Judicial Misconduct and Public Confidence in the Rule of Law

By David J. Sachar

David J. Sachar is currently serving as the Executive Director of the Judicial Discipline and Disability Commission in Arkansas, United States and as an Advisory Board Member of the National Center for State Courts. He previously gained experience as a litigator and prosecuting attorney in the United States. Mr. Sachar recently shared his views on judicial misconduct with UNODC, as part of the Organization's on-going work to exchange good practices in the investigation of misconduct. All opinions expressed in this piece are solely those of the author as an external expert and do not necessarily reflect the official position of UNODC.

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Judicial misconduct breaks down the very fibre of what is necessary for a functional judiciary- citizens who believe their judges are fair and impartial.  The judiciary cannot exist without the trust and confidence of the people. Judges must, therefore, be accountable to legal and ethical standards. In holding them accountable for their behaviour, judicial conduct review must be performed without invading the independence of judicial decision-making. This task can be daunting.

More than any other branch of government, the judiciary is built on a foundation of public faith-judges do not command armies or police forces, they do not have the power of the purse to fund initiatives and they do not pass legislation.  Instead, they make rulings on the law. Rulings that the people must believe came from competent, lawful and independent judicial officers. 

Judicial misconduct comes in many forms and ethical standards address problematic actions, omissions and relationships that deplete public confidence.  Common complaints of ethical misconduct include improper demeanour; failure to properly disqualify when the judge has a conflict of interest; engaging in ex parte communication and failure to execute their judicial duties in a timely fashion. Behaviour outside of the courtroom can also be at issue. Judicial conduct oversight should not attempt to regulate purely personal aspects of a judge's life. However, a judge can commit misconduct by engaging in personal behaviour that calls their judicial integrity into question. This is true even if the same behaviour would merely be considered unwise for the average citizen. As the saying goes, the robe magnifies the conduct. Obvious examples are violations of criminal law, sexual misconduct with staff/attorneys/parties, joining discriminatory organizations and using the judicial position to enhance a private interest.

Many codes of judicial conduct also include general language that urges judges to preserve the integrity of the judiciary and avoid even the appearance of impropriety. For example, the preamble to the Arkansas Code of Judicial Conduct states that, "judges should maintain the dignity of the office at all times and avoid both impropriety and the appearance of impropriety in their professional and personal lives." [1]

At what point is a judge's ruling so far afield of precedent and legal code or such an egregious violation of fundamental rights that it appears the judge is acting with impunity towards the law?  Generally, the decisions of a judge should be left for judicial review, not for critique by a conduct commission. However, incidents where people are jailed without due process, judges inventing improper remedies for cases, or a breakdown in the rule of law can rise to the level of judicial misconduct. Regulating that type of behaviour without violating separation of powers or decision-making independence becomes a walk on the edge of knife.

Implementing a meaningful way for the public to be protected from judicial misconduct is vital-- there has to be review. Furthermore, it must be done with minimal risk of unlawful intervention by forces trying to prevent unpopular, but correct, rulings on the law. Of course, a proper system to protect the judges' rights to contest ethical charges must be in place. If there is a finding that a judge violated judicial ethics standards, then determining a sanction or remedy would be the next step. A well-equipped conduct commission must have appropriate remedies available. Public discipline serves the dual purpose of correcting the judge in question, as well as educating others in the judiciary. Conduct commissions typically have the authority to publish warnings or reprimands for unethical behaviour. Remedial measures may be ordered requiring, by way of example, mentoring, monitoring or additional education. The rare and serious sanctions of suspension or removal from office are reserved for only the most egregious instances of misconduct.

It behoves the judiciary to support measures that hold it accountable. While the majority of judges serve with honour, ethical missteps should be corrected, and major breaches of trust should be acknowledged. The judiciary should be willing to help develop ethical standards and be an active part of any enforcement mechanism.

To quote former United States President Theodore Roosevelt: "No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right, not asked as a favor."  The judges who administer justice in our countries must be seen as ethical and subject to meaningful correction when it is necessary. Nothing less than the rule of law is at stake.