Proposition 9 in Texas is one of nine questions on the ballot this year. Most are of a local nature or eliminating state bureaucracies along with the obligatory water question that seems to make the ballot every year. This proposal would increase the number and types of sanctions a judicial review board could impose on judges and justices in Texas after a formal review hearing.
The judiciary is supposed to be independent of the legislative and executive branches of government in a republic. It is the reason judges are usually appointed for life at the federal level. But at the state level, that is not necessarily the case as many states have established mandatory retirement ages. In New Jersey, a state supreme court justice is appointed for a specified term with state senate approval. When that term expires, they are generally renominated and approved by the senate after which they receive lifetime tenure. Chris Christie upset the apple cart in his first term by refusing to renominate some justices and replaced them with his own. Nothing other than tradition prevented him from doing this, but to hear Democrats in the state talk, one would think that he deliberately set Trenton on fire. This is but one example of how judicial appointments work at the state level.
When Texas became a state in 1845, judges were appointed by the governor with state senate approval. That was changed in 1876 when judges at all levels were elected by voters in partisan elections. In the 1980s and thereafter, the cost of these races increased dramatically and in 1980, Texas became the first state with a $1 million judicial race. In 1995, campaign contribution limits were imposed for races for statewide judges in order to remove the appearance of impropriety should a donor appear before a particular judge. The purpose of electing judges is that the people are the ultimate check on a judiciary gone wild.
That is one thing to say or aspire to and quite another to actually accomplish. Additionally, during their tenure before another election, judges can potentially perform their duties in an incompetent or even corrupt manner. In those instances, the regulatory outlet is the Texas State Commission on Judicial Conduct.
This board is a small state agency operating on a budget of about $800,000 annually. It is one of the oldest judicial review boards in the country and little known in Texas, let alone the United States. In effect, the 27 employees of the commission oversees 3,750 judges in the state. The commission receives and investigates complaints against judges in Texas. For example, in 2009, they received and investigated 1,204 complaints.
What brought this issue to be placed on the ballot is the performance of a higher-profile appeals court judge, Sharon Keller, and the case of Michael Richard. Richard had been convicted of burglary, car theft, rape and murder and sentenced to death. On the very day that the United States Supreme Court accepted a case over the question of lethal injections- the method used in Texas- his attorneys attempted a stay of his execution which was scheduled for 6:00 P.M. that afternoon. The stay request first had to be filed with the Texas Court of Criminal Appeals. Due to a computer glitch, the motion was not received until 5:20. His attorneys allegedly told the court they were having trouble with the computer filing of the stay request. Unfortunately, the clerk's office closed at 5:00 P.M. He was executed at 8:20 that night. However, his lawyers could have picked up a phone and called the office which had an on-call judge. The State Commission on Judicial Review cited Keller for nine alleged violations. During the formal hearing, many of Richard's lawyers assertions were found to be false or questionable. For example, there was evidence that the necessary forms were not completed until 5:56 that evening and that there was unsubstantiated rumors that only the internal e-mail service of the appeals court was experiencing minor difficulties. Also, a deputy public defender handled the paperwork and no judge was contacted which was also an option as a means to by-pass the computer system. Finally, the lawyers waited two hours until after the Supreme Court took the lethal injection case.
Still, the fact that the Commission recommended a formal hearing on the complaint and assigned a Special Master to examine the evidence shined a light on this overlooked state commission. The commission, as mentioned earlier, received 1,204 cases in 2009. Most are dismissed, but in that year they did take 70 disciplinary actions and dismissed 1,063 cases. Some cases remained unresolved. If they find merit to any complaint, they generally hold a hearing where both sides present their case after which the Commission makes a recommendation. Sometimes this amounts to a reprimand. A felony conviction or misdemeanor conviction of official misconduct means automatic removal from the bench and is beyond the Commission's purview. But in the case of appeals court judges, only the Legislature can remove the judge.
Many times the Commission persuades judges found to be lacking in moral or ethical conduct to resign in a cooperative method before they bring formal charges and begin an investigation. Some of the more colorful examples out of Texas in the recent past include the case of the judge in Houston cleaning their gun during a murder trial, the Dallas judge who failed to file their campaign finance forms on time and the Waco judge who broke into a lawyer's office and read confidential papers without permission.
As many commissioners have stated, the ultimate arbiters of a judge's performance and ethical standards are the people who vote for judges. That works fine provided the people are aware of the complaints and results of those complaints against individual judges in Texas. Former commission Executive Director Margaret Reaves is credited with making the process and the results more transparent in an attempt to empower voters with information. She resigned after four years. Obviously, there are privacy concerns and many of the reports to the Legislature on the commission's results are statistical in nature and fail to mention judges by name in the interest of privacy.
There are other complaints that the Commission shies away from higher level judges. In fact, most of those disciplined are low level judges although this is not surprising given the fact that the bulk of judges in any state are low level. Most of the disciplinary action involves censure or reprimand often accompanied with mandatory education on ethical conduct. Since 2002, the Commission has issued 46 suspensions. These were all in response to criminal charges against the judges. Thirteen suspension had to be lifted, eleven because the judge was later acquitted of the charges or the charges were dropped. Seven suspensions resulted in voluntary resignations while six are in effect pending the outcome of a criminal trial.
Perhaps the most publicized case involving a public reprimand from the Commission involving Judge William Adams who regularly hears child abuse cases. In 2004, his daughter filmed an incident where her father, the judge, beat her with a belt in her bedroom when she was 16 years old.
There is also the case of the judge who asked Hispanic defendants why they had not learned English and the judge who was, at the time, living with the mother of a defendant appearing before him.
These things happen with judges all the time in every state. For example, one judge reprimanded in Texas tried to use his position and authority to secure the early release of a juvenile daughter of a family friend held in juvenile detention in another county.
The primary fear with empowering the Commission to more vigorously enforce ethical codes against judges is that unelected officials could possibly circumvent the will of the people. For example, a judge may have been elected because he campaigned as being a tough law-and-order type who will not tolerate certain actions in his courtroom. Unfortunately, their reaction to those "certain actions" may very well violate judicial ethical standards. However, obviously a judge who turns American notions of justice on its head- that is, who assumes guilt before innocence- there needs to be strict deterrence. As a conservative, I am all for a judge throwing the book at a convicted person after a full hearing of the facts. But the key is "convicted" and "full hearing of the facts."
Given the actions of the Commission in the past, they appear to treat each complaint honestly and with an open mind. They are not out to get judges. Granting them a greater array of disciplinary action options can only strengthen their important role. Additionally, transparency is key to the whole process. The more the voter knows about the sitting judge seeking reelection, the more empowered the voter is. In fact, it would even make sense for the Commission to release an annual report card of the 3,750 judges it oversees listing the number of complaints received and the number of justifiable complaints adjudicated. This would encourage judicial ethical behavior and may even lead some judges to actually read the ethical standards expected of all judges in Texas.
Suggestion to Texas voters: Vote "YES" on Proposition 9.
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