ADMINISTRATIVE AND LEGAL DUTIES OF COMMISSION PERSONNEL ADMINISTRATIVE TASKS Receiving complaints, making standardized response; Record-keeping, preparing reports; Arranging meetings, communicating with chairperson and members; Communicating with the media; other public PROCEDURAL ACTIVITIES Screening complaints, recommending disposition; Preliminary investigating; Extended investigating; Assisting with formal hearing; prosecution. ALTERNATIVES FOR STAFFING JUDICIAL CONDUCT COMMISSIONS I. A full-time attorney may assume all commission duties, both administrative and procedural. Special counsel or investigators may be retained for certain cases. Comments: This alternative may be the best choice for commissions which have at least two formal hearings a year. Examples are Massachussets, Minnesota, Wisconsin. Very high volume commissions like Illinois, New York, and Michigan have several staff investigators and attorneys. 2. A full-time administrative assistant may assume all administrative tasks. This person need not be law-trained, but does need to be mature and have good judgment in dealing with complainants. A qualified assistant may be able to screen complaints for jurisdiction. Investigation may be done by parttime investigators or members of the attorney general's staff. Counsel may be retained on a case-by-case basis. Comments: This model is used by commissions in Alabama, West Virginia, and the District of Columbia. 3. Part-time administrative assistance may be provided by the state court administrator or a clerk of the court. As in Example 2 above, investigators and retained counsel may handle the procedural activities. Comments: While this may be an economical solution it can be inefficient or ineffective if the administrator or clerk has too many other duties or is placed in a conflicting role in screening complaints or doing any initial investigation. States which use this model include Arizona, Colorado, lowa, Kansas, Louisiana, Nevada, North Dakota*, and Oklahoma. 4. A part-time attorney may assume administrative tasks and all of the procedural activities. Special counsel or investigators may be retained for difficult or complex cases. Comments: The commission administrators in Florida, Idaho, and Pennsylvania have continued some private practice. Kentucky, Maryland, and Oregon hire a part-time law professor. The Indiana, New Mexico, and Wyoming commissions share the services of an attorney with such agencies as the judicial council, the state bar, or lawyer discipline commission. *In North Dakota the clerk of the supreme court assumes the administrative duties and a part-time attorney handles the legal procedures. The attorney also works for the lawyer discipline agancy. (7) JUDICIAL TENURE (editorials from the New York Times) A Threat to Judicial IndependenceUL 2 8 1976 Quietly, the Senate Judiciary Committee has ap view. Some judicial discipline commissions operate proved a bill, misnamed the Judicial Tenure Act, that successfully in the state court systems, but the consti there; state judges are typically elected rather than appointed for life. would permit Federal judges to be disciplined or re-tutional requirement of independence is less prized moved from office without impeachment. It would severely restrict the life tenure long associated with an independent Federal judiciary. Even if constitutional, the bill is nevertheless an unwise threat to the judiciary for no apparent need. The bill would create a commission of 12 Federal judges to process complaints of judicial misconduct and prosecute the most serious cases before a Court on Judicial Conduct and Disability. This tribunal could censure, force into retirement or dismiss any judge for willful misconduct, habitual intemperance or "other conduct prejudicial to the administration of justice." The Supreme Court could choose to review any case; its members could themselves be investigated, but the disciplinary court could only recommend their impeachment by the House of Representatives. Supporters of the measure grant that only Congress may remove a Federal judge by impeachment. But they contend that impeachment need not be the sole method of removal. They are troubled that only nine judges have been impeached by the House and that only four were removed by the Senate. There must have been more misbehavior than this, they reason and indeed there has been. The nation has suffered at the hands of jurists who were corrupt, tyrannical, lazy, intemperate and senile. Their decisions have been frequently reversed on appeal, which is itself a kind of re Judges Beyond a Law They may be grumbling in private, but most Federal officials are now filing the extensive financial reports required by the 1978 Ethics in Government Act without a fuss. Alas, six Federal judges from Southern states are doing their grumbling in public, in the form of a suit attacking the new law. The appearances of the suit are bad enough. Far from protesting, Federal judges ought to welcome reasonable rules that promote public confidence and guard against conflicts of interest. What's worse, the suit has little merit. Their claims make these judges, and their brethren around the country, appear determined to put themselves beyond the new law. We hope the case, now pending before Federal judge in New Orleans, is soon thrown out. The new law broadens existing conflict-of-interest protections by requiring Federal officials — executive and legislative as well as judicial -to file public reports describing their assets and debts. The suit charges that the law, as applied to judges, is an unconstitutional attack on their independence and exposes them to threats and harassment. The judges go so far as to complain that the civil penalty for noncompliance Judge Willis Ritter of Utah, a notoriously cantankerous jurist who died last spring just as state and Federal lawyers were seeking to disqualify him from all government litigation, would surely have been a candidate for discipline short of impeachment. His long record of abusing lawyers and witnesses and disregarding higher judicial authority made him the best exhibit in the case for easier removal. But such behav. ior is rare among the more than 600 Federal jurists. And a system that would tame or eliminate Judge Ritter could also intimidate merely weak judges who must decide whether to desegregate schools in hostile communities or exclude illegally obtained evidence at criminal trials. Congress is not powerless to address the conduct of judges. Four years ago it tightened the statute that requires them to disqualify themselves in cases of possible bias or financial interest. It could enact a code of ethics and require more extensive disclosure of investments and debt. Moreoves the Federal courts can avoid assigning cases to judges who are deemed unable to handle them. But censure, suspension and removal are severe sanctions and they betray the very reason that impeachment was indeed made cumbersome and difficult. MAY 31 1979 amounts to an unconstitutional reduction in pay. To claim that this kind of disclosure threatens the independence of Federal judges wrenches the Constitution. Their jobs are guaranteed for life during good behavior and they are protected against pay cuts. Those safeguards are designed to preserve the jurists' independence of judgment, not to immunize them against all the burdens of public service. The fear of harm from dissatisfied litigants is a more serious matter, as was dramatized this week by the murder of a Federal district judge in San Antonio. But such risks are shared by many others in public life and are hardly peculiar to the judiciary. The Federal bench has already had a limited financial disclosure system for several years. The new, important requirement of the 1978 act is that judges disclose assets, like stock holdings and real estate, and debts. It is of valid public concern whether judges have financial interests that compete with their juridical activity or are deeply beholden to creditors. An independent Federal judiciary is a national treasure, but its independence does not require immunity from a reasonable public accounting. Protecting Judges — and the Public JAN 2 2 1979 Independence is one of the most valued features of the Federal judiciary under the Constitution. But responsiveness is an indispensable quality for American institutions. Can both be achieved at the same time? Last year the Senate posed a serious threat to Judicial independence by passing a bill to permit removal of Federal judges by a method short of impeachment. Fortunately the House didn't even consider the bill. And now there are signs that the Senate, also, is moving toward a more modest and defensible proposal. Under the original bill a special commission and a special disciplinary court could have investigated, censured and removed judges for misconduct, intemperance or anything deemed "prejudicial to the administration of justice." The bill had severe constitutional problems. The Constitution protects Federal judges against the political winds in a number of ways. It guarantees that they serve during "good behavior," it protects them against salary cuts and it establishes impeachment as the only removal mechanism. Modern scholars, impatient with the purposely cumbersome impeachment process, have spun out defenses for the constitutionality of quicker removal. Even if valid these arguments do not dictate enactment of the tenure bill. The nation needs an independent Federal bench. Still, opposing a bad bill does not address the problem it was meant to remedy. Arbitrary and abusive judges have on occasion disgraced the bench. Judges have sat in cases in which they had a personal bias or financial interest. Citizens should have ways to complain if they feel mistreated by a Federal court. Losers of lawsuits can appeal but there is no ready forum for the individual who is treated rudely by an imperious judge or thinks he has evidence of a judge's unfitness. Now the Senate Judiciary Committee is studying a proposal to confront the problem with more concern for constitutional values. It would clarify both the courts' duty to hear public complaints and the authority of Federal judicial councils to deal with them. The councils could not remove a judge, but could censure or recommend impeachment. The council could still re move cases from lazy or uncooperative judges. This is a promising approach, much better than the tenure bill of the last Congress. But even these proposed powers should be approached with caution. The prospect of censure by judicial elders could be every bit as intimidating for some judges as removal threats would be for others. To the judge under pressure, it matters little that it comes from within the judicial branch. Assuming that the censure power is constitutional, supporters must still demonstrate its need. |