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The tricky business of judging the judges

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The judge threw in a lecture as he handed down the criminal's sentence — hardly unusual.

But this time it was. The judge was denouncing a former colleague for undermining public trust in the profession they once shared.

"People who decide cases must maintain in our own lives, both professionally and personally, the highest integrity they can," 3rd District Judge Timothy Hansen told the disgraced former judge standing before him. "Our conduct must be above reproach."

The defendant was former 4th District Judge Ray Harding Jr., who pleaded guilty to two misdemeanor drug charges after police found heroin and cocaine in his house. Earlier, Harding had resigned just as the Legislature was poised to impeach him.

Harding's case is perhaps the most egregious example of judicial misconduct in recent memory. But the state's Judicial Conduct Commission every year fields dozens of new complaints against judges, conducts investigations and decides if disciplinary measures are necessary. Possible penalties once included private reprimands.

Not anymore. The Utah Supreme Court in January eliminated that option from the commission's arsenal. How much of a change this will actually produce has yet to be seen.

Although it is designated as a watchdog agency to safeguard the public interest, the JCC has been repeatedly criticized over the years for its closed-door proceedings and the limited information about judges that ultimately is made public.

Until recently, the JCC had three main options for handling allegations against a judge: dismissing a complaint, dispensing a private reprimand for relatively minor misbehavior or sending a recommendation to the Utah Supreme Court to impose a sanction, which can range from a public reprimand to removal from office.

In years past, there were few public reprimands. Instead most complaints were dismissed, while others resulted in the informal, private reprimands.

But when the Utah Supreme Court removed 3rd District Juvenile Court Judge Joseph Anderson from the bench in January for taking too long to decide juvenile matters, the court's opinion contained a significant change:

Private reprimands are unconstitutional.

"In fact, doing so has generally prevented both the public, and sometimes this court, from gaining any meaningful awareness of the extent and nature of judicial misconduct," the high court wrote in a footnote in its ruling.

The Supreme Court said dismissing a case with a warning was an acceptable substitute that would still serve the "laudable purpose of correcting troubling but relatively minor misbehavior." The footnote did not further explain the distinction between dismissals and private reprimands.

Now the question is whether the change will make a difference. Or will cases that once resulted in private reprimands now be settled with dismissals? If that is the case, the public may still not know whether a judge had been under investigation.

In the past, private reprimands showed up in the JCC's annual report as brief descriptions of the misconduct — without mentioning any judges by name — so the public at least knew something about the commission's behind-the-scenes actions.

Erik Luna, University of Utah law professor, has some doubts about the private reprimand versus dismissals-with-warnings situation.

"I'm not sure I see the difference," Luna said. "What we should be shooting for is full transparency. Whether the charges are false or valid, the public should be made aware of these facts. I'm a little bit troubled by this — it seems like you're simply replacing one questionable procedure with another."

Luna isn't questioning the constitutionality of the dismissal-with-warning procedure, but asks whether it is good policy to have minor misbehavior by judges remaining invisible to the public.

Granted, there are complaints filed against judges that are frivolous. "It's a double-edged sword that cuts both ways," Luna said. "If the allegations are true, of course, then the public has a right to know. If the allegations are false, not only the public but the judge, you would think, would want that to be fully aired so people know that he or she has been erroneously maligned."

Luna emphasized he has great respect for the people on the JCC. "I am in no way questioning the bona fides of the JCC. They are some of the best and brightest of Utah's legal community. I do have full faith in them that they do an upstanding job in evaluating these complaints."

What worries him is how the system is structured. "Sometimes substantive outcomes are just one component. Sometimes the process can be equally, if not more, important," Luna said.

On the other side of the issue is Sylvia Bennion, who two years ago ended 10 years of service on the JCC.

"I was actually in favor of private reprimands," Bennion said. "There were many instances where a judge who was maybe inexperienced and something happened, and all they needed was a little bit of a warning. He didn't need to have his name in the paper. Things were quickly changed and we never heard further complaints (about that individual).

"It was a valuable thing," Bennion said. "I know some of the legislators didn't like the idea, but from my point of view, it did have its place."

One person watching the latest developments closely is state Sen. Dave Thomas, R-South Weber, who proposed — but later withdrew — a bill in the last legislative session to make JCC proceedings more open.

"I am happy so long as the JCC abides by the Supreme Court's Anderson ruling and the legislation that we adopted trying to codify the Anderson ruling," Thomas said. "The question is whether the JCC will take that guidance from the Supreme Court and Legislature and say, 'We really can't have informal reprimands anymore. Any substantial misconduct must be made public.' "

Thomas plans to take a wait-and-see attitude. "I'm optimistic — we've come a long way in opening up that process," he said.

However, if things don't work well, Thomas said he might draft new legislation because he believes it is essential for the public to be well-informed about people who wield as much power as judges.

Thomas believes it is especially important here because, unlike some other states, Utah does not pick judges in general elections. Instead, Utah judges are appointed by the governor, are confirmed by the Senate, and then undergo periodic "retention" elections in which voters decide whether to keep them in office.

"My issue is to make retention elections meaningful, and you can't have that without meaningful information on the judges you're voting on," Thomas said.

Ousting a judge — especially when it's not done by the Supreme Court — is not easy.

Former 3rd District Judge David Young was publicly reprimanded by the Supreme Court twice: in 1999 for being involved in ex parte communications on the phone with a lawyer in a pending case, and in 2000 for commenting twice in the courtroom about verdicts provided by juries.

Young also sparked controversy with such groups as the National Organization for Women, which in 1994 asked informally that Young be investigated for allegedly intimidating females in his court, siding more often with males and appearing reluctant to issue protective orders in domestic-violence cases.

Young stayed on the bench through one 1996 retention election, which he survived by less than 2 percent of the vote.

Young was voted out of office in 2002, making him only one of two Utah judges to be removed from the bench that way. (The other was Beaver County Justice Court Judge Rowland Yardley, who was voted out in 1994.)

A December 2003 legislative audit found the JCC's actions were more effective than retention elections in removing judges. JCC investigations have led to nine judges resigning, retiring or failing to be reappointed.

In fiscal year 2003, the JCC conducted 95 preliminary investigations into judges based on complaints from residents.

Six went on to a full investigation, two resulted in formal proceedings, two were sent to the Utah Supreme Court with recommendations that public sanctions be imposed. One judge — Harding — was sanctioned.

Utah's judicial discipline system is relatively closed to the public — charges don't become public knowledge until the JCC files a recommendation for discipline with the Supreme Court. Twelve other states have similar policies.

By contrast, 34 states make allegations against a judge public when their judicial disciplinary commissions have finished their investigation and file formal charges. Delaware, Hawaii and the District of Columbia have the most-closed policies: Allegations aren't made public until the Supreme Court has decided on a public sanction.

The impact of the Anderson ruling currently is unknown. Colin R. Winchester, the JCC's executive director, said the change will alter the way the JCC deals with its less-explosive situations and that it will be "interesting to see" whether cases that once resulted in private reprimands will now be settled with dismissals.

The December 2003 audit indicated the JCC's relative inaccessibility to the public may matter more in terms of how it affects people's perceptions of the options they have when unhappy with a judge.

Winchester said the most common complaint is that a judge failed to correctly apply the law — which is something JCC members cannot address because this is beyond the scope of its authority.

"We get a lot of complainants who are unhappy, No. 1, because of the judge's legal decision," Winchester said.

The JCC is charged with monitoring judges' behavior on and off the bench, not second-guessing legal decisions. Such grievances are usually better suited for the state's appeals courts, unless there is a pattern of a judge "refusing to apply the law the Legislature has laid down," Winchester said.

Almost a quarter of complaints against judges make claims of judicial bias, a claim that is often coupled with another accusation, such as failure to allow someone to be heard.

While the JCC takes every accusation seriously and initiates an investigation, Winchester said the vast majority are thrown out after investigators take a preliminary look.

Winchester said many dismissed cases are what he calls "there's a plausible explanation to what really happened" cases.

"It's not people making stuff up," he said. "It's people who don't understand the system."

Often, people who don't understand the legal reasoning behind a judge's decision and who believe it was a result of judicial misconduct do not have a lawyer or are unhappy with the one they hired.

"They do what Americans have been trained to do, and that's yell at the ref," Winchester said.

The December audit reported that while the number of cases in the courts has increased over time, the number of complaints against judges has remained steady.

Auditors theorized this may be because the public isn't familiar with the complaint process — or because Utahns generally are satisfied with their judges.

The JCC has enacted several of the audit's recommendations regarding better public information. The commissions's annual reports are now available on its Web site www.utahbar.org/uljc/judicial_conduct_commission.html. So are links to information about the complaint procedure and a downloadable complaint form.

E-mail: lindat@desnews.com; dsmeath@desnews.com