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Does panel judge the judges?
JEFF PORTER
ARKANSAS DEMOCRAT-GAZETTE
The Arkansas Judicial Discipline and Disability Commission
meets in a small conference room in downtown Little Rock. There's little
space for spectators, but that's not a problem -- the commission does most
of its business in secret.
The staff of the public agency also keeps a tight lid
on the minutes of its meetings. Executive Director James A. Badami said
the minutes include "stuff that's protected by confidentiality" that would
have to be deleted before they could be viewed by the public.
The state attorney general's office has said the agency's
telephone records, unlike those of most other public agencies, are not
available for public review because that might reveal details of an investigation.
The commission staff even blots out names of judges and
witnesses on the expense vouchers it submits to the state auditor's office.
The commission -- nine members and nine alternates, divided
equally among judges, lawyers and nonlawyer citizens -- investigates complaints
against Arkansas' 400 trial judges. Every state has a similar agency, similarly
secretive. Arkansas' is actually considered one of the more open.
The commission has power to punish judges, and it can
recommend to the state Supreme Court that judges be suspended or removed
from office. In that sense, the commission, with its four employees and
small budget, is a powerful agency.
Since 1989, when it started operating, it has publicly
disciplined or been involved in the resignations of 28 judges.
The Arkansas Democrat-Gazette used investigation
records, interviews and computer analysis to look behind the agency's veil
of secrecy and found:
* Despite complaints from judges that the commission's
staff is overzealous in its investigations, the commission ranks low to
average nationally in disciplinary actions against judges.
* Hampered by a growing caseload and a small staff, the
commission sometimes issues letters of discipline years after the conduct
that prompted the complaint.
* It imposes conditions of confidentiality on witnesses
and complainants that would be difficult, if not impossible, to enforce.
Retired Chancellor Andre McNeil of Conway is one of several
judges who criticize the agency as heavy-handed and overzealous. He's been
under investigation since January 1996 over a child-custody case he presided
over in 1992 and 1993. McNeil, who allowed the Democrat-Gazette access
to the investigation file, has barraged Badami with criticism in a series
of letters.
McNeil, in an April 1996 letter to commission members
and the executive director, talked about "the loss of respect of the commission
among the judicial officers and the general public as a result of the opening
of obviously frivolous files and the lack of knowledge of the Arkansas
Judicial Code and Arkansas law" by the commission staff.
"While there is a higher accountability to the public
from the judiciary, the members of the judiciary are still deserving of
fair treatment without the unnecessary and unwarranted harassment that
they are currently being exposed to," he wrote.
Badami, in response to another lengthy and critical letter
from McNeil, shot back in a letter of his own: "Your caustic comments are
acknowledged as having been read." More seriously, the former Army colonel
says his agency is run by the book -- in this case, the rules set out by
the Arkansas Supreme Court. He insists it's run fairly.
McNeil's complaint stems in part from the fact that the
commission opened its investigation while the case was pending in the appeals
courts. However, the commission delayed the investigation pending that
decision, Badami said.
McNeil isn't the only critic.
Circuit-Chancery Judge Thomas Brown of Pine Bluff said
the commission staff doesn't always seem concerned about getting both sides
of complaints. Brown was admonished last year for reaching across his bench
and grabbing a juvenile defendant and for talking with juvenile defendants
and with the guardian of a defendant in the absence of the attorneys involved.
"There's a distinction in my mind between the commission
[members] and the [staff] people who work for the commission," he said.
"In my two meetings with the commission, I got nothing but respect and
genuine concern for my position, the other person's position, what really
happened. ... I don't think -- and I don't wish to be terribly critical
-- I don't think that is either the perception or the reality insofar as
judges are concerned, when dealing with the staff."
And Circuit-Chancery Judge Fred D. Davis III of Pine Bluff,
who was issued a letter of reprimand in April after the commission's first-ever
public hearing, criticized Badami in an earlier commission proceeding as
"a prosecutor without the restraints that prosecutors have of trying to
do justice."
On the other hand, the agency draws criticism from others
who say it hasn't been tough enough.
ADMONISHMENT THE NORM
The numbers show an enforcement history close to national
averages.
In most cases, a simple letter is the commission's punishment
of choice -- that is, in most cases in which punishment is chosen at all.
The commission dismissed 96 percent of its cases through 1995, the latest
year for which statistics are available.
Figures from the American Judicature Society, a clearinghouse
for information on judicial conduct, show that the national average for
dismissals during 1992-94 was 92 percent.
The commission has issued 22 public letters of admonition
since 1989. It has written one letter of reprimand and one letter of censure
-- which are more serious. It has issued two "informal adjustment" letters
for minor infractions. It gave three private reprimands before the state
Supreme Court prohibited secret sanctions in 1990. It has suspended three
judges with pay, one of whom was eventually suspended without pay for six
months. Five judges have resigned during commission investigations.
But can a simple letter of admonition, the commission's
most common disciplinary action, be an effective form of punishment?
"I've never been admonished, and I don't want to be,"
said Circuit Judge John Cole of Malvern, president of the Arkansas Judicial
Council, which includes circuit, chancery and appellate judges.
"So if I were admonished, if someone found I had violated
particular canons of ethics, I would feel punished. ... An admonition is
a public record. It does leave a trail of conduct that can be used in future
campaigns. It also is a step toward enhanced punishment should future violations
occur," Cole said.
But a retired state Supreme Court chief justice said he
favors a harder line toward errant judges. Jack Holt Jr. was a leader in
the effort to establish the commission through a constitutional amendment
in 1988.
"I know superficially I've seen some alleged complaints
and then the result of the thing and I've thought the punishment doesn't
meet the offense, if in fact the person committed the offense," he said.
"I'm just kind of hard-nosed on stuff like that. I think
a judge is required to have conduct over and above -- otherwise, don't
sit in judgment on other people. We've got our own frailties anyway, but
if one's errant and transgresses too far, he ought to be removed, no matter
who he is," Holt said.
The commission imposed more penalties early in its life.
In 1990, it took punitive action in 10 cases. Since then, its sanctions
have been running a steady three or four a year, except for 1995, when
it took seven actions against judges.
Although comparison is complicated -- Badami challenges
most state-to-state comparisons because procedures, budgets and judicial
systems vary -- Arkansas' commission averaged one sanction for every 100
judges during 1992-94. The national average was three per 100.
And the commission typically issues sanctions in easily
investigated cases.
In nine instances, it moved against judges facing criminal
charges or accusations. Eight times, judges were sanctioned for undue delay
in deciding cases. Five sanctions were issued against judges accused of
the appearance of conflict or impropriety -- proven, for the most part,
through a review of court records.
Badami said the commission's record shows that it's taking
a straight-ahead approach to its job.
"How many times have you heard about a judge who's doing
wild, crazy things who doesn't come before the commission? How many judges
have you heard about who've been indicted who've not been subject to investigation
by this commission? How many judges have you heard of taking a bribe who
have not been investigated?"
He discounted complaints of overzealousness. For one thing,
he said, with a staff of himself, one investigator and two office employees,
the commission can't afford to be overzealous.
Sometimes the problem that judges have is really with
the rules established for the commission by the Arkansas Supreme Court,
Badami said. Judges particularly criticize the commission's practice of
opening investigations based on news articles or anonymous complaints.
"Mr. Badami just wanted to justify the existence of this
commission, and they'd investigate anything," said retired Circuit Judge
Jack Lessenberry of Little Rock. "If there was something in the newspaper
that no one complained about, but they saw it, they would open a file on
it and investigate."
Said Badami: "Again, I don't make the rules. The Arkansas
Supreme Court that made the rule didn't act arbitrarily in doing that.
What they did is they went to the American Bar Association national standards
and they adopted what was recommended. ... The national standards were
to accept an anonymous complaint; the national standards were to accept
a newspaper article. Judges don't like that; judges don't like a lot of
things. I guess I wouldn't like it either if I were on the receiving end."
While the commission accepts anonymous complaints, he
said, it will not accept them over the telephone. They have to be in writing.
BADAMI'S REPUTATION
Badami takes part in hearings and, in some instances,
commission deliberations. "The vast majority of time," he said, the commission
follows his recommendations on how to handle complaints against judges.
But the commission chairman, Chancellor Rice Van Ausdall of Harrisburg,
said the panel's members think for themselves.
"I think everyone has their own view and expresses it,"
he said. He said Badami doesn't dictate to the commission, and that Badami's
presence in most deliberations "doesn't bother me. I can't speak for anybody
else, but it doesn't bother me."
It bothers Brown, the Pine Bluff juvenile court judge
admonished in 1996. "It's not quite like it, but it's kind of like the
prosecutor being in the jury room," said Brown, who agrees, however, that
the admonition against him was justified.
The stormy relationship between Badami and many of the
state's judges dates back to his early days as the commission's first and
only director. Badami, a former Army lawyer and judge, retired from the
service as a colonel before accepting the state job in 1989.
"I came with no bias, at least none that I know of," he
said. "After a while, it became apparent that just because my name was
on the letter sent to a judge, some individuals, not all of them, found
that I was personally attacking them. I would challenge any judge to show
that I had personally criticized any judge."
Some of the animosity can be traced to the commission's
early efforts against nepotism. Before 1991, it was common for judges to
employ their wives, mothers or other relatives as court reporters or clerks.
The commission investigated and ended the practice.
Retired Circuit Judge Gerald Pearson of Paragould recalled
the anger. He employed his own wife as a secretary. But now, he said, he
believes the commission was correct.
"I think that's where the disfavor started," said Pearson.
"It was the right thing, but it sure rubbed a lot of them the wrong way."
Badami said the commission was simply applying rules established
by the state Supreme Court. "I took a lot of heat for that," he said.
He even took heat -- sometimes from the press -- for the
fact that no judges were disciplined for nepotism violations. However,
said Badami, the goal was to eliminate the practice and clarify the rule,
not to punish judges.
Another episode -- recalled differently by different people
-- that put a chill in the relationship came when Badami spoke at a 1991
West Memphis meeting of the Arkansas Judicial Council.
McNeil, the retired Conway chancellor, said that in response
to a question after his speech, Badami said his philosophy was "where there's
smoke, there's fire." McNeil and others said the judges at the meeting
took that to mean Badami believed that if enough complaints were made,
the judge was probably guilty of something.
"I was stunned by Mr. Badami's response, and so was every
judge there."
Badami said he doesn't recall making the statement, but
that if he did, he would have made it in context. He said, for example,
that he might say "where there's smoke, there's fire" if he got several
confirmed reports of a judge being drunk and was asked if the judge might
be an alcoholic.
Since that meeting, Badami said, he hasn't been invited
back to address the Judicial Council. But he has met several times with
the Arkansas Municipal Judges Council.
SMALL BUDGET, STAFF
Does Arkansas spend enough policing its judges?
The commission spent $139,925 in its first full fiscal
year, 1990-91. In fiscal 1995-96, it spent $235,823, according to the state
Department of Finance and Administration. That's an increase of 68.5 percent,
well above the rate of inflation.
During the recent legislative session, the commission
sought a budget that included a raise for Badami to make his 1998 salary
equivalent to circuit and chancery judges, who will be paid $101,595 that
year. That proposal failed. Badami's 1998 salary was set at $67,032, a
modest increase.
"Is the level of commitment right? We seem to be getting
the job done with the assets that we're given," said Badami.
"If we continue to have the growth of complaints, I'm
going to have to eventually go to my commission and ask for permission
to ask for another staff person, whether it be an attorney or paralegal
I don't know, but down range it may have to happen," he said.
A national expert on judicial conduct organizations thinks
Arkansas' financial commitment to the agency might already be too low.
A four-person staff seems "a little bit lacking," said Jeffrey M. Shaman,
a professor at the DePaul University College of Law and a senior fellow
for the American Judicature Society.
Despite that, Shaman said, Arkansas' agency has a good
reputation nationally. "It seems to me that it works pretty well," he said.
The agency has seen a rising caseload. In 1990, the commission's
first full year of operation, it received 139 complaints. In 1996, it received
211. That caseload growth contributes to delays in getting cases decided.
For example, the commission received a complaint in October
1994 that Marshall Municipal Judge Jerry Patterson had an improper conflict
of interest. But it wasn't until January 1997 -- more than two years later
-- that the commission issued a letter of admonition to Patterson.
"I can only spread myself and my investigator so far,"
Badami said. "We fall behind every month."
There are other reasons for delays.
When the Democrat-Gazette reviewed McNeil's file
in late March, the newest document was dated April 23, 1996. The case file
contained a notation that the commission should discuss McNeil's complaint
after Jan. 1, 1997.
The reason for the delay, according to Badami: The Arkansas
Supreme Court was hearing an appeal of the same case and considering some
of the same issues, in particular whether McNeil was correct in having
at least one hearing in which he heard from only one side in the custody
case. The court reversed McNeil's ruling in November.
A letter of admonition to Brown, the Pine Bluff judge,
came two years after the complaint. Brown said the commission agreed to
hold up the investigation because it was filed during an election year.
Badami, not commenting directly about Brown's case, said
the commission has given him the authority to delay investigating complaints
if they appear politically motivated.
"The commission is not here to be used as a sword to go
after your judges. That's not what we're here for," he said. Political
opponents and "aggressive attorneys" have tried to use the commission to
advance their own causes, he said.
OPEN SECRECY
Other cases have taken a long time, too, but the commission's
confidentiality rules make it difficult to determine why. The staff is
prohibited from discussing the complaints in detail, even after they're
disposed of.
But Badami does issue a press release after each disciplinary
action and makes a copy of each letter or other action public. The agency
also releases, on request, copies of the letters that go out to judges
or complainants upon the dismissal of a complaint.
The agency is considered one of the more open in the country,
said the American Judicature Society's Shaman, because the outcome of every
case is available to the public. Many states allow for private reprimands
against judges, but the Arkansas Supreme Court decided in May 1990 that
all sanctions should be public.
The investigations remain secret.
Commission staff members ask witnesses to sign statements
that say in part: "Any person who obtains information about the commission's
work and violates this confidentiality requirement is subject to punishment
for contempt of the Arkansas Supreme Court."
The commission has never sought a contempt citation. And
rulings from the U.S. Supreme Court and two U.S. appeals courts make such
an action unlikely.
The U.S. Supreme Court ruled in 1978 that a third party
-- in this case, a newspaper -- that obtained information about a Virginia
commission's proceedings could publish the information without penalty.
Federal appeals courts in Virginia and Pennsylvania cases have weakened
provisions to prohibit complainants and witnesses from discussing their
part in proceedings before judicial conduct commissions. While those rulings
do not apply in Arkansas, they are considered important legal authority.
Badami is adamant on the need for confidentiality. For
the judicial system to be effective, he said, the public has to have confidence
in judges' judgment and integrity. Publicity about unfounded complaints
would make the system less effective.
Most complaints, he noted, are dismissed. Indeed, a spot
check found that 32 percent concerned matters not within the commission's
jurisdiction, such as whether a judge made a legal error.
Ten years ago, Holt and other members of the Arkansas
Supreme Court began a drive to establish the Judicial Discipline and Disability
Commission because the state lacked practical means to discipline, suspend
or remove judges for misconduct or mental or physical disability.
Now, one of Arkansas' foremost experts on judicial conduct
says the commission has worked.
"I think that the public needs to be aware that judges
have been disciplined and that specific judges have been disciplined, and
judges are more cautious and ethical about things than they were 10 years
ago," said Howard Brill, a University of Arkansas law professor. "So I
don't think that we've got judges who are somehow not getting caught. I'm
not concerned about that."
And after eight years of riding herd on Arkansas judges,
Badami says most are genuinely concerned with following the rules.
"You've got a judiciary who, apparently, from everything
I can tell, they truly try to do the right thing," he said. "They're good
judges, trying to do the ethical and correct thing."
MONDAY: How part-time judges sometimes make small-town
justice difficult.
[The following list accompanied this article]
The disciplined judges
The Arkansas Judicial Discipline and Disability Commission
has taken punitive action in 36 cases, publicly disciplining 28 judges.
1997
Circuit/Chancery Judge Fred D. Davis III of Pine Bluff
-- reprimand for unreasonable delay in deciding a case.
Municipal Judge Jerry Patterson of Marshall -- admonition
for acting as judge in a case related to his work as a private attorney.
Appeals Court Judge Olly Neal -- admonished for presiding,
as a circuit court judge, in the disbarment case of a former law partner
and client.
Municipal Judge Stephen S. Thomas of Siloam Springs --
six-month suspension without pay for hiring a prostitute.
1996
Circuit/Chancery Judge Russell Rogers of Stuttgart --
admonition for being involved in a brawl in a Stuttgart tavern.
Municipal Judge William Watt of Little Rock -- resigned
during investigation of four complaints, including two related to his involvement
in the federal case against former Gov. Jim Guy Tucker, one over a $1,500
check delivered to a state representative on behalf of the Arkansas Municipal
Judges Council, and one over a truancy program.
Circuit/Chancery Judge Thomas Brown of Pine Bluff -- admonition
for scuffling with a juvenile in court and having conversations with juvenile
defendants and a parent in the absence of attorneys involved in the cases.
1995
Circuit/Chancery Judge David Reynolds of Conway -- two
admonitions for unreasonable delays in deciding cases.
Municipal Judge Les Evitts Jr. of Fort Smith -- admonition
for punishing a defendant for his attorney's actions.
Municipal Judge Roy Thomas of Batesville -- admonition
for failure to maintain court decorum.
Circuit/Chancery Judge Fred D. Davis III of Pine Bluff
-- admonition for unreasonable delay in deciding a case.
Municipal Judge Max Harrison of Blytheville -- admonition
for failing to pay attorney license fees, 1990-94.
Municipal Judge Scott Adams of Morrilton -- admonition
for failing to pay attorney's license fees, 1992-94.
1994
Circuit Judge H.A. Taylor of Pine Bluff -- admonition
for driving-while-intoxicated conviction.
Chancellor Charles Plunkett of Camden -- resigned during
commission investigation involved alleged alcohol abuse.
Circuit Judge John Plegge of Little Rock -- informal adjustment
for unreasonable delays in two cases.
1993
Municipal Judge Jack Lewis of Clinton -- admonition for
conflict of interest involving approving an arrest warrant for a defendant
in a civil lawsuit he filed.
Municipal Judge David Hale of Little Rock -- resigned
after federal indictments.
Small-claims referee Marcia Brinton of Fayetteville --
informal adjustment for the appearance of conflict of interest involving
two clients.
1992
Municipal Judge Joel C. Cole of North Little Rock -- censure
for hiring his girlfriend as a probation officer.
Municipal Judge Ray Hodnett of Barling -- admonition for
grabbing a defendant and using inappropriate language.
Municipal Judge William Watt of Little Rock -- admonition
for acting as witness, arresting official and judge in a case involving
two teen-agers.
1991
Chancellor Lee Munson of Little Rock -- admonition for
failure to pay property tax or for tags on a Chevrolet Blazer. (Munson
now is a Little Rock municipal judge.)
Municipal Judge Scott Adams of Morrilton -- admonition
for unreasonable delay in deciding a case.
Circuit/Chancery Judge Ted Capeheart of Ashdown -- admonition
for having an affair with an attorney.
1990
Municipal Judge William "Billy" Switzer of Crossett --
suspended with pay after indictment; returned to bench after charges were
dismissed.
Municipal Judge Paul Jackson of Berryville -- resigned
during an investigation on charges of DWI, showing preferential treatment
to two defendants and conflict of interest involving his private practice.
Circuit/Chancery Judge Terry Diggs of Hot Springs -- resigned
after pleading guilty to contributing to the delinquency of a minor.
Circuit Judge Francis Donovan of Conway -- admonitions
for arrogant, rude courtroom behavior and for inappropriate election statements.
The election statement admonition was withdrawn after Donovan won a federal
lawsuit challenging the state's rules governing judicial candidates.
Circuit Judge Tom Keith of Bentonville -- admonition for
unreasonable delay in deciding a case.
Chancellor Van B. Taylor of Dardanelle -- admonition after
being charged with driving while intoxicated
Private reprimands -- campaign violations; sexual misconduct
with court personnel; unreasonable delay in deciding a case.
(The Arkansas Supreme Court in May 1990 decided that the
Judicial Discipline and Disability Commission could no longer issue private
reprimands.)
This article was published on Sunday, May 4, 1997