Next Stop, House of Delegates
After 41 months, dozens of meetings and teleconferences, nine public hearings and three rough drafts, the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct is ready to put its work product to the test.
The commission’s recommendations—which constitute the most sweeping effort to revise the code since 1990—are slated to be considered by the ABA House of Delegates in February during the 2007 midyear meeting in Miami.
Commission chair Mark I. Harrison says the recommendations would improve the existing Model Code of Judicial Conduct, which is widely followed by the states, in several ways. (At the federal level, the Code of Conduct for United States Judges applies.)
As revised, the code “is a lot more user friendly,” says Harrison, a partner at Osborn Maledon in Phoenix. “It’s organized more logically. It tries to address more clearly and constructively issues of particular concern to judges, and it addresses issues that are not addressed by the present code,” such as how to handle impaired lawyers and judges, and ways to deal with pro se litigants.
Harrison, who calls himself an eternal optimist, says he’s expecting mostly smooth sailing for the commission’s proposals in the House. The vast majority of the proposed changes are structural in nature. And only a handful of the proposed substantive changes might be described as controversial.
But Harrison also is a realist who spent 22 years in the House. Four hours of the House calendar in Miami have tentatively been allocated to the code revisions, and a lot can happen in that amount of time.
The commission is proposing to change the existing format of the Model Code. The existing code contains five broad canons followed by more specific guidelines. The commission is recommending that the number of canons be reduced to four, with each supported by a series of black-letter rules of conduct.
This structure would follow the format of the ABA Model Rules of Professional Conduct, which serve as the basis for most state ethics codes for lawyers. The change in format also is intended to more clearly spell out what a judge can and cannot do.
The proposed format change in the code isn’t expected to trigger major opposition in the House. If there is any significant debate, it could focus on one or more of the following issues:
• The appearance of impropriety. Canon 2 in the current version of the model judicial code states that “a judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” Early on in its deliberations, the commission decided to retain the appearance-of-impropriety standard despite objections from some experts, who contend that the term is vague, unenforceable and subject to potential abuse. They also point out that the term was dropped completely from the current version of the Model Rules.
Others argue that the standard should remain in the code because judges should be held to a higher standard of conduct than lawyers as a way of building public confidence in the integrity of the judicial system. They also note that enforcement of the standard never has been cause for undue concern.
The commission tried to bridge that divide by referring to the appearance-of-impropriety standard only in Canon 1 and by making its enforcement contingent on violations of at least one of the black-letter rules that now would be contained in the code. But as of late December, the issue was still unresolved.
In a Dec. 5 letter to the commission, National Organization of Bar Counsel President Nancy L. Cohen of Denver reiterated that group’s position that the standard alone should remain a basis for disciplinary action against judges. Barring that, she wrote, the commission should add a black-letter rule that explicitly incorporates the appearance-of-impropriety standard into the code.
Meanwhile, the ABA Standing Committee on Ethics and Professional Responsibility stood firm in its contention that the standard—alone or in conjunction with any other rule—should never be a basis for disciplinary action against judges, says committee chair Steven C. Krane of New York City. (The commission has worked under the joint auspices of the ethics committee and the Standing Committee on Judicial Independence.)
• Campaign activities. From the start, the commission has tried to strike a balance between the public’s right to know the general views of candidates for judicial office with a state’s interest in prohibiting judicial candidates from promising certain outcomes in cases. But finding the right balance hasn’t been easy.
The commission is proposing that the code prohibit all candidates from making “pledges, promises or commitments” in connection with matters likely to come before them if such assurances are “inconsistent with the impartial performance of the adjudicative duties” of judges. The commission also is recommending that judicial candidates be prohibited from personally soliciting campaign contributions, and that judicial candidates in nonpartisan elections be barred from identifying themselves by their political affiliations and from seeking or accepting endorsements from political organizations.
Some commentators and witnesses at hearings have contended, however, that the commission’s position is at odds with developing case law in the federal courts.
Terre Haute, Ind., lawyer James Bopp Jr. says the commission doesn’t seem to have gotten the message that the federal courts, from the U.S. Supreme Court on down, have been sending with respect to state regulation of judicial elections.
He was the lead lawyer for the winning side in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), in which the high court struck down a state regulation that barred judicial candidates from announcing their views on disputed legal or political issues. Since then, he says, the courts have declared unconstitutional at least a dozen different state regulations governing judicial campaigns.
“In terms of judicial speech codes, the commission seems to have its head stuck in the sand,” Bopp says. “Evidently, they’ve chosen defiance over compliance” with the law.
But Harrison says Bopp and others who share his views care more about making judges ideologically accountable than they do about free speech. And Harrison says the commission doesn’t want to politicize the judiciary any more than necessary.
• Membership in organizations. In its current form, the model judicial code bars judges from belonging to organizations that discriminate on the basis of race, sex, religion or national origin. The commission proposes that gender, ethnicity and sexual orientation be added to that list.
Early on, the proposal to prohibit judges from being members of organizations that discriminate on the basis of sexual orientation didn’t go over well with certain religious and traditional-values groups, such as the Boy Scouts of America, whose constitutional right to exclude gays was upheld by the Supreme Court in Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
The commission has tried to placate such groups by adding comments to the code that make it clear the prohibition wouldn’t apply to religious organizations or groups “whose membership limitations could not constitutionally be prohibited.”
• Travel reimbursements. The commission decided not to bar judges from being reimbursed for travel expenses associated with attendance at privately funded seminars and other permissible extrajudicial activities. The commission preferred instead to recommend limiting the amount of reimbursement to “necessary and reasonable” expenses for travel, food and lodging.
The commission’s proposed rule also would instruct judges to weigh a range of factors before deciding whether to attend such a function, and it would impose disclosure requirements on judges who attend these programs.
Douglas Kendall is executive director of the Community Rights Counsel, a public interest law firm in Washington, D.C., that wanted the commission to adopt a bright-line limit of $500 on the value of a judge’s reimbursable travel-related expenses. Kendall calls the commission’s recommendations a step in the right direction.
But, Kendall says, the proposed disclosure and reporting requirements don’t address concerns that corporations and special interest groups often use such programs to lobby judges who may hear cases in which they are parties.
Harrison says the commission has gone as far as it felt it could go on the matter without being “completely paternalistic and presumptuous” about what programs a judge should be allowed to attend. He also says the commission’s proposed disclosure and reporting requirements should give the public all the information it needs to assess whether a judge has done something that raises concerns about his or her impartiality.
And finally, there is a possibility that even the title of the code—“ABA Model Rules of Judicial Conduct” or “ABA Model Code of Judicial Conduct 2007”—could be debated in the House of Delegates.
The House is tentatively set to begin debate on the model judicial code at 2:30 p.m. on Feb. 12. But delegates may want to keep their dinner plans flexible.