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Those who work with the canons of judicial ethics on a daily
basis March 26 urged the American Bar Association's Joint
Commission to Evaluate the Model Code of Judicial Conduct
not to tinker too much with the code's existing text and structure.
"I really urge you not to play around with the code,"
said Patrick J. Monahan Jr., who is counsel to New Jersey's
Commission on Judicial Misconduct. This point was echoed by
a panel of jurists who sit on the California Judges Association's
ethics committee and by judicial disciplinary counsel from
other states, all of whom argued that the current framework
and wording in the Model Code strikes just the right tone
with its blend of aspirational and normative directives.
The commission also heard from some speakers who had specific
ideas on improving and clarifying the code, including a group
of federal judges who want more flexibility to mediate disputes.
The testimony was heard by the commission during its third
public hearing, held in San Francisco. Previous hearings were
held Dec. 5, in Washington, D.C., and Feb. 6 in San Antonio.
See 72 U.S.L.W. 2484.
Leave Well Enough Alone
Among other things, the commission has been grappling with
the question of whether Canon 2 of the Model Code is too vague
as a stand-alone proscription. Canon 2 says: "A judge
should avoid impropriety and the appearance of impropriety
in all activities," and is then followed by three sections
that proscribe specific conduct. (See box.)
"We've had a lot of discussion on this point already,"
said commission Chair Mark I. Harrison, of Osborn Maledon,
Phoenix, "and one matter is the inevitable due process
concern about the inherent vagueness of the standard."
One proposal being floated in commission discussions is a
draft rule that would wrap the "impropriety" language
into the discussion of a judge's duty to comply with the law,
and add aspirational text stating that the judge should also
avoid the appearance of impropriety.
But several lawyers from the Association of Judicial Disciplinary
Counsel pressed the commission to leave Canon 2 as is, arguing
that the appearance of impropriety standard should remain
an independently enforceable provision. Canon 2 violation
cases are not just "add-ons," said Steven Scheckman,
special counsel to the Judiciary Commission of Louisiana,
but embrace valuable and enforceable standards.
Commission members Loretta C. Argrett, of Silver Spring, Md.,
and Judge James A. Wynn, of the North Carolina Court of Appeals,
both wondered whether the appearance of impropriety language
is too vague to stand on its own.
It is not too vague, Scheckman replied, because "case
after case" has addressed and explained what circumstances
constitute an appearance of impropriety. What you are saying,
Wynn observed, is that if there is vagueness, you look elsewhere
to cure the problem.
Both Scheckman and Marla N. Greenstein, who is secretary of
the AJDC and executive director of Alaska's Commission on
Judicial Conduct, insisted that the appearance of impropriety
standard has independent meaning, and said that it could be
invoked on its own when, for example, a judge:
- conducts a "coin toss" to resolve an issue;
- "polls" the audience for a vote on a case;
- voluntarily sets up a merit hiring plan but then bypasses
it to hire a favored candidate; or
- has an affair with a felon that the judge previously sentenced.
You might not be able to prove an actual impropriety in each
of those cases, Scheckman said, but the public's confidence
has nonetheless been undermined by the appearance of illicit
activity.
'Loosey-Goosey' Phrase
Several panelists, however, seemed skeptical of the validity
of the examples. Peter W. Bowie, a federal bankruptcy judge
from San Diego who is an advisor to the commission, said he
thought that some of these indiscretions are already covered
elsewhere in the code.
Commission member Thomas Fitzpatrick, a Seattle prosecutor
and a member of the ABA Standing Committee on Ethics and Professional
Responsibility, said he was "underwhelmed" by the
cited examples. "If the judge is having an affair with
somebody, so what?" he said.
I know courts are finding violations for appearances of impropriety,
Fitzpatrick added, "but I have a little difficulty with
the proposition that somebody could be subjected to public
scandal and/or discipline for this pretty loosey-goosey term."
'Nightmare to Work With.'
Commission member Donald B. Hilliker, of Chicago's McDermott,
Will & Emery, wanted to hear more about the AJDC's resistance
to any change in the current format of the Model Code. Hilliker
said that the structure reminded him of the old Model Code
of Professional Responsibility with its Ethical Considerations.
"Frankly, I find it hard to follow," Hilliker said.
Harrison went one step further. Speaking from the perspective
of one who occasionally defends judges against charges, he
said of the CJC: "I found it a nightmare to work with
because you've got aspirational stuff mixed in with normative
stuff."
With all due respect, Scheckman responded, those of us who
have spent many years working with this code and the courts
themselves find it a "very workable document." There
is little confusion, he said, given the large body of case
law that defines and explains every canon.
Later in the day, several judges who sit on the California
Judges Association Ethics Committee revisited this point,
contending that the code is workable as is. Justice Thomas
E. Hollenhorst, of the Fourth District Court of Appeal, Riverside,
Cal., referred to Canon 2 as the "great catch-all"
that all judges became familiar with when they went to "judge's
school."
Los Angeles Superior Court Judge Ronni B. MacLaren agreed,
characterizing the appearance of impropriety test as "very
workable."
Starting From Scratch
According to Scheckman, a "wholesale" rewrite will
only make it harder for judges and disciplinary counsel to
do their jobs. "Developing a whole new code," he
said, will force everybody--judges, disciplinary counsel,
and the courts--to start from scratch.
Greenstein also said that even if the ABA agrees to change
the Model Code, which is a body of recommended standards for
state judicial systems, the states themselves may be reluctant
to follow the ABA lead. She noted that Alaska had recently
revisited its rules and, in her opinion, would not likely
take it up again merely because the ABA had decided to reinvent
the Model Code.
That's always the complaint when there's been a significant
change in a substantive area of law, Harrison responded. "I
for one am not very persuaded by the simple fact that it would
be an awkward change for those who are experts in working
with the document." It would be a vast improvement for
those who don't work with the code every day, Harrison added,
"to have a clear explication of the rules they are supposed
to follow and what are the aspirational things that inform
those rules."
'Shove It.'
Margaret Childers, executive director of Alabama's Judicial
Inquiry Commission, encouraged the ABA commission to bear
in mind that Canon 2 is not used primarily as a penal code
but rather as a device to sustain the public's trust and to
encourage judges to do the right thing.
E. Keith Stott Jr., executive director of the Arizona Commission
on Judicial Conduct, picked up on this point, informing the
ABA commissioners that of the 350 complaints his office received
last year only two ended up even being considered for formal
proceedings. "So the rest of the work we do is all aspirational,"
he said, and frequently involves helping and educating judges
by issuing advisory letters.
"Do you think that a judge who receives a reprimand regards
it as aspirational?" asked Harrison. "I've represented
judges who received reprimands and for whom it was devastating."
Circuit Judge Ellen Rosenblum, of Portland, Ore., a commission
advisor, suggested that even an admonition can have significant
repercussions if a judge is seeking reelection.
Wynn returned to the educational aspect of the Code of Judicial
Conduct. "What do you do," he asked, "when
you advise a judge not to do something and the judge says
'shove it'?" In the minor cases, Scheckman said, we would
probably issue a caution letter or even an admonishment. "But
I've never seen anybody just say 'shove it'."
"Except for Alabama!" Wynn joked, apparently referring
to that state's former Chief Justice Roy Moore, who was found
to have acted unethically and removed from office after defying
a federal court order to remove from the state courthouse
a two-ton granite monument listing the Ten Commandments.
Mediation Proposal
Not all the speakers thought that the Model Code should be
left intact. A panel of three federal judges urged the commission
to tweak the code to allow federal judges to perform state
mediation work.
Judge Edward Leavy, of the U.S. Court of Appeals for the Ninth
Circuit, noted that he had been performing mediation services
for some time "in perfect ignorance" of the proscription
against a judge's acting "as an arbitrator or mediator
or otherwise perform[ing] judicial functions in a private
capacity unless expressly authorized by law." The prohibition
appears in Canon 5E of the federal Code of Judicial Conduct
and Canon 4E of the Model Code.
"What evil are we trying to avoid by suggesting we can't
be mediators?" he asked.
Magistrate Judge Wayne Brazil, who sits in the Northern District
of California in Oakland, put it on a more personal level:
"Why is it unethical for me to serve as a mediator in
my kids' school?"
Judge Ann Aiken, also of the Northern District of California,
suggested that it is a matter of modernizing the code. Alternative
dispute resolution was not as prominent a tool as it is now
when the code was last revisited in 1990, she said.
Commission advisor Seth Rosner, of Greenfield Center, N.Y.,
and the commission's Ethics Counsel George Kuhlman--both involved
in the 1990 revisions to the code--agreed that not much time
was spent on this question 15 years ago. ADR really took off
after 1990, Rosner said.
Specific Recommendations
Cynthia Gray, director of the Center for Judicial Ethics,
an organization that acts as a clearinghouse for information
about judicial ethics and discipline, had proposed line-by-line
amendments to the current Model Code and fielded the commissioners'
questions about those recommendations.
Many of the proposals, Gray said, grew out of her study and
collection of judicial ethics advisory opinions from across
the country. Gray's recommendations include the following:
- Define "spouse" in the anti-nepotism provision
in Canon 3C to include "a domestic partner or other
person with whom an individual maintains a shared household
and conjugal relations."
- Require judges to disqualify themselves under Canon 3E
if "within the preceding three years, the judge was
associated in the private practice of law with any law firm
or lawyer currently representing any party in the controversy
or represented any party to the controversy while the judge
was an attorney engaged in the private practice of law."
- Specify in the commentary to Canon 3 that improper bias
includes, but is not limited to, "epithets, slurs,
demeaning nicknames, negative stereotyping, attempted humor
based on stereotypes, threatening, intimidating or hostile
acts, suggesting a connection between race or nationality
and crime, irrelevant references to personal characteristics,
and insensitive statements about crimes against women."
- Clarify in the commentary to Canon 4C that a judge "may
donate to an organization's fund-raising activity and participate
in de minimis fund-raising activities so long as a judge
is careful to avoid using the prestige of the office in
the activity."
The commission's next two hearings are scheduled for May
7, in New York, and June 4, in Naples, Fla.
Appearance of Impropriety Directive
Canon 2 of the ABA Model Code of Judicial Conduct provides:
A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY
IN ALL OF THE JUDGE'S ACTIVITIES
A. A judge shall respect and comply with the law and shall
act at all times in a manner that promotes public confidence
in the integrity and impartiality of the judiciary.
B. A judge shall not allow family, social, political or other
relationships to influence the judge's judicial conduct or
judgment. A judge shall not lend the prestige of judicial
office to advance the private interests of the judge or others;
nor shall a judge convey or permit others to convey the impression
that they are in a special position to influence the judge.
A judge shall not testify voluntarily as a character witness.
C. A judge shall not hold membership in any organization that
practices invidious discrimination on the basis of race, sex,
religion or national origin.
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