When I watch legal maven Judge Judy, the sharpness of her tongue never ceases to amaze me. She tells people to shut up, she calls them stupid, and if a person’s conduct is particularly egregious, she may even call them a moron. Luckily, for those whose cases go before judicial branch jurists, there is recourse when a judge misbehaves in this manner. Like the attorney disciplinary commissions, there are state judicial misconduct commissions, and attorneys are among those who evaluate complaints of judicial misconduct.
Judging Judy: Revealing the Attorneys and Agencies Who Judge the Judges
Marcus Alan McGhee
Judicial Inquiry and Misconduct Commissions
All 50 states and the District of Columbia have a judicial misconduct board comprised of judges, lawyers, and citizens to screen and investigate allegations of judicial misconduct and, when appropriate, file judicial disciplinary charges. Depending on the jurisdiction, members are either appointed by state legislators, the governor, or by virtue of elected judicial office. In the case of attorney members, they are typically elected by members of the state bar association. While they are the lesser-known sister organizations to the attorney disciplinary commissions, these agencies play a vital role in ensuring that judges act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.
The Complainant
Generally, complaints are written, signed, and submitted by laypersons, litigants, attorneys, and judges alike. The fear of retaliation or of being ostracized can discourage individuals from filing a complaint. Luckily, the Center for Judicial Ethics notes that complaints filed with state judicial conduct commissions remain confidential up and until formal charges are filed, or even later in the process for certain jurisdictions. Certain commissions will accept anonymous complaints and become the complainant if they have information to independently corroborate the allegation (i.e., the judge’s name, nature of the complaint, case name, case number, date of incident, or the contact information of witnesses).
Ethics and Compliance Attorneys
Attorneys who evaluate these cases consistently call upon a skill that each of us attempted to master in our first-year legal writing course—issue spotting. They must sift through pages—sometimes hundreds of pages—to discern whether an ethical violation has occurred. This is somewhat challenging as most judicial review boards lack jurisdiction to address complaints raising only issues for appeal, discussing legal error, or stating their general disagreement with the ultimate decision. Additionally, these practitioners are not given explicit statutes or an exhaustive list of unacceptable behaviors to enforce. Instead, these lawyers must apply the general standards of ethical conduct to fact-specific circumstances to determine if a judicial officer met their elevated burden of responsibility. These rules are promulgated in each jurisdiction’s Code of Judicial Conduct.
Evaluating Misconduct Allegations
Although we might find Judge Judy’s commentary humorous, the Model Code of Judicial Conduct (MCJC) demonstrates that such commentary is to be afforded no refuge in the judiciary. Rule 2.8(B) of the MCJC, in relevant part, states that “a judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity.”
Over the years, judges have been disciplined for making myriad of inappropriate comments to law students, attorneys, litigants, and court staff. In California, Judge Gary Kreep told a law student intern, “If you’re good during your argument, I’ll give you some cookies, little boy.” This same judge asked a defendant charged with prostitution, “Is it you like the money? Or you just like the action?” For his comments, he received a public censure. In Pennsylvania, each time a self-represented litigant made an objection, Judge Maryesther Merlo repeated, “Rover has a bone.” She was removed from office for this and other misconduct. When Judge Kimberly Brown of Indiana became frustrated with a deputy prosecutor’s performance, she commented to a court employee, “She should have used that law school money and gone to Jenny Craig instead.” She was removed from office for this and other misconduct.
Getting Involved
The Center for Judicial Ethics reveals that there is at least a two-prong system in all jurisdictions: one agency that investigates and another that issues the final discipline. Some states even have a third agency that advises judges on the ethical rules before taking a particular action. Attorneys interested in pursuing a career in judicial ethics should participate in professional responsibility associations and review their state’s constitution to determine which agency has been charged with judicial oversight.