Retaining authority in misconduct matters after judicial resignations

Some of the most challenging problems in the field of judicial conduct are those related to the potential for abuse of judicial power and the lack of appropriate transparency. These challenges are closely linked with the perpetual difficulty in finding an appropriate balance between the twin values of judicial independence and accountability. This article (the first of a pair) will explore a peculiar problem that arises at that intersection of independence and accountability where a judge attempts to evade official discipline by resigning from the bench (whether while a misconduct complaint is pending, or a disciplinary proceeding is ongoing, or indeed before a complaint has even been filed). It explores jurisdictional and theoretical differences of approach to the authority retained or ceded in such scenarios and the reasoning and ramifications of these various approaches in several common law jurisdictions around the world. It ultimately advocates the retention of disciplinary authority, including full sanctioning power, despite a judge's resignation, and regardless of variations in other aspects of judicial selection and discipline systems.