Error in judgement: How a small oversight commission can wield major power over judges

Judges are among the most powerful individuals in our society. A judge's ruling can bring down a powerful politician, destroy a major business or deny a citizen their freedom for decades. We rely on judges to wield this power wisely in the protection of society and the administration of justice. But there is a force in Michigan with the power to bring down even a judge. It's called the Judicial Tenure Commission. Despite this power, the commission and its staff have a very low profile, especially with the general public. "We're under the radar for the most part," says Paul J. Fischer, Executive Director and General Counsel of the commission since 2001. Recent high-profile episodes of misconduct or questionable behavior on the part of judges seem to suggest that such incidents are on the rise, but an examination of the commission's own data suggests otherwise. The commission has seen a gradual increase in the number of complaints in recent years. This can be compared to an annual average of fewer than 100 complaints in the early 1970s. By the 1980s that number had risen to more than 300 per year. In 2010, the most recent year for which complete data is available, the Commission received 927 "Request for Investigation" forms, chose to consider 638 grievances and concluded 600. In 2010, 569 of the 600 cases resulted in no action against the judge. That year the commission issued three letters of admonishment, six letters of caution and two letters of explanation. The actions that year resulted in four public censures by the Supreme Court. These figures suggest that, even taking into account any possible caution and reluctance to discipline, the state is not seeing an epidemic of judicial misconduct. Don Campbell of Collins, Einhorn, Ferrell & Ulanoff, P.C., a specialist in attorney grievance defense and judicial tenure matters, is convinced that the bench is in good hands. "I believe the Michigan system of elected judges and justices is better than any system with appointed judges, and overall the ethical standards are very high," he says. The individuals who file requests for investigation are usually litigants, often prisoners, comprising 90 percent of the total in 2010. Attorneys were responsible for only 2.7 percent of the total. Many of the complaints have nothing to do with judicial misconduct, but are essentially legal system "customers" who are unhappy with the "product" they've received. Nearly 73 percent of the litigant requests asked for review of the merits of a case, despite the fact that the Commission has no power as an appellate body. This was, by a factor of almost 10, the most frequent reason given for a request. "(Most) of what we receive is people complaining about a result," says Fischer. "Prisoners complaining about a sentence, people in divorce proceedings over who got the kids. Small claims is another big area. Usually these are proceedings with a lot of emotion involved. People think we can rectify those things and we can't." The second most common reason given for filing a request in 2010 was a challenge to a judge's prejudice or impartiality (77 requests), followed by courtroom demeanor (50) and procedural irregularity (25). The numbers for failure to perform, incompetence and criminal activity were all in the single digits. Physical or mental disability, intemperance (drug or alcohol abuse) and conflict of interest all racked up zeros. These low numbers don't mean that judges never make mistakes of judgment that lead to unethical and unprofessional behavior. One of the pitfalls that a modern jurist must be vigilant about is the instant, global reach of communication today. For all of us, "private" is becoming a quaint concept. "The speed of modern life and the means of instant reaction present challenges to all of us," Campbell warns. "Judges are no different and likely more at risk to these pressures. The sports maxim is that 'luck follows speed.' In judicial matters, it can be said that 'good judgment follows deliberation and discretion.' " In addition to avoiding behavior that is criminal or unethical in nature, judges need to avoid running afoul of the Michigan Code of Judicial Conduct and its eight canons. This code is frequently used as a roadmap to what constitutes judicial misconduct. But even it can be frustratingly vague on some issues, frequently falling back on "appropriate" and "inappropriate" to approve or condemn conduct without always being specific. Despite the Code's occasional ambiguity, Campbell believes many problems could be avoided if the judge always remembers their special place under the spotlight. "Non-judicial conduct that could reflect on the judiciary or is subject to a Canon prohibiting a judge from engaging in activities she or he enjoyed as a citizen remains an area where judges need to be vigilant," he says. "The old adage is that 'Court is where the judge sits.' Judges would do well to remember that a Judge is a Judge wherever she or he may be." The Judicial Tenure Commission consists of nine persons selected for three-year terms. Four members are judges elected by the judges of the courts in which they serve and three are members of the state bar; and two are appointed by the governor. The Commission also has a staff of six including the executive director, three staff attorneys and two support staff. Once the Commission's process begins, it becomes a curious mix of private and public proceedings. In theory, the initial complaints are kept secret until the investigation determines its merits. "It was thought that the investigation should be done in confidence, because, when you read the headlines, everybody is already convicted," says Fischer. "There's no desire to have our investigations splashed across the front pages of the newspapers or anyplace else. An allegation does not necessarily mean anything has happened. The media is always in a rush to say, 'so and so charged with whatever' and then, when the person is not guilty, you don't see the same kind of coverage of that." The damage to a judge can be lasting, even when there is determined to be no merit to the complaint. In addition to the embarrassment associated with an accusation, the fallout can end careers. "Judges in Michigan are elected and that kind of publicity can be damaging," says Fischer. "It just never goes away when someone is falsely charged." Other states have responded to the problem by making their entire process confidential from beginning to end. The Judicial Tenure Commission process of disciplining and removing judges is widely considered to be effective and fair. It allows for discretion, and includes a "back door" where judges resign on their own as part of a negotiated, but non-public, deal that if they leave there will be no prosecution. "That does happen," says Fischer. "The judge may not want to have the negative publicity and may say, 'What if I leave?' and then the commission generally let's them go in peace. The idea is to protect the integrity of the judiciary and the general public's respect for the judiciary. Every time you bring something up that puts a stain on it, it hurts. If the person just leaves, then everybody wins." Published: Thu, May 24, 2012

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