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Caperton Clarity

Posted by judicialethicsforum on Monday, June, 15, 2009

As we predicted, the Supreme Court has voted five to four in general favor of the Due Process Clause and disfavor of judicial electioneering.  Justice Kennedy authored the opinion concluding that Justice Benjamin harbored a serious, objective “probability of bias” when he refused to recuse himself in a case involving his biggest supporter from his previous — and perhaps future — election.  Justice Benjamin also chose the two replacement jurists for the two justices who did recuse themselves from the case. 

The new (or perhaps more accurately, old-but-newly-fashioned) test has several formulations and considerations.  In essence, the Court held “that Blankenship’s significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—’offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’” Lavoie (quoting Monroeville in turn quoting Tumey).  Stated slightly differently, there is “a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”  The opinion drew out two elements of the test: (i) election influence and (ii) case status.  The former inquiry “centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”  The Court clarified that “[w]hether campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry.”  The Court also focused on the status of any impending or pending case.  The opinion has a heavy undercurrent that no one should get to choose — even with good money — their own judge in a pending matter.  As the Court put it, the “temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical.  It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice.”  The principle seems simple and sound enough: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause.”

Interestingly, the dissenters argued that the decision will create an increase, if not a flood, in “Caperton claim[s].”  Assuming those claims are meritorious — and judicial elections do provide fertile grounds for such claims  — we should thank this watershed decision and welcome the flood. 

The full text of the opinion, as well as the dissents of Chief Justice Roberts and Justice Scalia, can be found here.   

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Posted in Canon 2, Canon 3, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Selection | Leave a Comment »

Caperton: Answers to the Chief Justice’s “Twenty Questions” Times Two

Posted by kswisher on Monday, June, 15, 2009

In Caperton, Chief Justice Roberts dismissed the majority’s “probability of bias” test, calling it a “cure . . . worse than the disease.”  He believes that the “Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required,” which “will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be,” which in the end, “will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.”  His consequence connector seems miscalibrated.  It is exceedingly odd to claim that remedying this “extreme case” — one in which every justice, and the polled public, seem to agree bruises the perception of impartiality — will “erode public confidence in judicial impartiality.”  As an umpire who merely calls balls and strikes, perhaps the Chief Justice needs to get back in the game and out of the policy incubator.  His dissent is notable, but not because of these loose causal connections involving hypothetical challenges, but because it has attracted significant attention through the casting of forty questions — forty questions that the majority’s analysis allegedly cannot answer.  While some commentators have hailed the questions as an indication of infirmities in the majority’s analysis (e.g., “bad facts make bad law”), I respectfully dissent from the dissent; every question, save one or two, can be answered (and the ones that cannot seem to reflect more poorly on the questioner’s drafting than the majority’s analysis).  As a preliminary matter, I note again that an umpire who merely calls balls and strikes should be less concerned with questions not before the court, and indeed, every case could spawn a multitude of forward-looking questions not raised by the facts at hand, but let’s play the game these objections notwithstanding.  Proposed answers are in bold following the applicable questions. 

1. How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”?  Without supplying any facts, this question should be answered with the majority’s test: “When a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”  In other words, “Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances ‘would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’”

2. How do we determine whether a given expenditure is “disproportionate”?  See answer to question 1.  Disproportionate to whatThe majority answered this one as well: “in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election.”

3. Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate’s campaign?  No, the latter support is worse—the influence is more direct.  What about contributions to independent outside groups supporting a candidate?  The question must be initially answered with a question: What “independent outside groups”?  But as general matter, yes, that the contributions were to some “independent outside groups” should be considered and could in the abstract be mitigating. 

4. Does it matter whether the litigant has contributed to other candidates or made large expenditures in connection with other elections?  Probably not (unless the other contributions and/or expenditures were to the judge’s opponent in the same race – a rather unlikely and self-defeating scenario). 

5. Does the amount at issue in the case matter?  It could.  What if this case were an employment dispute with only $10,000 at stake?  It could, if the case was so patently miniscule to the supporter as not to risk offending him/her/it no matter what the disposition.  If the question is cast toward the other side’s perspective, however, the amount in dispute is irrelevant—every litigant is entitled to a fair trial before a fair judge.  What if the plaintiffs only sought non-monetary relief such as an injunction or declaratory judgment?  No, the form of relief sought is generally irrelevant. 

6. Does the analysis change depending on whether the judge whose disqualification is sought sits on a trial court, appeals court, or state supreme court?  No. 

7. How long does the probability of bias last? So long as support matters to holding the office and so long as a strong debt of gratitude lasts.  Does the probability of bias diminish over time as the election recedes?  Probably, but it depends primarily on his next question:  Does it matter whether the judge plans to run for reelection?  Yes.  

8. What if the “disproportionately” large expenditure is made by an industry association, trade union, physicians’ group, or the plaintiffs’ bar?  Same analysis as above.  Must the judge recuse in all cases that affect the association’s interests?  Surely yes with respect to the pending case, but perhaps yes with respect to (unspecified) others as well. Must the judge recuse in all cases in which a party or lawyer is a member of that group?  Not all, but the question does not allow for anything beyond speculation.  Does it matter how much the litigant contributed to the association?  Yes, it matters.    

9. What if the case involves a social or ideological issue rather than a financial one?  Must a judge recuse from cases involving, say, abortion rights if he has received “disproportionate” support from individuals who feel strongly about either side of that issue?  Is the “support” financial?  If yes, then yes.  If the supporter wants to help elect judges who are “tough on crime,” must the judge recuse in all criminal cases?  Of course, we need to know whether the supporter had a particular case pending in which she had a multi-million dollar interest.  If not, then generally no, recusal would not be required in all criminal cases, although an argument can be advanced forcefully that the Constitution is violated when you combine judicial elections with criminal cases, particularly in situations in which the judge’s influential supporters demand toughness on crime and would withhold support in its absence.   

10. What if the candidate draws “disproportionate” support from a particular racial, religious, ethnic, or other group, and the case involves an issue of particular importance to that group?  This question is void for vagueness.   

11. What if the supporter is not a party to the pending or imminent case, but his interests will be affected by the decision?  Does the Court’s analysis apply if the supporter “chooses the judge” not in his case, but in someone else’s?  If the judge would probably be concerned about the effect of the pending case on his supporter (or the supporter would probably be concerned about the judge’s fidelity), then probably yes. 

12. What if the case implicates a regulatory issue that is of great importance to the party making the expenditures, even though he has no direct financial interest in the outcome (e.g., a facial challenge to an agency rulemaking or a suit seeking to limit an agency’s jurisdiction)?  The parenthetical example seems contradictory – there certainly could be a strong financial interest motivating the facial challenge.  But assuming there is not, we would be dealing with more attenuated corrupting forces.    

13. Must the judge’s vote be outcome determinative in order for his non-recusal to constitute a due process violation?  No.   

14. Does the due process analysis consider the underlying merits of the suit?  Does it matter whether the decision is clearly right (or wrong) as a matter of state law?  No (although it could be circumstantial evidence of an actually biased judge). 

15. What if a lower court decision in favor of the supporter is affirmed on the merits on appeal, by a panel with no “debt of gratitude” to the supporter?  Does that “moot” the due process claim?  No.  Constitutionally unbiased judges are required at every level. 

16. What if the judge voted against the supporter in many other cases?  Yes, it could matter, as it could show (among other things) no debt of gratitude or expectation of future support.   

17. What if the judge disagrees with the supporter’s message or tactics? What if the judge expressly disclaims the support of this person?  Yes, that could matter.

18. Should we assume that elected judges feel a “debt of hostility” towards major opponents of their candidacies?  Yes, although the term “hostility” is a bit loaded.  Must the judge recuse in cases involving individuals or groups who spent large amounts of money trying unsuccessfully to defeat him?  Possibly, but the question lacks sufficient circumstances.

19. If there is independent review of a judge’s recusal decision, e.g., by a panel of other judges, does this completely foreclose a due process claim?  Although independent review should be the procedure adopted for all, or virtually all, motions to disqualify, the commendable procedure does not eliminate the due process inquiry.  For example, these “independent” judges could be members of the same court and thus hesitant to disqualify their colleague, friend, and neighbor.  On a more basic level, a state procedure cannot trump the Constitution.

20. Does a debt of gratitude for endorsements by newspapers, interest groups, politicians, or celebrities also give rise to a constitutionally unacceptable probability of bias?  They could.  How would we measure whether such support is disproportionate?   Same or similar methods and tests. 

21. Does close personal friendship between a judge and a party or lawyer now give rise to a probability of bias?  Arguably yes, and as a practical matter, it always has (although it should be noted that many good judges bend over backwards to avoid actual bias in such cases).   

22. Does it matter whether the campaign expenditures come from a party or the party’s attorney?  Yes, if the latter, the influences are more attenuated. If from a lawyer, must the judge recuse in every case involving that attorney?  If the attorney is to the judge as Blankenship was to Justice Benjamin, then yes.   

23. Does what is unconstitutional vary from State to State?  Never.  What if particular States have a history of expensive judicial elections? Whether and in what form the state holds judicial elections matter, but their overall expensiveness likely would not matter.  The test would be the same, just with fewer zeros after the applicable numbers.    

24. Under the majority’s “objective” test, do we analyze the due process issue through the lens of a reasonable person, a reasonable lawyer, or a reasonable judge?  This is perhaps the first “good” question.  In the case, however, all three actors would come to the same conclusion—recusal.  As a general matter and as a matter of substantive recusal law, the actor probably should be the reasonable judge.   

25. What role does causation play in this analysis? The Court sends conflicting signals on this point. The majority asserts that “[w]hether Blankenship’s campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry.”  But elsewhere in the opinion, the majority considers “the apparent effect such contribution had on the outcome of the election,” ante, at 14, and whether the litigant has been able to “choos[e] the judge in his own cause,” ante, at 16.  Yes, causation matters, but it need not be the sole, isolated cause of victory.  If causation is a pertinent factor, how do we know whether the contribution or expenditure had any effect on the outcome of the election?  It should not be terribly difficult—election success has been analyzed (often correctly) for a long time.  Moreover, as the majority noted, the task becomes easier once we acknowledge that we are dealing with probabilities, not actualities.  What if the judge won in a landslide?  Yes, that matters.  What if the judge won primarily because of his opponent’s missteps?  Yes, that matters as well.   

26. Is the due process analysis less probing for incumbent judges—who typically have a great advantage in elections—than for challengers?  No, it is not less probing, but such a “great advantage” should be considered wherever actually applicable. 

27. How final must the pending case be with respect to the contributor’s interest? What if, for example, the only issue on appeal is whether the court should certify a class of plaintiffs? Is recusal required just as if the issue in the pending case were ultimate liability?  Absolutely.

28. Which cases are implicated by this doctrine? Must the case be pending at the time of the election?  No, it must be reasonably likely to be brought.  Reasonably likely to be brought?  What about an important but unanticipated case filed shortly after the election?  If it is truly “unanticipated,” then the litigant certainly did not “choose” the judge in her own case.  This fact alone, however, would not be dispositive.   

29. When do we impute a probability of bias from one party to another?  Does a contribution from a corporation get imputed to its executives, and vice-versa?  By casting the legal fictions aside, the answer will become clear or clearer.   And obviously, in light of the Court’s holding, imputation can occur from a chief executive to the corporation.  Does a contribution or expenditure by one family member get imputed to other family members?  Probably, but not necessarily.   

30. What if the election is nonpartisan? It could matter, but without facts, it is unclear.  What if the election is just a yes-or-no vote about whether to retain an incumbent?  For anyone familiar with retention elections, this fact definitely matters.  For one, almost all judges up for retention are retained.  Moreover, it is much harder to “choose” your judge (save your one vote) at the retention election stage – it is much easier (but still difficult) to oust a judge.  

31. What type of support is disqualifying? What if the supporter’s expenditures are used to fund voter registration or get-out-the-vote efforts rather than television advertisements?  This twist could matter.  Among other factors, one would need to look at the causal link between these activities and electoral success and the expectation of future support.   

32. Are contributions or expenditures in connection with a primary aggregated with those in the general election?  Yes.  What if the contributor supported a different candidate in the primary? Does that dilute the debt of gratitude?  Perhaps slightly. 

33. What procedures must be followed to challenge a state judge’s failure to recuse? May Caperton claims only be raised on direct review?  A strong candidate for an interlocutory appeal exception.  Or may such claims also be brought in federal district court under 42 U. S. C. §1983, which allows a person deprived of a federal right by a state official to sue for damages?  Perhaps, but it seems unlikely that pecuniary “damages” would be permitted.  If §1983 claims are available, who are the proper defendants? The judge? Yes.  The whole court?  Probably not.  The clerk of court?  Probably not.

34. What about state-court cases that are already closed? Can the losing parties in those cases now seek collateral relief in federal district court under §1983?  Perhaps.  What statutes of limitation should be applied to such suits?  The “statute of limitations” should not be an immediate issue—as Tuesday would have been the first day on which it should start to run.   

35. What is the proper remedy? After a successful Caperton motion, must the parties start from scratch before the lower courts?  Yes (unless the now-disqualified judge sat at the appellate level).  Is any part of the lower court judgment retained?  No. 

36. Does a litigant waive his due process claim if he waits until after decision to raise it? Probably (particularly in this instance—when the constitutional-rights waiver is not inadvertent, but instead a tactical decision that could lead to, among other things, wasted judicial proceedings).  Or would the claim only be ripe after decision, when the judge’s actions or vote suggest a probability of bias?  No. 

37. Are the parties entitled to discovery with respect to the judge’s recusal decision?  They should be so entitled at least with respect to facially meritorious claims.

38. If a judge erroneously fails to recuse, do we apply harmless-error review?  This is the second or third good question out of forty.  Just a prediction, but courts will probably say “no.”  [Again, however, it is a good question, and I personally have flip-flopped on the answer.] 

39. Does the judge get to respond to the allegation that he is probably biased, or is his reputation solely in the hands of the parties to the case?  The judge gets to respond in his ruling on the disqualification motion (or sua sponte in his recusal ruling).  

40. What if the parties settle a Caperton claim as part of a broader settlement of the case? Does that leave the judge with no way to salvage his reputation?  Once the case is no longer pending, the judge could speak about the merits of the Caperton claim.  The concern misses the mark a bit: One of the reasons these “perception”- or “appearance”-based tests have arisen is to avoid the ugly impact of implying, calling, and proving the judge actually biased.  The Caperton-disqualified judge can still say – as has Justice Benjamin following the Supreme Court’s decision – that he was not actually biased.

* * *

Obviously, the answers above are not gospel, and by comment or otherwise, other answers are encouraged.  

Posted in Canon 2, Canon 3, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Selection | 1 Comment »

New Scholarship: Harrison and Swisher on Judges’ Comments to the Press

Posted by judicialethicsforum on Sunday, May, 10, 2009

Mark Harrison and Keith Swisher just published a lengthy (perhaps the lengthiest) article analyzing extrajudicial comments on pending cases.  Here is the abstract:

This work explores the ethical boundaries of judges speaking to the media and others concerning their impending or pending cases. We ultimately take a rather dim view of the practice, with particular scrutiny applied to instances in which judges defend or explain their rulings in the press in response to criticism.

The primary problem is that by commenting on the merits of pending cases over which the judge is presiding, she is elevating her personal interests (most commonly, either self-aggrandizement or self-defense) over the interests of the parties or even the more abstract interests of justice. Another problem with these extrajudicial comments in practice is that they result from, or at least are influenced by, ex parte contacts with the media — contacts that are unknown to (or at least practically uncorrectable by) the parties. Furthermore, a regime of extrajudicial speech fails properly to incentivize judges to explain their official actions where it counts, namely, in their rulings and opinions, not to the media or other external outlets. Finally, and perhaps most importantly, because the likelihood of disqualification is so high when a judge extrajudicially comments on anything close to the merits, the outspoken judge regrettably buys herself a one-way ticket off of the case. Therefore, unless the commenting judge has some (better) proof that the comment will benefit (or mitigate a detriment to) some legitimate cause other than herself, she generally should leave the extrajudicial commenting to third parties.

Mark I. Harrison & Keith Swisher, When Judges Should Be Seen, Not Heard: Extrajudicial Comments Concerning Pending Cases and the Controversial Self-Defense Exception in the New Code of Judicial Conduct, 64 N.Y.U. Ann. Surv. Am. L. 559 (2009).  A link to the piece can be found in Articles as well. 

Posted in Canon 2, Canon 3 | Leave a Comment »

McKoski on Judges’ Charitable Fund-Raising and Stationery Use

Posted by judicialethicsforum on Sunday, May, 10, 2009

The Honorable Raymond McKoski (Illinois) recently published a thorough examination of charitable fund-raising under the ethical rules, old and new.  Here is the abstract: 

To promote public confidence in the judicial system, judges are prohibited from engaging in conduct that reflects adversely upon their independence, impartiality, or integrity. Since public trust is damaged by on-bench and off-bench activities, codes of judicial conduct severely restrict a judge’s partisan political activities, private speech, business dealings, social life, religious activities, and charitable endeavors. This Article examines the restrictions placed on a judge’s fund-raising efforts in support of civic, educational, charitable, fraternal, professional, and religious organizations. The Article begins by tracing the evolution of judicial fund-raising regulations through the ABA Model Codes of Judicial Conduct of 1924, 1972, 1990, and 2007. Next, specific fund-raising prohibitions of the 2007 Model Code are evaluated against the rational supporting the state’s right to limit a judge’s extra-judicial activities. The Article concludes that some of the 2007 Code’s fund-raising restrictions are justified because they prevent measurable damage to confidence in the judiciary. Other rules, however, prohibit conduct that is either harmless to, or actually enhances, the image of the judiciary. Those restrictions are not justified and should be eliminated.

Judge McKoski also recently published a thorough exploration of judges’ private use of their official stationery, which likewise traces (among other things) the ABA’s treatment of the subject through the near century’s worth of Model Judicial Codes.  Links to both works can be found in Articles

Posted in Canon 3, Canon 4, Canon 5 | Leave a Comment »

The Electronic Temptation

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 »

Applying the Code to Judge “Killer”

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 »

Asking About Immigration Status

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 »

Double Trouble

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 »

ABA Ethics Committee Remembers the “Other” Ethics Code

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 »

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 »

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 »