Complaints about Texas judges are usually handled in secret and rarely lead to punishment. That’s what state lawmakers heard when they met to review the Texas Commission on Judicial Conduct, the agency that disciplines judges.
Today Shelley Kofler continues our series, Texas Judges- Out of Order. She takes a look at why the agency is under attack and changes the legislature may consider.
Every 12 years or so state lawmakers appointed to the Texas Sunset Commission look at the operations of a state agency and recommend changing or eliminating the agency.
But this year when the Sunset staff asked to observe disciplinary hearings for judges and look at the handling of citizen complaints, the Texas Commission on Judicial Conduct said no, that the Texas Constitution requires information about judicial proceedings be confidential.
The judicial commission’s resistance to open its meetings and records even to state officials lead to a heated confrontation in April between State Senator John Whitmire of Houston and the judicial conduct commission’s board chairman Thomas Cunningham.
“Do you have a recommendation for how we resolve this,” Whitmire asked Cunningham. “Because I promise we’ll be doing the same thing two years from now if we have to,” he added his voice growing louder with frustration.
PDF: Sunset Commission Report on Judicial Conduct
“There are alleged conflicts of interest and biases and misconduct, and the public has nowhere to go but to turn to y’all,” Whitmire said.
“We are not here to be stonewalling. All we are doing is complying with the law as we see it,” Cunninham responded.
Citizens testified that the agency’s secrecy makes it impossible to know whether Texas’s 3,910 judges are being held accountable. Austin attorney Bennie Ray told lawmakers that even when judges are punished it’s a slap on the wrist in a closed meeting.
“There’s no way for the public or a voter to easily track a judges complain history. Judges could have a number of informal complaints and nobody would know about them,” Ray testified.
The Sunset report says the judicial commission received more than 1,100 complaints last year. Most were dismissed. A little over two dozen were sanctioned in private. Only six judges were publicly scolded and identified but they all kept their jobs.
State Representative Rafael Anchia of Dallas sits on the Sunset Commission. He believes the judicial commission has taken confidentiality too far.
“If you have judges who are not publicly sanctioned but are sanctioned in closed meetings it doesn’t give the public the ability to evaluate whether those judges are doing a good job,” Anchia said.
“The reality is that the public does have a right to know whether judges are being abusive, whether they are independent, whether or not they are corrupt. Those are all legitimate public interests,” he added.
Anchia says giving the public access to needed information about their judges may require changes in state law or the Texas Constitution.
“It seems to me that the exemption from the Open Records Act or Public Meetings Act of Administrative Procedures Act for the State Commission on Judicial Conduct needs to be evaluated in this sunset process. We can put a constitutional amendment on the ballot for the public so they can decide whether these hearings and proceedings should be open to the public,” Anchia suggested.
Attorneys and citizens who testified during the Sunset hearings go even further with their suggestions. Some want the Commission on Judicial Conduct to be disbanded. Others want all complaints against judges to be made public and they want the commission to explain why complaints are dismissed.
The Commission’s executive director Seana Willing insists her agency is only trying to do the right thing, and she says changes that create a more open system might actually be good.
“Frankly, from my experience if we open this process up and let the public see what’s been filed against the judges they would come to the same realization and recognition I have and that is we get a lot of frivolous complaints. And there are a lot of really good, honest, hard-working judges in this state. And the ones that aren’t, when they come to our attention, they’re taken care of,” Willing said.
Judges may believe that, but many citizens don’t.
When asked if the State Commission on Judicial Conduct is fair, 86% of the judges who were the subject of complaints said the agency did good or excellent work. Some 76% of the citizens who complained, however, told the Sunset staff the review process is unsatisfactory. Most of the citizens said the investigations were not thorough or timely, and judicial misconduct isn’t punished when judges are out-of-order.
In an effort to more thoroughly review the State Commission on Judicial Conduct legislators on the Sunset Commission have asked the Attorney General to rule on whether lawmakers have a right to see additional information about the judges. The judicial commission has filed a response defending its practices. The Attorney General is expected to rule on that issue by December.
