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Friday, April 1, 2016

Put a spotlight on judicial discipline
Joe Sweeney is founder of
CourtReformLLC.com.

Judicial misconduct is one of
the most important, underinvestigated and underreported
issues affecting Californians.
With judicial scandals and
corruption being routinely
exposed at all levels of the
courts, and the number of
exonerations doubling since just
2011, closer attention must be paid to the branch of government in which the public
typically places the most trust - the judiciary.
A small, relatively unknown agency, the Commission on Judicial Performance, has
one of the most important jobs in California - to protect the public from judicial
misconduct and maintain the integrity of California's judiciary, which is the largest in
the country. California's 2,200 judicial officers preside over more than 8 million cases
annually. The outcome of each one of these cases has a life-long impact on the
persons involved. Therefore, it is of great public importance that the commission fulfills
its mandate.
We expanded on a 2012 study published in the Stanford Law Review, which, for the
first time, analyzed discipline trends of state judicial oversight commissions across the
country. We took a closer at the numbers of California, Arizona, Texas and New York,
and the data suggest that California's commission severely under-investigates and
under-disciplines misconduct and misappropriates public funds.
Most states have multiple levels of discipline, ranging from private advisory letters
and admonishments, to public admonishments and censures, to removal from the
bench. In comparing the numbers reported by the commissions of California, Arizona,
Texas and New York over the past 10 years, the disparities were astounding.
Arizona's discipline rates were four times higher overall than California, and five times
higher for public disciplines. Texas and California received approximately the same
number of complaints, but Texas investigated three times as many complaints, publicly
disciplined three times as many judges, removed six times as many judges, and had
more judges resign with complaints pending. New York's discipline rates were
relatively similar to Texas, but New York had approximately 10 times more complaints
result in judges resigning, retiring or leaving office for other reasons with complaints
pending.
While not indicative of the exact cost of an inquiry or investigation, to get an accurate
picture of the budget efficiencies of the state commissions, we divided the total
commission budgets by the total number of inquiries and investigations conducted in
2014. The disparities were again staggering: approximately $1,500 per inquiry or
investigation for Texas, $8,500 for New York, and $23,500 for California. We also

Questions and Comments

performed an analysis of the workload and cost per staff member, and the results were
similarly disparate.
Thus, smaller, lesser-funded commissions appear to be performing more work than
California's commission: Arizona's commission has a budget of approximately
$500,000 and a staff of 4.5; Texas has a budget of approximately $900,000 and a staff
of 14; California has a budget of approximately $4,300,000 and a staff of 22; New York
has a budget of $5,500,000, but employs a staff of 45 and maintains three separate
commission offices in New York City, Albany and Rochester.
On March 28, our report was presented at an Assembly budget subcommittee
hearing. The committee heard testimony from colleagues, the public, many of who told
stories about how their lives had been harmed by judicial misconduct while the
commission failed to act, and myself. The commission's budget request was
temporarily tabled and the commission's director and chief counsel, Victoria Henley,
was instructed to discuss with commission members how the agency's accountability
might be improved.
While testifying before state legislators, and stating in an interview published in the
San Francisco Chronicle the same day, Henley called our report "erroneous" and
"deeply flawed," and attacked it on several grounds. Below, we dispose of Henley's
contentions.
Contention #1
Our report should not have included informal advisories and warnings as
disciplinary actions in Arizona.

In addition to public disciplines, Arizona's Commission on Judicial Conduct issues
private "Advisory Letters" and private "Warnings." California's commission also issues
private "Advisory Letters" and "Private Admonishments." The descriptions of the
private disciplines in the commission Annual Reports are similar and parallel. In fact,
Arizona's commission policies were modeled after California. Further, the types of
actions giving rise to these forms of discipline as described in the Annual Reports are
virtually indistinguishable. We reported these numbers for both Arizona and California
because not doing so would have created an unfair comparison. A contention that
private letters were not reported for California, or that the private "Advisory Letters"
and "Warnings" of Arizona are not similar to the private "Advisory Letters" and "Private
Admonishments" of California is misleading. But even ignoring these private letters
altogether, Arizona's rate of public discipline is still five times higher than that of
California at 3 percent versus 0.6 percent.
Contention #2
A likely reason for higher rates of discipline in Texas and New York is that a
large percentage of the judges in those states are non-lawyers and non-lawyer
judges are disciplined more often.

The Annual Reports of the New York State Commission on Judicial Conduct
separate the discipline data of lawyer and non-lawyer judges. So we performed a new
analysis, which is posted on our website. The data indicate that from 2005-2014, the
rate of discipline for non-lawyer judges was actually 0.3 percent lower than the rate for
lawyer judges - opposite of the commission's contention. A 2002 analysis performed
by the National Center for State Courts arrived at a similar conclusion to our own
regarding New York's lawyer and non lawyer discipline rates: "the statistics do not
necessarily support a conclusion that non-lawyer or part-time judges are more likely to
disregard the law." An assertion that non-lawyer judges are likely to be disciplined
more is also facially invalid because legal error, which a non-lawyer would ostensibly
commit more often, is not disciplined unless it is severe.
Contention #3
Elected judges are disciplined at higher rates than appointed judges.

Henley testified that judges who are elected to office are disciplined at higher rates
than judges that have gone through a selection process. She cited the commission's
own report of disciplinary statistics from 1990-2009. But in a much more rigorous
analysis of state discipline commissions across the country published in a 2012
Stanford Law Review it was concluded there was "no statistically significant
relationship between elections and discipline." Thus, California appears to be an
outlier again.
Contention #4
Private disciplines serve important purposes - educating the judge, deterring
future misconduct, and justifying punishment for further violations.

Such justifications are erroneous because public disciplines would result in equal or
greater education, deterrence from future misconduct, and justification for punishing
further violations. The real interests that must be balanced are the importance of
California's eighteen million registered voters being informed about judicial misconduct
at the ballot box and promoting transparency and accountability in the judiciary, versus
allowing a judge who has engaged in misconduct to maintain a clean public image. We
contend that maintaining a clean public image is less important than having informed
voters for judicial elections and promoting transparency and accountability, which
increase public confidence in the courts.
Contention #5
New York and California's statistics are not "apples to apples."

Henley testified to legislators that the numbers reported by California and New York
cannot be compared because New York reports the total number of complaints
resulting in a discipline, while California reports only the numbers of judges receiving a
discipline. By way of example, Henley testified, "all twenty-one of the resignations with
charges pending in New York may have involved the same judge. In California we only
count them by judge."
First, both California and New York report their numbers by the number of "complaint
dispositions." California's Annual Reports make no mention of complaints being
consolidated, or that two complaints were filed against the same judge for the same
action; every individual complaint is accounted for in the complaint diagrams. Thus,
the reports indicate that the method used is the same as New York - complaint
dispositions, not individual judges. If this is not true, then the number of complaints
actually filed in California may be underreported because complaints are being
surreptitiously consolidated or otherwise not reported. It would be in the public's
interest to be provided more detailed explanations, breakdowns, and analyses of the
complaints - like New York.
Second, a statement that 21 complaints could result in a single disciplinary action is
misleading because no single discipline in New York has ever arisen from 21
complaints. In fact, the data show that the majority of disciplines arose from a single
complaint. Because New York reports their data both by complaints disposed and by
the number of judges disciplined, we performed a further analysis, which is reported
on our website. Even when calculating the numbers as Henley would like, the actual
number of judges resigning, retiring, or leaving office for other reasons while
complaints were pending against them from 2005-2014 was approximately 242, which
is still seven times higher than California's 34 judges over the same period. Based on
the method used in our initial report, we cited a number that is 10 times higher, which
we still believe is correct absent further explanation. Either way, the picture does not
change.
Rather than defend numbers with misleading testimony and red herrings, the public
asks the commission to consider adopting the transparency policies called for in our
report and at the budget hearing. In concocting such erroneous defenses, it is clear
that the public is not the commission's priority. This was also evident in Henley's
defensive positions on every issue, stating that changes cannot be made without a
constitutional amendment, which is also misleading. Permissive language under

Article VI, section 18 of the California Constitution confers the commission with the
authority to create its own rules and implement any level of transparency and
accountability. If Henley's testimony is representative of the commission's position, it
appears that an agency mandated to protect the public is unwilling to listen to its
public. In that case, we hope the Legislature will take action to bring the level of
transparency and accountability that the public wants.

Joe Sweeney is founder of CourtReformLLC.com.

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