TN lawmakers hear of judicial misconduct, retribution fears

TN attorneys say they fear retribution if they file complaints against judges
Brandon Gee
October 6, 2010
The Tennessean
http://www.tennessean.com/article/20101006/NEWS03/10060370/Climate+of+fear+restrains+Tennessee+attorneys

State lawmakers learned Tuesday that attorneys are afraid to complain about some Tennessee judges, fearing retaliation from the judicial system. They also heard stories about judges refusing to step down from cases even though those judges had conflicts of interest.

The revelations stunned state Sen. Dewayne Bunch, R-Cleveland, who is chairman of a committee that is studying Tennessee’s system for investigating complaints against judges and disciplining judges.

“They shock my conscience,” he said. “It causes reasonable people to question the court system. … It leads me to conclude that some members of the judiciary have no respect for the Court of the Judiciary.”

The Court of the Judiciary is a 16-member panel of judges appointed by the Tennessee Supreme Court that hears complaints and decides the proper punishment — if any — for judges. Critics have called for more transparency in how judicial complaints are resolved. Most of its records and deliberations are kept secret unless formal charges are pursued.

Witnesses testified Tuesday that complaints are not being filed at all, in some cases, because of fear.

Middle Tennessee attorneys Connie Reguli and Jim Roberts said they had been retaliated against for asking a judge to step down on different cases.

“We know who the honest judges are. We know who the dishonest judges are. We’re deathly afraid of being retaliated against,” Roberts said. “This is a persistent problem. Lawyers don’t want to file motions to recuse.”

Roberts and Reguli said retaliation took the form of their cases being dismissed, accusations of civil contempt and complaints filed against them with the Board of Professional Responsibility — the body that disciplines lawyers in Tennessee.

Court of the Judiciary Presiding Judge Don Ash said most of the issues raised Tuesday were unproven allegations, and he said he is confident most judges behave. He also expressed confidence in the Court of the Judiciary to correct those who don’t.

Ash said recusal is a problem that the state’s legal community is looking into, but he does not believe Tennessee has a systemic problem of judicial retaliation.

“If we do, I would hope people are filing complaints,” Ash said.

But Reguli said retaliation has a chilling effect on lawyers who don’t want to stick their necks out for one client only to have a future client punished.

“You can’t stand up,” she said. “You can’t fearlessly represent your clients.”

Many witnesses testified that without a lawyer to help guide a complaint through the Court of the Judiciary, it would most likely get dismissed. Ash said he believes the court’s complaint form is simple enough for laypeople but said he is open to looking at ways to improve it, such as listing ethics rules for judges on the form so citizens can cite specific concerns.

90 percent dismissed

Of the hundreds of complaints the court receives against judges each year, more than 90 percent are dismissed. Of 344 complaints received last year, only one resulted in a public reprimand, according to the court’s most recent annual report.

Legislation that would have substantially opened the court stalled in committee last year but may be resurrected in the next session.

Critics also said the court doesn’t have the teeth it needs to change behavior. The court often takes private disciplinary action. When a public reprimand is deemed necessary, a letter summarizing violations and discipline is released to the public.

“That’s not very scary,” said Janice Johnson, a Nashville activist for judicial reform.

Solutions put forth included making more discipline public and giving the court the power to assess civil penalties such as monetary fines. Currently, when the court suspends a judge, that judge still gets paid because the state Constitution prevents judges’ salaries from being altered mid-term.

“We are opening ourselves to grave and intentional miscarriages of justice,” said Christopher Savoy, a Williamson County man who is suing Judge James Martin for lifting a restraining order against his ex-wife, who fled with their children to Japan. “All they do is write letters. They’re not going to get my kids back.”

Court officials defended the private sanctions.

“We wouldn’t do that in a real serious case. … Private reprimands allow a judge to at least have an opportunity to amend their behavior without serious political consequence,” said Timothy Dicenza, disciplinary counsel for the court. Bunch said the study committee plans to reconvene in a few weeks to discuss potential remedies, which could include legislative action. Ash said Court of the Judiciary members also plan to meet before the end of the year to discuss improvements.

TN lawmakers probe secret oversight of judges’ misconduct
Some lawmakers want to publicize disciplinary acts
Brandon Gee
October 5, 2010
The Tennessean
http://www.tennessean.com/article/20101005/NEWS03/10050341?GID=7ty3XiSyaXhI+9PhdLhURx4odEdHL4RiGqTRQ2OfALg%3D

Sealed information about judicial misconduct in Tennessee could become public after state lawmakers probe a judicial oversight group’s operations.

The Court of the Judiciary is in charge of disciplining some of Tennessee’s most powerful public officials, but most of its deliberations are kept secret. Of the hundreds of complaints it receives against judges each year, more than 90 percent are dismissed. The court pursues formal charges about 2 percent of the time and makes those charges public. Other complaints result in private reprimands or censures.

Presiding Judge Don Ash said discretion is necessary to protect judges from being tarnished by frivolous allegations and speed the disciplinary process. But some lawmakers and others believe the public’s right to know how decisions are made outweighs such considerations.

“I think transparency, to me, is the issue here,” Sen. Doug Jackson, D-Dickson, said after a Senate study committee hearing on the topic Monday. “It gets back to confidence in the judiciary.”

Sen. Dewayne Bunch, R-Cleveland, who chairs a committee studying the Court of the Judiciary this week, said legislators have done a poor job overseeing the court, which was created by the General Assembly in 1979.

“I’m a lawyer, and I don’t know much about it,” Bunch said. “If you’re going to create it, you need to watch it and evaluate it.”

State lawmakers formed the committee, which began meeting Monday, to understand and evaluate proposals to make more of the court’s work public. That would take passing a new law in the next legislative session.

People dissatisfied with the complaint process are expected to testify today. They include John Jay Hooker, a Nashville attorney who said state Supreme Court justices should have recused themselves from his case challenging the constitutionality of the retention elections that keep those justices in power.

Hooker said his complaint was dismissed by the Court of the Judiciary, made up primarily of judges appointed by the Supreme Court.

He said that’s “like putting the fox in charge of the henhouse.”

Wendy Rose-Egli of Knoxville also hopes to testify today. She was disappointed to see her complaint against Fourth Circuit Court Judge Bill Swann resolved with a private reprimand. She said Swann didn’t recuse himself from her child custody trial even though her lawyer was his political opponent. She brought a letter from the Court of the Judiciary with her to Nashville. It said a private disciplinary action, which was not specified, had been taken.

16 members are appointed

Ten of the court’s 16 members are judges appointed by the state Supreme Court, and three are attorneys named by the Tennessee Bar Association. The governor and speakers of the state House and Senate each appoint one member of the public who is not a judge or lawyer. Members are limited to two full four-year terms.

In 2008, HALT Inc., a Washington-based judicial reform advocacy group, gave Tennessee a failing grade for the availability of meaningful sanctions and a C for transparency.

Bunch said he is inclined to make more disciplinary actions public, or at least amend state law to narrowly define what kinds of minor offenses can be handled privately. He also wants to revise the court’s makeup to include more trial court judges and strip the Tennessee Bar Association of the power to appoint three members. Bunch called the association a special interest group.

The Court of the Judiciary’s 16 members are not compensated. The court has an annual budget of about $300,000. Ash, the presiding judge, said exposing the court to more public scrutiny would make it harder to strike disciplinary deals with judges, which could result in more trials, straining the court’s resources.

“Very few cases would be resolved,” said Ash, a Rutherford County judge. “A lot of times these things are so minor that a single letter can fix it. … Forty-two states have private reprimands to resolve alleged minor misconduct of judges. We follow those states.”

Recent examples of cases that prompted public disciplinary action include the reprimand of Davidson County General Sessions Court Judge Gloria Dumas for hiring her unqualified daughter as a court officer and the suspension of Cocke County General Sessions Judge John Bell for not ruling for nine months in a civil lawsuit over an uninsured motorist.

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