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. 

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

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.   

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?