Monthly Archives: November 2014

Pro se litigants in the code of judicial conduct

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In its 2007 revisions to the Model Code of Judicial Conduct, the American Bar Association added a new comment that explains, “It is not a violation of [Rule 2.2] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.” Rule 2.2 provides that “a judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”

The fall issue of the Judicial Conduct Reporter, a quarterly publication of the Center for Judicial Ethics, will have an article on the adoption and modification of that comment. 14 jurisdictions have adopted the language of the comment exactly or with only minor variations; 14 jurisdictions have revised and/or expanded the model provision.

In 2012, in a joint resolution, the Conference of Chief Justices and the Conference of State Court Administrators supported adding a provision regarding self-represented litigants to the text of the rule (not just a comment) and affirmatively stating a judge’s ability to accommodate self-represented litigants (rather than use the “it is not a violation” formulation of the model code). The version proposed by the resolution is: “A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.” The resolution also suggested that “states modify the comments to Rule 2.2 to reflect local rules and practices regarding specific actions judges can take to exercise their discretion in cases involving self-represented litigants.” The joint resolution explained its impetus was “the importance of access to justice for all,” emphasizing that “access to courts extends both to lawyer-represented and self-represented litigants.”

So far, at least 9 states and D.C. have anticipated or followed those suggestions in whole or in part, including 6 that have listed examples of reasonable accommodations judges may make in cases involving self-represented litigants. For example, in July of this year, the Wisconsin Supreme Court added that rule to the text of its code and published a new comment that provides:

A judge may exercise discretion consistent with the law and court rules to help ensure that all litigants are fairly heard. A judge’s responsibility to promote access to justice, combined with the growth in litigation involving self-represented litigants, may warrant more frequent exercise of such discretion using techniques that enhance the process of reaching a fair determination in the case. Although the appropriate scope of such discretion and how it is exercised will vary with the circumstances of each case, a judge’s exercise of such discretion will not generally raise a reasonable question about the judge’s impartiality. Reasonable steps that a judge may take in the exercise of such discretion include, but are not limited to, the following: 1. Construe pleadings to facilitate consideration of the issues raised. 2. Provide information or explanation about the proceedings. 3. Explain legal concepts in everyday language. 4. Ask neutral questions to elicit or clarify information. 5. Modify the traditional order of taking evidence. 6. Permit narrative testimony. 7. Allow litigants to adopt their pleadings as their sworn testimony. 8. Refer litigants to any resources available to assist in the preparation of the case or enforcement and compliance with any order. 9. Inform litigants what will be happening next in the case and what is expected of them.

(The Court stated the comment “may be consulted for guidance in interpreting and applying the rule” but, curiously, only published it without adopting it. The distinction is not clear but may be based on concerns expressed by a concurring justice that the changes may raise expectations about steps judges will take and may have economic consequences for the legal profession. The Court ordered that the impact of the rule be evaluated in three years.)

The fall issue of the Judicial Conduct Reporter will be published in the next few weeks. For information about a subscription, contact cgray@ncsc.org.

Starting next week on the blog:  The top judicial ethics stories of 2014

Disqualification reform

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Last week, the New York University Journal of Legislation and Public Policy, the Brennan Center for Justice, and the American Bar Association’s Center for Professional Responsibility jointly hosted a symposium entitled “Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton.”  There were many interesting discussions about the disqualification challenges facing state courts following not only Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), but alsoCitizens United v. FEC, 558 U.S. 310 (2010).

However, there was little discussion about what reforms states have recently undertaken to their disqualification procedures and standards.

As several speakers mentioned, in August 2014, the American Bar Association House of Delegates did adopt a resolution urging states to adopt judicial disqualification and recusal procedures that “(1) take into account the fact that certain campaign expenditures and contributions, including independent expenditures, made during judicial elections raise concerns about possible effects on judicial impartiality and independence; (2) are transparent; (3) provide for the timely resolution of disqualification and recusal motions; and (4) include a mechanism for the timely review of denials to disqualify or recuse that is independent of the subject judge” and “to provide guidance and training to judges in deciding disqualification/recusal motions.”

The Conference of Chief Justices supported the resolution.

The Center for Judicial Ethics has been keeping track of code and rule revisions related to judicial disqualification based on campaign contributions in a document currently kept on the “learn more about judicial ethics” page of www.ajs.org (but soon to move to the http://www.ncsc.org). It notes that five states have adopted disqualification rules for campaign contributions based on a specific amount or percentage, while 10 state supreme courts have adopted new disqualification rules that do not have specific triggers, but that expressly or impliedly incorporate the decision in Caperton, often by listing factors a judge should consider when faced with a disqualification question based on campaign contributions. For example, it notes that, effective July 1, 2014, the Pennsylvania Supreme Court adopted a new code that includes a Rule 2.11A(4) requiring disqualification when:

The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer.  In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial. There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution . . . is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.

The Center will continue to follow state reforms, both on disqualification standards and procedures in general and on rules related to campaign contributions specifically.  Follow this blog to keep up to date.

Misleading and chilling

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The line between prohibited and protected speech for judicial candidates was changed recently in at least two states.

The Ohio Supreme Court held unconstitutional a provision in the state’s code of judicial conduct that prohibited candidates from making true statements “that would be deceiving or misleading to a reasonable person.” The Court held the clause “chills the exercise of legitimate First Amendment rights,” noting it “does not leave room for innocent misstatements or for honest, truthful statements made in good faith but that could deceive some listeners.” However, it upheld the portion of the rule prohibiting a candidate from conveying information “either knowing the information to be false or with a reckless disregard of whether or not it was false.” The Court noted “the public interest is served not only by ensuring that Ohio’s judges are trustworthy, but also by promoting a collective public awareness of that trustworthiness” and “there is every reason to expect and insist that candidates will be truthful in their campaign speech when they are seeking a judicial position.”

A federal district court held unconstitutional a clause in Kentucky’s code prohibiting misleading statements, concluding “the remedy for misleading speech is more speech, not less,” and noting “whether a statement is misleading is in the eyes of the beholder.” Winter v. Wolnitzek, Memorandum opinion and order (U.S. District Court for the Eastern District of Kentucky October 29, 2014). The risk of chill from vague restrictions, the federal court stated, is likely greater for judicial candidates who, because they “are trying to convince voters of their worthiness to pass judgment and impose punishment on others, might be especially reticent to test the validity of a provision if their actions might label them a law-breaker.”

See also Butler v. Alabama Judicial Inquiry Commission, 802 So. 2d 207 (Alabama 2001) (holding unconstitutional a prohibition on “true information about a judicial candidate or an opponent that would be deceiving or misleading to a reasonable person”); Weaver v. Bonner, 309 F.3d 1312 (11th Circuit 2002) (holding unconstitutional a prohibition on “communication which the candidate knows or reasonably should know is false, fraudulent, misleading, deceptive, or which contains a material misrepresentation of fact or law or omits a fact necessary to make the communication considered as a whole not materially misleading or which is likely to create an unjustified expectation about results the candidate can achieve”); In re Chmura, 608 N.W.2d 31 (Michigan 2000) (holding unconstitutional a prohibition on communications that are false, fraudulent, misleading, or deceptive; that contain a material misrepresentation of fact or law; that omit a fact “necessary to make the statement considered as a whole not materially misleading;” or that “likely create an unjustified expectation about the results a candidate can achieve”).

Rule 4.1A(11) of the current American Bar Association Model Code of Judicial Conduct provides that a judicial candidate “shall not knowingly, or with reckless disregard for the truth, make any false or misleading statement,” and at least 19 states prohibit misleading as well as false information. In addition to a general prohibition, both the Arizona code of judicial conduct and Ohio code prohibit specific types of misrepresentations. For example, both codes give examples of language that is prohibited because it suggests the candidate is the incumbent if, in fact, the candidate is not (the misrepresentation that has led most frequently to discipline). Both also, for example, prohibit a candidate from “falsely identify[ing] the source of a statement, issu[ing] statements under the name of another person without authorization, or falsely stat[ing] the endorsement of or opposition to a judicial candidate by a person, organization, political party, or publication.”

Quotable quote

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Rejecting a judge’s argument that, in family court cases, “blunt and evocative language is sometimes necessary to compel litigants to gain awareness of their circumstances, the harm that they are causing their children, and the importance of respect and cooperation,” the California Commission on Judicial Performance stated: “Referring to litigants as ‘rotten,’ ‘stupid and thuggish,’ and a ‘total human disaster,’ and telling litigants their child ‘might as well start walking the streets as a hooker,’ is the antithesis of imparting the importance of respect.”

Too little, too late

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Each year, 10-12 judges are removed as a result of state discipline proceedings for a wide variety of reasons. But one aggravating factor present in many of the cases is a lack of candor and contrition, whatever the underlying misconduct may be. In the latest example, last week, the Florida Supreme Court removed a judge for operating a for-profit business from her judicial chambers and related misconduct — including her conduct during the disciplinary proceedings.

The judge had given materially misleading and incomplete statements during her deposition, refused to answer relevant questions during the investigation, and refused to turn over relevant documents even after being ordered to do so. “Especially distressing,” the Court stated was the judge’s deletion of “financial data in the early morning hours of the day of her deposition” after that data had been subpoenaed and the judge had agreed to produce it. The Court emphasized:

Compliance with the law includes compliance with the rules of procedure that govern this proceeding and with the lawful orders of the Investigative Panel and the Hearing Panel. Noncompliance, obfuscation, and avoidance of those rules and orders are not justified by a judge regardless of whether the judge personally believes the investigation is unwarranted. . . .

In defending her conduct, Judge Hawkins asserted that her faith instructed her to hold fast to her innocence and “fight the good fight.” We agree with the Commission that obfuscation and frustration of proper discovery, and refusal to answer questions posed by the Investigative Panel, Judicial Qualifications Commission counsel, the Investigator, and the Hearing Panel, do not constitute fighting the “good fight.”

Noting that in other cases it had given favorable consideration to a judge’s acceptance of responsibility for his or her actions, the Court stated that Judge Hawkins “did not show acceptance of responsibility for her actions, or acknowledge their impropriety, until her response to the second order to show cause why removal from office is not the appropriate sanction.”

Only in her final words in that response did Judge Hawkins state “I apologize to the Investigative Panel of the [Florida Judicial Qualifications Commission] for my responses, to all of the people that were affected by my actions, and to all the Justices of this Court.” While this statement extends an apology, albeit a belated one given only when faced with the possibility of removal, it fails to accept responsibility for her actions or acknowledge their impropriety. Further, Judge Hawkins’ apology fails to overcome the grievous nature of her conduct during this proceeding, which was “fundamentally inconsistent with the responsibilities of judicial office” and which “struck at the heart of judicial integrity.”

It is impossible know whether the judge would still be in office had she not displayed “an extreme lack of candor,” but cooperation and explanation (not necessarily confession) are obviously the better defense and more consistent with the trust a judge should show in due process.

More objective standards

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A post on this blog in August titled “objective standards” noted several recent judicial discipline cases illustrated “the significance of motive when the goal is promoting public confidence in the judiciary.”  A similar principal was emphasized by the West Virginia Supreme Court of Appeals in a case last week when it stated “the fact that a judge thinks that there was no harm caused by his or her actions is irrelevant, because a ‘no harm, no foul’ rule does not exist in the Code of Judicial Conduct.”