Bill Summary – FastDemocracy

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69th Legislature 2025                                                                                           LC0527.1
                                     _____________ BILL NO. _____________
                   INTRODUCED BY _________________________________________________
       BY REQUEST OF THE SENATE SELECT COMMITTEE ON JUDICIAL OVERSIGHT AND REFORM
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  A BILL FOR AN ACT ENTITLED: “ESTABLISHING A MONTANA JUDICIAL PERFORMANCE EVALUATION
  SYSTEM; CREATING A JUDICIAL PERFORMANCE EVALUATION COMMISSION AND PROVIDING FOR
  DUTIES AND MEMBERS; ALLOCATING THE COMMISSION TO THE DEPARTMENT OF JUSTICE FOR
  ADMINISTRATIVE PURPOSES; REQUIRING THE COMMISSION TO PERFORM EVALUATIONS FOR
  DISTRICT COURT JUDGES AND SUPREME COURT JUSTICES; REQUIRING THE COMMISSION TO
  CONTRACT FOR A SURVEY; REQUIRING THE SECRETARY OF STATE TO PUBLISH A JUDICIAL
  EVALUATION INFORMATION PAMPHLET; PROVIDING THE COMMISSION AND THE SECRETARY OF
  STATE RULEMAKING AUTHORITY; PROVIDING RULEMAKING AUTHORITY; AND AMENDING SECTIONS
  3-1-1124, 13-13-214, 13-27-401, AND 13-27-410, MCA.”
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          WHEREAS, the Montana Legislature finds that it is necessary to provide a comprehensive evaluation
  system of judicial performance to provide Montana citizens with fair, responsible, and useful information about
  the judicial performance of supreme court justices and district court judges; and
          WHEREAS, providing information to the people of Montana regarding the performance of judges and
  justices is a matter of public interest and statewide concern; and
          WHEREAS, the information provided by a comprehensive evaluation system of judicial performance
  will provide judges and justices with useful information about their own performances; and
          WHEREAS, the Montana Legislature has decided to establish an independent office on judicial
  performance evaluation with authority to implement an evaluation process and conduct and publicize
  evaluations.
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          NEW SECTION. Section 1.        Judicial performance evaluation commission -- appointment --
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  members -- rulemaking. (1) There is a judicial performance evaluation commission. The commission consists
  of 11 members as follows:
          (a)      three members appointed by the president of the senate, including one retired district court
  judge but no other member currently or formerly licensed to practice law in Montana;
          (b)      three members appointed by the speaker of the house of representatives, including only one
  member currently or formerly licensed to practice law in Montana;
          (c)      three members appointed by the governor, including only one member currently or formerly
  licensed to practice law in Montana; and
          (d)      two members appointed by the members of the supreme court, including only one member
  currently or formerly licensed to practice law in Montana.
          (2)      A person currently serving as a legislator or a judge may not be appointed to the commission.
          (3)      (a) A commission member appointed under subsection (1) serves a 4-year term.
          (b)      A member may not serve more than three consecutive terms.
          (c)      When a vacancy arises in the commission, the replacement must be appointed for the
  unexpired term by the same appointing authority that appointed the member whose departure created the
  vacancy.
          (4)      The commission shall elect a presiding officer from among its members.
          (5)      The commission shall provide recommendations to the legislature regarding the commission's
  budget and if the judicial performance evaluation program should be expanded to other courts.
          (6)      The commission may adopt rules to implement the provisions of [sections 4 through 8].
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          NEW SECTION. Section 2.        Judicial performance evaluation commission -- salary and expenses
  -- staff -- administrative attachment. (1) A judicial performance evaluation commission member may not
  receive compensation or benefits for the member's service. A commission member may receive per diem and
  travel expenses as provided in Title 2, chapter 18, part 5.
          (2)      The commission shall employ an executive director and may employ additional staff as
  necessary within budgetary constraints.
          (3)      The commission is allocated to the department of justice for administrative purposes only as
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  prescribed in 2-15-121, except that the provisions of 2-15-121(2)(d) do not apply.
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           NEW SECTION. Section 3.           Definitions. As used in [sections 3 through 8], unless the context
  requires otherwise, the following definitions apply:
           (1)      "Bias" means prejudice for or against a party or issue arising for reasons other than the facts of
  a case or the law governing a case. Bias in a judge may be inferred from comments, facial expressions, prior
  activity, distortion of the law to obtain a particular result, or a conflict of interest.
           (2)      "Commission" means the judicial performance evaluation commission established in [section
  1].
           (3)      A "conflict of interest" arises when a judge has a financial, political, or other interest that
  arguably creates bias.
           (4)      "Court administrator" means the position established in 3-1-701.
           (5)      "Impartiality" means the practice of making judicial decisions in accordance with the law, fairly,
  and without evidence of bias.
           (6)      "Judge" means a district court judge or a supreme court justice.
           (7)      "Open-mindedness" means a willingness to:
           (a)      consider opposing views and alternative solutions permitted by law for resolving cases;
           (b)      remain open to persuasion despite a judge's existing views;
           (c)      concede that there is an appearance of one's own bias; and
           (d)      treat each case in accordance with the facts presented and the governing law.
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           NEW SECTION. Section 4.           Judicial performance evaluations. (1) Beginning in 2026, the
  commission shall prepare:
           (a)      a midterm performance evaluation for each district court judge during the third year of the
  judge’s term;
           (b)      a preelection performance evaluation for each district court judge during the fifth year of the
  judge's term;
           (c)      a midterm performance evaluation for each justice of the Montana supreme court during the
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69th Legislature 2025                                                                                             LC0527.1
  third year of the justice’s term;
          (d)         a preelection performance evaluation for each supreme court justice during the seventh year of
  the justice's term; and
          (e)         a preelection performance evaluation for each judge appointed to a vacancy during the year
  prior to the last year of the judge's current term.
          (2)         The performance evaluation for a judge under subsection (1) may consider only the information
  listed in subsections (3) and (4). The performance evaluation must give primary emphasis to information
  gathered since the judge's election or appointment to the judge's current term in office.
          (3)         The information a performance evaluation must consider is as follows:
          (a)         the results of the judge’s most recent judicial performance survey conducted in accordance
  with [section 5];
          (b)         information acquired by observation of the judge's conduct in the courtroom;
          (c)         the judge’s judicial disciplinary record, if any;
          (d)         public comment directed toward the commission whether solicited or unsolicited;
          (e)         information from any earlier judicial performance evaluation of the judge, except that the
  commission shall rely primarily on information gathered subsequent to the last judicial election; and
          (f)         any other factor the commission considers relevant to evaluating the judge’s performance and
  previously authorized as a permissible factor by rule.
          (4)         The commission shall make rules governing the conduct of courtroom observation. The rules
  must specify:
          (a)         who may perform the courtroom observation;
          (b)         whether the courtroom observation must be performed in person or may be performed by
  electronic means; and
          (c)         the standards used to evaluate the behavior observed.
          (5)         The commission may invite a judge to appear before the commission to discuss the judge’s
  judicial performance. Information disclosed during this meeting is confidential.
          (6)         The commission may meet in a closed meeting to discuss a judge’s judicial performance
  evaluation by complying with Title 2, chapter 3, part 2.
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          (7)        A judge may provide a written statement, not to exceed 200 words, that must be included in the
  judge’s performance evaluation report.
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          NEW SECTION. Section 5.            Judicial performance survey. (1) A third party under contract with the
  commission shall conduct a judicial performance survey. The third party may not be affiliated with a legal firm or
  a legal professional.
          (2)        (a) Each judicial performance survey must survey respondents in each of the following
  classifications:
          (i)        attorneys who have appeared before the judge as counsel either pro hac vice or while licensed
  to practice law in Montana;
          (ii)       jurors who have served in one or more cases before the judge; and
          (iii)      court staff who have worked with the judge.
          (b)        Only a respondent under subsection (2)(a)(i) who is admitted to practice law in the state and in
  good standing with the state bar of Montana may evaluate a judge’s legal ability under subsection (7)(a).
          (3)        The commission may establish by rule additional classifications that the commission considers
  helpful to voters.
          (4)        All survey responses are confidential, including added comments.
          (5)        If the commission provides information to a judge or the court administrator, it must do so in a
  manner that protects the anonymity of survey respondents.
          (6)        A survey must be provided to a juror respondent no more than 30 days after the completion of
  the case in which the juror served.
          (7)        Surveys must include questions inquiring into the judge’s:
          (a)        legal ability, including the following:
          (i)        understanding of the substantive law and rules of procedure and evidence;
          (ii)       attentiveness to factual and legal issues;
          (iii)      adherence to precedent and ability to justify clearly any departures from precedent;
          (iv)       appreciation of the practical impact on the parties of the judge’s rulings, including rulings that
  cause delay or increased litigation expense;
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69th Legislature 2025                                                                                                LC0527.1
            (v)      clarity in writing; and
            (vi)     clarity in explaining the bases for judicial opinions;
            (b)      judicial conduct, including the following:
            (i)      courtesy toward attorneys, court staff, witnesses, and others interacting with the judge’s court;
            (ii)     appropriate courtroom decorum;
            (iii)    demeanor and personal attributes that promote public trust and confidence in the judicial
  system;
            (iv)     preparedness;
            (v)      avoidance of impropriety or the appearance of impropriety;
            (vi)     avoidance of bias and conflicts of interest;
            (vii)    fairness, open-mindedness, and impartiality;
            (viii)   ability to communicate clearly, including the ability to explain the basis for written rulings, court
  procedures, and decisions; and
            (ix)     compliance with 2-2-121 and 2-2-122 and the applicable rules of judicial conduct;
            (c)      administrative performance, including the following:
            (i)      workload management;
            (ii)     sharing proportionally the workload within the court or district; and
            (iii)    issuance of opinions and orders without unnecessary delay; and
            (d)      fidelity to:
            (i)      the Montana constitution, including Article III, section 1; and
            (ii)     1-2-101 and 1-2-102.
            (8)      If the commission determines that a survey question is not appropriate for a respondent
  category, the commission may omit the question from the survey provided to that respondent group.
            (9)      (a) The survey must allow respondents to indicate responses either on a numerical scale from
  one to five or in the affirmative or negative, with an option for an inability to respond in the affirmative or
  negative.
            (b)      The commission may allow respondents to provide written comments other than those that
  could, if used in a hiring process, trigger a violation of federal or state employment law.
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          (10)     The commission shall compile and make available to each judge that judge’s survey results.
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          NEW SECTION. Section 6.            Midterm reports. (1) The commission shall compile a midterm report for
  each judge relying on that judge's midterm evaluation. The midterm report may also be based on further
  information the commission considers useful for purposes of judicial evaluation or self-improvement.
          (2)      The commission shall provide the midterm report to the evaluated judge, the Montana supreme
  court, and the court administrator.
          (3)      (a) The commission may publish a partial midterm report for a judge whose appointment date
  precludes the collection of complete midterm evaluation data. For a newly appointed judge, a midterm report is
  considered partial when the midterm evaluation is missing a respondent group.
          (b)      The commission's webpage must identify each judge receiving a partial midterm report.
          (c)      Prior to a partial midterm report, the commission shall inform the court administrator of judges
  who will receive a partial report.
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          NEW SECTION. Section 7.            Preelection reports. (1) The commission shall compile a preelection
  report for each judge relying on that judge's preelection evaluation. The preelection report may also be based
  on further information the commission considers useful for purposes of judicial evaluation or self-improvement.
          (2)      The commission shall provide the preelection report to the evaluated judge, the Montana
  supreme court, and the court administrator.
          (3)      (a) The commission may publish a partial preelection report for a judge whose appointment
  date precludes the collection of complete preelection evaluation data. For a newly appointed judge, a
  preelection report is considered partial when the preelection evaluation is missing a respondent group.
          (b)      The commission's webpage must identify each judge receiving a partial preelection report.
          (4)      Prior to a partial preelection report, the commission shall inform the court administrator of the
  judges who will receive partial reports.
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          NEW SECTION. Section 8.            Publication of judicial performance reports. (1) (a) The commission
  shall provide each judge with the judge's reports in a timely manner. If a report is based on a preelection
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69th Legislature 2025                                                                                            LC0527.1
  evaluation, it must be provided at least 45 days before the last day on which the judge may file a declaration of
  the judge's candidacy in the next election.
            (b)    Each report, together with the information collected for the report, must remain confidential
  unl