The board also implements constitutional procedures for removing judges.
Circuit Court Judge Michael Sharp explained the board’s function Tuesday evening to the Bradley County Bar Association at the Elks Lodge. The General Assembly created the board to succeed the Court of the Judiciary on July 1. The new board investigates and acts on complaints against judges. The goal is for more transparency and accountability to the public.
“There have been several complaints that went unanswered from the public’s perspective,” Sharp said. “Legislators began to look into that and decided there had to be more transparency.”
The Board of Judicial Conduct was devised to hear only ethical complaints. Legal complaints are directed to the court of appeals.
“The overwhelming number of complaints are legal in nature,” Sharp said. “The vast number of complaints I have seen are exactly that. Lots of folks in jail complain.”
The 16-member board is required to meet in February and August of each year. It is composed of 14 judges or former judges.
There are three current or former trial judges, general sessions judges, municipal judges and juvenile judges from each grand division appointed by the Tennessee Judicial Conference, General Sessions Judges Conference, Municipal Judges Conference and Tennessee Council of Juvenile and Family Court Judges.
“I was nominated to be the (trial) judge from the East. Fortunately I was voted in and I consider it a pleasure to get to do this,” Sharp said.
The board also includes two current or former appeals court judges. One is appointed by the speaker of the House of Representatives and the one by the speaker of the Senate based on a list of six recommendations submitted by the Tennessee Judicial Conference.
The governor appoints two lay members. One of those two must be a licensed attorney who may be in private practice, a district attorney, assistant district attorney or public defender. The other layperson is neither a practicing attorney nor a judge.
Each member may serve a maximum of two three-year terms.
The board is divided into two major groups: an investigative panel and a hearing panel.
The investigative panel is further divided into groups of three.
“If a complaint is filed on a judge from the 10th Judicial District, the investigative panel would have to be from Middle or West Tennessee, the thought being they are far ... less likely to know the judge,” he said. “All of the things I am sent come from West and Middle Tennessee.”
Sharp has been involved in 16 investigations since July 1. Fourteen complaints were recommended for dismissal and two were recommended for full investigation.
Former U.S. Attorney General Timothy Discenza is the disciplinary counsel for the board who determines probable cause.
“He is the U.S. attorney who prosecuted all of the Tennessee Waltz case,” Sharp said. “He is an extremely serious fellow — very kind, but very direct and to the point — there is no rounding off the corners. We’re going to square off the corners or we’re going to go back and do it again with him. He is very serious, very prepared, takes this job extremely seriously, which is good.”
Discenza compiles the files with everything known about the complaint and forwards it to the appropriate investigative panel, and it reports back to him within 10 days.
If there is probable cause for disciplinary action, the judge may either agree or demand a full hearing in his or her home county “and it’s just like a normal court proceeding.”
The investigative panel cannot function as the hearing panel and neither can the attorney if he or she has presented a case to the judge under investigation.
“The hearing panel has the full authority to make a recommendation ranging from dismissal (of the complaint) to removal (from the bench),” he said. “If the hearing panel makes a recommendation other than dismissal, the judge has the right to automatically appeal to the Tennessee Supreme Court.”
The appeal must be made within 10 days of the hearing. The Supreme Court must put it on its docket within 30 days and make a ruling within 15 days after the hearing.
“The Legislature put some pretty good teeth in this to move it right along where it doesn’t get bogged down forever,” Sharp said.
The legislation also includes a monthly reporting system that requires the Board of Judicial Conduct to report to the chief clerks of the Senate and House. The reports do not include judges’ names. They do include the number of complaints and the type of complaint, such as municipal, criminal or custody.
“We also have to have a cumulative quarterly report and a report at the end of each year showing every complaint that was filed, the nature of the complaint, disposition of the complaint and any pending complaints we did not finish,” he said. “It is an ongoing, rigorous, thorough — what I believe to be a transparent process.”
Possible offenses include willful misconduct relating to official duties of the office; willful or persistent failure to perform the duties of the office; violations of the code of judicial conduct; commission of any act constituting a violation of the rules of professional conduct; a persistent pattern of intemperate, irresponsible and injudicious conduct; and a persistent pattern of discourtesy to litigants, witnesses, jurors, court personnel or lawyers.
“Anyone can file a complaint. Anyone can file anonymously,” the judge said. “The normal complaint is ‘That judge ruled against me because he didn’t like me.’”
Three-hundred-fifty-five complaints were filed between July 1, 2011, and June 30. Of that number, disciplinary counsel dismissed 201, and 63 were dismissed after preliminary investigation. Ninety-one others were dismissed at some point in the process.
Twelve judges were publicly reprimanded, three received private reprimands and 10 were disposed by other means.
The majority of the complaints, 85, were lodged against general sessions judges; 81 against circuit court judges; 78 against criminal court judges and 33 against chancellors.