White Paper: State Judicial Conduct Commissions—The Challenge of Judging Judges

Bryna Godar, Staff Attorney

Published: July 10, 2024
Updated: July 30, 2024
Link to PDF

Introduction

This report analyzes an often-overlooked set of state entities that hold substantial power: judicial conduct commissions.[1] These entities, which exist in every state, are primarily designed to protect the public from judicial misconduct and have broad authority to investigate and sanction state judges.[2] As state courts gain increasing attention,[3] the public and scholars should likewise attend to the entities that oversee them.

Today, judicial conduct commissions sit at the intersection of two important trends. On the one hand, the public has become ever more aware of the need for meaningful judicial ethics requirements and enforcement, especially after high-profile controversies involving the U.S. Supreme Court.[4] On the other hand, in some states, judicial conduct commissions have been quietly weaponized, part of a broader pattern of state legislatures or partisan actors attempting to exert control over state courts.[5] Understanding the dynamics of these commissions—and considering how to provide meaningful checks on misconduct while limiting weaponization—is an important project for state public law.

Established from 1960 to 1989,[6] state judicial conduct commissions arose out of concerns about corruption, bias, and other misconduct in the courts.[7] Illinois, for example, established its commission after a scandal in which two state supreme court justices acquired shares in a Chicago bank right before deciding a case in favor of one of the bank’s executives.[8] The disciplinary system in place at the time was housed within the state supreme court and headed by one of the justices under scrutiny.[9] In response to public pressure, the state supreme court appointed a temporary independent commission to investigate.[10] (John Paul Stevens served as the commission’s chief counsel, a role that helped launch his rise to prominence and the U.S. Supreme Court.[11]) The investigation ultimately resulted in the resignation of both justices[12] and the adoption of an independent judicial conduct commission in the 1970 constitution.[13]

According to several scholars, the rapid adoption of these commissions largely occurred because “conditions were right”—“California provided a model structure and procedure (1960), the [American Bar Association] provided a model code to be enforced (1972), scandals involving public officials at the state and federal levels provided a post-Watergate, ethics in government mood, unified bar associations in key states provided the impetus, and the [American Judicature Society] citizens’ conferences provided the catalyst.”[14] These “citizens’ conferences” were held throughout the country during this time period with the aim of “mobiliz[ing] … the lay public in behalf of better administration of justice.”[15] At many of the conferences, participants discussed creation of judicial conduct commissions.[16]

Decades later, views on the work of these commissions are mixed. Some see them as overzealous “kangaroo courts” engaging in unfounded investigations of judges;[17] some view them as “toothless tigers” that fail to hold judges sufficiently accountable;[18] and others have a more positive view, casting them as effective watchdogs that may occasionally make missteps but generally function well.[19] The most common recent scholarly and public critiques fall within the second category: that commissions are overly opaque and lenient, shielding judges from meaningful accountability for their actions.[20] In one example, a Reuters investigation highlighted an incident in which three Indiana judges attending a conference in 2019 “got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot.”[21] The judges all returned to the bench after 30- to 60-day suspensions.[22] In another, an Alabama judge returned to the bench after an 11-month suspension for unlawfully jailing hundreds of people who could not afford to pay fines, sometimes for months or more than a year.[23] Activists argued he never should have been allowed to continue judging.[24]

But in recent years, another concern has come to the forefront: the use of commissions to launch political or personal attacks on judges or influence outcomes in state courts. Although maintaining the independence of the judiciary has been a through-line in the design and discussion of these commissions since their inception,[25] partisan actors and legislatures in recent years have sought to consolidate their own power over commissions in ways that could compromise that independence. Since 2016, legislatures in at least eight states have proposed or enacted changes that alter the balance of power on these commissions, with several significantly increasing the role of the legislature in selecting and approving commission members.[26] Some of these changes have directly followed political disagreements between the legislative and judicial branches.[27] Some have spurred concerns about judges themselves weaponizing the process against other judges.[28] And in some states, legislatures or governors have utilized existing control over appointments to effectively fire commission members with whom they may disagree.[29]

Meanwhile, judicial conduct commissions in many states are seeing increasing numbers of complaints.[30] Of the 39 states with complaint data readily available, 27 saw an increase in complaint numbers from 2019 to 2022, with 17 experiencing an increase of at least 20 percent.[31] The largest increases were in Minnesota, which had a more than four-fold increase in complaints, and Georgia, which saw more than double the complaints.[32] Some experts and commission staff have suggested the increases reflect diminishing trust in the judicial system, pointing to surveys showing decreased national confidence in state courts as well as a “political edge” to the nature of complaints.[33] Others have instead pointed to the pandemic and its impact on the courts, including increased caseloads in the wake of court closures and parties’ frustration with delays.[34] Whatever the reason, many states have continued to see increases in complaint numbers into 2023. Of the 24 states that have reported 2023 data so far, 17 continued to see increases, ranging from 4 to 84 percent increases over 2022.[35]

In light of these recent developments, this white paper aims to shed light on the ways in which legislatures are seeking to quietly weaponize these commissions and provide recommendations for how best to balance judicial independence with judicial accountability. Part I provides an overview of judicial conduct commissions and how they work in different states. It offers a series of design variables that shape each commission’s power, process, and incentives. Part II turns to recent headline disputes and legislative efforts in this area that highlight the potential for weaponization. Part III then discusses mechanisms that can be used to guard against weaponization and provides recommendations for best practices where appropriate. Although there is likely no set of safeguards that will fully protect against manipulation, there are certain best practices states can employ to erect hurdles to political weaponization and/or reduce the negative fallout when commissions are used to target judges improperly.

I. State judicial conduct commission models and overview

To better understand judicial conduct commissions—and their likelihood for performing well and avoiding cooptation—it is important to begin with their design. Judicial conduct commissions typically consist of judges, lawyers, and non-lawyers (so-called “public members”). Commission members are selected and appointed by a range of actors, including the courts, the governor, the state bar, the legislature, and other entities. The commissions screen complaints, investigate allegations of judicial misconduct, and, if necessary, hold hearings. In many states, a single commission conducts all of these steps, while others split these actions between multiple commissions. If a commission concludes that a judge has engaged in misconduct, it either issues a decision and disciplinary action itself or recommends discipline to the state supreme court. The state supreme court then typically takes final action on commission proceedings and decisions, either imposing sanctions itself or reviewing the commission’s disciplinary decision.

Within this basic structure, there are significant differences between the states that can impact the independence and effectiveness of commissions. This Part first explains how commissions are established and who their members are. It then turns to the commission process, from complaint to sanction.

A. Commission composition and establishment

This section provides an overview of how commissions have been established in state law, who sits on these commissions, and how those members are appointed.

i. Establishing authority

Most judicial commissions are created by state constitutions—25 states have constitutionally created commissions.[36] In another nine states, the constitution directs or allows the legislature to create a commission, and the commission is ultimately created by a statute.[37] The specificity of constitutional provisions in these states varies significantly, with some outlining membership and commission procedures while others provide little to no detail, thereby leaving the design decisions to the legislature.[38]

Eight states and Washington, D.C., meanwhile have commissions created solely by statute.[39] And nine states have commissions primarily created by court rules.[40] (Oklahoma has one judicial conduct body created by statute, two created by its constitution, and additional procedures via court rules for misconduct that does not warrant removal.[41])

ii. Membership

The bulk of judicial conduct commissions are similarly sized—30 states have commissions with 7, 9, or 11 members.[42] The largest body, with 28 members, is Ohio’s Board of Professional Conduct.[43] The smallest, at three members, is the Council of Judicial Complaints in Oklahoma.[44]

Commission members are almost exclusively judges, non-judge attorneys, and so-called “public members,” who are neither judges nor attorneys.[45] The inclusion of these three groups is meant to enhance public confidence in the process and provide a range of perspectives from within the legal system and from the broader community.[46] In particular, “[t]he inclusion of nonlawyers … has generally been viewed as a necessary means of keeping the commissions from becoming overly protective of judges charged with misconduct.”[47] Public members are typically civically engaged individuals, such as non-profit or business leaders, former local or state government officials, and public employees, like teachers.[48]

Only three states omit one of these three categories—Hawaii’s commission does not include any judges;[49] West Virginia’s does not include any attorney members;[50] and North Carolina’s does not require any attorney members, but public members can be attorneys or non-attorneys.[51] Similarly, only a few states include members outside these three types. New Hampshire includes an active or retired clerk of court;[52] Utah includes two state house members and two state senators;[53] and West Virginia includes a seat for a “mental hygiene commissioner, juvenile referee, special commissioner, special master, or former state or federal judge or justice.”[54]

For a comprehensive breakdown of state-by-state membership and appointment, see the graphic in the attached appendix.

iii. Appointment

Appointment practices vary widely between the states. Members are typically appointed by some combination of the supreme court, governor, state bar association, legislators, and other judges or judges’ associations. Gubernatorial appointments in some states are also subject to confirmation or approval by one or both houses of the state legislature.

Most states use some combination of appointment methods. Often, public members are appointed by the governor, attorneys by the state bar, and judges by the supreme court or other groups of judges. The following is a broad categorization of state appointment methods, with borderline cases noted in the footnotes:

  • In twenty-four states and Washington, D.C., no single appointment method is used for a majority of commission members.[55] For example, in Nevada, the supreme court appoints two district judges, the state bar appoints two attorneys, and the governor appoints three public members. However, in two of these states—Georgia and Montana—the senate has final confirmation power over every seat. And in Texas, the senate has confirmation power over 11 of 13 seats.
  • In ten states, one appointment method is used for a majority (but not all) of the seats on the commission.[56] In five of these, a single branch (either the supreme court or the governor) has majority appointment power.[57] In the other five, the governor appoints a majority of the seats with some form of legislative approval or confirmation, thereby sharing appointment power between the executive and legislative branches.[58]
  • Fourteen states have a single appointment method for every commission member.[59] This approach is most common in states with commissions created by the state’s highest court. Of the nine states with court-created commissions, seven provide for appointment solely by that court.[60] In several other states, members are appointed entirely by the governor with legislative approval (Connecticut[61] and Maryland[62]); entirely by the chief justice with supreme court concurrence (Delaware[63]); or entirely by the legislature (Virginia[64]). In the remaining three states (Maine, Minnesota, and Mississippi), one entity has the power to appoint members to every seat, but some of the appointments are made on recommendation of or with approval of various other bodies. In Mississippi, for example, all commission members are appointed by the chief justice, but the appointments are made on recommendation of various other bodies, including the state bar, governor, house speaker, and lieutenant governor.[65]
  • The remaining two states don’t fit neatly into these categories. In Louisiana, various groups of judges appoint each of the seats, giving the judiciary as a whole total control, but the appointments are evenly split between the supreme court, court of appeals judges, and district court judges. And in Oklahoma, two of the state’s judicial conduct bodies have a majority of district judge members who are selected by being the most senior judges in service under 60 (for the trial body) or 65 (for the appellate body). This appointment by virtue of age and office differs from appointment methods employed by other states.

As discussed further in Parts II and III, the establishment, membership, and appointment mechanisms outlined in this section can significantly impact the independence and effectiveness of judicial conduct commissions.

B. Commission process

This section turns from commission establishment and membership to the processes deployed for uncovering and addressing judicial misconduct. It begins with the jurisdiction of commissions and the filing of complaints from the public, then walks through the investigation and hearing phases, enforcement and sanctions, state supreme court involvement, and confidentiality throughout the process.

i. Complaints and jurisdiction

Commissions intentionally cast a wide net for complaints. At least 17 states explicitly allow for anonymous complaints,[66] and almost all states allow the commission to initiate its own proceedings based on any information, which can include anonymous reports.[67] Some states also provide immunity for complainants from lawsuits (such as defamation claims) based on their complaint.[68] Many state commissions receive hundreds of complaints every year, with a few large states (California, New York, and Texas) regularly exceeding one thousand.[69] The vast majority of these do not allege issues that fall under the jurisdiction of judicial conduct commissions. Commissions’ purviews vary state to state, but grounds for discipline “frequently include willful misconduct in office, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, persistent failure to perform judicial duties, habitual intemperance, and conviction of a crime.”[70]

Many complaints are dismissed at the outset for one of three reasons: (1) they treat the commission as an appeals court, taking issue with the outcome of a case instead of the judge’s conduct itself; (2) they allege conduct that, even if true, would not amount to misconduct—such as a judge declining to engage in ex parte communications with a party; or (3) they allege misconduct by an attorney or other person who does not fall within the commission’s purview.[71]

As one state example, the Pennsylvania judicial conduct commission resolved 796 matters in 2023.[72] Of these, 342 were dismissed after an initial inquiry as unfounded or alleging facts that, even if true, would not amount to judicial misconduct; 381 presented claims of legal error rather than judicial misconduct (or fell outside the commission’s four-year statute of limitations); and 17 were not opened because the commission did not have jurisdiction over the official against whom the complaint was filed (such as attorneys or federal judges).[73] In sum, only 56 complaints, or 7 percent of those resolved in 2023, survived these initial screening criteria. These levels of dismissals are generally consistent with numbers in other states.[74]

ii. Investigation and hearing

If a complaint makes it past this initial screening phase, the commission then opens an investigation. After an investigation, a complaint is typically either dismissed outright, dismissed with an expression of concern to the judge, or furthered to the hearing phase. States diverge significantly on how they handle the investigation and hearing phases, opting for either a single-body model, a single-body/two-panel model, or a multi-body model.

In the single-body model, which has been adopted by 33 states and Washington, D.C., a single judicial conduct commission handles the bulk of the disciplinary process—it investigates allegations of judicial misconduct, holds hearings to determine whether the judge engaged in misconduct, and issues decisions and disciplinary recommendations or sanctions.[75] In these states, the same body acts as both the prosecutor and the decisionmaker (typically subject to state supreme court review, as discussed further below).

In contrast, the other two models divide the investigatory and decision-making processes between multiple panels or bodies. Nine states use a single-body/two-panel model in which a single commission splits itself into separate investigatory and hearing panels.[76] Another eight states instead have multiple bodies, one to investigate and one to conduct the hearing.[77] (Colorado voters will consider a constitutional amendment in 2024 that could make it the ninth state to employ this model.[78])

iii. Enforcement/sanctions

If a commission ultimately concludes sanctions are warranted, there are a wide range of private or public dispositions available. Private dispositions include actions like a warning letter, a private reprimand, or a deferred discipline agreement that conditions dismissal of the complaint on training or a certain period without misconduct.[79] Public dispositions meanwhile include public reprimand, lawyer discipline, fines, and suspension or removal from office.[80]

Many commissions have the independent authority to impose private dispositions, but only some have the authority to impose public sanctions. Others must instead recommend public sanctions to the state supreme court, which determines whether to impose them.

iv. Supreme court involvement

Nearly every state provides for extensive state supreme court involvement in the public sanctioning process, either via supreme court review if the judge seeks it or by allowing the supreme court to determine whether to impose sanctions in the first place.

In handling public sanctions:

  • Nine states allow the commission to directly impose public sanctions,[81] which are then subject to supreme court review in seven of those states. (Delaware and Illinois are the two exceptions, although Delaware’s commission includes all the state supreme court justices and Illinois’s includes one justice.[82]) Washington, D.C., also allows the commission to directly impose public sanctions.
  • In 29 states, the commission cannot impose public sanctions directly; it instead recommends sanctions to the supreme court, which makes the ultimate determination.[83]
  • Twelve have a blended approach in which the commission can impose some public sanctions, like a public reprimand, but can only recommend more severe ones, such as removal or suspension, to the state supreme court.[84]

Some states create an alternate review body when a state supreme court justice is charged with misconduct.[85] The alternate body typically consists of appellate or trial court judges and keeps justices sitting on the same court from being required to sit in judgment of each other.[86] It also avoids issues with a lack of quorum due to recusals—for example, in a 2012 Wisconsin judicial conduct case charging then-Justice David Prosser with judicial misconduct for allegedly putting his hands around fellow Justice Anne Walsh Bradley’s neck, nearly every justice recused themselves, leaving the court without a quorum to rule on the case.[87]

v. Confidentiality

As a final note about process, every state maintains confidentiality up to a point. All states provide for confidentiality during the investigation phase. Confidentiality only ceases if the commission decides to prosecute the case and, in some states, only if discipline is ultimately imposed. In 34 states, proceedings become public before the fact-finding hearing (either when charges are filed, after service on the judge, or at some point after filing charges but before the hearing).[88] In 16 states, the fact-finding hearing is confidential, and proceedings only become public if and when a recommendation for public discipline is filed (in 12 states[89]) or after the court orders public discipline (in four states and Washington, D.C.[90]).

States also vary in the degree of confidentiality and who is bound by it.[91] In some, it only binds commission members and staff.[92] In others, it also binds the complainant, the judge, witnesses, and anyone else involved in the proceeding.[93] The U.S. Supreme Court has held that states cannot criminalize the publication of truthful information about investigations by third parties or “strangers” to the investigation, such as a newspaper,[94] and courts have divided on whether the prohibition on complainant disclosure is consistent with the First Amendment.[95] Many states also have various exceptions to confidentiality, such as for disclosure to judicial nomination and attorney discipline entities, to address a threat to someone’s safety, or if the judge waives confidentiality.[96] In many states, dismissed complaints also remain confidential (although courts have held that states cannot bar complainants from disclosing the complaint after it is dismissed).[97]

* * *

In sum, there are both widespread similarities and key essential differences in how states have chosen to structure their judicial conduct commissions. Policymakers can leverage these design decisions to enhance commission effectiveness and promote judicial accountability or to erode judicial independence and further political ends. Part II turns to recent developments in this arena, providing illustrations of the ways in which commissions can be weaponized and outlining recent legislative reform efforts.

II. Recent developments

In recent years, judicial conduct commissions have become a flashpoint in disputes over state courts. Politicians have removed commissioners in the wake of political disagreements; commissions have opened investigations into justices based on questionable grounds; and legislators have sought to increase their own control over commission appointment methods in ways that could undermine commission independence. Many of these moves fit within a growing national trend of partisan actors and legislators seeking to increase their control over state courts as a whole.[98] However, not every change in recent years falls within this trend—some changes, such as those in Colorado, instead may ultimately enhance both the accountability of the judiciary and the independence of commissions.

This part provides an overview of these recent developments, underscoring the importance of paying attention to the design and work of these commissions. The first section briefly discusses several headline disputes that illustrate the power judicial conduct commissions—and those that control those commissions—can exert over judges. The second turns to legislative reform efforts, surveying eight states where legislatures have proposed or enacted changes to commission appointment methods and membership since 2016.

A. Recent disputes over judicial conduct commissions

To understand the power of judicial conduct commissions, it is useful to examine a few recent disputes over their actions. These examples illustrate the ways commissions and those with power over them can influence the judiciary. Appointers can select who sits on commissions and pressure or remove commissioners who disagree with them; commission investigations can chill valid judicial speech or intimidate judges; and, at the most extreme, commissions have the potential to change the makeup of courts via suspensions, removals, or determinations that a judge must recuse or face consequences.

First, those with power to appoint judges can choose commissioners aligned with their beliefs or political aims, pressure commissioners to take certain actions, and, in some instances, remove commissioners who go against their wishes. In Texas, for example, Governor Greg Abbott pulled two of his appointees from consideration after they had served on the commission for nine months but before they were confirmed, effectively firing them without the need to demonstrate cause for removal.[99] The ex-commissioners told reporters that they believed Governor Abbott had removed them because he disagreed with how they had handled a case involving same-sex marriage.[100] Both had voted to issue a warning to a Texas judge who refused to officiate same-sex marriages but was officiating opposite-sex marriages.[101] Governor Abbott’s staff called each of the commissioners in for meetings and later let them know that the governor had “decided to go in a different direction” with his appointments.[102] According to a recording of one of the meetings, a staffer asked one commissioner, “What are you using to gauge what you think the governor would want you to be doing? Because I’m not sure we’ve given you those tools yet, and that’s what I think our concern is.”[103] A spokesman for Governor Abbott said that all appointment decisions “are made based solely on merit.”[104] Regardless of the actual reason for removing the appointees, this process of appointment followed by removal underscores the power appointers can have by selecting who makes up the commission in the first place and sometimes by removing commissioners well into their terms of service.

Second, commission investigations can chill valid speech or intimidate judges, even where the commission ultimately concludes the judge did not engage in misconduct. For example, in a lawsuit alleging violations of her First Amendment rights, North Carolina Supreme Court Justice Anita Earls claimed that the North Carolina commission’s investigation into her prior comments on implicit bias and a lack of diversity in the judiciary[105] had chilled further speech from her on the issue.[106] The commission ultimately dropped the investigation, and Justice Earls voluntarily dismissed the lawsuit.[107] Similarly, Wisconsin Supreme Court Justice Jill Karofsky and others have criticized Wisconsin’s commission for taking a year and a half to ultimately dismiss a complaint against Justice Karofsky for comments she made at oral argument regarding a 2020 challenge to Wisconsin’s presidential election results.[108] She characterized the complaint as “an attempt to silence” her and expressed concern that similar efforts may chill other jurists’ speech.[109]

Lastly, at the most extreme, commissions have the potential to change the makeup of courts via suspensions, removals, or determinations that a judge must recuse or face consequences. Given the involvement of state supreme courts outlined in section I.B, it is unlikely for complete removal or suspension to occur without review by the state supreme court or at least some members of it. But in states where the supreme court itself has become highly polarized, this is not a complete safeguard against partisan abuse of this system.[110] Recent disputes in Wisconsin highlight the possible role of judicial conduct commissions in impacting court makeup and recusals. In the wake of Wisconsin Supreme Court Justice Janet Protasiewicz’s election to the court in April 2023, Republican legislators called for her recusal from a case challenging the state’s legislative maps, which were widely seen as favoring Republicans.[111] The calls for recusal were based on Justice Protasiewicz’s campaign receiving funding from the Democratic Party as well as comments she made while campaigning calling the current maps “unfair” and “rigged.”[112] Wisconsin’s judicial conduct commission considered several complaints against her regarding this issue and dismissed them without action.[113] Amidst this conflict, Republican senators called for confirmation hearings for the five unconfirmed members of the commission, who had all occupied the position for more than a year.[114] Senators questioned commissioners on how they would handle recusals and campaign comments similar to those of Protasiewicz, structuring hypotheticals with similar facts without referring explicitly to the complaints against her.[115] The senate ultimately voted against confirmation for four of the commission appointees, effectively firing them.[116] Although this scenario ultimately did not affect the makeup of the court, it illustrates a core tension in executive or legislative control over judicial commissions: the governor and legislature often have a significant stake in the outcome of state court proceedings, creating possible incentives to sway court makeup or recusals to their advantage.

B. Recent legislative efforts

Having outlined examples of the power judicial conduct commissions wield, this section turns to recent legislative efforts to change control over judicial conduct commissions. In recent years, legislators in at least eight states have proposed or enacted changes to commission appointment methods, with some of the changes raising concerns about the independence of commissions from partisan or political influence.

Some changes have required constitutional amendments, while others have been enacted via statute. In Texas and Arizona, the proposed constitutional amendments failed to pass the legislature. Each would have removed the state bar’s role in appointments and increased the number of appointments made by the governor with senate approval.[117] In the other six states, legislatures have successfully enacted reforms via statute and/or constitutional amendments. Among these is Colorado, where some changes to the commission have already been enacted by statute and voters are slated to take up an amendment with changes to commission appointment methods in November 2024.

The following four states enacted reforms entirely via statute:

  • In Montana, the constitution outlines the commission’s composition but tasks the legislature with determining the appointment method.[118] From the commission’s creation in 1973 until recently, district judges elected the two district judge members, the supreme court appointed the attorney member, and the governor appointed the two public members.[119] In 2021, the legislature added a senate confirmation requirement to each of the five seats.[120] And in 2023, it stripped the supreme court and district judges of their appointment power.[121] Every seat is now appointed by someone elected in a partisan election—the house speaker chooses the two district judges, the attorney general chooses the attorney, and the governor still chooses the two public members, all subject to senate confirmation.[122] The reformation efforts have been led by Republican legislators who argue that the role of the supreme court and judges in appointing commission members leads to a system of self-policing that is largely ineffective.[123] The dispute seemingly arose over legislators’ disagreement with a longstanding court practice of polling judges on proposed legislation related to the judiciary, and the changes are among many the legislature has proposed or enacted to give it greater control over the judicial branch’s actions in recent years.[124] In the 2021 legislative session, for example, legislators had also unsuccessfully proposed a constitutional amendment that would have expanded the commission from five to nine members and increased the number of public members from two to seven.[125] The amendment also would have expanded the commission’s power, allowing it to remove judges itself instead of referring recommendations to the state supreme court.[126]
  • In North Carolina, the commission is created by statute. In the state’s 2023 budget, the legislature changed the commission’s composition, replacing the four attorney members previously appointed by the state bar with four judges appointed by the legislature and allowing the four public members to be attorneys (instead of only non-attorneys).[127] The commission now consists of six judges appointed by the chief justice; four judges and two public members or attorneys appointed by the general assembly (half recommended by the senate president pro tempore and half by the house speaker); and two public members or attorneys appointed by the governor.[128] The most notable results of this change are that there is no longer a requirement for any commission members to be non-judge attorneys; the state bar no longer has a role in appointments; and judges now constitute a super-majority on the commission (10 of 14 seats). Previously, no single group occupied a majority of seats on the commission, and North Carolina is now one of only nine states that have a commission with judges in the majority (three of which have another commission as part of the process that does not have judges as the majority).[129] The changes came amid legislative efforts to move the judiciary to the right and the reinstatement of partisan judicial elections, and critics argue the commission will become more partisan and self-regulatory.[130] Like in Montana, the commission changes have been accompanied by other bills to accumulate legislative power over the judiciary.[131] And a former Republican justice, Bob Orr, has said that partisan disputes over the commission process have intensified in recent years.[132]
  • In 2023, the Idaho legislature changed the composition of its Judicial Council, which is established by statute and serves a judicial nomination function in addition to its disciplinary role. The changes reduced the state bar’s role in appointments and added two members.[133] The commission previously consisted of the chief justice by virtue of their office, one district judge appointed by the state bar with consent of the senate, two attorneys appointed by the state bar with consent of the senate, and three public members appointed by the governor with consent of the senate.[134] Under the 2023 law, a fourth public member and a magistrate judge joined the commission and all members (other than the chief justice) are now appointed by the governor with consent of the senate.[135] However, the governor must select the attorneys from a nomination list provided by the state bar and the judges from a list provided by the supreme court.[136] These changes were tempered from a proposal in the previous session that would have more significantly overhauled the commission’s makeup.[137] That proposal came amid a session in which “[s]ome lawmakers were angry at the courts” about its rulings in cases involving redistricting and an anti-initiative law the legislature had passed, while “[o]thers were upset” that the former senate majority leader was passed over for appointment to a vacancy on the Idaho Supreme Court.[138] The governor vetoed that more extensive 2022 overhaul but agreed to the scaled back 2023 version.[139]
  • In Tennessee, the legislature made several changes in 2019 to the commission’s membership and appointment methods. Tennessee originally overhauled its judicial commission system in 2012 after longstanding concerns about the commission “ignor[ing] judicial misdeeds and operat[ing] in unwarranted secrecy.”[140] The legislature abolished the prior commission, which consisted of ten judges appointed by the state supreme court, three attorneys appointed by the state bar, and three public members appointed one each by the house speaker, senate speaker, and governor.[141] In its place, the legislature established a new 16-member commission consisting of ten judges, three attorneys, and three public members, appointed by a mix of judicial organizations, the governor, the house speaker, and the senate speaker.[142] The legislation included a sunset provision, however, and there have been several reenactments of a similar structure over the years. The most recent changes to membership took place in 2019.[143] For purposes of this paper, the most significant changes were reducing the number of judges from ten to eight; reducing the number of attorneys from three to two; increasing the number of public members from three to six; allowing the supreme court to appoint one judge member (instead of none before); and increasing the number of appointments by the speakers of the house and senate, each of whom now have four appointments (three public members and one judge) instead of their previous three.[144] Combined, the house speaker and senate speaker now appoint half the commission members.

The following two states required constitutional amendments to change commission membership and appointment methods:

  • In Georgia, 62.5 percent of voters approved a legislatively referred constitutional amendment in 2016 that abolished the preexisting commission, which was detailed in the constitution.[145] The amended constitutional provision now directs the legislature to create a commission by general law, “with such commission having the power to discipline, remove, and cause involuntary retirement of judges as provided by this Article.”[146] Through implementing legislation in 2017, the legislature gave itself extensive involvement in the appointment process where it previously had none. Prior to the amendment, the commission consisted of two judges appointed by the supreme court, three attorneys appointed by the state bar, and two public members appointed by the governor.[147] Under the new model, there are separate investigatory and hearing panels, every appointee is subject to senate confirmation, and legislators directly select four of the seven seats on the investigatory panel.[148] The investigatory panel consists of two judges appointed by the supreme court; three attorneys, one each appointed by the governor, senate president, and house speaker; and two public members, one each appointed by the senate president and house speaker, all subject to senate confirmation.[149] The three-member hearing panel meanwhile consists of one judge appointed by the supreme court, one attorney appointed by the supreme court, and one public member appointed by the governor, all subject to senate confirmation.[150]
  • In Colorado, the legislature enacted extensive changes to its commission in 2023 in the wake of serious allegations and findings of judicial branch misconduct, ranging from mishandling of a multimillion dollar contract to sexual harassment and a toxic workplace culture.[151] Amid the investigation process, the commission alleged that the court was intentionally obstructing and delaying the process and that its funding—which came from the supreme court—was being threatened.[152] Extensive changes to the commission have garnered near universal support in the legislature, and voters in November 2024 will have the opportunity to weigh in on additional changes via a legislatively proposed constitutional amendment.[153] Among other provisions, the amendment would change the appointment method of the four judges on the commission, who are currently selected solely by the supreme court.[154] If the amendment passes, the constitution would allow the legislature to set the appointment method of those four judges by law. Legislation passed in tandem with the constitutional amendment proposal sets out that method—it would require the state court administrator to randomly select a field of 10 district and 10 county court judges, and the supreme court would choose two from each list.[155] However, if the appointment method is no longer enumerated in the constitution, future legislatures could change the process without voter approval.

In sum, there have been several efforts in recent years to alter control over judicial conduct commissions, some of which have accompanied broader legislative efforts to exert more control over state courts. Some of these changes may further the independence of commissions and accountability of the judiciary, while others have the potential to lead to increased weaponization of commissions by partisan actors. To guard against this latter possibility, it is vital to craft reforms with care. Part III turns to best practices for commissions, emphasizing that the dual goals of strengthening judicial accountability and guarding against commission weaponization often go hand in hand.

III. Optimizing the design of judicial conduct commissions

Striking the right balance between oversight and independence is a difficult path to walk. Fortunately, many existing best practices and recommendations for judicial conduct commissions serve both to enhance commissions’ ability to hold judges accountable while also minimizing undue interference from partisan actors or other branches. For example, the decades-old recommendation of creating commissions in the state constitution can insulate them from undue changes by executive, legislative, and judicial actors alike.

Unfortunately, many states have not adhered to these guidelines. And, as outlined in Part II, several legislatures have recently sought to enhance their own control over judicial conduct commissions in tandem with their broader efforts to control state courts. Although it is unlikely any set of design decisions can fully guard against attempts by partisan actors to manipulate these commissions, this part discusses some mechanisms that can at least erect hurdles to those efforts or minimize the impacts.

This part is divided into three overarching categories of mechanisms: (1) commission design decisions that inform their independence and quality of work; (2) ways to dissuade or weed out bad-faith or baseless complaints; and (3) methods to mitigate resulting harm to judges from the process, such as compensating attorney fees or providing protections in court. This part describes and evaluates various mechanisms in each of these categories and provides recommendations for best practices where appropriate. Some recommendations overlap with or expand on longstanding guidance, while others—such as time limits and attorney fee provisions—are distinct.

The two sets of recommendations referenced throughout this part are the American Bar Association’s (ABA) Model Rules of Judicial Disciplinary Enforcement, published in 1994,[156] and more recent recommendations from 2018 from the University of Denver’s Institute for the Advancement of the American Legal System (IAALS).[157] The ABA initially adopted standards for judicial discipline in the late 1970s,[158] amid the rise of state judicial conduct commissions and greater calls for judicial accountability. The 1994 model rules built on that prior effort and responded in part to significant revisions that had been made in 1990 to the ABA’s Model Code of Judicial Conduct.[159] The committee drafting the rules aimed both to “ensure prompt and fair discipline for judges” and to “protect the independence of the judiciary,” among other related goals.[160] The IAALS recommendations meanwhile stemmed from a 21-person convening in March 2018 including commissioners, commission staff, judges, lawyers, and scholars.[161] IAALS ultimately prepared the report and recommendations but drew on the convening discussions in crafting them.[162] The report seeks to “identify some better practices” for commissions and to “identify concrete ways to improve the trustworthiness of the judiciary.”[163]

A. Commission establishment and design

The initial question of who sits on commissions and who controls those appointments is perhaps the most important in ensuring the efficacy and independence of commissions. Commission members are largely in control of the gatekeeping responsibilities of ensuring frivolous complaints get dismissed while meritorious ones are fully pursued. As both are areas ripe for abuse, who the commissioners are and who they answer to has a significant impact. This part discusses three mechanisms touching on this issue. First, it discusses the commission establishment method, recommending that commissions be established by constitutional provisions that also outline membership and appointment methods in order to guard against legislative manipulation. Second, it discusses best practices for member selection and appointment, echoing preexisting recommendations that no one governmental branch or entity should have control over a majority of seats and that no one member type (e.g., judge, attorney, or public member) should occupy a majority of seats. Third, it repeats the longstanding recommendation that commissioners should only be removed for cause but further calls for closing loopholes in for-cause removal systems created by lagging confirmation processes.

i. Establishment of commissions

Constitutions should establish commissions and explicitly outline membership and appointment methods.

There is longstanding agreement, outlined in both the 1994 ABA and 2018 IAALS recommendations, that commissions should be established by the state constitution rather than by statute or court rule.[164] This design choice has multiple benefits. First, constitutionally created commissions are less vulnerable to attacks based on constitutional infirmity. Although such commissions may still be challenged on federal constitutional grounds, such as due process, they more easily survive attacks based on state constitutional grounds, such as state separation-of-powers principles, because they are directly conceived of in the state constitution.[165]

Second, constitutionally created commissions are less vulnerable to interference from any governmental branch, thereby reducing the potential for political or judicial capture. A constitutional amendment is required to make significant changes to constitutionally created commissions, and amendment procedures almost uniformly require residents to vote on legislatively proposed amendments.[166] In contrast, statutorily created commissions can be changed through the routine legislative process,[167] and court-created commissions can be changed through high court rulemaking.[168]

As outlined in Part I, the majority of states have established their commissions via the state constitution. However, the specificity of those constitutional provisions varies greatly. Some states with constitutionally created commissions leave key components to the commission, legislature, or court to flesh out, ultimately giving those bodies extensive power to change how commissions work without voter input. Utah’s constitution, for example, establishes a judicial conduct commission but leaves it to the legislature to determine who sits on the commission and how they are appointed.[169] Minnesota’s constitution leaves even more choices to the legislature, providing only that the legislature “may … provide for the retirement, removal or other discipline of any judge who is disabled, incompetent or guilty of conduct prejudicial to the administration of justice.”[170] A Minnesota statute then creates the commission and establishes its membership, appointment methods, and procedures.[171]

Additionally, commissions sometimes have the power to enact their own procedural rules, which can significantly affect the disciplinary process.[172] For example, Delaware’s constitution creates the Court on the Judiciary as its judicial conduct commission but also gives it “the power to adopt rules establishing procedures for the investigation and trial of a judicial officer hereunder.”[173] The Court on the Judiciary has created rules establishing a separate Preliminary Investigatory Committee that does not include any of the Court on the Judiciary members.[174] Delaware thus has a two-body commission system even though the constitution only establishes one.

These complexities highlight that merely establishing a commission in the constitution is insufficient to protect against improper interference, but it is a key first step. Sixteen states still do not have constitutionally created commissions, and among those that do, many lack meaningful specificity in those provisions. If policymakers and voters wish to strengthen the independence and effectiveness of judicial commissions, they may want to consider amending their constitutions to specify not only the existence of commissions but their membership and appointment methods too, as outlined in the next section.

ii. Member selection and appointment

No branch or entity should be able to appoint a majority of commission members, and no member type should hold a majority of seats on the commission.

One of the most direct ways to influence how a judicial conduct commission operates is to influence who sits on that commission. One concern is that when judges occupy a majority of seats on a commission or courts appoint a majority of members, the commission may be insufficiently independent from the judges they are investigating.[175] For example, in South Carolina’s court-created system where judges occupy a majority of commission seats, a 2019 news investigation concluded that “the system run largely by judges shields the accused and buries complaints.”[176] Of more than 1,000 complaints filed over the two decades covered by the investigation, zero resulted in public punishment for judges.[177] Conversely, placing majority appointment in the hands of the executive and/or legislative branches can raise serious concerns about independence of the commission from political disputes or influence from political actors.[178]

In light of these concerns, there is agreement in the ABA and IAALS recommendations that members should come from a mix of backgrounds and should be appointed by a mix of appointers.[179] This recommendation is analogous to some scholars’ and policymakers’ recommendations for nonpartisan redistricting and elections commissions, such as ensuring bipartisan involvement in appointments or appointing citizen applicants as members.[180] In the judicial conduct commission context, the ABA has recommended (and the IAALS Report agreed) that commissions should be divided equally between (1) judges appointed by the highest court; (2) attorneys appointed by the state bar association; and (3) public members appointed by the governor.[181] The stated goal is “to balance viewpoints and to distribute appointing authority among the branches of government.”[182]

Despite these longstanding best practices, most states do not follow them. More than half of states either allow a single entity to appoint a majority of commission seats, give a single member type a majority of seats on the commission, or both. And, as outlined in section II.B, legislators in at least eight states have recently proposed or enacted changes to commission appointment methods, many resulting in models that further depart from these recommendations.

Dividing the appointing power and membership types equally between different groups is one way to guard against cooptation by any branch, including the judiciary. The key recommendations here are that no one branch or entity should be able to appoint a majority of commission members and that no one member type should hold a majority of seats on the commission. The ABA also recommends that “appointments should reflect the diversity of the state’s population” and that “appointments should not be made on the basis of politics or ideology if the commission’s independence is to be protected from the appearance of impropriety and outside interference.”[183] These goals are certainly important ones, but they are also more difficult to encode and enforce.[184]  By ensuring, at a minimum, a range of member types and appointment methods, there is greater potential to at least counterbalance appointments that are made on the basis of politics and ideology.

iii. Removal of commissioners

Commissioners should only be removable for cause, and states should close loopholes resulting from delayed confirmation of commission members.

Relatedly, prior recommendations emphasize that commission members should only be removed for cause as another safeguard against capture by any of the branches.[185] For-cause removal can help insulate members from political pressures or retribution for decisions taken while on the commission. But not every state has this protection. In New Mexico, for example, the state supreme court held that the governor’s constitutional removal power included the right to remove his commission appointees at will, even while recognizing that “it is possible a governor could abuse the removal power in an attempt to control the Commission.”[186] And even in states with for-cause removal, it is not always a robust protection. The most notable exception is the practice of delaying confirmation votes for appointees who require them, allowing governors or legislators to essentially fire commission members without cause by withdrawing them from consideration or voting against their confirmation.

As discussed in section II.A, commissioners in Texas and Wisconsin were recently removed from their roles via this slow appoint-then-confirm process.[187] Regardless of the reasons behind these removals, the key issue is that this process provides an end-run around for-cause removal protections for appointees. When appointees serve for months or years without confirmation, they are constantly subject to at-will removal by the appointer (e.g., the governor) or confirming body (e.g., the senate). This gives each of those entities too much ongoing power over commission actions, especially given the fact that the executive and legislative branches routinely appear as parties before the courts. States that have this dual appoint-then-confirm process should therefore consolidate appointments into a single step or otherwise close this loophole, such as by requiring confirmation votes within a short time period from when the appointment is made. In some states with such timelines for appointments, the appointee is automatically approved if the legislature fails to act with the required time period.[188] In others, the appointee is automatically rejected.[189]

In sum, by selecting a range of commission member types, distributing appointment powers widely, guarding against legislative changes to membership and appointment provisions, and protecting commissioners from removal by their appointers, states can go a long way toward having a commission that is insulated from both political and judicial pressures.

B. Dissuading and/or filtering bad-faith or baseless complaints

The second set of mechanisms turns to the complaint initiation and screening phase. As discussed in Part I, commissions intentionally cast a wide net for complaints, and many commissions can also initiate their own investigations based on media reports or other reliable information. The vast majority of complaints filed with commissions do not advance past the initial review stage and typically place minimal, if any, burdens on judges named in the complaints.

However, some complaints may include baseless allegations that require further investigation to determine whether they are true, or the commission may fail to weed out all baseless complaints at the outset. In such cases, a judge who is free from wrongdoing may nevertheless need to spend considerable time and money throughout the process. This could be an acceptable downside of commission design in favor of casting a wide net to catch more instances of actual misconduct. Conversely, it can raise concerns about bad-faith actors targeting and harassing judges for political or personal reasons. As articulated by the Pennsylvania Supreme Court, “there is a very real risk that [commission] proceedings may be misused and manipulated for political and/or personal motives entirely unrelated to the maintenance of a just and ethical judiciary.”[190]

This section discusses two possible interventions at this stage: penalties for knowingly false or bad-faith complaints and time limits on complaint processing. The former should likely be used sparingly given the potential for deterring even valid complaints, while the latter could likely be used more broadly.

i. Penalties for knowingly false or bad-faith complaints

Penalties should likely be used sparingly, due to the potential adverse chilling effects on reporting misconduct.

The key concern with penalizing complainants is that it will have a chilling effect even on valid complaints. States have therefore only minimally used this mechanism. Many instead consider commission review and dismissal of frivolous or baseless complaints to be a sufficient safeguard against abuse of the process. For example, the Rhode Island Supreme Court has recognized “the lamentable fact that dissatisfied litigants … sometimes make baseless complaints against judges” but believes that complaint dismissal procedures prior to investigation or formal proceedings “ensure expeditious review of complaints of judicial misconduct while safeguarding the rights of judges and their judicial independence.”[191]

In some cases, courts and commissions have taken additional measures to prevent abuse of the process. In one instance, Idaho’s commission informed one complainant that it would “not accept any communication or further complaints” from him, noting: “Your abuse of frivolous complaints against judges can do nothing but affect your credibility in the future.”[192] In another, the Texas commission’s executive director successfully sought a court order deeming a complainant who had sued her to be a “vexatious litigant.”[193]

Overall, however, there appears to be very little penalization of non-attorney complainants. More than a dozen states do explicitly require an attestation on the complaint form that the contents are true to the knowledge of the complainant, with many of these including a signed attestation “under penalty of perjury.”[194] A few also more explicitly note the potential for criminal charges if the complainant knowingly files a false complaint.[195] But states lean more heavily toward protecting rather than penalizing complainants, including by allowing for anonymity and privileging statements in complaints in defamation lawsuits.[196]

The most prominent exception is for attorneys who file false complaints in violation of the relevant code of professional conduct.[197] For example, the Kansas Supreme Court suspended an attorney’s license after she filed a complaint accusing a judge of sexual assault and harassment and later acknowledged most of the claims were false.[198] The attorney discipline board concluded that she had violated the Kansas Rules of Professional Conduct by knowingly or with reckless disregard for the truth making false statements concerning the qualifications or integrity of a judge.[199] Based on this and other conduct, the Kansas Supreme Court suspended her from practicing law in the state for two years.[200]

Although it may be appropriate to occasionally sanction attorneys or even non-attorneys for knowingly false or bad-faith complaints, the potential risk of deterring valid complaints likely outweighs the potential benefits of making this a more widespread intervention.

ii. Time limits

States should impose time limits on processing complaints.

A potentially less detrimental intervention is the imposition of time limits on complaint processing. Such limits can both improve accountability in the judiciary and help mitigate the cost and uncertainty for judges resulting from lengthy investigations.

As discussed in section II.A, when commissions take a long time to resolve meritless complaints, it can create undue pressure on judges and lead to significant legal costs. Additionally, when commissions fail to act promptly on complaints alleging actual misconduct, judges may not face consequences for months or years and may continue to engage in misconduct. In one case involving misconduct, the Illinois commission took seven years to resolve proceedings.[201] In another, it took more than five years to reprimand a judge for taking too long to dispose of his own cases.[202]

Most states do not have a set time limit on processing complaints, but some do. Tennessee, for example, has fairly comprehensive time limits.[203] The disciplinary counsel must assess complaints within 14 days and complete a preliminary investigation within 60 days of the complaint being filed (although the commission chair can authorize additional time for the investigation if needed).[204] The counsel must then make a recommendation to the commission on how to proceed within 14 days of completing the preliminary investigation, and the investigative panel must either dismiss the complaint or authorize a full investigation within 14 days of receiving the counsel’s recommendation.[205] The statutes also set timelines for completing a full investigation, deciding how to act on the complaint after full investigation, filing formal charges, and holding a hearing.[206]

Other states provide less detail or only set out timelines for certain parts of the process. In Texas, for example, the legislature enacted a law in 2022 requiring the commission to resolve complaints within 270 days of filing and requiring annual reports of whether it is meeting that timeline.[207] In Alabama, the commission must decide whether to conduct further investigation within 70 days of receiving the complaint, and it then must notify the judge within 14 days of its decision.[208] The rule does not set a deadline for the investigation process, however.

Time limits are likely only an effective measure when coupled with sufficient funding and staffing. As complaint numbers have increased in many states, some commission budgets have stagnated or declined, leading to longer case processing times and backlogs.[209] In Michigan, for example, the number of investigations that were more than a year old increased from four in 2017 to 37 in 2021,[210] in part due to an “unexplained increase in the number of complex investigations” that began in 2017.[211] In response to commission requests in 2022, the legislature ultimately appropriated additional funding to allow the commission to hire more attorneys.[212] Groups in New York have similarly been pushing for increased funding.[213] And some states, like Colorado, have turned to lawyer registration fees to help fund commission work.[214] Even with sufficient funding, however, some meritorious investigations can take years, sometimes facing delays due to parallel criminal investigations. In Arkansas, for example, it took years for the judicial conduct commission to investigate and take action on allegations of a judge’s drug use and sexual misconduct despite having “one of the better-staffed oversight agencies in the United States,” according to Reuters.[215] So any time limits should factor in this possibility, such as by allowing an investigation time limit extension as in Tennessee.

Lastly, the source of funding can also impact the independence of commission work. The ABA and IAALS recommend that funding should not be controlled by the state supreme court to prevent retaliation or obstruction by the court.[216] Placing control with the legislature may raise concerns about budget manipulation by the legislature, but it is likely more favorable that placing budgetary control within the judiciary.

C. Mitigating harm to judges and recourse for improper investigations

This final set of mechanisms turns to ways to mitigate harm to judges if the commission fails to weed out baseless complaints or opts to pursue politicized or targeted investigations. The first two interventions involve commission design decisions. The first recommends awarding attorney fees to judges who are cleared of wrongdoing; the second recommends striking a balance between confidentiality and transparency that shields judges from the fallout from unfounded complaints while also enhancing certain disclosures to allow for greater accountability to judges and the public. The final two interventions in this section turn to protections in court, including First Amendment protections, due process protections, and other state and federal rights.

i. Attorney fees

Judges cleared of wrongdoing should be reimbursed for attorney fees.

One way to mitigate the potential harm to judges from unfounded complaints or prolonged investigations is to award them attorney fees if they ultimately prevail. Attorney fees are a common sanction available against judges who are found to have engaged in misconduct.[217] But states vary in their approach to awarding attorney fees to judges who are cleared of wrongdoing.

Many states do not specify whether exonerated judges may receive reimbursement for attorney fees or other costs, like expert witness fees and deposition costs. In those that do, the prevailing approach allows commissions to award costs and/or fees in a discretionary or case-by-case manner.[218] Some of these states limit reimbursement to costs, excluding attorney fees.[219] This approach is in line with earlier recommendations promulgated by the ABA in 1978.[220] Drafters rejected the idea of covering attorney fees due to concerns about “adverse public reaction” given that counsel is typically only provided at public expense to indigent defendants.[221] Some states do allow for reimbursing attorney fees, however, echoing the state’s role in providing legal representation to other state officials and employees.[222] In New Hampshire, for example, the committee “may, in its discretion and subject to the availability of funds, pay such portion as it deems equitable of the fee and expenses of the judge’s counsel.”[223] A few states go further and make reimbursement mandatory.[224] In West Virginia, for example, “[w]here a judge is exonerated for any reason and formal charges dismissed at any stage of the proceeding, the judge shall be entitled to reasonable attorney fees which shall be paid by the State.”[225] A few meanwhile take the opposite approach, prohibiting the award of costs and/or fees even if the judge is exonerated.[226]

A former Georgia commission member has argued that attorney fees or representation should be provided to all judges facing judicial conduct proceedings, even if they are ultimately found to have engaged in misconduct.[227] At a minimum, however, providing reimbursement to judges who are ultimately exonerated or who face charges that are dismissed is a significant step commissions and states can take to mitigate the harm of baseless, drawn-out investigations, thereby reducing the impact of attempts to weaponize judicial conduct commissions. And limiting reimbursement to judges who are exonerated will likely temper adverse public reaction to providing counsel at public expense.

ii. Balancing confidentiality and transparency

States should continue to use confidentiality requirements to shield judges from the fallout from unfounded complaints, but they should also enhance certain disclosures to allow for greater accountability to judges and the public alike.

Another measure that can reduce the impact of baseless investigations is confidentiality, but this can have adverse consequences as well. All states provide for confidentiality of commission investigations and complaints unless and until public charges are filed (or later, as discussed in section I.B.v). Many judges, policymakers, and scholars consider this system to be key to encouraging the filing of complaints, encouraging witness participation, protecting judges from publication of baseless accusations, and upholding the integrity of the courts.[228]

Some have criticized confidentiality, however, for insulating commission actions from public review and oversight. This argument has been presented from the viewpoint of the public, calling for greater transparency around allegations of judicial misconduct,[229] as well as from the perspective of judges and courts, raising concerns that commissions can abuse their power to go on fishing expeditions or target certain judges.[230]

For example, the Michigan Commission on Judicial Tenure has been criticized for potential racial bias in how it pursues investigations against judges.[231] In 2023, the Association of Black Judges of Michigan raised concerns about the fact that five of nine (or 56 percent of) public complaints the commission brought against judges since 2016 were against Black judges, despite Black judges making up only about 16 percent of the judiciary. [232] After conducting an internal analysis, the commission wrote that it “believes its data show no significant racial disparity with respect to judicial misconduct that warrants a public complaint.”[233] Rather, it concluded that the disparity in public complaints exists primarily because the majority of judges who choose to proceed to a hearing are Black, whereas the majority of judges who resign or consent to suspension are white.[234] And the names of judges are only disclosed if the case proceeds to a formal hearing.

Notably, the Michigan commission has also agreed to conduct an outside audit and has hired the National Center of State Courts to review dispositions from 2008 to 2022 for evidence of any racial disparities in outcomes.[235] Regardless of the outcome of that audit, the concerns about Michigan’s commission highlight two primary difficulties with confidentiality: (1) the difficulty of assessing commission fairness and effectiveness and (2) the ability of judges to avoid public scrutiny by accepting private dispositions.

States can take steps to address these issues by increasing disclosure requirements for commissions in ways that preserve the benefits of confidentiality and/or by requiring regular independent audits of commissions’ work. In the first category, many commissions could disclose far more data than they currently do without compromising the protections of confidentiality for the judge and complainant.[236] For example, Virginia’s legislature enacted changes in 2023 to require disclosure of the names of judges who are found to have violated the code of conduct, the specific provisions breached, and the disciplinary action taken by the commission.[237] Arizona’s commission meanwhile publicly posts all complaints and their outcomes after they are resolved.[238] For complaints that are dismissed without public dispositions, the commission strips identifying information of the judge and complainant.[239] This practice of publishing complaint information after the disciplinary process concludes can help judges and the public monitor whether commissions are performing their work fairly and effectively.

Relatedly, the states that bar public disclosure of proceedings until after the public hearing or after public discipline is ordered could provide for public disclosure earlier in the process. In North Carolina, for example, where proceedings only become public if the supreme court ultimately imposes discipline, the supreme court recently came under scrutiny for dismissing disciplinary action against two Republican judges who admitted they had violated the state’s judicial code of conduct.[240] According to a ProPublica investigation, the two dismissals “were likely the only times in more than a decade in which the court didn’t follow the commission’s guidance.”[241] And the lack of public disclosure meant those instances were not public until ProPublica’s reporting. In New York, where proceedings are currently confidential until a recommendation for public discipline is filed, the senate has passed a bill that would move disclosure earlier—before a fact-finding hearing instead of after it.[242]

As an alternative or additional step, states could provide for routine independent auditing of complaints and dispositions. Some states have utilized existing audit offices to review the work of judicial conduct commissions.[243] However, there are several drawbacks to this approach. First, confidentiality rules can impede access for routine auditors—during a 2002 Utah audit, for example, the commission determined it could not give the legislative auditor access to the complaint files without supreme court authorization, and the supreme court initially refused to provide blanket disclosure of the files.[244] (The court later agreed to more extensive disclosure with various protections in place, allowing for a more comprehensive audit to be published in 2003.[245]) Similarly, the commission’s role within the judicial branch may insulate it from typical legislative audit and oversight provisions based on separation-of-powers concerns. Lastly, given the fact that auditors’ offices are sometimes controlled by the legislature, there is a concern that auditing may itself be used as a tool to weaponize or target commissions. These obstacles suggest that states should set up independent auditing mechanisms that explicitly give the auditor power to review confidential commission files while also insulating the auditor from political pressures. The exact contours of this type of auditing mechanism would vary state to state depending on the structure of the commission, separation-of-powers principles, and other variables.

iii. First Amendment suits

Judges can utilize the First Amendment to halt investigations or defend against charges.

The First Amendment provides an external check on abuse of the commission process to silence free speech. Some judges have filed suits early in the commission process, seeking to enjoin the commission from further investigation or sanctions.[246] Others have raised First Amendment claims as part of a defense once the commission files formal charges.[247] However, judges typically must expend significant energy and resources to pursue this route, and courts are not always amenable to judges’ claims.

First, courts have emphasized that judges generally accept greater limitations on their speech and conduct than members of the public, including by agreeing to adhere to judicial codes of conduct that cover some types of speech.[248] Courts emphasize that even if the restrictions may implicate the First Amendment, the burden on a judge’s speech is outweighed by the state’s “vital” interest in preserving the integrity of its judiciary.[249] Second, commission proceedings are primarily directed at protecting the public and maintaining the independence of the judiciary rather than punishing the judge.[250] This non-criminal nature of proceedings makes them more likely to survive First Amendment challenges.[251] As the Michigan Supreme Court has noted, “[f]reedom of speech is not the freedom from all consequences for one’s actions.”[252]

However, one’s role as a judge does not mean the absence of any First Amendment protections. In 2002, for example, the U.S. Supreme Court held that a Minnesota canon prohibiting judicial candidates from sharing their views on disputed legal or political issues violated the First Amendment.[253] There has been continued litigation about judicial campaign conduct and contributions in the years since, with courts diverging on how to strike the right balance between First Amendment protections for political speech and the necessity of preserving the judiciary’s integrity.[254] But much of this litigation has centered on the free speech rights of judicial candidates rather than sitting judges, and the U.S. Supreme Court has yet to weigh in on the latter issue. Judges may also be able to assert parallel state constitutional or statutory rights. In an ongoing Texas case, a judge who was issued a warning for declining to officiate same-sex marriages is claiming the judicial conduct commission violated her religious and free speech rights under the state constitution and state statutes.[255] This open debate about judges’ free speech rights[256] leaves room for commissions to largely set their own standards of what speech may or may not be protected, a flexibility that has the potential to lead to undue chilling of valid speech.

iv. Other suits against commissions

Judges can pursue other suits against commissions based on due process, failure to follow commission procedures, or other grounds.

Judges can also raise claims beyond the First Amendment to enforce their rights throughout the commission process. Again, these efforts typically require significant expenditure of time and money, and the protections are not necessarily robust. These suits primarily fall into three overlapping categories: (1) procedural and due process claims, (2) selective prosecution or discrimination, and (3) commission overreach or lack of jurisdiction.

Many judges have filed suit on procedural grounds, either because commissions have failed to follow their own procedures or because those procedures violate a judge’s state or federal due process rights.[257] In Alabama, for example, the commission’s rules of procedure allow “[a]ny judge who is the subject of investigation by the commission and who claims to be aggrieved by any violation of these Rules [to] petition the Supreme Court directly for relief.”[258] Although some courts have been amenable to these claims,[259] procedural and due process suits rarely succeed. Courts have diverged on whether state judges even have liberty or property interests in their positions sufficient to trigger due process protections.[260] And among courts that do apply some form of due process protection, many have concluded that supreme court review of commission decisions is sufficient to safeguard judges’ rights or that judges are not prejudiced by the rule violation.[261] Similarly, the argument that a single commission that both investigates judges and conducts hearings violates judges’ due process rights has been rejected by the more than 20 state high courts to address the issue, based largely on availability of supreme court review.[262]

Other judges have brought claims of selective prosecution or discrimination.[263] For example, the Nevada Supreme Court strongly criticized the state’s commission for failing to adhere to its own rules and taking an “ad hoc approach to judicial discipline” that “pose[s] a very real and substantial threat to the right of our citizens to a fair, impartial, free, and independent judiciary.”[264] The court highlighted disparate treatment between the commission’s behavior toward the judge in that case, Washoe County District Judge Jerry Carr Whitehead, with its more lenient treatment of another judge,[265] writing that it was “concerned about the possibility of selective prosecution or discrimination when the Commission is in a position to bestow favors upon certain judges and inflict what may appear to be inordinate punishment and abuse upon others through the simple expedients of secrecy and disregard of its own rules.”[266] The court dismissed the complaint at issue but allowed the commission to pursue a new investigation so long as it adhered to its own procedural rules.[267] (Whitehead ultimately resigned “in an agreement with the U.S. Justice Department that it would not continue its investigation into his behavior.”[268]) As discussed in the section III.C.ii on confidentiality and transparency, these types of selective prosecution claims are often difficult to substantiate given the lack of available information about the commission’s handling of complaints.

In a third grouping, some judges have challenged a commission’s jurisdiction or overreach. In one example, a New York court enjoined the state’s commission from engaging in a “fishing expedition” by seeking to go beyond the scope of the written complaint and “conduct a limitless inquiry into all of [the judge’s] conduct.”[269] In another, the Montana Supreme Court issued a writ of prohibition barring proceedings against a judge because the charges did not amount to “misconduct in office” under the constitutional provision and because the commission lacked a verified complaint, which was required under a statute and commission rules.[270]

Although judges have prevailed in some of these cases, state high courts have more commonly taken the view that their own review of the commissions’ decisions is a sufficient protection against procedural missteps or lesser protections at the commission level. And even where successful, court cases typically require extensive investment of time and money. Relief in court should therefore ideally act as a final backstop for improper commission actions rather than an initial line of defense. However, courts may want to consider embracing more robust enforcement of commissions’ procedural rules and other protections in order to guard against efforts to unduly target certain judges.

IV. Conclusion

Judicial conduct commissions wield significant power and responsibility in overseeing the conduct of state judges and maintaining the integrity of the judiciary. As state courts gain increased prominence, it is vital to pay attention to these often-overlooked entities and recent efforts to coopt them for political ends. Articulating and shedding light on these efforts is a key first step in guarding against partisan gamesmanship and weaponization of commissions. Although no set of reforms can fully insulate commissions from these concerns, there are many steps policymakers, judges, and the public can take to at least erect hurdles to improper influence of commission actions. And many of these reforms have the added benefit of bolstering judicial accountability for actual instances of misconduct. In other words, the dual goals of preserving the independence of the judiciary while also ensuring accountability for judicial misconduct often go hand in hand.


[1]  The names of these commissions vary among the states. For ease of reference and in keeping with common practice in this realm, this paper will refer to them as “judicial conduct commissions” or simply “commissions.” See Cynthia Gray, How Judicial Conduct Commissions Work, 28 Just. Sys. J. 405, 405 (2007). For a full list of commission names, see Appendix A.

[2]See In re Johnstone, 2 P.3d 1226, 1233 (Alaska 2000) (“a primary purpose of judicial discipline in Alaska is to protect the public rather than to punish the judge”); In re Neely, 2017 WY 25, ¶72, 390 P.3d 728, 752 (Wyo. 2017) (“The purpose of judicial discipline is primarily to protect the public, but of necessity it has punitive effects.”); Gray, supra note 1, at 405 (“Although punishment plays an ‘undeniable role’ in judicial discipline, protecting the public, not sanctioning judges, is the primary purpose of the judicial conduct commissions.” (quoting Johnstone, 2 P.3d at 1234)); see also Matter of Henderson, 392 P.3d 56, 64 (Kan. 2017); In re Thayer, 761 A.2d 1052, 1055 (N.H. 2000); In re Ferrara, 582 N.W.2d 817, 826–27 (Mich. 1998); Rebecca Love Kourlis, Keith Swisher & Russell Wheeler, Recommendations for Judicial Discipline Systems, Institute for the Advancement of the American Legal System 2 (July 2018), https://iaals.du.edu/sites/default/files/documents/publications/recommendations_for_judicial_discipline_systems.pdf [hereinafter IAALS Report].

[3]  Daniel Nichanian & Quinn Yeargain, Everything You Always Wanted to Know About State Supreme Courts, Bolts (Aug. 22, 2023), https://boltsmag.org/what-to-know-about-state-supreme-courts/#:~:text=So%20what%20do%20these%20state,supreme%20court%20at%20the%20top.

[4]  Brett Murphy & Alex Mierjeski, Clarence Thomas’ 38 Vacations: The Other Billionaires Who Have Treated the Supreme Court Justice to Luxury Travel, ProPublica (Aug. 10, 2023), https://www.propublica.org/article/clarence-thomas-other-billionaires-sokol-huizenga-novelly-supreme-court; Justin Elliott, Joshua Kaplan & Alex Mierjeski, Lawmakers Call for Investigation and Ethics Reforms in Response to ProPublica Report on Clarence Thomas, ProPublica (Apr. 6, 2023), https://www.propublica.org/article/clarence-thomas-scotus-harlan-crow-durbin-ethics-investigation; Jodi Kantor, At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display, N.Y. Times (May 16, 2024), https://www.nytimes.com/2024/05/16/us/justice-alito-upside-down-flag.html; Jodi Kantor, Aric Toler & Julie Tate, Another Provocative Flag Was Flown at Another Alito Home, N.Y. Times (May 22, 2024), https://www.nytimes.com/2024/05/22/us/justice-alito-flag-appeal-to-heaven.html; see also Adam Liptak, Supreme Court’s New Ethics Code is Toothless, Experts Say, N.Y. Times (Nov. 14, 2023), https://www.nytimes.com/2023/11/14/us/politics/supreme-court-ethics-code-clarence-thomas-sotomayor.html; Annie Gersh & Nina Totenberg, The Supreme Court Adopts First-Ever Code of Ethics, NPR (Nov. 13, 2023), https://www.npr.org/2023/11/13/1212708142/supreme-court-ethics-code.

[5]See infra Part II; Michael Milov-Cordoba, Douglas Keith, & Alicia Bannon, Legislative Assaults on State Courts in 2023, Brennan Center for Justice (Jan. 9, 2024), https://www.brennancenter.org/our-work/research-reports/legislative-assaults-state-courts-2023; Patrick Berry, Alicia Bannon, & Douglas Keith, Legislative Assaults on State Courts—June 2022, Brennan Center for Justice (June 22, 2022), https://www.brennancenter.org/our-work/research-reports/legislative-assaults-state-courts-june-2022.

[6]  Every state but Arkansas had adopted a commission by 1979. John O. Haley, The Civil, Criminal and Disciplinary Liability of Judges, 54 Am. J. Comp. L. 281, 288 (2006).

[7]See James J. Alfini, Shailey Gupta-Brietzke & James F. McMartin IV, Dealing with Judicial Misconduct in the States: Judicial Independence, Accountability and Reform, 48 S. Tex. L. Rev. 889, 896, 908 (2007); Injustice Watch Staff, Illinois Courts Commission: A System Borne from Scandal, Injustice Watch (Nov. 22, 2015), https://www.injusticewatch.org/project/illinois-judges/2015/illinois-courts-commission-a-system-borne-from-scandal/; Jeffrey M. Shaman, State Judicial Conduct Organizations, 76 Ky. L.J. 811, 856 (1987) (“While the great majority of judges adhere scrupulously to ethical norms, the frequency of judicial misbehavior is substantial enough to require systematic regulation of judicial misconduct. This point has been confirmed by experience since the establishment of judicial conduct organizations.”); Edward J. Schoenbaum, A Historical Look at Judicial Discipline, 54 Chi.-Kent L. Rev. 1 (1977) (noting the new commissions were “developed because of a dissatisfaction with earlier ineffective methods of judicial discipline”).

[8]  Injustice Watch Staff, supra note 7.

[9]Id.

[10]  Kenneth A. Manaster, Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens 22–27 (2001).

[11]Id. at 265, 268–69.

[12]Id. at 238–41.

[13]  Ill. Const. art. VI, § 15.

[14]  Alfini et al., supra note 7, at 909; see also id. at 891, 898, 907–09; Florence R. Peskoe, Procedures for Judicial Discipline: Type of Commission, Due Process & Right to Counsel, 54 Chi.-Kent L. Rev. 147, 147 (1977) (citing recent events, such as the resignation of President Richard M. Nixon, that “have focused public attention on the conduct of public officials”).

[15]  Alfini et al., supra note 7, at 908 (quoting Glenn R. Winters, A Half Century in Retrospect, 72 Judicature 92, 95 (1988)).

[16]Id.

[17]  Gray, supra note 1, at 417; see also Alfini et al., supra note 7, at 896.

[18]  Alfini et al., supra note 7, at 896; see also Gray, supra note 1, at 417.

[19]  Alfini et al., supra note 7, at 896; see also Gray, supra note 1, at 417; Michael Berens & John Shiffman, The Teflon Robe: Thousands of U.S. Judges Who Broke Laws or Oaths Remained on the Bench, Reuters (June 30, 2020), https://www.reuters.com/investigates/special-report/usa-judges-misconduct/ (“‘With a few notable exceptions, the commissions generally get it right,’ said Keith Swisher, a University of Arizona law professor who specializes in judicial ethics.”); Cynthia Gray, The Line Between Legal Error and Judicial Misconduct: Balancing Judicial Independence and Accountability, 32 Hofstra L. Rev. 1245, 1280 (2004); IAALS Report, supra note 2, at 2 (“There is a general sense that these bodies are functioning well, although some pervasive, if not always well-grounded, concerns persist.”); Shaman, supra note 6, at 858–59 (“The establishment of judicial conduct commissions has been a successful movement that improves the quality of the judiciary.”); Keith Swisher, Judicial Discipline in the States: IAALS’ Judicial Discipline Pre-Convening White Paper 3 (Feb. 14, 2018) (“Generally speaking, the commission structure is quite effective at recognizing both meritorious and non-meritorious complaints and taking action on (and only on) the former.”).

[20]See, e.g., Nino C. Monea, Disparities on Judicial Conduct Commissions, 107 Marq. L. Rev. 75, 75 (2023) (arguing that “[t]he status quo hides judicial misconduct from the public, fails to punish judges who abuse their office, and gives judges greater protections than criminal defendants, even when the stakes are lower”); Vida B. Johnson, White Supremacy from the Bench, 27 Lewis & Clark L. Rev. 39, 50 (2023) (“The discipline of judges is also often opaque to outsiders, difficult to navigate, and hard to understand.”); Emily Hoerner & Zoë Rosenbaum, In Illinois, Punishment Is Slow and Lenient for Errant Judges, Injustice Watch (Dec. 4, 2015), https://www.injusticewatch.org/news/2015/illinois-court-commission-judge-punishment/; Andrea Gallo & John Simerman, Secret Complaints, Outcomes: How Louisiana’s Judiciary Commission Protects Judges It’s Meant to Police, NOLA.com (Dec. 30, 2019), https://www.nola.com/news/courts/secret-complaints-outcomes-how-louisianas-judiciary-commission-protects-judges-its-meant-to-police/article_278f83de-25c6-11ea-a8c1-ff3562324659.html; Billy Corriher, The States Where Supreme Court Justices Are Playing Favorites, Governing (Apr. 16, 2024), https://www.governing.com/politics/the-states-where-supreme-court-justices-are-playing-favorites; Joseph Cranney, South Carolina: The State Where Judges Rule Themselves in Secret, ProPublica (Apr. 25, 2019), https://www.propublica.org/article/what-happens-when-judges-police-themselves-in-secret-not-much; Aaron Mendelson, Not Just the Supreme Court: Ethics Troubles Plague State High Courts, Too, The Center for Public Integrity (Dec. 7, 2023), https://publicintegrity.org/politics/high-courts-high-stakes/not-just-the-supreme-court-ethics-troubles-plague-state-high-courts-too/.

[21]  Berens & Shiffman, supra note 19.

[22]Matter of Adams, 134 N.E.3d 50, 55–56 (Ind. 2019).

[23]  Berens & Shiffman, supra note 19.

[24]Id.

[25]See Shaman, supra note 6, at 856 (“The second argument against the creation of judicial conduct organizations was that the organizations pose a threat to judicial independence.”); Alfini et al., supra note 7, at 909 (“Most importantly, the reform was in keeping with rule of law and separation of powers principles in America’s representative democracy. It carefully walked the fine line between judicial independence and judicial accountability.”); Laurence H. Tribe, Trying California’s Judges on Television: Open Government or Judicial Intimidation, 65 A.B.A. J. 1175 (1979) (“We must combat an imperial judiciary, but we need an independent judiciary to avoid the even greater dangers of an imperial executive and an imperial legislature.”); Gerald Stern, Are Judicial Conduct Commissions a Threat to ‘Judicial Independence’?, 63 Judicature 153 (1979) (“Complete judicial ‘independence’ is not realistic today. … Judges should be able and willing to accept [judicial conduct] review processes even if they sometimes cause distress and inconvenience.”); Peskoe, supra note 14, at 148; James R. Noseda, Limiting Off-Bench Expression: Striking A Balance Between Accountability and Independence, 36 DePaul L. Rev. 519, 530–33 (1987).

[26]See infra, section II.B.

[27]Id.

[28]  Charles Gardner Geyh, Judicial Ethics and Discipline in the States, State Court Report (Dec. 14, 2023), https://statecourtreport.org/our-work/analysis-opinion/judicial-ethics-and-discipline-states (“[A] peril of judges judging judges is that they may use the code and disciplinary process to thwart rivals and punish enemies.”).

[29]See infra, section II.A.

[30]See Appendix B (“Number of Complaints Filed 2013 to 2023”); Aleeza Furman, Judicial Conduct Complaints Spiked Across the Country in 2022, The Legal Intelligencer (May 22, 2023).

[31]See Appendix B. Some states report complaint numbers by fiscal year and some by calendar year. This paper cites to the change from 2019 to 2022 given the possibility of the pandemic reducing complaint numbers in 2020 given court closures, as well as some states showing significant jumps in 2021 rather than 2022, making a 2021 to 2022 comparison less illustrative of the overall increase in some states.

[32]See Appendix B. Minnesota’s complaint numbers jumped from 181 in 2019 to 760 in 2022. Georgia’s increased from 525 in 2019 to 1,103 in 2022.

[33]  Furman, supra note 30; Arizona Commission on Judicial Conduct 2023 Annual Report 4, https://www.azcourts.gov/Portals/137/Annual%20Reports/2023%20Annual%20Report.pdf (“Staff attributes the increase in complaint filings to more self-represented litigants in the system who lack an attorney to help explain legal procedures and processes, as well as a general decrease by the public in trust and confidence in the judiciary, and government in general.”). The percent of registered voters who said they were confident in state courts fell from 67% in 2012 to 60% in 2022 and 61% in 2023. See National Center for State Courts, State of the State Courts 2023 Poll 5, https://www.ncsc.org/__data/assets/pdf_file/0038/96878/SSC_2023_Presentation.pdf; National Center for State Courts, State of the State Courts 2022 Poll 6, https://www.ncsc.org/__data/assets/pdf_file/0019/85204/SSC_2022_Presentation.pdf.

[34]  Furman, supra note 30.

[35]See Appendix B.

[36]  Ala. Const. art. VI, §§ 157, 158; Alaska Const. art. IV, § 10; Ariz. Const. art. VI.I, §1; Ark. Const. of 1874, amend. 66; Cal. Const. art. VI, §§ 8, 18, 18.1, 18.5; Colo. Const. art. VI, § 23; Del. Const. art. IV, § 37; Fla. Const. art. V, § 12; Ill. Const. art. VI, § 15; Ind. Const. art. 7, §§ 9, 11; Ky. Const. § 121; La. Const. art. V, § 25; Md. Const. art. IV, § 4A; Mich. Const. art. VI, § 30; Miss. Const. art. VI, § 177A; Mo. Const. art. V, § 24; Nev. Const. art. VI, § 21; N.M. Const. art. VI, § 32; N.Y. Const. art. VI, § 22; Okla. Const. art. VII-A, § 2; Pa. Const. art. V, § 18; Tex. Const. art. 5, § 1-a; Utah Const. art VIII, § 13; Wash. Const. art. IV, § 31; Wyo. Const. art. 5, § 6.

[37]  Conn. Const. art. V, § 7; Ga. Const. art. VI, § 7, ¶ VI; Iowa Const. art. V, § 19; Minn. Const. art. VI, § 9; Mont. Const. art. VII, § 11; Neb. Const. art. V, § 28; S.D. Const. art. V, § 9; Va. Const. art. VI, § 10; Wis. Const. art. VII, § 11. In some states, the constitutional provisions are phrased as a directive (using “shall”), while some are phrased more permissively (using “may”). Compare Ga. Const. art. VI, § 7, ¶ VI (“The General Assembly shall by general law create and provide for the composition, manner of appointment, and governance of a Judicial Qualifications Commission, with such commission having the power to discipline, remove, and cause involuntary retirement of judges as provided by this Article.”) with Conn. Const. art. V, § 7 (“The general assembly may establish a judicial review council which may also, in such manner as shall by law be prescribed, censure any such judge or suspend any such judge for a definite period not longer than one year.”).

[38]Compare Neb. Const. art. V, § 28 (“The Legislature shall provide for a Commission on Judicial Qualifications consisting of: (1) Three judges, including one district court judge, one county court judge, and one judge of any other court inferior to the Supreme Court as now exists or may hereafter be created by law, all of whom shall be appointed by the Chief Justice of the Supreme Court; (2) three members of the Nebraska State Bar Association who shall have practiced law in this state for at least ten years and who shall be appointed by the Executive Council of the Nebraska State Bar Association; (3) three citizens, none of whom shall be a Justice or Judge of the Supreme Court or judge of any court, active or retired, nor a member of the Nebraska State Bar Association, and who shall be appointed by the Governor; and (4) the Chief Justice of the Supreme Court, who shall serve as its chairperson.”) and Mont. Const. art. VII, § 11 (“(1) The legislature shall create a judicial standards commission consisting of five persons and provide for the appointment thereto of two district judges, one attorney, and two citizens who are neither judges nor attorneys. (2) The commission shall investigate complaints, and make rules implementing this section. It may subpoena witnesses and documents.”) with Wis. Const. art. VII, § 11 (“Each justice or judge shall be subject to reprimand, censure, suspension, removal for cause or for disability, by the supreme court pursuant to procedures established by the legislature by law.”).

[39]  Idaho Code Ann. § 1-2101; Mass. Gen. Laws Ann. ch. 211C, § 1; N.C. Gen. Stat. Ann. §§ 7A-374, 17A-375; N.D. Cent. Code Ann. § 27-23-02; Okla. Stat. Ann. tit. 20, § 1652; Or. Rev. Stat. Ann. § 1.410; 8 R.I. Gen. Laws Ann. § 8-16-1; Tenn. Code Ann. § 17-5-201; D.C. Code Ann. § 11-1521.

[40]  Haw. Sup. Ct. R. 8.1; Kan. R. Jud. Cond. 602; N.H. Sup. Ct. R. 39; N.J. Ct. R. 2:15; S.C. App. Ct. R. 502; Vt. R. Disc. Control Jud. 7; W. Va. R. Jud. Disc. P. 1. Maine and Ohio each have a hybrid establishment method, with a statute giving the state supreme court the power to enact rules for disciplining and removing judges. See Me. Rev. Stat. tit. 4, § 9-B; Ohio Rev. Code Ann. § 2701.11. Court rules then establish the commission and its procedures. Me. R. Comm. Jud. Conduct Order; Ohio S. Ct. R. for the Gov’t of the Bar of Ohio V (creating board); Ohio S. Ct. R. for the Gov’t of the Jud. of Ohio II (discussing board’s authority to discipline judges).

[41]See Okla. Stat. Ann. tit. 20, § 1652; Okla. Const. art. VII-A, § 2; Okla. Stat. Ann. tit. 5, ch. 1, app. 4-A (Rules Governing Complaints on Judicial Misconduct). The Oklahoma Council on Judicial Complaints, which is created via statute, receives and investigates complaints regarding judicial misconduct. Okla. Stat. Ann. tit. 20, § 1658. If the council determines that the conduct constitutes a removable offense, it forwards its findings “to either the Supreme Court or the Chief Justice thereof, the Governor, the Attorney General, the Executive Secretary of the Oklahoma Bar Association, or the House of Representatives, who shall promptly file a petition invoking the jurisdiction of the trial division of the Court on the Judiciary.” Id. § 1658. The trial and appellate divisions of the Court on the Judiciary are created by the state constitution but only have jurisdiction over cases alleging misconduct that would be grounds for removal. Okla. Const. art. VII-A, § 2; Coleman v. Ct. on Judiciary Trial Div., 472 P.3d 714 (Okla. Jud. App. Div. 2020). If the council instead finds evidence of misconduct that does not warrant removal, supreme court rules direct it to forward its findings to the chief justice of the Oklahoma Supreme Court, who then reviews the findings and determines appropriate next steps, discussed further in note 83. Okla. Stat. Ann. tit. 5, ch. 1, app. 4-A, Rule 4.

[42]See Appendix A (“Composition and Appointment Method of State Judicial Conduct Commissions”).

[43]  Ohio S. Ct. R. for the Gov’t of the Bar of Ohio V.

[44]  Okla. Stat. Ann. tit. 20, § 1653.

[45]  Two states—Delaware and Oklahoma—do not include all three types of members on a single judicial conduct body, instead dividing them among multiple bodies. See Appendix A. New Jersey is also an outlier within this group as it only allows for retired, rather than active, judges. Id.

[46]  American Bar Association, Model Rules for Judicial Disciplinary Enforcement, § I, Rule 2 Commentary (1994), https://www.americanbar.org/groups/professional_responsibility/model_rules_judicial_disciplinary_enforcement/rule2/ [hereinafter 1994 Model Rules] (“Each category of commission members (judges, lawyers and public members) should be equally represented on the commission in order to balance viewpoints … . Public confidence in the judicial discipline system is enhanced when the commission includes members of the public. Their participation provides the judicial discipline commission with an important perspective and avoids the appearance of a closed system.”); IAALS Report, supra note 2, at 5 (“public members … can provide the system with insight from the community and non-technical critiques and perspectives of judicial conduct and culture”).

[47]  Alfini et al., supra note 7, at 907.

[48]  For example, Wisconsin’s public members include a school board vice president and retired educator; a former secretary of the Wisconsin Department for Workforce Development and deputy assistant secretary of Employment and Training at the U.S. Department of Labor; a former attorney and current non-profit board member; and a former social worker, assembly member, and non-profit executive director. Wisconsin Judicial Commission, Members of the Commission, https://www.wicourts.gov/courts/committees/judicialcommission/members.htm. Tennessee’s include two business owners, a board member of various community organizations, a former FBI agent, the deputy direct of affairs to the Memphis mayor, and a pastor involved in various community organizations. Tennessee Board of Judicial Conduct, Officers & Members, https://www.tncourts.gov/boards-commissions/board-judicial-conduct/officers-members.

[49]  Haw. Sup. Ct. R. 8.1.

[50]  W. Va. R. Jud. Disc. P. 1.1.

[51]  N.C. Gen. Stat. Ann. § 7A-375. As discussed further below, North Carolina only recently joined these ranks in 2023, replacing the bar-appointed attorney members with legislature-appointed judges. See infra section II.B. However, with this change, it also changed the rules for public members, now allowing them to be attorneys or non-attorneys. Id.

[52]  N.H. Sup. Ct. R. 39(2)(a).

[53]  Utah Code Ann. § 78A-11-103(1).

[54]  W. Va. R. Jud. Disc. P. 1.1.

[55]See Appendix A. These states include: Alabama, Arkansas, California, Florida, Georgia, Indiana, Kentucky, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Wyoming, as well as Washington, D.C.

[56]See Appendix A. These states include: Alaska, Arizona, Colorado, Idaho, Illinois (for one of its commissions), Iowa, New Mexico, North Dakota, Washington, Wisconsin.

[57]See Appendix A. In Arizona, six of 11 members are appointed by the state supreme court. In the other four states, the governor appoints a majority of members—seven of nine on one of Illinois’s two commissions; seven of 13 in New Mexico; four of seven in North Dakota; and six of 11 in Washington.

[58]See Appendix A. In Colorado, six of ten seats are appointed by the governor with senate consent; in Idaho, eight of nine seats are appointed by the governor with senate consent; in Iowa, four of seven are appointed by the governor with senate confirmation; and in Wisconsin, five of nine are appointed by the governor with senate approval. In Alaska, which is included in this group, six of nine members are appointed by the governor with legislative approval, but three of the governor’s six appointments are made upon recommendation by the state bar, thus making it borderline between this group and the no-majority-appointment group. Similarly, in Idaho, the governor appoints eight of nine members with the consent of the senate, but the governor must select the two attorneys from a nomination list provided by the state bar and the two judges from a list provided by the supreme court, making Idaho borderline as well.

[59]See Appendix A. These states include: Connecticut, Delaware, Hawaii, Kansas, Maine, Maryland, Minnesota, Mississippi, New Jersey, Ohio, South Carolina, Vermont, Virginia, and West Virginia.

[60]See Appendix A. These states include: Hawaii, Kansas, New Jersey, Ohio, South Carolina, Vermont, and West Virginia. Maine and New Hampshire, the other two states with court-created commissions, use a mixed approach. In Maine, five of the members (the two attorneys and three public members) are appointed on recommendation of the governor, but the state supreme court still has a final say on the appointments. In New Hampshire, others have a more direct role in appointments—five of the seats are filled by the supreme court while two are filled by the bar association, two by the governor, one by the president of the senate, and one by the speaker of the house.

[61]  Conn. Gen. Stat. § 51-51k.

[62]  M.D. Const. art. 4, § 4A.

[63]  The Preliminary Investigatory Committee is appointed entirely by the chief justice with concurrence of a majority of the supreme court. Del. Ct. Jud. R. P. 3. The Court on the Judiciary meanwhile is comprised of the entire supreme court (the chief justice and four associate justices), the chancellor (the head of Delaware’s Court of Chancery), and the president judge of the superior court, all of whom fill the role by virtue of their offices. Del. Const. art. IV, § 37.

[64]  Va. Code Ann. § 17.1-901.

[65]  Miss. Const. art. 6, § 177A; Miss. Code Ann. § 9-19-1. Similarly, in Minnesota, the governor appoints all ten of the members with the advice and consent of the senate, but senate confirmation is not required for the four judicial members. Minn. Stat. §§ 490A.01. And in Maine, five of the eight members are appointed on recommendation of the governor, but the state supreme court has a final say on the appointments. Me. R. Comm. Jud. Conduct Order.

[66]  Some of these 17 states note with an anonymous complaint that it may be more difficult for the commission to conduct a thorough investigation. Nine states do not allow anonymous complaints. The remainder do not have clear explanations.

[67]  At least 44 states allow commissions to initiate investigations based on any information received, such as a news article or an informal individual report. See also Swisher, supra note 19, at 6.

[68]See, e.g., Mora v. Koch, 79 Misc.3d 434, 442, 190 N.Y.S.3d 575 (N.Y. S. Ct. 2023) (statements made in written complaint about judge submitted in online form to commission were “absolutely privileged” in defamation action); Matter of Larsen, 616 A.2d 529, 533 (Pa. 1992) (“All proceedings before the [commission] are privileged from liability for defamation, even if allegations are false and made with actual malice.”); Nev. Rev. Stat. Ann. § 1.465 (providing that a person who files a complaint with the commission is “absolutely immune from suit unless convicted of committing perjury before the Commission”); Wash. Rev. Code Ann. § 2.64.080 (“Statements made to the commission or its investigators or other employees are absolutely privileged in actions for defamation.”).

[69]See Appendix B.

[70]  Gray, supra note 1, at 406.

[71]See id.

[72]  Pennsylvania Judicial Conduct Board, Annual Report 2023, at 9 (2024), https://vma593.p3cdn1.secureserver.net/wp-content/uploads/2023-Annual-Report-Judicial-Conduct-Board-of-Pennsylvania.pdf.

[73]Id.

[74]See, e.g., Indiana Supreme Court, Annual Report 2022-2023, at 60, https://www.in.gov/courts/supreme/files/2223report.pdf (In FY 2023, the Indiana Judicial Qualifications Commission received 549 complaints alleging judicial misconduct. Of these, 96 were awaiting review at the end of the fiscal year; 415 were dismissed summarily as failing to raise valid issues of ethical misconduct or were dismissed with advisory letters on better practices; and only 38 required judges to respond.); Wisconsin Judicial Commission, Annual Report 7–8 (2023), https://www.wicourts.gov/courts/committees/judicialcommission/wjcannualreport2023.pdf (In 2023, the Wisconsin Judicial Commission received 588 initial inquiries (which include complaints, anonymous contacts, media reports, or referrals from other agencies). Of these, it only opened a request for investigation in 34 cases and, after that further step of review, only authorized investigations in 11 cases.); Massachusetts Commission on Judicial Conduct, Annual Report 5 (2022), https://www.mass.gov/doc/cjc-annual-report-2022/download (Massachusetts’s judicial conduct commission received 757 complaints in 2022. Of those, only 51 fell within the commission’s jurisdiction and were docketed for further screening or investigation.).

[75]  The states with a single commission are: Alaska (Alaska Const. art. IV, § 10); Arkansas (Ark. Const. of 1874, amend. 66); California (Cal. Const. art. VI, §§ 8, 18, 18.1, 18.5); Colorado (Colo. Const. art. VI, § 23); Connecticut (Conn. Gen. Stat. Ann. § 51-51k); Hawaii (Haw. Sup. Ct. R. 8.1); Idaho (Idaho Code Ann. § 1-2101); Indiana (Ind. Const. art. 7, § 9); Iowa (Iowa Code Ann. § 602.2102); Kentucky (Ky. Const. § 121); Louisiana (La. Const. art. V, § 25); Maine (Me. R. Comm. Jud. Conduct Order); Massachusetts (Mass. Gen. Laws Ann. ch. 211C, § 1); Michigan (Mich. Const. art. VI, § 30); Minnesota (Minn. Stat. §§ 490A.01, 490A.02); Mississippi (Miss. Const. art. VI, § 177A); Missouri (Mo. Const. art. V, § 24); Montana (Mont. Const. art. VII, § 11; Mont. Code Ann. § 3-1-1101); Nebraska (Neb. Const. art. V, § 28); Nevada (Nev. Const. art. VI, § 21); New Hampshire (N.H. Sup. Ct. R. 39); New Jersey (N.J. Ct. R. 2:15); New Mexico (N.M. Const. art. VI, § 32); New York (N.Y. Const. art. VI, § 22); North Dakota (N.D. Cent. Code Ann. § 27-23); Oregon (Or. Rev. Stat. Ann. § 1.410); Rhode Island (8 R.I. Gen. Laws Ann. § 8-16-1); South Dakota (S.D. Const. art. V, § 9); Texas (Tex. Const. art. 5, § 1-a); Utah (Utah Code Ann. § 78A-11-103); Vermont (Vt. R. Disc. Control Jud. 4); Virginia (Va. Const. art. VI, § 10); Washington (Wash. Const. art. IV, § 31); Washington, D.C. (D.C. Code Ann. § 11-1521).

[76]  The states with a single-body/two-panel model are: Arizona (Arizona Commission on Judicial Conduct, Commission Rules, Rule 3(f) (Jan. 1, 2021)); Florida (Fla. Const. art. V, § 12(b)); Georgia (Ga. Code Ann. § 15-1-21); Kansas (Kan. R. Jud. Cond. 602); North Carolina (N.C. R. Jud. Standards Comm’n 2); Ohio (Ohio S. Ct. R. for the Gov’t of the Bar of Ohio V, § 12(c)); South Carolina (S.C. App. Ct. R. 502.4); Tennessee (Tenn. Code Ann. § 17-5-201); and Wyoming (Wyo. Const. art. 5, § 6).

[77]  The states with separate bodies are: Alabama (Ala. Const. art. VI, §§ 156, 157); Delaware (Del. Ct. Jud. R. P. 3); Illinois (Illinois Const. art. VI, § 15); Maryland (Md. R. Judges 18-423); Oklahoma (Okla. Const. art. VII-A, § 2; Okla. Stat. Ann. tit. 20, § 1652); Pennsylvania (Pa. Const. art. V, § 18); West Virginia (W. Va. R. Jud. Disc. P. 1 & 3); and Wisconsin (Wis. Stat. § 757.87). Instead of two separate standing commissions, Wisconsin’s system has a single commission that decides whether to file a complaint. If it does, a three-judge panel is appointed to conduct the hearing. Wis. Stat. § 757.87. In contrast, in Alabama, for example, the Judicial Inquiry Commission investigates allegations of judicial misconduct and then, if warranted, files formal charges with the Alabama Court of the Judiciary. Each body consists of nine members, including judges, lawyers, and non-lawyers. The Court is convened only to hear complaints filed by the Judicial Inquiry Commission and decides whether to sanction the judge for misconduct after holding a public hearing. A judge can appeal its decisions to the Alabama Supreme Court. Ala. Const. art. VI, §§ 156, 157.

[78]  H.C.R. 23-1001, 74th Gen. Assemb., Reg. Sess. (Colo. 2023), https://leg.colorado.gov/bills/hcr23-1001.

[79]See National Center for State Courts, Available Sanctions in Judicial Discipline Proceedings (2019), https://www.ncsc.org/__data/assets/pdf_file/0015/15801/sanctions_tables_2019.pdf.

[80]Id.

[81]Id. These states are: Alabama, California, Delaware, Illinois, Kentucky, Nevada, New York, Pennsylvania, and Tennessee. Tennessee’s Board of Judicial Conduct cannot independently remove judges but can recommend removal to the legislature. Tenn. Code Ann. § 17-5-301(f)(1)(F).

[82]  The Illinois body with final authority is the Illinois Courts Commission, which consists of one justice from the Illinois Supreme Court, two judges from the Illinois Appellate Court, two judges from the Illinois Circuit Court, and two members of the public. Ill. Const. art. VI, § 15(e). In Delaware, sanctions are reviewed or imposed by the Court on the Judiciary, which is comprised of the justices of the Supreme Court, the chancellor of the Court of Chancery, and the president judge of the superior court. Del. Const. art. IV, § 37; Del. Ct. Jud. R. P. 15.

[83]  National Center for State Courts, supra note 79. These states are: Alaska, Colorado, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Carolina, South Dakota, Utah, Virginia, Wisconsin, Wyoming. See, e.g., Matter of Seraphim, 97 Wis.2d 485 (1980) (judicial conduct panel recommended removal or, in the alternative, suspension without pay for three years; the Wisconsin Supreme Court opted for suspension instead of removal). Oklahoma falls between this group and the former one. For misconduct that does not warrant removal, the Oklahoma Council on Judicial Complaints refers its findings to the chief justice of the Oklahoma Supreme Court for review and further action. Okla. Stat. Ann. tit. 5, ch. 1, app. 4-A, Rule 3. The chief justice then decides whether to refer the case to the entire supreme court conference for appropriate discipline, such as suspension, public reprimand, or mandatory education. Id. Rule 4. The chief justice and/or supreme court can also refer the case the Court on the Judiciary if the misconduct does constitute grounds for removal. Id. For misconduct that does warrant removal, the council refers its findings “to either the Supreme Court or the Chief Justice thereof, the Governor, the Attorney General, the Executive Secretary of the Oklahoma Bar Association, or the House of Representatives, who shall promptly file a petition invoking the jurisdiction of the trial division of the Court on the Judiciary.” Okla. Stat. Ann. tit. 20, § 1658. The trial division then determines appropriate discipline, if any, and the judge or prosecutor may appeal to the appellate division of the Court on the Judiciary, which has the final word instead of the state supreme court. Okla. Const. art. VII-A, §§ 4, 5. The appellate division consists of two supreme court justices, five district judges, one court of criminal appeals judge, and one active member of the Oklahoma Bar Association. Okla. Const. art. VII-A, § 2; Okla. R. Ct. Jud. Ch. 1, app. 7, § ROP 2.

[84]  National Center for State Courts, supra note 79. Arizona, Arkansas, Connecticut, Kansas, Maryland, Minnesota, Nebraska, New Hampshire, Texas, Vermont, Washington, West Virginia. In Connecticut, the commission can directly impose suspension for less than a year but must recommend longer suspensions to the state supreme court. Id. Although Vermont is not classified in this group in the National Center for State Courts review, court rules provide that the commission may directly issue a public reprimand, Vt. R. Disc. Control Jud. 6(2), whereas suspension orders cannot go into effect until the supreme court issues an “order affirming or modifying such suspension,” id. 12(6).

[85]Judicial Discipline Proceedings Involving State Supreme Court Justices, 45 Jud. Conduct Rep. 14, 16 (2023), https://www.ncsc.org/__data/assets/pdf_file/0019/91513/JCR_Spring_2023.pdf (“At least 15 states have rules, statutes, or constitutional provisions that require review of a discipline case involving a supreme court justice by judicial officers other than the respondent’s colleagues on the court. In 12 of those states, judicial discipline procedures provide for the creation of a substitute court chosen by seniority, randomly, or by position (chief or presiding judge), or specifically appointed from appellate court judges, trial court judges, or both. … In three additional states, if a discipline case involves a supreme court justice, temporary justices are appointed to preside, not according to special rules for discipline proceedings, but according to general rules that apply in any type of case when a justice is disqualified, for example, if a family member is representing a party or a justice has an economic interest in a party.”).

[86]See id.

[87]  Gilman Halsted, Gableman Recuses from Prosser Ethics Case, WPR (Aug. 13, 2012), https://www.wpr.org/politics/gableman-recuses-prosser-ethics-case.

[88]  National Center for State Courts Center for Judicial Ethics, When Confidentiality Ceases in Formal Judicial Discipline Proceedings (2023), https://www.ncsc.org/__data/assets/pdf_file/0022/37633/Confidentiality_table.pdf. These states include: Alabama, Alaska, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Washington, West Virginia, and Wisconsin.

[89]Id. These states include: Colorado, Idaho, Iowa, Maine, Mississippi, Missouri, New Mexico, New York, South Dakota, Utah, Virginia, and Wyoming. Legislation pending in New York would provide for disclosure of proceedings before a fact-finding hearing instead of after it. S.B. S4398, 2023-2024 Leg., Reg. Sess. (N.Y. 2023). As of publication, the bill had cleared the senate and was pending in the assembly. The New York State Senate, Senate Bill S4398, https://www.nysenate.gov/legislation/bills/2023/S4398 (last visited July 3, 2024).

[90]  National Center for State Courts Center for Judicial Ethics, supra note 88. In addition to Washington, D.C., the four states are Delaware, Hawaii, and North Carolina, and Oklahoma. Oklahoma falls in this category for lesser misconduct, which is adjudicated by the Oklahoma Supreme Court, see supra note 83. However, for instances of misconduct that constitute grounds for removal and proceed to the Court on the Judiciary, proceedings become public before the fact-finding hearing.

[91]Confidentiality in Judicial Discipline Proceedings, 41 Jud. Conduct Rep. 2, 2–4 (2019).

[92]See, e.g., Wash. Comm. Jud. Conduct R. P. 11(a) (“Before the commission files a statement of charges alleging misconduct by or incapacity of a judge, all proceedings … shall be held confidential by the commission, disciplinary counsel, investigative officers, and staff … .”); Ala. R. P. Jud. Inquiry Comm’n 5.B (“The commission shall have no power to restrict speech or communications by persons other than the members, staff, and agents of the commission itself.”).

[93]See, e.g., S.D. Codified Laws § App. Ch. 16-1A Rule III (“All participants in the proceeding shall conduct themselves so as to maintain the confidentiality of the proceeding.”).

[94]Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978) (addressing Va. Code §§ 2.1–37.13 (1973), which made it a misdemeanor to divulge information regarding proceedings before a state judicial review commission).

[95]Confidentiality in Judicial Discipline Proceedings, supra note 91, at 3.

[96]Id. at 4–5.

[97]Id. at 5–7.

[98]See Milov-Cordoba et al., supra note 5 (compiling legislative “efforts to assert political power over state judicial branches and ensure judges would not be an obstacle to their policy goals”).

[99]Ex-Judicial Panelists: Abbott Ousted Them over Gay Marriage, Associated Press (Dec. 5, 2019), https://infoweb-newsbank-com.ezproxy.library.wisc.edu/apps/news/document-view?p=AWNB&t=&sort=YMD_date%3AD&fld-base-0=alltext&maxresults=20&val-base-0=houston%20chronicle%20judicial%20conduct%20commission%20ousted&docref=news/177A9ED9B130D988.

[100]Id.

[101]Id. The judge in that case, Dianne Hensley, sued the commission, claiming that its warning violated her religious and free speech rights under the state constitution and state statutes. See Mike Scarcella, Texas Justices Revive Lawsuit by Judge Censured over Same-Sex Marriage Stance, Reuters (June 28, 2024), https://www.reuters.com/legal/government/texas-justices-revive-lawsuit-by-judge-censured-over-same-sex-marriage-stance-2024-06-28/. The Texas Supreme Court ruled on June 28, 2024, that her claim could proceed. Hensley v. State Comm’n on Jud. Conduct, No. 22-1145 (Tex. June 28, 2024), https://fingfx.thomsonreuters.com/gfx/legaldocs/klvynnjlnpg/HECHT-opinion-Hensley%20v%20Commission%202024.pdf.

[102]Ex-Judicial Panelists: Abbott Ousted Them over Gay Marriage, supra note 99.

[103]Id.

[104]Id.

[105]  Hannah Albarazi, North Carolina Justice Anita Earls Opens Up About Diversity, Law360 (June 20, 2023), https://www.law360.com/articles/1687516/north-carolina-justice-anita-earls-opens-up-about-diversity; Robyn Sanders & Michael Milov-Cordoba, Judicial Ethics Doesn’t Bar Judges from Speaking Out About Diversity and Racial Injustice, Brennan Center for Justice (Sept. 20, 2023) https://www.brennancenter.org/our-work/analysis-opinion/judicial-ethics-doesnt-bar-judges-speaking-out-about-diversity-and-racial.

[106]  Complaint for Declaratory Judgment and Injunctive Relief, Earls v. N. Carolina Jud. Standards Comm’n, No. 1:23-CV-734, 2023 WL 8190395 (M.D.N.C. Nov. 22, 2023), https://www.documentcloud.org/documents/23932340-complaint_1-23-cv-00734-dmid1-6033sp79n; Mehr Sher & Grace Vitaglione, NC Judge Earls Fights for Job and Free Speech, Challenges Judicial Standards Commission’s Role in Unprecedented State Case, Carolina Public Press (Aug. 31, 2023), https://carolinapublicpress.org/61301/nc-judge-earls-fights-for-job-and-free-speech-challenges-judicial-commissions-role-in-unprecedented-state-case/.

[107]  Mehr Sher, Justice Earls, NC Commission End Legal Dispute; Free Speech Issue Unresolved, Carolina Public Press (Jan. 17, 2024), https://carolinapublicpress.org/62831/earls-nc-legal-dispute-ends-complaint-dismissed-free-speech/.

[108]  Jill Karofsky, What I Got for Challenging Trump’s Coup Attempt from the Bench, Slate (Feb. 15, 2023), https://slate.com/news-and-politics/2023/02/wisconsin-supreme-court-justice-coup-challenge-story.html; Henry Redman, Wisconsin Judicial Commission Dismisses Complaint Against Justice Jill Karofsky, Wisconsin Examiner (Feb. 13, 2023), https://wisconsinexaminer.com/briefs/wisconsin-judicial-commission-dismisses-complaint-against-justice-jill-karofsky/; Richard Niess, The Wisconsin Judicial Commission Blew It, Wisconsin Examiner (Feb. 15, 2023), https://wisconsinexaminer.com/2023/02/15/the-wisconsin-judicial-commission-blew-it/; Todd Richmond, Panel Scolds Wisconsin Justice For Remarks In Trump Case, Associated Press (Feb. 13, 2023), https://apnews.com/article/politics-wisconsin-state-government-united-states-2022-midterm-elections-donald-trump-3991b38cf7056f5de7358efd01b32681.

[109]  Karofsky, supra note 108.

[110]See, e.g., Geyh, supra note 28 (discussing potential for judges to weaponize the commission against each other).

[111]  Henry Redman, Protasiewicz Denies GOP Call for Recusal as Liberal Court Majority Takes Up Gerrymandering Lawsuit, Wisconsin Examiner (Oct. 7, 2023), https://wisconsinexaminer.com/2023/10/07/protasiewicz-denies-gop-call-for-recusal-as-liberal-supreme-court-majority-takes-up-gerrymandering-lawsuit/.

[112]  Scott Bauer, Liberal Wisconsin Supreme Court Justice Rejects GOP Call to Recuse on Redistricting Cases, Associated Press (Oct. 6, 2023), https://apnews.com/article/wisconsin-redistricting-justice-recuse-2f92a7ab6f326de16fcfb894e3e6bbb1.

[113]  Scott Bauer, Complaints over Campaign Comments by Wisconsin Supreme Court Justice Are Dismissed, Associated Press (Sept. 6, 2023), https://apnews.com/article/wisconsin-supreme-court-impeach-865fadb85762b0039490f218da3b8db8.

[114]Senate Public Hearing, Committee on Judiciary and Public Safety, August 22, 2023, 106th session (Wis. 2023), https://docs.legis.wisconsin.gov/raw/cid/1742141; Public Hearing, Committee on Judiciary and Public Safety, September 5, 2023, 106th session (Wis. 2023), https://docs.legis.wisconsin.gov/raw/cid/1743702; Wisconsin Judicial Commission, Members of the Commission, https://www.wicourts.gov/courts/committees/judicialcommission/members.htm (archived version dated July 30, 2023) (noting appointments in December 2021 for three of the public members and appointments in January and June 2022 for the other two). As context, the Wisconsin Judicial Commission consists of nine members—the Supreme Court appoints one judge from the Court of Appeals, one circuit court judge, and two lawyers; while the governor, with the advice and consent of the Senate, appoints five nonlawyers. Wis. Stat. § 757.83.

[115]Republicans Press Judicial Commission Appointees on Recusal Rules, WisPolitics (Aug. 22, 2023), https://www.wispolitics.com/2023/republicans-press-judicial-commission-appointees-on-recusal-rules/.

[116]See Baylor Spears, Senate Ends Session by Firing Evers Appointees, Approving Constitutional Amendments, Wisconsin Examiner (Mar. 13, 2024) https://wisconsinexaminer.com/2024/03/13/senate-finishes-session-by-firing-more-evers-appointees-approving-constitutional-amendments-education-bills/?emci=0f7b345d-e5e0-ee11-85fb-002248223794&emdi=ce4ce07d-37e1-ee11-85f9-002248223848&ceid=539931. The hearings took place on August 22, 2023, and September 5, 2023. Four of the five commissioners who faced public hearings had terms expiring in August 2023 and were reappointed to their positions. See State of Wisconsin Senate Journal One-Hundred and Sixth Regular Session (Aug. 9, 2023), https://docs.legis.wisconsin.gov/2023/related/journals/senate/20230809/_185. However, the timing of reappointment was not necessary to allow the senate to hold hearings. The Republican-controlled Wisconsin Senate routinely delays voting on appointments by the Democratic governor until the nominees take some action the legislators disagree with. If the Senate then votes against confirming the appointee, the action has the result of firing them. See e.g., Erik Gunn, Senate Republicans Fire Four Evers Appointees from Natural Resources, UW Health Boards, Wisconsin Examiner (Feb. 21, 2024), https://wisconsinexaminer.com/2024/02/21/senate-republicans-fire-four-evers-appointees-from-natural-resources-uw-health-boards/; Harry Redman, Republicans Reject Seven Evers Appointees Including Elections Commissioner and DNR Board Members, Wisconsin Examiner (Oct. 17, 2023), https://wisconsinexaminer.com/2023/10/17/republicans-reject-seven-evers-appointees-including-elections-commissioner-and-dnr-board-members/. Although the Committee on Judiciary and Public Safety held hearings on the four reappointments close to when Evers appointed the commissioners (in August 2023), it still seemingly followed this pattern. The fifth commissioner facing public hearing was in the middle of a term that had begun in January 2022 and would have extended to August 2024. And the Committee did not act on any of the five nominees’ prior nominations until Justice Protasiewicz took her seat on the court in August 2023. Those nominations date back to as early as December 2021. The senate ultimately voted in March 2024 to reject the appointments of four commissioners (including the original appointments for three to terms ending in August 2023). See Wisconsin State Legislature, Executive Appointment: Anderson, Yulonda, https://docs.legis.wisconsin.gov/misc/appointments/active/executive_appointment/21841; Wisconsin State Legislature, Executive Appointment: Foley, Jane, https://docs.legis.wisconsin.gov/misc/appointments/active/executive_appointment/21956; Wisconsin State Legislature, Executive Appointment: Jenkins, Janet, https://docs.legis.wisconsin.gov/misc/appointments/active/executive_appointment/23346; Wisconsin State Legislature, Executive Appointment: Keppel, Mary Beth, https://docs.legis.wisconsin.gov/misc/appointments/active/executive_appointment/22480; Wisconsin State Legislature, Executive Appointment: Ziewacz, Judy, https://docs.legis.wisconsin.gov/misc/appointments/active/executive_appointment/21958.

[117]See S.C.R. 1026, 56th Leg., First Reg. Sess. (Ariz. 2023), https://legiscan.com/AZ/text/SCR1026/id/2725256; H.J.R. 202, 88th Leg., Reg. Sess. (Tex. 2023), https://legiscan.com/TX/text/HJR202/2023.

[118]  Mont. Const. art. VII, § 11 (“The legislature shall create a judicial standards commission consisting of five persons and provide for the appointment thereto of two district judges, one attorney, and two citizens who are neither judges nor attorneys.”).

[119]  Mont. Code Ann. § 3-1-1101 (1973); Mont. Code Ann. § 3-1-1101 (1993).

[120]  2021 Mont. Laws Ch. 433, § 1 (H.B. 380).

[121]  2023 Mont. Laws Ch. 188, § 2 (H.B. 326).

[122]  Mont. Code Ann. § 3-1-1101.

[123]  Keith Schubert, Montana Judges Defend Judicial Standards Commission at Legislative Hearing, Daily Montanan (Sept. 14, 2021), https://dailymontanan.com/2021/09/14/montana-judges-defend-judicial-standards-commission-at-legislative-hearing/.

[124]See id.; Milov-Cordoba et al., supra note 5 (listing several Montana bills that would interfere with judicial decision-making, change judicial selection methods, reduce court resources, and subject judges to civil liability for conduct departing from “the person’s public duty”).

[125]  H.B. 685, 67th Leg., 2021 Sess. (Mont. 2021), https://leg.mt.gov/bills/2021/BillHtml/HB0685.htm.

[126]Id.; see also Keith Schubert, Lawmakers Look to Place Discipline of Judges in Citizens’ Hands, Daily Montanan (Mar. 31, 2021), https://dailymontanan.com/2021/03/31/lawmakers-look-to-place-discipline-of-judges-in-citizens-hands/.

[127]  Colin Campbell, NC Budget Will Give Legislature More Power over Community Colleges, Judges, WFAE (Sept. 29, 2023), https://www.wfae.org/2023-09-29/nc-budget-legislature-more-power-community-colleges-judges.

[128]  N.C. Gen. Stat. Ann. § 7A-375(a). The six judges appointed by the chief justice consist of two court of appeals judges, two superior court judges, and two district court judges. Id. The four judges appointed by the general assembly include two district court judges and two superior court judges (one of each type recommended by the senate president pro tempore and the house speaker). Id.

[129]See N.C. Gen. Stat. Ann. § 7A-375(a) (2022); Appendix A.

[130]  Adam Bonica & Maya Sen, Judicial Reform as a Tug of War: How Ideological Differences Between Politicians and the Bar Explain Attempts at Judicial Reform, 70 Vand. L. Rev. 1781, 1806–08 (2017) (outlining Republican efforts in 2016 at 2017 to move the judiciary to the right, including making judicial elections partisan); Mehr Sher, Proposed Changes to N.C. Judicial Standards Commission Raise Concerns About Judicial Integrity and Oversight, Part Two, Carolina Public Press (July 21, 2023), https://carolinapublicpress.org/60805/proposed-changes-to-n-c-judicial-standards-commission-raise-concerns-about-judicial-integrity-and-oversight-part-two/ (citing lawmakers, attorneys, and scholars concerned about giving a more partisan judiciary greater control over the commission process); Milov-Cordoba et al., supra note 5 (classifying the budget bill as a move that “would politicize judicial discipline”).

[131]See, e.g., Milov-Cordoba et al., supra note 5 (“North Carolina’s budget (H.B. 259) authorizes the legislature to appoint 10 new special superior court judges and grants the state’s conservative chief justice, a close ally of the legislature, the power to handpick the panel of judges hearing all redistricting cases and any facial constitutional challenge to state law. The chief justice’s authority includes the power to appoint the new special superior court judges, who previously were not authorized to sit on such panels.”).

[132]  Doug Bock Clark, North Carolina Supreme Court Secretly Squashed Discipline of Two GOP Judges Who Admitted to Violating Judicial Code, ProPublica (June 17, 2024), https://www.propublica.org/article/north-carolina-supreme-court-republican-judges-violations.

[133]  2023 Idaho Sess. Laws Ch. 210, § 1 (S.B. 1148).

[134]  Idaho Code Ann. § 1-2101 (2022).

[135]  Idaho Code Ann. § 1-2101.

[136]Id.

[137]  Betsy Z. Russell, Governor Vetoes Controversial Judicial Council Changes, Idaho Press (Mar. 30, 2022), https://www.idahopress.com/news/local/governor-vetoes-controversial-judicial-council-changes/article_77f0826d-9f32-50a7-a853-ef34f8ceb473.html.

[138]Id.

[139]  Laura Guido, House Approves Changes to Judicial Council, Bill Goes to Governor’s Desk, Idaho Press (Mar. 22, 2023), https://www.idahopress.com/eyeonboise/house-approves-changes-to-judicial-council-bill-goes-to-governors-desk/article_2e4d41fa-c8f9-11ed-82e7-67ef554b23f1.html; Idaho Legislature, Senate Bill 1148, https://legislature.idaho.gov/sessioninfo/2023/legislation/S1148/ (signed by governor on March 30, 2023).

[140]  Tom Humphrey, Legislature Enacts New Discipline System for Judges, The Knoxville News-Sentinel (April 10, 2012).

[141]Id.; see also Tenn. Code Ann. § 17-5-201 (2009).

[142]  Tenn. Code Ann. § 17-5-201 (2012).

[143]  2019 Tenn. Pub. Acts Ch. 496, § 1 (H.B. 513).

[144]See id.

[145]  Georgia Secretary of State, Georgia Election Results, General Election, November 8, 2016 (last visited July 2, 2024), https://results.enr.clarityelections.com/GA/63991/184321/en/summary.html.

[146]  Ga. Const. art. VI, § 7, ¶ VI (“The General Assembly shall by general law create and provide for the composition, manner of appointment, and governance of a Judicial Qualifications Commission, with such commission having the power to discipline, remove, and cause involuntary retirement of judges as provided by this Article. Appointments to the Judicial Qualifications Commission shall be subject to confirmation by the Senate as provided for by general law.”).

[147]  Ga. Const. art. VI, § 7, ¶ VI (amended 2016).

[148]  Ga. Code Ann. § 15-1-21.

[149]Id.

[150]Id.

[151]See Elizabeth R. Rita & Anne R. McCord, Investigations Law Group, LLC, Colorado Judicial Branch Investigation Report and Assessment of Workplace Culture (2022) https://www.courts.state.co.us/userfiles/file/announcements/ILG–Colorado%20Judicial%20Branch%20Final%20Report–7-11-2022.pdf; Robert C. Troyer & Nicholas E. Mitchell, Independent Investigation into the Leadership Services Contract Awarded by the Colorado Judicial Department to the Leadership Practice LLC (2022), https://www.courts.state.co.us/userfiles/file/announcements/Troyer%20Mitchell%20Report-%20Independent%20Investigation%20into%20Leadership%20Services%20Contract.pdf; Lindsey Toomer, Bills to Improve Colorado Judicial Discipline, Workplace Culture Advanced by Lawmakers, Colorado Newsline (Mar. 16, 2023), https://coloradonewsline.com/2023/03/16/bills-to-improve-colorado-judicial-discipline-workplace-culture-advanced-by-lawmakers/; David Migoya, New Members to Colorado’s Judicial Discipline Commission Could Mean New Direction, Colorado Politics (Jan. 19, 2024), https://www.coloradopolitics.com/courts/new-members-to-colorados-judicial-discipline-commission-could-mean-new-direction/article_a96523d7-5094-572f-a5bf-33e481d9d99a.html; Chase Woodruff, Former Colorado Supreme Court Chief Justice Censured over Judicial Branch Misconduct, Colorado Newsline (Aug. 7, 2023), https://coloradonewsline.com/briefs/former-colorado-supreme-court-chief-justice-censured-over-judicial-branch-misconduct/.

[152]  Letter from Colorado Commission on Judicial Discipline to Colorado Legislative Interim Committee on Judicial Discipline (Aug. 7, 2022), https://leg.colorado.gov/sites/default/files/images/committees/letter_from_christopher_gregory.pdf; David Migoya, Colorado Voters to See Constitutional Amendment on Judicial Discipline Reform in 2024, Colorado Politics (Aug. 14, 2023), https://www.coloradopolitics.com/elections/colorado-supreme-court-constitutional-amendment-discipline-2024-ballot/article_75a2828c-9758-538a-aad3-20d3c82f297a.html.

[153]  Migoya, supra note 152 (noting the constitutional amendment proposal passed 97 to 1 across both legislative bodies).

[154]  H.C.R. 23-1001, 74th Gen. Assemb., Reg. Sess. (Colo. 2023), https://leg.colorado.gov/bills/hcr23-1001.

[155]  H.B. 23-1019, 74th Gen. Assemb., Reg. Sess. (Colo. 2023), https://leg.colorado.gov/bills/hb23-1019.

[156]  1994 Model Rules, supra note 46.

[157]  IAALS Report, supra note 2.

[158]  Joint Committee on Professional Discipline of the Appellate Judges’ Conference & the Standing Committee on Professional Discipline, American Bar Association, Standards Relating to Judicial Discipline and Disability Retirement (1978) [hereinafter 1978 ABA Standards].

[159]See 1994 Model Rules, supra note 46, Preface. The Joint Subcommittee on Judicial Discipline, which drafted the 1994 Model Rules, was co-chaired by Vivi Dilweg, Judge of the Circuit Court, Green Bay, Wisconsin, and Barbara Crabb, Chief Judge, United States District Court for the Western District of Wisconsin. Id.

[160]Id. (“The goals adopted by the Joint Subcommittee were to: (1) assure conformity with the new ABA Model Code of Judicial Conduct, (2) ensure prompt and fair discipline for judges, (3) enhance public confidence in the judiciary and in the judicial disciplinary system, (4) ensure the protection of the public and the judiciary, (5) protect the independence of the judiciary and (6) establish a model for states to use as a resource to establish improved judicial discipline systems.”).

[161]  IAALS Report, supra note 2, at 1.

[162]Id.

[163]Id.

[164]  1994 Model Rules, supra note 46, § 1, Rule 2 Commentary (adopting this recommendation to “to make certain the commission is free from interference from any branch of government”); see also IAALS Report, supra note 2, at 5 (“We agree with the ABA model rules that constitutional creation is preferable—“essential” said one Convening participant—so as to lessen undue interference in commission activities.”).

[165]See, e.g., In re Young, 976 P.2d 581, 582 (Utah 1999) (analyzing constitutional provision outlining commission and holding that enabling statutes did not violate separation of powers). Cf. In re Comm’n on Jud. Tenure & Discipline, 670 A.2d 1232, 1234 (R.I. 1996) (holding that statutorily established commission with members of the state legislature on it did not violate separation of powers either, though the court was evenly divided and consequently applied a “presumption of constitutionality” to uphold the commission’s membership).

[166]  Jessica Bulman-Pozen & Miriam Seifter, The Right to Amend State Constitutions, Yale L.J. Forum 191, 196 (Nov. 2023). Delaware is the only exception. Id.

[167]See supra section II.B (discussing statutory changes in North Carolina, Idaho, and Tennessee, all of which have commissions created by statute).

[168]See supra note 40 (noting states with commissions created by court rules); Cranney, supra note 20.

[169]  Utah Const. art. VIII, § 13 (“A Judicial Conduct Commission is established which shall investigate and conduct confidential hearings regarding complaints against any justice or judge.”); Utah Code Ann. § 78A-11-103(1) (outlining membership and appointment via statute). See also Mont. Const. art. VII, § 11 (“The legislature shall create a judicial standards commission consisting of five persons and provide for the appointment thereto of two district judges, one attorney, and two citizens who are neither judges nor attorneys.”).

[170]  Minn. Const. art. VI, § 9.

[171]  Minn. Stat. §§ 490A.01, 490A.02.

[172]See, e.g., Ill. Const. art. VI, § 15(d) (“The Board shall adopt rules governing its procedures.”); Del. Const. art. IV, § 37.

[173]  Del. Const. art. IV, § 37.

[174]  Del. Del. Ct. Jud. R. P. 3.

[175]See, e.g., IAALS Report, supra note 2, at 5 (“populating a commission with a majority or super-majority of judges (which still characterizes a handful of commissions) heightens the concern that judges are unlikely to deal impartially with complaints about fellow judges”); Chad Blair, Chad Blair: Hawaii Ethics Commission May Increase Oversight of Judges, Honolulu Civil Beat (Nov. 26, 2023), https://www.civilbeat.org/2023/11/chad-blair-hawaii-ethics-commission-may-increase-oversight-of-judges/ (questioning the efficacy and independence of a judicial conduct commission appointed entirely by the state supreme court); Andres Harris & Marie Rohde, Wisconsin Top Court Fires Judicial Oversight Panel Chief, Bloomberg (May 11, 2012), https://www.bloomberg.com/news/articles/2012-05-11/wisconsin-top-court-fires-judicial-oversight-panel-chief.

[176]  Cranney, supra note 20.

[177]Id.

[178]See supra, section II.A; Milov-Cordoba et al., supra note 5; Berry et al., supra note 5.

[179]  1994 Model Rules, supra note 46, § I, Rule 2.3; IAALS Report, supra note 2, at 5.

[180]See, e.g., Daniel P. Tokaji, America’s Top Model: The Wisconsin Government Accountability Board, 3 U.C. Irvine L. Rev. 575, 579 (2013) (lauding Wisconsin’s former Government Accountability Board, which included appointment and confirmation methods aimed at ensuring members had bipartisan consensus, as a model for nonpartisan election administration); Daniel P. Tokaji, The Future of Election Reform: From Rules to Institutions, 28 Yale L. & Pol’y Rev. 125, 144 (2009); Nicholas Stephanopoulos, Our Electoral Exceptionalism, 80 U. Chi. L. Rev. 769, 783–84 & n.64 (2013) (noting other countries’ mixed redistricting commission member selection methods); Kevin Johnson, The Carter Center & Election Reformers Network, New Models for Keeping Partisans out of Election Administration 15 (2024), https://www.cartercenter.org/resources/pdfs/news/peace_publications/democracy/new-models-keeping-partisans-out-election-admin-013122.pdf (advocating appointment processes that prevent control by one or both political parties and involve other relevant stakeholders); Brennan Center for Justice, Model Legislation for Independent Redistricting Commissions (Dec. 12, 2019), https://www.brennancenter.org/sites/default/files/2019-12/2019_10_ModelBills_longtextFINAL.pdf. Cf. Rebecca Green, Adversarial Election Administration, 101 N.C. L. Rev. 1077 (2023) (suggesting that “intentionally staffing elections with partisans, when thoughtfully designed, can serve important goals”).

[181]  1994 Model Rules, supra note 46, § I, Rule 2.3; IAALS Report, supra note 2, at 5.

[182]  1994 Model Rules, supra note 46, § I, Rule 2 Commentary.

[183]Id.

[184]See, e.g., Tal Axelrod, Trump to Tap Conservative Activist Tom Fitton to Serve on Judicial Oversight Body, The Hill (Oct. 3, 2020), https://thehill.com/homenews/administration/519488-trump-to-tap-conservative-activist-tom-fitton-to-serve-on-judicial/ (discussing appointment of conservative activist to the Washington, D.C., Commission on Judicial Disabilities and Tenure).

[185]  1994 Model Rules, supra note 46, § I, Rule 2.4; IAALS Report, supra note 2, at 5.

[186]State ex rel. N.M. Jud. Standards Comm’n v. Espinosa, 73 P.3d 197, 202 (N.M. 2003). The court wrote that it thought “it more likely a governor would use the power to remove a Commissioner whose performance is inadequate.” Id.

[187]See supra notes 99–104 and 111 –16 and accompanying text.

[188]See, e.g., Ill. Const. art. V, § 9 (“Any nomination not acted upon by the Senate within 60 session days after the receipt thereof shall be deemed to have received the advice and consent of the Senate.”); Minn. Stat. Ann. § 15.066 (“[I]f the senate does not reject an appointment within 60 legislative days of the day of receipt of the letter of appointment by the president of the senate, the senate has consented to the appointment.”); Pa. Const. art. IV, § 8 (similar 25-day requirement).

[189]See, e.g., Utah Code Ann. § 67-1-1.5 (“If the Senate fails to consent to that person within 90 days after the day on which the governor submits the nominee’s name to the Senate for consent … the nomination is considered rejected … .”); La. Const. art. IV, § 5 (“Failure of the Senate to confirm the appointment, prior to the end of the session, shall constitute rejection.”).

[190]Matter of Larsen, 616 A.2d 529, 533 (Pa. 1992).

[191]In re Comm’n on Jud. Tenure & Discipline, 916 A.2d 746, 751 (R.I. 2007); see also Matter of Deming, 736 P.2d 639, 643, amended, 744 P.2d 340 (Wash. 1987) (“The independence of the referees of government must not be compromised nor judges intimidated by a judicial qualifications commission that fails to remember that its dual function is not only to protect the public from judges who violate the Code of Judicial Conduct, but also to protect judges from harassment and meritless complaints.”).

[192]Van Hook v. Idaho, No. 1:21-CV-00199, 2022 WL 344439, at *4 (D. Idaho Feb. 4, 2022) (quoting a letter from the Executive Director of the State of Idaho Judicial Council to the plaintiff).

[193]Drake v. Willing, No. 03-14-00665-CV, 2015 WL 5515903, at *6 (Tex. App. Sept. 16, 2015).

[194]See, e.g., Arizona Commission on Judicial Conduct, How to File a Complaint Against a Judge, https://www.azcourts.gov/portals/137/ComplaintForm/Online%20Complaint%20Form%20-%20English%20(2023-01-12).pdf (“I affirm, under penalty of perjury, that the foregoing information and the allegations contained in the attached complaint are true.”); Delaware Court on the Judiciary, Confidential Complaint Against a Judge/Commissioner/Magistrate, https://courts.delaware.gov/forms/download.aspx?id=102188 (“I solemnly swear or affirm under penalty of perjury that the contents of this complaint are true and correct to the best of my knowledge, information and belief.”); Florida Judicial Qualifications Commission, Complaint Against a Judge, https://floridajqc.com/wp-content/uploads/2018/06/COMPLAINT-AGAINST-A-JUDGE-06042018.pdf (“UNDER THE PENALTY OF PERJURY, I declare that I have read and understand this complaint form, and the above information is true, correct, complete, and submitted of my own free will.”); cf. Kansas Commission on Judicial Conduct, Complaint Against a Judge, https://kscourts.gov/KSCourts/media/KsCourts/Judges%20-%20Secondary%20Nav%20Page%20PDFs/Judicial%20Conduct/ComplaintAgainstJudgeForm.pdf (“I declare that to the best of my knowledge and belief, the above information is true, correct and complete and submitted of my own free will.”).

[195]See, e.g., Wyoming Commission on Judicial Conduct and Ethics, Complaint Form (“I certify under penalty of false swearing that the information contained in the foregoing complaint to the Commission on Judicial Conduct and Ethics is true. … A person who knowingly makes a false certification above is guilty of false swearing in violation of Wyoming Statute § 6-5-303(c).”); Pennsylvania Judicial Conduct Board, Confidential Request for Investigation, https://vma593.p3cdn1.secureserver.net/wp-content/uploads/CRI-pdf.pdf (“I further swear (or affirm) that the above information is true and accurate. The statements in this complaint are made subject to the penalties of 18 Pa. C.S. § 4904 (relating to unsworn falsification to authorities).”); see also Pennsylvania Judicial Conduct Board, Frequently Asked Questions, https://judicialconductboardofpa.org/frequently-asked-questions/ (last visited July 3, 2024) (“Anyone who knowingly files a false complaint may face criminal charges.”).

[196]See, e.g., Mora v. Koch, 79 Misc.3d 434, 442, 190 N.Y.S.3d 575 (N.Y. S. Ct. 2023) (statements made in written complaint about judge submitted in online form to commission were “absolutely privileged” in defamation action); Matter of Larsen, 616 A.2d 529, 533 (Pa. 1992) (“All proceedings before the [commission] are privileged from liability for defamation, even if allegations are false and made with actual malice.”); Nev. Rev. Stat. Ann. § 1.465 (providing that a person who files a complaint with the commission is “absolutely immune from suit unless convicted of committing perjury before the Commission”); Wash. Rev. Code Ann. § 2.64.080 (“Statements made to the commission or its investigators or other employees are absolutely privileged in actions for defamation.”).

[197]See, e.g., Attorney Reprimanded After Filing Complaint About ‘Narcissist’ Judge, Connecticut Law Tribune (Apr. 6, 2022) (attorney alleged that the judge at a criminal hearing where his daughter was one of the victims “refused” to allow his daughter to speak but later admitted he had not read the hearing transcript); In re Conduct of Ard, 501 P.3d 1036 (Or. 2021) (concluding attorney’s conduct in filing complaint “was improper because he initiated [the] proceedings based on allegations of judicial misconduct and bias unsupported by any evidence” and “caused substantial potential and actual harm” to the judge).

[198]In re Ireland, 276 P.3d 762, 764, 771 (Kan. 2012).

[199]Id. at 767. Kan. R. Pro. Conduct 8.2(a) provides in full: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

[200]In re Ireland, 276 P.3d at 771.

[201]  Hoerner & Rosenbaum, supra note 20.

[202]Id.

[203]  Tenn. Code Ann. § 17-5-303.

[204]Id.

[205]Id.

[206]See, e.g., Tenn. Code Ann. §§ 17-5-303, 17-5-306, 17-5-307.

[207]  2021 Tex. Sess. Law Serv. Ch. 737, § 2 (H.B. 4344). In fiscal year 2023, the Texas commission failed to finalize 22 complaints within the 270-day statutory timeframe. Texas State Commission on Judicial Conduct, Annual Report 2023, at 14 (2023), https://scjc.texas.gov/media/46982/scjc-23-ar-final.pdf.

[208]  Ala. R. P. J.I.C. Rule 6, https://judicial.alabama.gov/docs/library/rules/jic6.pdf.

[209]See, e.g., Hoerner & Rosenbaum, supra note 20 (the Illinois commission “has seen its budget shrink in recent years even as the number of complaints has grown,” and “state officials warn that budget cuts hobble the agency’s ability to accomplish basic tasks”).

[210]  James David Dickson, Backlog of Judge Complaints Stacks Up—Panel Seeks an Extra $1.5M to Cut Down Misconduct Case Load, The Detroit News (Mar. 16, 2022).

[211]  State of Michigan Judicial Tenure Commission, Annual Report 2022, at 9 (2022), https://cms4files.revize.com/mjtc/annual_report/docs/2022%20Annual%20Report.pdf.

[212]  State of Michigan Judicial Tenure Commission, Annual Report 2023, at 9 (2023), https://cms4files.revize.com/mjtc/annual_report/docs/2023%20Annual%20Report.pdf.

[213]See Reinvent Albany, Groups Back Bill Boosting Judicial Conduct Funding and Transparency (Mar. 26, 2024), https://reinventalbany.org/2024/03/groups-back-bill-boosting-judicial-conduct-funding-and-transparency/; New York State Bar Association, Memorandum in Support of Adequately Funding the Commission on Judicial Conduct (Feb. 1, 2019), https://nysba.org/app/uploads/2020/03/19-20NYSBA9.pdf.

[214]  IAALS Report, supra note 2, at 6 (“several states’ lawyers pay a portion of their registration fees to cover judicial discipline system costs”); Colorado Commission on Judicial Discipline, Annual Report for 2020, at 1, https://ccjd.colorado.gov/sites/ccjd/files/documents/CCJD%20Annual%20Report%202020.pdf.

[215] John Shiffman & Michael Berens, The Long Quest to Stop a ‘Sugar Daddy’ Judge Accused of Preying on Women, Reuters (July 14, 2020), https://www.reuters.com/investigates/special-report/usa-judges-commissions/ (the investigation culminated in the state judicial commission “forc[ing] his removal and resignation on what was already scheduled to be his final day in office”).

[216]  1994 Model Rules, supra note 46, § I, Rule 2.6 & Commentary (“To assure the commission’s fiscal and operational independence, its necessary expenses should be provided for in a budget separate from that of the judicial branch. This protects the judiciary from the charge that it is withholding funds and thereby hampering the commission in investigating the conduct of its members. The commission should be authorized to prepare and submit its budget independently.”); IAALS Report, supra note 2, at 6 (“the judicial discipline commission should not be the budgetary ward of the judicial branch whose members’ conduct it investigates”).

[217]See, e.g., In re Lorona, 875 P.2d 795, 802 (Ariz. 1994) (assessing attorney fees); In re Braun, 83 P.2d 996, 999 (Ariz. 1994) (same); In re Lopez, 274 P.3d 405, 405 (Wyo. 2012) (same); In re Disciplinary Action Against McGuire, 685 N.W.2d 748, 767 (N.D. 2004) (same); Ariz. R. Comm’n Jud. Conduct Rule 17, https://www.azcourts.gov/Portals/137/rules/Commission%20Rules.pdf?ver=2021-02-17-122943-233 (“The commission may take any other informal action consistent with these rules, including, but not limited to … assessing attorney fees and costs.”); Colo. R. Jud. Disc. Rule 34 (“[T]he Commission may … Assess costs or fees of an investigation, examination or proceeding … .”); Neb. Ct. R. § 5-119 (“In cases where action is taken, costs shall be equitably assessed.”); Wyo. R. Jud. Conduct and Ethics Comm’n, Rule 19 (allowing commission to recommend “assessment of reasonable costs and fees”). But see Mich. Ct. R. Rule 9.202 (“A judge may not be ordered to pay the costs, fees, and expenses incurred by the commission in prosecuting the complaint.”).

[218]See, e.g., In re Robson, 500 P.2d 657, 662 (Alaska 1972) (“We agree with petitioner to the extent that in order to effectuate his right of counsel and not to be forced to appear as his own attorney, a judge prevailing in such proceeding may, in the discretion of the commission, be allowed reasonable attorney’s fees.”); Colo. C.R.J.D. Rule 23 (“If the Judge is exonerated of allegations of misconduct in a matter that does not involve disability issues and the Commission determines that the Judge’s payment of witness fees and expenses would work a financial hardship or injustice upon the Judge, then it may pay or reimburse such fees and expenses.”); La. S. Ct. R. XXIII, § 7 (“If a judge who is the subject of confidential proceedings before the Commission is exonerated and wishes to seek reimbursement of attorney fees, costs, or other expenses associated with the Commission proceedings from public funds, the judge may submit a written request to the Commission for a waiver of confidentiality for that purpose, and such request will be forwarded to the Supreme Court for consideration.”); Mass. Gen. Laws Ann. ch. 211C, § 7 (“With the approval of the supreme judicial court, a judge shall be entitled to the payment of reasonable attorneys’ fees by the commonwealth in any case where the matter is dismissed by the commission at any stage after the filing of a sworn complaint or statement of charges, where the supreme judicial court determines despite a commission recommendation for discipline that no sanction is justified, or where the supreme judicial court determines that justice will be served by the payment of such fees.”); Vt. R. Disc. Control Jud. 9(1)(b) (allows the supreme court to “direct, at its discretion, that such portion of the costs and expenses of the judge as it deems equitable shall be borne by the state” if a judge is exonerated of the commission’s charges); see also Doug Donovan, Four-Year Odyssey for Maryland Judge’s Fight Against a Complaint Ends in State’s Refusal to Pay Her Legal Bill, Baltimore Sun (June 19, 2019) (The commission recommended reprimand and training of judge, but the court of appeals dismissed the complaint outright, concluding that she had not violated the code of conduct. She sought reimbursement of more than $86,433 in attorney fees. The State Board of Public Works (which handles such requests) denied reimbursement.).

[219]See, e.g., In re Hapner, 737 So.2d 1075, 1076–77 (Fla. 1999) (the court reasoned that “[i]t is particularly important that an accused judge not be placed in the position of foregoing a defense against unwarranted charges because he or she might otherwise face financial ruin if unsuccessful in the proceeding” but limited “costs” awarded to things like “per diem fees, deposition costs, and costs associated with the preparation of the transcript and record”); Minn. R. Bd. on Jud. Standards Rule 12 (“Expenses of witnesses shall be borne by the party calling them, unless: … The judge is exonerated of the charges, in which case the Supreme Court may determine that the imposition of costs and expert witness fees would work a financial hardship or injustice and shall then order that those fees be reimbursed.”).

[220]  1978 ABA Standards, supra note 158, § 5.29 & Commentary (recommending “[c]osts of all proceedings should be at public expense” but that “[t]he judge’s attorney’s fees should not be at public expense”).

[221]  Peskoe, supra note 14, at 164 (Peskoe was a member of the ABA’s Subcommittee on Judicial Discipline, which worked to draft the standards).

[222]See, e.g., Sanders v. State, 159 P.3d 479, 481 (Wash. Ct. App. 2007) (discussing application of state statute requiring attorney general to “[d]efend all actions and proceedings against any state officer or employee acting in his official capacity” (quoting Wash. Rev. Code Ann. § 43.10.030(3))), aff’d, 166 Wash. 2d 164, 207 P.3d 1245 (Wash. 2009).

[223]  N.H. Sup. Ct. R. 40, https://www.courts.nh.gov/rules-supreme-court-state-new-hampshire/rule-40-procedural-rules-committee-judicial-conduct.

[224]  8 R.I. Gen. Laws Ann. § 8-16-14 (“Any judge who has been complained against under the provisions of this chapter and who has engaged the services of counsel to respond to the complaint, and where the complaint has been dismissed by the commission, shall be entitled to have his or her reasonable counsel fees paid by the state … .”); Sanders v. State, 159 P.3d at 485 (“[T]he attorney general has the discretion to provide a defense initially or instead to reimburse an accused judge for his or her defense costs later if the judge is exonerated of ethical wrongdoing.”); W. Va. R. Jud. Disc. P. 4.13.

[225]  W. Va. R. Jud. Disc. P. 4.13.

[226]See, e.g., Cal. Gov’t Code § 68755 (“No award of costs shall be made in any proceeding before the commission, masters, or Supreme Court.”); N.D. Cent. Code Ann. § 27-23-11 (“No award of costs may be made in any proceeding before the commission, a master, or the supreme court.”); N.M. R. Jud. Stds. Comm. 13 (“Except as otherwise set forth in these Rules, the parties shall each bear their own costs and attorney’s fees.”); N.M. R. Jud. Stds. Comm. 15.H (“The judge may be represented by counsel throughout these proceedings. The judge shall be responsible for any fees and costs associated therewith.”); Tex. Gov’t Code Ann. § 33.031 (“Court costs or attorney’s fees may not be awarded in a proceeding under this chapter.”).

[227]  Richard Belcher, Former Ethics Official Says He Wants Law to Cover Legal Fees for Judges Accused of Misconduct, WSB-TV (Aug. 11, 2022), https://www.wsbtv.com/news/local/atlanta/former-ethics-official-says-he-wants-law-cover-legal-fees-judges-accused-misconduct/PDYZXF274JGHHEB45R6SVZMTEY/.

[228]See, e.g., Landmark Comm’ns, Inc. v. Virginia, 435 U.S. 829 (1978) (noting that confidentiality is thought to encourage the filing of complaints and willing participation by witnesses, to protect judges from unfounded complaints, and to maintain confidence in the judiciary “by avoiding premature announcement of groundless claims of judicial misconduct”); Whitehead v. Nev. Comm’n on Jud. Discipline, 893 P.2d 866, 889 (1995); W. Braithwaite, Who Judges the Judges? 161–62 (Am. Bar Found. 1971); Richard S. Buckley, The Commission on Judicial Qualifications: An Attempt to Deal with Judicial Misconduct, 3 U.S.F. L. Rev. 244, 255 (1969) (“[Confidentiality] gives the individual judge and thereby the judiciary reputation protection until a full scale investigation has been made … .”); Swisher, supra note 19, at 22–23; Rebecca C. Roberston & David Larson, Public Complaint Against Judge Mckenna Flouts Judicial Guidelines, The Seattle Times (May 3, 2019) (“If complaints were made public [prior to a finding of probable cause for their validity], it would have a chilling effect on judges if they had to respond to every unhappy litigant that publicly made unfounded allegations.”); IAALS Report, supra note 2, at 14; 1994 Model Rules, supra note 46, § II, Rule 11 & Commentary (“In the initial stages of the disciplinary case, confidentiality is necessary to protect a judge’s reputation from unfounded charges and to protect witnesses from possible recriminations while a claim is being investigated.”).

[229]See, e.g., Andrea Gallo & John Simerman, Amid Blowback over Secrecy, Louisiana Supreme Court Changes Confidentiality Rules, The Advocate (Sept. 6, 2019), https://www.theadvocate.com/baton_rouge/news/courts/amid-blowback-over-secrecy-louisiana-supreme-court-changes-confidentiality-rules/article_7756f498-d0d4-11e9-917c-b732c5ab4dda.html; Andrea Gallo, Under Legislative Pressure, Judiciary Commission Mulls More Confidentiality Changes, The Advocate (Mar. 2, 2020), https://www.theadvocate.com/baton_rouge/news/courts/under-legislative-pressure-judiciary-commission-mulls-more-confidentiality-changes/article_20514310-5743-11ea-8582-37d52b7d13fe.html; The New York State Senate, Senate Acts to Strengthen Judicial Accountability and Transparency (May 16, 2023), https://www.nysenate.gov/newsroom/press-releases/2023/senate-acts-strengthen-judicial-accountability-and-transparency; Cranney, supra note 20; Berens & Shiffman, supra note 19.

[230]See, e.g., Matter of Chiovero, 570 A.2d 57, 60 (Pa. 1990) (“Unaccountable secrecy, with its attendant opportunity to harass, intimidate, favor, raise or lower standards in particular unreported cases, to satisfy their view of what ought to be or not be, is a power beyond any known to our law. A tribunal that operates in secrecy can indulge its suspicions, yield to public pressure, even its whims, send zealous agents with a deliberate intent to find grounds to bring a judge beneath its influence for good or purposes of their own.”); Whitehead, 893 P.2d at 878 (“It should be apparent, however, why this court is so concerned about the possibility of selective prosecution or discrimination when the Commission is in a position to bestow favors upon certain judges and inflict what may appear to be inordinate punishment and abuse upon others through the simple expedients of secrecy and disregard of its own rules.”).

[231]  Ken Coleman, Independent Review of Judicial Oversight Panel Announced Amid Allegations of Racial Bias, Michigan Advance (June 14, 2023), https://michiganadvance.com/blog/independent-review-of-judicial-oversight-panel-announced-amid-allegations-of-racial-bias/.

[232]  Letter from Association of Black Judges of Michigan to Michigan Supreme Court Chief Justice Elizabeth T. Clement re: Michigan Judicial Tenure Commission (Mar. 27, 2023), https://mcusercontent.com/8699d94f2bd6f99f30370cc19/files/dcdbd108-fef4-5913-439c-90199c4d348a/MSC_letter_final_version_March_27.pdf.

[233]  Michigan Judicial Tenure Commission, Judicial Tenure Commission Seeks Independent Audit (June 13, 2023), https://cms4files.revize.com/mjtc/docs/announcement%20re%20independent%20audit.pdf (emphasis added).

[234]See id.

[235]  Michigan Judicial Tenure Commission, National Center for State Courts Statistical Review (Feb. 16, 2024), http://jtc.courts.mi.gov/newsdetail_T2_R230.php.

[236]See, e.g., IAALS Report, supra note 2, at 20 (“Commission orders, aside from stipulated dispositions, should adequately describe the underlying complaint, explain why the commission did or did not give credence to the complaint, why the conduct alleged does or does not constitute misconduct, and describe and justify the appropriate sanction. The orders should contribute to a common law of judicial discipline, including defining the meaning of ambiguous or general conduct codes. Commission orders—at least in non-dismissed cases—should be available online, searchable, and with guides or filters to identify different types of orders. The commission should provide summary statistics on commission activity, and consider posting judges’ aggregate disciplinary record, as state bars generally do as to lawyers.”)

[237]  Va. Code Ann. § 17.1-905; see also Peter Dujardin, Virginia Judges Aren’t Named When They’re Found Guilty of Misconduct. A Bill Heading to Youngkin’s Desk Would Change That., The Virginian-Pilot (Feb. 25, 2023), https://www.pilotonline.com/2023/02/25/virginia-judges-arent-named-when-theyre-found-guilty-of-misconduct-a-bill-heading-to-youngkins-desk-would-change-that/; Graham Moomaw, Virginia House Approves Bill to Boost Transparency When Judges Get Punished, Virginia Mercury (Jan. 27, 2023), https://www.virginiamercury.com/2023/01/27/virginia-house-approves-bill-to-boost-transparency-when-judges-get-punished/.

[238]  Arizona Commission on Judicial Conduct, Public Decisions, https://www.azcourts.gov/azcjc/Public-Decisions (last visited July 3, 2024).

[239]Id.

[240]  Clark, supra note 132.

[241]Id.

[242]  S.B. S4398, 2023-2024 Leg., Reg. Sess. (N.Y. 2023). As of publication, the bill had cleared the senate and was pending in the assembly. The New York State Senate, Senate Bill S4398, https://www.nysenate.gov/legislation/bills/2023/S4398 (last visited July 3, 2024).

[243]See, e.g., Texas Office of the State Auditor, A Management Control Audit of the State Commission on Judicial Conduct (1996), https://sao.texas.gov/reports/main/97-010.pdf; Auditor of the State of California, Commission on Judicial Performance: Weaknesses in Its Oversight Have Created Opportunities for Judicial Misconduct to Persist (2019), https://information.auditor.ca.gov/pdfs/reports/2016-137.pdf; Commonwealth of Massachusetts Office of the State Auditor, Massachusetts Commission on Judicial Conduct (2021), https://www.mass.gov/doc/audit-of-the-massachusetts-commission-on-judicial-conduct/download; Tim Osterstock & Maria Stahla, Report to the Utah Legislature: A Performance Audit of the Judicial Conduct Commission (2003), https://le.utah.gov/audit/03_10rpt.pdf.

[244]  Utah Office of the Legislative Auditor General, A Review of the Judicial Conduct Commission 2–3 (2002), https://le.utah.gov/audit/02_06rpt.pdf.

[245]  Osterstock & Stahla, supra note 243.

[246]See, e.g., Complaint for Declaratory Judgment and Injunctive Relief, Earls v. N. Carolina Jud. Standards Comm’n, No. 1:23-CV-734, 2023 WL 8190395 (M.D.N.C. Nov. 22, 2023), https://www.documentcloud.org/documents/23932340-complaint_1-23-cv-00734-dmid1-6033sp79n; Mike Cason, Alabama Justice Tom Parker claims victory in lawsuit against Judicial Inquiry Commission, AL.com (May 31, 2018), https://www.al.com/news/2018/05/alabama_justice_tom_parker_cla.html (In 2015, the Southern Poverty Law Center filed a complaint alleging that Alabama Supreme Court Associate Justice Tom Parker had violated ethical canons “by suggesting … that state courts should consider resisting the U.S. Supreme Court ruling legalizing same-sex marriage.” Parker filed a lawsuit claiming the investigation violated his free speech rights. A federal district judge granted his request for a preliminary injunction in part, and the parties ultimately reached a settlement that made that injunction permanent.); Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010) (preemptively bringing challenge to ban on party membership of judges (and other provisions), before registering as a party member); Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016) (judges seeking to enjoin commission from enforcing canons of judicial conduct that they alleged violated free speech rights).

[247]See, e.g., In re Davis, 991 N.W.2d 212 (Mich. 2023), reconsideration denied, 994 N.W.2d 506 (Mich. 2023); In re Disciplinary Proceeding Against Sanders, 955 P.2d 369 (Wash. 1998).

[248]See, e.g., In re Davis, 991 N.W.2d at 216 (“a ‘judge must . . . accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly’” (quoting Mich. Code of Jud. Conduct, Canon 2(A))); Earls v. N. Carolina Jud. Standards Comm’n, No. 1:23-CV-734, 2023 WL 8190395 (M.D.N.C. Nov. 22, 2023) (“A judge or judicial candidate running for office assumes not only the responsibility of administering the law but also the responsibility of understanding the ethical rules that apply.”); see also Noseda, supra note 35, at 527–30.

[249]Williams-Yulee v. Fla. Bar, 575 U.S. 433 (2015) (“We have recognized the ‘vital state interest’ in safeguarding ‘public confidence in the fairness and integrity of the nation’s elected judges.’” (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889 (2009) (internal quotation marks omitted))); Nicholson v. State Comm’n on Jud. Conduct, 409 N.E.2d 818, 823 (N.Y. 1980) (“Misconduct by a Judge or judicial candidate cannot be shielded from scrutiny merely because it takes place in the political forum. The First Amendment implications, if any there be, are far outweighed by the State’s interest in the integrity of its judiciary.”).

[250]See, e.g., sources cited supra note 2.

[251]See, e.g., In re Davis, 991 N.W.2d at 216 (“The right of free speech generally entitles a person to, among other things, protection from government persecution based on speech. The goal of disciplinary proceedings is not punitive; rather, it is to ‘restore and maintain the dignity and impartiality of the judiciary and to protect the public.’” (internal citations omitted) (quoting In re Ferrara, 582 N.W.2d 817, 827 (Mich. 1998))); Earls v. N. Carolina Jud. Standards Comm’n, No. 1:23-CV-734, 2023 WL 8190395 (M.D.N.C. Nov. 22, 2023) (“[A] Commission proceeding is ‘neither criminal nor civil in nature,’ but is instead ‘an inquiry into the conduct of a judicial officer, the purpose of which is not primarily to punish any individual but to maintain due and proper administration of justice in our State’s courts, public confidence in its judicial system, and the honor and integrity of its judges … .’” (quoting Matter of Crutchfield, 289 N.C. 597, 602, 223 S.E.2d 822, 825 (1975))).

[252]In re Davis, 991 N.W.2d at 216.

[253]Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

[254]  Center for Judicial Ethics of the National Center for State Courts, Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002), (July 2018), https://www.ncsc.org/__data/assets/pdf_file/0021/15429/caselawafterwhite.pdf; see also Duwe v. Alexander, 490 F. Supp. 2d 968 (W.D. Wis. 2007) (holding that rule requiring judges to recuse themselves when considering cases where they had previously committed to position violated First Amendment); Williams-Yulee v. Fla. Bar, 575 U.S. 433 (2015) (upholding state judicial conduct prohibition on judicial candidates personally soliciting campaign funds); Aman McLeod, Understanding Williams-Yulee v. the Florida Bar and Its Implications for Freedom of Speech in Judicial Elections, 52 First Amend. Stud. 61 (2018); Raymond J. McKoski, The Political Activities of Judges: Historical, Constitutional, and Self-Preservation Perspectives, 80 U. Pitt. L. Rev. 245 (2018); Jeff Amy, Georgia Court Candidate Sues to Block Ethics Rules So He Can Keep Campaigning on Abortion, Associated Press (May 6, 2024), https://apnews.com/article/john-barrow-georgia-supreme-court-lawsuit-64e2e6c227bb6e8bf81af7eae4926be3.

[255]Hensley v. State Comm’n on Jud. Conduct, No. 22-1145 (Tex. June 28, 2024), https://fingfx.thomsonreuters.com/gfx/legaldocs/klvynnjlnpg/HECHT-opinion-Hensley%20v%20Commission%202024.pdf. The trial court and appeals court dismissed her claims for want of jurisdiction, but the Texas Supreme Court ruled on June 28, 2024, that her claim could proceed. Id.; see also Scarcella, supra note 101.

[256]See, e.g., Lynne H. Rambo, When Should the First Amendment Protect Judges from Their Unethical

Speech, 79 Ohio St. L.J. 279 (2018); Louis J. Virelli II., (A Bit More) on Judicial Speech and the First Amendment, 79 Ohio ST. L.J. Furthermore 83 (2018); Dmitry Bam, Seen and Heard: A Defense of Judicial Speech, 11 Liberty U. L. Rev. 765 (2017); Noseda, supra note 35, at 539–47.

[257]See, e.g., In re McDonough, 296 N.W.2d 648, 690 (Minn. 1979) (acknowledging that a judge’s hearing before the Board contained “procedural deficiencies” and at least one violation of the Board’s rules); Matter of White, 181 A.3d 750, 768, 771–72 (Md. 2018) (noting that the Commission made several mistakes, including impermissibly withholding documents by claiming they were attorney work product); sources cited infra notes 259–70.

[258]  Ala. R. P. Jud. Inquiry Comm’n Rule 19.

[259]See Matter of Chiovero, 570 A.2d 57, 61 (Pa. 1990) (“[Supreme Court review] does not mean … that procedural irregularities and constitutional violations will be countenanced or overlooked, simply because our final determination may ‘cure’ all procedural and substantive defects.”); Day, 413 P.3d 907 (Or. 2018) (declining to consider allegations that were not included in the notice to the judge because it violated due process but ultimately imposing sanctions based on other violations that were properly noticed); State ex rel. Currin v. Comm’n on Jud. Fitness & Disability, 815 P.2d 212, 215 (Or. 1991) (commission violated judge’s due process rights by not providing notice); Richter v. State Comm’n on Jud. Conduct, 106 Misc. 2d 22, 24, 430 N.Y.S.2d 796, 798 (N.Y. Sup. Ct. 1980) (enjoining Commission from conducting a “fishing expedition” of a judge’s conduct).

[260]See, e.g., Matter of Del Rio, 256 N.W.2d 727 (Mich. 1977) (“we cannot agree that this Court’s decision, upon the Commission’s recommendation, to order an interim suspension deprived the respondent of ‘liberty’ or ‘property’ contrary to state constitutional guarantees of due process”); Mosley v. Nevada Comm’n on Jud. Discipline, 22 P.3d 655 (Nev. 2001) (concluding “that commissioned judges in this state have a protected interest in their judicial offices”); Shaman, supra note 6, at 837–56 (discussing applicable due process rights); Jeffrey M. Shaman, Steven Lubet & James J. Alfini, Judicial Conduct and Ethics § 13.09 (3d ed. 2000) (collecting cases).

[261]See, e.g., In re McDonough, 296 N.W.2d at 691 (“Because the Supreme Court’s independent judgment is involved here, we are somewhat less concerned about the possible biases and procedural shortcomings below.”); In re Gillard, 271 N.W.2d 785, 813 (Minn. 1978) (“Because this court conducts an independent review of the evidence and accords the Judicial Board’s disciplinary recommendations no presumptive weight, the absence of a quorum should not be fatal … .”); In re Conduct of Karasov, 805 N.W.2d 255, 271 (Minn. 2011) (“Variations from or violations of the Rules of the Board on Judicial Standards during the investigation or hearing process, however, do not, in and of themselves, constitute a due process violation.”); Matter of Gelfand, 512 N.E.2d 533, 535–36 (N.Y. 1987) (concluding that, although it was improper for the commission to consider extensive factual findings based on uncharged incidents, a new hearing was unnecessary to satisfy due process because of the court’s “power to review the facts in cases involving judicial misconduct”); Matter of Duncan, 541 S.W.2d 564, 568 (Mo. 1976); Jones v. Nevada Comm’n on Jud. Discipline, 129 Nev. 1129, 2013 WL 4436476 (Table) (Nev. 2013) (unpublished); In re Hill, 568 A.2d 361, 367 (Vt. 1989) (“Although the record supports a violation of [a commission rule] and we share [the justice’s] position that failure to comply with [the rule] undermines the integrity of the process, we cannot find prejudice to [the judge] in this case.”).

[262]  Gray, supra note 1, at 414; see also, e.g., In re Anderson, 82 P.3d 1134, 1146–47 (Utah 2004).

[263]See, e.g., Matter of Byrne, 420 N.Y.S.2d 70, 72 (N.Y. Ct. Jud. 1978) (court found that judge “failed to show that the State Commission on Judicial Conduct engaged in intentional and invidious discrimination”); Matter of Halverson, 169 P.3d 1161, 1177 (Nev. 2007) (accused judge requested to subpoena another judge who was recently disciplined before the commission in an attempted to demonstrate that she was being “singled out”; court agreed with commission’s denial of the request based on it being burdensome and overly broad); Matter of Davis, 946 P.2d 1033 (Nev. 1997) (Springer, J., dissenting) (arguing against removing a judge because he believed the commission had engaged in selective prosecution and had imposed an excessive penalty relative to the misconduct alleged).

[264]Whitehead v. Nev. Comm’n on Jud. Discipline, 893 P.2d 866, 889 (1995).

[265]Id.

[266]Id. at 909.

[267]Id. at 941.

[268]Whitehead Discipline Case Put Before Supreme Court, Las Vegas Sun (Oct. 7, 1996), https://lasvegassun.com/news/1996/oct/07/whitehead-discipline-case-put-before-supreme-court/.

[269]Richter v. State Comm’n on Jud. Conduct, 106 Misc. 2d 22, 24, 430 N.Y.S.2d 796 (N.Y. Sup. Ct. 1980).

[270]State ex rel. Shea v. Jud. Standards Comm’n, 643 P.2d 210, 223 (Mont. 1982).