Judicial ethics has been in the news recently. From Washington DC to Pennsylvania, to the Florida Panhandle. Each story brings thoughts and perspective. Anyone on the bench or working before the bench could validly invest in these stories.
In Washington DC, the Supreme Court of the United States (SCOTUS) adopted a code of ethics. Criticism came from various quarters. Business Insurance noted that the conflict of interest section, while similar to other Codes of Judicial Conduct, suggests rather than mandates disqualification for the Supreme Court.
The article criticizes that "most federal judges" are instructed that they "shall" recuse themselves. To the contrary, the SCOTUS standard is instead that "they 'should' recuse themselves." Thus, in the new code perhaps one might see forward progress (a glass half full) and critics might instead see an incomplete effort (a glass half empty).
There will be those who ask whether there is a distinction between the roles of judges, trial and appellate. Are some more amenable to personal sympathy or solace? If the "shall" is appropriate for some, is there a reason it is not appropriate for all? Or, in the inverse, if "should" is the appropriate standard, "should" that apply to all?
I have heard lawyers quietly lament a perception that federal judges seem to some to be disinclined to recusal or disqualification. It is not a topic upon which I can speak from any experience. A quick look at the availability of appellate review of a denial of disqualification finds many denials of petitions for writ of prohibition. One conclusion is that "Writs of mandamus and prohibition are drastic remedies and should be used only in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Thus, it is possible that discretion is broad under the "should" standard.
Perhaps there will be further discussion of the new SCOTUS code, and whether there is a real distinction between "should" and "shall" in the realm of conflicts real or perceived.
Just down the road, a Pennsylvania judge has been suspended without pay. The situation illustrates a variety of the Code's canons. Some should be of particular interest to all judges. The investigative board there concluded that the judge "allowed her employees to take additional vacation days, contrary to what was reported in a previous investigation." This, according to CBS 21.
See Model ABA Code, Canon 1, 2.
CANON 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
CANON 2
A judge shall perform the duties of judicial office impartially, competently, and diligently.
Further, when the judge was named as a defendant in a lawsuit, the judge allegedly instructed her employee to ignore it and to misrepresent that it was never received. The Board alleges that in another instance, the judge called local police to obtain documents related to a case against her, as a "favor."
See Model ABA Code, CANON 1,
There is an allegation that the judge presided over a case involving an attorney that represented the judge in that case. The story says the judge admitted to this. The Judge "filed a Citizen's Complaint" against police officers "involved in her arrest." She asserted that they "conspired to destroy her character and credibility." Despite this, the judge continued to preside over a case involving one of those officers.
CANON 3
A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.
The Judge had a personal Facebook page, and there is likely nothing per se wrong with that. But, her boyfriend was selling "X-It Red," and the Judge allegedly took to her Facebook page, in judicial robes, and endorsed the product.
Finally, the judge allegdly "failed to show up" for work during a scheduled duty. In addition to not being present, she was allegedly "completely out of reach," for at least two days of that duty.
See Model ABA Code, CANON 2.
This was apparently not Judge McKnight's first involvement with the judiciary discipline system, according to PennLive. Mistakes are human. Learning from them, growing, and improving are fine reactions to our mistakes and missteps.
Meanwhile, in the Florida panhandle, a panel of the Judicial Qualifications Commission (JQC) has recommended that a Liberty County judge be disciplined. The allegations center on an ex parte communication between the judge and an assistant state attorney (prosecutor).
I remind judges all the time to avoid "off-the-record" conversations with parties in cases. A judge once said to me "I don't know why you say that so often." My response was simple "If judges would quit doing it, I would quit reminding them of it." It is rarely a good idea to have off-the-record conversations with litigants and/or attorneys. You heard that here. It is never a good idea to have an off-the-record conversation with any single party, that is ex parte. It is forbidden and inappropriate.
WFSU reports that the judge allegedly asked a lawyer to remain as a Zoom hearing was concluding. The judge then allegedly counseled the prosecutor on how the judge thought the case should be prosecuted. The judge allegedly expressed "displeasure" with some prosecutorial decisions, and counseled with "investigative advice" on how the case might be handled. A judge's role is not advocate or inquisitor. See It is What it is (November 2023). See also What is Ex Parte (January 2018).
The JQC concluded that the judge's comments "clearly evinc(ed) a bias in favor of law enforcement.” The judge has "acknowledged his conduct was inappropriate" and violated the Code. The JQC recommended discipline that may include reprimand, suspension, and a period of not presiding over criminal matters.
Whose job is it to decide how to pursue a case? It is the lawyers and litigants. Their choices may be unwise, ill-advised, or worse. That is on them. They have every right to make their own decisions, plot their own strategy, and pursue their own plans.
In that regard, I persistently hear of judges cautioning pro se parties about their skills and challenges. I have witnessed, years ago, judges telling such parties that they must consult an attorney (as regards pro se settlement). I witnessed one handing a pro se worker a particular lawyer's business card in the hearing room. I have heard from workers that some judge's editorializing on their abilities and perceived need for counsel was untoward, hurtful, or even displayed judicial bias. It is a fine line between assuring that parties know of their right to counsel and stepping into the potential for perceptions of bias and prejudice.
Recently, in It Is What It Is (November 2023), I noted
- Judges are not advocates.
- Judges are not inquisitors.
- The judge's job (is) to ensure a fair proceeding.
- The judge's job (is) to resolve conflicts in process, evidence, and the law.
- The judge's job (is) to make decisions.
- (Judges) are not advocates.
- Judges are never advocates.
I received pushback on some of that. It is fair to say that there is no unanimity among judges on how close to the "advocate" line to dance. In the end, unfortunately, it is perhaps much clearer in retrospect. But, retrospect is a difficult way to view things when someone perceives that the damage is done. Once the topic of bias or favoritism is raised in a motion for rehearing or for disqualification, you might expect that motion to be shared among lawyers. In the end, their allegations and feelings may become public and perhaps pernicious. If that is not uncomfortable, even in retrospect, that is at best curious. A judge "shall avoid impropriety and the appearance of impropriety." CANON 1 (Emphasis added).
Should the SCOTUS have a more stringent set of ethics guidelines? What should be done with judges who violate the constraints of the Code? Is there value in studying these instances, in introspection, in contemplation?
