Explanation of dismissals

When judicial conduct commissions dismiss complaints without filing formal charge or issuing a public sanction (in other words, most complaint dispositions), those dismissals are not disclosed to the public except as a statistic.  However, many states have an exception that allows a commission to release a statement of clarification and correction if allegations against a judge has become public despite the commission’s confidentiality rules.  That exception has been used 2 times so far in 2020.

In New Jersey, a rule provides:

On completion of its preliminary investigation, the [Advisory] Committee [on Judicial Conduct] may . . . if it finds that the allegations are without merit, dismiss them and so inform the person who brought the allegations before the Committee, as well as the judge if the Committee so desires, and if the matter has received public attention, the Committee may, at the request of the judge or on the Committee’s own motion, issue a short explanatory statement after reasonable notice to the Supreme Court . . . .

Applying that exception, in a public statement in June, the Committee explained that it was not initiating formal disciplinary proceedings against a judge based on her comments regarding a sexual assault charge against a juvenile.  The judge had denied the prosecution’s motion for referral of statutory rape charges against a juvenile that would have allowed the juvenile to be tried as an adult.  In her written opinion, the judge characterized the sexual assault as “not an especially heinous or cruel offense beyond the elements of the crimes that the waiver statute intends to target.”  The judge’s opinion had been issued under seal, but the Appellate Division quoted from the opinion when it reversed her decision, the media repeated those quotes, and the Committee received “a number of identical complaints.”

On completion of its preliminary investigation, the [Advisory] Committee [on Judicial Conduct] may . . . if it finds that the allegations are without merit, dismiss them and so inform the person who brought the allegations before the Committee, as well as the judge if the Committee so desires, and if the matter has received public attention, the Committee may, at the request of the judge or on the Committee’s own motion, issue a short explanatory statement after reasonable notice to the Supreme Court . . . .

According to the Committee’s statement, during an informal conference with the Committee, the judge “thoughtfully explained her reasoning and acknowledged that the language in her opinion was inappropriate.”  She told the Committee that she had written her opinion “solely for the parties, who ‘were intimately familiar with the facts of the case, not for the public[,]’” and that, if she had “ever imagined that it would be put out to the public,” she would have added that “every rape, including statutory rape of a 12-year-old, is heinous.’”

Despite that explanation, the Committee concluded that her comments were inappropriate.

However, the Committee also noted that it is difficult to express the concepts the judge was required to find in the waiver analysis, that is, whether the prosecutor had shown that “the sexual assault was particularly egregious beyond its inherent egregiousness” and that “the harm suffered by the victim was above, beyond and in addition to the inherent harm associated with the act itself.”  The Committee found that, in making those findings, the judge had “sacrificed sensitive and conciliatory language in favor of a more clinical, unemotional, perhaps even stoic legal evaluation of the statutory factors and the prosecutor’s burden.”

Nevertheless, the Committee emphasized, the judge had acknowledged “her inappropriate choice of words” and her comments “were an integral part of her statement of reasons for denying waiver rather than a gratuitously offensive comment unrelated to the judicial decision-making process.”  To explain its decision not to file formal charges, it stated:

The Committee is not an Appellate Court.  Its mission is to address wrongful conduct by judges that brings disrepute on the judiciary.  Every debatable opinion does not fall into that category.  Nor does every poor choice of words.  Indeed, the Supreme Court has recognized that the imposition of discipline based on a judge’s decision (even an incorrect one), or the reasons given for that decision, may pose a threat to judicial independence and therefore should be reserved for only the most extreme cases.

The Committee noted that it had decided to issue a public statement “in view of the extensive publicity the matter has received.”  See, e.g.,Judge opposes criminal prosecution in child rape case, NJ senators want her removed from bench,” The Trentonian (July 6, 2019).

In a dissenting statement, 4 members of the Committee wrote:

In our view, this type of case should be heard and resolved through a public hearing that includes testimony and cross-examination, not following a private, informal conference.  Regardless of the ultimate outcome, a more fulsome review and airing of the circumstances here would, we believe, promote the public’s confidence in the Judiciary and the system of judicial discipline . . . .

* * *
In a public statement issued at the judge’s request, the Washington State Commission on Judicial Conduct disclosed that, following an independent investigation, it had dismissed a complaint against Judge Edward McKenna.  The Commission’s rules permit such statements when a judge “is publicly accused or alleged to have engaged in misconduct . . . and the commission, after a preliminary investigation, has determined that no basis exists to warrant further proceedings.”

The Commission statement does not describe the basis for the complaint.  According to a radio station, the judge had filed a self-report after the Seattle City Attorney and County Director of Public Defense criticized him in a public letter for sentencing a defendant to 1 year in jail, contrary to a plea agreement that asked for his release with probation and drug and mental health treatment.

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