The state’s Sunset Advisory Commission (SAC) staff has recommended that the agency responsible for policing judges’ conduct be required to open its closed meetings and confidential records for sunset review.

According to a report released March 8, the State Commission on Judicial Conduct “operates largely behind closed doors to protect the confidentiality of the judges it oversees.” The SAC staff reported that it was not allowed to attend the judicial conduct commission’s closed meetings on judges’ cases or to view memoranda that the commission’s legal counsel provides to the 13 commissioners for use in formulating their rulings.

Ken Levine, the SAC’s director, says the SAC cannot evaluate the judicial conduct commission’s “process unless we can sit in on it or view their materials.”

Levine says that in all other state boards and commissions, information transmitted by the staff to the board is open to sunset review.

But Seana Willing, the judicial conduct commission’s executive director, says the SAC staff wanted to be present when the commission discussed and voted on cases and to read the memoranda used in those deliberations.

“No one is allowed to see those,” Willing says.

The call for the SAC staff to be given access to all the components of the judicial conduct commission’s disciplinary process is one of the key recommendations in the report. The report includes a recommendation to broaden the range of penalties that the commission can impose on a judge following a formal proceeding. It also calls for the commission to be required to report to the Texas Supreme Court, on an as-needed basis, suggested changes for updating the commission’s procedural rules.

In the report, the staff cited a significant difference in how complainants view the process compared to how judges view it. A survey that the SAC staff conducted in October 2011 showed that 78 percent of the individuals who filed complaints against judges that resulted in formal investigations in fiscal years 2008, 2009 and 2010 rated the fairness of the complaint process unsatisfactory, while only 14 percent of the judges against whom complaints were filed gave the process an unsatisfactory rating.

The SAC staff recommended that the Legislature clarify in statute that confidentiality and attorney-client privilege provisions applicable to the judicial conduct commission do not bar the commission from full sunset review. The Legislature also should clarify that the SAC staff must maintain the same level of confidentiality as the judicial conduct commission, the report noted.

Levine says that the Texas Office of the Attorney General noted in a letter opinion — OR 2011-01970, issued Feb. 9, 2011 — that the SAC is exempt from public disclosure of information gathered during a sunset review.

Earl Musick, president of the Harris County Criminal Lawyers Association (HCCLA), says the fact that the SAC staff was barred from the commission’s closed meetings points to a lack of accountability.

“You actually have a government agency that can do anything they want to in complete secrecy,” says Musick, a partner in Houston’s Musick & Musick.

The HCCLA submitted recommendations for changing the judicial conduct commission in a Jan. 23 letter to the SAC. Steven Ogle, the SAC’s staff counsel, notes in an email that the SAC received comments from 28 individual sources for the review of the commission.

Because of the limitations it faced in the current review, the SAC staff recommended that it be allowed to take another look at the judicial conduct commission in six years rather than the standard 12-year period between reviews. If the Legislature gives its approval, the commission would undergo its next review in 2019.

The staff’s recommendation to make more penalties available to the judicial conduct commission after a formal proceeding against a judge stems from what happened in the high-profile case against Texas Court of Criminal Appeals Presiding Judge Sharon Keller. The commission issued a public warning to Keller for her alleged conduct in the case of Michael Richard, executed by the state on Sept. 25, 2007, after the CCA clerk’s office closed before his appeal could be filed. In October 2010, a three-justice court of review vacated the public warning and charges against Keller after finding that the commission erred in imposing that sanction. [See " Special Court of Review Vacates Public Warning, Charges Against Keller ," Texas Lawyer, Oct. 18, 2010, page 1.]

As noted in the staff’s report, the court of review ruled that, under the Texas Constitution and state statute, the commission’s only options after instituting formal proceedings against a judge are to dismiss the complaint, issue a censure or make a recommendation for removal or retirement. Lesser sanctions — including public admonition, public warning or public reprimand — are available only after informal proceedings, which are closed.

The limited range of penalties available to the commission following formal proceedings could deter it from openly hearing cases of importance to the public, the SAC staff wrote. According to the report, the commission has held formal proceedings, which are open to the public, only 12 times in the past 10 years.

To remedy that situation, the staff recommended a constitutional amendment that would authorize the commission to use the full range of sanctions in cases heard in formal proceedings. The staff also recommended that a court of review be allowed to consider appeals of either censures or sanctions following formal proceedings through a review of the record of the proceedings. Under current law, a reviewing court must hold a new trial for appeals of public sanctions.

Judicial conduct commission chairman Tom Cunningham says the commission has not formulated an opinion about the recommendation that it have more penalties available when deciding a judge’s case after a formal proceeding. But Cunningham, a partner in Houston’s Cunningham & Darlow, says his personal view is that it would facilitate what the commission does to have a broader range of penalties.

The SAC staff also found that inconsistencies between state statutes and the judicial conduct commission’s procedural rules promulgated by the state Supreme Court create the potential for litigation. According to the staff’s report, the Legislature has made numerous changes in the commission’s enabling statute over the years, but the Supreme Court has not updated the procedural rules since 1994. If the statute and rules are in conflict, the commission could face having to choose between following one or the other in a particular case, making it possible for the affected judge to challenge the commission’s action.

As noted in the report, the commission does not currently propose rule changes to the Supreme Court. The staff recommended a statutory change that would require the commission to study its rules and report its findings to the court, with its first recommendations due by Dec. 31, 2013. [See the report.]

Willing says the commission has until March 22 to respond to the SAC staff’s report.

Ogle says the SAC is expected to review the staff recommendations on the judicial conduct commission April 10 at a meeting in the State Capitol extension and will make decisions on the recommendations during meetings tentatively scheduled June 5 and 6. The SAC will not finalize its recommendations to the Legislature until a meeting tentatively scheduled for Jan. 9, 2013, he says.