Q&A with the chair of the ABA Joint Committee to Evaluate the Model Code of Judicial Conduct

Mark I. Harrison

In late October, Your ABA sat down with Mark Harrison of Phoenix, chair of the ABA Joint Committee to Evaluate the Model Code of Judicial Conduct. The Commission will submit an informational report to the House of Delegates this coming February, and expects to submit its final report with recommendations for consideration by the House at the Annual Meeting in August.

Q: What’s the purpose of the Model Code Of Judicial Conduct?

The code has actually a few basic purposes. One is to provide the framework that governs the discipline of judges when they violate the code. But it has other equally important purposes, one of which is to provide aspirational goals, higher than the minimum conduct expected, and also comment that explains the disciplinary black letter provisions of the code.

Q: How did it originate?

It originated in the early 20s, possibly in response to the appointment of a sitting federal judge, Kennisaw Mountain Landis, to the post of commissioner of baseball. It was then essentially a hortatory document. Over time it has come to be much more of a usable, functional document that can be used in cases involving judicial misconduct. But as I said a moment ago, it is viewed as equally important in providing aspirational and inspirational guidance for judges.

Q: What prompted this new look at the code?

The role of judges in society has changed over the last generation with the advent of so-called problem-solving courts, and other situations where judges have to become more proactive in dealing with people who may become litigants. It was also recognized that judges, like all other people in society, can and do suffer from impairment, and the existing code didn’t deal with the issue. In addition, the decision of the United States Supreme Court in The Republican Party of Minnesota vs. White, substantially broadened the scope of permissible speech on the part of judges running for election. Those are some of the reasons that prompted a feeling that we ought to take a look at the code and make sure that it’s current and contemporary.

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Q: Could you tell me about how the model code is applied in different jurisdictions?

First of all, the House of Delegates of the American Bar Association will adopt the code in some form, hopefully in the form in which we present it, and then it’s sent to the states for potential adoption by the highest court in each state. And if adopted, it may be adopted in the form in which it’s presented, or it may be modified to accommodate local idiosyncrasies or custom. Once adopted by the highest court of the state, it becomes the principal document by which a judge’s conduct is measured and governed in that state.

Q: How does it relate to the federal court system?

All the federal courts, except the Supreme Court, have adopted a code of judicial conduct which is very close to the ABA’s model code. There are some material differences, because federal judges are either serving with life tenure or for specified periods subject to the jurisdiction of judges with life tenure, such as bankruptcy judges. The primary difference is that the code as it works in the states provides the basis not only for guidance and information, but for discipline. In the federal courts, there is a federal statute which is the ultimate basis for sanction of federal judges. And so it serves a much more hortatory function in the context of federal judges than it does in the case of state court judges.

To my knowledge, the Supreme Court does not have a discrete separate code of conduct which governs the conduct of the members of the Supreme Court. The Court is not bound by the ABA Model Code.

Q: Are administrative law judges governed by the code?

In the application section of the current draft, which we promulgated near the end of June, we acknowledge that administrative law judges are commonly officers of the executive rather than the judicial branch of government, and therefore each adopting jurisdiction will have to consider the characteristics of particular administrative law judge positions in adopting, adapting or applying the code of judicial conduct for administrative law judges.

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Q: Can you tell me about your timeline — when and how you approached this project and what you foresee down the road?

The commission had its first organizational meeting in August of 2003 in San Francisco. We have met a couple of dozen times at least either in person or by phone since then. The overarching concern has been to make this a transparent process, to solicit as much feedback from interested groups and individuals and input from knowledgeable people as possible.

We’ve had eight or nine public hearings to receive comment on the code as it has evolved in our drafts. Once we got a working draft of part of the code we immediately posted it on the ABA’s Web site. Our objective is to ensure that anybody who has an interest in the project has access to our work product and access to us, to get as much consensus as possible about the workability and desirability of the product we ultimately produce.

It’s our current objective to produce an informational report in time for the House of Delegates meeting in Chicago this coming February, with a link to the final working draft. No matter how hard we tried to solicit feedback, a lot of people will be seeing this for the first time. We expect the code will be submitted for action at the Annual Meeting in Hawaii next summer.

Q: If someone is coming to this project late and didn’t know that you were working on it, would there still be an opportunity for them to contribute between February and August?

That’s precisely the kind of person that I’m alluding to. It will be available to anybody in the ABA who has an interest in our work to comment probably between early February when the House meets in Chicago, and I would say probably sometime in May.

Q: What would you identify as the most important issues you have addressed in considering revisions to the code?

We spent an enormous amount of time talking about whether to retain a rule against conduct that has the appearance of impropriety, as distinguished from improper conduct as such. After a lot of consideration, specifically of objections to the use of that formulation as a standard for disciplinary enforcement, we have, at least in our current draft, decided to keep it as a standard of enforceable conduct. There were those who thought it’s too amorphous to give judges notice, and therefore might violate due process. Many others, and in fact virtually all of the judges with whom we spoke, felt that it was so important as a prophylactic provision that we should retain it.

We received a lot of testimony about the importance of having a provision in the code that would provide some therapeutic alternative to discipline for judges suffering from impairment. And so we’ve proposed a rule that enables judges to deal with that kind of problem short of discipline.

Predictably, the subject which has occupied the bulk of our time on a relative scale is the whole subject of political activity and appropriate political speech in the context of judicial elections, and we haven’t finished struggling with that yet.

We have spent a good bit of time and are still struggling with the subject of discriminatory clubs. The present code prohibits membership in clubs that invidiously discriminate on the basis of enumerated categories, race, gender, and this year in view of things that have changed in the law since the iteration of the code we added sexual orientation, and that produced a great deal of comment and we’re trying to figure out how best to resolve that issue.

Other subjects deal with the rules governing expense-paid trips and seminars. The first question was whether we could adopt a rule which provided some kind of a bright line to guide judges on what trips they could take or couldn’t take if they were going to be expense-paid or expense-waived. We concluded after a lot of discussion that we could not draw a usable bright line, it would be presumptuous of us to do so, and so the current draft enumerates a number of considerations judges might take into account in deciding whether to go to an expense-paid seminar, and provides rules governing the reporting of those trips, so that anybody who has an interest in finding out what kind of a trip a judge made that was paid for by someone else would be able to have access to that information in a relatively timely fashion.

Another issue we struggled with is problem-solving courts. The concern is that in problem-solving courts the judges have to become more involved with participants than they normally would in their traditional role, and then the concern is whether they can maintain the necessary impartiality and independence if people who they’ve dealt with in a problem-solving court come into their traditional court. We decided that there are so many variations in this evolving phenomenon that it’s not feasible for us to draft a rule which would cover all the permutations. So we’ve referenced it in our proposal and acknowledge that it may require some rule-making at the local level. But unless we had a specific fact-set to define precisely how a judge is functioning in that situation it would be impossible for us to draw a useful rule that would work in all situations.

Another issue we have spent a lot of time talking about is the permissible range of activities in which a judge can participate when the purpose is charitable but also has a fund-raising component. Can a judge make the primary speech at an annual meeting of the Red Cross, for example, if the purpose of that meeting is fundraising? On the one hand, you’d like the judge to be able to use his or her status to enhance a worthy cause, but in order to maintain the necessary independence and impartiality and not abuse or misuse the judge’s prestige there are competing considerations, and so we’re struggling with that.

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Q: Do you foresee major changes in how judges fit in society?

Major changes no; but I do think the current draft tries to broaden a bit the scope of permissible activities outside the judge’s traditional role as someone sitting on the bench. The last issue to which I referred is illustrative. Many people feel that judges are too isolated from the community, that they lose touch, and that judges ought to be more involved in the activities of the community. The problem is that the more the judge gets involved with the activities of the community, certainly at leadership levels, the more it arguably compromises the appearance of the judge’s impartiality.

Q: Have there been areas of disagreement among the commissioners?

Certainly there have been areas of disagreement. I would say that the most dramatic areas of disagreement have occurred in connection with political activity. The commission has representatives from states in which there are partisan elections, nonpartisan elections, merit selection systems, so everybody comes to that question with a very different perspective. Those of us who have had the benefit of living in situations where judges don’t have to be so overtly and intensely political believe that is a far superior system, simply because it enhances the likelihood that the judge is going to be independent and impartial, or at least enhances the public perception that judges are going to be impartial, independent and honest.

Any time you have a judge deeply involved in a political campaign, that inevitably relates to the raising of money, and more often than not judges in that situation have to go to lawyers to raise the money, lawyers who are going to appear in front of them. There is genuine concern about that. The people who haven’t been forced to live in that hurly-burly system have resisted changes in the code which recognize political reality and the implications of The Republican Party of Minnesota vs. White. And there has been strong disagreement within the commission on those subjects and we’re trying to reach some kind of a working consensus.

There has also been disagreement on other issues, like judges understandably don’t want any more administrative burdens associated with reporting, and there are security concerns associated with a lot of detailed reporting by judges. But there is a contrary public interest felt by many on the commission that, particularly in the area of expense-paid trips, judges have an affirmative obligation to make that activity transparent. So that’s been a source of some disagreement as well.

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Q: What is the rationale for allowing judges to accept expense-paid trips?

Judges could make far more in the private sector than they are making on the bench, and although they are not paupers by any means they don’t have a lot of disposable income to go to as many educational seminars as they might wish to attend. Very often judges are asked to participate in or attend educational seminars or conferences, and in an effort to attract judges to meetings of that kind, they’re very often either at reduced tuition or expenses are waived or paid.

The countervailing concern is that very often the sponsor is believed to have an agenda on an issue which may at some point in the future come before the court, or which may in fact be before the court at that time, and may influence the judge’s view. This is a perception issue. Judges are exposed to all kinds of information all the time and if we thought they were that susceptible to influence and weren’t in a position to make up their own minds when cases come before them, we’d be in a lot of trouble. As a practical matter, having been practicing for 45 years, I’m not particularly worried about that; but I am concerned that if the public loses faith in the independence of the judiciary, then we’ve lost a great deal. And so it seems to me a small price to pay for a judge to say, “I went to this seminar. Here’s who sponsored it, here’s how much was paid, and if that affects your view of my ability to be impartial in a particular case, do what you think you need to do about it.”

Q: Do you think that the law with respect to political speech and activity by judges is sufficiently settled that the code can solve those issues?

When we started out, we spent several months working on a version of Canon 5, which we finally had consensus on, which we thought was a pretty workable, helpful constructive canon. As we were getting ready to put that out, the Eighth Circuit Court of Appeals issued an opinion on remand in the White case which substantially broadened the realm of permissible political activity.

Members of the commission are not happy with the politicization of the judiciary. We recognize it as a reality in certain states. We grudgingly acknowledge the central holding in the White case. But I think it’s fair to say that commissioners and advisers aren’t happy with the notion of judges’ increased involvement in traditional political activity because we feel it undermines independence and impartiality and the public perception of independence and impartiality. So the question becomes, do we simply capitulate and further liberalize the permissible range of activity, or do we say, “That may apply in the states governed by the Eighth Circuit, but we’re not going to go there voluntarily until the Supreme Court of the United States tells us we have to.” And that’s the dilemma with which we’re currently struggling. Our present view, and this is subject to further revision because this canon in particular is a moving target, is that we are not going to voluntarily capitulate until the high court tells us we have to.

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