Academic journal article Justice System Journal

Judicial Disciplinary Hearings Should Be Open

Academic journal article Justice System Journal

Judicial Disciplinary Hearings Should Be Open

Article excerpt

As in any profession, there will always be some judges who engage in unethical behavior. This article, in which aspects of the discipline process are discussed, presents the argument that disciplining such judges is important governmental business that should be transacted publicly, once the responsible enforcement authorities have concluded their investigation and determined that formal charges are appropriate. Citizens have a right to know when a judge's integrity has been seriously questioned, and opening the process to public scrutiny would help to ensure that the process is and appears to be honest, which is a special concern whenever a profession polices itself. Thirty-five states have now adopted sunshine laws or rules regarding formal judicial disciplinary hearings; in so doing, they have put public education and confidence in the process ahead of the individual judge's reputational interest in keeping matters secret for as long as possible.

One hundred thirty-five judges in thirty states were publicly disciplined in 2006 for ethical misconduct (American Judicature Society, 2007). The sanctions ranged from relatively mild admonishments to removal from office in more egregious cases. Not surprisingly, intense local press coverage and public discussion often ensued in these cases, owing not only to the inherent significance in disciplining a judge but also in part to the "Man Bites Dog" nature of the story. Judicial discipline may be well publicized, but it is, after all, relatively rare. The 135 judges who were publicly disciplined last year represented less than one-half of 1 percent of the roughly 29,000 judicial officers serving in the fifty state judiciaries (Ostrom, Kauder, and LaFountain, 2001).

That public commentary would accompany judicial discipline may be a given. When it ensued would depend on the point in the process that the press and public learned about it. That in turn would likely depend on when or even whether a particular state's disciplinary proceedings become public under local law.

Judges are among the most powerful of public officials. They decide who goes to jail, who wins or loses millions of dollars, and who gets custody of children. In the discharge of those duties, and off the bench as well, judges are bound by ethical rules, which in most states have been promulgated based upon the American Bar Association's Model Code of Judicial Conduct. While the vast majority of judges are honorable and take their ethical obligations seriously, there will always be some who engage in disreputable behavior. Disciplining such judges is important business that should be transacted in public, just as any criminal trial and most civil trials would be. This argument is rooted in the Sixth Amendment's guarantee that criminal trials shall be public, in federal and state laws that render most civil proceedings public, and in the debates that shaped the drafting and adoption of the Constitution.

Alexander Hamilton wrote in the Federalist No. 78 that the judiciary has neither a sword to enforce its will nor the purse to fund its mandates. Its power derives from the integrity of its judgments. Public confidence in that integrity, and in the principle that the litigant will get a fair shake from an impartial magistrate, is essential to the rule of law. It is what encourages people to come to the courts rather than resort to the streets to resolve their disputes. That delicate balance would more likely be upset rather than protected by a system that put the judge's interest in his or her reputation above the citizens' right to know that the judge's integrity was at issue; that shielded from public scrutiny the very judges who must safeguard the right to a public trial for everyone else; and that encouraged skeptics to argue that in a self-policing system, judges and lawyers would protect their own (see Wasby, 1995). It would also deprive the appointing and budgeting authorities of an important tool to measure the bona fides of the disciplinary enforcers themselves. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.