A STUDY OF STATE JUDICIAL DISCIPLINE SANCTIONS BY CYNTHIA GRAY This study was developed under grant #SJI-01-N-203 from the State Justice Institute. Points of view expressed herein do not necessarily represent the official positions or policies of the American Judica- ture Society or the State Justice Institute. American Judicature Society Allan D. Sobel Executive Vice President and Director Cynthia Gray Director Center for Judicial Ethics Copyright 2002, American Judicature Society Library of Congress Control Number: 2002113760 ISBN: 1-928919-13-8 Order #138 American Judicature Society 180 N. Michigan Ave., Suite 600 Chicago, Illinois 60601-7401 (312) 558-6900 Fax (312) 558-9175 www.ajs.org 10/02 Founded in 1913, the American Judicature Society is an independent, nonprofit organization sup- ported by a national membership of judges, lawyers, and other members of the public. Through research, educational programs, and publications, AJS addresses concerns related to ethics in the courts, judicial selection, the jury, court administration, judicial independence, and public understanding of the justice system. CONTENTS INTRODUCTION 1 OVERVIEW OF JUDICIAL DISCIPLINE 3 THE PURPOSE OF JUDICIAL DISCIPLINE 3 THE STANDARD FOR REMOVAL 4 REMOVING AN ELECTED JUDGE 4 STANDARD OF REVIEW FOR JUDICIAL DISCIPLINE SANCTIONS 5 AVAILABLE SANCTIONS 6 REMOVAL FROM JUDICIAL OFFICE 7 INTRODUCTION 7 TYPES OF MISCONDUCT FOR WHICH JUDGES HAVE BEEN REMOVED 8 Misconduct related to a judge’s duties or power 8 Combination of misconduct related to judicial duties and off-the-bench misconduct 18 Off-the-bench misconduct 20 WHY HAVE SO MANY NEW YORK JUDGES BEEN REMOVED? 24 AUTOMATIC REMOVAL FOR CONVICTION OF A CRIME 26 EFFECTS OF REMOVAL 27 SUSPENSION WITHOUT PAY 28 Length of suspension 30 DISAGREEMENTS ABOUT SANCTION 33 DISSENTS 36 EXPLANATIONS FOR THE DISAGREEMENTS 39 i RECURRING FACTORS IN REMOVAL CASES 59 DISHONESTY 59 PATTERN OF MISCONDUCT 60 PRIOR DISCIPLINE RECORD 63 JUDICIAL REPUTATION 64 PROPORTIONALITY 66 CONDUCT IN RESPONSE TO INVESTIGATION 67 STANDARDS FOR DETERMINING THE APPROPRIATE SANCTION 77 RELEVANT FACTORS 77 Additional factors 78 The Alaska approach 79 Willful misconduct and prejudicial conduct 80 COMPREHENSIVE LIST 81 CONCLUSION 83 APPENDIX I: AVAILABLE SANCTIONS IN JUDICIAL DISCIPLINE PROCEEDINGS 85 TABLE I: INFORMAL DISPOSITIONS OR PRIVATE 87 SANCTIONS – BEFORE FILING OF FORMAL CHARGES TABLE II: FORMAL SANCTIONS – AFTER FILING OF FORMAL CHARGES 89 TABLE III: PRIVATE, INFORMAL, AND FORMAL DISPOSITIONS 99 APPENDIX II: SUMMARIES OF JUDICIAL DISCIPLINE CASES RESULTING IN 103 REMOVAL FROM OFFICE APPENDIX III: SUMMARIES OF JUDICIAL DISCIPLINE CASES RESULTING IN 147 AGREED RESIGNATIONS, SUSPENSIONS UNTIL THE END OF TERM, OR ORDERS BARRING FORMER JUDGES FROM HOLDING OFFICE APPENDIX IV: SUMMARIES OF JUDICIAL DISCIPLINE CASES RESULTING 155 IN SUSPENSION WITHOUT PAY ii APPENDIX V: TABLE OF DECISIONS – BY STATE 165 A Study of State Judicial Discipline Sanctions INTRODUCTION After determining that a judge has committed ings are described, categorized by the type of mis- misconduct, the state judicial conduct commission conduct at issue. The study focuses on removal cases and supreme court must “address the more difficult because the sanction decision is usually more thor- task of determining an appropriate sanction.” In re oughly explained when a judge is being removed Krepela, 628 N.W.2d 262, 271(Nebraska 2001). than when a reprimand or censure is being imposed. Decisions regarding sanctions have been described as The discussion of removal from judicial office “institutional and collective judgment calls,” resting also covers provisions in some states for automatic on an assessment of the individual facts of each case, removal of a judge following final conviction for cer- as measured against the code of judicial conduct and tain crimes and the collateral consequences of the prior precedents. In the Matter of Duckman, 699 removal such as ineligibility for further service and N.E.2d 872, 878 (New York 1998) (citations omit- disbarment. The possible reasons for the significant- ted). Choosing the proper sanction in judicial disci- ly larger number of judges removed in New York pline proceedings “is an art, not a science, and turns compared to other states and the option of suspen- on the facts of the case at bar.” Furey v. Commission sion without pay are also examined. on Judicial Performance, 743 P.2d 919, 930 (Califor- The study then considers the cases in which nia 1987). there has been disagreement about the appropriate The question of the appropriate sanction in a sanction, either between the commission and the judicial discipline case presents special challenges of state supreme court or among the members of the fairness, consistency, and accountability because supreme court as reflected in dissents. The study also there is a wide range of possible judicial misconduct catalogs the factors supreme courts and conduct – from taking a bribe to accepting an award at a commissions have listed as relevant in determining fund-raising dinner for a charity – and a wide range the appropriate sanction. The study then analyzes of possible sanctions – from informal adjustments these cases to discuss issues such as the importance of and private reprimands to removal. The problem of the judge’s reputation in the sanction decision and making the sanction fit the misconduct is exacerbat- the role remorse plays. Finally, the study makes rec- ed in judicial discipline cases because most states ommendations for states to consider in pursuing the have at most one or two formal cases a year, giving goal of fair, effective judicial discipline. the disciplinary authorities little precedent to use as guidance, a “fortunate circumstance” in serious cases that nonetheless complicates the determination. In the Matter of Drury, 602 N.E.2d 1000, 1010 (Indi- ana 1992). Although it is probably impossible to change the sanction determination from an art to a science, this study attempts to help commissions and courts bring more structure to the decision and remove some of the guesswork by analyzing cases and report- ing the factors that have been identified as relevant to imposing standards in judicial discipline cases. The study begins with a brief overview of the state judicial discipline systems, supplemented by tables that identify the sanctions available in each state. Next, all cases (approximately 110) from 1990 through 2001 in which judges have been removed from office as a result of judicial discipline proceed- 1 A Study of State Judicial Discipline Sanctions OVERVIEW OF JUDICIAL DISCIPLINE Each of the 50 states and the District of Colum- proceedings is preserving the integrity of the judicial bia has established a judicial conduct organization system and public confidence in the system and, charged with investigating and prosecuting com- when necessary, safeguarding the bench and the pub- plaints against judicial officers. Depending on the lic from those who are unfit. More specific reasons state, the judicial conduct organization is called a include: commission, board, council, court, or committee, • Impressing upon the judge the severity and sig- and is described by terms such as inquiry, discipline, nificance of the misconduct (In re Hathaway, 630 qualifications, disability, performance, review, N.W.2d 850, 861 (Michigan 2001)). tenure, retirement, removal, responsibility, stan- • Deterring similar conduct by the judge and dards, advisory, fitness, investigation, or supervisory. others (In re Peck, 867 P.2d 853, 857 (Arizona This study will use the term “judicial conduct com- 1994); In re Hathaway, 630 N.W.2d 850, 857 mission” when referring generally to the organiza- (Michigan 2001); In re Krepela, 628 N.E.2d 262, tions. For more information on the state judicial dis- 271 (Nebraska 2001)). cipline process, see Gray, How Judicial Conduct Com- • Reassuring the public that judicial misconduct missions Work (AJS 1999). is not tolerated or condoned (In the Matter of Sea- Most complaints filed with judicial conduct man, 627 A.2d 106, 121 (New Jersey 1993); In re commissions — generally more than 80% — are Krepela, 628 N.E.2d 262, 271 (Nebraska 2001)). dismissed, many because they claim that the judge • Fostering public confidence in the self-policing made an incorrect finding of fact, misapplied the system (In re Peck, 867 P.2d 853, 857 (Arizona law, or abused his or her discretion, which is usually 1994)). a matter not for discipline but for appellate remedy. Many other complaints are resolved each year through informal or private remedies. Each year, however, approximately 100 judges are publicly sanctioned in state judicial discipline proceedings. See discussion at page 3, infra. THE PURPOSE OF JUDICIAL DISCIPLINE Supreme courts have repeatedly stated that the purpose of discipline in judicial conduct cases is not to punish a judge. See, e.g., In re Peck, 867 P.2d 853, 857 (Arizona 1994); Adams v. Commission on Judicial Performance, 897 P.2d 544, 569 (California 1995); Summe v. Judicial Retirement and Removal Commis- sion, 947 S.W.2d 42, 48 (Kentucky 1997); In re Huckaby, 656 So. 2d 292, 300 (Louisiana 1995); In the Matter of Seitz, 495 N.W.2d 559, 300 (Michigan 1993); In the Matter of Seaman, 627 A.2d 106, 121 (New Jersey 1993); In the Matter of Duckman, 699 N.E.2d 872, 878 (New York 1998); In the Matter of Crawford, 629 N.W.2d 1, 10 (Wisconsin, 2001). Instead, the general purpose of judicial discipline 3 American Judicature Society THE STANDARD FOR REMOVING AN ELECTED REMOVAL JUDGE “Removal from office is not the price exacted for Courts acknowledge that removal of “a duly every incident of judicial misconduct.” In re Lowery, elected member of the judiciary is a serious under- 999 S.W.2d 639, 661 (Special Court of Review taking which should only be borne with the utmost Appointed by Texas Supreme Court 1998). Courts care so as not to unduly disrupt the public’s choice frequently reiterate that a judge need not “fear for service in the judiciary.” In re Huckaby, 656 So.