Almost all legal systems have mechanisms to remove members of the judiciary by impeachment, legislative address, recall election, and/or judicial conduct commissions. Judicial conduct commissions have the authority to remove or reprimand a member of the judiciary through a process that includes formally filing charges, having a hearing based on an established code of conduct, and rendering a decision and the consequences. It is difficult to decipher which incidents will result in some form of reprimand or removal and which instances will not result in any form of discipline.
There are cases in which members of the judiciary were reprimanded when a judge could not defend his conduct. For instance, if a judge speaks with an officer who is poised to give him a citation and mentions his judicial status, but later claims he did not intend to use his judicial status to encourage the officer to not issue the ticket, there would be a violation of the code of judicial conduct because intent is not a defense to an appearance of impropriety. Another example of indefensible conduct is evidence of a sitting judge’s bad behavior prior to his appointment to the bench. If prior to becoming a judge, as a prosecutor, he concealed exculpatory evidence that resulted in an innocent person spending 25 years in prison, it would be hard to justify those actions in a manner that would not violate the judicial code of conduct.
Almost all judicial misconduct allegations are dismissed because they are allegations that do not violate the code of judicial conduct. An example of a complaint that would be dismissed might be about a judge not returning the phone calls of a self-represented litigant. This appears to violate common courtesy, but it is in fact a violation of procedural rules for a judge to have any contact with one party without the opposing party being present as well. There are also numerous judicial complaints alleging that judges made the wrong decision by applying the law incorrectly or abusing judicial discretion; however, these complaints are allegations that should be addressed in the appellate courts, not by the board that governs judicial conduct.
There are also instances where judicial conduct appears to be sanctionable, but it is not. For example, if a judge polls the audience on the guilt or innocence of the defendant and then rules accordingly, this is not necessarily a violation of the code of judicial conduct.
Another illustration of this concept is when a judge uses the lateness of the hour of a sexual assault as a mitigating factor when a defendant is being sentenced. One may believe there is bias in violation of judicial conduct, but this behavior could be justified in a manner that does not violate the code of judicial conduct. It is situations similar to these examples that make compelling arguments for and against the current judicial misconduct process.
Initial rules governing judicial misconduct, resulting from the appearance of impropriety of Kenesaw Mountain Landis, were codified in 1924. Landis was a federal court judge and simultaneously became the commissioner of the National League of Professional Baseball. Landis was appointed the baseball commissioner in the aftermath of the group of Chicago White Sox players who conspired to purposely lose the 1919 World Series. While Landis was effective at restoring integrity to the sport of baseball, his role in the sport damaged his appearance of integrity in the judiciary. Landis eventually resigned from being a judge, and as a result of Landis’s dual roles, the American Bar Association passed the Canons of Judicial Ethics to govern the conduct of judges.
The Canons of Judicial Ethics provided a broad outline of the standards that members of the judiciary should uphold. Many states adopted more detailed versions of the canons and due to criticisms of being overbroad and vague, the American Bar Association replaced the Canons of Judicial Ethics with the Code of Judicial Conduct in1972. The Code of Judicial Conduct improved upon the Canons of Judicial Ethics by being more detailed, resulting in a more enforceable body of rules for judges.
The Current Model Code of Judicial Conduct
The American Bar Association has published the Model Code of Judicial Conduct, and all of the states and the District of Columbia have adopted the Model Code of Judicial Conduct or similar language to govern the conduct of members of the judiciary. Some states include the governing provision in the state constitutions, while other states have established judicial codes of conduct by statute or a separate governing body created to govern the conduct of judges exclusively. The name of the body that governs judicial conduct can vary and is not limited to a commission, committee, court, board, or council.
The commission follows its governing document that generally begins with a preamble that describes the goal of the rules. The preamble generally includes a statement to the effect of the importance of an impartial judiciary in the legal system. This impartial judiciary is based on the concept of an independent, knowledgeable judiciary composed of people with integrity to apply laws to the facts of the cases that are presented to them. The preamble also includes language detailing the importance of the appearance of dignity to instill public confidence in the legal system. The American Bar Association Model Code of Judicial Conduct preamble ends with a statement that the governing document is meant to provide guidelines and is not exhaustive but merely provides areas that should be considered when analyzing judicial conduct.
The next section of the document governing judicial conduct is the scope. The scope states that the document applies to judges and judicial candidates, and the scope further reinforces that the canons or principles listed are guides for identifying judicial misconduct. The scope also states the principles are short and followed by rules to illustrate proper application of the principles.
The main section of the document governing judicial conduct is the principles, which are short statements followed by explanations of the principles. Generally, there are four main principles or canons. First, members of the judiciary shall uphold the impartiality and integrity of the judiciary and shall avoid the appearance of impropriety. Second, members of the judiciary shall carry out their duties knowledgably, diligently, and without bias. Third, members of the judiciary shall conduct their personal lives in a manner that does not conflict with the obligations of their judicial office. Fourth, members of the judiciary or judicial candidates cannot engage in political activity that could conflict with the appearance of the impartiality of the judiciary. The order and number of canons or principles of the document governing judicial conduct may vary based on location, but generally, the principles are consistent.
Criticisms of the Judicial Code of Conduct
A primary complaint about the rules governing judicial conduct is that they are vague. For example, the concept of “appearance of impartiality” can be all encompassing. There is not a clearly defined standard of what the appearance of impartiality is as what it is varies based on circumstance and location. If a person does not clearly understand what the rule encompasses, they will have a difficult time ensuring their behavior complies with that standard. However, the judiciary has determined a law is not vague just because it does not detail how the law is violated. Because the principle is used to govern those who have the most familiarity with the law, the principle does not need to be as clear as it would need to be for people who are not attorneys or judges.
Another criticism of the process of sanctioning lower court judges is one in which the legal error is made and the misconduct goes unpunished. Legal error is grounds for appeal and a remedy through the legal process. Examples of legal error include a judge holding a witness in contempt to ensure their sobriety for an impending trial, a judge issuing a guilty verdict in the absence of a plea or a trial, and a judge increasing bail with the expressed intent to encourage a defendant to plea. Often the legal error is remedied without the member of the judiciary facing any consequence for his or her improper behavior. Legal errors are remedied and backdated to before the time period when they occurred, but the harm of spending the night in jail, being denied constitutional due process, or being coerced into a plea cannot be undone and are arguably worse knowing that the judge that inflicted the harm is unpunished.
Impartiality is inseparable from the role of the judiciary. The system would not work if judges were fearful of potential backlash from their rulings. Holding judges to a standard in which their decision making could result in punishment would inherently bias the system. Judges need to operate in an environment free from any coercion based on their rulings. Conversely, there should remain an appearance of impartiality on the part of the judge. No one should be intimidated into action based on a potential harm because of a relationship with a judge. Also, no one should expect a benefit based on a relationship with a judge. Both would violate the provision in the governing document requiring an appearance of impartiality at all times with all judicial officers.
The Procedural Process
If a commission suspects there is enough evidence to find that a judge has violated the applicable code of judicial conduct, the commission can file charges. Depending on the location, this would include filing charges with the commission, the supreme court of that locale, or the body that governs judicial misconduct. Charges under the code of judicial conduct are not criminal; these charges allege that a specific judicial principle or canon was violated by specific conduct that is detailed in the petition. Generally, after charges are filed the judge, who is now the defendant, has the opportunity to respond by submitting a response. After the response is received, the commission can offer a plea, which generally involves some form of sanction like a suspension from being a judge and a fine. The judge then has the opportunity to accept the plea or go to trial. If the judge accepts the plea the proposed reprimand is imposed.
If the judge chooses to have a hearing on the matter, a trial is held before the commission. The commission is usually composed of judges, lawyers, and members of the public. The commission elects a person to convey the alleged rule that was violated and the supporting facts, similar to a prosecutor. Then the judge is allowed to defend himself. After both sides have presented their case to the commission, the commission rules on the case. Commissions usually have an appellate process in place in the event that the judge is not satisfied with the process.
- Abramovsky, Abraham and Jonathan I. Edelstein. “Prosecuting Judges for Ethical Violations: Are Criminal Sanctions Constitutional and Prudent, or Do They Constitute a Threat to Judicial Independence?” Fordham Urban Law Journal, v.33 (2005).
- American Bar Association. “ABA Model Code of Judicial Conduct.” http://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct.html (Assessed May 2013).
- American Judicature Society. “Methods of Removing State Judges.” http://www.ajs.org/ethics/eth_impeachement.asp (Assessed May 2013).
- Gray, Cynthia. “Avoiding the Appearance of Impropriety: With Great Power Comes Great Responsibility.” University of Arkansas at Little Rock Law Review, v.28 (2005).
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