A Review of the Judicial Conduct Commission - Utah State Legislature

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Legislation limiting Supreme Court review to only JCC-forwardedcases makes the JCC a potent control and decision-making body. In thepast and prior to recent legislation, that control and decision-making waseven more centralized in the JCC’s executive director who coulddetermine which complaints went before the commission, even before adetermination was made by the commission to recommend disciplinaryaction against a judge and send the case to the Supreme Court. Recentlegislation altered JCC operations by requiring that all complaints gobefore the commission, thus alleviating some concerns regarding control.Currently, the JCC is an independent, state body constitutionallycharged with investigating complaints filed against the 233 judges withinits jurisdiction. Based on its investigation and hearings, the JCC mayorder any one of a number of disciplinary actions. Prior to theimplementation of any JCC order, constitutional power is given to theSupreme Court to review and implement, reject or modify thecommission’s order. The 11-person volunteer JCC has a small staff ofthree people, including an executive director, a part-time investigator andan office technician. In addition, the staff contracts with a part-timeinvestigator.Audit Scope and ObjectivesJCC believes theycannot give auditorsaccess toconfidential fileswithout SupremeCourt authorization.The Audit Subcommittee of the Legislative Management Committeedirected this office to conduct a comprehensive audit of JCC operationsand practices. The JCC has been unwilling to grant auditors access tocomplaint files because of their interpretation of confidentiality provisions.Since the commission’s confidentiality provisions have an exception fordisclosure “upon order of the Supreme Court,” the commission has sent aletter to the Supreme Court asking for permission to share theconfidential files with the legislative auditor. On October 16, 2002, theSupreme Court responded that their present position is that a blanketdisclosure is unnecessary because the JCC could redact specificinformation that would easily identify judges, witnesses and complainantsfrom the documents. To redact files would be time consuming anddifficult for JCC’s small staff and would not provide auditors with theinformation necessary to do an independent and comprehensive audit.Further, the Supreme Court’s response while addressing the JCC’s chargedoes not address the auditors constitutional right to the information sothat the auditors can provide an independent review of this program. Acomprehensive review of complaint files would allow auditors to review– 2 – A Review of The Judicial Conduct Commission
the consistency of sanctions, the timeliness and efficiency of complaintprocessing, and compliance with stated JCC policies and procedures.Without the files, the audit scope has narrowed to a review of theorganizational structure and confidentiality rules of the JCC.Need for Judicial Conduct OversightIs Well EstablishedThe JCCinvestigates,charges, andrecommendsdiscipline ofaccused judges.All states have judicial conduct organizations that investigateallegations of potential misconduct and, in cases of substantiatedmisconduct, initiate discipline of judges. Following the national trend,Utah created its Judicial Conduct Commission. Utah, like most states andthe federal government, adopted the American Bar Association’s ModelCode of Judicial Conduct. Appendix A shows the Code of JudicialConduct which was adopted by the Utah Judicial Council as the basis fordetermining when misconduct occurs.Given the power and independence of the judiciary, the Code ofJudicial Conduct states that judges must be competent and ethical, andtheir actions must foster respect for their decisions as well as for thejudiciary as a whole. Judges are expected to conduct themselves accordingto high standards of professional conduct both in the court room as wellas in their personal lives. The Code of Judicial Conduct attempts to set asystematic method for dealing with ethical problems not covered byexisting laws.The public has highjudicial conductexpectations.The high profile and public image of the judges means that ethicsproblems can damage public confidence in the judiciary. Although thenumber of allegations and actual cases of misconduct are low, how thecases are handled is publically scrutinized. Consequently, when there is anallegation of misconduct, even if the charge is eventually unfounded, thereis a cost to judicial credibility that can escalate if the public questions thereview system or how the allegation was handled.National Trend Toward OversightThe development of judicial conduct commissions or similarorganizations has been a slow and evolving process taken by all 50 statesand the federal system. When proposed controls over judicial conductOffice of the Utah Legislative Auditor General – 3 –
Page 1: Office of theLEGISLATIVE AUDITOR GE
Page 5 and 6: officers for high crimes, misdemean
Page 7 and 8: The Judicial Conference can refer a
Page 9 and 10: complaints filed against judges pri
Page 11 and 12: Figure 3 shows that since 1996, the
Page 13 and 14: forward more complaints than is don
Page 15 and 16: Worthen.” The court further reque
Page 17 and 18: formal charges to also decide wheth
Page 19 and 20: commission members wrote a dissenti
Page 21 and 22: to the Utah Code 78-8-102 and four
Page 23 and 24: The Legislaturecannot set properpro
Page 25 and 26: AppendicesOffice of the Utah Legisl
Page 27 and 28: Agency ResponseOffice of the Utah L
Page 29 and 30: Wayne L. Welsh, CPANovember 6, 2002
Page 31: Appendix C• House Bill 285, 2000

A Review of the Judicial Conduct Commission - Utah State Legislature

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