Pro se litigants in the code of judicial conduct

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

Same-sex ethics

As the legal question of same-sex marriage is being decided across the country, the question whether a judge may ethically decline to perform such marriages is beginning to be addressed.

Noting that same-sex marriages are now permitted and recognized in the state as a result of several federal court decisions, the general counsel for the North Carolina Administrative Office of the Courts advised in a memo last week that a magistrate who conducts other marriages may not — regardless of the reason — refuse to perform the ceremony for a same-sex couple for whom a marriage license has been issued by the register of deeds.  Emphasizing that “performing marriage ceremonies is a ministerial act authorized as an official ‘additional power’ of magistrates,” the memo concludes that, if a valid marriage license is presented, a magistrate has the statutory duty “to conduct the marriage between the persons named in the license in the same manner as the magistrate would conduct any other marriage.” The memo states that a failure to do so would violate the equal protection clause of the U.S. Constitution and the oath the magistrate swore upon taking office to uphold the constitution and laws of the U.S. and would constitute a failure to perform a duty of the office. The memo cites Canon 2A of the North Carolina code of judicial conduct (“a judge should respect and comply with the law and should conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”) and Canon 3 (“a judge should perform the duties of the judge’s office impartially and diligently”).

Citing the corresponding provisions in its state code, the Washington State Commission on Judicial Conduct admonished a judge for, after same-sex marriage was approved by voters, publicly stating that he would not perform same-sex marriages but continuing to perform opposite-sex marriages. The judge accepted “the Commission’s determination that, by announcing he would not solemnize same-sex marriage due to his philosophical and religious concerns while continuing to solemnize opposite-sex marriages, he appeared to express a discriminatory intent against a statutorily protected class of people thereby undermining public confidence in his impartiality . . . .” The Commission stated:

Respondent is not required as a judicial officer to solemnize marriages. Having chosen to make himself available to solemnize some weddings, however, he is bound by the Code of Judicial Conduct to do so in a way that does not discriminate or appear to discriminate against a statutorily protected class of people.

The Code of Judicial Conduct imposes on judicial officers a specific, enforceable obligation to avoid bias and the appearance of bias. These obligations go beyond those imposed on others who serve the general public, reflecting the unique and integral role judicial officers play in our constitutional scheme of justice honoring the rule of law. Judges must not only be impartial, but must also be perceived as impartial, in order to properly fulfill that role . . . .

By even temporarily acting in a discriminatory fashion toward gay men and lesbians, in stating that he would not solemnize their marriages when he continued to solemnize heterosexual marriages, and by commenting on that decision publicly, a reasonable person could objectively conclude that he might act in a discriminatory fashion toward gay or lesbian litigants, lawyers, or witnesses.

In contrast, the New York Advisory Committee on Judicial Ethics ducked the issue by stating whether a judge may adopt a policy that distinguishes between same-sex and opposite-sex couples was primarily a legal question, not a question of ethics.