Under fire over a cloak of secrecy that envelops misconduct investigations against state judges, the Louisiana Supreme Court on Friday announced steps it said are meant to bolster trust in the judiciary.
But critics said the rule changes will do little to pull back the curtain on most actions taken against judges, because the records that detail their alleged misconduct will remain hidden from view. And those pushing for more transparency said the announcement will not deter them from pursuing more far-reaching changes.
Disciplining Louisiana judges is a lot like “Fight Club.” The first rule: You don’t talk about it.
The new rules say the Louisiana Judiciary Commission or a hearing officer may allow judges and other parties involved in a complaint to discuss the proceedings once the commission sets a hearing, or when the case is closed.
Until now, Judiciary Commission hearings were shrouded in secrecy — forever — except in rare cases. And people who have filed those complaints have been told they’re barred from speaking about them — also forever.
The only way the public in Louisiana could learn if a judge had been the focus of a judicial investigation was if the Judiciary Commission recommended that the Supreme Court discipline the judge. But fewer than 1 percent of complaints to the Judiciary Commission over the past five years have reached that threshold, according to an analysis by this newspaper.
The Louisiana Supreme Court announced September 6 that people who filed complaints about judges, judge respondents and witnesses to Judiciary …
One member of the Supreme Court itself — Justice Jefferson Hughes III — was the subject of a years-long federal investigation and a Judiciary Commission probe. But the public was never alerted to it, and Louisianans promoted him to the state’s top court and reelected him even after Hughes wrote private apology letters to parties who appeared in his courtroom.
The Advocate first revealed the investigations into Hughes this summer, in a series of stories that also shone a light on the near-total secrecy around the Judiciary Commission’s doings.
But while the updated rules may allow judges or people who complain about them to reveal details more freely, the high court kept intact on the confidentiality of records that might otherwise shed light on judicial misconduct.
The revisions also left alone the Judiciary Commission’s ability to privately chastise judges via cautions, warnings and admonishments that often never reach the public square. The Supreme Court defines those actions as something less than “discipline.”
A Supreme Court news release announcing the changes on Friday described them as an attempt to balance a complainant’s right to free speech with “confidentiality to preserve the integrity of judicial discipline proceedings.” It noted that the court voted unanimously on the changes, meaning Hughes supported them.
“Our rules should protect the integrity of the judicial discipline process while insuring public trust and confidence, and I believe these rule revisions accomplish that goal," said Chief Justice Bernette Johnson in a statement.
State Rep. Jerome Zeringue, a Houma Republican who led a failed charge this year in the Legislature to open up judicial discipline records, was less impressed. He said the public should have already had the right to discuss Judiciary Commission proceedings, thanks to the First Amendment. And he said the public is still left in the dark about repeated admonishments about judges.
“The public still has the right to know if there were actions or recommendations against a particular judge, and they’re not addressing that in any way,” Zeringue said.
When Louisiana Supreme Court Justice Jefferson Hughes III came under federal investigation over his handling of a sordid child custody fight t…
The amended rules also still allow hearing officers or the Judiciary Commission to bar participants in proceedings from discussing them. One section says orders of confidentiality should lift once a hearing has finished.
And the Supreme Court’s new rules are clear that people are still not allowed to discuss such proceedings during their earlier, investigative stages.
Dane Ciolino, a Loyola Law School professor and a legal ethics expert, said the First Amendment should allow people who file complaints, respondent judges or witnesses to discuss the existence and substance of an investigation at any point.
“This is, I guess, somewhat of an improvement, but it just doesn’t go as far as it should,” he said.
The U.S. Department of Justice is not in the habit of sticking its nose in backroads Louisiana custody battles.
The state’s most powerful business lobby was also left wanting more from the Supreme Court. The Louisiana Association of Business and Industry released a statement Friday saying it looks forward to working on additional transparency improvements.
“Clearly, the court’s acknowledgment of complainants’ First Amendment rights is a good first step, but we think there is more work to be done,” said Lauren Chauvin, LABI’s judicial program director.
The rule changes also did not satisfy a lawyer who is challenging the constitutionality of the Judiciary Commission’s confidentiality rules in a lawsuit.
Richard Ducote, a Covington attorney who is running for a vacant seat on the Louisiana Supreme Court, saw the change as a modest attempt at damage control.
It took 15 years for a Louisiana Supreme Court justice’s admission of a troubling ethical lapse to see the light of day — but only a few weeks…
Ducote’s suit seeks to force the court to open up Judiciary Commission records, not just allow complainants to talk about it. He said the only real change he expects from the new rules is that people may feel freer to discuss commission proceedings.
“Obviously the Supreme Court is responding to the tremendous amount of pressure that’s been brought to bear,” Ducote said. “This was unquestionably done quickly to try and put out the fires that are burning as a result of the exposes.”
People who complain about judges seldom get a clear picture of what happened to their complaints. In Hughes’ case, he wrote at least three apology letters that did not spell out his misconduct. More often, it’s the commission that sends a vague letter, declaring its work done, sometimes saying they have “taken the appropriate action,” but little else. A Supreme Court spokeswoman said the wording of those closure letters is under review.
Under the new rules, Judiciary Commission files that detail steps taken as a result of the complaints will remain hidden.
The recent investigative series by Andrea Gallo and John Simerman shines a light on the troubling lack of transparency in the way Louisiana’s …
Judiciary Commission Chairman Philip Sherman defended the continued confidentiality in the Friday news release.
"The notion that confidentiality protects only judges is simply not true," Sherman said. "Confidentiality primarily protects complainants and witnesses, who may otherwise be reluctant to come forward for fear of public scrutiny, retaliation, or recrimination. Without such confidentiality, instances of judicial misconduct would no doubt go unreported, to the serious detriment of the public."
But Ducote — and others who have filed complaints — argue that the public is better served by knowing the outcomes of complaints against judges.
“It’s critical that people be allowed to say, ‘I filed a judicial misconduct complaint and nothing happened,’” Ducote said.
When Louisiana Supreme Court Justice Jeff Hughes was a district judge in Livingston Parish two decades ago, his handling of a child custody ca…