Archive for the ‘Canon 2’ Category
Posted by graycynthia on Monday, April, 6, 2009
Given the ubiquity of the social networking web-site, it was probably inevitable, and two years after it became available to the general public, Facebook became the medium for ex parte communications between a judge and lawyer appearing in a case before him. In September 2008, while presiding over a child custody and child support hearing, the judge and the father’s attorney designated themselves as “friends” on their “Facebook” accounts so that they could view each other’s account. During an in-chambers meeting, the judge and the attorneys for both parties were reviewing prior testimony that suggested one of the parties had been having an affair. The father’s attorney asked the judge if he thought the father was having an affair. The judge stated he believed the allegations were true, but that it did not make any difference in the custody dispute. The father’s attorney stated, “I will have to see if I can prove a negative.”
That evening, the judge checked the father’s attorney’s “Facebook” account and saw that he had posted “how do I prove a negative.” The judge then posted on his “Facebook” account that he had “two good parents to choose from” and “feels that he will be back in court,” referring to the case not being settled. The attorney responded by posting on his “Facebook” account, “I have a wise Judge.” During a break in the proceedings the next day, the judge told the mother’s attorney about the exchanges on “Facebook.” The next day, the judge wrote on his “Facebook” account that “he was in his last day of trial.” The father’s attorney then wrote, “I hope I’m in my last day of trial.” The judge responded, “you are in your last day of trial.”
In addition, the judge used “Google” to find the mother’s photography business where he viewed samples of photographs she had taken and found numerous poems. In court prior to announcing his findings in the case, the judge’ recited a poem he had found on the mother’s website, with minor changes. The judge later told the Judicial Standards Commission’s investigator that he quoted the poem because it gave him “hope for the kids and showed that [the mother] was not as bitter as he first thought.” The judge may have visited the mother’s site four times but did not disclose his visits during the hearing. After orally entering his order, the judge requested a bailiff to summon both attorneys to return to the courtroom and then disclosed that he had viewed the mother’s site and quoted a poem he found thereon. On the mother’s later motion, he subsequently disqualified himself, his order custody was vacated, and a new trial was ordered.
The North Carolina Judicial Standards Commission publicly reprimanded the judge. Public Reprimand of Terry (April 1, 2009).
In the 2007 revisions to the Model Code of Judicial Conduct, the American Bar Association added a new comment to the prohibition on ex parte communications that provides: “The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.” The reporters’ notes explain: “Given the ease with which factual investigation can now be accomplished via electronic databases and the Internet, the risk that a judge or the judge’s staff could inadvertently violate Rules 2.10(B) and (C) has heightened considerably. The need for vigilance on the part of judges has increased accordingly.”
Posted in Canon 2, Canon 3 | Leave a Comment »
Posted by judicialethicsforum on Wednesday, March, 25, 2009
The Comment to Canon 2 of the Code of Conduct for United States Judges defines appearance of impropriety as follows: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, *would* conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” (Emphasis added).
Ironically, that is a lesser standard for disqualification than is required under the Federal Disqualification Statute, 28 U.S.C. § 455, and under the Due Process Clause of the Constitution. The following is adapted from Understanding Lawyers’ Ethics (3d ed. 2004).
Section 455 says: “Any . . . judge . . . shall disqualify himself in any proceeding in which his impartiality *might* reasonably be *questioned*.” In addition to the plain meaning of the statute, the legislative history shows that disqualification is required when there is “any reasonable factual basis for *doubting* the judge’s impartiality.”
Also, as a matter of constitutional due process, a judge is required to recuse himself if there is “a *possible* temptation to the average . . . judge . . . which *might* lead him not to hold the balance nice, clear, and true. . . .” or if the circumstances “*might* create an impression of *possible* bias.”
Nevertheless, there is a tendency for some judges and commentators — and particularly for advocates opposing disqualification — to slip away from the statutory language, turning “might” into “could” or “would.” The differences are important. The word “might” is used to express “tentative possibility;” “could” is used to express “possibility;” while “would” connotes what “will” happen or is “going to” happen. Accordingly, the word “would” requires significantly more than a tentative possibility of doubt regarding a judge’s impartiality, and use of the word “would” therefore produces a subtle but substantial change in the meaning of the statute.
For example, when Justice Stephen Breyer was nominated for the United States Supreme Court, I argued against his confirmation. The reason was that Breyer, when sitting in the First Circuit, had written an opinion that could well have had a devastating impact on Breyer’s own financial well-being. I maintained that Breyer had therefore acted unethically in failing to recuse himself. Then White House Counsel Lloyd Cutler contended that reasonable people differed about whether Breyer’s impartiality in the case was questionable, and that Breyer therefore was not required to recuse himself.
That argument would have had force if the statute required disqualification only when a reasonable person *would* question the judge’s impartiality. In that event, if reasonable people disagreed about whether the judge’s impartiality is questionable, one could not say that a reasonable person *would* question it — only that she might or might not — and recusal would not be required. Under the statute, however, if reasonable people do disagree, then clearly a reasonable person might question the judge’s impartiality, and recusal is required.
That is, under § 455(a) a federal judge, or justice, can properly stay in a case only if no reasonable person *might question* the judge’s impartiality.
By: Monroe Freedman, Hofstra Law School
Posted in Canon 2, Judicial Disqualification & Recusal | 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.
Posted in Canon 1, Canon 2, Canon 3, Judicial Ethics Generally | Leave a Comment »
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.
Posted in Canon 1, Canon 2, Canon 3 | Leave a Comment »
Posted by judicialethicsforum on Friday, February, 6, 2009
Lawyers can get judges in trouble and vice versa as recent synchronized lawyer and judicial discipline cases from Indiana and Ohio illustrate.
The Indiana Commission on Judicial Qualifications publicly admonished Judge Daniel Banina for entertaining and granting an ex parte petition for temporary custody without prior notice to the custodial parent or an opportunity for her to be heard. On the same day, the Indiana Supreme Court publicly reprimanded attorney Jeffrey Price, the attorney who filed the petition with Judge Banina. The petition had not alleged an emergency or certified the petitioner’s efforts to give notice to the mother or reasons why notice should not be required. Public Admonition of Banina (Ind. Comm’n on Judicial Qualifications Jan. 20, 2009); In the Matter of Price (Ind. Sup. Ct. Jan. 20, 2009). The Judicial Qualifications Commission stated:
In the Commission’s view, there is perhaps no greater injustice than to strip a parent of custodial rights without an opportunity to be heard and in the absence of an emergency. The Commission calls upon all judges and lawyers in Indiana to respect this fundamental notion, one the Commission and its counter-part, the Supreme Court Disciplinary Commission, attempted to convey now for several years, only to repeatedly address the same violation.
Also in January, the Ohio Supreme Court publicly reprimanded Judge John Stuard and assistant prosecutor Christopher Becker for ex parte collaboration on a sentencing order. Disciplinary Counsel v. Stuard (Ohio Sup. Ct. Jan. 29, 2009).
After a jury found a defendant guilty of two counts of aggravated murder and recommended a sentence of death, Judge Stuard asked Becker to prepare the court’s opinion sentencing Roberts to death, gave Becker his notes on the aggravating and mitigating factors, reviewed the 17-page draft opinion written by Becker and left on his desk, and relayed corrections to Becker.
During the sentencing hearing, defense counsel noticed that one of the prosecutors seemed to be silently “reading along” as Judge Stuard read his opinion from the bench, turning pages of a document in unison. The defense objected. In the sidebar discussion, Judge Stuard acknowledged that he had given his notes to the prosecution and instructed counsel to draft the sentencing order. On appeal, the Ohio Supreme Court held that the judge committed prejudicial error by delegating responsibility for the content and analysis of his sentencing opinion.
By: Cindy Gray, Center for Judicial Ethics, American Judicature Society
Posted in Canon 2, Canon 3 | 1 Comment »
Posted by kswisher on Wednesday, February, 4, 2009
I presumably speak for the profession when I say that I generally hold the ABA Standing Committee on Ethics and Professional Responsibility (aka the Ethics Committee) in high esteem. That said, when it recently revisited the Model Code of Judicial Conduct, it reminded me how rare those visits can be. It appears that the Committee has directly addressed judicial ethics only two times in the last twenty-five years. (I did not check prior to 1984.) By any measure, then, the Code is suffering from a lack of attention. Interestingly, the Ethics Committee even has an adjunct component dedicated to Code insight, the Judges Advisory Committee. Interestingly as well, the only two opinions were both issued within the last two years. That is cause for optimism, as it seems that the current Committee (although the roster has changed slightly) is more sensitive to judicial ethics problems.
Your next question might understandably be — what problems managed to catch the Committee’s eye after all of these years? The first is Formal Opinion 07-449, which addresses both the Model Rules and Model Code. With respect to judges, the Committee concludes:
Pursuant to Model Code of Judicial Conduct Rule 2.11(A), the judge in . . . a situation [in which she is being represented in an unrelated matter by an attorney appearing before her] must disqualify herself from the proceeding over which she is presiding if she maintains a bias or prejudice either in favor of or against her lawyer. This disqualification obligation also applies when it is another lawyer in her lawyer’s firm who is representing a litigant before her. However, absent such a bias or prejudice for or against her lawyer, under Judicial Code Rule 2.11(C), the judge may continue to participate in the proceeding if the judge discloses on the record that she is being represented in the other matter by one of the lawyers, and the parties and their lawyers all consider such disclosure, out of the presence of the judge and court personnel, and unanimously agree to waive the judge’s disqualification.
If a judge is obligated to make disclosures in compliance with Judicial Code Rule 2.11(C), refuses to do so, and insists upon presiding over the matter in question, the lawyer’s obligation of confidentiality under Model Rule 1.6 ordinarily would prohibit his disclosing to his other client his representation of the judge without the judge’s consent, rendering it impossible to obtain the client’s consent to the dual representation, as required by Model Rule 1.7(b). The lawyer’s continued representation of the judge in such a circumstance constitutes an affirmative act effectively assisting the judge in her violation of the Judicial Code, and thereby violates Model Rule 8.4(f). The lawyer (or another lawyer in the lawyer’s firm), in that circumstance, is obligated to withdraw from the representation of the judge under Model Rule 1.16.
The second opinion, Formal Opinion 08-452, is even more remarkable, in that it addresses only judicial ethics. Although the opinion gives no clear cut answers, its conclusion is easy to summarize: “A judge who participates in fundraising activities on behalf of a court, including a ‘therapeutic’ or ‘problem-solving’ court, must limit the participation to activities permitted by Model Code of Judicial Conduct Rule 3.7(A). The judge also must ensure that her conduct does not violate Judicial Code Rules 3.1 [general limitations on extrajudicial activities], 1.2 [promoting confidence in the judiciary], or 1.3 [avoiding the abuse of the prestige of judicial office].” Perhaps the clearest answer is contained in Rule 3.7(A)(2), which permits direct solicitation for contributions “only when the persons being solicited are [a] members of the judge’s family or [b] other judges over whom the judge has no supervisory authority.”
Posted in Canon 2, Canon 3, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »
Posted by judicialethicsforum on Thursday, January, 29, 2009
In a partial dissent to an order adopting a new code of judicial conduct based on the 2007 ABA Model Code, a justice of the Montana Supreme Court expressed reservations about the prohibition on a judge making public statements on pending cases in light of Republican Party of Minnesota v. White. The dissenting justice accepted it as a good faith effort to provide a rule that conforms with White, but noted that the rule may need to be revisited to accommodate future court decisions.
The dissenting justice need not be concerned. White and its progeny raise no doubts about the constitutionality of the restriction on commenting on pending cases or any code provision that does not involve campaign or political conduct.
In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the United States Supreme Court held that a state cannot, consistent with the First Amendment, prohibit judicial candidates from announcing their views on disputed legal and political issues. The crucial point for the majority was that the Court has “never allowed the government to prohibit candidates from communicating relevant information to voters during an election.”
In her concurring opinion, Justice O’Connor wrote that in choosing “to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system . . . the State has voluntarily taken on the risks to judicial bias . . . .” Similarly, in his concurring opinion Justice Kennedy emphasized that “the State may not regulate the content of candidate speech merely because the speakers are candidates.”
Thus, the White decision focused exclusively on the needs of voters for information about the candidates in judicial election campaigns and the rights of candidates to communicate with those voters. It did not announce any new-found, unassailable First Amendment rights for judges that would apply outside of the political realm.
In contrast to the announce clause, the restriction on commenting on pending cases applies to judges because they are judges, not because they are candidates, and applies regardless how judges are selected. It does not prohibit speech based on content but simply requires a judge to make any comment on a pending case on the record in the case, in other words, when and where judges are supposed to be commenting on cases in fulfillment of their responsibilities.
No citizen has absolute First Amendment rights, and the public comment restriction reflects a balance most judges freely and willingly accept in deference to the justice system they serve and the public it protects.
By: Cindy Gray, Director, Center for Judicial Ethics, American Judicature Society
Posted in Canon 2, Canon 3, Canon 5, Judicial Campaigns | 1 Comment »
Posted by judicialethicsforum on Saturday, January, 17, 2009
The same day the Florida Supreme Court decided to publicly reprimand a court of appeal judge for filing a concurring opinion in which he personally attacked a fellow appellate judge (see my previous post), the Texas State Commission on Judicial Conduct dismissed complaints about the “vitriolic language” and “unprofessional personal attacks” against his colleagues by Chief Justice Tom Gray of the 10th Circuit Court of Appeals in several dissenting opinions. Public Admonition of Gray (Dec. 18, 2008). The attacks had “became media fodder and were the subject of growing criticism and ridicule in editorials, on internet blogs, and at judicial conferences.” Noting that the judge had acknowledged the problems caused by the tone of his opinions and taken appropriate corrective measures to avoid that conduct in the future, the Commission “determined, in deference to the principle of judicial independence, that Justice Gray should not be disciplined for the content of his dissents.”
However, the Commission did publicly admonish Justice Gray for allowing his acrimonious relationship with his fellow justices to influence his conduct and judgment and failing to treat court personnel in a patient, dignified, and courteous manner. The Commission found that Justice Gray began a “whisper campaign” against Justice Felipe Reyna by telling Republican party leaders that “somebody needs to talk to Felipe. He’s not being a good Republican,” and that Justice Reyna “always votes with a liberal Democrat, [Justice] Bill Vance,” or words to that effect. In addition, a security tape showed Justice Gray unlocking and entering Justice Vance’s private offices without permission and when no one else was present. Justice Gray claimed that he was searching for a file but acknowledged that, after determining that the file was not in the office, he reviewed other papers on Justice Vance’s desk. Justice Gray further testified that he has unlocked and entered the private offices of both Justice Vance and Justice Reyna in the past to look for files while the other justices were not present and had not given their permission.
Justice Vance and Justice Reyna testified about instances when Justice Gray treated court staff in a sarcastic, intimidating, and demeaning manner, including angry outbursts and personal attacks. Justice Gray also commonly made statements implying that the chief clerk would be out of a job after January 1, 2009, and tried to convince the other justices to vote to fire the chief clerk and the accountant. The Commission found that “mistreatment was sufficient to reduce some staff members to tears and has contributed to extremely low employee morale at the Court.”
by: Cindy Gray, Director, Center for Judicial Ethics, American Judicature Society
Posted in Canon 2, Canon 3 | Leave a Comment »
Posted by judicialethicsforum on Tuesday, January, 13, 2009
The Supreme Court has granted cert in Caperton v. A.T. Massey Coal Co., No. 08-22. The official question presented puts the issue bluntly:
[Acting Chief] Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court — more than 60% of the total amount spent to support Justice Benjamin’s campaign — while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment.
It is difficult to conclude that the failure to recuse is anything but inexcusable (in addition to the Due Process Clause, see generally 1990 Canon 3E(1)(e) and 2007 Rule 2.11(A)), but to be fair, Chief Justice Benjamin has produced a lengthy defense of his refusal, which can be found here. The Brennan Center has kindly posted the briefs in support of petitioner, including those of the ABA and Justice at Stake, all of which can be found here. This destined-to-be watershed case is set for oral argument on March 3, 2009. Stay tuned.
Posted in Canon 2, Canon 3, Judicial Disqualification & Recusal | 2 Comments »
Posted by kswisher on Sunday, January, 11, 2009
Professor Elizabeth Thornburg (SMU) is on the verge of publishing one of the most (if not the most) comprehensive and analysis-heavy discussions of the (im)propriety of judges’ independent fact research. The work will appear in The Review of Litigation (University of Texas School of Law). Her catchy conclusion reads
like a movie with alternate endings: everything up to the end is the same, but the outcomes are very different. Accordingly, this article suggests that independent research (except from other people) should either be freely permitted in all areas, subject to the requirement that the judge give the parties advance notice, or should be generally prohibited, with judges calling on parties, amici, and the lower courts to supply missing information. The choice between alternatives should be based not on a fictional distinction between law and fact, but on explicit policy choices about the proper roles of parties and lawyers, judges and juries, and trial courts and appellate courts. Any choice should focus on the need for public confidence in the judicial system, the benefits of transparency, and the requirements of due process.
Elizabeth G. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, 28 REV. LITIG. (forthcoming 2009), a link to which can also be found in Articles.
Posted in Canon 2 | 1 Comment »
Posted by judicialethicsforum on Friday, January, 9, 2009
To defend himself from disciplinary charges based on his orders requiring over 120 drug court defendants to make payments to organizations not authorized by statute, a Louisiana judge recently argued that “the ABA Canon Model Code of Conduct now says if there’s a conflict . . . , you don’t use the standard Canon of Conduct . . . . It says you defer to the drug court practice and rules.” That argument was misplaced because the revised ABA Model Code of Judicial Conduct adopted in 2007 does not give unbridled discretion to drug court judges. (The Judiciary Commission rejected the judge’s argument; its recommendation that the judge be censured for this and other misconduct is pending before the Louisiana Supreme Court.)
A new Comment 4 added to the prohibition on ex parte communications (Rule 2.9A) in the 2007 ABA Model Code states:
A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.
Thus, the only special ethical rule for problem-solving judges in the model code relates to ex parte communications and then only insofar as “expressly authorized” by the rules or policies of the court.
So far five states have adopted revised codes of judicial conduct based on the 2007 model code. Delaware has not adopted a provision similar to Comment 4 to Rule 2.9A. Indiana and Montana have adopted the comment. (The syntax is a little different in the Montana version, which also adds “water court” as an example of a problem-solving court.) Hawaii has greatly expanded the exception by deleting the phrase “expressly authorized by law” so that the Hawaii allows a judge to “initiate, permit, or consider ex parte communications when serving on therapeutic or problem-solving courts, such as mental health courts or drug courts,” apparently without limitation. In the revised Ohio code, effective March 1, 2009, an exception for judges presiding over “specialized dockets” is in the text of the rule, not the comment, and states “a judge may initiate, receive, permit, or consider an ex parte communication when administering a specialized docket, provided the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage while in the specialized docket program as a result of the ex parte communication.”
by: Cindy Gray, Director, Center for Judicial Ethics, American Judicature Society
Posted in Canon 2 | 1 Comment »
Posted by judicialethicsforum on Friday, January, 9, 2009
Coincidentally on the same day, in two public reprimands, the Florida Supreme Court and the Massachusetts Supreme Judicial Court found that two judges crossed the line between acceptable and unacceptable communications. The Florida court found that Court of Appeal Judge Michael Allen “crossed the line” between the use of “intemperate or colorful language” in evaluating another judge’s opinion and a personal attack motivated by animus when he wrote a concurring opinion accusing the other judge of corruption. Inquiry Concerning Allen, 2008 WL 5245846, 33 Fla. L. Weekly S984 (Dec. 18, 2008). The Massachusetts court found that former judge Ernest Murphy “plainly crossed the line” with the content and emphasis of two letters he sent on judicial stationery to the publisher of the Boston Herald in pursuit of settlement in a person libel suit the judge had filed against the paper. Inquiry Concerning Murphy, 52 Mass. 796, 2008 WL 5235634 (Dec. 18, 2008).
by: Cindy Gray, Director, Center for Judicial Ethics, American Judicature Society
Posted in Canon 2, Judicial Ethics Generally | 1 Comment »
Posted by kswisher on Sunday, November, 16, 2008
Facing allegations of soliciting prostitution, among other charges, Chief Judge Edward Nottingham of the District of Colorado has resigned from the federal bench. The resignation moots his judicial misconduct inquiry, at least according to the Judicial Council of the Tenth Circuit. To read the order dismissing same, click here (summarizing the judicial conduct complaints and investigation).
The situation strikingly seems to mirror the very recent fate of Eliot Spitzer: Both opted to resign. Soliciting prostitution, of course, would violate Canon 2A (failing to comply with the law), now Rule 1.1, and (almost surely) would create an appearance of impropriety. That said, we would have to agree that resigning from such awe-inspiring positions — Chief District Judge of Colorado and Governor of New York, respectively – (self-)imposed a significant sanction on both Nottingham and Spitzer. The question, then, is whether that sanction is too lenient, too draconian, or roughly proportionate for their crimes.
Posted in Canon 2 | Leave a Comment »
Posted by kswisher on Wednesday, October, 29, 2008
The Brennan Center for Justice recently issued a fine paper on recusal standards, particularly in light of Republican Party of Minnesota v. White, 536 U.S. 765 (2002). The paper (among other features) offers ten specific proposals, including peremptory disqualification, enhanced disclosure, and like the ABA, mandatory disqualification whenever a party appearing before the judge has contributed significantly to the judge’s campaign. See Model Code of Judicial Conduct R. 2.11(A)(4)(2007). Click here to review a copy, courtesy of the Center.
Equally of interest, the (relatively) new Judicial Disqualification Project of the ABA Standing Committee on Judicial Independence has released an eighty-six page draft report, which thoroughly explores the history of disqualification and its current problems. Professor Charles Geyh at IU – Bloomington, no stranger to judicial ethics, is the director of the project. To review the draft report, click here.
Posted in Canon 2, Judicial Disqualification & Recusal | Leave a Comment »
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?
Posted in Canon 1, Canon 2, Canon 3, Canon 5 | Leave a Comment »
Posted by kswisher on Wednesday, September, 10, 2008
The ABA Journal just ran a rather interesting, feature-length story concerning a judicial ethics inquiry involving Judge Manny Real (C.D. Cal.). The Ninth Circuit Judicial Council is reportedly reviewing dozens of his cases for alleged errors of adjudication and problems of temperament. For the full article, click here. For my own views of whether bad criminal law adjudications warrant discipline (they can, and often do), click here. (Because others undoubtedly know more about the judicial ethics implications of Judge Real’s saga — which apparently has a history of at least several years – please comment below for our collective benefit.)
Posted in Canon 2, Canon 3, Judicial Ethics Generally | Leave a Comment »
Posted by kswisher on Wednesday, July, 16, 2008
Judicial ethics is a curiously under-, and in many ways un-, explored field. It could not be more important, however. On its most important level (perhaps arguably), compare Brown v. Board of Education (good?), with Korematsu v. United States (evil?). Compare as well Buck v. Bell (Holmes, J.) (upholding forced sterilization law on the basis of its perceived—now debunked—societal good), with Lawrence v. Texas. Granted, judicial ethics is more commonly thought of by the more (seemingly) mundane rules embodied in (more or less from state to state) the Model Codes of Judicial Conduct, but these too are fascinating. Take, as one randomly picked illustration, the judge who, during a death penalty case, allegedly engaged in an undisclosed romantic relationship with the prosecutor, yet the defendant, Charles Hood, received the death penalty.
There is more. Judicial ethics is inextricably tied to enforcement, namely, judicial discipline, and equally tied to the propriety to sit, judicial disqualification/recusal. This Forum, the first of its kind, takes on all three subjects — judicial ethics, discipline, and disqualification.
Fortunately, judicial ethics offers us much room in which to disagree, respectfully of course. These disagreements can range from the seemingly trivial (e.g., stock ownership) to the seemingly world-changing (e.g., Bush v. Gore). Let’s discuss.
Posted in Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »
