Bastions of Independence or Shields of Misconduct?: Increasing Transparency in Judicial Conduct Commissions

November 1, 2023

In most states, the first time that the public learns about a state judge’s misconduct is when a judicial conduct commission files formal charges against that judge.  Judicial conduct commissions are independent state agencies that oversee and investigate allegations of misconduct against state judges.  Commission investigations are kept almost entirely secret from the public, predominantly under the justification that the judiciary needs to be independent of outside influence.  However, in light of recent failures to hold judges accountable for their improprieties, the utility of complete commission secrecy has been thrown into doubt.  Questions arise as to why the commissions did not act sooner, especially when the judges continued their reprehensible behavior for years after an initial complaint was filed against them.

These shortcomings risk shaking public confidence in the judiciary, which may, in turn, hinder the judiciary’s ability to remain fully independent in its oversight mechanisms.  Therefore, there is a question of whether commission proceedings should remain confidential or be opened to the public at an earlier stage in their investigative process.  In other words, at what point does the public’s right to know about judicial misconduct outweigh a judge’s right to privacy?  This Note advocates for increased transparency of commission proceedings, arguing that the public’s right to know should predominate when judicial misconduct has deprived a defendant of their fundamental constitutional rights.  Thus, this Note proposes that commissions be subject to mandatory disclosure when they are investigating an accusation of egregious judicial misconduct.  This would provide the public with notice that the commission is effectively investigating its complaints and taking steps to hold judges accountable when necessary.

November 2023

No. 2