Solution #2 is more transparency.
More transparency is good for the judiciary.
Sometimes, members of the public are concerned that something bad is going on in secret behind the scenes in the courts. And sometimes something bad is going on.
But often something bad is not going on. But the fact of the secrecy creates the perception that there is something to hide. Shifting the policies underlying the judicial branch toward transparency and away from secrecy would enhance the public’s perception of fairness. It would help litigants feel the case is about them and not about the judiciary trying to ‘protect its own.’
Of course, there is no excuse for covering up the bad things that are going on. And the public should be trusted with that information, too.
In Texas, lawmakers are demanding access to records of the state agency that considers judicial misconduct. Story here.
It appears from the story that the Texas Commission on Judicial Conduct is refusing to provide records to the Texas Legislature so that the Legislature can perform its review of that state department. It’s not clear where that dispute will end, but there is beginning to be a demand for transparency regarding records about judges.
In Minnesota, the Governor appoints judges so frequently that a prior Governor set up a Commission to assist him in the appointments, and it continues to this day.
Sitting judges can use the prestige of their office to write letters of recommendation about a particular lawyer-candidate to the Governor/Commission. These certainly seem like “endorsements” to me. Whatever they are called, why would the public not be entitled to see these?
In the past, any attempt I have made to obtain information from the Minnesota Judicial Selection Commission about candidates for appointment to judicial office, has been either flatly refused, or simply ignored.
I haven’t even been able to find out where the meetings are, or when they are going to be held.
Why aren’t these meetings public?
Why can’t the public obtain copies of the materials that a person seeking appointment to the public office of judge has provided? They are sent by public officials, including sitting judges and politicians (senators, congressmen, etc.). And lawyer-candidates might be on the bench 20, 30 years. Why is the public shut down when we ask about this?
As members of the public, we aren’t even told about the details of the process. Do the candidates for appointment to judge meet with the Governor in a one-on-one meeting?
We’d like to know this, in part, because of the concept that judicial candidates for election to judge should not be discussing hot button issues, pending cases, or making pledges about how they will rule if a certain issue comes before them. We’ve seen vigorous public debate about this concept regarding judicial elections. But do candidates for appointment to judge talk about these things with the Governor?
How can the public even participate in the debate, if we don’t know?
Further, if sitting judges cannot use the prestige of their office to endorse candidates for election to judge, why are they regularly permitted to do so in the (secret) appointment process? The notion that secrecy is better than transparency is challenged.
The commission process that I am discussing just above is different from the judicial misconduct commission in Texas. But the issue is the same. What is the basis for permitting the judiciary to keep information secret in this democracy?
In Minnesota, the Judicial Standards Board has certain procedural rules it must follow once a judge is accused of misconduct. But there is much information that likely could be public. Or at least delivered to the person who filed the complaint. As it stands now, the complainant isn’t told what happened (or didn’t happen) to the target judge, and isn’t even given an opportunity to respond to any denial filed by that judge. In that case, secrecy has a substantive impact: the complainant may have documents or other evidence that shows the target judge’s denial should not be given credence. But if the complainant is never told the target judge has responded, the complainant will not know to provide more evidence.
The rules are much different when a lawyer is accused of misconduct. The complainant is kept informed about how the lawyer responds, and is given an opportunity to supply more information. And the complainant is told about the outcome. Why give judges, who are public servants, many of them elected officials, more confidentiality than lawyers?
Shrouding these processes in secrecy does not enhance the public’s perception of them.
Further, if there is going to be confidentiality, that should be a two-way street. Target judges are not supposed to know who is complaining about them. But it’s my perception that they are routinely told that someone has complained, and the name of the complainant. That permits the target judge to ‘circle the wagons,’ and retaliate against the complainant. I have not seen anything to suggest that the Minnesota Judicial Standards Board polices this issue, so the ‘leaks’ seem to continue. This gives the public the downside of purported ‘confidentiality’ rules, but not the upside.
Solution #2 is more transparency.
What would happen if the Minnesota Legislature subpoena’d records of the Minnesota Judicial Standards Board in order to understand its history, or while discussing the creation of an impeachment process for judges? How would the judiciary react?
What if Minnesota citizens wanted access to the judicial endorsements for appointment for judge?
It seems, at least based on past history, that the answer to these requests would be a flat “no.” The judiciary (and the Governor’s appointment commission) might want to consider the message this sends to the public.