Posted by judicialethicsforum on Tuesday, June, 30, 2009
I’m interested in whether others share my (and Kant’s) concern with sentencing Madoff to the max in order to “send a message,” as Judge Chin said.
Without doing any research on it, my recollection is that a prosecutor isn’t supposed to say that in closing argument, but that a judge is understood to be able to take general deterrence into account in sentencing. But it troubles me.
Posted in Judicial Ethics Generally | 2 Comments »
Posted by graycynthia on Tuesday, June, 30, 2009
The controversy about Supreme Court nominee Judge Sonia Sotomayor’s membership in several organizations prompts a review of what the code of judicial conduct does and does not prohibit. Canon 2C of the Code of Conduct for U.S. Judges provides: “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” As the commentary to Canon 2C explains, “membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired.”
Not all discrimination is “invidious” discrimination, however, and not all groups are organizations subject to Canon 2C. As the 1984 ABA report on which the original version of Canon 2C was based explained, the crux is discrimination “on a basis that is odious and in historical context was a stigma or badge of inferiority.”
As an example of organizations that do not practice invidious discrimination, commentary to Canon 2C cites organizations “dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members.” The Indiana Judicial Qualifications Commission, in an advisory opinion, stated: “Some groups exist for the legitimate purpose of the perpetuation or celebration of cultures, historical events, and ethnic or religious identities and traditions. They tend to be inclusive of an entire group, rather than exclusive of certain groups. . . . Their membership limitations, rather than unfair or stigmatizing, are secondary to but inextricable from that which is being legitimately preserved or celebrated.” Indiana Advisory Opinion 1-94. As examples of groups with permissible membership limitations, the Indiana Commission identified the Daughters of the American Revolution, the Knights of Columbus, and the Sons of Italy, while the ABA report cited a Jewish Community Center or Polish-American Society.
The Arizona Judicial Ethics Advisory Committee stated that the victims of invidious discrimination were themselves justified in forming discriminatory organizations only to compensate for disadvantages currently suffered as a result of previous discrimination. Arizona Advisory Opinion 94-13. The committee stated that discrimination, for example, by a women’s organization, was legitimate if an organization could demonstrate that: (1) there is a sex-based disadvantage suffered by its membership; (2) the intention in forming or continuing the organization is to compensate for this disadvantage; (3) the organization’s programs and policies are not based upon and do not perpetuate archaic and stereotypical notions of the abilities or roles of the sexes; and (4) the organization’s single-sex policy and programs directly and substantially help its members compensate for the previous disadvantage.
Canon 2C creates an exemption for groups that are so intimate and private that the U.S. Constitution protects them from government interference. The Indiana Commission listed a number of factors that distinguish “organizations” from protected groups: a more or less constant membership; professional, social, recreational, charitable, educational, or civic purposes; selectivity in membership; membership controlled by ballot or some other type of approval; by-laws or other written rules; dues, assessments, or other support; size; advertising or publicity; whether the organization has subjected itself to governmental regulation, such as a liquor license; whether it sells retail goods or services; whether it offers its services or facilities to non-members; and whether it has developed a public identity through civic or charitable activities or participation in public events. The Commission identified mother-daughter banquets, men’s support groups, college fraternity and sorority alumni groups, girls’ basketball, or single sex fitness facilities as groups that are exempt from Canon 2C and may not even constitute “organizations” within the meaning of the prohibition.
The Committee on Codes of Conduct of the U.S. Judicial Conference (the advisory committee for federal judges) has not issued an opinion interpreting Canon 2C, but it has two opinions on membership in organizations that advance policy positions. See U.S. Advisory Opinion 40 (1998); U.S. Advisory Opinion 82 (1998).
Posted in Canon 2 | 1 Comment »
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.
Posted in Canon 2, Canon 3, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Selection | Leave a Comment »
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 what? The 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 »
Posted by judicialethicsforum on Sunday, May, 24, 2009
President Obama’s desire to appoint judges who have empathy is reminiscent of Ninth Circuit Judge John T. Noonan’s lecture and book, Persons and Masks of the Law. Judge Noonan (then a law professor at Berkeley) presented it as the Holmes Lecture at Harvard Law School in 1972, and then published it as a book in 1976.
In Persons and Masks of the Law, Judge Noonan warns of the tendency of lawyers and judges to allow abstract rules of law to obscure the human beings to whom those rules are applied. “Fascination with rules may mean obeisance to force or the delusion of having mastered force,” he says. “It may also lead to a veritably religious veneration for the rules and their imagined author. The sovereign and his command may be deified.” When that happens, the rules become masks that hide and render irrelevant the humanity of those affected by the law. The effect is to permit lawyers and judges to engage more readily in conduct that is injurious to other persons – conduct that they would otherwise recognize as evil.
Felix S. Cohen explained the limitations of logic and the relevance of morality (or “policy”) in judging:
To the cold eyes of logic the difference between the names of the parties in the two decisions bulks as large as the difference between care and negligence. The question for the judge is: “Granted that there are differences between the cited precedent and the case at bar, and assuming that the decision in the earlier case was a desirable one, is it desirable to attach legal weight to any of the factual differences between the instant case and the earlier case?”
Similarly, former N.Y. Chief Judge Judith Kaye observed: “[T]he danger is not that judges will bring the full measure of their experience, their moral core, their every human capacity to bear in the difficult process of resolving the cases before them. . . . [A] far greater danger exists that they do not.”
Posted in Judicial Ethics Generally, Judicial Selection | Leave a Comment »
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 »
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 »
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 »
Posted by judicialethicsforum on Wednesday, March, 25, 2009
The Comment to Canon 2 of the Code of Conduct for United States Judges defines appearance of impropriety as follows: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, *would* conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” (Emphasis added).
Ironically, that is a lesser standard for disqualification than is required under the Federal Disqualification Statute, 28 U.S.C. § 455, and under the Due Process Clause of the Constitution. The following is adapted from Understanding Lawyers’ Ethics (3d ed. 2004).
Section 455 says: “Any . . . judge . . . shall disqualify himself in any proceeding in which his impartiality *might* reasonably be *questioned*.” In addition to the plain meaning of the statute, the legislative history shows that disqualification is required when there is “any reasonable factual basis for *doubting* the judge’s impartiality.”
Also, as a matter of constitutional due process, a judge is required to recuse himself if there is “a *possible* temptation to the average . . . judge . . . which *might* lead him not to hold the balance nice, clear, and true. . . .” or if the circumstances “*might* create an impression of *possible* bias.”
Nevertheless, there is a tendency for some judges and commentators — and particularly for advocates opposing disqualification — to slip away from the statutory language, turning “might” into “could” or “would.” The differences are important. The word “might” is used to express “tentative possibility;” “could” is used to express “possibility;” while “would” connotes what “will” happen or is “going to” happen. Accordingly, the word “would” requires significantly more than a tentative possibility of doubt regarding a judge’s impartiality, and use of the word “would” therefore produces a subtle but substantial change in the meaning of the statute.
For example, when Justice Stephen Breyer was nominated for the United States Supreme Court, I argued against his confirmation. The reason was that Breyer, when sitting in the First Circuit, had written an opinion that could well have had a devastating impact on Breyer’s own financial well-being. I maintained that Breyer had therefore acted unethically in failing to recuse himself. Then White House Counsel Lloyd Cutler contended that reasonable people differed about whether Breyer’s impartiality in the case was questionable, and that Breyer therefore was not required to recuse himself.
That argument would have had force if the statute required disqualification only when a reasonable person *would* question the judge’s impartiality. In that event, if reasonable people disagreed about whether the judge’s impartiality is questionable, one could not say that a reasonable person *would* question it — only that she might or might not — and recusal would not be required. Under the statute, however, if reasonable people do disagree, then clearly a reasonable person might question the judge’s impartiality, and recusal is required.
That is, under § 455(a) a federal judge, or justice, can properly stay in a case only if no reasonable person *might question* the judge’s impartiality.
Posted in Canon 2, Judicial Disqualification & Recusal | Leave a Comment »
Posted by kswisher on Monday, March, 23, 2009
The Judicial Conference of the United States has (gently) amended the Code of Conduct for United States Judges. The revisions, inspired in part by the 2007 Model Code of Judicial Conduct, can be found here and will take effect on July 1, 2009.
It has been reported in the press that the new federal code contains for the first time a definition of the appearance of impropriety. To be sure, the new code does contain a definition of the appearance of impropriety: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” Code of Conduct for United States Judges Canon 2 cmt. (2009). The “old” (but currently in effect) code, however, contains a similar definition: “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Code of Conduct for United States Judges Canon 2 cmt. (2000). To me, the juxtaposition shows that the only significant change is the explicit inclusion of “temperament” in the test for the appearance of impropriety in the new code, but that trait certainly is not “new” to impropriety analysis. The new definition also omits the word “perception,” which arguably dilutes a true “appearance” standard.
Posted in Judicial Ethics Generally | Leave a Comment »
Posted by kswisher on Monday, March, 23, 2009
The Supreme Court recently released the transcript of the oral argument in the West Virginia disqualification case (see Justice for Sale?), which was argued on March 3, 2009. Because, for example, Justice Kennedy seemed favorably inclined [see, e.g., Tr. at 33], I am cautiously optimistic for a five-to-four decision in favor of due process. To read the full transcript, click here. My favorite lines include:
§ JUSTICE STEVENS: “We have never confronted a case as extreme as this before. This fits the standard that Potter Stewart articulated when he said ‘I know it when I see it.’ (Laughter.)”
§ COUNSEL FOR MASSEY COAL: “I understand the . . . concerns about having the [apparently biased] judge making the decision about whether recusal is required, but that is not the practice of this Court, and if it’s not the practice of this Court, I frankly doubt it’s unconstitutional.”
§ JUSTICE BREYER: “The debt of gratitude . . . isn’t the theory that underlies [the due process challenge], though it may in part. . . . A normal human being also thinks, if I play my cards right, maybe [the substantial expenditure] will be repeated, and they’ll want to keep me in office. And we have the fact of how it looks, and we don’t have a situation where the something like this is inevitable, where you appoint judges.”
§ JUSTICE SOUTER: “If one is going to go into that calculation, one is going to assume that in eight years, there’s going to be another three million dollars waiting to be spent.”
§ JUSTICE BREYER: “Call [the proposed due process standard] a ‘probabilty’ [of bias]; call it an ‘appearance.’ Use the language that you want, but put them together, and they spell ‘mother.'”
§ JUSTICE SCALIA: According to Justice Scalia’s rather trusting views of judicial elections, if someone were to contribute money to his hypothetical campaign, “that person contributed money to my election because he expected me to be a fair and impartial judge, and I would be faithful to that contributor only by being a fair and impartial judge. That is showing gratitude.”
Posted in Judicial Campaigns, Judicial Disqualification & Recusal | Leave a Comment »
Posted by judicialethicsforum on Wednesday, March, 4, 2009
(The following is on judicial elections and due process, from Understanding Lawyers’ Ethics (3d ed. 2004). I’m concerned that those on the court who are hostile to recusal (e.g., Justices Scalia and Breyer) will use the extreme facts of the W.Va. case to sharply limit the statutory and constitutional recusal requirement.)
The most important potential significance of White is the strong suggestion in the opinions of Justices O’Connor and Ginsburg (writing for a total of five justices) that no judge subject to reelection can decide a controversial case without violating due process. As discussed earlier in this chapter [9: “The Impartial Judge”], due process is denied if there is a “possible temptation to the average . . . judge . . . which might lead him not to hold the balance nice, clear, and true. . . .” There is substantial reason to believe that elective judges are influenced in controversial cases by the threat of being voted out of office. Particularly in a case involving issues like the death penalty or abortion rights, therefore, there is a strong argument that a decision by such a judge violates the Due Process Clause of the Fourteenth Amendment.
Indeed, Justice O’Connor’s concerns ultimately go beyond the controversial case, to challenge the entire system of electing judges. She concurs separately to express her objections to “judicial elections generally.” Referring to the state’s claim of a compelling interest in “an actual and perceived … impartial judiciary,” she notes that “the very practice of electing judges undermines this interest.” Defining impartiality as being free of any stake in the outcome of a case, she explains that when judges are subject to regular elections, “they are likely to feel that they have at least some personal stake in the outcome of every publicized case.” That is, elected judges “cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects.” Moreover, even when judges succeed in overcoming their concern with voters’ displeasure, “the public’s confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so.”
O’Connor refers to a law review article that quotes former California Supreme Court Justice Otto Kaus’ statement that ignoring the political consequences of controversial cases is like “ignoring a crocodile in your bathtub.” She also relies on an article that cites statistics indicating that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty.
In addition, O’Connor discusses the pernicious effects of campaign fundraising in judicial elections, noting, for example, that the thirteen candidates in a partisan election for five seats on the Alabama Supreme Court in 2000 spent an average of $1,092,076 on their campaigns. Not surprisingly, lawyers and litigants who appear before the judges are among the major contributors to judges’ campaigns, and “relying on campaign donations may leave judges feeling indebted to certain parties or interest groups.”
When lawyers and litigants appear to be buying influence with campaign contributions, the appearance of partiality goes beyond the highly publicized case, tainting any case in which money may have passed. Thus, O’Connor’s ultimate due process challenge is to the entire system of judicial election of judges, in cases of both major and minor public interest.
Justice Ginsburg analyzes some of the Court’s most important cases requiring disqualification of state judges on due process grounds. Her analysis provides three conclusions. First, a litigant is deprived of due process where the judge who hears his case has a “direct, personal, substantial and pecuniary” interest in ruling against him. Second, the judge’s interest is sufficiently “direct” if the judge knows that “his success and tenure in office depend on certain outcomes.” Third, due process does not require a showing that the judge is biased in fact as a result of his self-interest. Rather, the cases have “always endeavored to prevent even the probability of unfairness.”
Ginsburg’s immediate focus in White is on the judge who has made or implied a commitment to voters to decide cases a certain way, and who fears voter retaliation if she fails to deliver. Her remarks, however, apply equally to any judge whose reelection may depend upon not offending voters in the next election. Such a judge may be thought to have a direct, personal, substantial, and pecuniary interest in ruling against certain litigants, Ginsburg notes, “for she may be voted off the bench and thereby lose her salary and emoluments” if her decision displeases the voters. Quoting The Federalist No. 79, she adds: “‘In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.’”
The Chair of the ABA Commission on the 21st Century Judiciary[, Edward W. Madiera,] agrees. “The commission found,” he has written, “that the greatest threats to the impartiality and independence of judges, whether real or perceived, are posed by the prospect of ouster from office based on the content of judicial decisions.”
Because states can no longer prevent judicial candidates from announcing views on legal and political issues, some states will very likely abandon judicial elections. To the extent that they do not, a litigant in a case involving a controversial issue will have a strong argument that due process requires disqualification of any judge who is subject to reelection.
–
Posted in Judicial Campaigns, Judicial Disqualification & Recusal | Leave a Comment »
Posted by graycynthia on Monday, March, 2, 2009
The federal courts are steadily (and somewhat condescendingly) chipping away at the restrictions on campaign and political activity state courts believed were necessary to protect the impartiality of an elected judiciary. (For the most recent example, see Siefert v. Alexander, Opinion and Order (U.S. District Court for the Western District of Wisconsin Feb. 17, 2009), permanently enjoining enforcement of three clauses in the Wisconsin code of judicial conduct: the personal solicitation clause, the prohibition on endorsing a partisan candidate, and the prohibition on joining a political party). Therefore, it is crucial that state courts adopt a rule prohibiting a judge from using “court staff, facilities, or other court resources in a campaign for judicial office,” which was adopted by the American Bar Association in 2007 as Rule 4.1(A)(10) of the Model Code of Judicial Conduct. Whatever the First Amendment rights of judges and judicial candidates to solicit campaign contributions, answer questionnaires, and endorse other candidates, there is no conceivable grounds for arguing that judges have a First Amendment right to appropriate for personal political purposes the public resources that should be dedicated to the administration of justice.
Even without a specific rule, the exploitation of the courthouse and court staff for campaigning by judges is impliedly and inherently in the general provisions of the code. For example, in December, the New York State Commission on Judicial Conduct censured a judge who personally solicited support for her candidacy for another court from two attorneys who were in the courthouse and about to appear before her; the Commission found a violation of the general rule requiring a judge to “act in a manner consistent with the impartiality, integrity and independence of the judiciary.” In the Matter of Yacknin, Determination (New York State Commission on Judicial Conduct Dec. 29, 2008).
But adopting an express rule eliminates any question whether such conduct can be sanctioned (see the baffling dissent in Yacknin), ensures that judges are aware of the restriction, and emphasizes the importance of keeping politics out of the courthouse literally as a way of keeping politics from appearing to influence judicial decisions.
So far, Indiana, Kansas, and Montana have adopted Rule 4.1(A)(10), with Indiana wisely adding that it applies to “any political purpose” as well as to campaigning. Other states should follow those states’ lead even if they do not adopt entirely new codes at this time. Minnesota adopted a version that states judges cannot “use court staff, facilities, or other court resources in a campaign for judicial office in a manner prohibited by state law or Judicial Branch personnel policies.” Let’s hope that the law and personnel policies in Minnesota are strict and well-known by judges. The Ohio Supreme Court did not adopt the rule when it adopted a new code; let’s hope provisions in other Ohio laws or rules already cover the issue, but it would have been prudent to refer to those standards sin the code as well.
Posted in Canon 1, Canon 4, Judicial Campaigns | Leave a Comment »
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 »
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 »
Posted by graycynthia on Wednesday, February, 18, 2009
Judicial campaign fund-raising was one of the major judicial conduct stories in 2008, as it has been in the past and no doubt will be in the future. Campaign contribution and spending records were set in state supreme court races in 2008. In Caperton v. Massey, the United States Supreme Court decided to take a case raising the issue whether $3 million spent by a company’s CEO in support of a supreme court justice’s campaign presents due process considerations when that company appeals a $50 million verdict to the court. The case prompted the filing of nine amicus briefs in support of the petitioner, most representing the position of several individuals or organizations, and five in support of the respondent (see www.brennancenter.org/content/resource/caperton_v_massey). Oral argument is scheduled for March 3, 2009.
Personal solicitation of campaign contributions led to judicial discipline in 2008, with a modern twist to some of the violations. A videotape on YouTube.com showed judicial candidate Willie Singletary telling riders at a motorcycle rally, after offering a blessing for the riders and their bikes, “There’s going to be a basket going around because I’m running for Traffic Court Judge, right, and I need some money. I got some stuff that I got to do, but if you all can give me $20 you’re going to need me in Traffic Court, am I right about that?” The judge further stated, “Now you all want me to get there, you’re all going to need my hook-up right?” He was elected, and the Pennsylvania Court of Judicial Discipline publicly reprimanded him for personally soliciting and accepting campaign funds, conduct “so extreme as to bring the judicial office into disrepute,” and violating the requirement that a judicial candidate maintain the dignity appropriate to judicial office. In re Singletary, Opinion (December 1, 2008), Order (January 23, 2009) (www.cjdpa.org/decisions/jd08-01.html).
The Kansas Commission on Judicial Qualifications ordered a judicial candidate to cease and desist from publicly soliciting campaign contributions after receiving multiple complaints that he had sent attorneys a cell phone text message that stated: “If you are truly my friend then you would cut a check to the campaign! If you do not then its time I checked you. Either you are with me or against me!” Inquiry Concerning Davis, Order (July 18, 2008). The Commission found that the candidate personally solicited campaign contributions and that the intimidating nature of the text message violated Canon 1. The candidate accepted the order.
Later in 2008, however, in a challenge filed by a sitting judge, the U.S. District Court for the District of Kansas held that the clause prohibiting judicial candidates from personally soliciting campaign contributions was unconstitutional. Yost v. Stout (November 16, 2008). That same conclusion was also reached by the U.S. District Court for the Eastern District of Kentucky in 2008 (Carey v. Wolnitzek, Opinion and order (October 15, 2008)) and the U.S. District Court for the Western District of Wisconsin in February 2009 (Siefert v. Alexander, Opinion and Order (February 17, 2009)). The Kansas court found that allowing solicitation “by a campaign committee does not assure that the candidate is unaffected or even unaware of who does and does not contribute to the campaign.” The court also stated that “garner[ing] public support and campaign contributions does not, in itself, suggest that candidates will be partial to their endorsers or contributors once elected” and “the recusal canon is narrowly tailored to cure any impartiality that may result from a candidate personally soliciting contributions.” The Kentucky court concluded that, “while it may be less difficult for a solicitee to decline a request for a contribution when the request is made by a committee, ‘the state does not have a compelling interest in simply making it more comfortable for solicitees to decline to contribute to judicial campaigns.’”
In February 2009, the U.S. District Court for the District of Minnesota upheld the Minnesota version of the solicitation clause because it allows a judicial candidate to personally solicit campaign contributions when speaking to groups of more than 20 persons or by signing a letter and requires a candidate to “take reasonable measures to ensure that the names and responses, or lack thereof, of those solicited will not be disclosed to the candidate . . . .” Wersal v. Sexton (February 4, 2009). The court rejected the plaintiff’s argument that the clause is unconstitutional because recusal is a less restrictive means of preventing bias, noting “the rash of recently filed petitions for Writ of Certiorari indicate that recusal may not be an effective method of preventing bias and ensuring justice.”
Posted in Canon 4, Canon 5, Judicial Campaigns | 1 Comment »
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 »
Posted by judicialethicsforum on Wednesday, February, 4, 2009
In 2008, as a result of state discipline proceedings, 12 judges were removed from office. In addition, one judge was permanently disbarred (effectively removing him from office), one former part-time judge was permanently barred from serving in any judicial capacity, one judge was found to be permanently disabled, one judge was permanently retired, and two judges were suspended without pay until the end of their terms. 11 judges resigned (or retired) in lieu of discipline pursuant to agreements with judicial commissions that were made public. 114 additional judges (or former judges in approximately 23 cases) received other public sanctions in 2008. In 77 of those cases, the discipline was imposed pursuant to the consent of the judge.
There were 12 suspensions without pay in 2008, with the length of the suspensions ranging from three days to three years (three suspensions also included censures; one also included a public reprimand and $2,000 fine). In addition, there were 17 public censures, 41 public reprimands (one also included a $7,780 fine), 28 public admonishments, four public warnings (one was a dismissal with warning made public with the judge’s consent), three cease and desist orders, two required public apologies, one case in which a judge accepted a commission’s finding that he had committed misconduct, and one decision ordering a judge to take corrective action. Bar discipline authorities sanctioned three former judges for conduct on the bench and two judges for pre-bench conduct. (For further details, click here.)
a
By: Cindy Gray, Director, Center for Judicial Ethics, American Judicature Society
Posted in Judicial Ethics Generally | Leave a Comment »
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 »
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 »
The Judicial Ethics Forum (JEF) 