Coronavirus and judicial conduct

Like everything else, judicial conduct commissions have been affected by COVID-19 and related shutdowns.  Some commissions have described on their websites how they are modifying their operations during the pandemic.

For example, the Washington State Commission on Judicial Conduct posted:

In light of Governor Jay Inslee’s coronavirus proclamations . . . and the World Health Organization’s declaration of a coronavirus global pandemic, the Commission on Judicial Conduct’s physical office will be closed or minimally staffed until further notice.  To reach the Commission directly, please leave a message at (360) 753-4585 and staff working remotely will try to respond within 24 hours during business days.  The Commission will continue to accept complaints online via our website.  We appreciate your patience as we take measures to safeguard the health and safety of the public and staff.

Others:

In addition to explaining how to contact the commission during any shutdown, 2 commissions have issued statements emphasizing to judges that compliance with administrative orders regarding court business is mandatory and encouraging judges to consult the commission about any ethical issues that arise during the pandemic.

The Georgia Judicial Qualifications Commission posted a statement:

The Statewide Judicial Emergency, as Ordered by Chief Justice Melton, sends a direct and balanced message to the courts of Georgia, allowing for continued court functions in addressing essential functions necessary to protect the health, safety, and liberty of our citizens, while also recognizing the need for courts to postpone and/or cancel non-essential matters in order to avoid the potential infection of court employees and members of the public attending court.  The JQC realizes that this may pose many challenges for parties, litigants, attorneys, court staff, and judges in navigating these uncharted waters.  We stand ready to assist our judicial system with situations that may pose ethical dilemmas for all involved.  In that vein, we also recognize that opinions may differ regarding how best to handle the novel circumstances that our world faces today.  The fact remains, however, that Chief Justice Melton’s Order is an overriding directive to the courts, and refusals to abide by the Order may require action by the JQC.

To that end, judges, parties, and the public are encouraged to contact the JQC staff with any questions or concerns about ethical obligations or possible misconduct.  As the current landscape calls for quick responses to many of these inquiries, we will do our best to be available during and after normal work hours to address time-sensitive matters.  Many members of the judiciary and the bar have already reached out for assistance, and we are committed to doing our part to help guide our State through these difficult and unusual times.

Similarly, the Arkansas Judicial Discipline & Disability Commission issued a statement noting that the Arkansas Supreme Court’s administrative order “is clear and detailed” and “is not a suggestion.  It is an order.  Full compliance is expected.”  It explains:

The JDDC staff are willing to help in any way that we can to assist judges who are working to comply with the order . . . .

Willfully refusing to abide by a Supreme Court order is not an option.  While very few judges would even consider defying a direct order from the Supreme Court, the effect of any such defiance is fundamentally detrimental to the public’s faith in the judiciary.  Complaints against judges who do not obey the order of the Supreme Court will be investigated and may result in public charges by the JDDC.  The Rules of Procedure of the Judicial Discipline & Disability Commission allow the Executive Director to initiate complaints. . . .  Therefore, regardless of whether an attorney or party complains, open disobedience to a Supreme Court order would make it incumbent on Executive Director to take the initiative to file a complaint and bring these matters to the Commission for disciplinary consideration.

There are many opinions on how best to handle the crisis caused by the COVID-19 virus.  However, the only opinion that matters as to court administration and the matters in the Per Curiam of March 17, 2020, are those of the Chief Justice and the Associate Justices of the Arkansas Supreme Court.

It is possible that never in our lifetime has the rule of law been more important.  The judicial branch, following the precepts of our national and state constitutions, stand in the breach between mob rule and what makes our American democracy work; the promise that our fundamental law will be followed.  The Arkansas Judiciary is made up of amazing men and women of honor, ability and work ethic.  The JDDC expects nothing less than full compliance and unity as the courts still function.  Your hard work as judges in Arkansas will help sustain us.  Your excellence will provide a calming effect and send the clear message that our courts will always support the rule of law and our freedom.

Judges, parties, and the public are encouraged to contact the JDDC staff with any questions or concerns about ethical obligations or possible misconduct.  We will be available to address time-sensitive matters.  Many members of the judiciary and the bar have already reached out for assistance, and we are committed to doing our part to help guide our State through these difficult and unusual times.

At least 3 commissions have announced delays in pending public cases because of the pandemic.

In a press release, the California Commission on Judicial Performance announced:

Due to increasing public health concerns related to the coronavirus, . . . the March 18, 2020 public appearance for oral argument before the commission in the matter concerning Justice Jeffrey W. Johnson of the California Court of Appeal, Second Appellate District, Division One, has been postponed.  A new date will be set once conditions improve.

 The scheduled oral argument was to be on the findings of 3 masters that the judge had engaged in 3 general categories of misconduct:  (1) inappropriate conduct ranging “from overly familiar compliments to highly offensive touching and vulgar, sexually explicit statements” towards 17 women; (2) being intoxicated after hours at the Court of Appeal building and at events outside the court facility; and (3) improper demeanor toward a Court of Appeal colleague and 3 staff members and derogatory statements about 2 colleagues.

The Kentucky Judicial Conduct Commission granted Judge Dawn Gentry’s motion to continue the hearing on the formal charges filed against her, originally scheduled for April 20, “in light of the extraordinary circumstances created by COVID-19”.  The Commission has suspended the judge pending resolution of its charges that she engaged in a wide variety of misconduct, for example, retaliating when people did not support her campaign and engaging in sexual activity in the courthouse.

The Michigan Commission ordered the postponement of a public hearing relating to Judge Byron Konschuh, from April 6 until May 4, noting that the “May 4 hearing will likely be held via Polycom and is subject to further adjournment as is warranted.”  A master has found that Judge Konschuh committed misconduct by failing to disqualify himself from cases involving 3 attorneys or to disclose the relationships but found that other allegations in an 8-count complaint by the Commission had not been proven.

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.

Anonymous complaints

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) .

 

On-line complaints

Although a form is not required to file a complaint against a judge in most states, using a form increases the chances a judicial conduct commission will get the information it needs to evaluate whether an investigation is justified.  Most judicial conduct commissions have complaint forms on their web-sites, many the fillable PDF type, that can be mailed, faxed, or, in some states, e-mailed to the commission.

n addition, 8 judicial conduct commissions now allow complaints to be filed on-line.  Those 8, linked to the on-line forms, are:

In response to a recent inquiry, the commissions recommended the on-line process, noting no confidentiality or security breaches or any more problems than with written complaints.  One commission stated that about half of the complaints it receives now come through its on-line portal, and another said that 3/4 of the complaints on its next agenda had been filed electronically.  Several reported an increase in the number of complaints since they added the on-line option but concluded that increase was outweighed by the benefits, such as more legible complaints, reduced costs for processing, and more comprehensive information.  One commission noted that, “Members of the public seem to appreciate the ease of use and accessibility of the online form,” and another stated, “it is convenient for complainants and is not an overall problem.  It’s the way of the future and nice to deal with less paper.”

The Center for Judicial Ethics has links to the web-sites of all judicial conduct commissions.

On-line complaints

Although a form is not required to file a complaint against a judge in most states, use of a form increases the chances a complainant will provide the information a judicial conduct commission needs to evaluate whether an investigation is justified.  Most judicial conduct commissions have complaint forms on their web-sites.  Several states have Spanish-language forms as well as English versions.  Many of the on-line forms are the fillable PDF type, convenient for the complainant and decreasing the possibility that illegibility will prevent the commission from understanding the allegations.

There are 5 judicial conduct commissions that provide a form that allows on-line submission of complaints:

The Massachusetts Commission recently reported that 79 of the 152 complaints it received in the first 2 quarters of 2016 were filed electronically using its on-line process.

The Center for Judicial Ethics has links to judicial conduct commission web-sites.