A Fresh Approach to Dealing Judicial Inpropriety

Due process guarantees a party to a case a fair trial before a fair tribunal/judge. There are no shortages of citations to this axiom: The Code of Judicial Conduct, Rule 21-400 NMRA2009, a Judge must recuse itself from a proceeding in which “the judge’s impartiality might reasonably be questioned.” (emphasis added); see also, The 14th Amendment to the United States Constitution and Article II, Section 18 of the Constitution of the State of New Mexico guarantee every person the right of due process of law; see also, Lujan v. N.M. State Police Board, 100 N.M. 149, 151, 667 P.2d 456, 458 (1983), citing, Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43L.Ed.2d712 (1975); Tumey v. Ohio, 273 U.S. 510, 47S.Ct. 437, 71 L.Ed. 749 (1927)(“a fair trial in a fair tribunal is an essential requirement of due process, and that this concept applies to administrative agencies as well as to courts”).

And? So what, it is said. What gives those laws, that axiom it's teeth? How many attorneys are willing to stand up to judges and say, "stop it right now. You are not being fair and don't deserve to be a judge in this case." How often with the Judicial Standards section force a judge to give up the gavel?

A few years back, in Idaho, fed up voters attempted to pass a bill that would have made judges civilly liable for violating a litigant's rights. The bill didn't pass, however, as it faced a strong lobby in the American Bar Association (ABA). The ABA's concern was that the legislation would undercutseparations of powers and the strength and independence of the judiciary. The ABA's concerns are correct --who'd want to undercut the independence of the judiciary? However, do we, as a society want judges on the bench who routinely violate litigants rights? Do we want those types of judges to be strong and independent? There has to be some middle ground that can be reached.