Legal News

Judges Judging Judges: Is the Process Too Secretive?

By Ashby Jones

Is the process by which federal judges are reprimanded and disciplined shrouded in too much secrecy?

It was a question asked by Houston Chronicle reporter Lise Olsen in a story from this past weekend.

Writes Olsen:

Federal judges have made illegal campaign contributions, falsified court records, and illegally concealed cash gifts and gambling debts. Many more have engaged in unethical or irresponsible acts, according to an investigation by the Houston Chronicle of more than 3,000 judicial misconduct matters nationwide and analysis of related records over 10 years.

Most get away with it.

Only seven judges in the last decade have faced formal disciplinary action as a result of the nation’s secretive misconduct review process. In that same period, citizens filed more than 6,000 formal misconduct complaints, the Chronicle found.

Most of the complaints are meritless, explains Olsen, products of disgruntled litigants.

At the same time, the system of reviewing the misconduct complaints are made by a group that might, at least on its face, seem perhaps to be not the most objective — the judges themselves. Writes Olsen: “At the pinnacle of the power structure stand chief circuit judges - a dozen men and women who quietly dismiss about 98 percent of the 700 complaints that arrive annually at regional U.S. courthouses scattered from San Francisco to New Orleans to Washington, D.C.”

Chief judges alone generally decide whether to conduct even a "limited review" - which usually involves reading case documents or sometimes asking a judge to respond. Rarely, those judges form committees to formally investigate - but those findings are almost never revealed.

In 2006, a Supreme Court-appointed committee, formed in response to congressional complaints, released a report on the secret disciplinary system. The committee, led by U.S. Supreme Court Justice Stephen Breyer, found supervising judges handled run-of-the-mill matters well, but handled more explosive situations with less aplomb.

According to Olsen, few cases better illustrate the judges’ insistence on secrecy than that of former Edward Nottingham (pictured), the former chief judge for the District of Colorado.

Records show that Nottingham faced at least seven formal complaints over the years, initially for abuse of power and bias, and later for potential criminal allegations. None resulted in formal disciplinary action or prosecution.

Yet in 2008, after allegations of misconduct reached the public, Nottingham abruptly resigned. He said his decision was "in the public interest and the interest of the federal judiciary."

The misconduct complaints were dismissed as moot. The disciplinary system does not apply to ex-judges, and its findings and recommendations were never released to the public.

Nottingham, did not respond to a request for comment.

It’s examples like these that seem to be behind the calls for more transparency and accountability.

"Any type of misconduct impacts upon the integrity of judges and erodes public confidence in the federal judiciary," said U.S. Rep. James Sensenbrenner, R-Wis., who has fought for years to improve judicial accountability.

Full post as published by Law Blog - WSJ.com on December 14, 2009 (boomark / email).