By Kit Beyer, Fix the Court law clerk

The United States

All five states listed here have codes of conduct that bind the judges of their highest courts and entrust a state entity with reviewing complaints. Some of these entities can directly discipline judges, at least when it comes to minor sanctions such as reprimands. Others make disciplinary recommendations to the state’s Supreme Court or a different tribunal so that a justice’s own colleagues do not review an allegation of misconduct.

Mississippi

The Mississippi Supreme Court’s Code of Judicial Conduct consists of five ethical canons that, according to the Code’s preamble, are “intended to govern conduct of judges and to be binding upon them” and are accompanied by commentary intended as non-binding guidance. In the preamble, the Code distinguishes discretionary conduct from conduct that may trigger disciplinary action. It specifies that the words “shall” and “shall not” in the text “impose binding obligations, the violation of which can result in disciplinary action.” In contrast, the terms “should” and “should not” merely designate appropriate, rather than required, conduct.

The prohibited “shall not” activities include making any public comment “that might reasonably be expected to affect” a pending case’s outcome and making speeches for a political organization. 

Regrettably, accepting “a gift, bequest, favor, or loan from anyone reflecting the expectation of judicial favor” falls into the non-binding “should not” category. Likewise, the Code recommends that judges “should,” not “shall,” “disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances” — although commentary on this rule mentions that certain situations “may require the judge’s disqualification.”

Enforcement mechanisms exist both for general violations of the Code and for addressing a justice’s failure to disqualify. Anyone — including citizens, litigants, lawyers and fellow judges — can file a complaint with the Commission on Judicial Performance, which allows complaints to be filed online and anonymously. Alternatively, the Commission itself can file a complaint based on information gleaned from the media or during an investigation.

The Commission then examines the complaint and makes reports and recommendations. Under the Mississippi Constitution, when a justice is subject to a complaint, a seven-member “special tribunal” is “selected by lot from a list consisting of all the circuit and chancery judges at a public drawing by the Secretary of State.” The tribunal decides what disciplinary action, if any, should be taken. Sanctions may involve fines, public or private reprimand, and even removal from office. In the last decade, at least two Mississippi judges have been removed: Justice Court Judge of Lee County Rickey Thompson and Justice Court Judge of Madison County Bill Weisenberger Sr..

For particular cases, the Rules of Appellate Procedure spell out the steps for disqualifying a Supreme Court justice. Within 30 days of a case’s assignment to the Court, any party to the case can move for recusal; along with the motion, they must file an affidavit setting forth the asserted grounds for recusal. The justice himself or herself is the first to decide whether they will recuse, but their colleagues will be informed of a decision to deny recusal, which would then be subject to review by the entire Supreme Court if the party files a motion for reconsideration.

North Dakota

While making the same distinction between discretionary and required conduct that Mississippi does, North Dakota’s Code of Judicial Conduct, unlike Mississippi’s, places both gifts and disqualification in the latter category. A judge “shall not accept any gifts, loans, bequests, benefits, or other things of value” and “shall disqualify in any proceeding in which the judge’s impartiality might reasonably be questioned,” such as when the judge, her spouse, or her third-degree relative “has more than a de minimis interest that could be substantially affected by the proceeding.”

As to enforcement of the Code, the Judicial Conduct Commission handles complaints of misconduct. Written complaints must be signed and mailed to the Commission; the Commission later mails the outcome of the complaint to the signer.

The Commission, which has seven members (four non-lawyers appointed by the governor, two judges appointed by the state judges’ association and one lawyer appointed by the state bar association), dismisses complaints that fail to indicate misconduct, sends letters of admonition for minor violations and conducts formal hearings on substantial violations.

After these hearings, the panel either dismisses the case or recommends public censure, removal, suspension, retirement or other discipline to the Supreme Court. For the purposes of Supreme Court review, the justice subject to the complaint is replaced by a district judge.

Finally, the Supreme Court files a decision dismissing the case or imposing a sanction.

Pennsylvania

Pennsylvania’s Code of Judicial Conduct aims at establishing “a basis for disciplinary agencies to regulate judges’ conduct.” Under the Code, judges “shall not” receive gifts, the acceptance of which “would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality,” and “shall” disqualify themselves “in any proceeding in which the judge’s impartiality might reasonably be questioned.”

In line with its stated goal of regulating judges’ conduct, the Code stipulates that judges must cooperate with judicial disciplinary agencies. Among these agencies is the Judicial Conduct Board, which is composed of 12 Pennsylvania citizens: six appointed by the Supreme Court and six by the governor, including three lawyers, three judges and six non-lawyers.

On its website, the Board asserts that “[a]nyone can file a complaint free of charge.” Anonymous complaints are possible, albeit discouraged. The Board’s website offers a complaint request form that must be completed in writing and mailed to the Board; no complaints are accepted by telephone or via the Internet.

After the complaint is filed, members of the Board vote on whether to file formal charges with the Court of Judicial Discipline, where eight members serve as judges. The Supreme Court appoints two judges, a justice of the peace and one non-lawyer elector; the Governor appoints one judge, two non-judge lawyers and one non-lawyer elector. 

Proceedings in that Court ensue. First, a conference judge oversees pretrial hearings and motions; at this time, the judge subject to the complaint can file a motion questioning the sufficiency of the allegations, but the full Court of Judicial Discipline must review and vote upon any decision to dismiss the case before trial. If the case is not dismissed, the Court conducts a trial.

Lastly, the Court can directly impose sanctions, “ranging from a reprimand to removal from office.” The subject justice may appeal the decision, and the appeal will, as per the Pennsylvania Constitution, be heard by a “special tribunal composed of seven judges, other than senior judges, chosen by lot from the judges of the Superior Court and Commonwealth Court who do not sit on the Court of Judicial Discipline or the board.”

The Court of Judicial Discipline has exercised its removal power on multiple occasions within the past decade. In 2016, it removed Judge of the Municipal Court of Philadelphia Dawn Segal and Judge of the Philadelphia County Court of Common Pleas Angeles Roca.

Utah

The justices of the Utah Supreme Court are bound by the Code of Judicial Conduct. The Code’s four canons “state overarching principles of judicial ethics that all judges must observe,” and its rules are “binding obligations” that justices “may be disciplined” for violating.

Similar to other States, these rules include a prohibition against conveying “the impression that any person or organization is in a position to influence the judge,” a rule that likewise appears in the Code of Conduct for U.S. Judges. Gifts that “would appear to a reasonable person to undermine the judge’s independence, integrity or impartiality” are forbidden, and the Code mandates disqualification when “the judge’s impartiality might reasonably be questioned.”

Utah’s Judicial Conduct Commission determines whether judges have violated the Code of Judicial Conduct. Its composition is diverse: four legislators, two from each chamber of the Utah legislature; three members of the public; two attorneys; and two judges. “Any person” can file a complaint with the Commission, which helpfully offers printable complaint forms in both English and Spanish in addition to an online Google form.

Though it lacks the authority to act on anonymous complaints, the Commission can, by a vote of its members, resolve to take action on information received in ways other than written complaints.

If the complaint is meritorious, an investigation ensues, and any resulting recommendations are filed in the Supreme Court, which, based on the Commission’s recommendations, has the authority to reprimand, censure, suspend or involuntarily retire a judge.

Justices on the Utah Supreme Court may not participate in proceedings involving their own removal or disqualification.

Washington

Washington State’s Code of Judicial Conduct sets forth binding and enforceable canons and rules. The language governing the disqualification and the acceptance of valuable gifts is non-discretionary (“shall” and “shall not”), indicating a requirement as opposed to a recommendation. 

Adherence to these requirements is enforced by the Washington Commission on Judicial Conduct. Complaints can be filed via an online form or mailed or faxed using a form that is available online; under the Commission’s rules, oral complaints are also permissible. Organizations, associations or individuals can all file complaints, including anonymously. The Commission can then review the complaint and decide whether or not to conduct an investigation and hearing.

If misconduct is found, the Commission itself can impose minor disciplinary measures such as reprimands or admonishments, subject to appeal de novo to the Supreme Court. For the more severe sanctions of suspension, retirement or removal, the Commission can make recommendations for the Supreme Court to review.

When a Supreme Court justice is the subject of the complaint, “a substitute panel of nine judges shall be selected”: the chief judge will be the presiding chief judge of the Washington State Court of Appeals, and the Supreme Court clerk selects the remaining judges by lot.

Foreign nations

Peer countries, even if they lack enforceable ethics codes, illustrate the workability of a complaints system, similar to the process in place for the lower federal U.S. courts.

Canada

The Canadian Judicial Council “has the power and duty to ensure the proper conduct” of Canada’s federal judges. Consisting of the chief justices and associate chief justices of Canada’s superior courts, a total of 44 members, the Council promulgates ethical principles for judges, which are advisory, rather than binding, in nature. 

Members of the public can file complaints with the Council either anonymously or under their own names. A screening officer designated by the Council reviews the complaint, and then, if the complaint meets the screening criteria, refers it to a reviewing member of the Council. If necessary, an outside lawyer can assist the reviewing member in investigating the misconduct. 

Once again, if the complaint proves meritorious, it is referred by the reviewer, this time to a three-member panel that includes one member of the Council, another judge and a member of the public. If this panel finds that the judge’s removal could be justified, it refers the complaint to a five-member “full hearing panel”; otherwise, it can take disciplinary action such as ordering an apology or recommending education for the judge. In the latter scenario, remedial measures can be appealed to a “reduced hearing panel,” composed of a member of the Council, another judge and a senior lawyer. In the former, a full hearing occurs to consider whether a judge should be removed from office. 

The panel of the full hearing consists of two Council members, another judge, a senior lawyer and a member of the public. The panel holds public hearings and considers arguments and evidence. Based on this information, it determines whether removal or other remedial measures are warranted.

The Council has recommended removal five times since its creation in 1971; each judge has resigned before Parliament could take the requisite next steps. Additional appeals are available to the subject of the complaint, but once appeal mechanisms have been exhausted, the full panel publicly reports its decision. 

The United Kingdom

Like Canada and the United States, the Supreme Court of the United Kingdom does not have a binding ethics code for its Supreme Court. Rather, judges are exhorted to adhere to a Guide to Judicial Conduct that covers concerns such as conflicts of interest, gifts, and conduct with the media. 

But like Canada, and unlike the United States, the U.K. offers an avenue for filing a complaint about a Supreme Court justice. A person making a complaint sends an email to a specified address with their name and an allegation of misconduct. The Judicial Council Investigations Office reviews the complaint, and if it determines that the complaint is valid, it refers the complaint to a judge nominated by the Lady or Lord Chief Justice, who, confusingly, is not a member of the Supreme Court but is more like the department head of the judiciary. That nominated judge then interviews the subject justice, prepares a report and refers the matter to an investigating judge, also nominated by the Lady Chief Justice, or to a disciplinary panel convened by the JCIO.

Finally, the disciplinary panel informs the Lord Chancellor (“a senior government minister with responsibilities related to the justice system”) and Lady Chief Justice if disciplinary action is justified, and the Lord Chancellor and Lady Chief Justice can impose a reprimand, suspension or, for inferior judges such as those in the County Courts, removal from office.

Removal of superior judges — namely those on the High Court, the Court of Appeal and the Supreme Court — is a more rigorous process, requiring a formal petition from Parliament. The only time a superior judge was thus removed took place in 1830. However, inferior judges have been removed within the past decade, such as Judge Andrew Easteal in 2023 and Judges Timothy Bowles, Warren Grant, and Peter Bullock in 2015.