The Morris Amendment

Our last article, Why fixing Louisiana’s broken Criminal Court System is so difficult, addressed a system unwilling to change. Since the days of Huey Long, maintaining the status quo has been the hallmark of Louisiana. The system doesn’t want anyone examining the system too closely, much less trying to fix what they find.

Try as we might, for reasons unknown, Louisiana can’t seem to get moving on fundamental criminal justice reforms. I’m not talking about JBE-style “let them all out of jail” reform. We tried that already. I’m talking about the number one thing we’ve seen recommended repeatedly. Can we at least set some calendaring standards for court cases? Nothing terrible happens if they don’t hit these metrics. Standards exist so the system can strive for a goal. Because how can we hit a target unless we’ve at least defined one?

However, those pesky sacred cows jumped up and ended that effort. All we managed to get was an agreement to start recording how long it takes cases to filter through the courts. We did this so that we can look at it in five or ten years and then make recommendations. Surely you’re joking! Nope.

Now, the legislature is trying a new tactic: sending changes to the people. It’s certainly not perfect—nothing ever is—but at least we will tweak something. So, let’s look at Jay Morris’s constitutional amendment proposal.

Enter the Morris Amendment

One of four Constitutional Amendments appearing on December 7, 2024, involves handling judicial misconduct.

Do you support an amendment to allow the supreme court to sanction a judge upon an investigation by the judiciary commission, to provide that the recommended sanction shall be instituted by the judiciary commission or by a majority of the supreme court, and to provide for the appointment of five members of the judiciary commission?

That is a lot to digest. Let’s first cover a little background, and then we can break things down further. The Judiciary Commission of Louisiana is a constitutional body created in 1968. Its powers and function are found in Article V, Section 25. It is presently composed of nine members:

• One Court of Appeal Judge and Two District Judges selected by the Supreme Court;
• Two attorneys who have been admitted to practice for at least ten years and Two attorneys who have been admitted to practice for at least three years but not more than ten years are selected by the Conference of Court of Appeal Judges (They cannot be active or retired judges or public officials); and
• Three citizens selected by the Louisiana District Judges’ Association who are non-lawyers, judges (active or retired), or public officials.

Powers of the commission

The powers of the Louisiana Judiciary Commission are limited and defined. Very limited. They are allowed to make “recommendations” to the Supreme Court. They may recommend:

• The censure, suspension (with or without salary), removal from office, or involuntarily retirement of a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, or conduct while in office which would constitute a felony, or conviction of a felony.
• The disqualification of a judge from exercising any judicial function, without loss of salary, during the pendency of disciplinary proceedings; and
• The involuntary retirement of a judge for a disability that seriously interferes with the performance of his duties and that is or is likely to become permanent.

It is within the power of the Supreme Court to take action, not the commission.

Lack of Transparency

Senator Jay Morris (R 9/10) was the bill’s author, Senate Bill 177 from the 2024 Regular Session. That bill became Act 405 and will appear before the voters on December 7th as a proposed Constitutional Amendment. Morris repeatedly spoke about a need for more transparency and the process’s overall (slow) speed concerning complaints before the Judiciary Commission of Louisiana. He even cited examples of unnamed judges in his district who have been the subject of complaints by a Chief of Police, Sheriff, and other elected officials. This is important to note.

We don’t take issue with Senator Morris’ enthusiasm in this arena. In fact, we commend his attempts to address problems concerning judicial misconduct. However, knowing his intent and concerns over transparency and timeliness, we would be remiss if we didn’t address the fact that the potential changes brought on by this amendment may not address those concerns at all and may even make them worse.

Prompt action

Firstly, the Morris Amendment adds five additional members to the Judiciary Commission. These five are not staff members who would necessarily be investigating or conducting any leg work necessary to review, screen, vet, and investigate complaints. The Judiciary Commission has a single investigator and a handful of lawyers to facilitate the complaint process. This would be five additional members to a Board with nine members, making it a fourteen-member board. Is increasing the number of board members going to make anything more efficient? The Board meets about ten times a year and must sift through thousands of records, video, audio, and other documentation concerning complaints.

Additionally, in committee, there was discussion over how adding political appointees of the Governor, Senate President, and House Speaker would only unnecessarily insert “politics” into the process. It is a legitimate concern. However, in reality, all positions are political appointees finding their appointment directly or indirectly from an elected official or a body of elected officials. That is part and parcel of there being a “government” process.

Ed Walters, a former Judiciary Commission member who opposed the bill, indicated that it resulted from the alleged actions of 2 judges out of 367. Walters also pointed out back in March that of all the cases being reviewed by the Judiciary Commission, there were only 3 cases that were older than eighteen months. Can you imagine if a similar comparison was made to the cases administered by Judges in our state criminal and civil systems? Would there be a single judge in the entire state who could claim he only has three or fewer cases less than eighteen months old? Not likely.

More about Transparency

There is a line of the Constitution which reads:

The Supreme Court shall make rules implementing this Section and providing for confidentially and privilege of commission proceedings.

The Morris Amendment also seeks to strike from our Constitution the language that allows the Supreme Court to create any rule concerning confidentiality and privilege of commission proceedings. There was discussion over whether the Judiciary Commission providing notice to individuals that they aren’t allowed to discuss the complaint with others violated their right to free speech protected by both the state and federal constitutions.  It is similar to the language, which has penalties presently enforced by the Louisiana Board of Ethics.

Perhaps this will increase transparency in the process. Or maybe it will just allow the Courts to find an undefined right, such as “privacy,” and create it through jurisprudence. This seems to be the norm.

New Language

The Morris Amendment also adds new language to the Constitution. Malfeasance while in office was added to the list of infractions for which a judge may be censured, suspended, removed, or involuntarily retired. Additional language allows action “after an investigation of the judiciary commission” by the directive of a majority of the Supreme Court. So, the court no longer needs to wait on the commission’s recommendation; rather, once the investigation is complete, it may initiate action on its own.

Additionally, and more alarmingly, the Supreme Court may disqualify a duly elected judge from exercising any judicial function during the pendency of proceedings. That’s right! The court no longer needs a recommendation from the judiciary commission. It can unilaterally, on its own motion, disqualify a judge. This could be dangerous.

If this amendment passes, another interesting addition is that the Supreme Court can direct the Judiciary Commission to conduct an investigation. That may not seem like a bad thing by itself, but in the end, the Supreme Court will also be the same body that determines the outcome of the investigation. What is the likelihood that the Judiciary Commission will return a finding that doesn’t coincide with the court’s allegations?

Code of Judicial Conduct

In committee hearings, participants also remarked that nothing prevents a Supreme Court judge from filing a complaint against another judge now, making the additional language unnecessary. The proposed language allows the Supreme Court, as a body, to direct the commission to initiate an investigation. Not a single judge. However, a single judge may and likely is obligated to report misconduct by other judges. Canon (3)(B)(3) of the Code of Judicial Conduct provides:

A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.

Additionally, the Louisiana Rules of Professional Conduct, which govern all lawyers in the state of Louisiana, provides in Rule 8.3:

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the Office of Disciplinary Counsel.

A lawyer who knows that a judge has committed a violation of the applicable rules of judicial conduct that raises a question as to the judge’s honesty, trustworthiness, or fitness for office shall inform the Judiciary Commission. Complaints concerning the conduct of federal judges shall be filed with the appropriate federal authorities in accordance with federal laws and rules governing federal judicial conduct and disability.

The Office of Disciplinary Counsel is responsible for investigating complaints against lawyers licensed in Louisiana, whether or not they are public officials. It can also investigate and take action against a judge’s license.

Perhaps one day, we will stop writing new rules to address “issues” in government and start electing people with enough integrity and courage to abide by what we already have in place.

Wrapping it up

We’ve all heard about rogue judges. They can harass the good guys while letting the bad guys go free. Someone needs to do something about that—and that somebody could be you. We already have a system in place, but it could use a shakeup. Adding more people to the Judiciary Commission of Louisiana seems like an odd place to start. However, giving the legislature and governor direct appointments might get the ball rolling.

Also, getting the Supreme Court more directly involved in judicial misconduct may be impactful. This is one of the changes you’ll be deciding on December 7th. Trying something new is a good idea. If you agree, this constitutional amendment is for you.

Stay tuned as we explore the other three amendments presented to the people on December 7th. We’ll assemble a quick summary article once all the proposals have been addressed.

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