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How Judicial Conduct Commissions Work

How Judicial Conduct Commissions Work

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 Judicial Conduct Commissions
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OMMISSIONS
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This article describes how the judicial conduct organizations established in all fifty statesinvestigate, prosecute, and adjudicate complaints about judicial misconduct. Noting the gen-eral rules and exceptions, the article covers commission membership, grounds for discipline,bifurcated systems, and supreme court review. Jurisdictional issues are discussed in light of the high dismissal rate for complaints and consideration of pre-bench conduct and continuing  jurisdiction over former judges. Major sections of the article are devoted to confidentiality atall phases of the proceedings (during investigation, after dismissal, and for formal proceed-ings) and the variety of available formal and informal sanctions.
o maintain and restore public confidence in the integrity, independence, andimpartiality of their judiciary, each of the fifty states, beginning with California in1960, has established a judicial conduct organization charged with investigating andprosecuting complaints against judicial officers. Although punishment plays an “unde-niable role” in judicial discipline (
 Johnstone,
2000, at 1234), protecting the public, notsanctioning judges, is the primary purpose of the judicial conduct commissions.
One way to protect the public is to remove the offending judge from office.. . . [A]nother way to protect the public is to keep it informed of judicialtransgressions and their consequences, so that it knows that its governmentactively investigates allegations of judicial misconduct and takes appropri-ate action when these allegations are proved. Judicial discipline thus pro-tects the public by fostering public confidence in the integrity of a self-policing judicial system (
 Johnstone,
at 1234).
In addition, sanctions deter further misconduct by the disciplined judge and otherjudges. Judicial conduct organizations (called judicial conduct commissions in this arti-cle) have different names in different states—commission, board, council, court, orcommittee—and they are described by terms such as conduct, inquiry, discipline,qualifications, disability, performance, review, tenure, retirement, removal, responsi-bility, standards, advisory, fitness, and investigation. All the commissions have somefeatures in common, but each is different, and the following description contains gen-eralizations that do not necessarily apply to every state. (Complaints against federaljudges under the Judicial Improvements Act of 2002 will not be discussed in this arti-cle [see Hellman, in this issue].)
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The judicial conduct commission has been established by a provision in the state consti-tution in twenty-eight states, by a statute in sixteen states, and by court rule in seven (seeTable 1). Judicial conduct commission membership ranges from twenty-eight members(Ohio) to five (Montana), although most commissions have between seven and elevenmembers. Most commissions have some members who are judges, some who are lawyers,and some called public members, lay members, or citizen members who are neitherjudges nor attorneys. A majority of the members are neither lawyers nor judges in eightstates (California, Hawaii, Iowa, New Jersey, New Mexico, North Dakota, Washington,and Wisconsin). Five states have a majority of judge members (Arizona, Michigan,Mississippi, Tennessee, and West Virginia). In some states, the judge members areappointed based on the court in which they sit. For example, the Arizona Constitutionspecifies that the Judicial Conduct Commission shall include “two judges of the court of appeals, two judges of the superior court, one justice of the peace and one municipalcourt judge” in addition to two attorneys and three citizen members (Art. 6.1, § 1A).In many states, the public members are appointed by the governor, the attorneymembers by the state bar, and the judge members by the supreme court; in somestates, the legislature must approve appointments. All members are chosen by thesupreme court in six states (Kansas, New Jersey, Ohio, South Carolina, Vermont, andWest Virginia). Other appointing authorities involved in some states include judges’organizations and legislators.
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ROUNDSFOR
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ISCIPLINE
The enabling provisions that create the commissions specify the grounds on which ajudge may be investigated and disciplined. These grounds frequently include willfulmisconduct in office, conduct prejudicial to the administration of justice that bringsthe judicial office into disrepute, persistent failure to perform judicial duties, habitu-al intemperance, and conviction of a crime. In some states, a significant violation of the code of judicial conduct, adopted by each state’s high court, is automatically con-sidered misconduct in office or conduct prejudicial to the administration of justice.However, in some states, a finding of a violation of the code is only the starting point,and whether the violation constitutes willful misconduct or conduct prejudicial tothe administration of justice requires additional analysis because prejudicial conductis considered less serious than willful misconduct.A judge commits willful misconduct if the judge violates the code of judicialconduct while acting in a judicial capacity and with malice or in bad faith—in otherwords, when the judge knew or should have known the act was beyond his or herpower or when the judge was acting for a purpose other than faithful discharge of judi-cial duties. Prejudicial conduct may be committed by a judge while acting either ina judicial capacity or in other than a judicial capacity and does not require bad faith
1
For more information on commission composition and membership, see the commission Web sites(http://ajs.org/ethics/eh_conduct-orgs.asp) or http://www.ajs.org/ethics/pdfs/Commission%20membership.pdf.
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Table 1Establishment of State Judicial Conduct Commissions
By State ConstitutionBy State StatuteBy State Court Rule
 Alabama Constitution, Article VI,§§ 157, 158 Alaska Constitution, Article IV, §10 Arizona Constitution, Article VI.I,§1 Arkansas Constitution, Amendment66California Constitution, Article VI,§§ 8, 18, 18.1, and 18.5Colorado Constitution, Article VI,§ 23Delaware Constitution, Article IV,§ 37Florida Constitution, Article V,§ 12(b)Georgia Constitution, Article VI, § 7, ¶ VIIllinois Constitution, Article VI, § 15Indiana Constitution, Article 7, § 9Kentucky Constitution, § 121Louisiana Constitution, Article V,§ 25Maryland Constitution, Article IV, 4AMichigan Constitution, Article VI,§ 30Mississippi Constitution, § 177AMissouri Constitution, Article V, § 24Montana Constitution, Article VII,§ 11Nebraska Constitution, Article V,§ 28Nevada Constitution, Article VI,§ 21New Mexico Constitution, Article VI,§ 32New York Constitution, Article VI,§ 22Pennsylvania Constitution, Article V,§ 18South Dakota Constitution, ArticleV, § 9Texas Constitution, Article 5, § 1-aWashington State Constitution, Article IV, § 31Wisconsin Constitution, Article VII,§ 11Wyoming Constitution, Article 5,§ 6.Connecticut GeneralStatutes, §5151kIdaho Code, Chapter 21,§ 12101Iowa Code, Title XV, Subtitle2, Chapter 602, Article 2,Part 1Maine Statutes, Title 4, § 9 BMassachusetts GeneralLaws, Chapter 211CMinnesota Statutes, § 490.15North Carolina Statutes, Article 30, § 7A-374.1North Dakota Code, 27-23-01Ohio Code, § 2701.11Oklahoma Statutes, Title 20,§ 1651Oregon Revised Statutes,§§ 1.410 through 1.480Rhode Island General Laws,Title 8, Chapter 16Tennessee Statutes, § 17-5-101Utah Code, Title 78, Chapter 8Virginia Code, § 17.1-901District of Columbia Code,§ 11-1521.Hawaii Supreme CourtRules, Rule 8Kansas Supreme CourtRules, Rules 602-627New Hampshire SupremeCourt Rules, Rule 38-ANew Jersey Supreme CourtRules, Rule 2:15South Carolina AppellateCourt Rules, Rule 502Vermont Supreme CourtRules for DisciplinaryControl of JudgesWest Virginia Rules of theJudicial DisciplinaryProcedure, Rule 1
JSJ 28-3-2 8/12/07 2:26 PM Page 407

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