Thursday, September 25, 2014

Judging the Judges

Judge Kopf wondered what others thought, then offered his own thoughts, on what to do about Mark Fuller, the U.S. District Judge who beat his wife.  I offered a response in a post (one I'm not altogether sure I agree with, but hey, that's the nature of ruminations) in which I mentioned a couple of local judges charged with serious misconduct.  One of them was Lance Mason who, because of the charges, is not currently hearing cases.

I was in the courthouse the other day, in a courtroom across from where Judge Mason sits and hears cases when he actually sits and hears cases.  I noticed that the doors to his courtroom were open, the lights on.  The plaque outside had his name illuminated.  His name plate was still on the bench. Nobody inside, of course.  Not open for business, though it sure looked like it was.

Yesterday, and one county over, Jim Burge, a trial court judge, was charged by a special grand jury with 12 counts of public corruption. (Story here and here, indictment here.)  Because some of the charges are felonies, Burge can't hear any cases until the case against him is resolved.  

Also yesterday, the Ohio Supreme Court issued a public reprimand to an appellate court judge, Colleen O'Toole, for misconduct while she was running for office while also declaring that one of the rules she was alleged to have violated was unconstitutional.  The thing about that unconstitutional rule?  It was promulgated by the Ohio Supreme Court.  Ooops.

Which brings me to the Garden State, New Jersey, where the supreme court heard oral argument Tuesday on what to do about Judges Raymond Redden and Gerald Keegan who had the bad judgment to attend "weekly church group dinners" with Anthony Ardis, "a close friend who happened to also be a public official recently indicted on corruption charges" (here, behind a paywall you can sometimes get past).

It's not that they actually did anything wrong.  Nobody suggests that.  It's that they had a friend who was indicted.  And with whom they broke bread.  Tracie Gelbstein, disciplinary counsel said as much to the court.
"To be clear, there was no actual impropriety," Gelbstein told the court. "They did not intend to violate the Code of Judicial Conduct. However, they created an appearance of impropriety."
. . .
Justice Barry Albin asked whether it would be improper for the judges and Ardis to walk into church together, sit in the same pew or speak to each other.
Gelbstein said the ACJC would look at the facts and make a determination.
Because Caesar's Wife.  Or something.

As I've discussed before (for instance, here), this whole appearance of impropriety thing is tricky.  It's a variation on the problem of the heckler's veto, preventing speech because someone might take umbrage.  (See all the discussion - too much to link to, but for a couple of instances try here and here - of the ill-conceived and blatantly unconstitutional revenge porn laws.) 

It is, of course, a problem, this thing about the public's perception.  As one judge asked, perhaps rhetorically, at that hearing Tuesday in New Jersey.
Appellate Division Judge Mary Catherine Cuff, temporarily assigned, asked whether judges, in regulating their behavior, had to subject themselves to the public's "lowest common denominator."
They must "accept some restraints" said Gelbstein who, you'll recall from just a bit up the page, is pursuing the charges against those judges who, he admits, didn't actually do anything wrong.

Of course, Scalia had no problem going duck hunting with his pal Dick Cheney while Cheney was a party to a case before him.  

That's the thing about the appearance of propriety.  It mean whatever you want it to mean.  So it means nothing.  Orwell would have understood.

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