Testing three commonsense intuitions about judicial conduct commissions.

• Author: Abel, Jonathan

INTRODUCTION I. REVIEW OF THE LITERATURE AND THE DEVELOPMENT OF THE MODERN JUDICIAL CONDUCT COMMISSION A. The Evolution of Judicial Discipline B. Similarities and Variations Between the Judicial Conduct Commissions C. The Analytical Gap in the Literature II. A CALIFORNIA CASE STUDY: THREE HYPOTHESES ABOUT WHAT DRIVES DISCIPLINARY ACTIONS A. Hypothesis #1: Commissions with More Laypeople Issue More Disciplinary Actions B. Hypothesis #2: Commissions Issue More Disciplinary Actions Against Elected Judges than Appointed Judges 1. Elected versus appointed judges: an intrastate comparison 2. Elected versus appointed judges: a state-to-state comparison 3. What accounts for the supposed difference between elected and appointed judges? C. Hypothesis #3: Commissions with Higher Budgets Issue More Disciplinary Actions 1. The legislature's use of the budget lever against the judiciary III. TESTING THE HYPOTHESES WITH THE THIRTY-FIVE-STATE DATASET A. The Data 1. Defining discipline 2. Standardizing the data among the states 3. The effect of unobserved variables 4. Sources of inaccuracy in the state caseload data B. The Results 1. Hypothesis #1: Commissions with more laypeople issue more disciplinary actions 2. Hypothesis #2: Commissions issue more disciplinary actions against elected judges than appointed judges 3. Hypothesis #3: Commissions with higher budgets issue more disciplinary actions CONCLUSION APPENDIX INTRODUCTION

People knew there was something wrong with the juvenile court in Luzerne County, Pennsylvania. (1) As the New York Times described it:

Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day-even before hearings to determine their innocence or guilt. Lawyers told families not to bother hiring them. They would not be allowed to speak anyway. (2) Time and again, juvenile defendants found themselves sentenced to jail even when the probation officers did not recommend detention. (3) Parents and others complained to the state's Judicial Conduct Board, but the complaints were ignored for years. (4)

Finally, in 2009, a federal investigation uncovered the truth: Mark Ciavarella Jr. and Michael Conahan, two state judges in Luzerne County, were being paid by a privately owned detention center to lock up children. (5) All told, the "kids-for-cash" (6) kickback scheme netted the judges $2.6 million (7) in an outrageous example of judicial misconduct. While the judges have both been sentenced to federal prison, (8) their misconduct continues to stain the state's judiciary. (9) And this misconduct is far from the only example of judicial misbehavior.

Judicial misconduct is the dirty little secret of the state judiciary, well known but rarely discussed. In Wisconsin in 2011, one supreme court justice accused another justice of putting her in a chokehold in chambers as the two debated the constitutionality of the state's controversial collective bargaining law. (10) A New York judge in 2010 was punished for jailing all forty-six defendants in his courtroom when a cell phone went off and no one would say whose it was. (11) In 2003, the Chief Justice of the Alabama Supreme Court was removed from the bench after he disobeyed a federal judge's order to remove a statue of the Ten Commandments from the courthouse grounds. (12) Every year, judges are disciplined for falsifying court documents, (13) verbally abusing litigants, (14) sexually harassing court employees, (15) and using their authority to demand special treatment outside of court. (16)

Judicial misconduct is sometimes downright ridiculous. For example, litigants in a Maryland courtroom complained about a judge who was "eating and lifting dumbbells behind the bench for most of the hearing." (17) In Arkansas, a judge was chastised for selling "The Testimony," a CD of his "inspirational musical performances." He violated the Code of Judicial Conduct by marketing his CD with a picture of himself in judicial robes. (18) In California, a judge instructed the husband of a bailiff to film the judge in court so that the judge could send a demo tape to a television audition. (19) A Utah judge landed in trouble when he publicly referred to President Bill Clinton as the "anti-Christ." (20) The list goes on and on.

Judges are people, and misbehavior is part of human nature. But judicial misbehavior is exacerbated by the fact that judges have so much power and so little oversight. While judges' doctrinal mistakes are corrected by the well-established appellate court system, there are fewer protections against judges' misconduct on and off the bench. That's where judicial conduct commissions come in.

The duty of policing judicial misconduct falls on these commissions, little-known state administrative agencies. Their success in disciplining judges is the focus of this Note.

The first judicial conduct commission was established in California in 1960. (21) By 1981, they had sprouted up in every state in the nation, as well as in the District of Columbia. (22) Their proceedings are largely confidential because of the sensitive nature of their work. As a result, scholars pay them little attention, and the media largely ignores them. Only when there is a bizarre charge of misconduct, or a complaint against a high-profile judge, does the public ever hear about the commissions. Day in and day out, however, they are charged with the critical function of preserving the integrity of the judiciary.

This Note looks at why some commissions do their jobs more effectively than others. As this Note's empirical analysis reveals, some commissions take a no-nonsense approach toward misconduct, disciplining many judges; other commissions soft-pedal discipline, punishing hardly anyone. Understanding the factors that make some commissions more aggressive than others is not just an academic exercise; it provides practical information to states as they continue to redesign their commissions.

The statistics in this Note come from a dataset I created specifically for the project. The dataset tracks the number of disciplinary actions against judges in thirty-five states from 2000 through 2010. It also follows other factors that are thought to be relevant in predicting the amount of disciplinary activity a commission takes: the number of complaints received by each commission, the composition of each commission (i.e., how many judges, attorneys, and laypeople are on the commission), the annual budget of each commission, and the method of judicial selection in the state (i.e., elections versus appointments). This is the only dataset of its kind, and it permits a novel analysis of the factors that lead to disciplinary activity--a topic that has never before been examined statistically.

This Note starts with a case study of California's Commission on Judicial Performance. The case study develops three theories about what makes some commissions more aggressive than others. It then puts those theories to the test using the new data. The result is that several widely shared intuitions about these commissions turn out to be wrong. These intuitions have driven legislation and public policy in California, Washington, and other states, but their reasoning is not supported by the data. By putting the factors to the test, this Note enables policymakers to make informed decisions about how to create commissions that will best maintain the public's trust in the judiciary. Likewise, the study provides researchers with a new dataset on the topic, a dataset that will facilitate future study.

The analysis proceeds in three parts. Part I begins with a brief background of the developments that led to the modern judicial conduct commission and then surveys the existing literature on the topic.

Part II uses the California case study to set out three existing theories about what makes some commissions more aggressive than others--theories derived from dozens of interviews with judges, defense attorneys, commission members, and commission staff. The first intuition that emerged from these interviews is that commissions are more aggressive when a majority of their members are laypeople, and less aggressive when a majority of the commission members are judges and lawyers. This intuition has driven public policy and legislative action, causing several states to alter the structure of their commissions. The second intuition is that commissions are more inclined to discipline elected judges than appointed ones. This theory has obvious importance given the current debate about the costs and benefits of electing judges. (23) The third intuition is that well-funded commissions carry out more disciplinary actions than underfunded commissions because they have the resources to investigate more cases. In hard economic times, as lawmakers search state budgets for cuts, the connections between funding and discipline are all the more important.

Part III uses a thirty-five-state dataset of disciplinary activity to put these hypotheses to the test. The tests arrive at surprising results. First, there is no evidence of a statistically significant relationship between the composition of a commission and the level of disciplinary activity, notwithstanding all the legislative blustering to the contrary. Second, there is reason to doubt that states that elect judges ("election states") discipline their judges more often than states that appoint judges ("appointment states"), despite the conventional wisdom to the contrary. Finally, the budget matters. Well-funded commissions discipline judges more often than underfunded commissions. This finding demonstrates the importance of adequately funding these commissions and suggests the dangers to the integrity of the judiciary that could occur from cutting the commissions' funding.

There is one theoretical assumption that undergirds all the statistical analysis in this Note and therefore must be...