Trina S. Vincent
| SEPTEMBER 6, 2019
FOR IMMEDIATE RELEASE
Today, the Louisiana Supreme Court announced that, after extensive study, review, solicitation of comments, and further deliberations, it voted unanimously to adopt several proposed revisions to Louisiana Supreme Court Rule XXIII concerning confidentiality of proceedings before the Judiciary Commission of Louisiana and other issues. Commented Chief Justice Bernette Joshua Johnson, “Our rules should protect the integrity of the judicial discipline process while insuring public trust and confidence, and I believe these rule revisions accomplish that goal.”
In an effort to balance the competing interests of confidentiality to preserve the integrity of judicial discipline proceedings and a complainant’s right to freedom of speech, the rule revisions provide that complainants, respondent judges, and witnesses in Commission proceedings may disclose and discuss the proceedings either once the Commission closes a file or once a Notice of Hearing is filed. Revised Rule XXIII, Section 23 (a)(1) specifically provides in part:
Nothing in this rule prohibits the respondent judge or anyone other than a Commission member or a member of the Commission staff before the filing of a Recommendation of Discipline in the Supreme Court from making statements regarding the underlying facts or events that are the subject of a complaint filed with the Commission or a proceeding before the Commission. Moreover, once the Commission closes a file or files a notice of hearing, nothing in this rule shall prevent a complainant, respondent, or testifying witness in a Commission proceeding from disclosing or discussing the proceedings, subject to the right of the hearing officer or the Commission to issue an order in accordance with Section 8(d) of this rule. From the time a complaint is filed throughout the investigatory stage of the proceedings, complainants, respondents, and witnesses may not disclose or discuss the fact that a complaint was filed, the fact that testimony was given pursuant to Commission proceedings, or any information learned as a result of participating in such proceedings. All documents and evidence remain confidential if the Commission does not file a matter with the Supreme Court.
Additional rule revisions set forth in the Order amend the handling of anonymous complaints and media reports to ensure their further review if they are initially screened out; impose a requirement to handle certain matters on an expedited basis, such as cases involving interim disqualifications; clarify the procedural rules when jurisdiction is shared with the Office of Disciplinary Counsel, such as when the respondent judge is a part-time judge who also practices law; allow for removal of Commission members under certain circumstances; and included some stylistic changes.
The revisions are effective immediately. A copy of the Court’s Order can be found at www.lasc.org.
Judiciary Commission Chair Philip Sherman welcomed the Court’s action, especially concerning the revision to the confidentiality rule. He spoke about the benefits of limited confidentiality of judicial discipline proceedings. “All fifty states require confidentiality during the judicial discipline process at some stage, and for good reason. The notion that confidentiality protects only judges is simply not true. Confidentiality primarily protects complainants and witnesses, who may otherwise be reluctant to come forward for fear of public scrutiny, retaliation, or recrimination. Without such confidentiality, instances of judicial misconduct would no doubt go unreported, to the serious detriment of the public.
“Further, confidentiality is not absolute. The confidentiality rules have never prohibited anyone at any time from discussing the underlying facts or events that are the subject of a complaint. Anyone at any time can speak about misconduct that they observe on the part of a judge.”
Sherman also spoke about the private resolution of some judicial discipline matters, acknowledging that the Commission does not have the authority to mete out discipline, and can only recommend discipline to be ordered by the Supreme Court. While not constituting discipline, the use of private counseling letters can be advantageous for resolving some complaints expeditiously. “Louisiana is in step with the vast majority of states which sometimes issue confidential counseling letters to judges. There is an undeniable benefit in the ability of a disciplinary body to privately warn those who appear before it to change problematic, but not yet serious or egregious, behavior. The use of such private counseling letters results in better- informed and better-educated judges, which clearly benefits the public appearing before such judges. Further, it needs to be remembered that counseling letters and deferred disciplinary agreements do in fact become public when and if a judge commits misconduct that warrants a recommendation of public discipline to the Louisiana Supreme Court, and are considered in determining the appropriate sanction. If, however, a judge never commits misconduct that warrants a recommendation of public discipline, then obviously the Commission’s efforts to rectify that judge’s previous behavior were successful, and the judge is serving the public in a competent and professional manner.”
For more information on the judicial discipline process in Louisiana, please visit http://www.lasc.org/la_judicial_entities/JCL_FAQ.asp.
For more information on how other states handle private resolutions of judicial complaints, please visit https://ncscjudicialethicsblog.org/category/sanctions/.