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Montana law already provides three avenues for citizen participation in the discipline and removal of judges who do not do their jobs.Elections All judges subject to CI-98 already face elections to obtain or continue in their positions.
Montana Constitution, Article VIISection 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.
3-1-1101. Creation and composition of commission. There is created a judicial standards commission consisting of five members as follows:
(1) two district court judges from different judicial districts, elected by the district judges under an elective procedure initiated by and conducted by the supreme court, and their election must be certified by the chief justice of the supreme court, which for the purpose of this part is considered as an appointment;
(2) one attorney who has practiced law in this state for at least 10 years, appointed by the supreme court;
(3) two citizens who are not attorneys or judges of any court, active or retired, appointed by the governor.
3-1-1106. Investigation of judicial officers -- complaint -- hearing -- recommendations. (1) (a) The commission, upon the filing of a written complaint by any citizen of the state, may initiate an investigation of any judicial officer in the state to determine if there are grounds for conducting additional proceedings before the commission. If the commission's investigation indicates that additional proceedings before the commission may be justified, the commission shall require the citizen who filed the original written complaint to sign a verified written complaint before conducting such additional proceedings.
(b) The commission shall give the judicial officer written notice of the citizen's complaint and of the initiation of an investigation. Notice must also be given if a verified written complaint is filed and must include the charges made, the grounds for the charges, and a statement that the judicial officer may file an answer. The notice must be signed by the commission.
(2) The commission, after such investigation as it considers necessary and upon a finding of good cause, may:
(a) order a hearing to be held before it concerning the censure, suspension, removal, or retirement of a judicial officer;
(b) confidentially advise the judicial officer and the supreme court, in writing, that the complaint will be dismissed if the judicial officer files with the commission a letter stating that he will take corrective action satisfactory to the commission; or
(c) request the supreme court to appoint one or more special masters who are judges of courts of record to hear and take evidence and to report to the commission.
(3) If after hearing or after considering the record and report of the masters the commission finds the charges true, it shall recommend to the supreme court the censure, suspension, removal, or disability retirement of the judicial officer. (emphasis added)Montana Statutes, Sections 2-16-601, et seq,
2-16-601. Short title. This part shall be cited as the "Montana Recall Act".
2-16-602. Definitions. As used in this part, the following definitions apply:
(1) "Political subdivision" means a local government unit including but not limited to a county, city, or town established under authority of Article XI, section 1, of The Constitution of the State of Montana or a school district.
(2) "Public office" means a position of duty, trust, or authority created by the constitution or by the legislature or by a political subdivision through authority conferred by the constitution or the legislature that meets the following criteria:
(a) the position must possess a delegation of a portion of the sovereign power of government to be exercised for the benefit of the public;
(b) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the constitution, the legislature, or by a political subdivision through legislative authority;
(c) the duties must be performed independently and without control of a superior power other than the law, unless the legislature has created the position and placed it under the general control of a superior office or body; and
(d) the position must have some permanency and continuity and not be only temporary or occasional.
(3) "State-district" means a public service commission district, a legislative representative or senatorial district, or a judicial district.
2-16-603. Officers subject to recall -- grounds for recall. (1) Every person holding a public office of the state or any of its political subdivisions, either by election or appointment, is subject to recall from such office.
(2) A public officer holding an elective office may be recalled by the qualified electors entitled to vote for his successor. A public officer holding an appointive office may be recalled by the qualified electors entitled to vote for the successor or successors of the elective officer or officers who have the authority to appoint a person to that position.
(3) Physical or mental lack of fitness, incompetence, violation of his oath of office, official misconduct, or conviction of a felony offense enumerated in Title 45 is the only basis for recall. No person may be recalled for performing a mandatory duty of the office he holds or for not performing any act that, if performed, would subject him to prosecution for official misconduct.
2-16-612. Persons qualified to petition -- penalty for false signatures. (1) Every person who is a qualified elector of this state may sign a petition for recall of a state officer.
(2) Every person who is a qualified elector of a district of the state from which a state-district officer is elected may sign a petition for recall of a state-district officer of that district or appointed by an officer or the officers of that election district.
(3) Every person who is a qualified elector of a political subdivision of this state may sign a petition for recall of an officer of that political subdivision. However, if a political subdivision is divided into election districts, a person must be a qualified elector in the election district to be eligible to sign a petition to recall an officer elected from that election district.
(4) Any person signing any name other than his own to any petition or knowingly signing his name more than once for the recall or who is not at the time of the signing a qualified elector or any person who knowingly makes a false entry upon an affidavit required in connection with the filing of a petition for the recall of an officer is guilty of unsworn falsification or tampering with public records or information, as appropriate, and is punishable as provided in 45-7-203 or 45-7-208, as applicable.
2-16-613. Limitations on recall petitions. (1) A recall petition may not name more than one officer to be recalled.
(2) No recall petition against an officer may be approved for circulation, as required in 2-16-617(3), until he has held office for 2 months.
(3) No recall petition may be filed against an officer for whom a recall election has been held for a period of 2 years during his term of office unless the state or political subdivision or subdivisions financing such recall election is first reimbursed for all expenses of the preceding recall election.
Why then CI-98? We already have provisions for recalling, disciplining and removing judges for failing to do their jobs, and elections for general voter displeasure. The only purpose for CI-98 is to threaten or remove judges, before their terms are up, for doing their jobs - making tough decisions in accordance with the law and upholding our Constitution.
