ABA's Judicial Conduct Proposals Draw Fire
Up for Revision: Rules for Elections, Gifts
 

By Leonard Post
The National Law Journal
February 24, 2005

A controversial draft revision of the model code of conduct for judges is drawing sharp reaction from the nation's legal community -- both negative and positive.

The American Bar Association's proposed revisions, among other things, would tighten the rules for self-disqualification and introduce a quarterly reporting requirement for gifts, compensation and reimbursements.

The judicial election canons, which were recently posted without commentary, reflect the ABA's struggle to balance judges' First Amendment rights with judicial independence and impartiality.

Much of the criticism thus far focuses on language, which critics charge weakens the code by making it less aspirational than its predecessor.

For example, the ABA's Commission to Evaluate the Model Code of Judicial Conduct has deleted "[a judge] shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." That text was the crux of Canon 2A, which established the concept of avoiding the appearance of impropriety.

During informal discussions at the recent midyear meeting of the Conference of Chief Justices in New York, several state chief justices asserted that having a duty to "avoid the appearance of impropriety" gives the public confidence in the independence of the judiciary. It also gives judges a straightforward way to gauge their conduct, they said.

The code serves two equally important purposes, said South Carolina Chief Justice Jean Hoefer Toal. In addition to setting the requirement for how judges should function -- a structure for imposing discipline -- it serves "as a guide to how judges should conduct themselves," she said. "No judge wants to inch up to the brink of the line [that delineates appropriate and inappropriate conduct], and the rubric of appearance of impropriety does that for them."

THE DANGER OF ASPIRATIONS

But lawyers who defend judges in disciplinary hearings say aspirations do not belong in the model code because they don't give judges adequate notice of prohibited conduct. And they say these vague standards give judicial ethics prosecutors too much discretion, which could expose judges to politically inspired prosecutions.

"[Appearance of impropriety] is too vague to serve as the basis for imposing discipline, said Ronald Minkoff of New York's Frankfurt Kurnit Klein & Selz. Minkoff is president-elect of the 300-member Association of Professional Responsibility Lawyers. "It's imprecise and as a result it's not clear how it will be applied by any given disciplinary authority in any given situation."

Not so, said Robert H. Tembeckjian, administrator and counsel of the New York State Commission on Judicial Conduct and an adviser to the ABA commission.

"Appearance of impropriety is significant and enforceable," he told the chief justices when he addressed them in New York. "There is a misunderstanding of what it is and how it is applied," Tembeckjian said. "They are not entrapment rules, but ethical guidelines that promote impartiality so that the integrity of our system is beyond debate."

The chair of the ABA's judicial conduct commission, Mark I. Harrison of Osborn Maledon in Phoenix, doesn't underestimate the challenge of resolving this dispute. "It's a huge question; we have our work cut out for us," he said.

Except for Montana, all the states, the District of Columbia and the Judicial Conference of the United States have adopted judicial codes based on the 1972 or the 1990 ABA model codes, according to statistics provided by the American Judicature Society's Center for Judicial Ethics at Drake University in Des Moines, Iowa.

A "final" draft of the model rules, due in May, will most likely reflect some of the criticism the ABA has invited, and will be subject to debate, amendment and ratification by the organization's House of Delegates when it meets in August in Chicago.

At the August meeting, "[w]e expect to hear comment that we haven't yet heard, from constituencies that we haven't heard from yet," said Harrison, who anticipates that the code will get sent back to the commission for further refinement. He is hopeful that the model code will be adopted at the ABA's midyear meeting, about a year away.

NOTABLE REVISIONS

Some notable proposed canon revisions, many of which have drawn written criticism -- both negative and positive -- are:

•• 1.01: "Conduct in General" would limit prohibited conduct to only that "embodied in these rules." Critics point to this change as a further erosion of the code's former aspirational goals.
•• 2.04: "A judge shall apply the law without regard to the judge's personal views." Implicit in earlier model codes, it would become explicit.

•• 2.08: A prohibition against coercing settlement would be added to the commentary.

•• 2.12: A duty of self-disqualification would be added for a judge who, when serving in government employment, "participated as lawyer, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of a particular case."

•• 2.19: A new duty would be added for a judge who knows that a colleague's or a lawyer's performance is impaired by "drugs, alcohol, or other mental or physical condition" to take appropriate action, which is not defined in the rule. The commentary says that in some situations, a referral to a relevant assistance program may not be enough.

•• 3.03: Would add "ethnicity, or sexual orientation" to forbidden invidious discrimination. A judge has an affirmative duty to not join -- or to resign if a member -- from an organization that practices invidious discrimination, although a judge may still belong to "an organization dedicated to the preservation of religious, ethnic or legitimate cultural values of common interest to its members."

•• 4.14, 4.15: Educational junkets would be fine as long as they don't "cast reasonable doubt on the judge's capacity to act with impartiality, integrity or independence." New quarterly reporting requirements of gifts, compensation and reimbursements would be mandated, which should be Web-posted when possible.

Titles and commentary have in the past not been considered part of the rules, said Tembeckjian. He noted that New York did not adopt the ABA commentary to accompany its state's rules. But Harrison asserted that it's still an open question in the new code.

The American Judicature Society's Center for Judicial Ethics, which aims to improve judicial independence, conduct and ethics, has filed extensive comments to the drafts of canons 1 through 4.

An AJS official expressed disappointment at the proposed dilution of the "appearance of impropriety" standard. Center director Cynthia Gray noted that courts have upheld the constitutionality of the standard and have not complained of prosecutors abusing it.

AJS, which serves as a national clearinghouse for information on judicial ethics and discipline, observed in its written comments that specific conduct is alleged nearly every time -- "99.99 percent of the time," said Gray from her Chicago office. "We are hopeful that the [Canon 2A] language will be restored once the commission considers the comments that they invited."

Some of the other revisions with which AJS takes issue are:

•• Allowing judges to use judicial letterhead in their personal business except when used "to gain an advantage." It "creates at least the appearance of an attempt to gain advantage," the center said in its written comments. "The prestige of office unfortunately gets misused a lot," said Gray.

•• Allowing judges to accept an invitation without charge to a "widely attended event" so that judges can afford to go to the community event and won't be isolated. AJS wrote that "[i]f judges cannot afford to attend the events, then the vast majority of the public they serve will also be unable to attend as well."

•• Allowing judges to have ex parte communication with independent experts regarding a pending case.

For those who worry about vagueness, AJS proposes additional specific provisions such as: a duty to cooperate with disciplinary authorities; forbidding the use of court resources for personal business; adding language that a judge shall not conduct him or herself in a manner that "reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge"; forbidding retaliation against someone suspected of assisting with an investigation of a judge; and forbidding sexual harassment. "There's been so many cases of sexual harassment around the country," said Gray. "Inappropriate touching, inappropriate conversation."

POLITICAL ACTIVITY

Canon 5 -- political activity -- is thus far posted without commentary, which Harrison expects will be added in March.

Some of the proposed revisions are:

•• Old Rule 5A (3) would be changed from a rule to part of the title to Canon 5. That rule reads: A "candidate for judicial office shall maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary."

•• 5.01: If not currently a candidate, a judge would be precluded from purchasing tickets for dinners or events sponsored by a political party or those of a candidate for public office.

But such purchases would be permitted by a candidate in a partisan election in a window that opens near the time of the partisan judicial election.

•• 5.03: The draft expressly still allows a candidate in a partisan election to "publicly identify himself or herself as a member or candidate of a political organization."

Whether a candidate in a nonpartisan election may identify him or herself as a member of a political party is not explicitly addressed, but a candidate in a nonpartisan election is still prohibited in 5.04 (a) from "directly or indirectly: (1) publicly speak[ing] in support of or against a political organization," and now would additionally be prohibited from "(2) attend[ing] meetings or other events sponsored by a political organization or a candidate for public office."
Georgetown University Law Center Professor Roy A. Schotland fears that the ABA's failure to address issues in Canon 5 that are currently under constitutional attack may severely dilute the commission's efforts.

"I certainly support where they are trying to go," said Schotland. "But you can't help questioning how much Canon 5 will really matter."

He cited three reasons:

•• "To a dramatic and disturbing extent, it isn't the candidates, it is outside groups who are so damaging the judicial election scene."

•• "We always had candidates taking all kinds of disturbing public positions and we've had very little enforcement -- the rules won't change that."

•• "Right now we have pending litigation in the 8th Circuit, which is considering the constitutionality of Minnesota's limits on partisan activities by judicial candidates, such as the prohibition on judicial candidates' personal solicitation of campaign contributions, which could throw much of Canon 5 out the window."

He added that cases pending in Alaska, Indiana, Kentucky and North Dakota attack the constitutionality of 5.02 (d), which prohibits judges from making pledges or promises "that are inconsistent with the impartial performance of the adjudicative duties of the office."

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