Is The State Court System Setting Judges Up To Fail?

By Rosie Manins | October 27, 2023, 2:57 PM EDT ·

The complaints against a Northwest Georgia probate court judge started before she even sat on the bench to consider a case, and they continued as she stumbled through her first months in the job while nearly all the employees who had worked under her predecessor quit one by one, taking with them their institutional knowledge.

On the day she was sworn in as the probate judge in Georgia's Douglas County, Christina J. Peterson was informed by the Peach State's Judicial Qualifications Commission that her social media posts had sparked concern among some constituents about her fitness for office. It was the first of many interactions the new jurist would have with Georgia's judicial misconduct watchdog.

Judge Peterson's struggle to find her feet in the absence of preparatory judicial training or guidance from the man she'd replaced in an uncontested November 2020 election was highlighted in her defense against 40 ethics charges during the first phase of a commission trial in September.

A University of Georgia School of Law graduate, Judge Peterson testified that Douglas County's previous probate judge, Hal E. Hamrick, left no written policies and several improper practices that she'd had to correct as she learned about them. She said nobody met with her to offer their support when she took office, and that she'd gradually gotten better at the role with experience and some training in Georgia for existing judges.

The lack of a clear training path for the vast majority of judges in the U.S. undoubtedly increases the likelihood they'll stray into troubled waters, said David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts. A former prosecutor, state court judge and executive director of the Arkansas Judicial Discipline and Disability Commission, Sachar told Law360 that the transition from attorney to judge is difficult.

"Most of the time we're elected or appointed as judges, and one day you're a lawyer practicing probate law, and the next day you're on the bench," Sachar said. In some states, he added, "you could be appointed to the bench, and you're handling cases you've never seen. We have this really important piece of our republic, and yet we don't have a solid training system for preparation."

Judge Peterson had practiced as an attorney for three years before becoming a judge, and is the only lawyer in her office. One of several alleged blunders she made in her first year on the bench was fining and jailing a woman who sought to amend her marriage record with a certified translation of her birth certificate from Thailand.

Judge Peterson admitted during trial that holding the woman in contempt of court without giving her an opportunity to seek legal counsel or submit the required documentation was especially harsh, acknowledging that she'd handle the situation differently if faced with it again. She said she'd only dealt with contempt-of-court issues a few times.

Sachar, who oversaw the removal of about 20 judges from office while leading Arkansas' judicial discipline commission, said better training for state judges wouldn't necessarily prevent "outliers" from abusing their position, but it would likely aid others with good intentions who simply become overwhelmed.

"The vast majority of the judges I know are honorable people who work hard, and they got there by ascending to a level in their own profession," he said. "Training is an arm of an ethical judiciary. It hurts confidence when you walk into a courtroom and the judge doesn't appear to know what they're doing."

Sachar said the National Center for State Courts — a nongovernmental organization with a roughly $100 million annual budget — offers judicial training and consulting to help "span the gap" created by the "huge difference state to state" in assistance for judges. With state courts facing the overwhelming bulk of cases filed nationwide in addition to budget constraints, just the timely resolution of cases can be problematic for judges, he said.

"Over 98.5% of all cases in America are filed in the state court, not federal court," Sachar said, referencing data from 2012 to 2021. "That's shocking to some people. And while statistics show that the federal judiciary is about 6% of the federal budget, state judiciaries tend to be a lower percentage of state budgets."

For example, California's judiciary receives just 1.4% of the Golden State's general fund budget, Sachar said. Georgia's judicial branch receives less than 1% of the Peach State's annual operating budget, as noted by the Judicial Council of Georgia Administrative Office of the Courts in its annual report for fiscal year 2022.

Sachar said that because judicial systems vary state to state, much of what a judge needs to learn in one part of the country won't necessarily apply to their counterparts in another. The National Judicial College, based in Reno, Nevada, has been training judges from around the country for six decades, but its teachings are largely generalized, and often accessed by judges of their own accord months or years after they take the bench.

"You can't just wave a magic wand and say, 'Here's how all courts are going to do this,'" he said. "You're stuck with 'Hi, welcome to the judiciary. Here's a couple of bench books. Follow the path of people you saw before you.'"

Judicial Exams Could Be Part of a Solution

In his role as chair of the American Bar Association's Judicial Division, retired Administrative Law Judge Julian Mann III said he's concerned about increasing politicization of the judiciary and the prevalence of "unqualified" judges who ascend to the bench without an independent vetting process.

Mann, who served as North Carolina's chief administrative law judge for more than three decades, told Law360 that the traditional pathway to judgeship involves extensive litigation practice, as trial lawyers "have a great opportunity to witness the good, the bad and the ugly in the judiciary." He said his own 15-year experience observing judges as a private practitioner stood him in good stead when he first took the bench, and he tried to emulate the best of what he'd seen in court, but "at the beginning, it's a bit scary."

Now, as money pours into the political process behind many judicial appointments and elections, there is an ever-present danger of judges taking the bench without the necessary skills and for the wrong reasons, Mann said. He said he's also worried judicial candidates aren't self-evaluating their qualifications and characteristics as much as their predecessors typically did, leading to "very inexperienced and unqualified candidates deciding they want to run for the office simply because they can win."

"You really have to kind of narrow this down to what has the political process done to judicial selections," Mann said. "And it may be that it's producing younger, more political judges that have less qualifications and experience to be a judge."

Mann said that if he'd been asked five or 10 years ago whether judicial preparation should start in earnest at law school, his answer probably would have been, "I'm not sure." But he's now convinced that targeted programs for lawyers seeking to become judges, such as the National Judicial College's relatively new Judicial Academy, are a good idea, he said.

"Given the pressure that is being put on the independent judicial branch of government, we need to start thinking about early preparation for judges and what skills are needed to be an effective, impartial judge," Mann said. "I think we need to be experimenting in this area early and beginning to prepare future judges to protect the independence of the judiciary."

Unlike lawyers, most judges aren't required to pass a test to prove they're ready for the job. Mann said perhaps that should change.

"Should [judicial candidates] take an examination to be a judge?" he said. "We may have reached that point. I've heard some folks advocating for a licensing program for judges."

Benes Z. Aldana, president of the National Judicial College and former chief trial judge for the U.S. Coast Guard, said that when he began leading the college in 2017, a key focus was not just training those already on the bench but also introducing prospective judges to the role. That's when the idea for the Judicial Academy, a weeklong annual course for attorneys seriously considering judgeship, was born.

"The whole concept of training lawyers to become a judge is brand new," Aldana told Law360. "In fact, I got a lot of opposition. Some of the existing judges were like, 'Well, that's going to create competition.'"

The academy, which takes about 30 lawyers each year, is held at the college's Reno campus at the same time the college hosts new judges for training. Academy participants are encouraged to interact with the judges gathered from around the country, and are assigned mentors to assist in their journey to the bench.

"We're going to have people who really appreciate the role," Aldana said. "As a lawyer, you're on the other side of the bench. You're an advocate for your clients. As a judge, you have to be able to listen, understand and make decisions on those issues that come before you. That transition for some is hard."

A former military lawyer, Aldana said that during his time as a judge, he tried to keep in mind the acronym WAIT, standing for: "Why Am I Talking?"

Academy graduates who go on to become judges receive a gavel from the college. Since the first academy in 2019, Aldana has presented more than 20 gavels. He said the academy recruits nationwide and encourages a wide range of applicants to help diversify the bench. Its graduates include Loudoun County, Virginia's first Black judge.

The college, a nonprofit and nonpartisan institution, is also working with law schools to encourage their role in training future judges and attorneys, Aldana said, adding that training for prospective and existing judges should be wide-ranging and extend beyond the substantive areas of law. In addition to learning how to make decisions and communicate effectively, college program participants are encouraged to explore their implicit bias, the human condition, mindfulness, community leadership and major societal issues such as racial justice, climate change and artificial intelligence, among other things.

"We try to look at the whole spectrum of what judges need," Aldana said. "We want to instill with judges, particularly new judges, lifelong learning. The really good judges know that they have to take time to invest in their education."

Judges Face More Challenges Than Ever Before

As public confidence in the judiciary nosedives, due in part to the U.S. Supreme Court's lack of a formal ethics code and controversial conservative rulings of late, all judges now have to consider their safety in addition to the daily demands of the job.

In response to the National Judicial College's June 2022 Question of the Month to its alumni, more than 97% of the 859 answering judges said the Supreme Court's justices should be bound by a code of ethics. 

In August 2020, just after a fatal shooting at the New Jersey home of U.S. District Judge Esther Salas, the college's monthly poll revealed that the overwhelming majority of almost 600 responding judges felt their courts did not adequately address their security needs. Following the nonfatal shooting of an Ohio judge, more than 1,200 judges answered the September 2017 Question of the Month, showing that one in four carry a gun.

Most recently, a Maryland judge was fatally shot in the driveway of his home on Oct. 19 in what police say was a "targeted attack" by a man who lost custody of his children in a hearing earlier that day before the judge.

Aldana, whose initial leadership of the judicial college coincided with the politicization and criticism of the judiciary led by then-President Donald Trump, said judges are also under growing pressure to be community ambassadors, as their legitimacy depends in large part on public trust and confidence.

The rise of social media and division among judges over its use have also complicated their role.

"You have to be concerned about what you do and how you proceed, because anything you do has implications and ethical concerns," Aldana said. "Not only ethical concerns for you, but your family, too."

In his tenure as the head of a judicial misconduct agency, the Center for Judicial Ethics' Sachar became well-versed in the many pitfalls that judges face, from identifying conflicts of interest and handling huge caseloads, to fielding requests for favors and mastering the business side of running a court.

"Some of them have a hard time because they just want to help people," he said. "And they have to learn how to say, 'Hey, I can't do that. You've got to go through this the right way.'"

Among the allegedly improper actions of Judge Peterson in Georgia's Douglas County was her performance of a wedding inside the courthouse on a Saturday without the requisite sheriff's deputies present to screen participants at the security checkpoint. She also came under fire for promoting various events at Atlanta-area bars and nightclubs through social media.

Minnesota Court of Appeals Judge Peter M. Reyes Jr. told Law360 he thought deeply about his social media presence when he was appointed to the bench in 2014. And though he continues to utilize online platforms including LinkedIn, Facebook and X, the social media service formerly known as Twitter, he said he is "very, very careful in terms of what I post," typically taking time to ponder draft content and its potential ramifications before publishing it.

"I think one of the biggest challenges is realizing and understanding that as a judge, you are under the spotlight," Judge Reyes said. "And it's not just your activities while you are a judge, while you're in the courtroom, while you are in chambers. It's also your personal activities, your extrajudicial activities, that you really need to be cognizant of and be aware of what you can and cannot do."

Studying Minnesota's Code of Judicial Conduct and associated opinions by the state's Board on Judicial Standards was among the first things Judge Reyes did once appointed. He said he also attended "excellent" training programs for appellate judges in Minnesota and at the New York University School of Law.

Judge Reyes noted that even with almost two decades of practice as an attorney and a judicial clerkship under his belt, it took a couple of years for him to feel truly comfortable in his job as a judge. He said the more time he spends on the bench, the more he realizes he needs to learn.

"It is an ever-changing dynamic," he said. "New cases present new issues, some of them that have never been dealt with before. So that's the challenge and that's what keeps it really interesting and exciting, is having those new cases and trying to reach the right decision — sometimes when there's no guidance whatsoever, other times when there's very limited guidance."

When in Doubt, a Wise Judge Turns to Others

Judges Sara L. Doyle, Christopher J. McFadden and Kenneth B. Hodges III all had extensive experience as attorneys when they were elected to the Georgia Court of Appeals as first-time judges in 2008, 2010 and 2018, respectively. And while they had developed reputations as being top practitioners in their respective fields of civil litigation, appellate law and prosecution, each found themself seeking help from the court's staff attorneys and existing judges when faced with a range of issues unique to their new role.

From how to write opinions to where to sit during oral arguments, questions for new judges run the gamut. Everyone interviewed for this article said colleagues, peers and mentors are an invaluable source of guidance.

"If you're a new judge, you're going to be talking to the other judges," Judge Doyle told Law360. "You're going to talk to the people down the hall. There's all sorts of things that they don't teach you in law school."

There was no internal training for new judges on the Georgia Court of Appeals when Judge Doyle joined the bench, but efforts have since been made to assist with the transition, particularly in regard to procedural matters, she said.

Judge McFadden, who authored what is considered to be the preeminent treatise on Georgia appellate practice, had practiced primarily in the Georgia Court of Appeals as an attorney and written about appellate law on a scholarly level for 20 years. But even he was uncertain about the day-to-day process of being a judge, he said, and spent the month between his election win and his first day in office seeking advice.

"I went around, I talked to everybody and said, 'How do you do the job?'" he told Law360. "And the thing that I took away from that was the extent to which I was going to need to rely on my three very able staff attorneys."

When Judge Doyle was writing her first dissent in a case, the presiding judge of her panel — who had reached a different conclusion — helped her make the dissent stronger. She said other senior judges have also offered their assistance in similar ways over the years.

Judge Hodges had been a lawyer for almost three decades when he took the bench. He said his love of the courtroom began in law school when he had the opportunity to participate in jury trials, though at that time he didn't aspire to be in charge of them.

A former district attorney, Judge Hodges said he was comfortable with decision making and courtroom practice by the time he became a judge, but he also turned to his staff attorneys for help with the technical aspects of the job. And though it's not required, Judge Hodges said he makes an effort to attend continuing judicial education courses.

"You've got to stay grounded and stay in touch with others," he said.

Sachar said judges have to isolate to a certain extent to avoid conflicts of interest, which is why mentorship can be so beneficial to them. He noted that while judges can't rely on others to decide cases for them, they are allowed and encouraged to talk with their peers.

"I cannot think of a judge that was removed from office that had a solid mentorship," he said. "Mentorship absolutely increases the ability for a judge to get up to speed and have confidence. We believe strongly that training and networking is not just for fun."

Judge Reyes' robed colleagues in Minnesota helped him transition into judgeship, he said, offering to answer his questions and discuss the job over lunch or coffee as soon as his appointment was announced. Even the judge he was replacing guided him around the court.

"When I became a judge, an 'Aha!' moment for me was finding out just how humble so many judges are and just what wonderful people they are," he said. "I'm privileged to work with some of the sharpest legal minds, the most intelligent people I've ever met in my life, but they're so incredibly humble."

Despite the improvements that widespread preparation for state judges could bring, Sachar said America's judiciary "is still the envy of the free world."

"It still works, and still has generally some very principled people," he said.

--Additional reporting by Katie Buehler and Jack Karp. Editing by Alanna Weissman.

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