The Arizona Judicial Ethics Advisory Committee has revised its opinion on the judicial obligation to perform same-sex marriages. The revisions add that, “because performing a marriage is a discretionary function, a judge may, consistent with the Code, decline to perform any marriages whatsoever. . . ,” while still stating that “because performing a marriage is a judicial duty within the scope of Rule 2.3(B), a judge cannot refuse to perform same-sex marriages if the judge is willing to perform opposite-sex marriages.”
All 14 of the judicial discipline cases so far in 2015 have been based on the judge’s consent or at least on a stipulation of facts with disagreement only about whether the facts constituted misconduct and/or what the appropriate sanction should be. Despite that figure, difficulties of proof are sometimes involved in judicial discipline cases, as in any other type of legal proceedings, as illustrated by two recent cases in which charges were dismissed.
In censuring a judge for other misconduct, the New York State Commission on Judicial Conduct commented on its dismissal of a count alleging that, after a court session had ended, a judge had used a racial epithet in a conversation with an African-American lawyer. The Commission emphasized that it considered “this accusation of the utmost gravity. It would certainly be grounds for removal if credited, particularly in light of the other misconduct findings regarding respondent.” It noted that two attorneys said they heard the remark, three others (including an attorney) allegedly in the courtroom at the time swore they did not, and the judge categorically denied using the term. The complaint had not been filed with the Commission for two years, the judge had not been notified of the allegation for an additional year, and he had been “given shifting time frames and few specifics as to when it took place,” with “a possible range of six months.” The Commission, which uses a preponderance of the evidence standard, explained it was “deeply reluctant . . . to remove a jurist on the basis of the ambiguous evidence presented in connection with this allegation.”
We do not intimate that we believe any particular account to be truthful, or any other to be false. Indeed, those are not the only possibilities. Even on a matter of this importance, witnesses can mishear or have mistaken or faded recollections, and after so many years uncertain memories can harden, while others can change.
In a widely publicized case, the Committee on Judicial Conduct and Disability of the U.S. Judicial Conference denied a petition for review from the dismissal of a complaint alleging that a judge on the 5th Circuit had, during a public lecture on the death penalty at the University of Pennsylvania Law School, made statements that exhibited bias toward certain classes of claimants and claims or related to the merits of pending cases. The special counsel hired to investigate had discovered no recording of the lecture. He interviewed 45 individuals, including most of the attendees and all of the non-student attendees, and concluded that “many of the attendees had differing recollections—or no recollection at all—of comments referenced in the Complaint.” The Review Committee concluded that the Judicial Council had not ignored “evidence in complainants’ favor” and had sufficiently weighed the evidence before finding that a preponderance of the evidence did not support a finding of misconduct.