Judicial conduct commissions:  Establishment and membership

Depending on the state, the judicial discipline agency is called a commission, board, council, court, or committee, with the appellation conduct, advisory, qualifications, discipline, disability, standards, tenure, fitness, inquiry, investigation, performance, removal, responsibility, retirement, review, judiciary, ethics, or fitness.

  • In 32 states, the judicial conduct commission was established by the state constitution.
  • In 10 jurisdictions, the commission was established by statute.
  • In 9 states, the commission was established by supreme court rule.

Some commissions created by constitution also have implementing legislation.

In addition to establishing provisions, the commissions have procedural rules that set out their processes in more detail.

  • In some states, the commission adopts its own rules. For example, the Florida constitution provides:  “The [Judicial Qualifications Commission] shall adopt rules regulating its proceedings.”
  • In other states, the state supreme court promulgates the rules for the commission. For example, the Alabama constitution provides: “The Supreme Court shall adopt rules governing the procedures of the [Judicial Inquiry Commission].”

Most commissions have 7, 9, or 11 members.  In most states, the commission is comprised of judges, lawyers, and members that are neither judges nor attorneys, called public members, lay members, or citizen members.

  • In 7 states, the commission has an equal number of judges, lawyers, and public members.
  • In 5 states, judges comprise the majority of the members.
  • In 9 states, the majority are public members.
  • In Hawaii and New Jersey, there are no judge members (although in New Jersey, 3 members are retired judges).
  • In West Virginia, there are no attorney members.
  • In Utah, 4 members are state legislators.

In some states, the types of judges to be appointed are designated.  For example, the Maryland constitution provides that 3 members of the 11-member Commission on Judicial Disabilities “shall be appointed from among the judges of the State, with one member representing the appellate courts, one member representing the circuit courts, and one member representing the District Court.”

Depending on the state and the category of membership, members are appointed by the supreme court, the chief justice, judges’ groups, the state bar, the governor, the attorney general, or members of the legislature.

  • In 7 states, the judge members are chosen by the supreme court, the lawyer members by the state bar, and the public members by the governor.
  • In 8 states, all members are chosen by the supreme court.
  • In 3 states (Connecticut, Maryland, and Minnesota), all members are appointed by the governor.
  • In Virginia, all members are appointed by the legislature.

In some states, some or all of the appointments by the supreme court or governor are subject to confirmation by or the consent of the senate.  For example, the statute governing the Georgia Judicial Qualifications Commission provides:  “The commission shall consist of ten members who shall be subject to confirmation by the Senate.”

In some states, there are provisions for an alternate to replace a member who is unable to participate in a proceeding.

  • In some of those states, each member has a permanent alternate. For example, the provision for the Mississippi Commission on Judicial Performance states:  “An alternate for each member shall be selected at the time and in the manner prescribed for initial appointments in each representative class to replace those members who might be disqualified or absent.”
  • In other states, an alternate is only appointed as required. For example, the provision for the New Hampshire Committee on Judicial Conduct provides:  “Whenever a member is disqualified from participating in a particular proceeding, or is unable to participate by reason of prolonged absence or physical or mental incapacity, the court, upon written request of the chair, may appoint an alternate to participate in any such proceeding or for the period of any such disability, any such alternate to have the same qualifications as those required for the selection of the member who is being replaced.”

The terms for commission members range from 3 years to 6 years.

  • In some states, the number of terms a member can serve is limited. For example, the Virginia constitution provides:  “No member of the [Judicial Inquiry and Review] Commission shall be eligible to serve more than two consecutive terms.”
  • In other states, there is no term limit for commission members.

An individual’s membership can terminate before the end of their term when the member no longer meets the qualifications for the appointment.  For example, the Maryland constitution provides:

A member’s membership automatically terminates:  (1) When any member of the Commission on Judicial Disabilities appointed from among judges in the State ceases to be a judge; (2) When any member appointed from among those admitted to practice law becomes a judge; (3) When any member representing the public becomes a judge or is admitted to the practice of law in this State or has a financial relationship with or receives compensation from a judge or a person admitted to practice law in this State; or (4) When any member ceases to be a resident of the State.

A table on the Center for Judicial Ethics web-site shows how each state’s commission is established, the membership composition, who appoints the members, and the length of the members’ terms.  The Center also has links on its web-site to the web-sites of the judicial conduct commissions.

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