March 18, 2015

Judges, Failings

Filed under: Uncategorized — ruleswatch @ 1:49 pm

So, three English judges have been dismissed because they were caught having connected to pornography and apparently consumed it through judicial computers while working. [see: Another resigned to avoid dismissal. As described in the grey suited language of the UK Judicial Conduct Investigations Office statement, [see: the dismissals were delivered in a clean, anodyne, categoric coup de grace that best announces these kinds of things.

The release did not mince words on who was dismissed, the courts in which they had sat, where the courts were located, their names, nor as anyone who might care now knows full while, why.

How these dismissals were effected, what standards of procedural justice were applied, what the extent, if any, of the defences offered, what kind of investigation had occurred and what kind of process had been delivered all remain to be seen. But dismissals in the clipped and final, summary sense the word carries, they were.

And in that they differed sharply from other incidents on other sides of the Atlantic that immediately come to mind.

Judge Alex Kozinski, a 64 year old wunderkind, until just before this past Christmas the Chief Judge of the United States Court of Appeals for the 9th circuit, had called for an investigation of himself when the press reported that he had maintained a website of sexually explicit videos, photographs and other material.

The site was a private one. The judge described it as a “family website” on which family members saved photos and other keepsakes but into which his images crept and apparently could be accessed by the public.

The immediate cost of this affair was that, as soon as the matter became public, the judge had had to recuse himself from an ongoing obscenity trial . The affair also imposed all of the costs of and investigation and hearing of the matters on the public purse. But the fact reminded that the website had been a private one, and regardless of the cost to the judiciary’s prestige and perhaps its, core legitimacy, in the libertarian traditions of the American system, Kozinski suffered only admonishment. He otherwise survived to continue delivering judgments which, it must be said, seem to continue to meet broadly based public approval.

The fact that it was non-public website platform that the judge used, or failed to prevent being used, for the offensive material, perhaps the much higher relative judicial position that he occupied, and perhaps a flavour of libertarianism lurking in US political and judicial culture ultimately protected him.

The other that comes to mind is the Canadian experience of Justice Lori Douglas of the Manitoba Court of Queen’s Bench. Justice Douglas’ experience — however you cut it, sad and distasteful– involved the posting to the Internet of bondage inspired, sexually explicit photos of the future judge taken and posted before her appointment to the bench by a depressed and perhaps episodically vengeful former husband.

Justice Douglas’ experience was, in many ways, typically Canadian . Beyond the seamy and byzantine facts of how the matter developed to become judicial complaint, and then further morphed into an administrative law and ultimately into a threatened a division of powers and procedural constitutional nightmare, for most it was a high level but cheap and tawdry soap opera passing as a modern day morality play.

The Douglas affair rolled on over years leaving all kinds of debris in its wake. It walked through the resignation mid-stream of one commission counsel, thought to be too light on the Justice Douglas side of the controversy by the very panel hearing the case; through the attempted judicial review of the self-same panel’s conduct of the inquiry by Justice Douglas’ side; through a position by the panel that it was constitutionally immune to judicial review; and, finally, through the en masse resignation of the panel and the appointment of a new panel, seemingly doomed to start over. Its longer term implication was unavoidably to leave the Canadian Judicial Council which adjudicates complaints against judges with egg, justifiable or not, on its face.

Mercifully, the affair ended just before the photos were to be disclosed to the newly constituted panel, with a deal that saw the judge resign, saving her pension, taking her off the bench and saving the rest of the country more wonder struck angst — and significant cash– through further conduct of the inquiry.

Justice Douglas’ case was arguably different from these recent English judges’ case. She sat at a higher level than they, the photos were of her, consensually taken in a private setting, arguably posted without consent by her former husband. So to that extent she fell, perhaps, in the Kozinski category. But there was another dimension, directly material to her work: she had not disclosed the internet existence of the photos by her in the judicial appointment process. [US Federal Judge Richard Kopf has written wisely about “The Question” here: There were other arguments about this, but this aspect of the complaint was never explored before the council. And, it arguably in a Canadian context without overly libertarian have been strongly taken to support the gravity of the circumstances.

It was also different from the American, Kozinski’s situation in that Douglas appeared to have been a good lawyer, but she was none of the high flying intellect or the public personality that he is. Too, her court was closer to the everyday business of the people, as compared to the rarefied and remoteness an American federal appellate court.

The Douglas affair, even though it involved far more than its own fair share of mash-ups, was typically Canadian. It unrolled not in the plain grey dispassionate language of the civil service, nor in the celebrity atmosphere of the Americans. It lacked the dispassion of both the Americans and the Brits, and it managed to march directly into the minefields of federalism, without which no true Canadian morality play could be complete.

Underneath it all, it did engage real and duelling senses of morality. And the main actor kept her pension.

Each of these cases were quintessentially human, only differed in degree in their individual instances, and came with both undeniable human and institutional loss.


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