Secrecy and judges

Shine light on misconduct

Sunday, June 24, 2007

So the executive director and general counsel of the state Commission on Judicial Discipline thinks it's good policy to keep investigations of judicial misconduct secret.

"The nice thing about Colorado is that the judges choose to go away if they misbehave," said Rick Wehmhoefer.

Well, yes, it may be nice that they go away without a fight if they think that the commission will uphold a complaint against them, although we don't see why a judge who believes a complaint is unfounded should hesitate to contest it if the commission disagrees.

But it is not nice at all that they are able to leave without the public ever finding out that they were being investigated for misconduct or whether the nature of the misconduct might be relevant to the cases that have come before them. Only if the commission recommends that the Colorado Supreme Court discipline a judge are its findings public, and the last time that happened was in 1986. The commission was established in 1966, and in 41 years it has never recommended that a judge be removed for misconduct.

Lawyers don't enjoy the protection of such secrecy. Not only is the fact that disciplinary hearings are being held a matter of record, but the hearings themselves are open to the public, and have been since 1998.

Wehmhoefer points out that most complaints - the commission investigated 179 in 2006 - are unfounded, most are related to criminal rather than civil cases, and more than 80 percent are from inmates unhappy with something a judge has done. Perhaps that's a reason for investigations to remain confidential in the early stages, but in 34 states findings become public at some point in the process, while in Oregon disclosure is triggered by commission hearings.

Last year, Wehmhoefer said, the commission sent letters of reprimand privately to two judges. Two others retired while their cases were pending before the commission. Once judges have left the bench, the commission has no further authority over them and the complaints against them are never disclosed. Even though the number of incidents is small, as a matter of principle the public ought to know about them.

Changing the system, which is part of the state constitution, will require an amendment. We'd like to see the legislature put an amendment on the 2008 ballot, as a means of bringing greater transparency to the justice system. We agree with the American Judicature Society, which has been advocating a more open system since 1996, that "confidentiality can undermine the public confidence in the judicial discipline process."

When judges can escape the consequences of misconduct simply by resigning, indeed it can. And does.