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PLN associate editor quoted in TN article re judicial discipline

Knoxville News Sentinel, Jan. 1, 2011.
PLN associate editor quoted in TN article re judicial discipline - Knoxville News Sentinel 2011

Tennessee legislators want more judges' misdeeds made public

By Tom Humphrey

Saturday, October 1, 2011

NASHVILLE — Legislators are eyeing repeal of the state law that allows keeping the admonishments wayward judges receive secret and imposing stricter rules concerning when judges must bow out of a case when accused of a conflict of interest.

Judges say making public the "private reprimands" now handed out by the Court of the Judiciary would be a bad policy move, but acknowledge the Legislature could take such a step.

Changing the rules for recusal of a judge, which are now established by the state Supreme Court, also is criticized on policy grounds. But it could also be a violation of the state constitution, according to Chris Craft, presiding judge of the Court of the Judiciary (COJ).

Both proposals arose during recent hearings by an ad hoc committee appointed to review the COF and recommend changes to the 2012 legislative session. For much of the two days of hearings, the legislators listened to sometimes emotional complaints from citizens about judges they characterized as arrogant or abusive.

"I wish all the members (of the Legislature) could hear what we've heard," said Senate Judiciary Committee Chairman Mae Beavers, R-Mount Juliet. "I think there is a need for serious change."

Craft, who also is a Criminal Court judge in Memphis, defended the COJ during the proceedings. He said many of the complaints legislators heard — and the vast majority of all complaints received by COJ — are simply from people angry over losing in court.

"Most of them, frankly, are not being truthful about the facts," he said in an interview.

And others, perhaps including some legislators, stem from confusion about the COJ's role, Craft said.

The court cannot deal with legal questions, only with ethical violations, he stressed.

For example, if a judge has an out-of-court relationship with a party to a lawsuit, but discloses that relationship and rules that he can nonetheless handle the case, the ruling is a legal question and not within the COJ's jurisdiction. The judge's ruling must be appealed through the legal system to an appeals court.

On the other hand, if a judge has such a relationship and hides it, that would be an ethical violation subject to COJ investigation and disciplinary action once discovered.

Beavers is sponsor of a bill that would change makeup of the COJ, which handles the discipline of judges, so that legislators appoint the majority of members. Currently, a majority of members are appointed by the Supreme Court and are lawyers or judges.

The recusal and reprimand proposals could be incorporated into her current bill or handled as separate legislation, she said. Beavers, chairman of the Senate Judiciary Committee, is co-chairman of the ad hoc committee with Rep. Eric Watson, R-Cleveland, who is chairman of the House Judiciary Committee.

Watson also called for considering changes in the COJ's secrecy rules. He further instructed staff to seek a formal explanation from the Supreme Court on why John Jay Hooker, a lawyer and frequent political candidate who has been a harsh critic of the judicial election system, has been restricted in filing lawsuits.

At the hearing, Hooker said the COJ is "almost like the Gestapo."

A total of 359 complaints were filed with the Court of the Judiciary last year and 334, or 94 percent, were dismissed, according to a report issued last month. The COJ handed down 15 reprimands during the past year, nine of them kept private and six that were made public.

In the past 20 years, 5,193 complaints have been filed with the COJ, resulting in suspension of eight judges, 31 public reprimands, 46 private reprimands and 36 "deferred discipline agreements," which allow judges to escape punishment if they abide by the terms of the agreement.

One of the private reprimands in 2009 was given to Circuit Court Judge Bill Swann and a copy of a letter received from COJ by Wendy W. Rose-Egli of Knoxville, who filed the complaint, was filed with legislators. Rose-Egli testified, along with her husband, attorney Russell Egli, at a separate Senate Judiciary subcommittee hearing on the COJ last year.

Beavers said Swann is the subject of most complaints about Knoxville area judges received by legislators. Swann could not be reached for comment last week. He handles divorce and child custody cases, which Craft said are — along with petitions from prison inmates — the most common source of complaints about judges.

The letter from Craft's predecessor as presiding judge is marked "personal/confidential," simply says that the COJ's investigative panel "took what it felt was the appropriate action" without saying what that action was.

The complaint related to Swann's refusal to recuse himself from Rose-Egli's child custody case, though her husband was acting as her attorney and had a separate lawsuit pending against the judge. Swann declared that Egli had been intentionally brought in as attorney, replacing another, to create an alleged conflict and the judge would not step down in such circumstances. The Court of Appeals ruled his decision was correct.

"Such activity is nothing short of legal gamesmanship, as correctly pointed out by Judge Swann," the Court of Appeals decision said.

Craft said such a case is similar to situations he encounters as a criminal court judge, wherein prison inmates with lengthy sentences for violent crimes will file "a $10 million lawsuit against me" without grounds, then file a petition demanding he recuse himself because the lawsuit presents a conflict.

Two other private reprimand letters were presented to the committee by Alex Friedmann, who works with prison inmates as associate editor of Prison Legal News.

One involved Wilson County General Sessions Judge Barry Tatum ordering a Hispanic woman facing a criminal charge to learn English or face loss of custody of her children and ordering her to use birth control.

The other involved a Native American, James Thunder Quill Wilson, and Sumner County Criminal Court Judge Dee David Gay. Friedmann said Gay "mocked and ridiculed Mr. Wilson's Native American name by referring to him as 'Porcupine Quill,' 'Road Kill,' and 'Thunder Kill'."

"When citizens break the law, even when they commit minor traffic violations, the sanctions they receive are a matter of public record," Friedmann told the committee. "Why, then, should judges who commit misconduct receive private discipline that is hidden from the very members of the public who elected them?"

Beavers and others on the panel expressed sympathy with such views. While appropriate to keep confidential initial complaints to guard against publicizing "false accusations," she said finding of wrongdoing should be public because citizens can "sort all this out" and make decisions as voters on whether a judge should be re-elected.

Craft said that 43 of the 50 states have seen the wisdom of making private reprimands part of judicial discipline options. They are appropriate, he said, in helping a good judge rectify relatively minor mistakes, perhaps created by him or her simply "having a bad day, like everyone does."

For example, he says a judge who had learned her husband was having an affair angrily snapped at a litigant in her court.

"There's no reason to tell the public her husband is having an affair," he said. "That could ruin a judge's marriage when they could work it out."Recusal questions, Craft said, are best left to the legal system. The state Supreme Court currently has under consideration a change in recusal rules, proposed by the Tennessee Bar Association, that calls for an immediate and expedited appeal of a judge's refusal to step aside. Such appeals can now take many months.

Craft said he has faced instances of criminal defendants trying to create a bias warranting recusal by "throwing things at me, spitting at me, pulling their pants down to show their backside and threatening my wife's life."

"If we let them run the system, we would never try anyone for murder," he said.

Craft said there is room for improvement in COJ functions and in making sure legislators, and the general public, understands the process. But he insisted things are working well overall and should not be substantially overhauled by legislators.

"We have the tools to help the good judges and get rid of the bad judges," he said.