EDITORIAL

The Judicial Review Council -

The Need for Confidentiality

by William F. Gallagher

The Judicial Review Council was set up to receive allegations of misconduct, to evaluate whether the allegations should be pursued, and to pursue by investigation or review of court proceedings those that are serious. The investigations are confidential and become open to the public and the media if a preliminary investigation results in a finding of probable cause concerning a complaint against a judge. It was not set up to drive judges off the bench. No person concerned about the integrity of the court would expect scandalous accusations which are completely unfounded to be given to the public. We believe confidentiality prior to the determination of probable cause is indispensable to preserve the integrity of our judicial system and the morale of our judges.

There has recently been controversy concerning the confidentiality of the Judicial Review Council, and its performance. It is claimed that in 17 years it has dismissed 97% of the complaints brought against judges, and has failed to remove a single judge from office.

Our research has disclosed that in 1995-1996, the last period for which figures are available, of the 46 states responding, 44 states dismissed over 80% of the complaints filed against judges. Specifically, 25% dismissed over 90%, 6 states dismissed 100%, and 13 states dismissed over 80%. There is a reason for this. It is called "sour grapes" – people dissatisfied with the outcome of their case.

A judge works a minimum of 220 days per year. Rulings are made in adversary proceedings. In each case there is usually a winner and a loser. In most cases, there are two on the losing side – the client and the attorney. Depending on the duties assigned to a particular judge, in a year’s time literally hundreds of rulings are made. We know of no statistics on this, but we know from observation that a G.A. judge may make as many as 100 decisions in a week, and a Part A criminal judge may make the same. A judge assigned to the civil jury side, including the short calendar, may routinely make several hundred decisions in a year’s time. Besides deciding cases, a judge conducts pretrials, prods the parties and lawyers into settlements – frequently with no one really happy about the settlement, requires attendance at hearings and trials, sets scheduling orders and trial dates, writes decisions, dismisses cases, imposes sentences, strikes complaints, grants summary judgment, enters judgment, and enforces orders of the court and order in the court.

People go to court because they are unsatisfied, angry, injured, or upset about something. Frequently they have a lot at stake - personal liberty, reputation, money, or economic security for the rest of their lives. In such situations the people who come out unsatisfied by the resolution of the conflict are, to put it mildly, unhappy. And there are thousands of them each year in exactly this situation.

Each one of these people has the right to complain to the Judicial Review Council. What is surprising is the rather small number of complaints. For example, in 1995-1996 in Connecticut there were only 88 complaints filed. It is not unreasonable to infer that a high number of these complaints are from people who are unhappy with the outcome of their case.

One of the reasons for the low number of complaints is the caliber of our judiciary. A great deal of care goes into the nomination and re-nomination of Connecticut judges. A rigorous procedure is used. The lawyer’s application to become a judge is made to the Judicial Selection Commission. The Governor can only appoint from a list of lawyers who are approved by this Commission. The Commission reviews the qualifications of each applicant and examines each applicant personally. This is done not only for the appointment but for re-appointment or for elevation to a higher court. Nominations are not simply handed out to politicians in return for loyal service without regard to qualification. The caliber of our judiciary is very high.

Another reason for the low number of complaints is the right of appeal. Clearly many of the people unhappy with the outcome of their case seek appellate review. The system has built within it an intense and focused review process that includes review of the conduct of the judge. What other profession has this kind of formal and established review? Certainly not the press, or accountants, or physicians, or any other professional that we can think of.

In all, our system works. Complaints are low because of the scrutiny given to applicants for the job; the conscientious performance of those who are appointed judges; and the built in review process.

There is no need to abolish the confidentiality prior to a finding of probable cause of complaints filed with the Judicial Review Council.