Numerous news stories covered the Montana Supreme Court’s censure of Judge Todd Baugh for his comments in sentencing a teacher for sexual intercourse without consent with a 14-year-old student, imposing an unlawful sentence, attempting to retract his sentence, and making inappropriate public statements attempting to justify his actions. (The judge will also be suspended without pay for the last month of his term, December 2014.)  Many of those stories used the terms “reprimand” and “censure” interchangeably. (See this article, for example.) Although the dictionary definitions suggest the terms are synonymous, in the judicial discipline context, they are different, and what the judge received was the harsher sanction of censure.

The rules of the Montana Judicial Standards Commission define the distinction. A public reprimand by the Montana Supreme Court “declares a judge’s conduct unacceptable under one of the grounds for judicial discipline but not so serious as to warrant a censure,” while a public censure is “a public declaration by the Supreme Court that a judge is guilty of misconduct that does not require suspension or removal from office.” All states (except Oklahoma) provide for some type of oral public reproof of a judge, with most having several options — from warning to admonishment (or admonition) to reprimand to censure — to reflect different degrees of misconduct and the presence of aggravating and mitigating circumstances.

Defining the sanction options is a best practice to help the public understand judicial discipline outcomes but has been adopted in only a handful of states. For example, in 2013, at the recommendation of the Judicial Discipline and Disability Commission, the Arkansas Supreme Court adopted definitions of the available sanctions for Arkansas judges. Those definitions are:

“Informal Adjustment” is a sanction for conduct that is cause for discipline but falls short of conduct that is cause for formal discipline. The purpose is to inform the respondent judge of an issue of concern, remind a judge of ethical obligations, recommend changes in behavior or procedures, or suggest an appearance of impropriety that could be avoided.

“Admonishment” is more corrective than an Informal Adjustment. Conduct also falls short of conduct that is cause for formal discipline. An expression of disapproval of a judge’s conduct, and may contain a proscription to follow a corrective course of conduct, and may direct professional treatment, counseling, or assistance.

“Reprimand” is a formal sanction of a judge for violating the Code of Judicial Conduct. It is a rebuke for one or more violations that does not require censure. A reprimand usually involves an isolated incident or behavior that can be easily corrected. It could involve misconduct that is more serious but the judge presented substantial mitigating factors.

“Censure” is a formal sanction for violating the Code of Judicial Conduct. It is a declaration that a judge is guilty of misconduct that does not require suspension or removal. A stern rebuke that finds the conduct of the judge violates a rule of judicial conduct, detrimentally affects the integrity of the judiciary, and undermines public confidence in the administration of justice. It could involve misconduct that is more serious but the judge presented substantial mitigating factors. A censure may include a requirement that the judge follow a specified corrective course of action. A censure also serves as a public warning to other judges.

“Suspension with Pay” is a decision by the commission that must be reviewed and affirmed by the Supreme Court. Recommendation by the commission to suspend a judge, with or without pay, is based on serious misconduct that merits more than a censure but less than removal. This sanction is flexible, and there are no restrictions on the length of a suspension. It can be imposed for egregious or repetitive conduct. It could involve misconduct that is more serious but the judge presented substantial mitigating factors. A suspension may require that the judge follow a specified corrective course of action before being reinstated.

“Suspension without Pay” is a decision by the commission that must be reviewed and affirmed by the Supreme Court. Recommendation by the commission to suspend a judge, with or without pay, is based on serious misconduct that merits more than a censure but less than removal. This sanction is flexible, and there are no restrictions on the length of a suspension. It can be imposed for egregious or repetitive conduct. It could involve misconduct that is more serious but the judge presented substantial mitigating factors. A suspension may require that the judge follow a specified corrective course of action before being reinstated.

“Removal from Office” is decision by the commission reviewed and affirmed by the Supreme Court, to permanently remove a judge for extreme or gross misconduct involving a judge’s integrity, fitness for office, substantial harm to public confidence and trust, damage to the reputation of the judiciary, or ability to perform judicial duties. Mitigating factors, if any, presented by the judge were unable to affect the decision to remove the judge from office. The judge is no longer eligible to be elected, appointed, or otherwise serve in the judiciary of the State of Arkansas.

Recently the Wyoming Commission on Judicial Conduct and Ethics adopted a new rule providing that, in determining the appropriate sanction, an adjudicatory panel of the Commission may consider the following, nonexclusive factors:

(A) the nature, extent, and frequency of the misconduct;
(B) the judge’s experience and length of service on the bench;
(C) whether the conduct occurred in the judge’s official capacity or private life;
(D) the nature and extent to which the acts of misconduct injured other persons or respect for the judiciary;
(E) whether and to what extent the judge exploited his or her position for improper purposes;
(F) whether the judge has recognized and acknowledged the wrongful nature of the conduct and manifested an effort to change or reform the conduct;
(G) whether there has been prior disciplinary action concerning the judge, and if so, its remoteness and relevance to the present proceeding;
(H) whether the judge complied with prior discipline or requested and complied with a formal ethics advisory opinion;
(I) whether the judge cooperated fully and honestly with the Commission in the proceeding; and
(J) whether the judge was suffering from personal or emotional problems or physical or mental disability or impairment at the time of the misconduct.

The rule also notes that “the ABA Standards for Imposing Lawyer Discipline may be considered.”

Thus, Wyoming becomes the 6th or so commission to adopt such a list (others include Arizona, California, Tennessee, Utah, and Washington). Many states supreme courts have also identified relevant factors in the sanction determination, following the lead of the Washington Supreme Court in In re Deming, 736 P.2d 639 (Washington 1987).

For example, in Coffey’s Case, 949 A.2d 102 (New Hampshire 2008), noting that the Judicial Conduct Committee “is required to consider each case using only a limited body of precedent, the Code and its own conscience as guidance,” the New Hampshire Supreme Court stated “that a ‘framework is needed to ensure a level of consistency necessary for fairness to the public and the legal system’” and that “articulating a set of principles to govern judicial discipline matters” will “better enable the JCC to ensure that equivalent cases are treated in an equivalent manner . . . [and] ‘will allow this Court to more meaningfully review the [JCC]’s disciplinary recommendations.’” The Court noted the American Judicature Society study of all public judicial conduct decisions between 1990 and 2001 that distilled the factors most commonly considered. Finding that the “study is comprehensive and the factors it articulates encapsulate the myriad of considerations relevant to the sanction inquiry,” the Court adopted the five factors identified in the AJS Study: “(1) ‘[t]he nature of the misconduct’; (2) ‘[t]he extent of the misconduct’; (3) ‘[t]he judge’s culpability’; (4) ‘[t]he judge’s conduct in response to the [JCC]’s inquiry and [the commencement of] disciplinary proceedings’; and (5) the judge’s reputation and record on the bench.'”

While unanimity on the appropriate sanction is never guaranteed, a consistent application of identified factors increases the chances of agreement or at least enhances public understanding of why a particular sanction was imposed.