Code of Judicial Conduct
Code of Judicial Conduct
A collection of rules governing the conduct of judges while they serve in their professional capacity.
The Code of Judicial Conduct was formulated by the American Bar Association (ABA) in 1972. The code itself does not have the force of law, but federal and state governments have adopted it and use violations of its rules as the basis for punitive action against judges.
History of the Code
The first rules governing the conduct of judges in the United States were the Canons of Judicial Ethics, which were written in 1924 by an ABA committee chaired by William Howard Taft, then chief justice of the U.S. Supreme Court. Prior to the promulgation of these canons, no cohesive framework existed to inform judges of the ethical obligations of their position. Judges were subject to removal, but only through the cumbersome, politicized procedures of congressional Impeachment, address, or recall.
A judge's leadership as the commissioner of professional Baseball helped provide the inspiration for the Canons of Judicial Ethics. In 1919, eight members of the Chicago White Sox conspired to purposely lose the 1919 World Series in exchange for payments from bookmakers. To restore public faith in the professional baseball league, the owners of the teams, on November 12, 1920, asked prominent federal judge Kenesaw Mountain Landis to be the game's new commissioner. Landis accepted the position, which he subsequently filled while simultaneously serving as a U.S. district court judge in the Northern District of Illinois. Landis helped restore professional baseball's integrity, but his highly publicized role as the sport's commissioner damaged the integrity of the judiciary. The ABA considered his simultaneous service as a federal court judge a conflict of interest, and it voted to censure Landis in 1921. Landis resigned from the bench on March 1, 1922. In 1924, in part as a response to the Landis affair, the ABA promulgated the Canons of Judicial Ethics to regulate the activity of judges.
The Canons of Judicial Ethics were criticized as being too vague to provide guidance in resolving important questions. Even the preamble revealed the canons to be nothing more than an ABA wish list:
The American Bar Association, mindful that the character and conduct of a Judge should never be objects of indifference, and that declared ethical standards tend to become habits of life, deems it desirable to set forth its views respecting those principles which should govern the personal practice of members of the Judiciary in the administration of their office. The Association accordingly adopts the following Canons, the spirit of which it suggests as a proper guide and reminder for judges, and as indicating what the people have a right to expect from them.
A majority of states adopted the canons or wrote their own based on the ABA version. Other states had their supreme courts write advisory opinions informed by the canons. Nevertheless, the canons were roundly criticized as ineffective and were replaced by the ABA in 1972 with the Code of Judicial Conduct.
The Current Code
The preface to the code stands in sharp contrast to the weak preamble of the canons. According to the preface, the Code of Judicial Conduct "states the standards that judges should observe. The canons and text establish mandatory standards unless otherwise indicated. It is hoped that all jurisdictions will adopt this Code and establish effective disciplinary procedures for its enforcement."
The code borrows much from the original canons. However, it is more specific and thus more enforceable. There had been 36 separate original canons, "a curious mixture of generalized, hortatory admonitions and specific rules" (Sutton, 1972 Utah L. Rev. 355, 355–56). The code trimmed the number of canons to seven and supplied each canon with subsections and comments.
In 1990, the code was amended by the ABA. Two canons were deleted, resulting in a total of five canons, and the wording of the remaining canons was changed to achieve gender neutrality. Changes and additions were also made to the subtext and comments accompanying each remaining canon.
A judge shall uphold the integrity and independence of the judiciary.
Canon 1 addresses the need for impartiality in judicial proceedings and the importance of judicial independence. This canon is a catchall; it holds, in part, that judges should "participate in establishing, maintaining and enforcing high standards of conduct" and "personally observe those standards."
A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.
Canon 2 broadly prohibits conduct that would impair, or appear to impair, judicial impartiality. A judge must comply with the law and avoid favoritism and the appearance of favoritism. For example, a judge may not be a member in an organization that invidiously discriminates on the basis of race, sex, religion, or national origin.
A judge shall perform the duties of judicial office impartially and diligently.
Canon 3 contains rules regarding conduct in the judge's official capacity. This canon is the most comprehensive. It addresses the judge's duties in general, public comments, administrative responsibilities, disciplinary responsibilities, and disqualification. Canon 3 also contains a variety of rules designed to eliminate bias and prejudice.
A judge shall so conduct the judge's extrajudicial activities as to minimize the risk of conflict with judicial obligations.
Canon 4 reaches far into the judge's private life. Although the first comment acknowledges that a judge is not expected to live in isolation, comment 2 directs that a judge should refrain from, for example, jokes or remarks that may demean individuals "on the basis of their race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status." The canon prohibits a judge from appearing at a public hearing before, or consulting with, an executive or legislative body or official. An exception is made if the appearance concerns the law, the legal system, the administration of justice, or the judge or the judge's interests.
A judge is prohibited, through this canon, from accepting appointment to a government committee, commission, or position if the committee, commission, or position is concerned with issues other than the improvement of the law, the legal system, or the administration of justice. Exceptions to this prohibition are made for historical, educational, and cultural activities.
This canon also prohibits judges from practicing law (except on the judge's own behalf or to give uncompensated advice), accepting employment or service in organizations that would ordinarily come before the judge, and engaging in business dealings that would be perceived as an exploitation of the judge's position. Financial interests, gifts, and the reporting of financial assets are also covered in Canon 4.
A judge or judicial candidate shall refrain from inappropriate political activity.
Canon 5 prohibits public political activity by a judge. A judge may not, for example, act as a leader or hold an office in a political organization, publicly endorse a political candidate, or make speeches on behalf of a political organization.
Under this canon, a judicial candidate may not promise any judicial conduct except the faithful and impartial performance of official duties. A judicial candidate may not authorize or knowingly permit another person to act in violation of Canon 5, but a judicial candidate may establish a campaign committee to carry out advertising and fund-raising. Canon 5 also identifies which provisions of the code do not apply to retired, part-time, and temporary judges.
Each state has crafted its own interpretation of Canon 5 and the boundaries of political campaigns for judgeships. Some states are looser than others in terms of what a candidate may say or whether a political party may endorse a candidate. In many states judicial elections have been nonpartisan and lackluster, as candidates cannot disclose their political or legal view without risk of being disciplined under the professional conduct rules for attorneys.
Minnesota's restrictions on political speech for judicial candidates triggered a lawsuit that led to a landmark Supreme Court decision in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002). A lawyer sought to run for the Minnesota Supreme Court but objected to Canon 5 restrictions. The Minnesota Republican Party sued in federal court to remove Minnesota's restrictions on speech and party endorsements in judicial elections. The district court and the circuit court of appeals rejected the claims, finding that the state had good reasons for regulating judicial elections.
The U.S. Supreme Court, however, overturned the restrictions on what a candidate can say in a campaign. The Court found that Cannon 5 announce clauses, which prohibit candidates from discussing their views on legal and political views, were unconstitutional under the First Amendment. Such restrictions are illegal because they regulate speech based on content and burden an important category of speech.
The Court applied the Strict Scrutiny test to review the Minnesota rules. Under this test the state needed to show that its rules were narrowly tailored to serve a compelling state interest. Minnesota argued that promoting impartial judicial elections was a compelling State Interest but the Court rejected the argument, finding the interest to be vague and hard to define. The Court recognized that unrestricted speech might change the tenor of judicial elections, but it found that this was the price the state must pay if it was to select judges by election rather than by some other method, such as judicial selection. In the wake of this decision a number of states began the process of revising their judicial codes to change election rules.
Enforcement of the Code
Forty-seven states and the District of Columbia have adopted the code in whole or in part. Montana, Rhode Island, and Wisconsin have not adopted it, but each has fashioned its own set of regulations based largely on the code. The Judicial Conference of the United States adopted the Code of Judicial Conduct in 1973, thus subjecting federal judges to its rules.
In 1980, Congress enacted the Judicial Councils Reform and Judicial Conduct and Disability Act (28 U.S.C.A. §§ 331, 332, 372, 604 ). This act authorized each of the 13 federal circuits to establish a judicial council to review complaints against federal judges. The judicial council, comprising judges, was also authorized to order sanctions for violations of the Code of Judicial Conduct.
When the judicial council of a federal circuit receives a complaint of judicial misconduct, the chief judge of the circuit court of appeals conducts an initial review of the complaint. The chief judge may dismiss the complaint as baseless. If the chief judge finds that the complaint has merit, she or he assembles a special committee, which makes findings and refers the complaint to the entire judicial council. If the council finds that the judge in question has violated the Code of Judicial Conduct, it may suspend the judge from office, or it may publicly or privately reprimand the judge.
The aggrieved judge may appeal the judicial council's order to a review committee known as the U.S. Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders. The decision of this committee is final and may not be appealed. Every state maintains a similar process to govern its state court judges.
A federal circuit judicial council may not remove a judge on its own. If removal is considered by the judicial council, the matter is referred to the Judicial Conference of the U.S. Courts. If the Judicial Conference finds cause for removal, it refers the matter to the U.S. House of Representatives, which holds hearings on the proposed removal.
Enforcement of the Code of Judicial Conduct is considered a matter of public concern. In In re Complaints of Judicial Misconduct, 9 F.3d 1562 (U.S. Jud. Conf. 1993), the U.S. Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders held that a proceeding on a complaint of judicial miscon-duct or disability need not satisfy the standing requirements necessary in most judicial proceedings. (Standing is the doctrine that the person seeking relief of the court must be the person aggrieved by the alleged conduct.) Essentially, the committee's holding meant that any person may lodge a complaint of judicial misconduct against a judge, with the appropriate Judicial Review council.
Baker, Thomas E. 1989. The Good Judge: Report of the Twentieth Century Fund Task Force on Federal Judicial Responsibility. New York: Twentieth Century Fund Press, Priority Press.
Baran, Jan Witold. 2002. "Judicial Candidate Speech After Republican Party of Minnesota v. White." Court Review (spring).
Martineau, Robert J. 1972. "Enforcement of the Code of Judicial Conduct." Utah Law Review 1972.
Morgan, Thomas D., and Ronald D. Rotunda. 1993. 1993 Selected Standards on Professional Responsibility. West-bury, N.Y.: Foundation Press.
Shaman, Jeffrey M., Steven Lubet, and James J. Alfini. 1994. Judicial Conduct and Ethics. 1994 cum. supp. Charlottesville, Va.: Michie.
——. 1990. Judicial Conduct and Ethics. Charlottesville, Va.: Michie.