In December 2021, NBC News posted an investigative report article "Robed in secrecy: How judges accused of misconduct can dodge public scrutiny." It is an interesting read and perhaps brings perspective to the challenges of society in comprehending the role of judges. It certainly brings the perspective judges need in appreciating the potential for society to have perceptions of this profession, its role, and its challenges.
I am reminded of a couple of great lines in Men in Black (Columbia 1997). New Agent J catches Agent K looking in on someone using a satellite, and Agent K quickly closes the image. Agent J kids "That grumpy guy story starting to come into focus a little bit." Agent K absent-mindedly rearranges items on his desk. Agent J reassures its "better to have loved and lost than never to have loved at all," to which Agent K replies "Try it." The real point of the exchange is that it is hard to appreciate the challenges people face when you have never walked a mile in those shoes. Perhaps there is a reason someone has a "grumpy guy story," and we just don't know it? See Starfish (February 2022).
The NBC News story is disturbing in its own right. Perhaps one may assuage one's conscious by clinging to the premonition that its examples are outliers, exceptions, or even overstatements? However, the examples are troubling in any light and worthy of our consideration and contemplation.
A New York county judge is featured. He is apparently known for invoking “judicial contempt,” having parties handcuffed, and in some instances jailed. Examples include a party that "asked him to recuse himself," "a mother who had an outburst when she felt ridiculed," and "a grandmother who contested turning over her grandson to his allegedly abusive father." Perhaps those individuals were having a bad day and got outside of the lines. Perhaps the judge might have recognized that and guided them back into the lanes before meting out punishment?
The inclination is perhaps to give the judge the benefit of the doubt. That is part of the "being a judge," as Agent K challenged "try it." I have come to accept over the years that "being a judge" does come with some benefits. Lawyers are quick to return a phone call, seemingly happy to shoot the breeze at some seminar, largely deferential, and cordial. This is seemingly true for all judges.
But, before one is too deferential in the New York example, it is worth noting the same judge has been accused of “undignified comments," "presiding over cases in which his impartiality could be" questioned, and "representing family members and friends in personal cases." As regards such behavior generally, See Revisiting Judicial Discipline (May 2022) regarding judges practicing law. After a recommendation that he be removed, the judge reportedly resigned instead.
There has recently been a fair amount of judicial allegation and discipline in the news. See Sign Language and Curiosities (July 2022), Revisiting a Judicial Discipline (May 2022), and Another Judge Makes the News (May 2022). We can conclude that the New York story from NBC is not unique. But, the author points us to an interesting impact of the Federalist foundation of our county.
Federalism describes our governmental process in which there are overarching federal laws and a variety of state laws that are specific to smaller portions of our country. Similarly, within a state, it is sometimes possible for various subdivisions (counties, parishes, cities, towns, districts) to also have regulations and laws that differ from their neighbors. This is aptly illustrated with Oxford, Mississippi, a "wet" city in a somewhat "dry" county, in an otherwise wet state.
NBC notes that when ethics charges are filed against a judge in some states, the allegations become public very early in the process (citing "New Jersey, Pennsylvania(,) or Vermont" as examples). It acknowledges that the timing "can differ broadly among states," and in some instances judges will continue to preside "months or years before even credible complaints are" subject to public scrutiny. The authors quote a legal ethics professor in support that "Judicial misconduct undermines confidence in our justice system.”
The article is also skeptical regarding the comfort one might take from the low volume of judges that are punished. The authors contend that this does not necessarily reflect a functional and appropriate judiciary, but perhaps merely a "lack of accountability." It notes that about 1% of judicial complaints result in a punishment known to the public.
I anticipate any lawyer you spoke with would likely be able to relate some tale in which they perceived the judge as being out of line, inappropriate, or worse. Whether any report of conduct was ever filed by the lawyer would be an interesting inquiry. as would whether the particular behavior described would be serious and actionable. Why such allegations in a particular instance are not brought to the authorities would also be worthy of consideration.
The NBC authors describe the state discipline processes, including commissions, codes of conduct, and processes for considering complaints. Focus is brought to the fact that judges are under scrutiny persistently and can be disciplined for behavior "inside a courtroom as well as outside, including on social media." That may come as a surprise to some, but is absolutely true. As noted in Revisiting Judicial Discipline (May 2022):
“[A] ‘judge is a judge 7 days a week, 24 hours a day,’”
As agent K challenged, "try it."
There is an insinuation in the article of investigations or at least processes and procedures being unbalanced. This is mentioned specifically in terms of when allegations become public, and there is suggestion that it may also be perceived in the decisions as to whether punishments are "private" or "public." One law professor is quoted critically:
“We have to recognize that oftentimes we have judges judging judges, and they’re ultimately in control and judging their own.”
In terms of public perception, that potential for parochialism is troubling. How the public perceives such complaint processes, investigation, and outcome reporting is important from a perception and confidence standpoint. There are multiple other issues noted by NBC of process transparency, punishment variety, and even the methods state apply in imposing investigatory costs. In short, there is significant variety across the states, and several sources quoted in the article are critical of judges, investigatory processes, and public access to a variety of information involved.
As I have conducted literally dozens of judicial complaints over the last two decades, I am perhaps as well acquainted with the balance questions as any. If the critics cited in the article have been involved in such investigations, that is less than clear. Largely, those "experts" do not appear to have been judges, been involved in supervising judges, or been involved in receiving, investigating, and closing judicial complaints. Their "expertise" as academics or observers may not be as pervasive as one might hope.
However, what is clear is that anyone can make an allegation against a judge of anything at any time. Regardless of the expertise of the critics involved in such a complaint, or in the analysis offered by NBC, there is real importance to both the process and the perceptions of the public regarding the process, outcome, and results. We might respect the article's criticism of when and how the public is made aware of allegations. We might also question, however, whether the public any better served if such scurrilous allegations are made public very early in an investigation? What if the allegations cannot be substantiated? What if the allegations turn out to be patently false.
False? In various instances, I have spent hours listening to trial proceedings. In many instances, those recordings were never paused or adjourned, and yet some comment allegedly made by a judge or some assertion of right or fact alleged to have been made by some party or witness is simply not present on the recording. In one investigation, when I informed a party that I had listened to the entire recording in search of the alleged comment, the only response was "That was all recorded?" Yes, and that very reaction is perhaps part of why many judges will not interact with lawyers, parties, or witnesses except in a proceeding and with that recorder running. One Judge I know proudly notes periodically "I don't go off the record."
Will the public be receptive to a "page 10" story that reports the dismissal of an allegation? Will it be as receptive to that as it may be to a "page 1" story of the scurrilous and even dramatic allegations when they are made? Is the public confidence in the judiciary thus benefitted from the early publication of inflammatory invective even before it is considered and investigated? Would the experts commentating on the topic advocate the same public scrutiny in their law professor occupations? If a student in the professor's class makes an allegation of inappropriate behavior should that be public and "page 1" before investigation? How about if such allegations are made against someone in the news business?
Or, would the public perception be better served if such allegations were appropriately and timely investigated, documented, and determined? Is the path to better understanding through more transparency in the process and outcome, or in early public disclosure of the base allegations? These are difficult questions, but are paramount in the overarching goal that underlies the Code of Judicial Conduct, that judicial behavior "promotes public confidence in the integrity and impartiality of the judiciary?" Canon 2, Code of Judicial Conduct.
In the end, there is much to think about in the realm of judicial behavior and performance. There are perspectives on the topic worthy of consideration, from the public, academia, the judges, and those charged with investigating complaints and allegations. In all, the process will be challenging and outcomes may at times be controversial from particular perspectives. However, a broader discussion and consideration of the topic would be a worthy start to any analysis. Not all who might comment or opine on the process need be judges or former judges, but an analysis that focuses only on the perceptions of academics creates its own challenges and doubts.
