Determining the appropriate sanction

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.


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