Academic journal article Judicature

The Worst-Kept Secret in the Courthouse

Academic journal article Judicature

The Worst-Kept Secret in the Courthouse

Article excerpt

Imagine the anxiety of a litigant involved in a custody battle or criminal case, feeling out of place and apprehensive even if represented by counsel. Imagine the litigant's shock if she smells alcohol on the breath of the judge-the person authorized to make decisions that will change her life-or learns from her counsel that the case cannot proceed as scheduled because the judge is impaired, or reads in a newspaper that the judge was arrested for driving while intoxicated. Imagine the litigant's disillusionment if she learns that this is not the first or even 11th time this has happened. Imagine the loss of public confidence in the judiciary that results as she tells her story over and over to her family and friends.

Restoring public confidence in the judiciary is the duty of state judicial conduct commissions and supreme courts that review their decisions. No judge has ever been disciplined for suffering from alcoholism. But many of the signs and symptoms of alcoholism-hostile behavior, frequent absences, and inappropriate behavior and moods-are also the types of behavior that lead to violations of the code of judicial conduct-violations of the law, delay, and intemperate behavior, for example. Therefore, judicial conduct commissions inevitably receive complaints from litigants and witnesses, if not court staff, attorneys, or other judges, about misconduct that is attributable to alcoholism (and in some cases other addictions or impairments). Deciding the appropriate sanction in such cases requires the commissions and courts to weigh the importance of public confidence against the fact that the judge is suffering from a disease.

Mitigating factor

Although the seriousness of the misconduct is a crucial factor in determining the appropriate sanction in judicial discipline cases-and presiding while intoxicated, for example, is very serious misconduct-state commissions and courts also consider whether there are aggravating or mitigating factors. One of the typical mitigating factors identified in all types of cases is whether the judge has evidenced an effort to change or modify his conduct. In a recent informal survey of the state judicial conduct commissions by the Center for Judicial Ethics, all 22 responding state commissions stated that the majority of their members "would agree with the statement, 'usually, a judge's efforts to receive treatment for an impairment are a mitigating factor when determining the appropriate sanction in a case in which misconduct appeared to be caused by the impairment.'" Thus, while commissions and courts do not accept alcoholism as an excuse for misconduct by a judge, they do recognize that alcoholism is a disease and consider obtaining treatment for the disease a mitigating circumstance when deciding what sanction is appropriate, imposing a sanction less severe than removal of the judge.

For example, the Florida Supreme Court publicly reprimanded a judge who had attempted to commit suicide after drinking alcoholic beverages heavily for three days.1 After the incident, the judge voluntarily admitted himself to a substance-abuse clinic as an in-patient for a month of examination and therapy. He then entered into a rehabilitation contract with the Florida Lawyers Assistance Program and had complied with all its terms, including continuous monitoring and random testing for substance abuse. He also joined Alcoholics Anonymous and had maintained 345 continuous days of sobriety prior to the hearing before the Judicial Qualifications Commission. At the hearing, many witnesses, including fellow judges, public officials, and practicing attorneys, testified that the judge was now functioning well on the bench. Finding this was a very strong case for mitigation, the court concluded:

This record overwhelmingly describes a judge who has been an outstanding public servant for some twenty years, generously giving his time and energy for the betterment of this state and its judiciary, whose work is highly regarded by respected citizens, jurists, and attorneys. …

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