New Scholarship: McKoski on the Appearance of Impropriety Standard
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).