were adopted May 1, 1963, based upon a 1908 version that was little changed since 1908, the Canons have undergone only minor changes since 1963, and questions have arisen as to whether judges or judicial candidates have violated the Canons, but those questions have never been satisfactorily answered; and

     WHEREAS, the Montana Supreme Court has, in accordance with section 3-2-601, MCA, issued full written opinions on cases before the Court but in more recent times has adopted the practice of issuing only orders in some cases and there is some disagreement among the members of the Court as to whether the practice of issuing only orders should be followed by the Court; and

     WHEREAS, a legislative study of the organization and operation of the Judicial Branch of state government has not been conducted for at least 10 years.

 

NOW, THEREFORE, BE IT RESOLVED BY THE SENATE AND THE HOUSE OF REPRESENTATIVES OF THE STATE OF MONTANA:

     That the Legislative Council be requested to designate an appropriate interim committee, pursuant to section 5-5-217, MCA, or direct sufficient staff resources to conduct a review of the Judicial Branch of state government.

     BE IT FURTHER RESOLVED, that the study:

     (1) determine if there is adequate legislative oversight of the Judicial Branch of government and, if there is not, what level of oversight is appropriate and in what manner the oversight should be undertaken;

     (2) identify any public concerns with or public perceptions of the Judicial Branch of state government that need to be addressed through legislation or Constitutional amendment;

     (3) determine if the Montana Canons of Judicial Ethics are still appropriate nearly 100 years after their original adoption and if they are being appropriately applied by the Judicial Standards Commission and determine if the Code of Conduct for state employees applies to the Judicial Branch or should be made to apply to that Branch;

     (4) ascertain the extent to which the public understands the role and function of the Judicial Branch of state government;

     (5) determine if the application of the Montana Recall Act, as applied to the Judicial Branch, is necessary, appropriate, and correctly written and, if the Act is determined to be unnecessary, inappropriate, or incorrectly written, propose changes to correct the deficiencies identified;

     (6) assess whether the current processes for judicial recusal, disqualification, or impeachment are correctly written and functioning as they should and, if deficiencies are found to exist, propose remedies to correct those deficiencies;

     (7) examine the appropriateness and qualifications of candidates for judicial office and determine if candidates for judicial office are or should be covered by the Montana Canons of Judicial Ethics;

     (8) investigate whether judicial opinions are in all cases necessary to accompany judicial orders or judgments and, if not, under what circumstances the courts have stated that the lack of an opinion is justified and reasonable;

     (9) identify the extent to which reports of the Judicial Branch are disseminated and whether there should be more extensive distribution of judicial reports;

     (10) review the original and current processes for establishing the Judicial Qualifications Commission and assess if the Judicial Qualifications Commission is functioning in a manner that ensures it is achieving its purpose; and

     (11) determine if judicial opinions and orders involving specific statutes and administrative rules have the effect of changing those statutes or rules and, if so, whether the statutes and rules have subsequently been or should be amended to reflect the judicial opinion.

     BE IT FURTHER RESOLVED, that if the study is assigned to staff, any findings or conclusions be presented to and reviewed by an appropriate committee designated by the Legislative Council.

     BE IT FURTHER RESOLVED, that all aspects of the study, including presentation and review requirements, be concluded prior to September 15, 2008.

     BE IT FURTHER RESOLVED, that the final results of the study, including any findings, conclusions, comments, or recommendations of the appropriate committee, be reported to the 61st Legislature.

- END -

 


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