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2) Incomplete, outdated, and/or inconsistent rules and procedures also impair the agency's ability to achieve its objectives.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:

• Advocacy groups compiling Sunset wish lists ... do you have yours?
• Holding Texas judges accountable for past misconduct
• Few cases against judges sustained by Judicial Conduct Commission