Alaska Commission on Judicial Conduct

Alaska's Commission on Judicial Conduct was created by amendment to the state constitution in 1968. The Commission is composed of three state court judges, three attorneys who have practiced law in the state for at least ten years, and three members of the public. This group of nine individuals from differing backgrounds and geographical areas addresses problems of judicial conduct and disability. Complaints alleging judicial misconduct can be filed by any person.
The Commission's Role and Function
How the Commission Operates
Commission Finances and Budget
Formal Ethics Opinions

The Commission's Role and Function

Judicial Officers Who Come Under the Commission's Authority

Alaska's Commission on Judicial Conduct oversees the conduct of justices of the Alaska Supreme Court, judges of the state court of appeals, state superior court judges, and state district court judges. The Commission cannot handle complaints against magistrates, masters, attorneys or federal judicial officers.

Complaints against state magistrates and masters are handled by the presiding superior court judge for their respective judicial district:
Alaska Bar Association Box 100279 Anchorage, Alaska 99510

Complaints against federal judges in Alaska are handled by:
Assistant Circuit Executive P.O. Box 42068 San Francisco, California 94101

Types of Complaints the Commission Can Address

Misconduct

Perhaps the broadest category of conduct complaints against judges falls under the term "misconduct." Judicial misconduct has very specific meaning under the Code of Judicial Conduct. The Code of Judicial Conduct generally governs the activities of judges both on and off the bench. It is a comprehensive statement of appropriate judicial behavior and has been adopted by the Alaska Supreme Court as part of the Rules of Court. Judicial misconduct can be divided into several categories.

Improper Courtroom Behavior

Often complaints against judges allege improper behavior in the courtroom during a trial. Allegations of improper courtroom behavior may include: improper consideration and treatment of attorneys, witnesses, and others in the hearing; improper physical conduct; or persistent failure to dispose of business promptly and responsibly.

Examples of improper courtroom behavior include: racist or sexist comments by a judge, sleeping or drunkenness on the bench. Judges can also be disciplined for administrative failures such as taking an excessive amount of time to make a decision.

Improper or Illegal Influence

Judges must be independent from all outside influences that may affect their abilities to be fair and impartial. Consequently, judges are restricted as to the types of activities in which they can participate. At a minimum, judges cannot allow family, social or political relationships to influence any judicial decision. Judges also should not hear a matter in which the judge has a personal interest in the outcome. Extreme examples of improper influence would include the giving or receiving of gifts, bribes, loans or favors. To help assure judicial independence, judges are required to file financial disclosure statements with the court and other financial statements with the Alaska Public Offices Commission.

Impropriety Off the Bench

Judges are required to live an exemplary life off the bench, as well. Consequently, the Commission has the authority and responsibility to look at judges' activities outside of the courtroom. Complaints dealing with off the bench conduct might allege: misappropriation or misuse of public employees, property or funds; improper speech or associations; interference with a pending or impending lawsuit; lewd or corrupt personal life; or use of the judicial position to extort or embezzle funds. Clearly, off the bench conduct includes a wide range of behavior from merely inappropriate actions to criminal violations.

Other Improper Activities

Judges are also subject to restrictions in other aspects of their positions. These include prohibitions against: conducting proceedings or discussions involving one party to a legal dispute; interfering with the attorney-client relationship; bias; improper campaign activities; abusing the prestige of the judicial office; obstructing justice; and criminal behavior.

Physical or Mental Disability

Apart from allegations of misconduct in office, the Commission also has the authority and responsibility to address allegations of judges' physical and mental disabilities. Disabilities may include: alcohol or drug abuse; senility; serious physical illness; or mental illness.

The Commission can require medical examinations as part of its investigation and also can recommend counseling when appropriate.

Complaints the Commission Cannot Address

The most common complaints that the Commission has no authority to address are questions of law. Frequently, complaints allege dissatisfaction with decisions that judges make in their judicial capacity. For example, individuals often complain of wrong child custody awards or sentences that judges impose in criminal cases. The Commission cannot enter into cases or reverse judicial decisions. That role belongs to the appellate courts.

How the Commission Operates

Filing a Complaint

While the Commission can initiate its own investigation, any person can also file a complaint against a state judge with the Commission. A form is not necessary, but the complaint should be in writing and should include enough information to enable the Commission staff to begin an investigation. Necessary information includes: the judge's name, the facts that constitute misconduct, a case number if it involves a court case, and the names of others present or aware of the facts. Complaints should be sent to:
Alaska Commission on Judicial Conduct 310 K Street, Suite 301 Anchorage, Alaska 99501

Commission staff will be happy to assist anyone in writing their complaints.

Complaint Investigation

Soon after a complaint is filed, the Commission will review the accusation. Commission staff will often interview the person who filed the complaint to determine the facts giving rise to the complaint. After the initial inquiry, the Commission may conduct a full investigation. All complaints within the Commission's legal authority are investigated further. If the charge is found to be without merit, an accusation against a judge may be dismissed by the Commission during the investigation. If a preliminary investigation supports the complaint, a formal investigation begins. It is at this stage that the judge involved is informed of the complaint. A formal investigation includes an interview with the judge.

Complaints filed with the Commission and all Commission inquiries and investigations are confidential. If the Commission finds that probable cause exists that a judge has committed misconduct, a formal statement of charges is issued. The statement of charges is public information. Some time after the formal charges issue, the Commission will hold an open public formal hearing on the matter. At that hearing, Special Counsel (hired by the Commission) presents the case against the judge. The judge is often represented by an attorney who presents that judge's defenses. The full Commission usually sits as decision makers in the matter and renders a decision that may include recommendations to the Alaska Supreme Court for sanctions against the judge. The results of a Commission proceeding are public when Commission recommendations are made to the supreme court.

The Commission's decision may be to: exonerate the judge of the charge or charges; recommend counseling; or recommend that the supreme court take formal action. The Alaska Supreme Court may impose one of the following sanctions against the judge: suspension, removal, retirement, public or private censure, reprimand,* or admonishment. (*The Commission on Judicial Conduct originally had statutory authority to issue reprimands without actions by the Alaska Supreme Court. That power was held to be unconstitutional by Inquiry Concerning a Judge, 762 P.2d 1292 (1988).)

Outreach

Commission brochures and posters inform the public of its purpose and functions. Brochures and posters are available to the general public free of charge, through the Commission's offices. In addition, Commission members and staff address bar associations, court administrators, local community groups and judicial programs. The Commission also maintains membership in four national organizations: the American Judicature Society's Center for Judicial Conduct Organizations, the American Bar Association, the National Association of Judicial Disciplinary Counsel, and the Council on Governmental Ethics Laws.

Rules of Procedure

The Commission's operations are governed by its own Rules of Procedure. While the statutes relating to the Commission broadly outline the Commission's responsibilities, the Rules of Procedure define how the Commission operates. In 1991, the Commission revised its rules clarifying many rules and increasing their scope. Some rules continued to be refined and modified in the past few years.

The rules are more comprehensive and specific in such areas as: discovery, evidence, motions, role of the chair, executive director's role and authority, contempt powers, standards for reopening complaints, and deliberative process. In addition, rules changes were needed to conform to new legislation.

Rules revisions were circulated for public comment prior to their adoption. The Commission's efforts are directed towards improving its public responsiveness, creating the fairest procedures, and fulfilling its directive under the state constitution.

Staffing

The Commission staff currently consists of an executive director, and an administrative assistant.

Commission Finances and Budget

The Commission's finances are planned according to the state fiscal year (July 1 - June 30). Each year the Commission on Judicial Conduct submits its budget request to the legislature. The Commission's resources are appropriated from general state operating funds.

Legislation

At the Commission's request, the House Judiciary Committee introduced a bill in 1989 that would open the Commission's formal hearings to the public. House Bill 268, passed in May 1990, also establishes a constant time period of six years for complaints against judges to be filed with the Commission. (The former law required a period of not more than six years before the start of the judge's current term; creating different time limits for different judges.) The bill also explicitly includes part-time or temporary judges within the Commission's authority. As a result of this bill's passage, all Commission formal hearings and recommendations to the Alaska Supreme Court are open to the public. The public will become aware of the evidence presented and the action taken by the Commission in future hearings. The public will also be aware of charges that are not supported by evidence and exoneration of these charges.

Formal Ethics Opinions

For the first time, in 1991, the Commission issued Formal Ethics Opinions. These opinions are based on actual Commission complaints that resulted in some form of private informal action. Formal Ethics Opinions are reported in a way that protects confidentiality. Only the minimum facts necessary to an understanding of the opinion are reported. The Commission continues supplementing these opinions as the situations occur. In 1994, the Commission continued to adopt new opinions.

Opinion #001

Judges who criticize jurors verbally, directly to them, for their work as jurors, violate Canons 2A and 3A (3) of the Code of Judicial Conduct.

Opinion #002

Judges who abuse the contempt power by jailing without basis or explanation act in an arbitrary and capricious manner that violates Canons 1, 2A, and 3A (4) of the Code of Judicial Conduct.

Opinion #003

Judges who use abusive and profane language off the bench towards attorneys appearing in their courtroom, violate Canons 1, 2 A, and 3 A (3) of the Code of Judicial Conduct.

Opinion #004

Judges who make racially oriented comments from the bench on issues that are not raised by the parties or without evidence taken, act in a way that constitutes conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

Opinion #005

Judges who make derogatory sexual comments while off the bench to female attorneys and witnesses in a pending proceeding violate AS 22.30.011 (a)(3)(C) and (D).

Opinion #006

Judges who write one party in a proceeding without copying the other side and fail to notify the other side of a meeting between the judge and a party act in a way that constitutes improper ex parte communication that are prejudicial to the administration of justice violating Canon 3A(4) of the Code of Judicial Conduct.

Opinion #007

Judges who make racist jokes at public events violate Canons 1 and 2 of the Code of Judicial Conduct. Such jokes are worse than profanity. While profanity may offend some and not others, racial slurs offend an identifiable class of people who have struggled to achieve equality.

Opinion #008

Judges who become involved with administrative matters of case assignments to other judges for personal reasons violate Canons 1, 2A, 2B, 3A(4) and 3C(1).

Opinion #009

Judges who have an overly brusque manner in dealing with court personnel do not violate the Code of Judicial Conduct but should be aware of the need to control and moderate demeanor when relating to court staff.

Opinion #010

Presiding judges who, on a single occasion, may not have adequately investigated a complaint against a magistrate do not violate the Code of Judicial Conduct but should devote adequate time and resources when investigating those complaints.

Opinion #011

Judges who give speeches on general legal issues at political party fundraising events violate Canons 7A (1) (b) and (c) of the Code of Judicial Conduct.

Opinion #012

Judges who use the title "judge" in promotional literature for their businesses and use the court system phone number to conduct business, violate Canon 5 C(1) by improperly exploiting the judges' position.

Opinion #013

Judges who share a home telephone line with a spouse's law practice should obtain a separate phone line for the law practice. Sharing a personal phone line with a spouse's law practice could lead to the perception that the judge was also practicing law, and, potentially to inadvertent ex parte communications.

Opinion #014

A judge who held a questionable ex parte evidence hearing did not violate the ethical prohibition on ex parte communications where there was an arguable legal basis for holding the hearing ex parte. The Commission could not conclude by clear and convincing evidence that objectively the actions were "obviously wrong in the circumstances." Under the facts of the case, the defendant posed an extreme security risk, the defendant acted as his own co-counsel (requiring his presence if defense counsel were allowed into the hearing), and the judge preserved the entire transaction on record for review. (Approved August 28, 1992)

Opinion #015

A judge's phone call to the head of a state office responsible for handling criminal litigation regarding the state of the law under a landmark case, violated Canons 3A(4) and Canon 2A. The judge intended to use the information to draft jury instructions in a pending criminal matter before him. Though the judge did not know that the attorney had given advice to counsel in the case, the judge was aware that the office was part of the litigation team. The judge's subjective belief that the head of the office was a "disinterested expert" under Canon 3A(4) was not determinative. The Commission found that a reasonable prudent judge would not have reached the conclusion that the attorney was a disinterested expert. Because the attorney was visibly a part of the litigation team, the attorneys and public could reasonably conclude that the judge's phone call created an appearance of impropriety as well. (Approved August 28, 1992)

Opinion #016

A judge who had an inadvertent informal contact with a witness in a former related proceeding and did not disclose that contact to the parties at a hearing that immediately followed that contact, created an appearance of bias on the part of the court. At a minimum, the judge would have stated that nature of the judge's communication with the witness on the record before making other comments. The fact that the judge did not hold the hearing as scheduled, but instead used the opportunity to make brief statements to one party concerning prior orders, contributed to the appearance of bias. (Approved February 12, 1993)

Opinion #017

A judge who became aware of a witness's illegal drug trafficking during the course of civil litigation is under no affirmative ethical duty to report the criminal activity to appropriate authorities. While a judge is free to report the activity at a time and in a manner what will not affect any ongoing litigation before the judge, a judge has no obligation to do so. (Approved February 12, 1993)

Opinion #018

A judge was under no obligation to disqualify from hearing a case in which one of the appearing attorneys was serving as a discovery master for the judge in a pending unrelated case. While there was no absolute requirement to disqualify where the working relationship with the master was minimal and where the original appointment of the master was by another judge, a judge does have a duty to use reasonable efforts to disclose an ongoing relationship. Judicial appointments to paid positions like masters may give the public impression that the judge is conferring a monetary benefit and creating a special close professional relationship with the attorney who receives the appointment. Disclosure, by conveying the nature of the relationship, can enhance the public's trust in the process and the integrity of the judge. (Approved as modified December 10, 1993)

Opinion #019

Canon 5B(2), prohibits fund solicitation for charitable or civic organizations; it does not, however, require a judge to direct the organization to remove the judge's name from a list of officers, trustees, or directors where the listing is not a prominent part of the fund solicitation. A judge generally should not use the title of the judicial office in connection with any list of officers, trustees, or directors. The title, however, may be used to describe the judge's occupation if all officers, trustees, or directors are listed in a similar manner. (Approved as modified August 26, 1994)

Opinion #020

A judge who independently researched the prior convictions of a defendant that the judge sentenced, did not violate Canons 2A and 3A(4) of the Alaska Code of Judicial Conduct. Routine checking of court files is not improper, but fact-finding that goes beyond courts records may be. (Approved August 21, 1995)

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