THE PANEL that holds career-beginning and -ending power over the judiciary ruled last week that judges must be perfect.
The Judicial Merit Selection Commission's report finding Family Court Judge Charlie Segars-Andrews unfit to remain on the bench (with my emphasis added) makes that starkly clear: "The Commission's investigation revealed evidence that Judge Segars-Andrews' conduct caused an appearance of impropriety that led a litigant not only to question Judge Segars-Andrews' ability to render a fair and impartial decision, but also to lose faith in the integrity of this state's judicial system."
The facts are not complex, although they are slightly different from what has been reported, and you practically need a score card to keep up with the players. They are not even, as USC law professor and merit panel member John Freeman pointed out in his compelling dissent, in contention.
In February 2006, Judge Segars-Andrews held a settlement hearing involving William R. Simpson Jr. and his ex-wife, Becky H. Simpson. A month later, just as she was about to issue an order, Mr. Simpson asked her to recuse herself because her husband's law partner had testified in support of the attorney fees requested by Mr. Simpson's mother's attorney in his parents' earlier divorce. (He and his father retained the same divorce attorneys, as did his mother and ex-wife.) The judge refused but announced that her husband had reminded her that his law partner was involved in another case with the two women's divorce attorney, which resulted in Mr. Andrews receiving what she later would testify was about $300,000. When she said this forced her to throw out her ready-to-be-announced decision and hand the case to another judge to hear all over, Ms. Simpson's attorney asked to file a brief.
That brief included a memo from USC law professor Nathan Crystal, who concluded that not only was Judge Segars-Andrews not obliged to recuse herself but that she was in fact under a duty to hear the case. Mr. Simpson's attorney didn't put up an argument because, he told the screening commission, the judge had been so adamant about recusing herself that it never occurred to him that she would actually change her mind.
But she did, in a written order, and then awarded Ms. Simpson 40 percent of the couple's assets and ordered Mr. Simpson to pay half of her $160,000 in legal fees. Upset primarily about the fees, since his were just $9,000, Mr. Simpson appealed the order and filed a complaint with the Office of Judicial Conduct.
The ethics complaint was rejected without a hearing, which suggests the staff found it completely without merit. Little wonder. The Court of Appeals ruled that Judge Segars-Andrews had ruled correctly on the case, found that Mr. Simpson had not demonstrated any evidence of actual bias and noted that "Judge Segars-Andrews had the duty to sit for this matter" (my emphasis again).
Everybody on the Judicial Screening Commission agreed that Judge Segars-Andrews should have known about her husband's law partner's relationship with Ms. Andrews' attorney and informed all parties from the start and that, having not done that, she should have followed through on her promise to recuse herself. In Mr. Freeman's view, the difference of opinion boiled down to the perfection standard and to what Senate President Pro Tem Glenn McConnell referred to as "her ambiguous actions regarding her recusal."
Mr. McConnell, the panel's chairman, wrote that because the judge changed her mind about recusal, and without even holding another hearing to explore that issue, "Mr. Simpson now reasonably questions both her verdict and his faith in the administration of justice in South Carolina."
While acknowledging that "We are all human and we all make mistakes," Mr. McConnell argued for the majority that, "In this instance, a mistake handled in a contradictory manner resulted in a litigant who had only one chance in our judicial system to lose faith in it and reasonably so. Judges are trustees of the legal system, and their actions must always be above reproach. This is a very high standard, but that is because their decisions carry so much weight."
I am predisposed to trust the screening panel when it says there's an ethics problem, I agree that preserving the public's confidence in the integrity of the judicial system is paramount, and I take panel members at their word when they say they don't care about the outcome of the trial, merely the process.
But I agree with Mr. Freeman and the many judges and lawyers who argue that their one-strike-you're-out standard is deeply disturbing. You don't end a judge's career on the basis of one action unless it was indisputably, terribly out of bounds. This was neither.
I don't think it's insignificant that while five of the six legislators on the panel voted against the judge, the non-legislators split 2-2. This was a populist, reactionary ruling, built as it was around the contention that it was "reasonable" for Mr. Simpson to lose faith in the court system.
Like the Court of Appeals, I find nothing reasonable about that. But even if the court and I are wrong, it's absurd to suggest that a single action that caused a single "reasonable" person to conclude that he had been treated unfairly is grounds for ending the career of someone who by all accounts is a very good judge. I get at least one phone call or letter a month from someone who wants to tell me about how the judge in his case was in collusion with the other side. Under the panel's standard, we should kick all of those judges off the bench.
Or maybe we should revert to a more reasonable standard for judging judges. As Mr. Freeman argued: "(I)t is common for one litigant or the other, and sometimes both, to believe they got less than they deserved in court. Because judges are fallible, inevitably we will find well-meaning litigants who become the victims of an error of fact or law by a judge.... (G)ood judges need to be honest, competent, independent, and fearless. They do not need to be infallible, which is fortunate, because none of them are."