2 recent public sanctions by the Texas State Commission on Judicial Conduct started with anonymous complaints.
1 anonymous complaint alleged that a judge had referred to a man in court as “Mr. Maggot” or “Maggot Man,” or words to that effect. The man was the subject of a guardianship case and had wounds that had become infested with maggots.
3 witnesses provided written statements confirming the anonymous allegations, and the judge said she did not doubt the veracity of the witnesses although she did not specifically recall using those terms. The judge explained that, due to her heavy caseload, she is often unable to immediately recall the names of proposed wards and, “[t]o differentiate one case from another, I might ask is this the maggot guy, is this the rat lady case . . . .” The Commission publicly admonished the judge for this and other misconduct. Public Admonition of Cross and Order of Additional Education (Texas State Commission on Judicial Conduct April 18, 2018) .
A second anonymous complaint received by the Commission alleged that a judge was being investigated by the county and the EEOC for sexually harassing one of his employees, referred to as Jane Doe. The judge had hired Doe as a clerk in January 2015, at a salary of $28,840. When her employment was terminated in July 2015, her salary was $38,110. In a complaint with the EEOC filed in January 2016, Doe alleged that, while she was the judge’s clerk, he kissed her, touched her inappropriately, and commented inappropriately about her body. In June 2016, Doe dismissed her EEOC complaint. In September 2016, the judge rehired Doe as his assistant court coordinator at a salary of $41,557.
In his sworn written response to the Commission, the judge admitted telling Doe that she had “a nice butt” in 2015. He denied kissing, touching, or making sexual comments to her while she worked in his court but admitted doing so during an intimate relationship they had after he fired her but before he rehired her. During his subsequent appearance before the Commission, the judge denied that he had ever kissed or touched Doe, claiming his previous response had not been accurate, although he was unable to explain the discrepancy.
The Commission publicly reprimanded the judge for this and other misconduct. Public Reprimand of Jasso and Order of Additional Education (Texas State Commission on Judicial Conduct April 18, 2018).
Like the Texas Commission, most judicial conduct commissions accept anonymous complaints, although most commissions “strongly encourage” complainants to identify themselves because anonymous complaints “are much more difficult to investigate” as the Pennsylvania Judicial Conduct Board notes on its web-site. As the recent Texas cases illustrate, commissions use anonymous complaints only to start an inquiry; to charge a judge or prove misconduct, a commission has to uncover and present other evidence that the judge is able to challenge, or the judge may admit the allegations. Thus, arguments that anonymous complaints are unfair because the judge cannot confront the accuser, who may have an improper motive, are misplaced.
Allowing complaints to be filed anonymously increases the chances that serious misconduct will be reported. Attorneys who appear frequently before a judge and court staff are the individuals most likely to know about on-the-bench misconduct and least likely to file unfounded complaints based only on a disagreement with a judge’s decision. But attorneys and court staff also have good reason to fear retaliation by a judge for the filing of a complaint, and anonymity encourages complaints by providing some measure of protection from reprisals.
In addition to the recent Texas cases, 2 previous cases initiated by anonymous complaints illustrate the importance of allowing that option.
In In re Alford, 977 So. 2d 811 (Louisiana 2008), the Louisiana Supreme Court removed a judge from office for her physical and psychological dependence on prescription medications that seriously impaired her judgment and mental faculties while performing judicial duties, a pattern of absenteeism and appearing late for court, and other misconduct. During the disciplinary hearing, audio tapes of proceedings, the testimony of numerous lay witnesses, including court employees, and the testimony of an expert in psychopharmacology were presented, and the judge had an opportunity to cross examine all of those witnesses and challenge any of that evidence.
The investigation had been initiated by an anonymous complaint that, given the nature of the allegations, most likely came from someone with an opportunity to observe the judge repeatedly, most likely an attorney who regularly appeared before her or a member of court staff. The anonymous complaint had alleged that, among other things, the judge appeared impaired on the bench to such an extent that she was “inarticulate,” “incoherent,” or fell asleep, that she was repeatedly absent from work, and that she canceled court dates without prior notice.
If, instead of investigating, the Commission had had to ignore the complaint because it was anonymous, the obvious harm to the public caused by a judge with a drug problem would have continued and probably increased. Further, public confidence in the discipline process and judiciary would have decreased after the judge’s problem became more notorious, as it almost certainly would have.
In In re Freeman, 995 So. 2d 1197 (Louisiana 2008), the Louisiana Court suspended a justice of the peace without pay until the end of his term for failing to resign his office when he became a candidate for the non-judicial office of police juror. A complaint signed by an anonymous “concerned citizen” had included 3 photographs of campaign signs advertising his candidacy for the non-judicial position. The complainant was quite possibly someone politically opposed to the judge, but that motivation did not detract from the credibility of the allegations — the judge admitted them — or dispel the seriousness of the violation.
The rules of the Louisiana Judiciary Commission provide: “An anonymous complaint may not be the subject of a preliminary inquiry unless it states facts, not mere conclusions, that can be independently verified and the Chair authorizes a preliminary inquiry to be made.” Louisiana Supreme Court Rule XXIII, Judiciary Commission, § 3(a)(2).
In its 2017 annual report, the Massachusetts Commission on Judicial Conduct reported receiving 2 anonymous complaints and described its handling of 1 in detail. The complainant had alleged that a judge had displayed a pattern of treating lawyers and other parties appearing before him discourteously. After reviewing the complaint, the Commission concluded that the seriousness or notoriety of the alleged misconduct outweighed the potential prejudicial effect of an investigation and voted to investigate. The investigation included a review of audio records from the judge’s courtroom but revealed no evidence of discourtesy, and the Commission dismissed the complaint. The Massachusetts Commission has a rule that provides: “Before an anonymous complaint can be investigated, it must first go to the Commission to determine whether the seriousness or the notoriety of the misconduct alleged outweighs the potential prejudicial effect of investigating the complaint.” Massachusetts Commission on Judicial Conduct, Rule 6(F).
Examples of provisions regarding anonymous complaints from other states:
- “Staff will evaluate anonymous complaints for merit; if a complaint is deemed sufficiently meritorious, it will be placed on the oversight agenda for consideration by the commission as to whether or not it should be docketed.” California Commission on Judicial Performance, Policy Declaration 1.1.
- “The Commission occasionally receives anonymous information but generally does not consider it. If such information is received, it is circulated among the Commissioners. A Commissioner may then place a ‘hold’ on the item, causing it to be placed on the next agenda for discussion.” Michigan Judicial Tenure Commission, Internal Operating Procedure 9.207(A)-8.
- “The Commission may authorize investigation of anonymous complaints that are sufficiently detailed and allege conduct that, if true, would constitute misconduct. An anonymous complaint authorized for investigation shall be treated as a complaint brought by the Commission on its own motion pursuant to Judiciary Law §44(2).” New York Commission on Judicial Conduct, Policy Manual §2.1(F).
- “Disciplinary Counsel is authorized to investigate anonymous complaints or information coming from sources other than a written complaint, provided Disciplinary Counsel deems the information sufficiently credible or verifiable through objective sources.” Tennessee Board on Judicial Conduct, Rule 5, §2.
- “Any named or anonymous organization, association, or person, including a member of the commission or staff, may make a complaint of judicial misconduct or incapacity to the commission.” Washington State Commission on Judicial Conduct, Rule 17(b)(1) .