Judicial Ethics, Misconduct, and Reform

Episode Notes

Transcript

James J. Alfini:  I’m not as frightened as I might be. Maybe because I’m a lawyer. I’m a law professor. I believe in the system. I believe that we are subject to the rule of law and in our democracy and I hope all 9 justices, even though I may disagree with them 180 degrees on some of the issues. I would hope that all of them would have the integrity and independence and impartiality to uphold the rule of law. 

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Intro:  Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network. 

J. Craig Williams:  Welcome to the award-winning podcast, Lawyer 2 Lawyer on the Legal Talk Network, I’m Craig Williams coming to you from Southern California.

I write a legal blog named, “May It Please the Court” and have two books out titled, “How to Get Sued” and “The Sled.”  Well, there have been Judges across the Nation in the spotlight and recent high-profile cases. Many have questioned their conduct in the courtroom. For instance, Tennessee Juvenile Court Judge Donna Scott Davenport come under fire after ProPublica, a Nashville Public Radio investigation revealed that she has Allegedly oversaw a judicial justice system for juveniles that disproportionately and illegally jailed black children for the crime of criminal responsibility, a crime that doesn’t exist. 

Judge Donna Scott Davenport remains on the bench. And back in 2020, Reuters journalists, Michael Barons, and John Shiffman did an investigative series on Judges tiled. The Teflon Robe. In this series Barons and Shiffman reviewed over 1500 cases between 2008 and 2019 where Judges resigned, retired, or were publicly disciplined following accusations of misconduct. So, what does constitute judicial misconduct? How do ethical rules play into there and how do politics play into this? Are there Judges that violate judicial rules?  There are — actually held accountable for their actions?  Today on Lawyer 2 Lawyer, we are going to discuss these ethical guidelines that Judges have to abide by what should happen if these Judges don’t follow these guidelines and whether there should be some type of reform to prevent future misconduct. 

And to do that, we have Dean James J. Alfini, Professor of Law from South Texas College of Law in Houston. Dean Alfini is widely published in the fields of judicial ethics and is co-author of Judicial Conduct and Ethics published by Lexus and now in its sixth edition. Originally, it was published in 2007. He served on the American Bar Association Joint Commission to evaluate the model Code of Judicial Conduct and that work resulted in a 2007 model Code of Judicial Conduct which is now been adopted by the House of Delegates of the American Bar Association in a number of states. Well, welcome to the show Dean Alfini. 

James J. Alfini:  Thanks Craig. I’m pleased to be here.

J. Craig Williams:  Well, it’s great to have you on the show, Jim. Let’s talk a little bit about the Model Code of Judicial Conduct and for our listeners, clarify how it applies and how it applies to the various states and what they have to do, to put it in force. 

James J. Alfini:  Sure. The Model Code of Judicial Conduct is just that. It’s a model code, it isn’t enforceable anywhere unless a state adopts it. So, it’s intended to be a model for the states and right, now all 50 states have adopted some variation of the American Bar Association’s Model Code of Judicial Conduct. Craig, can I tell a story here?  Are you into storytelling?

J. Craig Williams:  That would be great. Yes. 

James J. Alfini:  The ABA has first foray into the judicial ethics field was in 1924. That is before 1924 Judges, really weren’t held to a code of ethics. It’s interesting how that happened because the principal catalyst was Major League Baseball. You might be familiar with the Black Sox, scandal involving the 1919 Chicago, White Sox team.

J. Craig Williams:  Right.

James J. Alfini:  8 White Sox players later memorialized in the movie, Eight Men Out had been charged with being in league with gangsters to throw the World Series. Shoeless Joe Jackson, they had many stars on the team. But Shoeless Joe Jackson was reputed to perhaps be the greatest all-around player in baseball history. And seven of his teammates were tried and acquitted in the Chicago Courts. But the baseball owners felt that they needed to repair the image of Major League Baseball. So, they appointed Kenesaw Mountain Landis, as the first Commissioner of Major League Baseball. 

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Landis later ruled over the sport with an iron hand for the next quarter century, but he subsequently banned all eight players from baseball for life. Hence the name of the movie, Eight Men Out. So, what does this have to do with judicial ethics? Well, Landis just happened to be the Federal District Court Judge in Chicago. And so, when the baseball owners offered him, the commissioner’s job at the Princely(ph) — so on principally(ph), at least for that time of $50,000 a year. He accepted with the understanding that he would discount it to $45,000 to account for $5,000 salary as a Federal Judge. In other words, he was planning to serve both as Commissioner of Baseball and Federal Judge at the same time. So, as you might imagine, the organized bar threw a hissy fit over that they were not happy. 

J. Craig Williams:  Understandably so.

James J. Alfini:  Yeah. And so, they appointed William Howard Taft, former President of the United States, who was then the Chief Justice of the Supreme Court of the United States as chair of a committee, and ABA committee to draft the first set of ethical standards for Judges. And in 1924, they produced The Canons of Judicial Ethics. The Canons were a good start but they were relatively ineffectual because they were couched in aspiration rather than mandatory language. A Judge “should do this, a Judge should do that –” not a “Judge shall.” In 1972, the ABA came up really with the first modern Code of Judicial Conduct and that was So, still pretty much aspirational though. In 1990, they came up with a revised code and then in 2007, as you said, they, including me, I was on the committee, came up with the current Code of Judicial Conduct. And again, it is a model code but I think more than three quarters of the states now, have the 2007 version of the code.

J. Craig Williams:  Well, what prompted this discussion today is Justice Kagan’s comment about the upcoming ruling on Roe versus Wade. And the “stench” as she called it in the political context of justices changing precedent, that is, you know, some at this point since 1970 or so. But that’s the thought, what do you have to say about Justice Kagan’s comment? 

James J. Alfini:  Well, I think it was Sotomayor not Kagan who used the word “stench,” but they might both have, they both probably feel the same way. Interestingly enough, I’m not sure it really goes much to the ethics of the justices as much as it does to the institution of the Supreme Court. I think what they’re saying, essentially is “Look, as the highest court in the land, we have to maintain the integrity of the judicial system. The judicial system is not going to have much integrity if we make rulings periodically that turn the law around in such a way that People who’ve been relying on the law for now, Roe versus Wade was a half century ago. For half a century, people have been relying on Roe versus Wade. And if we say that Roe versus Wade, no longer applies, a lot of people in states like my home state of Texas will be out of luck, they won’t have access to abortions. The interesting thing from an ethic standpoint there Craig, is that every Judge in the United States — I think there’s probably close to 50,000 Judges at the state and municipal levels and the federal level. Every Judge in the United States is subject to some ethical standards. Some Code of Ethics, except the nine Justices of the Supreme Court. They are not subject to what’s called the Code for US Judges. All the other federal Judges are but they are not, they’ve never made it applicable to themselves.

J. Craig Williams:  Is that their choice or that congress’s choice?

James J. Alfini:  Well, I think if congress tried to act on that, they declared unconstitutional because they are a constitutional entity under the constitution.

J. Craig Williams:  In Marbury versus Madison, that famous case.

James J. Alfini:  Yeah. So, it’s pretty much up to them to do it. I and others have written articles, periodically encouraging them to adopt the U.S. Code and then indicate which parts don’t apply to them. Because you know, as the highest court, there are problems applying the entire code to them, but at least then there’d be some transparency. 

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Some ability to say “Okay, here’s what we are subject to.”  I was interviewed — Oh God, about 15 years ago by ABC News on an issue relating to the Justices taking gifts, Justice Thomas in particular was receiving some pretty big gifts. I think a bible that was once owned by Frederick Douglass, statue of Abraham Lincoln. I mean, these were gifts that we’re probably worth more than $20,000 or $30,000 — 

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J. Craig Williams:  — it’s $25.00 here in California that the Judges can’t take. 

James J. Alfini:  So, at any rate, I made the point at that time. I wondered, you know, I was being interviewed for about over half an hour just like where you’re interviewing me now and I wondered what I said that might be newsworthy and I guessed it. When I leaned over and said every Judge in the United States is subject to some judicial ethics rules, except the nine Justices of the Supreme Court and that’s what they picked up on. 

So, it is a problem at times not so much from an institutional standpoint but from a personal standpoint. You may remember Justice Scalia with then Vice President Cheney. There was a case before the court involving the Vice President and so he was asked to excuse himself from that case. And he said, “No, I won’t,” but to his credit he wrote a fairly lengthy opinion, explaining why under those circumstances he wasn’t required to recuse himself. But again, there weren’t any ethics rules that he was subject to, he had to make them up as he went along. 

J. Craig Williams:  Are you concerned at all about that? 

James J. Alfini:  Yeah. I mean, I’m not as frightened as I might be maybe because I’m a lawyer, I’m a Law Professor. I believe in the system. I believe that we are subject to the rule of law and in our democracy. I hope that all nine justices, even though I may disagree with them 180 degrees on some of the issues. I would hope that all of them would have the integrity and the independence and impartiality to uphold the rule of law.

J. Craig Williams:  Right and as you say, politics are a bit different than ethics. Well, let’s So, talk about judicial misconduct. What is a fairly good down-and-dirty example of judicial misconduct?  What’s a bad Judge like?  What are we looking for?

James J. Alfini:  Oh, so there’s a lot of things that Judges can go astray on. I think the temperament is often a problem. Judges sometimes lose their temper on the bench. And when they do so, they are usually losing it towards one party in a proceeding and not the other, which gives the impression that they’re no longer impartial. They may even use curse words or Judges have been known to do things like flip a coin to decide a case. And there are specific provisions in the code that says that they can’t do that. 

The general principles of the code is that a Judge at all times must uphold the impartiality, independence and integrity of the judiciary. So that that broad-based standard often comes into play. But usually, there are specific standards as well. Judges are often charged with delays in cases. A Judge will sit on a case for maybe a year or longer and not make a decision. Why it’s sometimes unclear why; they may be lazy, they may be too busy and that’s often their excuse. But usually, these complaints are brought before Judicial Conduct Commissions. Every state has a mechanism and it’s usually called a Judicial Conduct Commission for taking up complaints against Judges. And I must say, the vast majority of the complaints are probably disgruntled litigants. You know, “I lost the case and I don’t know why. The Judge must have been crooked,” that kind of thing,

J. Craig Williams:  — if ever the Judges commonly say that every time, they make a decision they make a friend for 10 minutes and an enemy for life.

James J. Alfini:  Yeah, there you go. That’s right.

J. Craig Williams:  Let’s talk briefly about sentencing because that sometimes results in a public uproar and claims of judicial misconduct if people don’t think that the sentencing is appropriate. I mean, for a Judge who I know well here in Orange County, California. Judge Nancy Wieben Stock was the one who decided to give OJ’s children back to him. There’s been other Judges up in Northern California, who people have complained about with sentencing for rape and a common complaint. What’s your thought about — how does the sentencing aspect of what Judges do plan judicial ethics

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James J. Alfini:  You know, it’s interesting you mention that. I’m a law professor, so forgive me for getting a little theoretical here. But again, one of the important instrumental values in a rule of law democracy is judicial independence. And so, we want our Judges to be independent. What does that mean? Well, we don’t want them to be influenced by friendships, by political party, by other branches of government officials. We want them to make good independent Judges on their judgments on their own. 

However, there are times when those judgments may seem to be way out of line and you just mentioned a couple. The problem with a judicial conduct commission for instance, taking on a judge’s sentence or the Judge’s decision to give OJ back his children, that kind of thing. Is that it looks like we’re intruding on the Judge’s independent judgment. I would say that in — I can’t think of any situations where — well, except the coin flips, that kind of thing where that’s so arbitrary. You can’t flip a coin and say “Okay, if it’s heads you get 20 years, if its tails you get 10 years,” that’s so arbitrary, that’s clearly — that’s punishable, that’s misconduct. But if a Judge and particularly if the Judge explains himself or herself in an opinion, why they gave a particular sentence. I’d worry that if the Conduct Commissions looked into that, it would be eroding the independence of the judiciary.

J. Craig Williams:  Yeah, it does make sense. Let’s talk about campaign cash. Every Judge in California can run for office, some were appointed by the Governor, but it’s possible to run. As a consequence, as a lawyer, you want your name to appear on the, donation list. How does that play into ethical considerations once the Judge gets on the bench?

James J. Alfini:  Well, let me speak now as a member of the public. Why does that lawyer want his name to appear on the Judge’s donation list. 

J. Craig Williams:  Why wouldn’t you?

James J. Alfini:  That’s right. I think a member of the public would see that as “Oh, so if you give the Judge some money, and if you give the Judge a lot of money, even better. You’re going to get special handling, if you will; if you have a case before the judge. 

J. Craig Williams:  It certainly has that appearance, doesn’t it?

James J. Alfini:  Yeah. Doesn’t it, doesn’t it?  That’s why I’m opposed and have been for a long time to electing Judges. That’s maybe a topic for another day but let me say that over half the State elect some, if not all of their Judges. So, we’re kind of stuck with it. There are other ways of putting Judges into office. They can be appointed, there is the merit plan for judicial selection that some states have. In some states, like Florida and New York, have a merit plan for the Appellate Judges, but they still elect their Trial Court Judges. 

So having said that, how do we at least try to eliminate the appearance of impropriety when lawyers in particular make donations, to judicial campaigns to try to curry favor with that Judge. So that the Judge will treat them better than they treat others. Well, the Code of Judicial Conduct requires that the Judge who is running for office to appoint of campaign committee and there’s a lot of specific rules about how the campaign committee acts. But overall, it’s a way of keeping from the Judge the names of the donors and keeping the Judge from actually asking lawyers for money. The solicitation for campaign donations has to come from a member of the campaign committee not from the Judge him or herself. 

Some states have adopted the code, the model code, but not that provision. My State of Texas has not adopted the campaign committee provision. So, I mean in reality, a Judge can be hearing a case and be running for office at the same time and right after the trial, walk over to a lawyer’s office, who’s hosting a campaign event for him and ask those same lawyers, that won that case for money.

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J. Craig Williams:  It’s happened to me before a hearing.

James J. Alfini:  Okay. There you go. Isn’t that terrible? 

J. Craig Williams:  And what do you do? 

James J. Alfini:  You stop electing Judges and if you can’t stop that, then you put as many buffers between the Judge and money as possible.

J. Craig Williams:  Right. Well, let’s talk about what happens when you do get the Judge who’s flipped a coin and has a bad temperaments and I like to joke, sometimes that I know Judges to keep a bucket of lightning bolts behind the bench. You know, what do you do when you discipline those Judges?  How do they get disciplined?  What’s the process?  And then is the punishment significant enough to make a difference?

James J. Alfini:  Yeah, it varies. As I said, every state now has a Code of Judicial Ethics and every state has a mechanism for enforcing that code. It’s usually called the Judicial Conduct Commission. I think in California, it’s called The Judicial Performance Commission or Qualifications Commission, but it’s usually a name that sounds like that. The commission is normally made up of lawyers, Judges and non-lawyers and some of them are appointed to the commission by various officials. Usually, it’s the governor that appoints the non-lawyers, and it’s the Bar Association that appoints the lawyers. 

When a Judge — when they receive a complaint about a judge, the commission usually has a staff. California by the way was the first state to have a modern misconduct commission and it was created in 1961. So, in a way it’s a fairly recent phenomenon, it’s really just the last half-century that we’ve seen the rise of these commissions. So, the commission would take the complaint. They usually have staff to do investigations of the complaint. They would then make an initial determination and normally, there’s a range of sanctions. 

The lowest sanction would be an admonishment, it might be a private admonishment. That is the commission would say, “Send a letter to the Judge and say, ‘look, what you did was wrong, but it isn’t so wrong for us to really make a big deal out of it. So, we’re saying to you go and sin, no more’.”  The next level would be a reprimand and normally that’s public, they would reprimand the Judge and normally, the Judge — normally, if it’s at that level, a reprimand level or anything above, it would have to go before the state’s highest court. So, it would be the Supreme Court of California, some states like, Florida, the Court actually calls the Judge before the court and issues the public reprimand in court. Beyond reprimand is censure; if it’s really bad, the Judge can be suspended for office for a certain period of time with or without salary and a Judge can be removed from office in most states. 

Usually though again, the state high court would have to make the ultimate ruling on whether to remove a Judge from office. In every year, there are some Judges across the country that are removed for office. Generally, they’ve committed acts of misconduct but normally, there’s a pattern of misconduct; they’ve done it more than once. Now, in the federal system the removal from office is not available. In the federal system, I don’t want to get into it in too much detail, but there’s something called federal judicial councils in each of the federal circuit’s and they do the same thing. They act like a conduct commission and they can do everything but remove the Judge from office. If it’s that bad, it would have to go to the Judicial Conference of the United States and they would have to recommend to Congress that they begin impeachment proceedings against the judge. 

J. Craig Williams:  That’s a really long and involved process. How long does that take?

James J. Alfini:  It depends, I mean some states have enough commission staff and are efficient enough that might take only a few months. But it could take a couple of years in other states largely because they generally don’t have the staff to do the hard work. There’re all sorts of issues involved too. Some commissions when they’re investigating make it public right away. Other commissions, have to keep it confidential until they actually decide to prosecute the judge. In some states they keep it confidential until the Judge is actually sanctioned.

J. Craig Williams:  You know, I’ve been in practice for a while now. Almost I think something in excess of 35 years and I’ve gotten to the point where you can recognize in the local courts, which Judges are going to have problems. 

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And there have been some informal conversations with Judges that we’ve had. There have been some discussions where some of the lawyers have gotten together and gone and talked to the Presiding Judge. And otherwise, he made it through(ph) friends and so forth. But what’s your experience when you have that kind of knowledge within the bar that there’s a problem Judge and the lawyers are trying to get it handled. You find those things to be effective. Do you think that that’s a wise approach?  What’s your recommendation when you have a rogue Judge in a local bar?  And you have some lawyers, that get together and say, “What should we do about this?” 

James J. Alfini:  It’s a difficult area because sometimes the rogue Judge is disabled. It might be an elderly Judge who’s losing it. But let’s say the rogue Judge is just a bad actor. I like the idea of a group of local lawyers, particularly like the officers of the local bar first discussing it with the chief judge. And then maybe in consultation with the Chief Judge approaching the judge, him or herself. Maybe it’s something they weren’t aware of, maybe they can clean up their act. If it goes to the commission, sometimes the commissions can have the power to order education and the education could include anger management for instance. 

And I’ve seen a number of situations where the Judge is suspended by the commission, but they hold up on the suspension if the Judge agrees to educational measures that might correct the misconduct. Sometimes, they talk the Judge into retiring, you’ll see a lot of dismissals of complaints against Judges because they agree to retire. So, I like the idea of informality because oftentimes, there can be some necessary face-saving. Particularly, as I said, if it’s because the Judge is disabled or elderly and need some extra help.

J. Craig Williams:  Well, I kind of want to dive into that just for the follow up question. Because if the Judge retires with charges pending or whatever you want to call it, and then just simply moves into one of the arbitration mediation services, haven’t we just passed the problem down the road?  Kind of like we’ve made some complaints about the Catholic Church?

James J. Alfini:  Yeah, that comes into play. Judges can be — there are states where Judges can continue the case after the retirement and the Judges can be sanctioned and so everybody would know about it. And oftentimes, it’s because of those kinds of things. You’re absolutely right. Judges, often times have second careers as mediators or arbitrators. That’s a whole another subject I’d be happy to talk to you about someday. The Judge’s mediator for instance, I’m not really keen on that. And I teach mediation among other things where I had taught me. But you’re absolutely right, you don’t want the can to be kicked down the road as you say and become somebody — someone else’s problem. There are fairly clear lines, oftentimes that are drawn between whether a commission can sanction a Judge for activity that was committed during their judicial office, but was prior to their retirement.

The federal system is pretty tight on that. A good example is just as Justice Kavanaugh. You may recall Brett Kavanaugh being interviewed by the senate for the Supreme Court position, and he flew off the handle at some of the senators. There were numerous complaints, I want to say in the neighborhood of about 60 complaints against Justice Kavanaugh — not so much for the alleged acts that he committed but for his behavior in the in the Senate Conference Room. They were referred by the Chief Justice to the Tenth Circuit for procedural reasons. They ultimately dismissed the complaints because he was no longer on that — at the time, he committed the problem, he was a member of the Court of Appeals for the District of Columbia Circuit and now he is on the Supreme Court. So, the complaints didn’t survive his moving from one court to the other, which I think was wrong, but that’s essentially the way they read the federal statute.

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J. Craig Williams:  It looks like we’ve got some ways to go to clean up some of these things. Well, do you know if any, it looks like we’re just about to reach the end of our program. So, I’d like to take this opportunity to invite you to share your final thoughts and your contact information for our listeners so they can reach out to you if you’d would like.

James J. Alfini:  Well, thank you, Craig. It’s been a pleasure. Thank you for your very thoughtful questions. As Craig said, my name is Jim Alfini, A-L-F-I-N-I. I am Dean and Professor Emeritus at South Texas College of Law in Houston, Texas. And you can reach me there through the law school. With internet these days, it’s easy to find me. In fact, if you look up South Texas College of Law, and then you click on faculty, you’ll find my picture and if you click on my picture, it’ll give you all the contact information you need.

J. Craig Williams:  Great. Well, thank you very much. It was a pleasure having you on our show today. Thank you. 

James J. Alfini:  Thank you, craig. 

J. Craig Williams:  Well, now that we’ve looked at all of that. Let’s talk about where people perceive Judges don’t follow ethics. And as Jim said, Dean Alfini said not all complaints about Judges fall under ethical rules. They’re pretty limited and they look like for the most part result in the types of allegations that sometimes result in discipline for these Judges, but sometimes not enough. And certainly, as the dean points out, we need to reform Judicial Ethics for the Supreme Court would be a good idea if the ethical rules applied to them, as well as the rest of the Judges in the country. It would be nice to have an independent, maybe review system by the general public, as well as lawyers, as well as maybe retired Judges looking at this instead of letting those who are in the system, discipline those who are in the system. Kind of like the same complaint we make about police, you know?  Independent commissions to review this I don’t think that’s wise to let them police themselves. 

There’s a whole host of problems with Judges getting elected. The cash problem is a real issue. Also, you don’t really want to just delegate that responsibility to the legislature of the governor to simply appoint these people. So not really sure what the solution should be there. But there are a lot of brighter minds than me that can come up with one. Those are the issues. Those are the problems. That’s not a perfect situation, but we are certainly a lot better off than many other countries around the world. We have our problems, but we’re on our way to fixing some of them. Anyway, if you like what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can visit us legaltalknetwork.com, where you can sign up for our newsletter. I’m Craig Williams, thanks for listening. Happy holidays to everybody. Please join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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