Study: State low in judge discipline

June 21, 2008

Tennessee's system of evaluating judicial misconduct is too secretive and does not include enough ordinary citizens in the process of disciplining judges, according to a new study by a legal watchdog group.

"Judges are being allowed to judge other judges in Tennessee when it comes to ethical breaches," said attorney Suzanne M. Blonder, senior counsel for Halt Inc., a Washington, D.C.-based, nonpartisan group that monitors accountability in the judicial system. "That gives the appearance of impropriety and makes the system seem self-protective."

Tennessee's commission responsible for overseeing judicial ethics is a 16- member panel called the Court of the Judiciary. Halt's 2008 judicial accountability report card, released this week, ranked the state's procedures for disciplining judges as 31st in the nation based on criteria such as public participation and transparency. Washington state's system of judicial oversight ranked first in the study, while those in Maine and Mississippi tied for last place.

The report card noted that only three people on Tennessee's Court of the Judiciary come from nonlegal backgrounds. Three other members are licensed attorneys, and the majority - 10 in all - are judges from across the state.

The Court of the Judiciary also has sole discretion, in accordance with state law, to sanction judges privately if it chooses to do so, the study reported, a method in which the public "rarely learns of the judge's history of misconduct."

Members of Tennessee's Court of the Judiciary describe a system of oversight that they say is tough when it comes to calling out judges who don't play by the rules.

Three Tennessee judges have received public reprimands so far this year for actions ranging from discrimination against illegal aliens to incarcerating a man for 68 days without due process. Another judge in Cocke County is awaiting trial on allegations of nepotism.

"Overall, our performance has been even-handed. I don't see any favoritism," said Judge Steve Daniel, of Murfreesboro, who serves as the head disciplinary counsel for the court and is charged with the initial investigation of each complaint filed against a judge.

Ms. Blonder argued that to maintain neutrality in the justice system, ordinary people at least should have a majority voice in deciding how to reprimand judges, regardless of their legal knowledge.

"If a jury of ordinary citizens can be trusted to decide complex, multimillion-dollar civil cases and life-or-death capital cases at the criminal level, certainly we can trust lay persons to help decide ethics cases against judges," she said.

Judge Daniel said he disagreed with the notion that having more people from the general public would make the court's disciplinary process more legitimate.

"The lay members have a say in what happens," Judge Daniel said. "But often they're ill at ease with some of the legal procedure."

Paul Neely, who was appointed by Gov. Phil Bredesen to serve on the court and is one of the three members with a nonlegal background, said he has a "great respect" for the judges who sit next to him.

"They wound up on (the Court of the Judiciary) exactly because they are regarded for their ethics and professionalism," Mr. Neely said.

As former editor and publisher of The Chattanooga Times newspaper, Mr. Neely also defended the private sanction process. Under state law, private sanctions generally amount to a sealed letter reprimanding the judge that can be used in the future to impose tougher sanctions if the misconduct continues.

"Are (private sanctions) 100 percent OK with me?" Mr. Neely asked. "No, because my inclination is to let sunshine in. But so many of the complaints (against judges) are baseless and groundless that the political outcome could become unfair."

Of the about 400 complaints the Court of the Judiciary receives every year, 95 percent are dismissed because there is no factual basis or evidence to support them, Judge Daniel said. Most complaints come from convicted criminals who are unhappy with the way their cases turned out, Judge Daniel said.

Ms. Blonder said the problem with Tennessee's private letters of reprimand is that "they're so lenient that they do not adequately deter judges from abusing their power on the bench." The most egregious actions, however, lead to public reprimands, Judge Daniel pointed out. In rare instances, a judge may elect to go through a trial to dispute allegations of misconduct.

Usually, he said, the reprimand is a published document filed with the Tennessee Supreme Court that gives a detailed description of what the judge did. That document is the highest degree of judicial discipline authorized by law in Tennessee, short of the court seeking removal of a judge from office.