When litigants anger Michael F. McGuire, the county judge in
New York state’s Catskills region, he might hit them with “judicial
contempt” and order them handcuffed or, in extreme cases, jailed for 30
days.
McGuire, who was elected in Sullivan County in
2011, did it several times over the years without warning: to a man who
asked him to recuse himself because, he said, McGuire knew his son, to a
mother who had an outburst when she felt ridiculed by McGuire and to a
grandmother who contested turning over her grandson to his allegedly
abusive father.
That wasn’t his only concerning behavior, according to an ethics complaint filed in 2018
by a state watchdog agency, which accused McGuire of berating court
staff members; making “undignified” comments, such as suggesting that
people in his court would date a “drug dealer” or a “slut”; presiding
over cases in which his impartiality could be called into question; and
representing family members and friends in personal cases. The watchdog
agency, the New York State Commission on Judicial Conduct, said he
“lacked candor” during its investigation.
For his pattern of “serious” judicial lapses, a state appeals court
agreed last year
that McGuire — who earned a salary of $210,161 a year — be removed from
the bench, the harshest sanction a judge can face. The public, however,
had learned about the ethics charges only months before, in March 2020,
more than a year and a half after McGuire was first served with the
ethics complaint and when the appeals court said he had been notified of
the commission’s unanimous recommendation to punish him.
McGuire ended up resigning in May 2020, but with another job already lined up — as Sullivan County’s head attorney, a position he still holds.
McGuire did not respond to requests for comment. In his resignation letter
last year, he wrote that “I am quite proud of our achievements” on the
bench and “deeply regret the issues that brought me before this Court.”
Joseph
LaPiana, who went before McGuire in a family court case last year and
is unable to see his 1-year-old daughter as a result, said, “Judges work
for the public — we should know if they are being investigated for any
misconduct.”
If McGuire’s misconduct violations had
happened in a neighboring state, like New Jersey, Pennsylvania or
Vermont, the public would have been alerted earlier — at the outset of
the filing of ethics charges.
The timing in when the public is allowed to know about
allegations against judges can differ broadly among states. Some allow
judges to go months or years before even credible complaints are in the
open. As more than
100 million cases are filed in local and state courts every year and as judges exert near-absolute power in deciding who
wins custody of children to
who can get married to
whether people go to jail,
the public’s ability to scrutinize judicial conduct is crucial for
transparency’s sake, and it deserves as much attention as recent calls
for
policing and
prosecutorial overhauls, judicial ethics experts argue.
Judicial
misconduct “undermines confidence in our justice system,” said Susan
Saab Fortney, the director of the Program for the Advancement of Legal
Ethics at Texas A&M University School of Law.
Secretive states
Misconduct
findings are rare in the judicial complaint process. Legal ethics
experts say the minuscule share of judges punished every year isn’t
necessarily indicative that all is well in the judiciary — it suggests a
lack of accountability.
Each state has a form of a judicial conduct commission
to which the public can file misconduct allegations against judges.
Generally, it’s up to that body, which can be made up of fellow judges,
lawyers and laypeople, to determine whether complaints violate a state’s code of judicial conduct
— guidelines for judges to act with independence, integrity and
impartiality. A judge’s conduct inside a courtroom as well as outside, including on social media, can be subject to discipline.
NBC News’ review of various states’ judicial conduct
commission data from 2016 to 2020 indicates that thousands of complaints
are filed across the country every year but that about 1 percent of
them result in judges’ being publicly disciplined or stepping down after
investigations are opened.
While the commissions
maintain that most complaints are frivolous — for instance, a litigant
is merely disgruntled over how a judge ruled — for a state to typically
record zero public sanctions against judges sounds incredible, said
Robert Tembeckjian, the administrator and counsel of the New York State
Commission on Judicial Conduct.
“It’s highly unlikely
that any state would have a judiciary that is so above reproach that
year after year no one gets disciplined,” Tembeckjian said. “Even in
places like New York, where we have very sophisticated judicial
education programs, there are numerous cases every year.”
New
York’s commission, which oversees about 3,500 state and local judges,
has received upward of 2,000 complaints annually in the past five years,
and each year, the state has sanctioned a judge or one has resigned for
misconduct in one to two dozen cases. Other large states, such as
California and Texas, sanction multiple judges every year.
The
level of transparency around misconduct cases varies by state. Some
that have reported that no or few judges were publicly sanctioned in
recent years, such as Iowa, Mississippi, South Dakota and Wyoming,
don’t make cases public until the court or panel that decides
discipline gets involved. And in three states — Delaware, Hawaii and
North Carolina — misconduct cases are made public only in the final
stages of investigations when judges are to be punished.
In
about two-thirds of states, however, the public can learn much sooner,
such as when judicial conduct commissions first charge judges with
misconduct or when the judges respond to the allegations.
States
where information is kept under wraps argue that confidentiality is
necessary for as long as possible to protect judges should they
ultimately be cleared. But it turns out that in some cases, depending on
the type of transgression, judges can be privately admonished by other
judges or sent warning letters, meant to jolt them into correcting their
behavior.
NBC News found that many states opt to
reprimand judges privately more often than publicly. For instance,
Pennsylvania filed formal charges against judges 17 times but issued
private letters of warning or reprimand 172 times from 2016 to 2020.
A sweeping Reuters analysis
last year of judicial misconduct, which examined thousands of
discipline cases over a dozen years, determined that 9 out of 10
sanctioned judges were allowed to return to the bench.
“We
have to recognize that oftentimes we have judges judging judges, and
they’re ultimately in control and judging their own,” said Charles
Gardner Geyh, an Indiana University law professor who studies judicial
conduct.
Tembeckjian believes that states, including New York, should
be as transparent as possible once there’s sufficient evidence to back
up allegations against judges, similar to how grand jury investigations
are made public when indictments are unsealed.
Tembeckjian
said he’d like his judicial conduct commission to have the authority to
suspend judges during investigations, as other states’ commissions can
do, and to continue investigating cases even after judges resign. Such
changes, however, would require the approval of the New York
Legislature.
Ultimately, ensuring that judges are being
rightfully held accountable is essential, because guidance from the U.S.
Supreme Court allows them to be largely immune from lawsuits for acts
done in their official capacity, Tembeckjian said.
“If there’s no sense that you can get a fair shake by going
into a court of law and have confidence that the judge is going to be
neutral and fair and apply the law honestly and responsibly, it’s
ultimately going to lead to anarchy,” he said. “Then why not just settle
our disputes in the streets rather than a court of law?”
Making them pay
Efforts
are underway to enact meaningful judicial reforms at various levels. On
Dec. 1, the U.S. House overwhelmingly passed bipartisan legislation to
require federal judges to report their financial holdings in response to
a Wall Street Journal investigation.
The Journal found that 131 federal judges had broken the law and
violated judicial ethics by hearing cases in which they had financial
interests. A similar bipartisan bill is pending in the Senate.
On the state side, the Louisiana Supreme Court last month expanded its rules
about errant judges when it tacked financial burdens onto the
disciplinary process. Not only can judges be made to pay for the costs
of investigations if discipline is recommended, but they can also be
ordered to repay the costs of installing replacement judges. And if
judges decide to retire or resign before formal disciplinary processes
conclude, they can still be required to pay investigative costs.
The state’s chief justice, John Weimer, said in a statement
that the updated rules ensure that even retiring judges are “held
accountable” and that Louisiana taxpayers aren’t on the hook for costs,
which in recent investigations have been about $2,000 to $3,000.
About a dozen other states, including Arizona, Colorado, Florida, Kansas, Massachusetts, New Hampshire and South Dakota,
fine judges or have similar cost recovery rules, according to the
Center for Judicial Ethics at the National Center for State Courts, a
nonprofit organization that seeks to improve the judiciary.
Marni
Bryson, a judge in Palm Beach County, Florida, faces a public
reprimand, an unpaid suspension for 10 days and a fine of $37,500 after
the state judicial conduct commission said she was excessively absent
from her duties over a four-year period, records show.
In New Hampshire, former Circuit Judge Julie Introcaso was ordered to pay her investigation’s costs, almost $75,000. Introcaso
pleaded guilty last month to two counts
of tampering with public records and submitting false statements in
connection with a child custody case in which she was friends with a
lawyer.
Janine Geske, a Wisconsin Supreme Court justice
in the 1990s, said she’d like the state to implement similar penalties,
which might “encourage judges to take responsibility early on” if their
violations are tethered to their finances.
Another option, Geyh said, is to make the payout of judges’ pensions contractually contingent on good behavior.
Ethics experts say that citizen judicial watchdog programs known as court watchers could be effective
but that it’s also incumbent upon other courtroom staff members and
officials who witness judges’ poor conduct, particularly lawyers, to
speak up. They may be reluctant to file complaints, however, because
they’re afraid of retaliation if judges learn they were behind the
allegations, said Fortney, the legal ethics expert at Texas A&M.
“A large percentage of states require that the complaining party be identified,” she said. “This clearly chills reporting.”
‘I don’t trust any judge’
But there have been cases in which lawyers and court staff members haven’t been afraid to stand up to jurists.
Ohio’s highest court last month suspended a 19-year municipal court judge, Mark Repp,
for one year without pay after prosecutors in Seneca County relayed how
he had ordered a 20-year-old woman who was sitting quietly in the back
of his courtroom to watch her boyfriend’s hearing to get tested for
drugs. When she refused, he sentenced her to 10 days in jail.
An
investigation found that the woman was forced to take pregnancy tests
and undergo full-body scans for contraband; none was detected. And while
Repp assumed the woman was under the influence of narcotics, there was
no evidence indicating that she was, and she had never been charged with
drug-related offenses.
In a recent interview, Repp said
that he has been concerned by the growing rate of overdose deaths in his
community and that, in dealing with thousands of cases every year, he
must “come up with some kind of decision that follows the law and also
is appropriate under the circumstances.”
“I knew what I
did was wrong,” Repp said. “I’ll try to make amends on that, and I have a
whole year to reflect and contemplate my actions.”
But it wasn’t the only time Repp, who is up for re-election in 2025, has faced criticism.
“Imagine
someone sitting in court for the first time, and now they think it’s
what the judicial system is like,” said John Kahler II, a lawyer who
once accused Repp of being biased against a client and unsuccessfully
tried to get him disqualified from the case.
A woman who
appeared before Repp in August did file a complaint to say he had
labeled her a “known meth user” in open court. She wrote that she was
made to feel “very embarrassed by Repp’s conduct and false accusations.”
Repp said the complaint process in Ohio is a “good one” because the
public does learn about judges accused of misconduct early on.
But
the woman, Ana Petro, who was in Repp’s court for a traffic violation
this year, doesn’t believe his suspension can remedy how he made her and
others feel: worthless. A reckoning throughout the judiciary is needed,
she said.
“I understand it’s not a judge’s job to
be nice, but when he’s abusing his power to be a judge, that’s when I
have a problem,” Petro said. “And I don’t trust any judge at all because
of him.”
