The most recent disciplinary order issued against a federal judge vividly demonstrates a major shortcoming of the federal judicial disciplinary system—transparency.

In September, the Judicial Council of the Tenth Circuit publicly reprimanded Kansas federal district court judge Carlos Murguia. The judge’s offenses included “sexually harassing Judiciary employees,” habitually tardiness, and an extramarital affair. To the detriment of public confidence in both the judiciary and the judicial disciplinary process, the disciplinary order provides few specifics about the judge’s misconduct.

Sexual Harassment

Only vague generalities accompany the Judicial Council’s finding that the judge subjected female employees to “unwanted attention.” The order states that Judge Murguia was guilty of “sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, much of which occurred after work hours and often late at night.”

What was the precise nature and frequency of these acts of misconduct? Were the late-night contact visits at employees’ homes? How late is “late.” What did the judge say in his “comments [and] inappropriate text messages”? How explicit were the communications? Were the messages threatening in any way? The Tenth Circuit Judicial Council devotes more words to describing the ethics provisions violated by Murguia than to describing the misdeeds themselves.

Habitual Tardiness to Court

The Council also found that although he was counseled about tardiness “fairly early in his federal judicial career,” Judge Murguia “has been habitually late for court proceedings and meetings for years.” Noticeably absent from the order is any mention of the frequency with which the judge left courtroom participants waiting. Since Murguia was sworn in as a federal judge in 1999, the misuse of lawyers, staff, witnesses, and jurors’ time could have continued for nearly two decades. The Council only identifies one cause of the judge’s lack of punctuality—his regularly scheduled lunchtime basketball games. Nothing indicates the frequency of the games or how late the judge began afternoon court sessions. Nor do we know how often the judge was late for other reasons. In one bit of irony left unmentioned by the Tenth Circuit Judicial Council, the opening sentence of the “Guidelines for Counsel Appearing in Judge Carlos Murguia’s Courtroom,” posted on the court’s website states: “Be timely for each court session. Trial engagements take precedence over any other business.”

Extramarital Affair

The Tenth Circuit found that the judge engaged “in a years-long extramarital sexual relationship with a drug-using individual who was then on probation and is now incarcerated (because of probation violations) for state-court felony convictions.”

The Council hastened to add that an extramarital affair, even with a felon, does not always constitute judicial misconduct. Consistent with the other findings, the order fails to identify the circumstances that transformed Judge Murguia’s affair from a permissible personal relationship into sanctionable misconduct. Was it the fact that the paramour was a drug-user, or on probation, or incarcerated for a probation violation, or that the judge was married, or that the affair was secret rather than open?

Transparency and Disincentives

What makes the disciplinary order’s lack of specifics stick out like a sore thumb is the Council’s concluding statement that “misconduct that rises to this level calls for transparency and a powerful disincentive.” But the goal of transparency is defeated when the facts supporting the discipline are hidden. Even worse, there is no “powerful disincentive” other than an embarrassing, detailed description of the misconduct since the most severe sanction available to a federal disciplinary council is a public reprimand. The Council did send a “private letter” to the judge requiring him “to take certain corrective actions.” Unsurprisingly, the “corrective actions” are not described. Was the judge merely advised to join a basketball league that played later in the day, or was he required to undergo counseling, or complete education in employee harassment, or write letters of apology, or have no contact with certain court staff? Why is the public not entitled to consider this information in accessing the integrity of its judiciary and the effectiveness of the body charged with investigating and disciplining judges?

The explanation for the truncated disciplinary order seems to be the Council’s desire to avoid embarrassing the judiciary. Indeed, the Council laments that the order, even as vague as it is, may damage the reputation of the judicial branch.  And maybe that lament is inevitable when judges, rather than independent actors, control the judicial disciplinary process. Disciplinary bodies must recognize that no canon or rule of judicial conduct even suggests that potential embarrassment should factor into a decision whether to discipline a judge, the nature of the discipline, or the content of the disciplinary order. Disciplinary orders must be written to inform the public and not to protect the reputation of the judicial branch.

Raymond J. McKoski is a retired Illinois judge, adjunct professor at UIC John Marshall Law School, and author of Judges in Street Clothes: Acting Ethically Off-the-Bench.

Suggested citation: Raymond J. McKowski, Disciplining Federal Judges and the Public’s Right to Know, JURIST – Professional Commentary, November 17, 2019, https://www.jurist.org/commentary/2019/11/raymond-mckowski-disciplining-federal/

This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org