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Whistleblower confidentiality protects the public from judicial misconduct

By Janice M. Brickley

Janice M. BrickleyAs 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.