NCJ Number
53803
Journal
Chicago-Kent Law Review Volume: 54 Issue: 1 Dated: (1977) Pages: 177-199
Date Published
1977
Length
23 pages
Annotation
THREE AREAS IN THE PROPOSED STANDARDS RELATING TO JUDICIAL DISCIPLINE AND DISABILITY RETIREMENT EXPLAINED ARE: BURDEN OF PROOF, SANCTIONS, AND CONFIDENTIALITY.
Abstract
THE STANDARDS ARE THE PRODUCT OF EFFORTS MADE BY THE AMERICAN BAR ASSOCIATION AND THE AMERICAN JUDICATURE SOCIETY. THE ADVISORY COMMITTEE ON PROFESSIONAL DISCIPLINE WAS CREATED BY THESE TWO ORGANIZATIONS TO DISCUSS AND CONSIDER THE ADOPTION OF UNIFORM STANDARDS. BURDEN OF PROOF HAS TWO SEPARATE AND DISTINCT MEANINGS. ONE IS THE BURDEN OF PRODUCING EVIDENCE ABOUT A PARTICULAR FACT IN EVIDENCE, AND THE OTHER IS THE BURDEN OF PERSUADING THE TRIER OF FACT THAT THE ALLEGED FACT IS TRUE. THERE ARE THREE STANDARDS OF PROOF USED IN VARIOUS JUDICIAL PROCEEDINGS: PREPONDERANCE OF EVIDENCE, CLEAR AND CONVINCING EVIDENCE, AND BEYOND A REASONABLE DOUBT. THE DEVELOPMENT OF THE CONCEPT OF JUDICIAL DISCIPLINE AND DISABILITY COMMISSIONS AS A PARALLEL METHOD FOR THE REMOVAL OF A JUDGE OTHER THAN BY IMPEACHMENT HAS ALLOWED GREATER FLEXIBILITY IN THE IMPOSITION OF SANCTIONS THAN FORMERLY EXISTED. PROPOSED STANDARDS CONCERNING THE RELATIVE CONFIDENTIALITY OF DISCIPLINARY PROCEEDINGS REPRESENT A SUBSTANTIAL DEPARTURE FROM THE MAJORITY OPINIONS IN MOST STATES. THREE CONCLUSIONS OF THE ADVISORY COMMITTEE ON PROFESSIONAL DISCIPLINE ARE NOTED: (1) THE CLEAR AND CONVINCING EVIDENCE TEST MUST BE USED AS THE STANDARD OF PROOF IN DISCIPLINARY PROCEEDINGS, (2) POSSIBLE SANCTIONS THAT MAY BE IMPOSED AGAINST A JUDGE CHARGED WITH IMPROPER CONDUCT REPRESENT A COLLECTION OF EXISTING STATE STANDARDS, AND (3) A METHOD OF ENFORCING CONFIDENTIALITY ASPECT'S OF THE STANDARDS IS NECESSARY TO ASSURE APPROPRIATE JUDICIAL CONDUCT. CASE LAW IS REVIEWED. (DEP)