|
Although judicial disciplinary
commissions exists in all fifty states for the discipline and removal of
judges, in practice the function of those agencies appears to be, to
inform the complaining parties that, the commission has no jurisdiction
over their complaint.
Initially the
only method for removal of judges was by impeachment provided by the
constitutions of nearly all the fifty states. That procedure rested in the
legislative branch of the government, obviously to provide for check and
balances by a co-equal branch of government. The proceedings commenced in
the House of Representatives voting on whether the judge should be
impeached. If the impeachment measure passed in the House, then it would
go to the State Senate for trial and for a vote whether to convict.
As the population of
the states grew, impeachment became a cumbersome method for removal of
judges and was supplemented by judicial disciplinary commissions in all
the fifty states and the District of Columbia. The majority of the states
created a judicial disciplinary system by constitutional provision and a
minority have done so by legislation. The first of these judicial
commissions was established in 1960 in California and the last in 1981 in
the State of
Washington. That these disciplinary agencies operate in a similar manner
it is because they all follow the standards proposed by the American Bar
Association (a national voluntary association of over 400,000 attorneys).
Members of these commission consist for the most part of judges, lawyers and
a token lay members. The procedures including the complaints are
"confidential" and are made public only when probable cause is found by
the commission, which is extremely rare. So, the activities of the
commission and their staff are generally conducted in secret, hidden from
public view.
The American
Judicature Society (AJS), a national clearing house on the judicial
commissions at one time had gathered information on judicial ethics and
discipline throughout the country. The last year for which they have done
a survey is for the year of 1999. That showed a total of 99 judges
disciplined by the state judicial commissions in the fifty states. Of these
approximately eight judges were suspended for a limited time and seven
judges were removed. The other judges were merely publicly reprimanded,
admonished or censured depending on what type of disposition applies in
the state. Generally, it ranges from a personal meeting with the judge, or a
letter to the judge none of which are made public, or a letter that is
made public, or calling the judge before a court in all of which the judge
is informed of the charges and is warned not to do it again. Removal is a
rare case.
The American
Judicature Society was not able to gather statistics from each of the
commissions of the fifty states, because not all of the judicial
commissions were willing to report it. However, the total number of
complaints for all the states was estimated by the American Judicature
Society to be in excess of 10,000. Statistically, only one out of a
hundred complaints or 1% and probably less results in a determination.
Based on this national statistics you can see, that the function of these
judicial disciplinary commissions is not to discipline the judges but, to
support judicial independence by not holding the judges liable for the
misconduct alleged in the complaints.
The list of
the judicial disciplinary commissions in the fifty states and Washington
D.C. with their addresses, phone and fax numbers appears on the website of
the American Judicature Society a private non profit organization.
Complaints against judges can be filed with these commissions.
For
the addresses and phone numbers of the judicial commissions arranged
alphabetically according to states go to,
http://www.ajs.org/ethics3.html
That the
complaints are rejected should not be a deterrent for making a complaint. In
some cases although the complaints are not acted upon, they may be
considered when a judge seeks to advance on the judicial ladder. At any
rate the rejection of these complaints is merely further evidence that
these commissions exist for the protection of the judges and not of the
public.
It should be
noted that while the individual complaints are "confidential" the
statistics on disposition of the complaints are not. Yet, the operation of
these fifty commissions is so secretive that the great majority do not
even have a website, and of the few that do, less than a half dozen report
any statistics on their activities.
Of the
commissions which post a report on the Internet, the California Commission
on Judicial Performance, see http://cjp.ca.gov gives an extensive statistical report on the disposition of the complaints
against judges. It is reported that for the calendar year of 2001 there
were 1610 judgeships within the commission’s jurisdiction. The commission
received 835 complaints on active and former California judges. The 835
complaints named a total of 1173 judges (781 different judges - a ratio of
about 1 out of 2 judges.) About 807 of these complaints were summarily
dismissed on the stated ground that they did not involve judicial
“misconduct” but claimed only “legal error” or “expressed dissatisfaction
with a judge’s discretionary handling of judicial duties.”
Even where the
commission investigated the complaints against the judges most of them
resulted in what is a “private disposition”. The commission noted 5
private admonishments and 19 private advisory letters. In a private
disposition the names of the judges and parties and the case numbers are
kept confidential. Only the nature of the improper behavior is disclosed
in a most abbreviated form. Most of these private sanctions attempt to
preserve the courtroom decorum. It is evident that it is not intended to
punish the judge, but is mere a wrap on the finger, asking the judge
politely to refrain from the objectionable activities. Private
admonishments were meted out in the following instances:
The judge made comments that
appeared to criticize the jury after its verdict; the judge made
comments to the jury reflecting bias about the case; the judge
abused his authority in an order involving payment of fees; the judge
improperly threatened an attorney with contempt; the judge made remarks
during court proceedings that disparaged the litigants and counsel; the
judge demeaned a potential juror; the judge delayed in ruling on four
matters and executed an inaccurate salary affidavit; the judge proceeded
without appointed counsel despite the defendant’s statements that he
wanted counsel and the judge made comments that disparaged the
defendant’s version of the case and fostered the appearance that the judge
was attempting to pressure the defendant into pleading guilty.
Private
advisory letters were issued in 19 cases which are also summarized in the
commission’s report, some of which were:
The judge
engaged in activities away from the courthouse during working hours; the
judge delayed for five month in ruling on an issue; the judge made demeaning
remarks about an attorney who was not in court; the judge displayed anger
and rudeness toward an attorney in open court; the judge displayed sarcasm
and derision in remarks toward a pro per litigant in a civil harassment
matter; the judge used judicial stationery to obtain an advantage in a
personal business matter; the judge smoked in chambers in violation of law
and despite being reminded of the prohibition by the presiding judge; the
judge used chambers stationery in connection with a personal business
dispute; the judge failed to fully disclose on the record the judge’s
relationship with one of the counsel and so forth.
Only three
judges were publicly disciplined. One was a retired judge, who altered the
record on a previously set bail bond. Another judge was hardly if ever on
the bench for a four year period and engaged in other activities. That
judge resigned. A third judge was removed from the bench. The reason for
his removal was not for his activities on the bench, but on charges that
he provided false information on two Personal Data Questionnaires he
submitted to the Governor when seeking appointment to judicial office.
Among the charges were that he made false representations about the colleges and law
schools he attended, that he falsely stated he had received a master's
degree, and that he misstated the dates he had attended law school, thus hiding
the fact that he had failed to pass the California bar examination on
several attempts after completing law school. Also that he falsely claimed he served in the Vietnam War.
In 2002, there were the same number of 1610
judgeships within the commission's jurisdiction. In 2002, there were 918
complaints about active California judges and former judges were
considered by the commission for the first time. The 918 complaints named
a total of 1331 judges (836 different judges). The complaints set forth a
wide array of grievances. A substantial percentage were treated as "legal
error not involving misconduct or expressed dissatisfaction with a judge's
discretionary handling of judicial duties" and so, they were dismissed.
The commission instituted formal proceedings in four cases in 2002. In 2002, the Commission issued one Order of
Removal, in Inquiry Concerning Judge Michael E. Platt, No. 162. In
November 2002, Judge Platt filed a petition for review in the California
Supreme Court. That petition was denied on February 19, 2003. To read a
summary for the reasons for his removal and for the public censure of four
judges and one admonishment please go to:
http://cjp.ca.gov/commcases.htm.
The New York
State Commission on Judicial Conduct, with a total number of 3363 judges
and justices, reports receiving an average of 1400 complaints for the past
ten years. In the year 2000, 1000 of these complaints were summarily dismissed on initial
review for alleged lack of jurisdiction. A preliminary inquiry was made as to the
remaining 400 and of these 200 were subject to some form of investigation.
In 2001 the Commission received 1308 new complaints. Preliminary inquiries
were conducted in 340 of these complaints. The Commission authorized
a more extensive investigation in 208 complaints. The Commission takes the same view as most
of the other commissions that absent some underlying misconduct, such as
demonstrated prejudice, conflict of interest or flagrant disregard of
fundamental rights, the Commission does not investigate complaints
concerning disputed judicial rulings or decisions. The remedy for that is
deemed to be by appellate review. Not one judge was removed or suspended by the New York State Commission in 2001. The
Commission rendered 26 formal public disciplinary determinations for the
calendar year 2001, consisting of 11 censures and 15 admonitions. Thirteen
of the 26 respondents disciplined were non-lawyer municipal judges, and 13
were lawyer-judges. Sixteen of the respondents were part-time town or
village justices, and ten were judges of courts, such as Family Court,
Surrogate Court and the Supreme Court (which is the lower court in New
York). Although 26 complaints were made against appellate judges, no
action whatsoever was taken against any appellate judge. See
http://www.scjc.state.ny.us
For a full detail of the disposition of
complaints please go to:
http://www.scjc.state.ny.us/Publications/2003.AnnRep.Full.Color.pdf
The number of complaints
lodged against New York judges continued to rise in 2003, but at the
same time, the number of actions taken against judges has declined.
There was an increases to 1,463 in complaints as compared with 1,435
in 2002 and 1,308 in 2001 -- a growth of 12 percent over the two years.
Removals from the bench, censures and nonpublic cautions all declined
since the previous year. There were only three removals in 2003. The drop in public sanctions was
partly attributable to a type of disposition used for the first time last
year, a voluntary permanent resignation, said the commission's
administrator, Robert H. Tembeckjian to read
click here.
In 2005 the Comission recorded 1565 complaints against judges. After
secret investigation 4 judges were ousted, 15 face censure, 5 were
admonished and quit. Less than a 2% finding. In 2006 the commission received more complaints and carried out more
investigations than in any other year of its history, according to a
report by Robert H. Tembeckjian, said his office received 1,565 complaints
about judges in 2005.The commission conducted 260 full investigations last
year; 4 judges were removed, 15 faced censure and 6 resigned.
The Judicial Inquiry Board for the State of
Illinois are likewise confidential unless probable cause is found. The Board
reported receiving 447 complaints for the fiscal year of July 31, 1998 to
June 1, 1999. 376 of these complaints or 84% were summarily dismissed on
initial review. The rest were dismissed at a later date except for 4
complaints upon which written requests were made to proceed further. The
Board maintains that there are 923 state court judgeships authorized in
Illinois. For the fiscal year of July 31, 1999 to June 1, 2000 the Board
reported 397 complaints. Of these 306 complaints were summarily dismissed.
90 complaints were voted to be investigated. 70 of these complaints were
then dismissed. The judges were requested to appear on 20 complaints, but
only one was requested to give a written explanation. No disposition on these
complaints is stated and no report is posted on the web for further years.
The nature of the complaints were itemized, showing that the great
majority were complaints on court procedures and rulings, failure to
follow the law, followed by bias, prejudice, partiality, injudicious
temperament of the judge, (impatient, rude, intimidating), violation of
constitutional rights and ex parte communications (communicating only with
one party), delay, violation of constitutional rights and illegal
activity. Most of the foregoing were deemed not to be a basis for
complaint. The information on disciplinary proceedings against judges in
2002 is very little. The site shows proceedings against less than five
judges which can be seen at www.state.il.us/jib/
The Judicial
Discipline and Disability Commission of Arkansas with a relatively small
population reported receiving 273 complaints for the year of 2001 with 127
cases pending as of January 1, 2001 a total of 400 cases pending in 2001.
A total of 309 complaints were disposed ending in December 31, 2000.
Of these 300 were summarily dismissed, 4 judges were publicly admonished,
3 judges retired or resigned and one judge was suspended with pay. The
most common complaints noted were that, the judge abused his judicial
power (knowing or persistent disregard of clear law or fundamental rights)
followed by conflict of interest, ex parte communications, partiality,
bias and prejudice of the judge , failure to perform duties of office
delay injudicious temperament and bribery, which were generally dismissed. Matters
pending as of January 2001 was 127 and 273 complaints were filed in 2001
making it a total of 400 complaints. Of that 300 were dismissed. Of
that there were 4 public admonitions, 4 public reprimands and one
suspension from office with pay. For more information please go to:
www.state.ar.us/jddc/stats.html
In view of the
fact that these complaints nationwide number in excess of 10,000 against
approximately 25,000 state court judges, a complaint against a judge is
quite frequent. The above referred to complaints make clear that the public's
dissatisfaction is not directed to any ideological differences of opinion
on political issues in a judge's decision but, to misconduct in handling
of cases. Judging from the number of summary dismissals it is clear that
the judicial disciplinary commissions refuse to pursue these complaints.
However, not only do the commissions refuse to pursue these complaints
but, they claim a “lack of jurisdiction” over these complaints.
The Judicial
Qualification Commission of Florida has no website and appears only as a
link to the website of the Florida Bar, and the Supreme Court of the State
of Florida. The Commission reports no statistics on the website. Upon information
from the Commission for the
fiscal year of July 1, 1999 to June 30, 2000 the Commission received 455
complaints of which 392 were summarily dismissed. The remainder were
investigated and dismissed except for 5 complaints, on which formal
charges were filed. 8 complaints were pending at the end of the year. For
the fiscal year of July 1, 2000 from June 30, 2001 the Commission received
505 complaints. With the 8 complaints carried over from the prior year
making it a total 513 complaint. Of these 404 complaints were summarily
dismissed, 49 complaints were dismissed after minimal investigation, 16
complaints were dismissed after substantial investigation. Formal charges
were filed on 4 complaints and 3 complaints remained pending at the end of
the year. For the fiscal year of July 1, 2001 to June 30, 2002 the
Commission received 544 complaints with the 3 complaints pending from
prior year making it a total 547 complaints. Of these 488 complaints were
dismissed summarily, 20 complaints were dismissed after minimal
investigation and 11 complaints were dismissed after substantial
investigation. Formal charges were filed on 7 complaints and 24 complaints
remained pending at the end of the year.
Florida has no private censure or
private discipline. Where probable cause has been found it is then subject
to a public disposition. The formal charges go before the Florida Supreme
Court. For cases in which formal proceedings were taken against a judge
see,
http://www.floridasupremecourt.org/pub_info/jqc.shtml Upon information, the
Judicial Qualification Commission retains the complaints in which no
probable cause has been found only for three years after which they are
discarded in accordance with the three year retention period set by the
Florida Supreme Court for the records of the JQC.
The Judicial
Qualification Commission of Florida was created under Article V Section 12
of the Florida Constitution. Thus, any change in its provisions would have
to be by amendment to the State Constitution. One of the most
objectionable provision is the “confidentiality" of the proceedings until
the filing of formal charges and finding of probable cause against a
judge. Since formal charges are made by the JQC in only about 5 cases that
they open annually, about 500 complaints a year, which over the years
number in excess of several thousand complaints remain shrouded in secrecy.
Taking into consideration that many judges sit on the bench until
retirement, there is no way of knowing how many complaints accumulated
against the sitting judges. In
Florida which prides itself as a government operating in the sunshine this
privilege of secrecy of complaints against public officers is extended
only to judges.
All other public officers, with the stated
exception of the judges within the jurisdiction of the judicial
qualifications commission, are subject to disciplinary proceeding pursuant
to the Sunshine Amendment namely, Article II Section 8(f) of the Florida
Constitution. This section expressly provides for the establishment of an independent commission to conduct
investigations and to make public reports on all complaints concerning
public officers - except for judges.
As to the
grounds for the discipline and removal of judges by the Florida JQC, the
Florida Constitution provides for a present unfitness to hold office and
misconduct that occurred before or during service as a judge.
Nevertheless, the majority of the complaints against judges are dismissed
under the self promulgated practice of the JQC that it does not
investigate complaints concerning disputed judicial rulings or decisions
or on the merits of the case because, that is a matter for appellate
review.
It is no secret that, the
reluctance of the commissions to pursue the complaints is to provide job
security for judges. Were the judges held liable for their intentional
misuse and abuse of their rulings, they would be subject to suspension and
removal from the bench. The Florida legislators serving in the House
Justice Council has been reminded by Rep. Bruce Kyle that they have the
power to remove bad judges from the bench and that it should be used
click here.
Generally
these judicial disciplinary commissions pursue cases to defuse a public
scandal when the misconduct of a judge hits the news media, such as
misconduct on the campaign trail; the use of the judicial office for
outrageous sexual favors; outrageous rudeness on the bench; and
drunkenness. Another concern is so-called improprieties during judicial
elections, to protect the incumbent judge and what has become his/her
lifetime position.
Under judicial
jargon a judge merely errs, or abuses his discretion, even if the improper
ruling is intentional. The injured party is relegated to an arduous
complicated process of appeal. Generally a party has a right to appeal.
However, there is no guarantee that the appellate court will review the
improper ruling. Appellate judges choose and pick the appeals they want to
consider. In many cases the appellate judges do not read all the briefs,
at the best they read the summaries in the briefs or the summaries
prepared by their law clerks. It has become the appellate practice to
merely rubber stamp more than two thirds of the lower court rulings with a
mere "per curiam affirmed" (meaning, "we the court approve") with no
further explanation. Generally any request for clarification and for
rehearing is declined with a mere "denied". Another detrimental effect of
the PCA in Florida is that it bars further review by the Florida
Supreme Court.
The question now in New Hampshire is -
Who will judge the judges? For three years, both the Legislature and the
judiciary have claimed the right. Now, the state Supreme Court must decide
whether its own Judicial Conduct Committee or the rival Judicial Conduct
Commission established by the Legislature is legitimate.
Click here
Talk of Reform
There is some recognition in the State of
Florida that the enforcement of judicial standards by the JQC is
unsatisfactory and some legislators are considering the impeachment
proceedings. State judicial leaders are expected to consider a
tentative plan to give the Commission on Judicial Performance a broader
range of powers to sanction errant judges short of removing them from the
bench click here For
Judicial Reform Talk in the State of New York
click here.
In Florida the Bar is planning ways to
reclaim the power of judicial nomination from the governor under a
so-called judicial independence project
click here.
HOME
| 
