More Elected Than Appointed Judges Disciplined in ‘90s

Elected judges are more likely to be disciplined for unethical conduct than appointed judges, according to the first-ever study by California’s judicial disciplinary agency.

Ethics experts suspect one reason is that elected judges get less scrutiny from voters than their appointed colleagues receive from governors, who rely on the State Bar of California to vet potential appointees. Governors are also keenly aware that their political legacies are shaped in part by the quality of their appointees to the bench.

The study, conducted by the state Commission on Judicial Performance, found that nine of the state’s 184 initially elected judges, or nearly 5%, were disciplined in 1999, compared to 32 of the state’s 1,414 initially appointed judges, or 2%.

Those statistics confirm that “the [gubernatorial] evaluation process is working and doing something that the electoral process is not doing,� said J. Clark Kelso, a professor at McGeorge School of Law in Sacramento.

The commission’s study, released last month, offers an unprecedented look at the state’s judicial discipline process, most of which is conducted in private through secret admonishments and advisory letters to errant judges. The study provides a statistical look at the 499 cases between 1990 and 1999 that resulted in either public or private discipline.

Never before has the 11-member commission compiled and made public this kind of statistical data, ranging from the age and experience level of judges who are disciplined to the types of misconduct most likely to result in sanctions. The study’s most significant finding was the relationship between discipline and a judge’s path to the bench.

Although the commission’s director declined to speculate publicly on the study’s findings, ethics experts agree that the discrepancy between elected and appointed judges may reflect the high quality of the judicial appointment process.

Besides undergoing an exhaustive review by the governor’s staff, judicial nominees are evaluated by a State Bar of California panel that uses an extensive survey process and personal interviews. Governors have rarely appointed judges rated “not qualified� by the bar’s Commission on Judicial Nominees Evaluation.

But neither the appointment nor election method of selection is foolproof. Michael E. Platt, who was appointed by Gov. Pete Wilson in 1994, was removed from the bench in August for fixing traffic tickets and trying to improperly influence another judge. Three months later, San Joaquin County voters reelected him to the court with 60% of the vote.

Most judges are initially appointed by the governor to fill vacancies created by the retirement or death of a sitting judge. As incumbents, they usually are reelected without opposition every six years.

Fewer than 10% of California’s 1,610 judgeships were filled in contested elections in 1996, 1998 and 2000, according to a 2001 Judicial Council of California study.

Further, the political skills needed to win a contested judicial election may contrast sharply with those needed to be a good judge, creating potential ethical problems, observed Cynthia Gray, director of the American Judicature Society’s Center for Judicial Ethics in Chicago.

“The political system rewards people who are good politicians and not necessarily good judges,� Gray said. “And good judges are not necessarily good politicians.�

In addition, attorneys who successfully challenge sitting judges may not receive warm welcomes from their new colleagues and, as a result, have no place to turn for advice on the difficult ethical issues they may face as new judges, retired Los Angeles County Superior Court Judge David Rothman said.

Giving weight to the popular image of the older, wiser jurist, the study found that judges in their 30s and those in their third through sixth year on the bench are more likely than others to get in ethical trouble.

Most new California judges get hands-on attention and educational opportunities, experts say. They must attend a one-week orientation, half of which is devoted to ethics issues, and a two-week Judges College with an ethics update and fairness issues sprinkled throughout the curriculum.

“The idea is that ethics and fairness are the essence of being a judge,� said Rothman, the state’s leading authority on judicial ethics and a frequent lecturer on the topic.

Judges in smaller courts also are much more likely to be disciplined than those in larger courts, the study found.

There are 15 California counties with only two authorized judgeships each. Of those, 17 judges, or 57%, were disciplined during the 1990s, according to the study. In courts with more than 42 judges, there were 294 discipline cases from among the 1,017 authorized judgeships in the same period, or a 29% discipline rate, the statistics show.

“It may be in part the anonymity of large courts,� Kelso said. “Justice in small counties tends to be more personal than in large counties.... Those personal connections, if you are not careful, can be ethical traps.�

In large courts, judicial assignment may be tailored to a judge’s expertise or temperament, while rural judges handle all the matters that come before them, Rothman said.

Inappropriate demeanor in the courtroom accounted for 13% of the judicial discipline cases in the study, followed by bias or the appearance of bias toward one party in a dispute that is unrelated to gender or racial discrimination, which accounted for 10% of the cases.

In 9% of the misconduct, judges failed to disqualify themselves from a case or disclose a relationship with the parties.

Judges also are commonly sanctioned for abusing their authority on the bench and communicating privately with one side in a dispute without the other’s knowledge, the study showed. Other reasons for disciplinary action included failure to render prompt decisions or ensure the legal rights of litigants, improper use of judicial office to get special treatment outside of court, and abuse of contempt powers.

Rothman said it is particularly difficult to train judges on these issues because there are no clear-cut rules. He said he receives calls from judges seeking ethical advice on such issues as whether to disqualify themselves from cases or accept gifts from attorneys. “I don’t get calls from a judge saying, ‘I’m about to abuse my authority,’ � he said.

Anonymous tips resulted in more disciplinary actions than any other category of complaints, including those from litigants, said Victoria B. Henley, the commission’s director and chief counsel.

Fewer than 2% of the complaints received each year come from anonymous tips and news stories, but 13% of the disciplinary actions meted out in the 1990s were prompted by such tips, the study shows. By contrast, litigants filed 79% of the complaints in the same period, but such complaints produced only 35% of the disciplinary cases.

Henley and others speculate that lawyers, court staff and other judges may provide many of the anonymous complaints, because they fear repercussions if they are identified.