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Systems of judicial accountability should be transparent, rigorous and publicly accessible. We have identified ten best practices from around the country that will help transform state and federal mechanisms into systems that uphold the integrity of our nation's judiciary and protect our most vulnerable citizens.
- Release information about a judicial ethics complaint at the conclusion of a preliminary investigation.
In an era that embraces principles of sunshine, it is critical that the nation's mechanism of judicial accountability maintain a transparent structure. An open system would publicly disclose information about a judicial ethics complaint once a preliminary investigation has been completed. In Arkansas, any action taken by the Judicial Discipline and Disability Commission, such as dismissal of a complaint, admonition or other sanction, or the filing of formal charges against a judge, becomes public information.
- Replace closed-door sanctions against judges with formal, public discipline.
To successfully deter judges from abusing their positions of power and to provide citizens with access to a judge's complete disciplinary history, all sanctions must be formal and public. Today, nine states - including Arizona, Iowa, Oregon and Washington states - have eliminated private, closed-door discipline. Information about discipline in those states is always a matter of public record.
- Provide conduct commissions with the authority to impose a wide range of public sanctions to address a broad spectrum of judicial transgressions.
Judicial conduct commissions should have the authority to publicly censure, reprimand, fine, suspend and remove incompetent, negligent and abusive judges. Without this broad latitude, commissions are often forced to dismiss complaints that allege minor wrongdoings and correct serious offenses with weak penalties. Indiana, Mississippi, Nevada and New Mexico authorize a suitably wide range of sanctions.
- Remove abusive judges from the bench.
Although thousands of ethics complaints are filed against dysfunctional
state and federal judges every year, few members of the judiciary are
removed from the bench. Last year, only nine judges in the country were no
longer permitted to serve. High courts in California, Louisiana, New York,
North Carolina, Pennsylvania and Virginia upheld the removals of judges who
engaged in egregious, disturbing and persistent patterns of abuse.
- Clarify that complainants and witnesses have the right to speak freely about a judge's misconduct and disciplinary proceedings.
Litigants are often reluctant to bring a judge's misconduct to the
attention of a local judicial discipline body because the rules of many
jurisdictions "gag" individuals from disclosing information about an ethics
complaint they have filed against a judge. To respect the rights of
ordinary citizens and ensure that the system of oversight is operating
effectively, conduct commissions should allow individuals to speak freely.
While most states respect citizens' First Amendment rights in practice,
rules in only three states-Alabama, Arizona and Tennessee-explicitly inform
complainants that they are exempt from the state's confidentiality
requirement. Arizona Commission on Judicial Conduct Rule 9, for example,
provides: "Complainants and witnesses are not prohibited from disclosing
the existence of proceedings or from disclosing any documents or
correspondence served on or provided to those persons."
- Host an easily navigable Web site that provides clear information about how to file an ethics complaint against a judge and allows the public to search for a judge's disciplinary history.
In today's Internet-driven culture, most individuals look for information
online. Every state and circuit should host an easily navigable site that
includes a clear explanation of the disciplinary process, a downloadable
complaint form, past commission rulings, links to ethics standards and
other critical resources. Michigan, Nevada and Washington state satisfy
this standard. The Web site for Nevada's Commission on Judicial Discipline
even provides detailed information and directions to upcoming judicial
conduct hearings.
- Give ordinary citizens a meaningful role on the panels that decide complaints against members of the judiciary.
One way to ensure impartiality and to increase public confidence in the
judicial oversight system is to include meaningful participation by
ordinary citizens, yet judges and lawyers typically dominate judicial
conduct commissions. Laypersons outnumber judges and lawyers in only six
states: California, Hawaii, Iowa, New Hampshire, New Mexico and Washington
state. Judges do not have any seats on Hawaii's Commission on Judicial
Conduct.
- Require judges to annually file comprehensive financial disclosure reports.
To determine whether a judge possesses an economic conflict of interest in
a case, citizens should have the right to review comprehensive financial
disclosure reports. Judge's annual filings should include information
related to their outside employment, compensation, board affiliations,
investments and real property. The economic interests of the judge's
spouse and dependents should also be included. Today, judicial conduct
codes and statutes in13 states, including Connecticut, Massachusetts, New
York, Texas and Washington state require judges to provide this level of
detail in their disclosure reports. In addition, the Ethics in Government
Act requires federal judges to supply this comprehensive list of financial
interests.
- Guarantee convenient and affordable public access to judges' financial disclosures.
To satisfy the purpose of annual reporting, court administrators should
make disclosure statements available to the general public. So that
litigants will not face retaliation, their identities should not be
revealed to a judge when they wish to review that judge's filing.
Individuals should have the option of reviewing the reports online or at
their local courthouses, and copy fees should be less than $0.50 a page.
Arkansas, Michigan, Pennsylvania, Rhode Island and South Dakota ensure
convenient and affordable public access to judges' annual financial
disclosures.
- Place clear limitations on the gifts that judges can receive in connection with privately sponsored trips.
In need of the most reform are the state and federal ethics rules that
allow judges to accept compensation from private groups attempting to
influence case rulings. Corporations and special interests frequently use
expense-paid trips to lavish settings in a thinly-veiled effort to lobby
judges. Rigorous ethics rules would provide clear guidance to judges about
what they may and may not accept from private entities by placing strict
monetary caps on the funds that judges may receive. Unfortunately, no
state in the country or federal circuit places a monetary cap on the
compensation and reimbursements judges may receive for attending privately-
funded trips. Some jurisdictions, including Pennsylvania, Nevada,
Maryland, Minnesota and the federal circuits do prohibit judges from
accepting honorarium.
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