In the United States, the first Canons of Judicial Ethics were adopted by the American Bar Association (ABA) on July 9, 1924. These Canons have been edited by the ABA over the years but remain the standard for most state judiciaries. Law schools, judicial training organizations, and the legal ethics community in general refer to the Model Code of Judicial Conduct as the benchmark. The original standards came about after a public scandal brought the issue of judicial accountability to light in the early 20th century. The case for judicial ethics standards continued to gain steam due to the efforts of Chief Justice of the Supreme Court of the United States (and former president of the United States) William Howard Taft. Decades later, individual states began creating their own conduct commissions to enforce the Code of Judicial Conduct. In 1960, California was the first state to create a judicial conduct commission. Now, all 50 states (as well as the District of Columbia, Guam, and Puerto Rico) have similar agencies. Most of the current state judicial conduct commissions were created between 1965 and 1980.
The Role of Judicial Conduct Commissions
In civilized life, law floats in a sea of ethics.
—Chief Justice Earl Warren
Judicial conduct commissions (JCCs) have a simple role but a complicated mission. While sanctioning or even removing a judge from office is part of the JCC’s function, it is not the main purpose. A JCC’s role is simply to protect the public. However, this must be done without encroaching on the independence of the decision-making function of the judicial branch. While walking that line, a JCC must use more than mere declaratory statements to perform its duties. It is incumbent on an ethics commission not merely to theorize on proper or improper conduct but to effect change and correct conduct if possible. Accomplishing this goal while honoring the cornerstone principle of judicial independence requires a fine balance. Development of case law, rules of procedure, and substantive ethical canons all have shown that official corruption and improper workplace behavior fall directly into the bailiwick of these agencies.
As many judicial offices do not have traditional human resources departments (and the conduct may be beyond the reach of a general government human resources department because of separation of powers), the conduct commission may be one of the only resources for complainants. The ability of a JCC to investigate ethical misconduct expands the limited scope that may curtail a criminal investigation at its genesis. Once the conduct commission opens an investigation, additional evidence may result in a criminal case. In this way, a wider range of allegations can be handled and referred to other agencies if necessary. Conversely, a criminal prosecution is more limited by the elements of the offense and the high burden of proof than a JCC investigation. While any criminal offense will necessarily also be a Code violation, conduct commissions are designed to address a broader swath of improper conduct than are criminal law enforcement agencies.
Goals for Equipping Judicial Conduct Commissions
The goals for equipping JCCs to address judicial ethics issues should be threefold. First, the conduct commission should be able to perform meaningful investigations of complaints. This includes proper funding, staffing, investigative tools (subpoena power, etc.), and sanctions available to effect change. Clearly communicating with the public about the process and the result is a vital part of the investigation process. Due Process considerations for the accused are a cornerstone principle. Appropriate protections for the accused must be factored into the construction and execution of the process.
Second, the commission should lead the way in training for judicial officers and their staff members. A clear message on the obligations of managers, staff members, and bystanders should be presented. Preserving judicial competence depends on the judiciary being trained in both judicial ethics and subsequent legal implications. Education promotes the effective administration of justice by increasing efficiency and efficacy to the benefit of the public. As such, judicial education in ethics is a primary means of building public confidence in the judiciary.
Third, the commission should be actively involved and proactive in matters of policy. Adapting current rules or creating new ones to address the issues should be done on a constant, forward-looking basis. The conduct commission should endeavor to always have a seat at the table and lead in the effort to promulgate germane rules of ethics for the judiciary.
Overview of Conduct Commissions
The Judiciary cannot exist without the trust and confidence of the people.
—Chief Justice Jim Hannah, Arkansas Supreme Court
The average citizen cannot be expected to brush off improper or undignified behavior by a judge. The power imbalance is such that an employee, party, or other professional in that court has no way to respond without fear of a harsh or vindictive counter response from a powerful public official. JCCs serve to shepherd the concerns of the public toward judicial accountability. The jurisdiction, funding, authorized investigation tools, and fundamental construction of JCCs directly affect their usefulness as an effective enforcement mechanism for judicial ethics codes.
The Construction of Judicial Conduct Commissions
Materials concerning the construction of JCCs are readily available. The National Center for State Courts (NCSC) provides easy-to-read charts on the subject. These commissions can be effective whether created as a constitutionally independent agency, established by legislation, or created as a creature of a state supreme court via court rule. Whether they are a two-tier or one-tier system (having one body or, generally, a separate investigative and adjudicatory commission), they are at their best when composed of diverse commission members who then provide meaningful remedies.
Composition of the Commission
The commission members may serve in multiple roles or may have specialized mandates. Depending on the structure chosen by the jurisdiction, they serve on investigation panels (similar to a federal grand jury), hear cases as the trier of fact (like a petit jury), or even supervise the business facet of the JCC as the “board of directors.” Judges, lawyers, and citizen members are the three broad groups that fill membership. Commissions with broad representation are preferred. But a glance at the charts mentioned above will show that there are varied formulas. Some JCCs still have an adjudicatory body that is made up entirely of judges or majority judges. This was one of the issues advanced in a 2006 report to the chief justice of the Supreme Court of the United States. In that report, directed by Justice Stephen Breyer, the panel noted that “[j]udges judging judges doesn’t work and is not accepted by the public as appearing to be fair and neutral.”
Meaningful Remedies Available
JCCs often make declaratory statements as the final action taken pursuant to a complaint. Admonishment, reprimand, censure, and other terms are used for differing levels of rebuke. Regardless of the terms used, they should be clearly defined for the public, should have practical meaning, and should be imposed in a way that articulates consistent application. Beyond merely declaring behavior improper, a JCC should have the power to require remedial measures from a judge. These can include educating, monitoring, mentoring, counseling, or other practical efforts to correct the behavior.
The ultimate sanction is the ability of a JCC to impose or recommend suspension or even permanent removal of a judge. Removal and disqualification from future judicial service are commonly based on factors set out in the law and are rarely utilized remedies. To determine the appropriate sanction, we consider the following nonexclusive factors: (1) whether the misconduct is an isolated instance or evidenced a pattern of conduct; (2) the nature, extent, and frequency of occurrence of the acts of misconduct; (3) whether the misconduct occurred in or out of the courtroom; (4) whether the misconduct occurred in the judge’s official capacity or private life; (5) whether the judge has acknowledged or recognized that the acts occurred; (6) whether the judge has evidenced an effort to change or modify their conduct; (7) the length of service on the bench; (8) whether there have been prior complaints about this judge; (9) the effect the misconduct has on the integrity of and respect for the judiciary; and (10) the extent to which the judge exploited their position to satisfy their personal desires.
The ability to reverse a public election or proper appointment is a dire matter. Yet, without it, the most serious cases would have only political remedies, such as impeachment by another branch of government. In sum, a properly equipped JCC serves as an effective tool for enforcing judicial ethics codes and holding the judiciary accountable.
Between 2021 and 2023, state court judicial discipline commissions issued 375 public sanctions and removed 15 judges from office. This does not include numerous private sanctions, warnings, and other remedies used that are short of “public discipline.” One would be hard-pressed to find numbers that are even close to this in the other branches of government.
Accountability Matters
While judicial decision-making independence is foundational to a free society, there must be accountability for misconduct and ethical lapses by judicial officers. As part of the State of the State Courts survey conducted every year by NCSC, in 2023, focus groups were commissioned to discover prevailing public opinion on confidence in the state courts. The research targeted audiences that have demonstrated relatively lower levels of confidence in state courts. In-person focus groups were conducted in Chicago; Arlington, Virginia; and Phoenix, while online focus groups were conducted with rural, small-town, and exurban residents drawn from across the country. The result reinforced the belief that the courts face challenging times. Distrust and lack of belief in the courts are growing sentiments among all demographics. It seems that the responsibility for correcting that trend falls squarely on judicial branch leaders.
Focus groups would be presented with information. Then, they would comment and answer various questions about the judiciary. After initial polling and feedback, new information would be added to see the impact of those same comments and answers. One such addition was the message on accountability that follows:
State courts are specifically designed to hold judges accountable and ensure they do not abuse the power of their office. Judges are subject to a strict code of ethical conduct and can be disciplined or removed from office for ethical violations. State court judges must publish a legal explanation of the reasoning behind the decisions they make, their decisions can be appealed to a higher court for review, and most court records are available to the public online.
Not surprisingly, the consensus level of confidence in state courts went up in the focus groups when they were informed about the methods of judicial accountability. While the public may not know much about state JCCs, when informed, it helps them believe in the quality of justice in their state. It behooves the judiciary to support measures that hold it accountable. While the vast majority of judges serve with honor, ethical missteps should be corrected and major breaches of trust should be acknowledged. The judiciary should be willing to help develop ethical standards and be an active part of any enforcement mechanism, such as the effective utilization of JCCs.
Of course, there are always concerns that JCC complaints will be used by partisan or issue-oriented political groups. While no one can promise that the complaint process will not be used in this manner, the bottom line is that there is no excuse for shielding this important government function from public view. “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. … [An] enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” After all, the operations of the courts and the judicial conduct of judges are matters of utmost public interest. These kinds of criticisms may be particularly strong in states where judges are elected or face public retention elections. Admittedly, an “official complaint” sounds serious and may be used in election rhetoric to attempt to stain a judge or candidate. Nonetheless, this stigma can be overcome by educating the public about the process and telling the press the truth: A complaint filed against a candidate is nothing more than an unproven allegation.
Conclusion
The judiciary runs on the trust and confidence of our citizens. It is incumbent on judicial leaders to employ best practices to enhance judicial ethics enforcement, training, and education. This helps create trust. Our citizens need to experience a judiciary that provides fair and equal justice.
To quote former U.S. President Theodore Roosevelt: “No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it. Obedience to the law is demanded as a right, not asked as a favor.” The judges who administer justice in our countries must be seen as ethical and subject to meaningful correction when it is necessary. The judiciary is the heart and soul of our democracy. It is where we keep our fundamental promises to our citizens and support equal justice for all. Judicial ethics support the third branch of government by shoring up vital public confidence. State JCCs play a vital role in protecting the public and defending the rule of law.