Why all 50 states need to overhaul their judicial oversight agencies

State legislatures — we have a problem

Judges make life-altering decisions every day. Whether through rulings in individual cases or through the establishment of case law, judges intimately impact the life of every American.

As a matter of public safety it is crucial to ensure that judges are making decisions free of corruption, cronyism, and bias.

The main line of defense against these evils are state judicial oversight agencies, which are charged with investigating judicial misconduct — violations of judicial ethics — and disciplining judges accordingly. The other core function served by these agencies is to refer criminal conduct to appropriate authorities such as an attorney general, district attorney, or federal agency.

But these judge watchdogs operate more like national security agencies than agencies responsible for overseeing public officials presiding over public courtrooms conducting the public’s business. The agencies withhold vital information about the conduct of judges, including complaints and private disciplines.

Why is information that would impact judicial elections and provide insight into the performance of judges being withheld from the public — including instances of actual misconduct that are being privately disciplined by secret letters?

To understand why we must take a look at the common beginning.

Follow the flawed leader

In 1960, California became the first state to establish an independent judge oversight agency, called the Commission on Judicial Qualifications. The members of the California commission appeared at conferences throughout the country extolling the virtues of the agency. Eventually, all 49 other states would follow suit and establish their own independent agencies, largely copying the provisions of the California commission.

The commissions were formed primarily to relieve state legislatures of the burden of investigating and impeaching judges, which was the only method available to remove a judge other than a recall election. Both options consumed tremendous resources of time and money and neither provided intermediary discipline for lesser ethics violations.

The idea of establishing a tough, independent agency to oversee the conduct of judges was a good one, but California’s commission had fatal flaws that have never been corrected.

First, the commission was autonomous and did not have to answer to anyone. While intentions may have been good — to keep politics out of judicial discipline — these agencies quickly evolved into Star Chambers, selectively investigating and disciplining judges. No Accountability.

Second, the commission was permitted to keep its records confidential and to issue private disciplines, becoming a black hole for allegations of judicial and criminal misconduct. Secrecy.

Third, the members of the commission were unpaid, met a limited number of times per year, and a majority were judges. While some commissions have changed their makeup over time to reduce the influence of judges, many commissions remain judge heavy. Commissions still meet a limited number of times per year, have inadequate support staff, and the members remain unpaid despite the fact that the number of complaints have increased immensely since the 1960s. An advocacy organization estimated in a recent report that California’s commission members spend on average approximately three minutes resolving each complaint. You get what you pay for. Conflicts of Interest & No Pay.

These flaws create a dangerous equation:

No Accountability + Secrecy + Conflicts of Interest + No Pay = Severe Risk to Public Safety

California’s flawed provisions were copied by every other state oversight commission because, well, California must have known what it was doing, right?

But it didn’t.

A federal Court of Appeal just called the show

In July 2016, judicial complaints were addressed for the first time by a three judge federal Court of Appeal panel, which determined that the Department of Justice did not have sufficient justification to redact the names of federal immigration judges from complaints that were sought in a Freedom of Information Act request. In deciding why the DOJ was wrong to redact judges’ names, the panel wrote:

“For instance, in the case of a sitting judge with a substantial number of serious and substantiated complaints, knowledge of her identity would enable the public to examine her official actions (including decisions), both past and future, and to assess any possible implications of those complaints for the conduct of her official responsibilities. By enabling the public to make such connections, knowing the identity of that judge could shed considerably more light on “what the government is up to,” … than simply knowing about the existence of some anonymous judge with a certain number of complaints against her.”

To paraphrase, “Judges are public servants and we have a right to know what they’re doing.”

Not only did the federal court conclude that complaints should be disclosed, but with judges’ names unredacted. Only one state oversight agency publishes complaints at all, with judges’ names redacted. Thus, the judicial oversight agencies of all 50 states are operating contrary to the public interest.

Begin the race to overhaul

The state of Georgia is the first to begin an overhaul. On November 8, 2016, Georgians voted by a nearly two-thirds majority to abolish their secretive Star Chamber and replace it with an agency whose rules are controlled by the state legislature — effectively giving the power of judicial oversight back to the People of Georgia.

Hopefully, Georgia will follow the federal court’s reasoning and will set an example for the rest of the country by creating a modern, transparent, accountable judicial oversight agency.

A few words of advice: publish unredacted complaints after they’ve been decided along with reasons for dismissal or discipline, publish the votes of commission members, one or two retired judges on a 9 or 11-member panel is plenty, preventing corruption and misconduct should be a full-time, paid position — not a quarterly paid pizza party.

Justice reform has become a centerstage political issue. The California legislature has begun its attack on the state’s judicial oversight agency, but a runner-up prize in the race to overhaul still awaits. Seems like a prize that would win state lawmakers a lot of votes.