Posted by judicialethicsforum on Sunday, May, 19, 2013
To compare several similarities and differences between state or federal judicial ethics and three diverse venues (namely, Canada, Japan, and North Carolina), see below:
(1) Canada: Judicial Disqualification Under the “Reasonable Apprehension of Bias” Test
The “reasonable apprehension of bias” test for judicial disqualification has been a fixture of Canadian law for many years, despite a considerable amount of litigation concerning judicial impartiality. The test itself has remained fundamentally unaltered and is well accepted in the jurisprudence. Unfortunately, the application of the test continues to generate difficulties for judges who need to use it to make decisions in marginal cases. Based on previously published doctrinal and empirical research, our goal in the present paper is to suggest modifications to the test that will better explain the existing jurisprudence and make it easier for judges to understand when recusal is or is not necessary in marginal cases. We begin considering the advantages of and suggest that in order to be useful, any refinement to the test must to the greatest extent possible preserve those advantages. In the second part of the paper we consider why inconsistent application of the test in marginal cases is a concern. This is followed by a more detailed consideration of the ways in which the existing test, and the jurisprudence explaining and applying it, are problematic. The fourth part of the paper proposes a modification to the “reasonable apprehension of bias” test that is designed to address these shortcomings while preserving the key advantages of the existing test.
Jula Hughes & Philip Bryden, Refining the Reasonable Apprehension of Bias Test: Providing Judges Better Tools for Addressing Judicial Disqualification, 36 Dalhousie L.J. (forthcoming 2013) (including references to an interesting survey of Canadian judges’ recusal preferences and practices).
(2) Japan: Judicial Disqualification and Meanings of Fairness and Due Process
This article considers how Japanese judges have articulated the meaning of fairness in judicial decisions. The provisions in Japan’s Code of Civil Procedure, which provide for disqualification of judges and for direct party challenges to judges’ involvement in cases, explicitly require judges to weigh the fairness of the justice process in the particular circumstances of the cases before them. These cases provide a unique window for understanding the meaning of fairness, or what U.S. scholars might call due process, in Japanese jurisprudence.
In fact, the meaning of fairness has earned little explanation from Japan’s judges in their formal jurisprudential voice. Research uncovered only ten published case decisions under the current Constitution and Code of Civil Procedure that address the standards here. In all but one, the results were denials of the petitions and refusals to remove the judge. Early decisions, in particular, demonstrated a narrow acknowledgement of the potential for bias and were resolved via a formalistic reasoning that paid little regard for public perceptions.
While the record of judicial disqualification and challenge cases shows a history of harsh determinations in the early post-war years in Japan, more recent decisions emerging in the context of the massive changes to Japan’s justice system since 2001 suggest that judicial system reform has had a modest, but positive impact with regards to the quality of procedural justice available to civil litigants in Japan. In particular, an April 2011 decision by the Japanese Supreme Court’s Second Petty Bench, which clearly acknowledges a requirement of due process in civil procedure, offers optimism for further improvement in years ahead.
Mark Levin, Circumstances that Would Prejudice Impartiality: The Meaning of Fairness in Japanese Jurisprudence, Hastings International & Comparative L. Rev. (forthcoming 2013).
(3) North Carolina: The Appearance of Impropriety
The ABA Model Code of Judicial Conduct and the judicial codes of conduct in nearly every jurisdiction admonish judges to avoid the appearance of impropriety. The North Carolina Code of Judicial Conduct likewise contained a similar prohibition until 2003, when the North Carolina Supreme Court removed the language and made related amendments to the Code. Although North Carolina is clearly an outlier in this regard, two questions remain: first, whether North Carolina judges are still required to consider appearances in performing their duties; and second, whether judicial codes of conduct should proscribe such a standard at all.
To answer this latter question, this Article draws upon the social psychology theories of cognitive bias and procedural justice. These two theories work together to impact how judges arrive at decisions and how litigants will perceive and respond to those decisions. Both theories militate in favor of including a robust appearance standard in a judicial code of conduct. Moreover, the changes to the North Carolina Code in 2003 simultaneously exacerbated the negative effects of cognitive bias and decreased litigants’ perceptions of procedural justice in state courts.
But reinstating the appearance of impropriety language to the North Carolina Code alone will not fully ensure judicial propriety, or even the appearance of propriety. Thus, this Article illustrates how an understanding of cognitive bias and procedural justice can inform the introduction of other reforms, using the issue of judicial involvement in plea bargaining and sentencing as an example of how these theories may be applied.
Jon P. McClanahan, Restoring the Appearance of Propriety to the Judiciary, N.C. L. Rev. (forthcoming 2013).
Posted in Canon 1, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »
Posted by kswisher on Sunday, January, 15, 2012
We rarely see the use of one very scary weapon to keep a trial judge in line — indirect criminal contempt. The Supreme Court of the United States Virgin Islands, however, recently used it. After a trial judge refused to follow the supreme court’s mandate, criticized the accompanying opinion, and recused himself from the case, the supreme court ordered a show cause hearing. Even though the special master who then presided over that hearing recommended that the trial judge be acquitted on all counts, the supreme court — i.e., the same court that was repeatedly criticized by the trial judge in his allegedly offensive recusal order — disagreed, found him in contempt, and set a sentencing date. Although the trial judge’s recusal order did contain overly critical language, the supreme court’s acts are questionable as a matter of due process, cf. Mayberry v. Pennsylvania, 400 U. S. 455, 465-66 (1971); In re Murchison, 349 U.S. 133, 137 (1955), and dangerous to decisional judicial independence (insofar as much of the supreme court’s decision is based on the language in the trial judge’s published order; contempt decisions involving only the act of failing to follow a superior court’s clear order are obviously less problematic). Perhaps the justices should have recused themselves, or at a minimum, given the judge one warning.
Hopefully, this weapon will continue to be a rarity. For the supreme court’s opinion, click here; and for the trial court’s order that offended the supreme court justices enough to impose a criminal conviction on the trial judge, click here.
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Posted by judicialethicsforum on Sunday, March, 27, 2011
Judge McKoski (recently ret.) has again contributed to the corpus of judicial ethics scholarship. His thought-provoking new work can be downloaded here, and the abstract follows:
The legitimacy of the judicial branch of government depends on the impartiality of its judges. Nineteenth century lawyers and litigants understood this fact and regarded actual impartiality as the fundamental value of judicial ethics. Today, the emphasis on maintaining judicial legitimacy has shifted from reality to perception. Modern codes of judicial ethics are designed first and foremost to protect the “appearance” of impartiality by barring any personal, financial, civic, or political activity of a judge that may be perceived as adversely reflecting on judicial objectivity. Insuring impartiality in fact has become a secondary concern.
The career of nineteenth century judge David Davis illustrates that actual judicial impartiality, not the appearance of impartiality, sustains public faith in the judiciary. Davis was universally recognized as an impartial judge even though his off-bench alliances, especially with Abraham Lincoln, shouted out partiality and favoritism. After establishing Judge Davis’s unimpeachable reputation for courtroom fairness, the Article evaluates his off-bench activities under modern rules of judicial conduct. Next, the Article traces the transition from actual impartiality as the measure of a judge’s worth in Davis’s time to today’s emphasis on appearances. Finally, modest reforms in judicial selection, evaluation, education, and discipline are offered as a means of reestablishing actual impartiality as the fundamental value of judicial ethics.
Raymond J. McKoski, Reestablishing Actual Impartiality as the Fundamental Value of Judicial Ethics: Lessons from “Big Judge Davis”, 99 Ky. L.J. 259 (2010-2011).
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Posted by kswisher on Thursday, December, 2, 2010
I resisted posting on federal Judge Jack Camp’s (N.D. Ga.) problems when they came to public light. To be sure, the scandalous facts were magnetic (see here), but his alleged conduct was so plainly improper – and frankly dumb — that a post felt too obvious and too much like shooting someone in a deathbed. But thanks to the Georgia U.S. Attorney, there is now something worth noting here. In a relatively quick timeframe and proactive manner, the U.S. Attorney (Sally Yates) has announced that any defendant who was sentenced under Judge Camp – or at least the bad version of Judge Camp, who was using drugs and carrying weapons for a proven five-month period — can request an unopposed resentencing (unopposed in obtaining a resentencing, that is, not in a request for probation). She noted that the federal investigation had uncovered accusations of Judge Camp’s impairment (via “marijuana, powder cocaine, Xanax, Roxicontin, and other unknown prescription painkillers” and “some may have been taken while Camp was also consuming alcohol”) and racial bias (in that Judge Camp suggested to an informant that he had sentenced an African-American male more harshly and a caucasian female more leniently owing to race). Again, as a matter of judicial ethics, such allegations, if true, are easily categorized as unethical. What is laudable, however, is the U.S. Attorney’s proactive attempt to remedy even the appearance of incompetence and bias, rather than engage in protracted litigation about what, in fact, Judge Camp had on his mind (e.g., drugs or racism) at the time of the sentencings. The U.S. Attorney prefaced her remarks with, and was apparently pointed in the right direction by, her “one responsibility — to seek justice.” The local news has her full statement here.
Posted in Canon 1, Canon 2, Canon 3, Judicial Ethics Generally | 1 Comment »
Posted by judicialethicsforum on Tuesday, June, 1, 2010
Judge Ray McKoski has just published a thorough work on the ever-controversial appearance of impropriety standard. Here is the abstract:
Judges are required to forego a litany of professional and personal behaviors deemed to be inconsistent with the role of the neutral magistrate. For example, codes of judicial conduct prohibit ex parte communications, the misuse of office, public commentary on prohibited topics, and participation in certain social, religious, and political activities.
In addition to specific rules barring actual improprieties, it is commonly believed that a broader disciplinary standard is necessary to fully safeguard the public’s faith in the judiciary. As a result, under virtually every state judicial code, discipline may be imposed upon a judge for conduct which may not violate a particular rule but which is thought to create “an appearance of impropriety.”
This Article examines the disciplinary use of the appearance of impropriety standard from a theoretical and practical standpoint. The history and development of the standard is explored together with the most debated aspect of the rule—whether the “appearance of impropriety” prohibition can survive a vagueness challenge. The inescapable conclusion is that it cannot. A cost-benefit analysis further discloses that the disadvantages of the rule clearly outweigh its oft-touted but, nevertheless, illusory benefits. It is proposed that the use of the appearance standard as a disciplinary rule should be discontinued or, in the alternative, that a limiting construction should be placed on the “appearance of impropriety” thereby supplying the specificity needed to meet due process requirements.
Raymond J. McKoski, Judicial Discipline and the Appearance of Impropriety: What the Public Sees Is What the Judge Gets, 94 Minn. L. Rev. 1914 (2010).
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Posted by judicialethicsforum on Wednesday, December, 16, 2009
Prof. Ilya Somin has posted some interesting commentary on the new(er) Florida judicial ethics opinion addressing judges “friending” attorneys on Facebook. Prof. Somin’s commentary can be found here (at the Volokh Conspiracy); and the full text of the judicial ethics opinion can be found here. The opinion has already received national attention, and consequently, the point of this post is primarily just to give the readers the preceding links in the somewhat unlikely event that they have not yet heard of this controversial opinion.
UPDATE: For the contrary view, see Ohio’s advisory opinion here. To learn about a judge who crossed the line with Facebook, among other things, through ex parte contacts and other transgressions in a pending matter, see here.
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Posted by graycynthia on Monday, March, 2, 2009
The federal courts are steadily (and somewhat condescendingly) chipping away at the restrictions on campaign and political activity state courts believed were necessary to protect the impartiality of an elected judiciary. (For the most recent example, see Siefert v. Alexander, Opinion and Order (U.S. District Court for the Western District of Wisconsin Feb. 17, 2009), permanently enjoining enforcement of three clauses in the Wisconsin code of judicial conduct: the personal solicitation clause, the prohibition on endorsing a partisan candidate, and the prohibition on joining a political party). Therefore, it is crucial that state courts adopt a rule prohibiting a judge from using “court staff, facilities, or other court resources in a campaign for judicial office,” which was adopted by the American Bar Association in 2007 as Rule 4.1(A)(10) of the Model Code of Judicial Conduct. Whatever the First Amendment rights of judges and judicial candidates to solicit campaign contributions, answer questionnaires, and endorse other candidates, there is no conceivable grounds for arguing that judges have a First Amendment right to appropriate for personal political purposes the public resources that should be dedicated to the administration of justice.
Even without a specific rule, the exploitation of the courthouse and court staff for campaigning by judges is impliedly and inherently in the general provisions of the code. For example, in December, the New York State Commission on Judicial Conduct censured a judge who personally solicited support for her candidacy for another court from two attorneys who were in the courthouse and about to appear before her; the Commission found a violation of the general rule requiring a judge to “act in a manner consistent with the impartiality, integrity and independence of the judiciary.” In the Matter of Yacknin, Determination (New York State Commission on Judicial Conduct Dec. 29, 2008).
But adopting an express rule eliminates any question whether such conduct can be sanctioned (see the baffling dissent in Yacknin), ensures that judges are aware of the restriction, and emphasizes the importance of keeping politics out of the courthouse literally as a way of keeping politics from appearing to influence judicial decisions.
So far, Indiana, Kansas, and Montana have adopted Rule 4.1(A)(10), with Indiana wisely adding that it applies to “any political purpose” as well as to campaigning. Other states should follow those states’ lead even if they do not adopt entirely new codes at this time. Minnesota adopted a version that states judges cannot “use court staff, facilities, or other court resources in a campaign for judicial office in a manner prohibited by state law or Judicial Branch personnel policies.” Let’s hope that the law and personnel policies in Minnesota are strict and well-known by judges. The Ohio Supreme Court did not adopt the rule when it adopted a new code; let’s hope provisions in other Ohio laws or rules already cover the issue, but it would have been prudent to refer to those standards sin the code as well.
Posted in Canon 1, Canon 4, Judicial Campaigns | Leave a Comment »
Posted by kswisher on Tuesday, February, 24, 2009
The Texas State Commission on Judicial Conduct has filed formal charges against Judge Keller (harshly dubbed Judge “Killer” by proponents of her removal from office) of the Texas Court of Criminal Appeals. (In Texas, the Court of Criminal Appeals is the state’s highest court with respect to all criminal matters.) The disciplinary prosecution presents an interesting case of dueling trivial procedures, yet the real issue is anything but trivial.
Judge Keller is accused of the following sinister acts: While knowing that a death-row inmate’s lawyers were scrambling to seek a stay of execution because the Supreme Court of the United States had just agreed to decide whether execution by a particular lethal injection procedure was constitutional — and the inmate, Michael Richard, was slated to be executed that night by that same procedure – Judge Keller effectively denied the lawyers’ request to have the clerk’s office accept the motion to stay approximately twenty minutes late. She did so while knowing that other judges of the Court of Criminal Appeals were waiting to address the anticipated filing, yet she communicated nothing to them. Mr. Richard was executed that night, despite the fact that other similarly situated inmates were granted stays pending the Supreme Court’s decision and despite the fact that this same clerk’s office had accepted late filings in previous death-penalty cases. (Although irrelevant to the judicial conduct matter, the Supreme Court denied relief on the lethal injection issue six months later. See Baze v. Rees.)
Thus, it seems greatly due that Judge Keller is facing extreme scrutiny for this questionable conduct. One of the questionable aspects about the prosecution itself, however, is its focus (or to be more precise, the focus of the charging document). According to the charges, the violation of the Code, if any, is the failure to follow a local court rule concerning death-penalty cases. That rule requires, in short, that these last-minute, “execution day” matters are initially handled by one assigned judge (and Judge Keller was not the assigned judge for Mr. Richard’s case) and that if a non-assigned judge receives information about the case (as Judge Keller did concerning the late filing), such “communications regarding the execution shall be first referred to the assigned judge.” It is apparently undisputed that the lawyers’ communication about the late filing was never referred to the assigned judge. The prosecution certainly has a good argument that Judge Keller breached this local rule (although I have no information, one way or the other, whether the local rule was properly promulgated and routinely followed) – so much so that three out of the five charges rest exclusively, and the remaining two charges rest at least partially, on the violation of this local rule. But now we have each side hanging its hat on a technical procedural rule: The prosecution claiming that Judge Keller should have referred the communication to the assigned judge pursuant to the local court rule; Judge Keller undoubtedly claiming that the clerk’s office’s hours and means of accepting filings are bright and independent rules that must be followed in order to maintain an orderly and manageable filing system. But neither rule violation addresses the real problem with Judge Keller’s conduct; the local rule is simply a way to discipline the real problem by pouring the facts over an existing Canon. See Model Code of Judicial Conduct 2A (2004) (requiring compliance with the law), 3B(7) (requiring that each party be heard according to the law). The real problem is that Judge Keller was willing to (and in fact, did) let a man die despite a meritorious motion to stay so that her clerk’s office did not have to remain open an extra twenty minutes (or spend the mental capital to figure out an alternative filing solution; faxes or emails come quickly to mind). That is the unethical (indeed, seemingly inhumane) conduct, not the violation of a local rule. Were it the other way (i.e., if the inmate’s meritorious motion to stay was technically in violation of a local procedural rule banning twenty-minute-late filings on execution night), I would expect that a serious judge would look for an exception to the rule, and if none, perhaps even waive its application. I do not know, and it is not entirely clear from the charges, whether Judge Keller believed that her conduct violated the local rule; what I do know is that her actions violated virtually any meaningful notion of “integrity and impartiality.” Model Code of Judicial Conduct Canon 1; see also id. Terminology (defining “impartiality” and “integrity”). Leaving independence aside (although an argument could be made that even independence is at issue), those are the core duties echoed throughout every Canon in the Code. It is just somewhat perplexing that there is not a more direct disciplinary rule for this conduct. Any ideas? As it stands, it seems a bit like prosecuting Al Capone for income-tax evasion. Or is that comparison unjustified?
The above reservations notwithstanding, I do believe that this prosecution is a good start; that ensuring compliance with “execution-day” protocols is not just “trivial” procedure; and that practically speaking, it might be wise to prosecute the conduct most easily established in a disciplinary hearing, even if that conduct is a step or two removed from the real problem.
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Posted by graycynthia on Monday, February, 23, 2009
The Maryland Judicial Ethics Committee has issued an opinion advising that a judge may not ask a criminal defendant to divulge the defendant’s immigration status at sentencing or a bail hearing. Maryland Advisory Opinion 2008-43. The Committee emphasized that it was not rending an opinion on whether asking about immigration status violated substantive law. The Committee assumed that, as a matter of substantive law, a judge can consider a defendant’s immigration status if properly presented to the court. However, the Committee stated that asking about immigration status may implicate the privilege against self-incrimination, noting that “the general practice of Maryland trial judges is not to inquire of a defendant at sentencing except to clarify a matter presented and to invite the defendant to exercise the right of allocution.” The Committee also noted that a state statute requires that, before a guilty plea, the court, the state’s attorney, or the defense attorney must advise the defendant that, by entering the plea, the defendant, if not a United States citizen, “may face additional consequences of deportation, detention, or ineligibility for citizenship.” A note to that statute states that “the court should not question defendants about their citizenship or immigration status” to clarify that the statute “was not intended to put any burden on the judiciary to ascertain a defendant’s immigration status and that the advice of rights provision was added to aid the defendant in making a decision as to whether to plead guilty.” The Committee concluded:
It is public knowledge that there are millions of illegal aliens in the United States and that the issues arising from that fact are controversial, high-profile, and are perceived by members of the public as involving national origin, race, and socioeconomic status. Based on the above considerations, we conclude that reasonable minds could perceive an appearance of impropriety based on a judge’s inquiry as to immigration status, at sentencing or at a bail hearing.
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Posted by kswisher on Thursday, September, 18, 2008
While it has been nearly twenty years since the last federal judge was fully impeached, the two-decades-long (nearly) unblemished record may be shattered soon. District Judge Thomas Porteous (E.D. La.) has been publicly censured for (among other accusations) soliciting money from attorneys appearing before him and filing false financial disclosure forms. To read the Judicial Council of the Fifth Circuit’s underlying Order and Public Reprimand, click here (citing violations of 28 U.S.C. § 455 and Canons 1, 2A, 3C(1), 3D, 5C(1), (4), and (6) of the Code of Conduct for United States Judges). The Council even opines that Judge Porteous committed several federal crimes (such as honest-services mail fraud), in addition to the ethical violations. The House Judiciary Committee has just formed a task force to consider the nuclear impeachment option.
This is big. The last federal judge impeached was former District Judge Alcee Hastings (S.D. Fla.) for allegedly accepting a bribe for lenient sentencing and then committing perjury. Mr. Hastings then became a Congressman.
At least one nagging question: If the reports are accurate that Judge Porteous has twice offered to retire in light of his struggles, is impeachment necessary? To deter other federal judges from committing felonies? To punish or judicially incapacitate the Judge? Would not retirement plus criminal prosecution (if warranted) be sufficient?
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