A BILL FOR AN ACT ENTITLED: "AN ACT revising laws for the judiciary; restricting a judge in a city court from practicing law in the city court; PROVIDING A DEFINITION FOR "MALFEASANCE" IN A JUDICIAL impeachment SETTING; requiring a judicial officer to disqualify the judicial officer in certain proceedings; providing for enforcement of complaints against judicial officers; providing rulemaking authority; AMENDING SECTION sections 2-2-136, 3-1-604, and 5-5-401, MCA; and PROVIDING AN IMMEDIATE EFFECTIVE DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 2-2-136, MCA, is amended to read:
"2-2-136. Enforcement for state officers, legislators, and state employees -- referral of complaint involving county attorney. (1) (a) A person alleging a violation of this part or [section 4] by a state officer, legislator, judicial officer, or state employee may file a complaint with the commissioner of political practices. The commissioner does not have jurisdiction for a complaint concerning a legislator if a legislative act is involved in the complaint. The commissioner also has jurisdiction over complaints against a county attorney that are referred by a local government review panel pursuant to 2-2-144 or filed by a person directly with the commissioner pursuant to 2-2-144(6). If a complaint is filed against the commissioner or another individual employed in the office of the commissioner, the complaint must be resolved in the manner provided for in 13-37-111(5).
(b) The commissioner may request additional information from the complainant or the person who is the subject of the complaint to make an initial determination of whether the complaint states a potential violation of this part.
(c) The commissioner may dismiss a complaint that is frivolous, does not state a potential violation of this part or [section 4], or does not contain sufficient allegations to enable the commissioner to determine whether the complaint states a potential violation of this part.
(d) When a complaint is filed, the commissioner may issue statements or respond to inquiries to confirm that a complaint has been filed, to identify against whom it has been filed, and to describe the procedural aspects and status of the case.
(2) (a) If the commissioner determines that the complaint states a potential violation of this part or [section 4], the commissioner shall hold an informal contested case hearing on the complaint as provided in Title 2, chapter 4, part 6. However, if the issues presented in a complaint have been addressed and decided in a prior decision and the commissioner determines that no additional factual development is necessary, the commissioner may issue a summary decision without holding an informal contested case hearing on the complaint.
(b) Except as provided in 2-3-203, an informal contested case proceeding must be open to the public. Except as provided in Title 2, chapter 6, part 10, documents submitted to the commissioner for the informal contested case proceeding are presumed to be public information.
(c) The commissioner shall issue a decision based on the record established before the commissioner. The decision issued after a hearing is public information open to inspection.
(3) (a) Except as provided in subsection (3)(b), if the commissioner determines that a violation of this part or [section 4] has occurred, the commissioner may impose an administrative penalty of not less than $50 or more than $1,000.
(b) If the commissioner determines that a violation of 2-2-121(4)(b) has occurred, the commissioner may impose an administrative penalty of not less than $500 or more than $10,000.
(c) If the violation was committed by a state employee, the commissioner may also recommend that the employing state agency discipline the employee. The employing entity of a state employee may take disciplinary action against an employee for a violation of this part, regardless of whether the commissioner makes a recommendation for discipline.
(d) The commissioner may assess the costs of the proceeding against the person bringing the charges if the commissioner determines that a violation did not occur or against the officer or employee if the commissioner determines that a violation did occur.
(4) A party may seek judicial review of the commissioner's decision, as provided in Title 2, chapter 4, part 7, after a hearing, a dismissal, or a summary decision issued pursuant to this section.
(5) The commissioner may adopt rules to carry out the responsibilities and duties assigned by this part and [section 4]."
Section 2. Section 3-1-604, MCA, is amended to read:
"3-1-604. Restrictions on municipal court judges and judges in city courts. A municipal court judge or a judge in a city court or a city court of record may not practice law before the judge's own municipal court or hold office in a political party during the judge's term of office."
Section 3. Section 5-5-401, MCA, is amended to read:
"5-5-401. Officers liable to impeachment. (1) The governor, executive officers, heads of state departments, and judicial officers are liable to impeachment for felonies and misdemeanors or malfeasance in office.
(2) As used in this section, "malfeasance", when applied to a judicial officer, includes but is not limited to exceeding the role of the judge as provided in 1-2-101, including inserting what has been omitted from or omitting what has been inserted in a judicial decision or order."
NEW SECTION. Section 4. Judicial conflict of interest -- recusal -- definition. (1) A judicial officer shall disqualify the judicial officer in any proceeding in which the judicial officer's impartiality might reasonably be questioned, including but not limited to the following circumstances:
(a) the judicial officer has a personal bias or prejudice concerning a party or a party's lawyer or personal knowledge of facts that are in dispute in the proceeding;
(b) the judicial officer knows that the judicial officer, the judicial officer's spouse or domestic partner, a person within the third degree of relationship to either the judicial officer or the judicial officer's spouse or domestic partner, or the spouse or domestic partner of a person within the third degree of relationship to either judicial officer or the judicial officer's spouse or domestic partner is:
(i) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
(ii) acting as a lawyer in the proceeding;
(iii) a person who has more than a de minimus interest that could be substantially affected by the proceeding; or
(iv) likely to be a material witness in the proceeding;
(c) the judicial officer knows that the judicial officer, individually or as a fiduciary, or the judicial officer's spouse or domestic partner, parent, child, or any other member of the judicial officer's family residing in the same household has an economic interest in the subject matter in a controversy or in a party to the proceeding;
(d) the judicial officer, while a judicial officer or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy;
(i) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during the association;
(ii) served in governmental employment and in that capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in that capacity an opinion concerning the merits of the particular matter in controversy;
(iii) was a material witness concerning the matter;
(iv) previously presided as a judicial officer over the matter in another court; or
(v) has received a campaign contribution from a lawyer or party to the proceeding.
(f) a lawyer or party to the proceeding has made a contribution to a political committee or other entity that engaged in independent expenditures that supported the judicial officer or opposed the judicial officer's opponent in an election;
(2) A judicial officer shall keep informed about the judicial officer's personal and fiduciary economic interests and make a reasonable effort to keep informed about the personal economic interests of the judicial officer's spouse or domestic partner and minor children residing in the judicial officer's household.
(3) A judicial officer subject to disqualification under this section, other than for bias or prejudice, may disclose in writing or on the record the basis of the judicial officer's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judicial officer and court personnel, whether to waive disqualification. If, following disclosure, the parties and lawyers agree, without participation by the judicial officer or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding.
(4) For the purposes of this section, "judicial officer" has the meaning provided in 1-1-202.
NEW SECTION. Section 5. Codification instruction. [Section 4] is intended to be codified as an integral part of Title 2, chapter 2, and the provisions of Title 2, chapter 2, apply to [section 4].
NEW SECTION. Section 6. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
NEW SECTION. Section 7. Effective date. [This act] is effective on passage and approval.