Tennessee Watchdog on state’s judicial accountability system

Special Report: A JURY OF THEIR PEERS
TNWatchdog Staff
December 23, 2009
TennesseeWatchdog.org
http://tennessee.watchdog.org/2009/12/23/special-report-a-jury-of-their-peers/

The secret world of the Court of the Judiciary and Tennessee’s system of judicial accountability:

A group of Tennessee’s most powerful elected officials have had almost 3,000 formal complaints filed against them in court during the last decade.

Though the status of many of these complaints is known – with about half being simply dismissed – the details of how state government handled them and why little action was taken against these power brokers is almost totally secret.

Between 1999 and 2009 some 2,977 complaints were lodged against Tennessee judges [1], according to data obtained by Tennessee Watchdog through open records requests. Those complaints were filed with a little-known public body called the Tennessee Court of the Judiciary [2] (COJ) charged under state law with meting out discipline to the state’s judges when they break codes of judicial conduct.

Court of the Judiciary Presiding Judge Don Ash [3]

Court of the Judiciary Presiding Judge Don Ash

Due to a combination of state law [4]and the COJs own rules [5], most of its meetings and the decisions the court and its staff make as the gatekeeper of complaints against Tennessee’s judges largely take place in secret. That secrecy runs throughout the court’s workings – from deciding which complaints to pursue to the investigatory phase and in many cases actual pleadings from litigant judges and deliberations by the court itself.

Tennessee Watchdog’s eight-month investigation shows that over the last decade less than one percent of all complaints against the states judges resulted in any public disciplinary action.

Furthermore, judges are allowed to cut deals in many cases with COJ staff or the court’s investigative panels to in part keep complaints under seal and out of public scrutiny even if the court is pursuing disciplinary action.

Lopsided disciplinary statistics and other irregularities at the COJ uncovered by Tennessee Watchdog, as well as a string of barely publicized but damaging legislative hearings in the last two years on the general topic of judicial accountability, have lawmakers from both sides of the political aisle saying the court’s workings and records should be open to the public and pledging to hold hearings on the COJ, revisit the law or both.

“We need a system of review that is not controlled by all of the judges,” said House Democratic Caucus Chairman Rep. Mike Turner. “There needs to be some more accountability. I think we have a real problem, and it needs to be fixed.”

Racial slurs, money laundering and nepotism

Using Tennessee’s Open Records Act, Tennessee Watchdog found only 23 public actions – reprimands, censures, suspensions or agreed orders – by the COJ against Tennessee judges for the last 10 calendar years. That total represents less than one percent of the almost 3,000 complaints lodged against judges in the last decade.

Statistical reports generated by the COJ and obtained by Tennessee Watchdog covering the last 10 reporting years which follow state government’s fiscal year show literally thousands of actions taken in complaints against judges – most of them dismissals – that fall outside the public’s view.

Between the 2004-05 and 2008-09 reporting years, 1,642 complaints were filed against judges. Of those, 1,432 or 87% were dismissed by the COJ’s disciplinary counsel as being without merit or were dismissed by an investigatory panel of the court after an appeal process. None of those records are available for public review due to both state law and the COJ’s own internal rules.

Including the dismissals, the COJ took a total of 1,551 private actions in complaints against judges during those same five reporting years. Tennessee Watchdog found only 116 instances of private disciplinary actions taken against judges in the last decade, representing just under four percent of all the complaints against judges during the same time perriod. Other than dismissals, the second largest category of court actions against judges was dismissals with a private warning after disciplinary counsel conducted a preliminary investigation. Of the 52 such actions taken by the court between 2004 and 2009, a full 24 came during the 2004-05 statistical reporting year alone.

There is also a large gap in the data available from the court as tracking such statistics is a relatively new practice with methodology that has changed somewhat each time the court hired a new chief disciplinary counsel.

Between the 1999-00 and 2003-04 reporting years, no statistics or records exist for private actions the COJ took against judges based on Tennessee Watchdog’s open records requests to the Tennessee Administrative Office of the Courts. During that time period, there is a record that 1,335 complaints were received, and that figure is only noted in a summary report offered to the court by its disciplinary counsel in 2005.

Tennessee Watchdog’s open records requests did turn up one known private action involving a judge between 1999 and 2004, a case that had made it to the formal charges stage – and therefore the public record – but was ultimately dismissed because the judge left office.

The record that is available on the COJ’s public actions against judges suggests Tennesseans may be missing a great deal of information about the overall behavior of their judges.

Offenses by judges that drew a public action from the COJ discovered in Tennessee Watchdog’s open records request run a broad gamut, from the criminal to the crude. Some cases made news and some did not. Judges were disciplined for, among other things:

Yet, these offenses by judges – some of which law enforcement action brought to the COJ’s attention – are literally only a fraction of the work performed by the COJ in the last decade.

Advocates for judicial reform in Tennessee say the large disparity in the number of complaints versus disciplinary actions as well as the extreme nature of some of the known offenses by judges calls into question what the court and its disciplinary counsel are choosing to dismiss.

“Currently, the process for reviewing the judiciary is so secretive we have no idea who or what is being complained about,” said Janice Johnson, a Nashville activist and a leading voice in Tennessee’s growing judicial reform movement. “We have not impeached a judge in 50 years and we have not removed one in 16 years.”

Judging Their Peers

A combination of state law and the COJ’s own rules keep much of what the court does sealed and outside the scope of Tennessee’s open records and open meetings laws.

The law itself also makes very little room for independent oversight, even from members of the Tennessee General Assembly that have the ultimate power to remove a judge from the bench. In turn, the COJ’s own rules prohibit detailed public review of their work or any review of the complaints against judges unless it is one that draws a rare public action by the COJ.

The Court of the Judiciary itself is made up almost exclusively of judges, and its key staff member charged with investigating complaints against judges is traditionally a retired judge.  By state law, 10 of the 16 members of the court are sitting judges.

The court is also empowered to hire disciplinary counsel – attorneys that perform the majority of the court’s investigative and prosecutorial work on complaints against judges. The last three chief disciplinary counsels for the court have all been retired judges.

Tennessee code holds out two instances where the records and proceedings of the court may be confidential – if mental or physical judicial incapacitation is an issue or if  “frivolous or unfounded charges” are made against a judge.

“If it develops that the charges against a judge are frivolous or unfounded, or beyond the permissible scope of the court’s inquiry, the matter will be closed and all documents, records and papers pertaining to the charges shall be destroyed and the court’s docket will recite the investigation and dismissal of a groundless complaint,” states Tennessee’s Code Annotated § 17-5-305.

State law also grants broad powers to the COJ to create its own rules and practices. The COJ for years has chosen to keep the balance of its records, testimony, complaints and proceedings closed unless formal charges are filed against a judge with the court by its judiciary counsel.

“Except for hearings conducted pursuant to Tenn. Code Ann. § 17-5-308 or sanctions required to be public, matters that come before the Court are confidential. Individual members of the Court will not discuss any matter pending before the Court, except with other members of the Court and with Disciplinary Counsel. However, nothing in the Rule shall prohibit the complainant, respondent-judge, or any witness from disclosing the existence or substance of a complaint, matter, investigation, or proceeding under these Rules or from disclosing any documents or correspondence filed by, served on, or provided to that person,” states Rule 8 of the Rules of the Court of the Judiciary adopted and passed by the court’s member judges.

Tennessee Administrative Office of the Courts (TAOC) personnel were reluctant to speak to Tennessee Watchdog about the COJ’s practices or state law concerning the court.  TAOC Director Libby Sykes and COJ Disciplinary Counsel J. Steve Daniel both refused interview requests for this story.

Presiding COJ Judge Don Ash, though, defended the current system saying judge’s “good names” could be “slandered” if complaints lodged against judges were a matter of public record. Ash’s main concern appeared to be the state’s media.

“A majority of our complaints come from prisoners trying to get a judge off their case so they won’t be doing sentencing,” Ash said. “Most of our complaints are filed against criminal court judges. I guess there needs to be some discipline in this where somebody can just make any allegation at all with no basis for it, then that is reported in the newspaper. Many people are going to think it is true just because it is reported in the newspaper. I certainly understand the logic in other jurisdictions in having a preliminary investigation or basis before someone’s good name is slandered when there is not basis.”

Ash also argued that the COJ’s records were not sealed since complainants and litigant judges can release the files.

The issues of media scrutiny and frivolous complaints from prisoners were topics discussed at the COJ’s August meeting attended by Tennessee Watchdog staff. Ash stated in the meeting that some 90% of the complaints came from convicts or people who have lost criminal court cases. It was noted in the discussion that the COJ does not presently track how many cases come from convicts and those convicted in criminal court, and court members directed Daniel to give them more information on the topic in future reports and meetings.

A Tennessee Watchdog reporter was required to leave the COJ meeting after the judges closed it to the public for their deliberations on complaints and disciplinary matters against fellow judges.

The Gatekeepers

Arguably the people in Tennessee with the most influence over whether judges are disciplined and complaints are pursued are not the COJ judges themselves but their staff disciplinary counsels.

Under state law, the COJ’s disciplinary counsels have broad powers to either pursue complaints or dismiss them, as well as to determine the course of potential disciplinary action before the COJ or one of its investigative panels ever sees the complain.

Complaints against judges are initially reviewed by the COJ’s disciplinary counsels that determine whether a preliminary investigation is needed. If the complaint survives a preliminary investigation it is then sent to an investigative panel of the court and the judge is notified of the investigation.

Yet, Ash notes judges are given several opportunities under both state law and the rules of the COJ to agree to the findings of the disciplinary counsel or the investigative panel prior to formal charges being filed, which under law are required to be made public. If that happens, a reprimand may be made public. However, as part of the agreement struck by the judge with the COJ, there are also no court filings, pleadings or details to accompany the public reprimand.

During Tennessee Watchdog’s investigation, a public records request turned up several instances of public reprimands by the COJ of judges for seemingly serious offenses but with little to no details available about the substance or circumstance of the offense for the public to consider.

In 2007, a letter of public reprimand was issued against Sullivan County Child Support Referee Linda J. Onkotz related to her “signing and entering three separate findings and recommendations relating to paternity and child support” where the COJ states Onkotz’s “son and grandson were parties in the case.” No other details are given.

In another 2007 case, 15th Judicial District Circuit Court Judge Clara Byrd failed to return a child to the custody of its mother under a Tennessee Court of Appeals ruling. The reprimand states the mother and litigant was forced to expend more attorney fees to get Byrd to comply with the higher court’s order, but there are no further details given in the COJ’s public documents.

This year, Judge Carolyn Blackett from Shelby County was reprimanded for failing to render a decision on a petition for post-conviction relief in a capitol murder case for a span of over seven years between 1998 and 2006 – a violation of judicial canons due to the time lapse. Though Blackett was also a member of the COJ for a portion of that time – her term ended in July 1999 – no other record is available on the case other than the four-paragraph reprimand.

“A lot of times what happens is that when it goes to the investigative panel, there will be a recommendation from disciplinary counsel in discussion with the judge or their attorney that they reach a resolution of the case, for example a private reprimand while it is at the investigative panel but before formal charges are filed,” Ash said.

“Once there is a formal charge, it cannot be private. What happens is many times before a formal charge is filed and it goes to that next level, there is also a provision for a public reprimand. It’s the exact same process. The investigative panel with the help of the disciplinary counsel agrees with the help of the judge or the judge’s counsel that there will be a public reprimand.”

The COJ’s disciplinary counsel may be the chief gatekeepers, but their own practices do not appear to receive much scrutiny.

Tennessee Watchdog learned during its investigation that in recent years one of the COJ’s disciplinary counsels was practicing law in front of judges whose complaints he potentially could have been charged with reviewing and investigating.

COJ Assistant Disciplinary Counsel Bernie Weinman joined the COJ in November 2006 after retiring as a judge in Memphis for over 30 years.

According to TAOC spokesperson Laura Click, Weinman has been in charge of handling complaints against judges from West Tennessee.

However, public records from the Shelby County court system as well as media coverage [7] of the court system in Memphis suggest Weinman was active in 2007 and 2008 as an attorney in West Tennessee courts. Weinman did not return telephone calls to his Jackson or Memphis offices for this story.

Click confirmed Weinman had practiced as an attorney in West Tennessee while also serving as COJ disciplinary counsel, but at the request of Daniel now limits his private practice to federal court.

“Judge Weinman has had a state court practice, but would decline working on any investigations that involved judges he would practice in front of,” Click stated in an email to Tennessee Watchdog. “Although there was no contract provision to prevent Judge Weinman from doing state court work, Judge Daniel did suggest in 2008 that he discontinue working in state courts.”

Ash conceded in his interview with Tennessee Watchdog that Weinman was practicing in front of West Tennessee judges while serving as an assistant disciplinary counsel, saying that is not the case any longer. He also noted Weinman’s actions did not violate any rules of the COJ.

“For a number of years based upon our budget, we would have to contract with disciplinary counsels,” Ash said. “Basically, they were agreeing that in addition to their law practice they would be our disciplinary counsel. That went on until about two or three years ago. To be honest with you, I did not like that. I think it creates problems or at least the perception of problems.

“Now, based upon budgetary increases, we have a full-time disciplinary counsel – Steve Daniels – who does not practice in any court whatsoever. He works as a mediator. Recently, we hired an assistant disciplinary counsel. …I think the best practice is for disciplinary counsel who are investigating not to appear before judges.”

Best Practices

Every court in Tennessee is governed by the rules passed by the Tennessee Supreme Court, except the COJ. As Ash explains, in theory the COJ could receive a complaint against a Tennessee Supreme Court judge. That possibility requires the COJ to fall outside the Supreme Court’s rules.

Yet, the COJ is considered a court of law under Tennessee state law, and it claims the rights and powers of a court in its practices.

The COJ seals its courtroom when it deliberates on disciplinary matters, something the courts own rules require but not state law.

Though it does not fall under the Tennessee Supreme Court Rules, Ash invoked Rule 30 from the Tennessee Supreme Court when Tennessee Watchdog asked to be allowed to photograph the short public portion of the COJ’s August meeting. Rule 30 is the Supreme Court’s rules on cameras in the courtroom. Click told Tennessee Watchdog that since the COJ was not given a 48-hour notice of the intent to use cameras, Ash was invoking Rule 30 to keep Tennessee Watchdog’s camera out of the COJ meeting.

However, unlike in most courts across the state, keeping a permanent record of the majority of the complaints the court receives has not been a practice of the COJ.

According to Click, COJ records of dismissed complaints have typically been kept until each year’s statistical report is compiled and then the records were destroyed.

“Dismissed complaints are kept for internal reporting, but then they are discarded as dismissed complaints are not part of the public record,” Click stated in an email to Tennessee Watchdog.

Tennessee law appears to require “permanent records” of the COJ’s disciplinary counsel activities, stating in TCA § 17-305-1 that the COJ shall, “Maintain permanent records of the operations of disciplinary counsel’s office, including receipt of complaints, screening, investigation, and filing of formal charges in judicial discipline and incapacity matters.

It is unclear how this is reconciled legally with the law’s requirement that “frivolous” claims against judges are destroyed and wiped from even the sealed public record.

Destroying dismissed cases is a practice Ash has decided to change as the COJ’s presiding judge, though that change has only taken place in recent years. The records themselves are not stored in a public facility but rather in Daniel’s Murfreesboro law office.

“That is something we have done in the last two years,” Ash said. “Every complaint is scanned. A folder is created. All those documents are kept in the control of our disciplinary counsel. There is also a backup. We are struggling somewhat – we have talked about – how long to keep these records, particularly…when it doesn’t rise to the level of judicial misconduct.  We do not have a policy yet about how long we keep them.”

Ash said the change came because when he took on the COJ presiding judge position the court’s record keeping system was “kind of helter skelter.”

“When I became presiding judge, I got three big boxes of stuff,” Ash said. “I think we need to be more organized than that. I’m sure Judge Daniels has records going back further than that. I know he does. We are in the process of scanning all of those so that we can have those forever, or as long as we have the Court of the Judiciary.”

Even though they are not open to public scrutiny, maintaining a record of the COJ’s actions is a key issue for the activists like Johnson pursuing more judicial accountability in Tennessee. Johnson said one key to making the COJ and the entire judiciary in the state more accountable is to force the COJ to report their work to the Tennessee General Assembly.

“The problem is that there is no reporting at all to the legislature,” Johnson said. “…If the legislature sees there is the same kind of complaint about the same judge year after year they might decide to do something about it.”

The issue of destroying records is one that caught the attention of a major political player in the world of judicial politics, state Sen. Mae Beavers, chair of the Senate Judiciary Committee.

“What I’m being told is that complaints are being shredded,” Beavers told Tennessee Watchdog. “…I’ve been told many things that have caused me concern.”

Bi-partisan Support

Though Beavers and Turner are from opposite ends of partisan politics in Tennessee, they share serious concerns about the issue of judicial accountability in the state.

For Turner, the issue dates back to his time on the House Children and Family Affairs Committee and a series of hearings in 2007 and 2008 where Johnson and other judicial accountability advocates told their stories to the legislators.

At the top of the concerns voiced was the alleged abuse of the guardian ad litum system in family court by judges and attorneys that impacts the custody status of minor children. Part of the complaints from judicial reform advocates is that the COJ does little to rein in judges and that the court’s workings are basically sealed from public scrutiny or review.

Turner said the COJ’s system of closed complaints “needs to be fixed.”

“We’ve got a lot of good judges in this state, but we also have some bad ones. They take care of each other, and they are reluctant to remove a bad one. We think judges should be accountable to the people,” Turner said.

Beavers said she has already notified the TAOC and Sykes that she will hold hearings in the Senate Judiciary Committee on a range of judicial accountability issues, including the practices of the COJ. Beavers called the statistics uncovered by Tennessee Watchdog on the COJ’s activities “shocking.”

“I think that process needs to be more public,” Beavers said. “We vote on the judges. People need to know what they are doing. If they are doing things that are unethical or illegal, then people need to know it.”

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