The State Commission on Judicial Conduct (SCJC) will oppose a provision in a not-yet-filed bill in the Texas Legislature that would open some of the SCJC’s confidential documents and meetings to the Sunset Advisory Commission, SCJC Executive Director Seana Willing told senators on Feb. 5.
During a meeting of the Texas Senate Jurisprudence Committee, Willing reminded senators that this "became an issue" last year during the sunset review of the SCJC, an agency that investigates allegations of judicial misconduct and disciplines judges.
Ken Levine, director of the Sunset Advisory Commission, says he expects a Sunset Advisory Commission lawmaker to file a bill within the next two or three weeks to implement all the SCJC sunset report’s recommendations, including "legislative direction and statutory authority for the Sunset Commission to look at the materials it believes are necessary."
The Sunset Advisory Commission reviews each state agency every 12 years and makes recommendations aimed at making them more efficient.
The call for Sunset staff to have access to all of the SCJC’s records and be able to attend SCJC meetings was one of the key recommendations in the 2012 Sunset report on the SCJC. The report includes a recommendation to broaden the range of penalties the commission can impose on a judge following a formal proceeding. It also calls for requiring the commission to report to the Texas Supreme Court, on an as-needed basis, suggested changes for updating the commission’s procedural rules.
Willing told senators the access issue will be the only "sticking point." She said the SCJC will maintain the position that, due to the Texas Constitution and the SCJC’s governing statute, no outsiders should have access to the agency’s deliberations or privileged communications between staff and commission members. The process "would be compromised" if someone else were in the room, she said.
Willing says in an interview that, if the Texas Legislature changes the law to allow Sunset access, that could raise issues with the judicial-deliberation privilege and separation-of-powers.
She notes it’s important to keep the information confidential because, "Judges are very powerful people. People who are witnesses, and people who actually complain against the judges, depend on the confidentiality for protection."
Also, sometimes people make untrue allegations against judges. And, if the allegations were public, there wouldn’t be an opportunity for the SCJC to "ferret out" the truth and for judges to defend themselves, says Willing.
But Levine says if any agency’s records are confidential, Sunset staff must maintain that confidentiality.
"We would be subject to the penalties of law if we disclosed it to the public," Levine says.
When asked why it’s important to access to the information, Levine replies, "Because almost everything they actually do is behind the confidential wall. If you want to look at the effectiveness of the process of disciplining members of the judiciary, but all the action on how they do that is behind closed doors . . . we cannot evaluate the effectiveness because we cannot look at it."
Senate Jurisprudence Committee Chairman Sen. Royce West, D-Dallas, told Willing after her testimony that his committee will work to create a "balance" between granting access to the Sunset Advisory Commission and following the law regarding confidentiality of the SCJC’s records and meetings.