Monday, May 17, 2010
Despite common misperceptions, judges subject to strict supervision
By Alan Malott
For the Journal
"We must never forget that the only real source of power that we as judges can tap is the respect of the people."
— Justice Thurgood Marshall (1981)
Q: If the courts belong to the people, why are judges allowed to do whatever they want to do without any real consequences ?
A: It's been a little more than a year since I left the practice of law and took the oath to serve as a District Court judge. I have learned a lot, including how much there is to learn about being a judge even after 30 years as an attorney.
One thing I learned quickly is how little the public understands this job. For starters, any assumption that judges act without supervision, control or consequences is just flat wrong. Every state has enacted a special code of ethics for its judges and each has developed a mechanism under which judges who don't, won't or can't do their jobs may be counseled, corrected or even removed from the bench.
In New Mexico, there are two separate bodies which address judicial conduct. They are the Judicial Performance Evaluation Commission and the Judicial Standards Commission. Each of them is made up of both lawyers and nonlawyers who serve as volunteers to the community. They are independent of each other, and operate under the supervision of the state Supreme Court.
The Judicial Performance Evaluation Commission has developed and maintains a system to evaluate a judge's performance on the bench as rated by members of the bar who appear before them, court staff, law enforcement, and others who come into contact with the judge during his or her work. The criteria range from demeanor to knowledge of the rules, timeliness and impartiality. Judges also are interviewed individually during their terms in office. JPEC rates each judge and issues a recommendation on whether they should be retained or not. The results of pre-election JPEC evaluations are public record and can be a valuable tool, especially for voters who must choose whether or not a particular judge stays in office. You can view more about JPEC's work and the evaluation process at www.nmjpec.org.
The Judicial Standards Commission is the other organization which deals with the behavior of judges in New Mexico. While JPEC operates to evaluate a judge's job performance in the courtroom, JSC addresses issues of behavior which may reflect on whether or not a judge should stay on the bench in the first place. Established through a constitutional amendment vote in 1967, the Judicial Standards Commission is predominantly concerned with issues of willful misconduct in office, persistent failure or inability to perform the duties of office, or "habitual intemperance," i.e., a drug or alcohol addiction. In essence, JSC is the means by which the Code of Judicial Conduct is enforced by the Supreme Court. Anyone may file a complaint with JSC, and the commission can institute one on its own. After a preliminary investigation process, which can include an adversarial hearing, the complaint may either be concluded or formal charges may be filed before the Supreme Court. A Supreme Court proceeding may result in sanctions ranging from admonition to suspension or removal from office. The JSC handled nearly 200 complaints, mostly from disgruntled litigants, during 2009.
Much media attention has arisen lately on the confidentiality of the JSC process. You should know that confidentiality only applies in the preliminary, investigatory, portion of the case. Once formal charges are filed with the Supreme Court, the matter becomes one of public record. Once it has been determined a complaint is not born of malice, spite or unrealistic expectations, confidentiality is no longer applicable. I submit it is appropriate to determine whether a complaint has any merit before the individual reputation of a judge, and the community's respect for the court itself, become fodder for media speculation and public debate. Go to www.nmjsc.org to see more and then Judge for Yourself.
Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, contact Judge Malott at P.O. Box 8305, Albuquerque, NM 87198 or e-mail to: firstname.lastname@example.org. Opinions expressed here are solely those of Judge Alan M. Malott individually and not those of the court.