Wednesday, December 07, 2011

Grits readers' disdain prompts closer look at Judicial Conduct Commission Sunset review

With the State Commission on Judicial Conduct up for review by the Sunset Advisory Commission, I thought it worthwhile to ask Grits readers - who as a group are probably more aware of such matters than average Texans - whether they thought the Commission was doing a good job. The result was one of the most lopsided reader polls Grits has ever conducted. Of the 173 respondents, the answers were:
Yes: 3%
No: 62%
Only when the media is paying attention: 27%
Don't know/can't tell: 6%
(Figures don't add to 100% due to rounding)
In the agency's self-evaluation report (pdf, hereafter SER) for the Sunset Commission, the agency opined (p. 3), "A judicial office is a public trust. In order to function effectively, the system must be assured of the public's faith and confidence." A key goal of the agency's oversight work, says the SER, is to ensure that "public confidence in the integrity, competency, impartiality and independence of the judiciary is preserved." If Grits readers' opinions are any indication, the SCJC has lately been of little assistance in that task.

Let's take a closer look at the SCJC in light of its pending Sunset review. Asked "What key obstacles impair your agency's ability to achieve its objectives, the SER responded:
1) Budget cuts and restrictions on general revenue spending continue to impair the agency's ability to achieve its objectives.
2) Incomplete, outdated, and/or inconsistent rules and procedures also impair the agency's ability to achieve its objectives.
3) The size of the board - 13 members - is too large, costly and unnecessary.
After the fiasco over the SCJC's attempt to extend leniency to Judge Sharon Keller - where they found she'd engaged in misconduct but imposed a lesser, illegal sanction that was overturned on appeal as unconstitutional - I'd add 4) Bending over backwards to let judges (especially district and appellate judges) off light. And if Grits readers' opinions are any indication, you could tack on: 5) Lacking public confidence in the agency's judicial oversight function.

Asked by Sunset, "What are your agency's biggest opportunity for improvement in the future?" the agency replied: "If the Texas Procedural Rules for the Removal or Retirement of Judges and the Texas Code of Judicial Conduct were revised and updated, the agency would be in a better position to serve the public and the judiciary through clear and consistent rules and canons that reflect current changes in the law." The Code of Judicial Conduct (pdf) and the Procedural Rules for the Removal or Retirement of Judges (pdf) are both promulgated by the Texas Supreme Court, so the agency has no rulemaking authority to correct the perceived shortcomings in (2) above. The agency's enabling language is in Article V, Sec. 1a of the state constitution, while its statutory authority lies in Chapter 33 of the Government Code.

The agency's budget for FY 2010 from the general revenue fund was was $1,001,626, cut slightly to $948,000 per year over the next biennium.  But since they only spent $932,303 of their budget in 2010, that minor haircut shouldn't really cut into their activities too dearly. The agency has 14 FTEs, or full-time equivalent employees, led by executive director Seana Willing.

The number of disciplinary actions issued annually has risen in recent years before dipping in FY 2011:
2007: 45
2008: 56
2009: 70
2010: 89
2011: 42
The number of dismissals has also generally risen:
2007: 1,008
2008: 966
2009: 1063
2010: 1,208
2011: 1,192
Municipal court judges and JPs represent 39% and 21% respectively of all judges under the SCJCs jurisdiction, but they represented a disproportionately small number of total complaints, while they were more likely to be targets of significant discipline: According to the agency's annual report (pdf), "in fiscal year 2011: justices of the peace received 19% of the complaints filed, but accounted for 55% of all discipline issued by the Commission, a fairly significant increase over fiscal year 2010. Disciplinary actions against district and appellate judges experienced a sharp decline to 7% and 0% respectively. Municipal court judges received 9% of the complaints filed in fiscal year 2011 and accounted for 24% of all discipline issued by the Commission in fiscal year 2011. Consistent with prior years, 44% of all cases filed in fiscal year 2011 were against district judges," who accounted for just 12% of all judges under the SCJC's jurisdiction and 7% of disciplinary actions last year. This makes it appear that district judges and appellate are receiving less scrutiny despite receiving more complaints, and that the SCJC reserves its "hammer" for the lowest-level jurists. That's not encouraging.

Where do cases come from? A third relate to criminal cases. Again from the latest annual report: "Fifty-four percent (54%) of those cases were filed by civil litigants, their friends or family members, or by pro se (self-represented) litigants. Criminal defendants, including traffic defendants and inmates, accounted for approximately 33% of the cases. Three percent (3%) of the cases were filed anonymously and only 5 cases (0%) were Commission-initiated."

Many complaints are dismissed because staff deem they do not specifically address misconduct under the agency's jurisdiction under Supreme Court rules: "Finally, of the 1,192 cases closed [in FY 2011], approximately 51% alleged no judicial misconduct. Approximately 28% were dismissed after a preliminary investigation and approximately 21% were disposed of following a full investigation requiring a response from the judge." (One of the legislative changes suggested below was to allow reconsideration when those complainants bring forward more information.)

Among legislative changes suggested in the SER to "assist" the agency in "performing its function":
  • Amending the definition of "willful and persistent misconduct" to include chronic failure to obtain required judicial education hours.
  • Amending statutes and rules surrounding reconsideration of dismissed complaints, allowing for reconsideration for good cause or when additional information alleging misconduct is presented.
  • The statute should be clarified so "that judges who are removed from office by a Review Tribunal following formal proceedings initiated by the SCJC forfeit their retirement pensions upon removal."
  • Require retired judges who are "eligible to sit by assignment" to notify the Presiding Judge of their administrative region and have their name removed from the list of eligible judges if they receive a Public Reprimand, Public Censure, or resign in lieu of discipline. "Currently there is no requirement that the judge request that his/her name be removed from the list and there is consensus among the Presiding Judges that they have no legal authority to remove a judge from the list.
  • The Commission wants to extend confidentiality provisions governing their work to include information presented at trial. (A terrible idea, IMO; legislation to do this was rightly vetoed by Perry in 2009. It was re-filed during the most recent session but went nowhere.)
Another recommendation I'd have is better communication with the public about judicial misconduct when they discover it. Their public statement on the William Adams case was its first in four years. Further, e.g., on their website under case information, we only get detail (oddly) about Judge Sharon Keller's case. While I'm sure that's what's most often requested, why not publish similar data on all cases online? There is topline information regarding other complaints resulting in public or private discipline listed here.

Relatedly, I'd like to see more records opened up after the Commission's case evaluations are complete. Under current rules, the public can't really know whether the agency is doing a good job or not, and Grits readers, at least, are under the impression they are not.

Since the Sunset process is focused on what the Legislature can do, the self-evaluation report fails to inform us what similar changes the agency thinks need to be made by the Texas Supreme Court rules - the main barrier identified in the SER to improving their operations. No opinions at all were proffered on that score. Perhaps during the hearing process some of those will be identified on the record and the high court can take them up.

What else do they need to fix at the State Commission on Judicial Conduct? Let me know your thoughts and opinions in the comments.

See related, recent Grits posts:


Anonymous said...

Holding Texas judges accountable for past misconduct. . .

Some say we should hold criminals accountable. TYC has recently learned what happens when we don't.

Gritsforbreakfast said...

11:56, why do you fantasize that the two are somehow mutually exclusive?

There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.

Anonymous said...

How about that. If the agency was more transparent, you might find that the cjc is more incompetent than your readers think. Or you might find an agency that receives a lot of complaints about judge rulings and other apellate issues beyond the its authority. We may never know though...

john said...

Anybody in power caught claims low budget, just following orders, etc. Even an independent agency can be pressured or bought off. This agency gives the appearance of having the chops and set up and resources to oversee. Yet they whine they can't DO it. What?? You mean you're sorry you got caught?
Now we need to fully investigate the State Commission on Judicial Conduct? It's another committee wasting time—more so when it fails to perform its proper function. Where will the buck stop?
Foxes & wolves have colluded to eat the chickens. The State Bar acts like a lawyers' union, self-protective, manipulative. The supremes are in an ivory tower--& probably got that concept from the feds. From the day it was created BY attorneys in spite of the TX Constitution, the Bar has been self-serving. Over time without oversight, some folks just abuse more power. It smacks of regular politics when the lower less-powerful judges are the ones canned, while the higher ones doing more damage are covered up. What is this, Chicago? Wow, TX should be better than this.
The only possible advantage of getting the Legislature more involved is it might give We The People a voice—to cut through some of the appointed committees gone bad; except nowadays the Leg is largely mercenary, too. So without money to pay campaigns and other "contributions" so as to hold the Leg's attention, We The People can only cry out through watch dogs and other groups. Watch dogs alert the chickens they've been and may still be eaten. If the elected can be manipulated by the same folks that manipulate the appointed, checks and balances are lost. Every official is supposed to honour his oath. The climate and culture has become more like air traffic controllers: whoops, I was distracted.
As on many topics, why create more legislation, when the laws in place are ignored? We HAVE judicial conduct and plenty rules, and an apparently-independent oversight group. We just have no upper will power to make those in power follow the rules. THE COMPLAINTS ARE LARGELY NOT FRIVOLOUS, yet the judge food-chain turns a blind eye, covers up and makes excuses.
All politics, Courts and everyone in power are highly questionable, these days—having the APPEARANCE OF NEGLECT AND CORRUPTION. The stereotype of corruption is well deserved in general, and without follow-through by the honest members—MEANING whistle-blowing as necessary, the dishonest & incompetent push the envelope. Whistle-blowers are often destroyed, terrifying at least the meek. Combine that with the endless revenue raising, and is justice being served? Maybe for dinner.

Anonymous said...

Well it seems Americans love being taken for a ride, they keep voting republican and accusing hardworking Americans as socialists...ya ask for it, ya got it....these people will keep earning more money than you and your generation will ever earn despite having the same education and working even harder than these scumbags....well what can you say? It's a free country....

A Texas PO said...

It looks as though the SCJC is picking on JPs who are, typically, not lawyers by profession or education. I get the argument that a change towards JPs being required to have a law degree, but realistically, in some jurisdictions, this may not be possible (or, at least, the only lawyers in those communities who would want the job might not be suitable for various reasons). I'm sure several of those disciplinary actions against JPs were related to legalities in our complex system that were violated, but 55%? That seems a bit much, even for this state.

Anonymous said...

Grits, in one place you say district and appellate judges, together, account for 7% of disciplinary actions. In another place, 3%. Which is it? They are in the same year, 2011. And what proportion of all judges are in these two groups?


Anonymous said...

I don't see the need for confidentiality. Why do judges get this special protection? I'm sure there is some argument for it out there, but whatever it is, its probably outweighed by the need for the public to make sure the commission is doing its job.

So, my suggestion, make these records just as open as any other government records. No special treatment for judges.

Gritsforbreakfast said...

Thanks, L, I corrected it. It's 7%. Last year three district judges were disciplined out of 42 total, and I accidentally copied the number instead of the percentage in one spot. Thanks for catching it.

Appellate judges make up 3% of all judges, district judges 12%. But appellate judge account for just 3% of complaints, compared to 44% of complaints coming against district judges, who as mentioned accounted for just 7% of disciplinary actions last year.

Just to mention it, in addition to fixing the transcription error described above, I also added the 2011 figures to the data tables, numbers for which were in the latest annual report but not the SER. The number of disciplinary actions in fy 2011 dropped quite sharply.