Three Likely Causes of Judicial Misbehavior and How these Causes Should Inform Judicial Discipline

• Author: Maxine Goodman
• Position: Professor, South Texas College of Law
• Pages: 949-997

THREE LIKELY CAUSES OF JUDICIAL MISBEHAVIOR

AND HOW THESE CAUSES SHOULD INFORM

JUDICIAL DISCIPLINE

MAXINE GOODMAN*

“To offend and judge are distinct offices [a]nd of opposed natures.”1

I. INTRODUCTION

In November 2003, Texas state court Judge Faith Johnson in Dallas

celebrated the recapture of a fugitive by throwing a “recapture party” with

balloons and ice cream in her courtroom.2 She celebrated the recapture just

before sentencing the defendant to life in prison.3 In a similar act of odd

and unsuitable judicial behavior, Seattle Superior Judge Beverly Grant

ordered those in her courtroom to do a cheer in honor of the Seattle

Seahawks football team just before sentencing a defendant for

manslaughter, as the defendant’s relatives observed.4 Dismissing criticism

Copyright © 2013, Maxine Goodman.

* Professor, South Texas College of La w. The ideas in this Article come in great

measure from my experience clerking for Federal District Cou rt Judge Norman W. Black,

who never lost his temper (in public or in front of his court personnel) and always modeled

temperate, even-headed judicial conduct. Clerki ng for Judge Black certainly informs my

position that the public should not tolerate, and courts and judicial conduct commissions

should sensibly and effectively discipline, judicial misconduct of the kind described in this

Article. I want to thank my colleague James Alfini for his wonderful insights into the world

of judicial conduct and the edi ting team at Capital University Law Review for their prompt,

thoughtful, and competent work. And, I am grateful to my colleague Tobin Sparling for his

friendship and help with this Article.

1 WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE act 2, sc. 9, ll. 60–61 (Jay L. Halio

ed., Oxford Univ. Press 2008).

2 Judge Apologizes for Throwing Recapture Party, HOUS. CHRON., May 15, 2005, at

B11.

3 Id. After the State Judicial Commission on Judicial Conduct admonished Judge

Johnson, she issued the following written statement: “If my celebration of the return of

fugitive Billy Wayne Williams offended any member of the community, I deeply

apologize.” Id.

4 Stipulation, Agreement and Order of Admonishment, In re Grant, CJC No. 4952-F-

131 (Wash. Comm’n on Judicial Conduct Aug. 4, 2006), available at

http://www.cjc.state.wa.us/Case%20Material/2006/4952%20Grant%20Stipulation.pdf;

Tacoma Judge Apologizes for Leading Super Bowl Cheer in Court, SEATTLE TIMES (Feb. 7,

2006, 12:00 AM), http://community.seattletimes.nwsource.com/archive/?date=20060207&

slug=webjudge07.

950 CAPITAL UNIVERSITY LAW REVIEW [41:949

of her actions, Judge Grant explained she was attempting to ease tension in

the courtroom.5 In South Dakota, Judge Pete Fuller gave a lawyer “the

bird” during a court proceeding.6 In addition, Judge Fuller routinely swore

in open court, referring to his court clerk as “the goddamn clerk” and

complaining about “the goddamn calendar.”7 These are but a few

examples8 of judges cursing at, demeaning, and berating lawyers,

colleagues, and parties in their courtrooms.

This Article is about judges behaving inappropriately and attempts by

disciplinary tribunals to correct the behavior. The Article examines

possible reasons why judges misbehave, arguing that these reasons should

inform the manner in which courts and judicial conduct commissions

discipline judges.9 The objectives underlying judicial discipline are also

assessed, showing the lack of clarity of these objectives and the lack of

connection between objectives and discipline.10 Ultimately, the piece

posits that the process of judicial discipline is flawed because the typical

means of discipline fail to satisfy stated objectives and are in no way

informed by the reasons judges misbehave.11

Part II describes the rules of judicial conduct that concern judges

acting with civility and courtesy to those in their courtrooms.12 This

Article focuses on rude, offensive behavior Judges exhibit from the bench

and examines how state judicial conduct organizations and courts

discipline this type of conduct.13 Part II also discusses why disciplining

5 Id.

6 In re Fuller, 798 N.W.2d 408, 413 (S.D. 2011).

7 Id. The Supreme Court of South Dakota suspended Judge Fuller from serving on the

bench and provided certain conditions that if Judge Fuller satisfied would allow him to

return to service. Id. at 421–22.

8 The examples in the Article, most of which are describ ed in Part III, are a sampling of

the instances where the public beca me aware of the judge’s behavior because of a published

court decision, publicly available decision of a sentencing commission, or newspaper

article. Other instances of rude, intemperate ju dicial behavior occur, but do not get

publicized because of the confidentiality guidelines for state judicial conduct commissions.

See, e.g., TEX. CONST. art. 5, § 1-a(10) (1980) (“All papers filed with and proceed ings

before the Commission or a Master shall be confidential, unless otherwise provided by law,

and the filing of papers with, and the giving of testimony before the Commission or a

Master shall be privileged, unless otherwise provided by law.”).

9 See discussion infra Parts III, V.C.

10 See discussion infra Parts II, IV.

11 See discussion infra Parts IV–V.

12 See discussion infra Part II.

13 See discussion infra Part IV.

2013] JUDICIAL MISBEHAVIOR 951

this type of behavior matters, examining from the procedural justice

perspective the public’s reaction to poor judicial demeanor.14

Part III identifies the following three reasons judges might express

hostility and anger toward those in their courtrooms: judges lose sight of

the humanity of those appearing before them,15 they suffer from “decision

fatigue,”16 and judges are unable to regulate their emotions. Part III also

illustrates the improper behavior examined in this Article: judges cursing

at, ranting at, and demeaning lawyers and parties in their courtrooms, often

in violation of the rule of judicial conduct requiring a judge to be “patient,

dignified, and courteous” to those with whom the judge deals in an official

capacity.17 While other types of judicial misconduct may result in

sanctions, this Article focuses on judicial misbehavior under Model Code

of Judicial Conduct Rule 2.8(B).

Part IV describes judicial conduct commissions and examines how

these tribunals typically sanction judges for judicial misconduct,

identifying the objectives underlying judicial sanctions and the common

challenges associated with them.18 Part IV also examines these objectives,

suggesting that courts and sanctioning organizations clarify these goals.19

Part V suggests revisions to existing sanctioning schemes—ideas for

improving the effectiveness of the sanctions by tying them more closely to

both the underlying causes of this type of behavior and to more clearly

drawn objectives.20 This Article differs from existing literature by

revisiting disciplinary schemes in light of explanations for why some

14 See discussion infra Part II.

15 See discussion infra Part III.

16 See discussion infra Part III.C.

17 MODEL CODE OF JUDICIAL CONDUCT R. 2.8(B) (2011) (“A judge shall be patient,

dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials,

and others with whom the judge deals in an official capacity, and shall require similar

conduct of lawyers, court staff, court officials and others subject to the judge’s direction and

control.”). Most states have adopted some version of this rule of conduct. See, e.g., AR.

CODE OF JUDICIAL CONDUCT R. 2.8(B) (2012); WA. CODE OF JUDICIAL CONDUCT R. 2.8(B)

(2011).

18 See discussion infra Part IV.

19 See discussion infra Part IV.B–D.

20 See discussion infra Part V.