February 8, 2007
By Suzanne M. Blonder
A feud between Michigan Supreme Court justices over the confidentiality of their deliberations has begun to throw much needed sunlight on a state judiciary that has operated behind closed doors for far too long. Justice Elizabeth Weaver's recent call for transparency should extend to the state's secretive system for disciplining and removing judges who have abused their power on the bench.
On Jan. 17, the Michigan high court conducted a hearing to identify reforms needed to fix the state's badly broken Judicial Tenure Commission -- the body charged with taking action against unethical state judges. The loudest sounding call came from citizens demanding more information about judges' misconduct and some examination of the hundreds of complaints dismissed annually without written explanations.
Every day, individuals appear in Michigan courts without knowing whether the judge presiding over their case has any history of misconduct because the vast majority of discipline against judges in the state takes the form of private, closed-door sanctions. We wish we knew what sorts of offenses got pushed under the rug -- but that is precisely the problem: we are not told. A judge may have flagrantly violated the state's Code of Judicial Conduct, repeatedly mistreated litigants or even accepted bribes from lawyers -- and in most cases, we would never be the wiser.
Without naming names, the Michigan Judicial Tenure Commission found 35 major ethical transgressions by state judges in 2005 -- not merely alleged violations, but proven offenses. Only two of those cases resulted in formal, public discipline. In the other 33 instances, the Commission elected to issue confidential sanctions and to purposefully seal all information from the public record.
Because private sanctions hold no real professional consequences, judges have nothing to fear from these informal slaps on the wrist. Closed-door discipline simply does not function as a meaningful deterrent against abuses of judicial power. In a system where, according to a 2001 Justice at Stake study, more than one in four Americans doubts judges' honesty and half believe judges are "controlled by special interests," an open record of judges' conduct is critical.
But simply publicizing sanctions is not enough to protect Michigan's litigants. Ninety-five percent of the complaints received by the Judicial Tenure Commission in 2005 were quickly dismissed without any explanation, leaving litigants to wonder whether their complaints received any real consideration and calling into question the integrity of the process. And strictly from a practical point of view, a token notification of a dismissal without an explanation prompts many to file new inquiries which, in turn, sap commission resources.
Explaining the decision to dismiss would help the commission avoid the appearance of impropriety and, more important, demonstrate respect for citizens' rights to voice concerns about judicial misconduct.
Public accountability for Michigan's judges may be just around the corner. Given the vocal call for transparency recently raised at the hearing, the state Supreme Court now enjoys a real opportunity -- to transform the Judicial Tenure Commission into a model system of transparent judicial oversight that strengthens citizens' trust in their local judges and restores integrity to the state's third branch. Do the hundreds of thousands of parties who come before judges every year in Michigan courtrooms deserve any less?
Suzanne M. Blonder is senior counsel at HALT -- An Organization of Americans for Legal Reform, a nonprofit public interest group in Washington, D.C. E-mail: letters@detnews.com.
© 2007, The Detroit News
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