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ABA Commission Releases Proposals to Revise Model Judicial Code
to Guide Judges' Conduct, Assure Public Accountability
CHICAGO, Oct. 31, 2006 — An American Bar Association commission today released its final proposal to revise the ABA Model Code of Judicial Conduct, addressing a host of issues relating to propriety in judicial conduct, among them increasing pressure on judges and judicial candidates to state positions on political issues and limits on judges accepting gifts, including free attendance at seminars.
The proposals are intended to provide clear guidance for judges regarding their professional and personal conduct and to assure the public that effective standards exist to regulate that conduct. They will be presented to the ABA House of Delegates for consideration in February, but do not constitute association policy unless and until they are approved.
“An independent judiciary is indispensable to our system of justice. The American legal system is based on the principle that an independent, impartial and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus the judiciary plays a central role in preserving the American principles of justice and the rule of law,” according to the preamble to the proposed new code.
"Underlying every proposed rule in this code is the precept that judges, individually and collectively, can preserve public trust and confidence in the legal system only if they adhere to what the commission calls ‘the three I’s’: independence, integrity and impartiality," said Mark I. Harrison of Phoenix, chair of the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct, which spent three years developing the proposals.
"The revision provides guidance in a climate of social changes about how we select judges, how courts function to help communities solve problems like drug abuse and domestic violence, and our expectations of how judges must preserve the independence, impartiality and integrity of the bench," said Harrison. The proposed code and informational resources are available in an online media kit, http://www.abavideonews.org/ABA401/index.php.
A key feature of the proposed revision is the introduction of explicit rules as benchmarks for conduct, in place of general statements either admonishing against forms of misconduct or exhorting judges to behave in certain ways. The revision presents four canons, revised and consolidated from five canons in the current Code. Rules are enumerated under each canon, and commentary adds explanation, interpretation and aspirational goals.
Regarding political activity, Canon 4 addresses the growing pressure on judges to express their views on political issues, coming in part from recent court rulings easing previous restrictions and in part from a growing practice of special interest groups asking judicial candidates to respond to questionnaires. The proposed revision attempts to set limits on such statements that balance the requirements of court decisions with the goal of maintaining a judiciary that is independent and impartial and is perceived as such by the public.
Canons 2 and 4 prohibit judges and judicial candidates from making pledges, promises or commitments regarding cases, controversies or issues likely to come before them that would be inconsistent with impartial performance of adjudicative duties of judicial office.
"The role of a judge is different from that of a legislator or executive branch official, even when the judge is subject to public election," and the proposed restrictions on campaign speech are "narrowly drafted" to provide voters with sufficient information to distinguish between candidates, according to commentary to Canon 4. It distinguishes the prohibited pledges, promises or commitments from permissible statements or announcements of personal views on legal, political or other issues, but requires judges or candidates making such statements or announcements to acknowledge their obligation to apply and uphold the law without regard to their personal views.
The commentary states responses to questionnaires might be viewed as pledges, promises or commitments to perform judicial duties other than in an impartial way, depending on the wording and format of the questionnaire. The commentary counsels a judge or judicial candidate to examine the circumstances in which a statement is made to determine if a reasonable person would believe the judge has undertaken to reach a particular result, and urges candidates responding to queries to give assurances they will keep an open mind and adjudicate impartially if elected.
Canon 4 identifies conduct permitted for judicial election candidates, during the year leading up to the election, which is otherwise generally prohibited for judges. It includes seeking, accepting or using endorsements from individuals or organizations, other than partisan political organizations, buying tickets for events sponsored by political organizations or contributing to political organizations. It also allows candidates for appointment to judicial office to seek endorsements and communicate directly with appointing authorities. A new rule makes judicial election candidates responsible for activities by campaign committees, and suggests regulations with which judges must have their committees comply.
Rules under Canon 3 list gift items judges may accept without reporting them, such as plaques or other items with little intrinsic value, or things of value that are given by persons with such close personal relationships to the judge that the judge would be barred from ruling in any case involving them. Other such items include ordinary social hospitality, books and other resources materials, and opportunities or benefits available to others on the same terms, such as loans, prizes or scholarships. Additional rules enumerate other types of items that judges may accept but must publicly report, such as free attendance at bar-related functions or events associated with charitable activities of the judge.
Other rules state judges may accept but must report reimbursement for necessary and reasonable expenses for the judge and a spouse, domestic partner or guest for travel, food, lodging or other incidentals, or waiver of all or part of fees, tuition or other expenses for events such as meetings, seminars, symposia and dinners, unless acceptance is otherwise prohibited by law. Commentary suggests judges must assure themselves that accepting reimbursements or waivers "would not appear to a reasonable person to undermine the judge’s independence, integrity or impartiality," and lists factors judges should consider in deciding whether to accept them. The rules would require public reports of compensation judges receive for extra-judicial activities permitted under the canon, gifts and other things of value exceeding dollar limits to be determined by each jurisdiction, and reimbursements exceeding dollar limits to be determined by each jurisdiction. While most reporting would be annual, reports of reimbursements or waivers of fees would be required within 30 days after the event.
Canon 3 would prohibit judicial membership in any organization practicing invidious discrimination based on race, sex, gender, religion, national origin, ethnicity or sexual orientation. The comment describes as complex the question of whether an organization practices invidious discrimination, including such factors as whether it is dedicated to preserving religious, ethnic or cultural values of legitimate common interest to members or is an intimate, purely private organization with membership limitations that cannot be constitutionally prohibited.
The application section of the code notes the creation in many jurisdictions in recent years of "'problem solving' courts, in which judges are authorized by court rules to act in non-traditional ways.” Judges in such courts would be required to comply with the code except to the extent local rules permit otherwise.
Canon 1 admonishes judges to uphold and promote independence, integrity and impartiality of the judiciary and avoid impropriety and the appearance of impropriety. Rules admonish judges to comply with the law, act at all times in a manner that promotes public confidence in judicial independence, integrity and impartiality, and not abuse their office to advance personal or economic interests of themselves of others.
Canon 2 addresses performance of judicial duties, with rules stating that those duties take precedence over all other activities, requiring judges to uphold and apply the law and perform their duties fairly and impartially. The rules prohibit bias, prejudice or harassment, state that judges shall not be swayed by partisan interests, public clamor or fear of criticism, and bar influence from family, social, political, financial or other relationships.
A new provision allows ex parte communication when otherwise permitted by law, and commentary notes laws may expressly permit judges to assume a more interactive role with parties, treatment providers, probation officers, social workers and others in therapeutic or problem-solving courts. An expanded disqualification rule requires judges to withdraw from a case when impartiality might reasonably be questioned due to personal bias, prejudice, or personal or financial relationships, when required by local rules addressing campaign contributions, or when they have personal knowledge about the case.
New provisions provide for prophylactic intervention as an alternative to discipline in situations of judicial impairment due to alcohol or substance abuse, but require judges who know of other judges violating the code to inform authorities. A judge who does not know for certain, but believes there is a substantial likelihood that another judge has committed a violation, would be required to “take appropriate action.”
The code also includes a preamble, a section on scope, applications provisions and a terminology section.
Many other revisions are proposed as clarification or updating, with no intent to change the substance of the existing code. The complete document is accessible on the ABA Web site at http://www.abanet.org/judicialethics/commissionreport.html.
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