TBA Law Blog

Posted by: Jonathan Steen on Jul 21, 2014

A column published recently in the Times Free Press suggests that the Board of Judicial Conduct twisted words and conjured up technicalities to hide a serious breach of ethics. This criticism is unjust and deserves to be examined.

The Board of Judicial Conduct was legislatively created. In the matter complained about, the finding was made by the board’s Disciplinary Counsel and confirmed – as required by the new statute and rules enacted by the General Assembly – by a panel of the board. This finding was based on a close reading of the Code of Judicial Conduct.

The driving purposes behind the legislature’s 2012 initiative to rewrite judicial ethics rules was to bring better clarity and definition to the black letter rules and to ensure that the provisions do not violate the state constitution. Without commenting on the specifics of any case, the rules employ a precision of language necessary to decide whether a judge should be disciplined, or indeed, be removed from office. Such precision of language is not a "technicality."

Besides the assault on the integrity of those who serve on the Board of Judicial Conduct, the principal line of attack in the column is that the process is meant to hide wrongdoing. The statute creating the board mandates the confidentiality of complaints until they are reviewed and substantiated. This “secrecy” is similar to the Senate Ethics Committee process, created by Senate rule, for ethics complaints heard by the Senate against its own members. Similarly, the Tennessee Ethics Commission procedure, which applies to legislative and executive branch officials, requires that complaints remain secret until a finding of probable cause. This process properly avoids the effect of frivolous charges on the reputation of otherwise trustworthy officials. It also protects the investigatory process from premature disclosure.

Tennessee’s judges are accountable to the voters as elected officials, and will, beginning with early voting on July 18, face voters and their judgment as to whether they should stay in office. Distractions that call into question the integrity of the ethics process should be viewed in light that they come in the context of an election year.

Jonathan Steen is President of the Tennessee Bar Association