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Who’s judging the guys who judge the judges? Well, nobody, really.
That’s because the legislative agency charged with evaluating other state agencies’ functionality and raison d’être, the Sunset Advisory Commission, got shut out of their meetings and denied access to confidential documents.
Now, it’s easy to understand the juggling act the judicial conduct commission must perform — protecting the reputation of Texas’ 3,900 judges from baseless misconduct allegations while ensuring that these arbiters of law interpret it fairly. But when the Sunset Advisory Commission — bound to respect confidentiality — can’t get access to some of the judicial commission’s most basic functions, the balance has been tipped too far in one direction.
The judicial commission isn’t subject to either of the Open Meetings, Administrative Procedure or Public Information acts.
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“The Commission would not allow Sunset staff to attend its largely closed meetings to observe its enforcement process and barred staff from viewing the memoranda the Commission’s legal counsel provides to Commission members for formulating rulings on cases. As a result, staff could not assess the Commission’s primary duty,” the report says.
An utter lack of transparency wasn’t the only problem it found. Remember when the U.S. Supreme Court agreed to hear a 2007 Kentucky case arguing that the state’s three-drug lethal injection protocol violated a constitutional prohibition against cruel and unusual punishment? A convicted killer here in Texas was set to be executed that night, and wanted to file an appeal based on the Supreme Court’s decision. Texas’ top criminal judge Sharon Keller refused to keep the Court of Criminal Appeals open past 5 p.m. that night. It was the judicial conduct commission who issued a public warning to Keller.
That warning was overturned because a court of review found that, following an open, formal hearing, the commission has limited options: It can make a recommendation for removal, censure the judge or dismiss the complaint entirely. It can’t, for whatever, inscrutable reason, issue a public warning. The commission, the Sunset review found, is utterly handcuffed and less likely to hold formal judicial misconduct hearings on issues of “public import.”
In fact, judges are privately warned or sanctioned about 79 percent of the time. Only 21 percent of these actions are made public. Over the last 10 years, we’ve had 12 open, formal hearings on judicial misconduct, and two censures.
But the rules governing the judicial commission are designed in such a way that nothing less than an amendment to the Texas Constitution can change the way it conducts business. And that’s one of the Sunset review’s recommendations.
