We're on a mailing list that advises us of changes in Michigan court rules. One big change is that information regarding the investigation of a judge by the Judicial Tenure Commission, including the mere fact of an investigation, is now privileged information that cannot be publicly released except in extreme circumstances. Previously, investigations were deemed confidential but could be disclosed to the public by various means.
Last year the Michigan Supreme Court, which is responsible for the JTC, ruled that it had to disclose investigative files because they were not privileged information under the court rules. In Michigan law, only very special types of communication have been regarded as privileged -- for example, priest-penitent, doctor-patient, and attorney-client -- and meriting full protection from public disclosure. So it wasn't odd that the JTC's investigative files weren't covered by privilege. After all, it is an adversarial process.
However, having ruled for public disclosure, the Supreme Court, which is also responsible for the court rules that govern the JTC, implemented a sweeping change that now makes the investigation of judges privileged material. This creates a very high wall against releasing this information to the public. So, when facing the public, the Supreme Court rules in favor of disclosure, but when it goes behind closed doors to hash out the rules regulating themselves and their brethren, they zip things up tight. Rather two-faced of the high court, if you ask me.
Now it's true that the fact of an investigation and certain documents related to it will still be disclosed to the public should the JTC, upon completion of an investigation, decide to prosecute a judge. However, it is the extraordinary complaint that leads to a prosecution by the JTC. Most are dismissed as unworthy of any serious investigation by the JTC, and the rest usually result in an exoneration of the judge. This is not to say the JTC's decisions are incorrect, but there is now almost no way for the public to review the actions of this public body.
But what should we expect of an imperial judiciary that has learned it doesn't have to account to the public? And why is that? Well, when was the last time you voted a judge out of office?