Hearing slated for proposed changes in judicial discipline
by Barbara L. Jones
Judges who are the subject of disciplinary proceedings will have greater procedural protections if the recommendations of an advisory committee on the Rules of the Board on Judicial Standards are adopted by the Supreme Court.
The advisory committee, chaired by 6th Judicial District Judge Gary Pagliaccetti, has recommended separating the prosecutorial and adjudicatory functions of the board and a “reasonable cause” standard to believe the judge committed misconduct before a complaint is investigated. Both changes have been welcomed by the Minnesota District Judges Association.
Hennepin County District Court Judge Charles Porter, president of the MDJA, said the judges were very pleased with the report as far as it went. “There are still issues regarding funding and quality control of the executive secretary as far as file review. We think those are good ideas, but we support the suggestions made.”
The Supreme Court justices have scheduled a hearing on the proposal for July 9.
The committee’s recommendation addresses the due process concerns some judges have about the board both investigating and deciding their disciplinary cases.
The report recommends that the Board on Judicial Standards act as the prosecutor, with a three-member hearing panel and then, ultimately, the Minnesota Supreme Court acting as the adjudicators. In connection with that change, the board no longer would have the power to substitute its fact-finding for that of the panel before the case is sent to the Supreme Court.
St. Paul attorney Richard Thomas, who has represented judges in discipline proceedings, said he is “delighted” that the committee has recommended the changes.
“Under the existing rule, the board can substitute its judgment even though it has never been in a position to judge the credibility of witnesses, and that makes no sense,” Thomas said.
The committee has recommended that the standard for proceeding with a complaint be amended from “sufficient cause” to the somewhat more stringent “reasonable cause.” If there is no reasonable cause, the board dismisses the complaint.
The report said the investigation stage is made more “robust” by providing for notice to the judge when an investigation is authorized and allowing the judge an opportunity to both respond in writing and appear before the board or a board panel.
The board may issue various low-level dispositions, including a private admonition, or issue a formal complaint.
If the board issues a private admonition, a judge would have the right under the proposed rules to appeal the admonition privately to a panel of former board members. Only after that review would the matter have to go publicly to the Supreme Court.
This change addresses another concern raised by the MDJA, because under current rules judges may not contest private admonitions without making the matter public.
It was greeted with mixed feelings by Hennepin County District Court Judge Kevin Burke, who successfully contested a proposed private admonition. It is a good change if it is applied properly and doesn’t result in a more aggressive private admonition practice, he said.
“In light of the current discussion about judicial independence, the public should understand that the Board on Judicial Standards is a potential threat to judicial independence. The biggest problem with the board is the personnel, not the rules,” Burke said. Even a private dispute with the board is emotionally taxing and has a chilling effect on a judge, he said.
The private admonition proposal is also complicated by the fact that a judge is a public figure and the judge’s privacy could be inconsistent with public trust and confidence in the judiciary, he said.
If the board issues a formal complaint, a hearing panel is appointed by the Supreme Court. The panel includes a presiding judge who is a member of the bench. The standard is clear and convincing evidence of misconduct. If the board disagrees with the panel, the board must appeal to the Supreme Court.
The rules provide for an expedited process if a complaint is issued during an election, and allow the board to make a public statement during an election if the complaint is dismissed.
Disability defined
The new rules would also change the procedures used in cases of disability. Disability has been defined to include physical and mental conditions that interfere with the capacity of the judge to perform his or her duties, and also to include impairment due to alcohol and substance abuse.
The rules vary the procedure in cases of disability by limiting the options to either a deferred disposition agreement to allow the judge to obtain treatment or issuance of a Formal Statement of Disability Proceeding, which moves the issue to the public hearing stage and which is contemplated where the outcome will be suspension or retirement.
The question at the public hearing would be whether there is clear and convincing evidence of a disability. If the judge committed misconduct, the board could issue a separate formal complaint about the misconduct, but the hearings on misconduct and disability would be combined. Then the panel would determine if the misconduct was related to a disability.
Current rules provide that a denial of disability constitutes a waiver of medical privilege. Under the proposed rule a waiver would arise if the judge admits the disability or uses it as a defense, but if the judge denies it, the board would determine based on its investigation if there is credible evidence of a disability. If the medical privilege is waived, the waiver is limited to medical records relevant to the alleged disability.
Records access
The committee is also recommending that the court promulgate a new Rule 21 that would facilitate periodic review of the board’s records and proceedings and provide participants notice of the possibility that the files may be reviewed.
The recommendation follows the committee’s unsuccessful request to the Supreme Court to review a random sample of the board’s files in order to educate the committee about the board’s practices. The records of the Office of Lawyers Professional Responsibility are reviewed similarly.
Minority report
A minority report was submitted by Patrick D. Sexton, the current chair of the Board on Judicial Standards, and DePaul Willette, former executive secretary of the board. They object to a recommendation to disclose the names of board members who participate in actions before the board. The committee’s report said it made the recommendation to dispel perceptions of bias and secrecy and inform the judge of the members who made a particular judgment. The minority report argues that the board acts with one voice and the proposed change will be “highly corrosive” to the board’s process.
The complete committee report is available in this week’s Appellate Courts Edition.
