In a recent interview with Katie Couric, Justice Ginsburg discussed San Francisco 49ers quarterback Colin Kaepernick and his practice of kneeling during the national anthem to protest racial injustice. She described Kaepernick’s conduct as “dumb and disrespectful,” compared it to flag burning, and said “I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it.” Is it OK for a judge to say that? Continue reading
Tag Archives: judicial conduct
We’re holding a seminar on professionalism and ethics for judges at the School of Government next week so I’ve got judicial canons on my mind. Below are five ethical rules many legal professionals may not know about, but probably should.
1. Judges can’t sell Girl Scout cookies. Canon 5(B)(2) of the North Carolina Judicial Code prohibits judges from actively assisting civic and charitable organizations in raising funds. So judges can’t sell Girl Scout cookies or solicit donations for the United Way. They may, of course, buy said cookies and donate their own funds to the designated cause. They may even be listed as contributors on a fundraising invitation, but they may not sponsor or host a fundraising event. Formal Advisory Opinion 2010-07.
2. Judges, who are elected themselves, may not endorse other individuals running for elected office unless the judge also is a candidate. Canon 7B(2). Endorsement is broadly defined to include public requests, appeals and announcements, whether oral or written, for support of a person’s efforts to be elected to public office. Canon 7A(3). It is, however, fairly easy for a judge to become a candidate. She can do so by publicly declaring her candidacy, filing as a candidate with the State Board of Elections or other appropriate elections authority, or by sending a letter of intent to the chair of the Judicial Standards Commission. Canon 7A(1).
3. While a judge may write a letter of recommendation for a person based on his personal knowledge of that person, the judge must write the letter on his personal letterhead rather than on official stationary. Canon 2B; Formal Advisory Opinion 2007-02. The judge may nevertheless mention that he is a judge if that fact is necessary to explain the context of the judge’s observation of the individual. This rule is designed to honor the principle that “a judge should not lend the prestige of the judge’s office to advance the private interests of others.” Canon 2B.
4. A judge may not serve as an officer, director or manager of any business. Canon 5C(2). This bright-line rule bars a judge from maintaining the position of manager of a Professional Limited Liability Company—even if the PLLC is inactive. Formal Advisory Opinion 2009-01.
5. Judges may not mentor attorneys. Formal Advisory Opinion 2011-03. The Judicial Standards Commission has advised that such a relationship runs afoul several canons, among them the prohibition against practicing law (Canon 5G), the rule that a judge may not lend the prestige of her office to promote the private interests of others (Canon 2B), and the requirement that a judge conduct himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary (Canon 2A).
Violation of the North Carolina Code of Judicial Conduct is not a criminal offense. Depending upon its severity, such a violation may be punished in a variety of ways, ranging from a private letter of caution issued by the Judicial Standards Commission to issuance of a public reprimand, censure, suspension, or removal from office by the North Carolina Supreme Court. G.S. 7A-376(a), (b). The supreme court may impose such sanctions only for willful misconduct in office, willful and persistent failure to perform the judge’s duties, habitual intemperance, conviction of a crime involving moral turpitude, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute. G.S. 7A-376(b). The state supreme court’s removal of a judge from office on such grounds prevents the judge from receiving any retirement benefits and disqualifies her from holding judicial office in the future. G.S. 7A-376(b).
Before August 23, 2013, the Judicial Standards Commission, rather than the state supreme court, was authorized to issue public reprimands as well as private letters of caution. The named judge could accept a public reprimand issued by the Commission or could reject it and demand that disciplinary proceedings be instituted before the supreme court. If the judge accepted the reprimand, it was not confidential. Indeed, public reprimands from past years are posted on the AOC’s website. If the judge rejected the reprimand, the notice and statement of charges filed by the Commission, along with the answer and all other pleadings, were public. Those provisions were amended by S.L. 2013-404. Now disciplinary hearings instituted by the Commission remain confidential unless and until the supreme court issues disciplinary action.
Yesterday, the United States Supreme Court decided a case that could have been the subject of a John Grisham novel. The case is Caperton v. A.T. Massey Coal Company, and the basic facts are as follows. Massey is a huge coal mining conglomerate. Caperton is the president of a much smaller company. Caperton and his company sued Massey for “fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations,” and a West Virginia jury awarded Caperton $50 million in damages. Massey planned to appeal to the West Virginia Supreme Court, but before the appeal was filed, judicial elections were held.
Don Blankenship, the chairman, CEO, and president of Massey, decided to support Brent Benjamin, a candidate for a state supreme court seat held by an incumbent justice. Blankenship donated the maximum legal amount — $1,000 — to Benjamin’s campgain, spent $500,000 on “independent” direct mailings and newspaper and television advertisements supporting Benjamin, and gave $2.5 million to a third-party organization dedicated to supporting Benjamin’s candidacy. Blankenship’s $3 million in expenditures was three times more than the combined total of all of Benajmin’s other supporters. Benjamin won with 53% of the vote.
Massey appealed the $50 million jury verdict to the state supreme court, including now-Justice Benjamin. The court granted review, and Caperton moved for Justice Benjamin to recuse himself, citing due process concerns and arguing that the state’s judicial standards required recusal. Justice Benjamin denied the motion and participated in the case. The court reversed the judgment on a 3-2 decision, with Justice Benjamin in the majority.
Caperton sought rehearing, and on rehearing, one of the justices in the majority recused himself after pictures surfaced of he and Blankenship vacationing together on the French Riviera. One of the justices in the minority recused himself based on his public criticism of Blankenship’s role in Justice Benjamin’s election. Justice Benjamin, however, again declined to recuse himself, and participated in another narrow decision reversing the trial court’s judgment.
The United States Supreme Court granted certiorari and, in a 5-4 decision, ruled that Justice Blankenship should not have heard the case. Justice Kennedy wrote the majority opinion, noting that motions for recusal normally do not implicate constitutional concerns, but instead are matters of judicial ethics. However, the majority noted, when the evidence of a judge’s bias is sufficiently strong, the Due Process Clause requires recusal. For example, precedent dictates that when a judge receives a bonus for convictions, or when a mayor-judge knows that the town’s coffers will benefit from fines received from convicted defendants, due process is compromised.
The majority determined that there is likewise “a serious risk of actual bias . . . when a person with a personal stake in a particular case ha[s] a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” Although it purported not to question Justice Benjamin’s claim that he was not actually biased in favor of Massey, and purported to be agnostic about whether Blankenship’s donations played a decisive role in the election, the majority nonetheless ruled that the objective facts of the situation created so great a risk of bias as to be constitutionally intolerable. In an apparent effort to limit the reach of its holding, the majority emphasized that the case at bar was extremely unusual, noting that the parties had been unable to point to a single additional case involving equally egregious facts.
Chief Justice Roberts penned the principal dissent. He noted that Justice Benjamin’s opponent also benefited from the support of large third-party organizations, and observed that Justice Benjamin’s margin of victory was large enough that Blankenship’s contributions may not have mattered. More fundamentally, he worried that the majority did not impose a clear standard for when due process requires recusal. He listed 40 questions left unanswered by the majority, including “[h]ow much money is too much money?” and “[h]ow long does the probability of bias last?” The lack of a bright-line rule, in his view, is an invitation to frivolous motions seeking recusal.
Although I am open to persuasion, I doubt that the Chief Justice’s parade of horribles, including countless frivolous recusal motions, will come to pass in North Carolina. First, the Code of Judicial Conduct already requires recusal in any case in which the judge’s impartiality “may reasonably be questioned.” Thus, the basis for recusal motions already exists, yet few are filed. Second, I’m not aware of any judges with anything like the disproportionate support received by Justice Benjamin. (Those with lots of time on their hands can certainly check out the campaign finance reports on the Board of Elections website and tell me if I’m wrong.) The latter point is particularly true with respect to criminal matters, where the number of dollars at stake is relatively low, and it’s particularly true with respect to appellate judges, since most candidates for appellate judgeships accept public financing and its attendant restrictions.
Am I wrong?
