Tuesday, June 6, 2017

Judicial Ethics and "The Great Pumpkin"

A story from Arkansas, with absolutely no connection to workers' compensation, caught my attention. It addresses one of the "third rails" of American discord, which need not be a distraction to the real issue: judicial ethics. Charles Shultz, celebrated cartoonist and humorist, once said “There are three things I have learned never to discuss with people... Religion, Politics, and The Great Pumpkin.” For the sake of having a conversation about judicial ethics, rather than about the underlying themes or disputes, this post will therefore be about "The Great Pumpkin" (the reader is cautioned that this author takes no position either way with the Pumpkin, it's/his/her actions or inactions, beliefs or perceptions. Your mileage may vary; use only under adult supervision, etc., etc.) 

The issue came to my attention recently with the publication of Impeachment Talk Expands Fight over Arkansas Judge. Let's just say that (hypothetically) there was a lawsuit involving various allegations regarding The Great Pumpkin, and a trial judge was called upon to make rulings. A near-constant in the world of litigation is that in every litigation someone will always be unhappy with the facts, the law or the judge (sometimes all three). I cannot think of a single case I have decided in which all parties left happy. 

Having made a ruling regarding The Great Pumpkin, this judge doffed his judicial robes and left the courthouse. He was photographed soon thereafter at a protest to save The Great Pumpkin. It seems likely that this Judge knew he would be spotted at the protest, it occurred outside the Governor's mansion, was well attended, and apparently the news media present was not incognito. It appears that the Judge knew of his participation in The Great Pumpkin demonstration when he made the ruling.

And there is the rub. A judge charged with being the impartial arbiter of this Great Pumpkin dispute is then seen at a protest taking a seemingly partisan side in the public protest regarding The Great Pumpkin. Thus are raised questions of judicial ethics, the Code of Judicial Conduct, and for at least some the potential for impeachment of this judge.

First, this occurred in Arkansas, not in Florida. And as such, the inquiries will revolve around the Arkansas Code of Judicial Conduct. But, my experience is in Florida, and thus my thoughts wander in that direction. A few provisions of the Florida Code of Judicial Conduct that might apply here to a similar issue are:
A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities, Fla. Code Jud. Conduct, Canon 2

A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment, Fla. Code Jud. Conduct, Canon 2B

Judge shall act at all times in a manner that promotes confidence in the integrity and impartiality of the judiciary, Fla. Code Jud. Conduct,Canon 2A.

A judge shall disqualify himself or herself where his or her impartiality might reasonably be questioned, Fla. Code Jud. Conduct, Canon 3E(1).

A judge should disclose on the record any information that he or she believes the parties or their attorneys might consider relevant to disqualification, even if the judge believes there is no real basis for disqualification, Fla. Code Jud. Conduct, Commentary to Canon 3E(1).

A judge or candidate for judicial office shall refrain from inappropriate political activity, Fla. Code Jud. Conduct, Canon 7.
These are each mandatory constraints ("shall") upon judicial conduct. The judge is not merely to avoid impropriety, but even the "appearance of impropriety" in "all activities." If the Judge is adamant about protesting in support of The Great Pumpkin, the judge "shall" disclose on the record if there is information the parties "might consider relevant" (emphasis added). If impartiality "might reasonably be questioned," then the judge "shall" disqualify himself/herself. 

It appears that Arkansas' Supreme Court has concluded that there are questions that require inquiry. According to one source, it has referred the judge to the Arkansas "Judicial Discipline and Disability Commission to determine whether he violated the Code of Judicial Conduct." And in the meantime, there has reportedly been mention of impeachment in both Arkansas legislative chambers.

The Judge involved, however, couches his participation in the practice of religion. He contends that he has every right, despite his chosen profession, to practice his religion as he deems appropriate. He reportedly said:
Whether I attended the Good Friday vigil or not does not change property law,
Whether anyone approves or disapproves of me attending the Good Friday vigil does not change property law.

Whether I support or am opposed to (The Great Pumpkin) does not change property law.

I am entitled to practice my religion — whether I am a judge or not — even if others disapprove of the way I practice it.
The freedom of religion is of course guaranteed in the First Amendment to the U.S. Constitution. The same guarantee applies to the freedom of speech. American courts have repeatedly held, however, that the acceptance of a judgeship is also an acceptance of limitations on freedoms, particular that freedom of speech. The inclination to ignore that in this instance may be impropriety or at least the appearance of it is troubling. It is likely that this demonstration participation violated the Code; it was political activity and undoubtedly would cause any reasonable person to potentially doubt impartiality.

However, a broader question is presented. Even if one concludes that a judge has a right to protest, for a religious or secular purpose, there is potential for concluding that this judge violated the Code. Even if one concludes that such demonstration in a politically charged moment, regarding someone as polarizing as The Great Pumpkin, is not impropriety or the appearance of impropriety, there is potential for concluding a violation of the Code. Even if one concludes that participating in a demonstration outside the Governor's mansion is not "inappropriate political activity," one still might find a violation of the Code.

This judge was allegedly planning to attend this Great Pumpkin demonstration. The Judge knew of his intended expression of opinion or belief when the Great Pumpkin motion landed upon his desk earlier that day. He did not inform the parties ("disclose on the record") such that the parties could seek a transfer to a different judge. And, he did not "disqualify himself or herself where his or her impartiality might reasonably be questioned." 

If my plumbing leaks or my air conditioner fails, I have every right to have that repaired. That is my business. But, if someone appears before me in a case involving the plumber or technician I hired, every party to the case is entitled to know that this plumber or technician is someone with whom I have done business, or with whom I have a relationship outside the case. That disclosure must come from the judge. 

Or, knowing of the potential for various perceptions, the judge should simply remover her/himself from the case and let someone else preside. This case is simply not about whether we have a right to repair our plumbing, or how we feel about The Great Pumpkin. This case is about the "appearance" of impropriety. 

It is possible that this Judge did disclose his Great Pumpkin perceptions and beliefs. Perhaps the parties waived any objection they might have had. If they did, then this situation is perhaps in part on them. But, only if the judge clearly and completely disclosed his feelings about The Great Pumpkin and the parties made a fully-informed and voluntary waiver. If that were the case, the Judge should say so immediately instead of espousing the justifications quoted above. 

In the process of apparently not doing so, this judge has exposed the legal system and the judiciary to criticism. There has been reaction, accusation, and recrimination. The system will now devote resources to investigation of the actions or inactions, and the implication of the Code. All of which might have been saved had the judge merely elected to disqualify himself and leave that Great Pumpkin decision to another adjudicator. 

For what reason would he not? Surely there are many qualified and available judges in Arkansas to undertake the decision he chose to undertake? Surely, the judge knew some might see an appearance of impropriety in his presiding and then protesting? Judges must follow the Code. If there is a conflict, the judge should recuse (voluntary disqualification), or at a minimum disclose the full scope of the conflict to the parties for their information and consideration. It appears that the Judge here did neither, and the judicial system suffers for it.

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