- Our legal system is based on the fundamental principle that our courts are an independent branch of government in which fair and competent judges interpret and apply the laws that govern us. The independent role of our judicial system is central to American concept of justice and to our concept of the "rule-of-law". Built-in to the Code of Judicial Conduct are the principles 1. that judges must treat their judicial office as a public trust and 2. that judges must strive to maintain and enhance the public's confidence in our legal system. In his or her role as an adjudicator of the facts and the law, a judge resolves disputes and is a highly visible symbol of government under the rule-of-law.
- The Code of Judicial Conduct establishes the standards of ethical conduct for judges. The Code contains 1. broad statements called Canons, 2. specific rules which are set forth in Sections under each Canon, 3. a Terminology Section, 4. an Application Section, and 5. Commentary. The Canons, the specific rules Sections, the Terminology Section, and the Application Section provide substantive rules for judicial conduct. The Commentary serves to elaborate the standards contained in the rules, to set forth the policy basis for the rules, and, by explanation and example, to provide guidance as to the purpose and meaning of the Canons and the Sections. The Commentary is not intended as a statement of additional rules.
- When the text uses "shall" or "shall not," the Code intends to impose a binding obligation upon a judge. A violation of one of these rules could result in disciplinary action against the judge. When "should" or "should not" is used, the Code intends to provide an advisory statement regarding what is or is not appropriate judicial conduct and not to set forth a binding rule under which a judge may be disciplined. When "may" is used, the Code intends to create an area in which a judge has a permissible freedom of choice or it refers to action that is not specifically covered by the Code. The Canons and the Sections are rules of reason. They should be applied in a manner that is consistent with U.S. and state constitutions, statutory laws, case law, court rules, and within the context of the circumstances of the judge's conduct.
- The Code is to be construed in a manner that does not interfere with the fundamental freedom of a judge to make an independent judicial decision. The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating a judge's conduct through disciplinary action. The Code is not designed to provide a basis for civil liability or criminal prosecution. The function of the Code would be undermined if lawyers raised the issue of filing a complaint against a judge for a potential Code violation to order gain an advantage in a court proceeding.
- The Code is intended to regulate the conduct of judges. The language in the Canons and the Sections form the binding rules by which a judge is to be held accountable for his or her conduct. However, it is not the intent of the Code to discipline every indiscretion of a judge.
- The decision to take disciplinary action, and the degree of the discipline to be imposed on a judge, should be determined through an impartial process that would include a logical application of the Code's text and take into account such factors as the seriousness of the offense, whether there is a pattern of improper activity, and the effect of the improper activity on the public or on the judicial system.
- The Code of Judicial Conduct is not intended to be a comprehensive guide for the conduct of judges. A judge's judicial and personal conduct should also be governed by general ethical standards. The purpose of the Code is to set forth the basic standards that regulate the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.
- Each state has an independent body (in many states that entity is the Supreme Court) with jurisdiction to hear the evidence against a judge and to render a final decision regarding the formal charges of judicial misconduct. For information regarding the judicial disciplinary agency in your state, click here. After hearing the charges against a judge, that state entity has authority to pass judgment on the judge's conduct. The state entity that conducts the trial against a judge may discipline the judge for inappropriate judicial conduct such as willful misconduct in office, willful or persistent failure to perform duties, habitual intemperance, or conduct prejudicial to the administration of justice or conduct unbecoming a judicial officer, whether such conduct occurred in while the judge was acting in his or her official capacity or whether such conduct occurred outside of his or her judicial duties and that conduct brings his or her judicial office into disrepute. Additional grounds for discipline include a judge's conviction of a felony, a judge's repeated failure to abide by the rules of procedure, a judge's willful violation of the Code of Judicial Conduct or the Rules of Professional Conduct, and a judge's violation of any statute or rule prohibiting judges from participating in political activities.
- Also, the state disciplinary body may recommend that your state's independent judging authority order the retirement of a judge who has a permanent disability that seriously interferes with the judge's performance of his or her judicial duties.
- The state disciplinary body does not have authority to consider complaints that are based solely on matters of judicial discretion such as a judge's incorrect ruling or unfavorable decision unless it is essential to the resolution of a complaint of judicial misconduct. The state disciplinary body cannot take action against a judge whose legal rulings were made in good faith. Good faith errors regarding legal or factual matters or how a judge processes a case do not constitute grounds for judicial discipline, even though these actions may constitute reversible error. The state disciplinary body will not interfere with a pending case, unless the complaint is one of delay: the judge has failed to take action in the case. Other complaints will be investigated only when the case is concluded.
- The state disciplinary body cannot change a judicial decision or a judicial finding of fact. A judicial decision can only be reversed by a higher court, or other process as provided by law. The state disciplinary body is not an appellate court and cannot change a judge's ruling. This limitation on the disciplinary body's authority is frequently misunderstood and is one of the primary reasons a complaint against a judge is dismissed. A majority of the complaints filed with state disciplinary body are usually filed by dissatisfied litigants who do not understand that a misconduct complaint is not an alternative for the appeal process and is not the appropriate method to seek a substitute judge. A Plaintiff or Defendant who is dissatisfied with a legal ruling in his or her case should file an appeal with the appropriate appellate court. (In some jurisdictions, small claims cases cannot be appealed.) While the state disciplinary body is committed to prompt action in response to a serious allegation of judicial misconduct, the majority of complaints it does receive do not warrant investigation.
- Your state's disciplinary body can only consider complaints involving a judge's professional or personal conduct. Only ethical misconduct, which generally must occur within a specified period of time, is within the state disciplinary body's jurisdiction to investigate and resolve, including filing appropriate charges against a judge for misconduct. TYPES OF COMPLAINTS THE STATE DISCIPLINARY BODY CAN ADDRESS
- The broadest category of complaints against judges can be classified as "misconduct" complaints. Judicial misconduct has a very specific meaning under the Code of Judicial Conduct. The Code of Judicial Conduct regulates the activities of judges on and off the bench. The Code is a comprehensive statement of what constitutes appropriate judicial behavior and has been adopted by the highest court of each state as part of the Rules of Court. The Cannons provide that:
JUDICIAL MISCONDUCT CAN BE DIVIDED INTO SEVERAL CATEGORIES
- A judge should uphold the integrity and independence of the judiciary.
- A judge should avoid impropriety
- A judge should avoid even the appearance of impropriety in all of his or her activities.
- A judge should perform the duties of his or her office impartially and diligently.
- A judge may engage in activities to improve the law, the legal system, and the administration of justice.
- A judge should regulate his or her extra-judicial activities to minimize the risk of conflict with his or her judicial duties.
- A judge should regularly file a report of compensation he or she received for quasi-judicial and extra-judicial activities.
- A judge should refrain from political activity.
Improper Courtroom Behavior:
- Complaints against judges often allege improper behavior in the courtroom during a trial. Allegations of a judge's failure to maintain proper courtroom decorum and a judge's failure to be patient, dignified and courteous may include: 1. rude, abusive, and improper consideration and treatment of an attorney, a party, a witness, a juror, the court staff, and others at the hearing; 2. improper physical conduct; or 3. persistent failure to dispose of court business promptly and responsibly. Examples of improper courtroom behavior include: 1. racist or sexist comments by a judge, 2. sleeping or 3. drunkenness on the bench. Also, Judges may be disciplined for administrative failures such as taking an excessive amount of time to make a decision.
Improper or Illegal Influence:
- A judge must be independent from any outside influence that may affect his or her ability to be fair and impartial. Consequently, the type of activities in which a judge can participate is restricted. A judge cannot allow family, social or political relationships to influence a judicial decision. Also, a judge should not hear a matter in which the judge has a conflict of interest such as a personal interest in the outcome of the case. A judge must disqualify himself in a proceeding in which his or her impartiality could possibly be cast into doubt. A judge is an officer of the court and is expected to avoid even the appearance of impropriety. Extreme examples of improper influence would include giving or receiving a gift, bribe, loan, or other favor from a lawyer, a party, a witness or any other person. Also, it is inappropriate for a judge to engage in charitable fundraising activities. To help insure judicial independence, judges are generally required to file financial disclosure statements with the court and to file other financial statements with the state ethics commission.
Impropriety Off the Bench:
- A judge is also required to live an exemplary life off the bench. A judge is an officer of the court and is expected to avoid even the appearance of impropriety. Consequently, the state disciplinary body has the authority and the responsibility to monitor a judge's activity outside of the courtroom. Complaints dealing with off the bench conduct include: 1. misappropriation or misuse of public employees, property or funds; 2. improper speech or associations; 3. commenting publicly about a pending matter, 4. interference with a pending or impending lawsuit; 5. lewd or corrupt personal life; or 6. use of his or her judicial position to extort or embezzle funds. Clearly, off the bench conduct includes a wide range of behavior from merely inappropriate actions to criminal violations.
Other Improper Activities:
- A judge is also restricted as to other aspects of his or her position including prohibitions against: 1. engaging in private conversations which may influence his or her judicial actions; 2. conducting proceedings or discussions involving one party to a legal dispute, which are known as ex parte communications; 3. interfering with the attorney-client relationship; 4. displaying obvious bias toward a party; 5. abusing his or her contempt of court power; 6. abusing the prestige of his or her judicial office; 7. obstruction of justice, perjury, or filing a false document; 8. engaging in the practice of law; 9. engaging in political activity; 10. improper campaign activities; and 11. criminal behavior.
Physical or Mental Disability:
- In addition to allegations of misconduct in office, the state disciplinary body also has the authority and responsibility to deal with allegations of a judge's physical and mental disabilities. Disabilities may include: 1. alcohol or drug abuse; 2. senility; 3. serious physical illness; or 4. mental illness. The state disciplinary body can require that a judge submit to a medical examination as part of its investigation and it can also recommend counseling when appropriate. TYPES OF COMPLAINTS THE STATE DISCIPLINARY BODY CANNOT ADDRESS
- Judicial misconduct does not include: 1. a judge's ruling regarding issues of law or on a judge's findings of fact; 2. matters within the discretion of the trial court judge; 3. a judge's ruling on the admissibility of evidence; 4. a judge's ruling on matters of alimony, child support, custody or visitation rights; 5. a sentence imposed by a judge; or 6. matters regarding whether or not to believe a witness.
- Although some states are beginning to open the process of judicial discipline to the public, the fact remains that proving a grievance against a judge is a tough battle. As with all professionals, judges tend protect other judges. Unless a judge has committed a serious breach of the Code of Judicial Conduct, a judge's reputation is likely to be protected. A judge's statement about the facts will generally be deemed to be credible.
- Reform of the disciplinary review system is needed. All states need to open the secret disciplinary process to the public. All review systems need to involve a greater number of non-lawyers in the process. Until there is additional reform in the disciplinary process, the public will probably not be satisfied with the outcome of the disciplinary process. Nevertheless, file a complaint about any unethical conduct by any judge. Even though the current system is inadequate, the judicial disciplinary system does maintain a record of all grievances that are filed. The mere fact that a potential disciplinary action may be filed acts as a deterrent to future misconduct by questionable judges, which benefits the reputable judges and the public as a whole. For information regarding the judicial disciplinary agency in your state, click here.
David E. Danda & Associates, LLC
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