Whistleblower confidentiality
protects the public from judicial misconduct
By Janice M. Brickley
As part of the fallout from the “kids
for cash” scandal in Pennsylvania, in 2009 the convictions of over 4,000 juvenile
offenders were expunged. They were determined to have been entered as part of a
scheme involving the Pennsylvania juvenile court judge who routinely sentenced juveniles
to a private juvenile detention facility for minor offenses in exchange for a
secret “finder’s fee” from the owner of the facility. In an
article published in the May 2011 Bar Journal, I discussed the role of
attorneys in failing to expose the actions of this judge. While attorneys who
appeared regularly in the judge’s court were not privy to the financial scheme,
between 2003 and 2008 they routinely witnessed the judge unlawfully sentencing
minors to the detention facility without counsel, without waivers of the right
to counsel and without an individual assessment of the juvenile’s offense or
circumstances. During the subsequent investigation, attorneys and others who
appeared frequently in the judge’s court explained that they closed their eyes
and ears to these apparent abuses out of fear of retaliation from the judge. The
resulting silence occurred notwithstanding the requirement in Pennsylvania
Professional Conduct Rule 8.3 that a lawyer who knows that a judge has
committed a violation of applicable rules of judicial conduct that raises a substantial
question as to the judge’s fitness for office shall inform the appropriate
authority.
The reluctance to report judicial misconduct
is evidenced most by those who are most vulnerable to retribution or
retaliation – attorneys, court employees, and other judges. These are the
individuals in the best position to recognize judicial misconduct and the most
likely to be a witness to it. In California in 2012, only five percent of the
complaints received by the Commission on Judicial Performance came from
attorneys, court employees and judges; yet, complaints from those sources
resulted in 37 percent of the discipline imposed.
In order to fulfill the
commission’s mandate to protect the public, to ensure that information about
unethical judicial conduct reaches the commission, the disciplinary process
must safeguard the filing of complaints and the cooperation of witnesses during
investigations. The primary way that this is accomplished is by affording
confidentiality to those who come forward and provide information about
judicial misconduct. Under the commission’s rules, disclosure of witness
statements is only made to the judge if formal charges are filed, which occurs
in approximately one to four cases a year.
This year, during the commission’s
biennial review of its rules, the California Judges Association (CJA) asked the
commission to adopt a rule that would have required the commission to provide
full discovery to the judge before the commission has completed its investigation,
including disclosing the identity of the complainant and all witnesses, and
turning over witness statements. After careful consideration, the commission
decided not to adopt CJA’s proposed rule because eliminating confidentiality of
complainants and witnesses when no formal charges are brought would severely
compromise the commission’s investigation of complaints of judicial misconduct
and jeopardize protection of the public. Instead, the commission adopted rules,
consistent with its long-standing practice and the practice of the State Bar
and other professional oversight agencies, which guarantee that judges receive
sufficient information to respond effectively to the allegations of misconduct
during the investigation, without divulging the identity of the “whistleblower”
complainant or witnesses. These rules balance the commission’s responsibility
to ensure that the disciplinary process complies with due process and is fair
to the judges who are under investigation with the commission’s mandate to
protect the public through an effective investigation process.
Only one state, Alabama, provides
full discovery before formal charges are filed in judicial disciplinary
proceedings. Complaints dropped almost by half when Alabama amended its rules
in 2001 to require disclosure of the complaint and all supporting materials. An
American Bar Association report concluded that Alabama’s procedures “conflict
with national practice and are not protective of the public. They unduly burden
the system, deter the filing of valid complaints, and compromise the ability of
the commission to effectively conduct a proper investigation.” (American Bar
Association Standing Committee on Professional Discipline, Alabama: Report on
the Judicial Discipline System (March 2009) (ABA Report), p. 14.)
Regardless of whether a judge would
actually retaliate against a complainant, the mere possibility of retaliation
is sufficient to deter the reporting of judicial misconduct. If confidentiality
were not guaranteed during the commission’s investigation, lawyers who appear
regularly before a judge would naturally be concerned that reporting judicial
misconduct and cooperating with the commission’s investigation will have negative
ramifications – not only for themselves, but also for present and future
clients. Court employees and others whose livelihood depends on their
association with the court (interpreters, probation officers, etc.) would be
equally, if not more, reluctant to file a complaint or cooperate with the
commission’s investigation knowing their identity would be disclosed to the
judge. The ABA report on Alabama’s judicial disciplinary system concluded with
respect to Alabama’s disclosure rules, “This practice, particularly the
revelation of the complainant’s identity, has a chilling effect on those who
may want to file a complaint against a judge. Specific instances were described
to the team by a range of interviewees, including but not limited to potential
complainants, actual complainants, lawyers and judges.” (ABA Report, p. 19.)
The Pennsylvania “kids for cash” scandal illustrates the potentially devastating consequences
when attorneys and those associated with the court are reluctant to report
misconduct. Whistleblowers filing complaints regarding improper governmental
activity are guaranteed protection, including confidentiality, under
California’s Whistleblower Protection Act. (Gov. Code, §§ 8547.5, 8547.6,
8547.7, subd. (c).) Those in the best position to provide accurate and
verifiable information about serious judicial misconduct deserve no less.
• Janice M. Brickley is Legal
Advisor to Commissioners at the California
Commission on Judicial Performance.