Independent factual investigation flashback

According to news reports (see one here), a Utah judge removed a child from a foster home because the foster parents were lesbians.  He relied on his own research on the issue of whether children do better when raised by a heterosexual couple in the same home.  No one else had objected to the placement.  The decision was extensively covered in the media, and the judge subsequently amended his order so the infant girl will not be immediately removed from the home.  There will be another hearing in December.  Just Monday, the judge reportedly disqualified himself from the case (see report here).

You can’t believe everything you read on the internet so, unless or until there is a formal fact-finding, it is not appropriate to judge the judge.  With that caveat, the news reports bring to mind a judicial discipline case from 20 years ago.  In re Hutchinson, Commission decision (Washington State Commission on Judicial Conduct February 3, 1995).

Two men petitioned to have their names changed to female names because they were going through gender re-assignment therapy.  After the judge declined to grant the petitions until the surgery was completed, the petitioners filed a motion for reconsideration.  The judge then conducted an ex parte, independent factual investigation about gender re-assignment surgery by communicating with several medical organizations without notice to the petitioners.  During a hearing, the judge reported the results of his investigation, stating that gender re-assignment surgery is probably illegal in most states as “maiming” and is not offered in Washington and that “there is some question in my mind whether or not a physician performing this surgery in the State of Washington might not be guilty of a felony.”  The judge concluded that he should do nothing to encourage the procedure because of its high failure rate.  The judge suggested that the petitioners, if allowed to change their names, would pose a risk to those who “send their daughters into the ladies’ restroom.”  The judge stated:  “I personally feel that this whole procedure is immoral.  It evidences a mentally ill and diseased mind.  I am grateful that the physicians of this state and the rest of the United States apparently have the attitude that this surgical amputation is something beyond the medical pale.”

The Commission found that expert medical testimony clearly established that the judge’s conclusions based on his investigation were incorrect or, at best, disputed.  The Commission also found that the judge’s moral pronouncements and demeaning statements deprived the petitioners of an impartial and unbiased forum.  The Commission censured the judge.

The case illustrates why independent factual investigations, like ex parte communications, are prohibited.  That ban ensures that cases are tried in the courtroom and judicial decisions are based on evidence in the record where the parties can contest its accuracy, reliability, and credibility and appellate courts can review it.  Further, an independent factual inquiry raises questions about a judge’s impartiality.  Thus, the ABA Model Code of Judicial Conduct provides (in a provision adopted by most states):  “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.”  Rule 2.9(C).  A comment added in 2007 states that “the prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.”


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