The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for the ‘Canon 2’ Category

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 »

Judging Johns

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 »

New Reports on Recusal and Disqualification in the Wake of White

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 »

The Return of Impeachment

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 »

Ninth Circuit Judicial Council Investigation

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 »

Maiden Post: The Importance of Judicial Ethics

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 »