BIRMINGHAM, Alabama - When the Alabama Court of the Judiciary last week suspended Jefferson County Circuit Court Judge Dorothea Batiste for 90 days without pay for violating the due process rights of people she ordered jailed for contempt, she became the 41st judge in 40 years to be punished through the state's disciplinary process for judges.
Nearly half of the other judges who have been brought up on charges before the court of the judiciary were removed by the court, resigned, or retired for misconduct, including one judge who had sex in the courtroom.
But the process for filing complaints about Alabama judges with the Alabama Judicial Inquiry Commission for investigation and prosecution before the court of the judiciary is facing a serious dilemma, commission officials said. Soon the commission may not have the money to keep a prosecutor-investigator on staff, those officials said.
Commission and court history
The commission's responsibility is to review and investigate complaints filed against judges regarding allegations of misconduct, violation of the Alabama Judicial Canons of Ethics or a judge's physical ability to carry out the job, said Jenny Garrett, executive director of the Judicial Inquiry Commission.
The commission received about 1,000 inquiries from the public last fiscal year regarding the complaint process, Garrett said.
But the commission will only investigate formal sworn written complaints, Garrett said. The commission received 189 formal complaints last fiscal year and ordered investigations on 53 of them. So far this year the commission has received 167 formal complaints.
Complaints not investigated, Garrett said, are due to one of three reasons: no reasonable basis reflected in the complaint; assuming everything was true in the complaint the judge's action is not an ethical violation; or the dispute is over a legal issue which can only be reviewed by an appellate court.
Sometimes the commission may get with a judge to correct a problem, such as an addiction, before any charges are necessary, commission officials said last week.
The commission meets periodically to review the complaints and decide which ones to investigate. The process is all confidential and not open to the public unless formal charges are filed to the Alabama Court of the Judiciary.
In the 40-year history of that court, only two of the 43 judges brought before the court of the judiciary on charges of ethics violations or misconduct on the bench have walked away without facing any discipline. A number of cases were settled before an actual trial was held.
According to records, of those judges brought before the court on ethics violations:
- 7 were removed from the bench
- 11 retired or resigned
- 14 were suspended without pay (many also included censures)
- 6 were only censured
- 3 were suspended until the end of their term
- 1 was dismissed
- 1 faced no disciplinary action by the court
Those cases have included:
- Wilson A. Hayes, a judge in Baldwin County in 1982 who was suspended after he was found to have coerced a man into a vasectomy in a divorce case.
- W.W. Rabren, a circuit judge serving Coosa, Clay and Shelby counties, who was ordered removed from office after he was found to have made a racial slur concerning Alabama Supreme Court Justice Oscar Adams, the state's first black justice. Rabren had also been censured by the court two years earlier in a separate case.
- Johnny Langley, a Lamar County district court judge, who in 1988 resigned amid allegations that included he had sex in the courtroom with a woman not his wife.
- Dan King, a Jefferson County Circuit Court Judge, received a 60-day suspension without pay and was censured in 2010 for setting aside the rape conviction of a man whom he had represented 15 years earlier, and for publicly criticizing a fellow judge.
- Roy Moore, the Alabama Chief Justice in 2003 was removed from the bench for failing to heed a federal judge's order to remove the Ten Commandments monument from the Supreme Court building. Moore was re-elected as chief justice last year.
Alabama Judiciary Inquiry dilemma
Investigating and prosecuting complaints, however, could be slowed soon, Garrett said.
Griffin Sikes, an attorney, has been the commission's investigator and prosecutor the past few years under special appropriations from the state.
But that money is ending. Sikes leaves at the end of this month and the commission is looking at its options, Garrett said.
Without Sikes, that leaves Garrett (she also is a lawyer), a secretary and an assistant executive director to staff the JIC office.
In the past the JIC has had help with investigations from the Alabama Attorney General's Office. That ended during Troy King's tenure as attorney general due to potential conflicts that it could pose. The commission for one case had a retired district attorney as an investigator.
The JIC is set to get $412,000 for its budget for next fiscal year, Garrett said. That's about $200,000 less than what the commission was given this year, including twice getting emergency funding so it could continue investigating and prosecuting cases, she said.
"I don't know what we're going to do," Garrett said.
With the number of inquiries and formal complaints that come into the office each year, Garrett said, "it's safe to assume that the commission has some serious work pending before it right now."
Batiste and selective prosecution claim
Sikes was the prosecutor in Batiste's case last week.
The court, on Thursday, following a three-day trial, found that Batiste had violated judicial canons of ethics regarding the use of contempt powers in the jailing of witnesses or litigants for missing court dates without giving them due process - a chance to defend themselves. In addition to a 90-day suspension without pay, the court ordered a public reprimand and that she attend a judicial college.
The court issued its final 34-page ruling, sanctions and reprimand late today. Read it here.
Batiste, the only elected black female Republican judge in the state, has 42 days from the time of the commission's decision in which she could appeal.
Batiste and her attorneys have alleged selective prosecution by the commission. They also argued that the contempt orders cited by the JIC were really another process called writs of attachment, which are used by judges to have law enforcement bring reluctant witnesses to court. The commission, however, argued and the court agreed that Batiste didn't understand contempt proceedings and the need for due process.
Julian McPhillips argued to the commission that other judges, particularly former Jefferson County Circuit Court Judge Suzanne Childers, have held people in domestic relations cases on imposed "gargantuan" sentences - hundreds of days rather than the 12 days Batiste had sentenced one man. "We think there was a high-degree of selective prosecution," he said.
Kenneth Paschal, ALFRA Director of Governmental Affairs who attended Batiste's trial, issued a statement after last week's decision by the Alabama Court of the Judiciary stating that Batiste was being singled out. "This goes on every day in almost all Alabama courtrooms," he stated.
Childers, who was defeated in her re-election bid last year, also attended the trial. She said that sentences she handed down were in different situations and involved people not paying child support. Also, due process was never denied, with parties given notice that a contempt charge was filed and an opportunity to be heard at a hearing before they were jailed.
Alabama Department of Human Resources attorneys and staff were meticulous in handling the contempt notifications to make sure due process was followed, Childers said. "In my court, due process was never denied," she said.
Childers also said that the ones she jailed for contempt had the ability to pay, but just didn't. Sentences also were within the law - up to five days for every missed child support payment missed, she said.
McPhillips also said that Batiste was not in the "magic circle" of judges surrounding former presiding Jefferson County Circuit Court Judge Scott Vowell, who had presented a compilation of complaints from others to the commission last summer. He retired in January.
Batiste and her attorneys have claimed that Vowell, also a former member of the Court of the Judiciary, had filed the complaints out of retaliation for Batiste's rejection of sexual advances.
Vowell has denied the claims, calling them "baseless."
Batiste and her attorneys also claimed race played a factor in the complaints against her and her prosecution. She is the fifth black judge - among the 43 in 40 years - and second woman to have a case come before the court of the judiciary.
Griffin Sikes, the attorney who prosecuted Batiste on behalf of the commission, addressed the issue in court and in a written trial brief to the Court of the Judiciary. He told the court that Batiste's claims against other judges aren't a defense and that she was going to attempt to make the case about anything other than the charges she faced.
"In particular, Judge Batiste alleges racial discrimination - that the commission has subjected Judge Batiste - an Afro-American, to 'disparate treatment,' citing two other Caucasian judges who have 'far more abused contempt power usage than she has," Sikes wrote in his brief.
Sikes, however, wrote that no legal authority in Alabama recognizes selective prosecution as a defense to a charge made by the commission in the court of the judiciary. He also wrote that the U.S. Supreme Court has ruled before in a judicial discipline cases that judicial misconduct by others is not a defense to the charges against a particular judge.
Also, Sikes argues that if the Judicial Inquiry Commission has not received a sworn complaint against a judge, then it does not have the authority to investigate. Batiste did not allege that there had been sworn complaints alleging the other judges had ordered litigants or witnesses jailed without first according them due process - notice and a hearing at which they can defend themselves, he wrote.
Even so, commission officials say, they are prohibited under Alabama law from discussing whether a complaint has been filed against any of the other judges cited by Batiste. And judges under attack by Batiste can't talk about it either.
Both the commission and the court each are made up a combination of judges, lawyers and citizens. The lawyers and citizens make up the majority on both the commission and court, according to the commission.
The court of the judiciary would not let Batiste use selective prosecution as a defense.
Updated at 7:45 p.m. Aug. 6, 2013 to add information that the court issued its final ruling and sanctions against Batiste
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