To file a "justified" complaint against a judge, first, go fish.

Now, let's consider what it takes to make a successful complaint against a judge. (The Commission calls them "justified complaints." I call them "sustained.") In another post, we'll eventually analyze an insane ruling by the dishonorable judge hinson to see if there is anything in it that one can "legitimately" complain about or something the Commission is likely to sustain. (Not necessarily the same thing, although they should be. Can you say "politics?") But before we do, let's take a giant step backward to try to find what kind of complaints the Commission on Judicial Conduct sustains because, as you can see, the Commission dismisses a vast majority of complaints.

Technically, the Commission says it "acts" on all complaints. But it's more proper to say that the Commission "considers" all complaints. I bet most don't make it past the first hurdle of making it past the Staff. (Commission staff (B or C) feel free to leave a comment of correction if I'm wrong here.)

So why are so many complaints dismissed? I suggest you "go fish" and simply sample a few of the dismissed complaints on the Commission's website. You'll find that most people didn't bother reading (or don't take to heart) the Commission's Overview page. The Commission's statement is straightforward. Here it is:

SCOPE OF AUTHORITY

The commission has authority to investigate complaints involving the following:

• Willful misconduct in office.
• Habitual intemperance (e.g., alcohol or drug abuse).
• Permanent disabilities that interfere with judicial duties.
• A violation of the Code of Judicial Conduct.
• Conduct that brings the judiciary into disrepute.

The commission's primary concern is judicial behavior, not judicial decision-making. Only a higher court can overturn a judge's decision or ruling. The commission is not a court and cannot change a judge's decision (including child custody orders), intervene in a pending case, remove a judge from a case, or award damages or other monetary relief to litigants.

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I'll get into it later, but there's also a fine line distinction the Commission makes about "willful misconduct" as opposed to "unwillful." Unfortunately for you and me, if we're driving over the speed limit, we get punished whether we were willingly speeding or speeding in ignorance. We're told that "ignorance of the law is no excuse." But for judges, ignorance is an excuse. In fact, the dishonorable judge hinson argued he wasn't guilty of violating the Constitution because it was his staff who screwed up.

Hey, Division IV staff, how do you feel about that?

Now, I know what happens. Many of you are beat up by The System, either don't have any money (or, after losing with an attorney, don't have any now), didn't bother reading the Commission's instructions and/or are holding out for Justice through the free complaint process. Unfortunately, rightly or wrongly, it ain't gonna happen.

The best that a complaint can do, as we saw with the dishonorable judge hinson, is to force a judge out sometime later. Unless there's a Judge McDougall type immediate resignation, it could take a year before your judge is out if you're suffering under a bad judge.

While I was channel surfing a few weeks ago, I came across one of the million Law & Order reruns on TV. In that episode (number unknown), Jack's staff was going to file a complaint of judicial misconduct to get a judge off their case. I don't know how it works in New York State, but as our Commission stated above, it doesn't work that way here. (You may want to try suing the judge though.)

Now, from the Commission's Administrative Policies, here's what the Commission says will automatically dismiss your complaint:

(a) Rule 16(a) allows the commission to dismiss a complaint that fails to allege an act of judicial misconduct, lacks sufficient evidence to support an investigation, is solely appel­late in nature, or is otherwise frivolous, unfounded or outside the commission’s jurisdiction.

A dismissal shall be in the form of a notice or order indicating the reason for the commis­sion’s action.

Anyone who's an attorney can testify that the qualifier "frivolous" can be, uhhh, problematic. It's very subjective.

Now, after you've sampled some of the many dismissed complaints on the Commission's website, you should study a few of the sustained ones. Look to learn what worked. Also look to see what discipline the Commission meted out.

Unfortunately, the Commission has a lot of latitude in what they can do with a judge who's found "guilty." (Did I mention "politics?") We saw this when the Commission simply warned the dishonorable judge hinson three times in three separate complaints (for the same type violation). Again, from the Commission's Administrative Policies:

Rule 16(a) also allows the commission to dismiss a complaint with comments reminding a judge of ethical obligations or recommending changes in the judge’s behavior or procedures. A dismissal with comments shall be in the form of a notice or order indicating the reason for the commission’s action, supplemented with a confidential letter to the judge in one of the following forms:

1. A friendly advisory letter explaining that even though the judge’s conduct did not technically violate the code, it suggested an appearance of impropriety that could be avoided in the future if the judge is willing to modify his or her behavior or court procedures as recommended by the commission;
2. A stern warning letter [ooohhhh] that draws the judge’s attention to the potential consequences of persistent behavior that does not rise to the level of judicial misconduct but nonetheless creates an appearance of impropriety; or
3. Any other appropriate written communication that conveys the commission’s
   concerns about the conduct of the judge.

Rule 16(b) allows the commission to recommend additional forms of discipline in conjunction with informal and formal sanctions including, but not limited to, professional counseling, judicial education, mentoring, or other similar activities such as addiction recovery or rehabilitation programs. [It's like when cops violation your Constitutional rights and the Arizona Peace Officer Standards & Training Board simply sends the officer back to school for a day. Bet you feel better.]

Wow. Don't you wish you could get that kind of treatment by the courts? I'll take the "friendly letter" any day. (I've said it before. The Legislature needs to take over discipline of judges, in true Check & Balance fashion. Unfortunately, that would take amending the Arizona Constitution. I'm not optimistic.)

So your homework assignment before filing a complaint of judicial misconduct is to study some complaints that were dismissed and the few that were sustained, especially those where there was real discipline. And then try to emulate the complaints the Commission "justified." Then we'll see if any hay can be made from the dishonorable judge hinson's insane ruling.