Elena Ruth Sassower

Judicial independence is predicated on “good faith” decision-making.  It was never intended to include “bad-faith” decision-making, where a judge knowingly and deliberately disregards the facts and law of a case.  This is properly the subject of disciplinary review, irrespective of whether it is correctable on appeal.  And egregious error is also misconduct, since its nature and/or magnitude presuppose that a judge acted wilfully, or that he is incompetent.

How can you make any assessment of how judicial misconduct mechanisms are working unless you reach out to the victims of judicial misconduct who have used them? — Elena Ruth Sassower

Reprinted by permission of  The Long Term View, Massachusetts School of Law, Vol. 4, No. 1, 1997, pp. 90-97.  See original article [PDF].  Note:  Publication of this critique does not constitute an endorsement of the Center for Judicial Accountability about particular cases.

The most serious misconduct by judges is that which is the least likely to subject them to discipline. It is not what they do in their private lives, off the bench, but what they do on the bench in the course of litigation. The obvious image is the judge who runs his courtroom as if he owns it, who looks down from his elevated bench and treats litigants and their attorneys in an imperious and abusive fashion. But even where a judge is, as he is supposed to be, patient and dignified in his demeanor, every court appearance, just like every written motion, involves a judge ruling on a procedural or substantive aspect of a case. And there are judges who, while presenting a veneer of fairness, are intellectually dishonest. They make rulings and decisions which are not only a gross abuse of discretion, but which knowingly and deliberately disregard “clear and controlling law” and obliterate, distort, or fabricate the facts in the record to do so.

Why would a judge be intellectually dishonest? He may be motivated by undisclosed bias due to personal or political interest. Judicial selection processes are politically controlled and closed, frequently giving us judges who are better connected than they are qualified. And once on the bench, these judges reward their friends and punish their enemies. Although ethical codes require judges to disclose facts bearing upon their impartiality, they don’t always do so. They sit on cases in which they have undisclosed relationships with parties, their attorneys, or have interests in the outcome, and do so deliberately because they wish to advantage either one side over another or sometimes themselves.

They exercise their wide discretion in that side’s favor. That’s the side for whom deadlines are flexible and for whom procedural standards and evidentiary rules don’t apply. A common thread running through judicial misconduct cases is litigation misconduct by the favored side. Meanwhile, the other side struggles to meet inflexible deadlines and has its worthy motions denied. In extreme cases, a judicial process predicated on standards of conduct, elementary legal principles, rules of evidence, simply ceases to exist.

Intellectual Dishonesty

Every case has many facts, any of which may be inadvertently “misstated” in judicial decisions. But judicial misconduct is not about innocent “misstatement” of facts, and certainly not about peripheral facts. It involves a judge’s knowing and deliberate misrepresentation of the material facts on which the case pivots. These facts determine the applicable law. If the applicable law doesn’t allow the judge to do what he wants to do, he’s going to have to change the material facts so that the law doesn’t apply. When judges don’t want to put themselves on record as dishonestly reciting facts, they just render decisions without reasons or factual findings.

The prevalence of intellectually dishonest decisions is described by Northwestern Law Professor Anthony D’Amato in “The Ultimate Injustice: When the Court Misstates the Facts” [1]. He shows how judges at different levels of the state and federal systems manipulate the facts and the law to make a case turn out the way they want it to. It quotes from a speech by Hofstra Law Professor Monroe Freedman to a conference of federal judges:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

Afterward, when Professor Freedman sat down, a judge sitting next to him turned to him and said, “You don’t know the half of it.”

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