After Lopez

Issue July 2003 By Chad Konecky

Fallout from high-profile conduct case, new ethics code increase pressure on judiciary

The details of the saga are by now all too familiar.

Former Superior Court Associate Justice Maria I. Lopez sentenced an admitted child molester to probation and house arrest in September 2000, dressing down a Suffolk County prosecutor during the hearing. Lawmakers on Beacon Hill immediately called for her removal, which was followed by 20 months of wrangling about her bench behavior.

Formal misconduct charges were filed with the Supreme Judicial Court in May 2002. Next came a public hearing in which Lopez lied under oath, according to a finding by Judge E. George Daher in April. A subsequent recommendation by a Commission on Judicial Conduct (CJC) panel said that Lopez, a Cuban ÈmigrÈ who became the first Hispanic woman on the state Superior Court in 1993, should be suspended from the bench for six months.

Then, came Lopez's resignation on May 19 and, with that, the CJC closed its complaint against her in June.

Arguably the longest introspective exhale in the history of Massachusetts' jurisprudence, the conclusion of the protracted disciplinary proceedings has left questions about the future of the commonwealth's judiciary.

And these questions - at least according to some area legal minds - will not only require time to answer fully, but also will engender substantive alterations in the oversight of judicial conduct. But the consensus among those Lawyers Journal tapped is: Enhanced public trust in the process is vital and any speculation about someday electing judges is idle.

Closer scrutiny

"This case was such an extreme manifestation of what can go wrong," says Bingham McCutcheon LLP partner Ralph C. Martin II, former Suffolk County District Attorney and chairman of the state's Judicial Nominating Commission.

"But (the case's impact) according to standards and objective metrics that everyone can gauge, well, it's going to take some time," Martin says.

Berkshire County District Attorney Gerry Downing, president of the Massachusetts District Attorneys Association, says the systems for reviewing the performance of judges were adequate 50 or 60 years ago, "but not today."

"The public is very demanding, the process is very publicized and I think judges are becoming more sensitive to that," Downing says. "I hope there is a lesson in this for the judiciary and that it takes a positive message away. I don't think there's any system that doesn't need some level of scrutiny."

In addition to the fallout of the Lopez saga, judges now are reviewing a new 52-page blueprint for how they should behave on the bench. The new code was not developed in response to the Lopez fallout, according to the SJC, but has been in the works since 1998, when the SJC convened a committee to update the 1972 Code of Ethics. The new version becomes effective Oct. 1.

New rules of the robe

The new code contains a wording change clearly intended to emphasize its gravity: instead of reading judges "should'' uphold its rules, the code now reads judges "shall'' abide them.

"Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges," reads commentary accompanying the new rules.

"A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge."
The committee tweaked wording to give the code more teeth and placed restrictions on social groups judges can join. It also warns judges to be alert to avoid "behavior that may be perceived as biased or prejudicial," such as his or her speech, gestures or other conduct including body language and facial expressions.

Martin cautions a more restrictive code doesn't necessarily hit at the root of the problems underscored by the Lopez proceedings.

"It would be an awkward and unfortunate set of circumstances to say to the judiciary, 'you have less due process than the people who came before you'," says Martin. "Misconduct is a very substantial allegation, and there's a need to fulfill due process and hold a public hearing, and that shouldn't be shrouded in secrecy.

"It's not the elements of the current process (that are problematic), it's the time frame," he says. "If there was a way to compress the timing, that would be very helpful in establishing more public confidence. You need certainty, transparency and a final outcome the public can trust."

Downing agrees.

"The public needs to feel there's an ongoing evaluative procedure that assures all of us that those with problems are being dealt with or removed," he says. "The Lopez proceedings were long and difficult and the exception, not the rule. But there does need to be a process the public knows about and is comfortable with - one that doesn't jeopardize judges' status as appointed for life."

Impact on judgeships

While it may be tempting to postulate the Lopez issue will make serving on the bench in Massachusetts less palatable, the realities are undeniably more intricate.

"I don't think (Lopez's) problems will make it any more difficult for people to be judges or apply for judgeships," says Robert Barton, a Superior Court judge from 1978-2000 and former chairman of the state's Commission on Judicial Conduct. "I served on the CJC for five years and lots of (disciplinary measures) take place the public never hears about. There are 'early retirements' for a variety of reasons."

The systems in place are not good enough for Holyoke Police Chief Anthony Scott, who helped craft S.1065, a state Senate bill requiring judges be publicly certified, which was recently defeated in committee.

"Judge Lopez is the poster child for what I'm pushing for: That judges be certified by the people every six years," says Scott. "Judges need to be accountable for their actions. I'm not talking about elections. No money. No campaigning. Their name goes on a list and the public must 'confirm' them. Opponents say that's injecting politics into the judiciary, but anybody who doesn't think there are already politics in the judiciary is just plain stupid."

It doesn't appear Scott's position will garner much momentum in the legal community anytime soon.

"Sometimes, we'd wish elections upon judges, but heaven help us, that's not the solution," says Downing.

"Most informed people understand and recognize the inelegance of electing judges," adds Martin.

Barton places perhaps the finest point on the matter.

"Electing judges would be terrible," he says. "It's one thing to have to look in the mirror and satisfy yourself. If you have to satisfy the public, you're not always going to do the right thing."

Martin also believes that more changes may be on their way.

"I think the potential fixes lie in some of the changes being promoted by the governor's office and being debated in the legislature," says Martin. "(The focus should be) in terms of how the CJAM office operates with the SJC (toward) promoting a higher level of management."

Barton is among those who lean more laissez-faire.

"As long as you maintain a strong judicial conduct commission, that's going to compensate for putting judges in the position of being appointed for life (mandatory retirement at 70)," he says.