Background Paper
ABA Activities in Judicial Ethics
For almost a century, the American Bar Association has been a national leader in defining the parameters of legal and judicial ethics. Early in the Association’s history, members recognized the necessity for ethical guidelines for the practicing bar. In 1908, the ABA approved the first Canons of Professional Ethics for attorneys. These canons did not cover members of the judiciary and resolutions for judicial canons were presented both in 1909 and in 1917, but were not adopted. In 1922, the ABA appointed a commission on judicial ethics, chaired by Chief Justice William Howard Taft, to draft a code of judicial conduct. A motivating factor to begin in earnest a codification of ethical standards for judges came that year when a federal district judge, Kennesaw Mountain Landis, supplemented his $7,500 federal judicial salary with $42,500 a year to serve as national commissioner of baseball. The Canons of Judicial Ethics, approved in 1924, were intended to serve as general guidelines for the states. In 1969, the ABA again began a comprehensive process to review, evaluate and update the judicial ethics canons. The resulting Model Code of Judicial Conduct, adopted by the ABA in 1972, changed the style and form of the rules, providing 7 canons in place of the original 36 canons, and cleaning up much of the hortatory language while maintaining the substance of the canons.
By the mid-1980’s many people recognized the need to further revise the canons. Beginning in 1988, the ABA undertook a comprehensive study, resulting in revisions, adopted in 1990, that reduced the Model Code from seven canons to five by combining all rules related to off-the-bench conduct, and adding a few new details, including a preamble explaining the Model Code and a terminology section to define certain words used in the canons. Since then, the Model Code has been modified to update specific provisions related to campaign finance issues. The most significant difference between the 1924 Canons and the 1972 and 1990 Model Codes is that the latter versions were designed specifically to be enforceable and incorporated the use of mandatory language.
In recent years, the ABA has undertaken a series of projects to address specific aspects of judicial ethics. In 1998, the ABA completed the Report and Recommendations of the Task Force on Lawyers Political Contributions, Part II, which made recommendations specifically addressing contributions to judicial campaigns. The recommendations were withdrawn from the House of Delegates, and ABA President Philip Anderson formed the Ad Hoc Review Committee on Judicial Election Campaign Finance Reform to review how the objectives of the Task Force Report Part II might best be given effect. The Ad Hoc Committee ultimately made recommendations for amendments to the Model Code of Judicial Conduct relating to judicial campaign contributions. These recommendations, amending Canons 3C(5); 3E(1)(e); and 5C(3) and (4), were adopted by the House of Delegates in August 1999.
The Ad Hoc Committee, in its report to the ABA House of Delegates, suggested that further study was necessary in certain areas. One area addressed the possibility of using public financing as a tool for reducing the high campaign costs and rhetoric involved in state judicial elections. The Standing Committee on Judicial Independence formed a Committee to review this proposal and in February 2002 issued a comprehensive, seminal report recommending full public financing for states that elect judges at the appellate level. This ground-breaking report has led to numerous legislative proposals in the states. In the fall of 2002, the first of these legislative proposals based, in part, on the recommendations of the Committee, was signed into law in North Carolina.
In September 2001, the Standing Committee on Judicial Independence formed a Working Group on the First Amendment and Judicial Campaigns. While the Working Group was convened to evaluate provisions of Canon 5 of the Model Code of Judicial Conduct in light of First Amendment issues, its focus was narrowed to the evaluation of the Model Code provisions in light of the U.S. Supreme Court ruling in Republican Party of Minnesota v. White, 122 S. Ct. 2528 (2002). The recommendations of the Working Group seek to update the Model Code of Judicial Conduct by accommodating judicial independence and impartiality with First Amendment principles protecting the interest in vigorous electoral activity. In order to achieve this, and in light of the White opinion, the Working Group recommends that restrictions on judicial speech will most likely pass constitutional muster if first, they are supported by a definition of "impartiality" to be added to the terminology section of the Model Code, that comports with the discussion of impartiality in the majority opinion in White. Second, if they are narrowly crafted to further the compelling state interest in judicial impartiality. And third, if they are imposed on judges in connection with all of their judicial duties, in response to the majority’s criticism that they announce clause restriction was under-inclusive.
The suggested changes to the 1990 Code have been drafted with these guiding principles in mind. The definition of "impartiality" tracks the analysis of impartiality in White by couching the definition in terms of an absence of bias or prejudice towards individuals and maintaining an open mind on issues. The suggested Canon 5A(3)(d)(i) restriction on judicial campaign speech combines elements of the current "pledges or promises" and "commit" clauses and ties them to the compelling state interest in performing the duties of the judicial office impartially. In addition to the inclusion of a definition of "impartiality" and a more tightly crafted Canon 5 provision on campaign speech, a new Canon 3(B)(10) has been included to extend these speech restrictions to all of a judge’s duties in response to the majority’s concern about under-inclusiveness. A Canon 3E(1)(f) provision has also been added to make the disqualification ramifications of prohibited speech violations explicit. And, language has been added at appropriate places to the commentaries of Canons 1, 2 and 3 to reinforce the need to preserve the crucial values of judicial impartiality, integrity, and independence.
Activities in the States
In the months following the White case, a number of state high courts issued statements regarding the applicability of that decision to the state’s code of judicial conduct. 1 The Supreme Court of Ohio released a lengthy advisory opinion with eleven guidelines for judges. Kentucky, Florida and Georgia 2 all issued statements that the White case did not directly impact provisions of their state codes. The Indiana Commission on Judicial Qualifications issued a preliminary advisory opinion on its code of conduct and permissible speech. Missouri repealed its "announce" clause and Louisiana and Texas amended their judicial codes. The California Commission on Judicial Performance released a statement in August 2002 that it was dismissing its Notice of Formal Proceedings against former Judge Patricia Gray in light of the White decision.
In October 2002, the 11th Circuit decided Weaver v. Bonner 3, a case challenging provisions of Georgia’s Code of Judicial Conduct. Specifically, a three-judge panel of the court addressed the validity of Georgia’s restrictions on personal solicitation of judicial campaign contributions as well as Georgia’s "misrepresent" clause.
The court found both provisions of Georgia’s code to be unconstitutional. In ruling on the constitutionality of Canon 7(B)(1)(d), the "misrepresent" clause, the court states, "to be narrowly tailored, restrictions on candidate speech during political campaigns must be limited to false statements that are made with knowledge of falsity or with reckless disregard as to whether the statement is false –i.e., an actual malice standard." 4 The court rejected the argument that the state’s compelling interest in maintaining judicial impartiality justified greater restrictions on candidate speech. Agreeing with the premise of the White case that "the standard for judicial elections should be the same as the standard for legislative and executive elections," 5 the court went on to say, "[w]e agree that the distinction between judicial elections and other types of elections has been greatly exaggerated, and we do not believe that the distinction, if there truly is one, justifies greater restrictions on speech during judicial campaigns than during other types of campaigns." 6
In its analysis of restrictions on personal solicitation of judicial campaign contributions, the court stated, "[t]he fact that judicial candidates require financial support and public endorsements to run successful campaigns does not suggest that they will be partial if they are elected." 7 The court was not persuaded by the argument that judicial impartiality was served by a ban on personal solicitation, reasoning that "[s]uccessful candidates will feel beholden to the people who helped get them elected regardless of who did the soliciting of support." 8 Accordingly, the provision failed to survive strict scrutiny because it was not narrowly tailored and "completely chilled a candidate’s speech on…topics while hardly advancing the state’s interest in judicial impartiality at all." 9
This opinion goes further than the Supreme Court did in White, and, some experts speculated about the impact that Weaver would have outside of Georgia. But in April of this year the North Carolina Supreme Court issued amendments to its code of judicial conduct that, at first glance, seem to follow the rationale put forth by the 11th Circuit in Weaver. The amendments significantly alter Canon 7 of North Carolina’s code, the portion that addresses political activity of judges and judicial candidates. The court eliminated the ban on personal solicitation of campaign contributions and modified Canon 7 to contain two sections – one section that enumerates permissible political conduct and one section that enumerates prohibited political conduct. In the prohibited political conduct section, the "misrepresent" clause was modified to state: "A judge or candidate should not…intentionally and knowingly misrepresent his identity or qualifications," thereby eliminating the restriction on misleading statements about a candidate’s opponent. Additionally, the court eliminated its "pledges or promises" clause, which was the only other restriction on candidate speech during judicial campaigns. It remains to be seen whether other states will follow North Carolina’s lead in removing restrictions on judicial campaign speech in light of First Amendment concerns.
In analyzing the decisions in White and Weaver, many commentators have noted that the courts have viewed the canons restricting judicial candidate speech through a First Amendment lens only, without the context of the different nature of judicial campaigns and the overriding importance of ensuring judicial impartiality, which state judicial canons are designed to maintain.
In a recent case, the United States District Court for the Northern District of New York invalidated New York judicial conduct provisions designed to maintain judicial independence and impartiality. In Spargo v. New York State Commission on Judicial Conduct 10, four significant provisions of New York’s code were found to be unconstitutional and the New York Commission on Judicial Conduct was permanently enjoined and restrained from enforcing any of these provisions. This case broadens the debate on judicial ethics by invalidating not only canons that regulate judge’s political activities but also invalidating provisions designed to ensure judicial independence, impartiality and integrity in general. These provisions are 22 NYCRR § 100.1 ("A Judge Shall Uphold the Integrity and Independence of the Judiciary") and 22 NYCRR § 100.2 ("A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge’s Activities.") The political activity provisions the court found unconstitutional are 22 NYCRR § 100.5(A)(1)(c-g) and 22 NYCRR § 100.5(A)(4)(a), both of which fall under the heading "A Judge or Candidate for Elective Judicial Office Shall Refrain From Inappropriate Political Activity."
The New York State Commission on Judicial Conduct brought formal charges against Justice Thomas Spargo, a Justice of the New York Supreme Court, for activities during his campaign for the Supreme Court and for activities while he was a Town Justice of the Town of Berne, near Albany. Before the formal hearing stage began, Justice Spargo brought suit in the United States District Court for the Northern District of New York. The decision in the case relied on the rationale of the White case, but the invalidated provisions are much broader than the provisions challenged in White. The New York State Commission on Judicial Conduct is appealing to the United States Court of Appeals for the 2nd Circuit.
Current Project
The changes recommended by the Working Group and the fluidity in judicial ethics currently, indicate the need for a comprehensive examination of the Model Code of Judicial Conduct. This necessity for a review of the Model Code was recently identified by the ABA Commission on the 21st Century Judiciary. ABA President Alfred P. Carlton, Jr., convened this Commission to provide a framework for identifying the enduring principles of an independent, accountable judiciary, recognizing trends affecting these principles and recommending strategies to address these phenomena in the 21st Century. In light of these concerns, the ABA Standing Committee on Judicial Independence sought and received a substantial grant from The Joyce Foundation to undertake a comprehensive revision of the Model Code of Judicial Conduct. This project will be done in conjunction with the ABA Standing Committee on Ethics and Professional Responsibility. The two Standing Committees will appoint an eleven member Joint Commission to Evaluate the Model Code of Judicial Conduct. A small group of advisors will be invited to participate in the work of the Joint Commission as well. The Standing Committees anticipate that the Joint Commission will present recommendations to the ABA House of Delegates at the ABA Annual Meeting in 2006.
1 See Cynthia Gray, The States’ Response to Republican Party of Minnesota v. White, 86 Judic. 163 (2002).
2 While the Judicial Qualifications Commission of Georgia issued a statement that White did not impact provisions of the Georgia Code of Judicial Conduct, it also stated that it would no longer enforce the portions of Canon 7(B)(1)(d) ruled to be overbroad in Weaver.
3 309 F.3d 1312 (11th Cir. 2002)
4 309 F.3d 1312, 1319.
5 Id. at 1321.
6 Id.
7 Id. at 1322.
8 Id. at 1323.
9 Id.
10 24 F.Supp.2d 72 (2003).