The Code of Judicial Conduct has come to mind again recently. Driven by some news stories that have received little attention, but nonetheless which are nonetheless worthy of note. There are some things judges are not supposed to do, and recent stories have highlighted two of those quite well, one in Texas and the other in Pakistan.
Regular readers will know that the world of adjudication has rules. Various states have a Code of Judicial Conduct. Those may be based upon the American Bar Association Model Code, but they are not necessarily identical, see The Code of Judicial Conduct and Scouting. The Codes limit judicial activity in a variety of ways, for examples, see The Sleuthing Judge, Sleuthing Addressed Again, Judge Reprimanded for Ex Parte Communication, and Judicial Ethics and "The Great Pumpkin."
And today's is a discussion of two that seem pretty obvious: Judges should not participate in political activities, and should neither lend the prestige of judicial office to causes nor engage in fundraising. It is fair to say that one gives up some significant rights and freedoms when she/he takes on the role of judge.
The ABA Model Code of Judicial Conduct is a baseline from which a state might work in crafting a Code. And the Code with which I am most familiar is the Florida Code, in large part because the Legislature decided that code applies to Judges of Compensation Claims. See Section 440.442, Florida Statutes. But, more relevant today, both Texas and Pakistan have adopted a Code of Judicial Conduct.
In the first story, the recent confirmation hearings regarding Brett Kavanaugh had an apparent impact several miles south of our nation's capitol. There are, of course, differing opinions regarding Justice Kavanaugh; some love him, others hate him, and in between there are a multitude of opinions, feelings, and conclusions. But, a judge in Texas was apparently deeply upset about the confirmation of Justice Kavanaugh.
Judge John Lipscombe of Travis County allegedly "draped black funeral bunting over the double doors to his courtroom" according to a story in the Statesman. He was apparently not pleased with the Justice's confirmation. Judge Lipscombe also "closed his courtroom and refused to handle cases for one day to protest." The Statesman says that some believe "103 defendants" did not have their day in court that day, secondary to his protest. But, apparently anyone willing to just plead guilty could do so before one of the other judges. Perhaps a difficult decision for a defendant with limited time and resources, driven to "guilty" by exigencies beyond their control?
One Judge was quoted saying that the Judge Lipscombe protest "cost taxpayers $58,000 — the cost to run a courtroom for a day." That judge noted that "we are public servants, and I believe the best way to protest for public service at the federal level is to provide exemplary public service at the local level,” The Statesman concluded that the Texas Code of Judicial Conduct "does not cover courtroom protests."
In a British Broadcasting Company (BBC) story from oversees, the Chief Justice of Pakistan's highest court has begun a "crowd-funding" campaign to raise money for dams. The subject of crowdfunding has been here before, see The Lienholding Concept and Questions. The price tag for the dams is about seventeen billion U.S. dollars, and the nation finds itself unable to either raise or borrow that money conventionally. So, the Chief Justice "set up a fund to raise" money to build two dams. The Judge is apparently a true believer, as he made the first donation of "roughly $8,000."
Believe it or not, several others have contributed to the fund since the Chief Justice made his commitment public. This includes the nation's military, business, and students. The BBC notes that "almost every day there's a press release from the Supreme Court with news of different individuals and institutions meeting the chief justice and donating to the fund."
Not only has the Chief Justice put his own money where his mouth is, he is personally meeting with potential donors to raise funds for the two dams. But, the BBC reports that of those meeting with the Justice, "many have cases pending in court, which has raised suspicions they may be trying to influence the judiciary." Donating to the Chief Justice's pet project as a path to litigation success? Intriguing indeed. Even if there is no influence peddling or pursuing, there is admittedly the potential for some observer of these activities to believe there is such influence in play.
One might consider some Code provisions of interest:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. Model Code Rule 1.2.
A judge . . . should personally observe those standards so that the integrity and independence of the judiciary is preserved. Texas Code Canon 1.
A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Texas Code Canon 2.
To be above reproach, and for this purpose to keep his conduct in all things, 'official and private, free from impropriety is expected of a Judge. Pakistan Code, Article III.
The conduct of either the Texas or Pakistan judge might be seen as not instilling the public confidence. Either might be viewed as demonstrating impropriety in their duties, or at least risking that their performance would have "an appearance" or be perceived as impropriety.
The Pakistan Judge might note that "in particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law." Pakistan Code, Article V. Furthermore, in dealing with those who have litigation pending before the Pakistan Court, one might be concerned that "a Judge must rigidly refrain from entering into or continuing any business dealing, howsoever unimportant it may be, with any party to a case before him." Pakistan Code, Article IV. These are consistent with the ABA Model: "a judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so." Model Code Rule 1.2.
The Texas judge might particularly note that "A judge shall perform the duties of judicial office impartially, competently, and diligently." Model Code, Canon 2. It is critical that "the duties of judicial office, as prescribed by law, shall take precedence over all of a judge’s personal and extrajudicial activities." Model Code Rule 2.1. These ideals are either explicit or implicit in the Texas Code, Canon 3.
The Texas judge might also note that "A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office." Model Code, Canon 3. This is echoed in Texas Code, Canon 4. Those who had business scheduled before the court, whose business was deferred, ignored, and disrespected might well conclude that the judge preferred his "extrajudicial activities" to the "obligations of judicial office."
In the broadest context, the "appearance of impropriety" may be the most challenging standard for any judge. Regardless of the sincerity of a belief, or the (self) perceived righteousness of a cause or statement, it may be most appropriate for a judge to merely defer either speech or behavior. Both of the situations described could be seen as inappropriate in either spirit of effect.
More importantly, the potential for an appearance of impropriety is easily discerned. The actions of these judges are in spite of that potential. But, each is faced with specific ethical obligations that should caution against the behavior of which they are accused. Judges have obligations, and society as a whole is dependent upon the courts operating consistently, persistently, without fault or failure. Courts are comprised of people, and people are imperfect. That means failures will occur. The Codes do not forbid failure, but they should drive us to aspire to our best. The behavior illustrated in these allegations is no one's best.
Every judge should remember that the public perception of a judiciary is perhaps more influenced by the few inappropriate and improper behaviors that are reported in the news than by the daily, diligent, and meritorious efforts of so many adjudicators. A momentary lapse of judgment by one or a systemic fund-raising campaign by another can seriously diminish the trust which the public so very much needs to have in the adjudication process. The concept of independence and effectiveness of that process is dependent upon people believing in judges, their humanity, consistency, and morality. Examples like these allegations do not instill that faith or confidence.