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
 
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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.

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