30 March 2007
Law Matters: Ensuring Judges' Ethics and Accountability
The following reflections of Missouri Chief Justice Michael A. Wolff make up his March 2007 Law Matters column.
Accountability. This currently popular buzz word reflects the public's interest in holding public servants – including judges – responsible for their actions. The public's interest is well founded.
If opinion surveys about accountability are any guide, then judges are doing fine. A national survey last year found that 64 percent of Americans trust the United States Supreme Court to operate in the best interests of the American people. Not as high as doctors, but very respectable. Likewise, a recent survey in Missouri found that 68 percent of the state's citizens trust the judges of the Supreme Court of Missouri to make decisions based on the law rather than on their personal preferences.
Despite these impressive numbers, attacks against judges and our judicial system continue. To prevent further attacks, we must address this question: What are the mechanisms for ensuring that Missouri judges are ethical, fair, impartial and prompt in their rulings? In other words, who judges the judges?
Code of Judicial Conduct
In addition to being bound by the lawyers' code of professional responsibility, all judges in Missouri are subject to rules that constitute the code of judicial conduct. These rules are intended to ensure that judges will act fairly, impartially and promptly in deciding cases. They govern the conduct of judges on the bench as well as restrict off-the-bench activities that might call the judge's fairness into question. For example, these rules prohibit conflicts of interest and prohibit a judge from communicating with one party to a case without the presence or consent of the other parties. These rules ensure that judges adhere to high ethical standards and avoid even "the appearance of impropriety."
A Commission for Enforcement
The code of judicial conduct is enforced by the Commission on Retirement, Removal and Discipline. The commission, established by a 1972 amendment to the state's constitution, consists of six members: two nonlawyers appointed by the governor; two lawyers appointed by the board of governors of The Missouri Bar, the organization of all the state's lawyers; and two judges – one circuit judge and one appellate judge – elected by their respective peers in the state.
The commission has a small staff, headed by St. Louis attorney Jim Smith. If a citizen has an ethical complaint about a judge, that complaint is sent to the commission. If the resulting investigation of that complaint reveals a potential violation of the code of judicial conduct, the commission may decide to pursue discipline against the judge, including asking that the judge be removed from the bench or be suspended for a time, reprimanded or otherwise disciplined.
The commission handles most such complaints against judges on an informal basis. Some have resulted in a judge resigning from office rather than facing the judicial disciplinary process. If an appropriate resolution may not be obtained through informal means, however, the commission conducts a formal hearing and recommends discipline to the Supreme Court. The Supreme Court reviews the evidence and any objections by the judge before deciding whether to adopt the commission's recommendation.
More information about the Missouri judge disciplinary system is available through this Web site on the page titled "Ethics and Discipline." From there, click on the link for the commission. The Web site also has the full text of ethical rules that apply to Missouri judges.
Individuals wishing to file an ethical complaint against a judge may do so through this Web site. For such individuals who do not have access to the Internet, complaints should be sent to the Commission on Retirement, Removal and Discipline via postal mail at 2190 South Mason Road, St. Louis, Mo. 63131, or via facsimile at (314) 966-0076. Other questions may be directed to the office via telephone at (314) 966-1007.
In very unusual cases, where a judge's misconduct has risen to the level of an impeachable offense, the House of Representatives may impeach the judge, whose trial then will be held in the Supreme Court. If the impeached judge is a member of the Supreme Court, the judge will be tried by a special panel of seven "eminent jurists" elected by the state Senate.
Before the commission was created in 1972, an impeachment trial was the only means by which a judge could be removed from office. Since the Civil War era, however, the House has impeached only two Missouri judges – both St. Louis County circuit judges and both in the 1960s. In both cases, the judges resigned from office before the Supreme Court held their trials. While the impeachment mechanism is still available, the commission serves as a more efficient method of ensuring judges adhere to the code of conduct and remain subject to disciplinary review even for ethical lapses that may not rise to the level of impeachable offenses.
Disqualifying a Judge
What if you believe a judge is not necessarily unethical, but you would prefer another judge to hear your case? Missouri courts give litigants the option of disqualifying a judge assigned to their case. A litigant may request a change of judge without providing a reason. If the request is filed on time, the judge will be replaced – no questions asked. Both sides in a lawsuit can exercise this right only once – a litigant may not continue to disqualify judges until he gets one that he likes. Litigants in most state and federal courts do not have the right to a change of judge on request. If a litigant wants a change of judge in those states or in federal courts, the litigant must show that the judge is biased. And, in most instances, the judge accused of bias is the one who decides whether the judge in fact is biased.
So by any account, there are at least three or four ways by which Missouri judges' behavior is governed, not the least of which is that our judges face the voters periodically. And, if one believes the surveys showing vast confidence in judges, the judicial ethical system seems to be working.