The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for January, 2009

When the White Decision Is Irrelevant

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 »

More Appellate Court Discord

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 »

Justice for Sale?

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 »

“Think Before You Google”

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 »

Drug Court Judges Are Not Above the New Ethics Rules

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 »

Communications Crossing Lines

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 »