| The Judiciary Commission
FREQUENTLY ASKED QUESTIONS
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WHAT IS THE JUDICIARY COMMISSION OF LOUISIANA?
The Judiciary Commission of Louisiana is a body created in 1968 to recommend discipline of judicial officers to the Louisiana Supreme Court. It is a separate constitutional body that acts under the authority of [La. Const. Art. V, § 25.]
WHO MAKES UP THE JUDICIARY COMMISSION OF LOUISIANA?
The Judiciary Commission is made up of nine members: three state judges, three attorneys (not judges or public officials), and three citizens (not judges, attorneys, or public officials). They are volunteers who serve four-year terms. [La. Const. Art. V, § 25.]
The nine Commission members are very diverse. They come from different backgrounds, practice areas and professions, and geographic parts of the state. [La. Const. Art. V, § 25.] They are selected by three very different groups: the judges by the Supreme Court; the attorneys by the Conference of Court of Appeal Judges; and the citizens by the Louisiana District Judges Association. Although the members bring multiple perspectives to meetings and deliberations, they cannot take action in small groups; Commission decisions require five votes. [Rules of the Judiciary Commission, Rule IX.]
WHAT DISCIPLINE CAN THE COMMISSION RECOMMEND?
The Commission can recommend three types of discipline for the Supreme Court to issue: (1) public censure, (2) suspension with or without pay, or (3) removal from office. [La. Const. Art. V, § 25.] If the Supreme Court decides to issue discipline, it will render a public written opinion.
CAN THE SUPREME COURT DISCIPLINE A JUDGE IF THE COMMISSION HAS NOT RECOMMENDED DISCIPLINE? CAN THE COMMISSION DISCIPLINE JUDGES WITHOUT THE SUPREME COURT?
NO. The Supreme Court cannot discipline a judge unless it first receives a recommendation from the Commission. The Commission has NO authority to issue discipline on its own; only the Supreme Court can do that. The Commission can only recommend discipline; it cannot issue discipline. The Commission was created by the Louisiana Constitution to review complaints against judges and to decide whether an investigation is needed, whether a hearing should be held, and whether a case should be referred to the Louisiana Supreme Court so that the Court may decide whether the judge should be disciplined for violating ethical rules contained in the Code of Judicial Conduct or the Louisiana Constitution.
The Commission is not a Committee or arm of the Supreme Court. It is a separate entity that works in conjunction with the Court on the issue of judicial discipline. The Commission is an independent “fact finder” regarding judiciary complaints. [La. Const. Art. V, § 25.]
WHERE DO MOST COMPLAINTS COME FROM?
The Commission receives most of its judicial complaints from individuals.
Most complaints come from individuals (usually in the form of a letter) who identify themselves. Many of the people filing complaints are laypersons who have appeared in the judge’s court or dealt with the judge in some way. However, some complaints are from lawyers, judges, or other individuals.
A complaint form is available on the Louisiana Supreme Court’s website at www.lasc.org under the tab “Judiciary Commission”.
WHAT INFORMATION DOES A COMPLAINT HAVE TO CONTAIN?
A complaint against a judge must be in writing and contain facts and allegations that if proven to be true show that the judge has engaged in unethical conduct and violated the Code of Judicial Conduct and/or the Louisiana Constitution. The complaint should also include any attachments or documents that support it. A complainant should keep a copy of the complaint and attachments. The Office of Special Counsel does not return copies or originals submitted to it by the complainant.
DOES IT COST ANYTHING TO FILE A COMPLAINT AGAINST A JUDGE?
NO. There is no cost to file a complaint against a judge.
However, complaints must be submitted in writing, must specify the misconduct or disability complained of, and should be signed by the complainant.
CAN THE COMMISSION CONSIDER ANONYMOUS COMPLAINTS?
Yes. The Office of Special Counsel reviews anonymous complaints under a heightened standard. The anonymous complaint must allege facts that can be checked or verified independently from the complaint. If it does, the Chair of the Commission must authorize the Office of Special Counsel to open a file and send an initial inquiry letter to the Respondent. [Rules of the Supreme Court, Rule XXIII, Section 3(a)(1) and (a)(2) and Rules of the Judiciary Commission, Rule III.]
CAN THE COMMISSION LOOK INTO POSSIBLE MISCONDUCT OF A JUDGE EVEN THOUGH NO COMPLAINT HAS BEEN FILED?
YES. The Commission can open a file on its own motion, even if no one has filed a complaint, if information about a judge is brought to the Commission’s attention through sources like news reports. [Rule XXIII, Section 3(a)(1) and Rules of the Judiciary Commission, Rule III.]
CAN THE COMMISSION CONSIDER COMPLAINTS SUBMITTED OVER THE PHONE?
NO. The Commission only considers written complaints. The Commission does not require a particular form for the complaint. However, a complaint form is available on the Supreme Court’s website for a complainant’s convenience. See www.lasc.org under the tab “Judiciary Commission.”
CAN COMPLAINTS BE SUBMITTED ONLINE?
NO. Although a complaint form is available on the Supreme Court’s website, it must be submitted by mail, by hand, or as a pdf attachment to an email, and should bear the complainant’s signature. If a complaint is emailed, it cannot contain attachments. The Commission cannot accept electronically a large number of documents as attachments to complaints. These must be submitted in paper format through the mail or by hand delivery.
HOW LONG DOES IT TAKE THE COMMISSION TO ACT ON A COMPLAINT?
The time needed to resolve a complaint differs for every complaint. If the Commission does not have jurisdiction over a complaint because it fails to allege sufficient facts or allegations to give rise to an issue of whether the Code of Judicial Conduct and/or the Louisiana Constitution was violated by the Respondent, it could be screened out within two to four months. However, if the Commission decides to conduct an investigation, and/or have a formal evidentiary hearing and then recommends discipline to the Supreme Court, resolution of a complaint could take nineteen to thirty-five months, depending upon how complicated the facts are and how many witnesses are involved. Below are the average estimates of time a complaint could spend at each stage of the proceeding:
STAGE 1 – Screening – 2-4 months
STAGE 2 – Inquiry – 3-6 months after the judge’s response is received
STAGE 3 – Investigation – 6-18 months
STAGE 4 – Hearing Before Hearing Officer – 6-12 months
STAGE 5 – Appearance Before the Commission – 3-9 months
STAGE 6 – Recommendation of Discipline to Supreme Court – 3-6 months.
IS THE COMMISSION REQUIRED TO CONDUCT AN INQUIRY INTO EVERY COMPLAINT FILED?
NO. The Commission does not have to conduct an inquiry into complaints when it does not have jurisdiction over the matter or if the complaint is frivolous.
The Special Counsel to the Commission screens every complaint to see if the Commission has jurisdiction. Examples of complaints that lack jurisdiction include complaints where (1) the complainant is dissatisfied with a judgment issued against him but does not allege any unethical conduct, (2) the complaint is against a non-judicial elected official, or (3) the complaint is against a federal judge.
The Commission gets a lot of complaints from people who are unhappy with a judge’s ruling. The Commission does not have jurisdiction because it does not have the power or authority to overturn a judge’s ruling; only a higher court could do that. If a complainant is unhappy with a judge’s ruling, he/she should talk to an attorney to learn about options for filing an appeal. Although the Commission normally does not have jurisdiction over complaints that simply criticize a judge’s official ruling or claims judicial error, it does have jurisdiction where the judge has (1) made a legal ruling or action that is contrary to clear and determined law, (2) about which there is no confusion or question as to its interpretation, and (3) the legal error was egregious, made in bad faith, or was part of a pattern and practice of legal error. [Rules of the Judiciary Commission, Rule V.]
WHAT HAPPENS TO COMPLAINTS IF THE COMMISSION DOES NOT HAVE JURISDICTION?
If the complaint doesn’t present any ethical issues or if the Commission does not have jurisdiction, it will be “screened out.” This means that a file is not opened at all. If a complaint is “screened out,” the Commission will notify the complainant; however, the judge is not contacted about it.
Last year, the Commission received over 500 complaints. Almost 70 percent of the complaints were “screened out,” meaning no action was taken on them. Because they were “screened out,” the judges were not notified that a complaint had been filed. [See 2016 Annual Report of the Louisiana Supreme Court.]
WHAT JUDICIAL OFFICERS DOES THE COMMISSION HAVE JURISDICTION OVER?
The Commission has jurisdiction over state elected judges as well as justices of the peace, officials serving on mayor’s courts, magistrate judges, commissioners, ad hoc and pro tempore judges, and hearing officers. Currently, Louisiana has approximately 365 active judges and 386 active justices of the peace. [Rule XXIII, Section 2(f).]
WHAT HAPPENS IF A COMPLAINT IS NOT SCREENED OUT?
If a complaint is not “screened out,” a file is opened. If a file is opened, the Office of Special Counsel to the Commission sends a copy of the complaint to the judge and gives the judge a chance to respond. [Rule XXIII, Section 3(a)(4).] The complaint and the judge’s response are then reviewed by the members of the Commission. In some cases, the file may be closed without a formal investigation, based on the judge’s response to the complaint. In other cases, an investigation may be conducted to get more information about what happened. [Rules of the Judiciary Commission, Rule VI.] Most complaints are resolved without being sent to the Supreme Court. Sometimes the file will just be closed, and sometimes it may be closed with a reminder, a caution, or admonishment to the judge to call certain canons to the judge’s attention. [Rule XXIII, Section 3(d).]
In a small number of cases, a formal hearing may be held before a hearing officer to give the Office of Special Counsel and the judge a chance to call witnesses and present other evidence to help the Commission decide whether the case should be referred to the Supreme Court. The hearings are confidential but a transcript of the hearing could become public if the case is sent to the Supreme Court. [Rule XXIII, Sections 4 and 29 and Rules of the Judiciary Commission, Rules VII and VIII.]
WILL A COMPLAINANT RECEIVE NOTIFICATION REGARDING THE COMMISSION’S ACTION ON THE COMPLAINT?
YES, to an extent. A complainant will be notified by the Commission if a complaint is screened out, closed, or referred to the Supreme Court with a recommendation that a judge be disciplined. Because Commission proceedings are confidential, if a complaint is closed with a reminder, caution, or admonishment, or if the Commission enters into a Deferred Recommendation of Discipline Agreement with a judge, the complainant will be notified that the Commission has taken appropriate action, but will not be informed as to what action the Commission took. [See Rules of the Judiciary Commission, Rules IV and V; see also La. Const. Art. V and Rule XXIII, Sections 23 and 31.]
CAN A PERSON APPEAL IF HE OR SHE DISAGREES WITH THE COMMISSION’S DECISION TO SCREEN OUT A COMPLAINT?
YES. If a complainant is dissatisfied with Special Counsel’s screening decision that the matter is not within the Commission’s jurisdiction, he or she can submit a written appeal in which he or she states why he or she believes the screen-out decision was incorrect. If appealed, the complaint will be presented to the full Commission for consideration. The decision made by the Commission concerning the appeal is final. [Rules of the Judiciary Commission, Rule IV.] There is no rule or law that provides for further review of the Commission’s decision to affirm a screen-out decision. It is highly recommended that the complainant submit his or her request for appeal of a screen-out decision as soon as possible.
CAN THE COMMISSION RESOLVE COMPLAINTS WITHOUT SENDING THEM TO THE SUPREME COURT?
YES. The Commission can resolve a complaint without recommending discipline to the Court. It can close the file with a reminder, or a caution or admonishment with the judge’s consent. Files closed with reminders, cautions, and admonishments are NOT discipline. These closures help to resolve the complaints quickly when the facts show that further proceedings are not warranted. These closures also help the judge to avoid conduct or practices that could cause future ethical violations. [Rule XXIII, Sections 3(d) and 3(e).]
The Commission can also resolve a complaint by entering into an agreement with the judge to defer recommending discipline to the Supreme Court if the judge agrees to admit that his or her conduct was a violation and if he or she agrees to do certain things to show he or she will not repeat the conduct. This is called a Deferred Recommendation of Discipline Agreement (DRDA). [Rule XXIII, Section 31.]
CAN A PERSON APPEAL IF HE OR SHE DISAGREES WITH THE COMMISSION’S DECISION TO CLOSE A COMPLAINT THAT WAS OPENED?
NO. If a complainant is dissatisfied with the Commission’s decision to close a complaint after a file was opened, regardless of when the closure occurs (i.e., after preliminary inquiry, investigation, or hearing), there is nothing more he or she can do to pursue the complaint. The Commission’s decision to close a complaint without making a recommendation of discipline to the Supreme Court is final, and a complainant does not have a right to appeal the Commission’s decision to the Louisiana Supreme Court or any other entity. There is no rule or law that provides for further review of the Commission’s decision to close a file. However, if the complainant has any new allegations of misconduct against the judge that were not contained in the original complaint, he or she may file a new complaint with the Office of Special Counsel. Rule XXIII, Section 3(c).]
WHAT WILL THE COMMISSION DO IF A COMPLAINANT IS UNHAPPY WITH THE COMMISSION’S DECISION AND RE-SUBMITS THE SAME COMPLAINT ABOUT THE SAME JUDGE OR CALLS COMMISSION STAFF MULTIPLE TIMES TO DISCUSS THE MATTER?
The Commission will write to a complainant that his or her complaint has been closed or resolved. If the person remains unhappy and re-submits the complaint or calls Commission staff multiple times about the matter, the Commission will determine whether the person’s communications or complaints are repetitive, vexatious, threatening, or abusive. Commission staff is not required to respond to repetitive, vexatious, threatening, or abusive communications or complaints, and those types of communications or complaints will be handled according to the Commission’s internal policies. [Rules of the Judiciary Commission, Rule V.]
CAN ANYONE FIND OUT ABOUT OR DISCUSS THE COMPLAINTS FILED AGAINST JUDGES?
NO. Under the Louisiana Constitution and by Supreme Court rule, complaints, information submitted to the Commission, and Commission proceedings are confidential. The complainant, judge, Commission members and its staff are not allowed to discuss the proceedings, unless (1) an exception exists, (2) the Supreme Court grants permission, or (3) the matter is sent to the Supreme Court with a recommendation of discipline. [La. Const. Art. V, § 25; Rule XXIII, Section 23].
Confidentiality is instrumental to Commission work and proceedings. Unless a case is sent to the Supreme Court, all documents filed with the Judiciary Commission and evidence and proceedings before the Judiciary Commission are confidential. A complaint can become public if the Commission files a recommendation with the Louisiana Supreme Court that a judge be disciplined. That doesn’t happen very often, but it does happen in the most serious cases. The Supreme Court has held that the confidentiality rule cannot be waived by the judge because it protects other things besides the judge’s privacy rights (such as complainants, witnesses, and the integrity of the investigatory process).
While the confidentiality rule does not allow a complainant or the judge to disclose to anyone the fact that a complaint has been filed with the Commission or the action taken on the complaint, the complainant or judge may disclose and discuss the underlying events of the complaint.
IF A COMPLAINANT IS SUBPOENAED AS A WITNESS IN A NON-COMMISSION PROCEEDING AND ASKED ABOUT THE COMMISSION PROCEEDINGS, CAN HE OR SHE DISCLOSE INFORMATION ABOUT THE COMPLAINT OR PROCEEDINGS?
NO. A complainant (regardless of whether he or she is a judge, attorney, or layperson) is not permitted to disclose to anyone, including the media or counsel in litigation, that he or she has filed a complaint. Complaints, information submitted to the Commission, and Commission proceedings are confidential. [La. Const. Art. V, § 25; Rule XXIII, Section 23.] Although these provisions do not allow a complainant to disclose to anyone the fact that he or she filed a complaint with the Commission or the action taken on the complaint, he or she may disclose and discuss the underlying events that led to the filing of the complaint.
If a complainant is asked directly during non-Commission proceedings, such as a deposition or trial, whether he or she has filed a complaint, an appropriate response would be that the question cannot be answered because to do so in any way would violate the state constitution and Louisiana Supreme Court rule. The complainant should make an objection based on confidentiality. If a subpoena duces tecum is filed to request documents related to a judicial disciplinary complaint, the complainant should object to or attempt to quash the request. If a motion to compel is filed, an objection should be filed. If a court later issues an order requiring a complainant to comply, he or she would only be obligated to turn over what he or she has in his or her possession and would not be obligated to get anything else from anyone else, including the Commission.
CAN ANYONE ATTEND THE EVIDENTIARY HEARING REGARDING THE COMPLAINT?
NO. The evidentiary hearing is closed to the public. The hearing is attended by the judge and his attorney, Special Counsel and assistant special counsel, the hearing officer, Hearing Officer Counsel and staff, and witnesses to the proceeding.
WHO STAFFS THE JUDICIARY COMMISSION OF LOUISIANA?
Staff to the Judiciary Commission of Louisiana includes a Commission Counsel, an Assistant Commission Counsel, a Special Counsel, several Assistant Special Counsels, a Chief Executive Officer, and various support staff. [Rules of the Judiciary Commission, Rule XI.]
Approved by the Commission during its meeting September 23, 2016.
NOTE: To the extent that any of these Frequently Asked Questions conflict with Louisiana Supreme Court Rule XXIII, Rule XXIII shall be controlling. Similarly, to the extent that any Frequently Asked Questions conflict with the Rules of the Judiciary Commission, the Rules of the Judiciary Commission shall be controlling.