We welcome a chance to respond to Divorce Corp‘s invitation to speak out on the topic, “oversight of judges” or the efficacy of corrective action for allegations of judicial misbehavior. The brief answer to the issue posed by Divorce Corp is, “there is no functional oversight of judges.” But it is more complicated than that. Our opinion comes from the perspective of our varied experience in family court reform in Maine. And … we write with some understanding of (a) Judicial Branch mechanisms for judicial oversight, and (b) the Maine state legislature’s take on its “oversight of the judiciary” (which includes judges) as a part of its constitutional powers. Problems with the complaint procedure for judges are a small part of much larger, more serious systemic problems with the entire family court system. We feel that a dysfunctional complaint system for judges cannot be looked at in isolation, while the rest of the system seems irreparably broken and in a state of near collapse.
There is an historic lag between the Judiciary’s self-concept of the nature of judges and that of the present day, informed public. In a pre-tech world, when the personal attitudes and behaviors of judges were less visible to the public, a large part of a judges’ power/mystique rested on his/her distance (invisibility) from public view. It was easier to sell the public an ideal image of core judicial attributes: impartiality, fairness, adroit use of discretion, adherence to the law, etc. However, in a Facebook/twitter/e-mail world, a poorly functioning judge may get continual exposure – warts and all, and this exposure puts a serious dent in the “ideal image” of what a judge should be. Judges can’t escape the social media world in which everyone else lives. A bad judicial judgment can go “viral”. Traditional judicial ‘gravitas’ has been dealt a blow from which it will never recover.
How then to deal with the new reality of “warts and all” judicial images? From what we can see in family courts, the legal establishment is in self – serving denial of the problem. Judicial misconduct or the need for any form of corrective action get handled by a mix of firm denial, legalistic complaint – driven approaches, placement of “buddies” on the complaint committee and by attacks and slurs on those who would complain. It is the problem of self-regulation of any industry. It gets magnified in a very closed, very opaque system in which a great deal of money is involved.
In the midst of this new reality, the Maine Judicial Branch takes little visible administrative or management action in correcting judges. More troubling, if one looks at a recent posting on their web site, they seem to be overtly calling for greater bench/bar coziness. A recent proposal to replace, or modify, the Maine Code of Judicial Conduct seems aimed at an even more judge-friendly approach. One telling phrase from the “proposal” jumps out: “… valuing close and regular contacts between the bench and the bar and in fostering involvement of judges with lawyers and non-lawyers in the larger community where judges live and work.” To public readers this phrase sounds like a call to enhance further the “old boy network”. Especially, if one considers the already “close regular contacts” that go on between the bar and the bench right up to and including the Supreme Court. The bar has huge, powerful, not always wholesome influence on judges. By using a mix of bullying and “make nice” techniques they manage gain judicial compliance and “correct their actions”- if unfavorable to the BAR. One wonders about the impact of all of this coziness on judicial impartiality and the issue of “undue influence”? The BAR plays a pivotal role in supporting or opposing judges up for re-appointment. One worries that the criteria for these judicial appointment or re-appointment matters are how lawyer friendly is this judge? This is all done beneath the public radar:
(A) Formal Judicial oversight mechanisms:
i) Judicial Responsibility and Disability Committee: Here is the link to this committee:
A big problem here is that this committee ignores the glaring fact that 74% of family court cases are ‘Prose’. A similar 74% would probably be complainants. This web site as “how to” is not “user friendly” for a ‘Prose’ complainant. It is multi-layered process, each layer must be put to rest before taking the next step. It is a very legalistic process. It requires legal knowledge. And the outcome? From what we can determine from many informants, ZIP!
Using a lawyer may make the legalistics a bit easier to navigate, but it is expensive and a lawyer must always be careful not to be too aggressive in promoting a claim or they may incur charges of disrespecting a judge and face a ‘sua sponte’ complaint from the Overseers of the BAR. It is a fraught situation to say the least, and having a lawyer doesn’t seem to make any difference in obtaining “corrective action”.
ii) Use of a Supreme Court appeal mechanism to address judicial misbehavior. In theory this is a possibility. The Supreme Court will hear cases involving claims of abuse of judicial discretion, but the attorney making the claim must walk a careful line. Here is a reproachful quote that may shed light: “[the lawyer] displays what appears to be a general disrespect for the court and for opposing attorney…”. This quote comes from a recent Court’s decision. This remark from the Court resulted in a ‘sua sponte’ complaint from the Overseers of the Bar, a subsidiary of the Court, about the lawyer, who had written a lengthy, unusually detailed, carefully documented brief. It made the case of serious judicial impropriety too perfectly!
(B) More Systemic approaches: Legislative actions of the Judiciary Committee of the Maine legislature.
The passage of legislative bills into law is one systemic strategy that, it is hoped, will correct some family court actions.
We have had some modest success in getting legislation passed in 2013 aimed at Guardian ad litem reform. It was the first rewrite of the GAL rules in many years. But … Its subsequent implementation in any family court is a question of judicial discretion, judicial enforcement, judges following the law. Most don’t know the law; most ignore it claiming “judicial discretion”.
i) Passing laws or bills aimed at correcting excessive judicial discretion. This is much needed but a daunting legislative challenge. The challenge comes in the form of the Legislature not being sure of the boundaries of its “oversight of the judiciary” constitutional mandate. But we are working on it.
ii) Public testimony in opposition to judicial appointment and reappointments when these issues come before the Judiciary Committee of the legislature.
We have only just tried this approach this year with mixed results. On the one hand, testimony from the public about the egregious actions of a judge up for re-appointment raised serious doubts about the judge’s fitness. For the first time ever the re-appointment was not a slam dunk. It got postponed until the following week. In the interim, the divorce industry rallied the troops and conducted an email blitzkrieg on committee members endorsing the judge as a paragon. They also conducted a “slur campaign” on those who testified. It was an amazing performance from which we learned much. It is all part of the record, and we shall return to try this approach with modifications based on “lessons learned”.
In summary, family court problems are a complex network of interacting systemic problems. Attempts to solve one issue such as judicial misconduct have to be looked at in terms of the total system.
MeGAL is working to reform the Family Court and Guardian ad litem system. If you have had an issue in this area we would ask that you contact us at MeGALalert@gmail.com of find us on Facebook.