69 The Alabama Lawyer 427 (2008). The Current Status of Judicial Accountability.

• Author: By J. DOUGLAS McELVY

The Alabama Lawyer

2008.

69 The Alabama Lawyer 427 (2008).

The Current Status of Judicial Accountability

The Current Status of Judicial AccountabilityBy J. DOUGLAS McELVYBy a 2005 order of the Alabama Supreme Court and in conjunction with the Alabama State Bar, the Chief Justice's Commission on Professionalism was esatablished. The mission of the commission, as stated in its charter, is to "support and encourage judges and lawyers to aspire to and to exercise the highest levels of professional integrity in their relationships with litigants, lawyers and their clients, the courts and the public." Consisting of judges, citizens, law school deans, the state bar president, and others, the commission's desire is to promote public confidence in our legal system by ensuring integrity, professionalism and high ethical standards in the legal profession, including the Alabama judiciary. Former Chief Justice Drayton Nabors was appointed as chairman.

In 2007, Chief Justice Sue Bell Cobb asked the Commission on Professionalism to review the Rules of Procedure of the Judicial Inquiry Commission ("JIC"). These rules were originally promulgated by the court in 1975 but were substantially amended in 2001. In conjunction with this review, the Commission on Professionalism was to consider the JIC's suggested modifications to the 2001 amendments, which had been submitted to the supreme court's "Standing Advisory Committee on Rules of Procedure for the Court of the Judiciary and the Judicial Inquiry Commission" after its creation in 2002. After reviewing the original rules, the 2001 amendments and the JIC's proposals, the Commission on Professionalism made a number of findings and recommended the adoption of the JIC's suggestions. In addition, the Commission on Professionalism urged the supreme inadequacy of those rules and the need for substantial modification of those rules.

Judicial Responsibility to the Public

It is most fitting for the Alabama bench and bar to periodically review the mechanisms in place to ensure the public of the integrity and independence of its judiciary. Alabama took the lead in promoting professionalism in the bar when, in 1887, the Alabama Code of Ethics became the model for the ABA Code of Professional Responsibility and subsequent state bar codes of ethics. The Alabama Code of Ethics was written by Thomas Goode Jones, who not only served as a federal judge but also as governor of the State of Alabama and as president of the Alabama State Bar. The Code of Ethics quoted George Sharswood

There is certainly, without any exception, no profession in which so many temptations beset the path to swerve from the lines of strict integrity; in which so many delicate and difficult questions of duty are constantly arising . . . . High moral principle is [the lawyer's] only safe guide; the only torch to light his way amidst darkness and obstruction."(fn1 )

These words, written in 1854, remain no less important and applicable to our legal profession and legal system. Lawyers and judges serve a crucial and critical role in American democratic life. They are entrusted with the stewardship of America's rule of law. They must be worthy stewards.

Lawyers and judges have an obligation to wisely govern themselves. The Alabama State Bar is committed to an effective and rigorous system of regulating its members. Plus, pursuant to constitutional authority, the Supreme Court of Alabama formulated the Canons of Judicial Ethics to govern judicial conduct. Canon 1 states, "An independent and honorable judiciary is indispensable to justice in our society." Canon 1 further requires judges to observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. Our supreme court has made it clear as to why a rigorous enforcement of the Canons of Judicial Ethics is necessary.

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. Therefore, he must accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly." Commentary to Canon 2.

In 1983, the court affirmed the importance of judicial integrity and responsibility by stating in one of its opinions, "Noblesse oblige-From one to whom much is given, much is expected."(fn2 )

Public confidence is essential for the proper functioning of our legal system. A civilized society cannot function without public confidence in the rule of law. As the court noted in Hughes v. Board of Professional Responsibility of Supreme Court of Tennessee:

The Preamble to the American Bar Association's Model Rules of Professional Conduct provides that "a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority." Lawyers must be aware of the duty owed to the public, the judicial system and the bar. Every applicant for admission to the bar takes a solemn oath "to truly and honestly demean myself in the practice of my profession to the best of my skill and abilities, so help me God." Tenn. Sup.Ct. R. 6 (2007) No. M2007-01562-SC-R3-BP, 2008 WL 2687436, at *14 (Tenn. July 10, 2008).

It has been postulated that a judicial system without accountability will ultimately become a corrupt judicial system. As the Alabama Court of the Judiciary recently observed, "Our legal system can function only so long as the public, having confidence in the integrity of its judges, accepts and abides by judicial decisions."(fn3)

Regulating the Judiciary

Prior to 1972, the only method for discipline and removal of state judges in Alabama was by impeachment.(fn4) In January 1872, the voters of Alabama overwhelmingly approved a new method for disciplining state judges by creating the Alabama Judicial Commission. The Judicial Commission had the authority to investigate allegations of judicial wrongdoing, conduct hearings, adjudicate facts and accountability and make final recommendations to the Alabama Supreme Court, i.e., carrying out both the investigative and adjudicative functions in one body. In 1973, Alabama's entire judicial system was revised with the ratification of the Judicial Article.(fn5) Amendment 328 of the Alabama Constitution separated the investigative and adjudicative functions, thereby creating a completely new, two-tiered system of judicial discipline. The legislature and the people of Alabama gave the investigative function solely to the JIC and the adjudicative function to the Court of the Judiciary.

Under this two-tiered system, currently in effect, the JIC is "convened permanently with authority to conduct investigations and receive or initiate complaints concerning any judge of a court of the judicial system of this state" and to:

file a complaint with the Court of the Judiciary in the event that a majority of the members of the Commission decide that a reasonable basis exists (1) to charge a judge with violation of any Canon of Judicial Ethics, misconduct in office, failure to perform his or her duties, or (2) to charge that the judge is physically or mentally unable to perform his or her duties."(fn6)

Furthermore, "[a]ll proceedings of the commission shall be confidential except the filing of a complaint with the Court of the Judiciary."(fn7) The Court of the Judiciary, also created by Amendment 328, is charged with the adjudicative responsibility to publicly hear and decide complaints filed by the JIC and is authorized to impose sanctions for violation of a canon, judicial misconduct or failure to perform his or her duties. Sanctions may include removal from office and suspension or retirement of a judge who is physically or mentally unable to perform his or her functions.(fn8) Amendment 328 also authorized the supreme court to adopt rules "governing the procedures of the Court of the Judiciary."(fn9) The court adopted such procedural rules for the Court of the Judiciary on March 11, 1974 and for the JIC on April 25, 1975.

Amendment 328 and the original procedural rules for the JIC envisioned a simple, efficient process to handle complaints, investigations and, if necessary, prosecution of inappropriate conduct by judges - a process that was fair to any judge who was the subject of a complaint. The process also promoted public confidence in the integrity and independence of the judiciary. The original rules for the Court of the Judiciary and for the JIC were not weighted in favor of or against those...