Solution #5: Advance Case Law Relating To Judicial Conduct

As part of the multi-pronged approached I’ve talked about in the past, for the public to be sure the government is responding appropriately to judicial misconduct, it’s important to see progress in cases litigated on the merits.  That is, within the cases themselves.

A couple of days ago, I posted about the resignation of a Georgia Chief Judge William F. Lee Jr. posted that Judge “Lee was under investigation by the state’s Judicial Qualifications Commission over allegations of judicial misconduct in an undisclosed case, according to filings with the Georgia Supreme Court on Thursday [April 25, 2012].” Governor Deal accepted Judge Lee’s resignation the same day.  (Story here).

Although Lee is indicating the resignation was all voluntary (story here), it appears to have been ‘inspired’ by the ethics probe, since a consent order was filed indicating the matter was resolved by Lee’s resignation.

As I’ve discussed in other posts, the ethics investigation of Judge Lee is a completely separate process from appealing the merits of a case.  In the ethics/discipinary process, the government can actually perform an investigation, can review documents, interview witnesses, etc  The judge’s due process rights must be considered, the judge can defend, and that sometimes results in a trial.  Or, judges can decide to ‘settle’ their cases and accept discipline (or in the case of Judge Lee, agree to resign).

Objecting to judicial misconduct within the case is a wholly different process. Within the case, the parties can also challenge judicial conduct through several mechanisms, one of which is to ask the judge to recuse.  If this request or motion is granted, this means the judge ceases to be the presiding judge in the case, and a different judge gets assigned.  This is also referred to at times as “disqualification” of the judge.

I’ll blog in the future about recusals, the process, and the problems.  Suffice it to say for this post that in my opinion, judges who have been the subjects of recusal motions have too often been hostile to the party’s request (rather than judicial and intellectual), and reviewing courts have too often supported the judge – over fairness to the parties.  Let’s see if this changes as the judicial reform movement sweeps the nation.

In Georgia, the City of Savannah challenged Judge Lee, and sought to have him disqualified from a civil case, based on allegations that he had improper outside conversations with a senior partner for the law firm representing a plaintiff in the suit.”  (Story here).  Judge Lee did not recuse himself.

This is a real practical problem, because if a judge really is doing wrong, that judge often wants to stay in “control” of the case – to protect himself.

The Georgia Supreme Court has accepted review of the disqualification issue.  The Supreme Court doesn’t “investigate” in this situation.  It is limited to the evidence already filed in the case (known as the “record”).  The Supreme Court will apply the law to the facts in the record.

Supreme Courts are also ‘policy’ courts.  The Georgia Supreme Court may have taken the case to grapple with the issue of judicial misconduct, and how it should be handled within a case.

This will be an interesting case to watch.  Although I don’t know about the evidence in this particular case, the mere fact that the Georgia Supreme Court accepted review of the issue is important.  This prong must be advanced to get at the nub of the problem of judicial misconduct in the case:  parties need to know that fairness in their case is taken seriously by the court system.  The all-too-often knee-jerk reaction by the courts to protect the reputation of judges needs to be examined.

Parties who choose to litigate the issue of the judge’s conduct within their case should know that they can also seek discipline of a judge in that state’s separate ethics system.  (This often this comes later.)   That type of complaint can also be important to deter judicial misconduct by that judge and other judges.  But the only way to affect the case itself, is to appeal the legal issue triggered by the judge’s conduct within the case.