IN RE: AMENDMENTS TO THE CODE OF JUDICIAL CONDUCT

IN RE: AMENDMENTS TO THE CODE OF JUDICIAL CONDUCT
1997 OK 79
Case Number: SCAD-97-14
Decided: 06/24/1997
Supreme Court of Oklahoma

 
IN RE: AMENDMENTS TO THE CODE OF JUDICIAL CONDUCT
NO. SCAD-97-14
__ P.2d __
1997 OK 79
Decided: June 24, 1997
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

O R D E R

¶1 The Code of Judicial Conduct codified at 5 O.S.1991, Ch.1, App. 4, is hereby repealed effective November 1, 1997.

¶2 The new Code of Judicial Conduct is hereby adopted effective November 1, 1997. Adopted Canons 1 - 5 inclusive, are filed herein. The new Canons shall be codified at 5 O.S.Ch.1, App. 4.

¶3 The new Code of Judicial Conduct shall be published three times in the Oklahoma Bar Journal prior to November 1, 1997.

¶4 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 23rd DAY OF JUNE, 1997.

/S/ Justice Hodges

¶5 SUMMERS, V.C.J., HODGES, LAVENDER, HARGRAVE, OPALA, WILSON, WATT, JJ. - Concur

¶6 KAUGER, C.J., SIMMS, J. - Concur in part and dissent in part

SIMMS, J. CONCURRING IN PART, DISSENTING IN PART:

¶1 I dissent only to this Court's rejection of that portion of the American Bar Association's Proposed Code of Judicial conduct which reads: "CANON 2 (C). A judge should not hold membership in any organization that practices constitutionally condemned discrimination."

¶2 I am authorized to state that Chief Justice Kauger joins me in the view expressed herein.

Table of Contents

CANON 1

A judge should uphold the integrity and independence of the judiciary.

CANON 2

A judge should avoid impropriety and the appearance of impropriety in all of the judge's activities.

CANON 3

A judge should perform the duties of judicial office impartially and diligently.

CANON 4

A judge should so conduct the judge's extra-judicial activities as to minimize the risk of conflict with judicial obligations.

CANON 5

A judge should refrain from inappropriate political activity.

APPLICATION

CANON 1

A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.

CANON 2

A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE'S ACTIVITIES

A. A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge should not lend the prestige of judicial office to advance the private interests of the judge or others; nor should a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.

CANON 3

A JUDGE SHOULD PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY

A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law. In performance of those duties, the following standards apply.

B. Adjudicative Responsibilities.

(1) A judge should be faithful to the law and maintain professional competence in it. A judge should not be swayed by partisan interests, public clamor or fear of criticism.

(2) A judge should require order and decorum in proceedings before the judge.

(3) A judge should be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom he the judge deals in official capacity, and should require similar conduct of lawyers, and of his staff, court officials and others subject to the judge's direction and control.

(4) A judge should perform judicial duties without bias or prejudice. A judge should not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and should not permit staff, court officials and others subject to the judge's direction and control to do so.

(5) A judge should require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. This Section 3B(5) does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, or other similar factors, are issues in the proceeding.

(6) A judge should accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge should not initiate, nor consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided that the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication.

(b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, with a record being made, and affords the parties reasonable opportunity to respond.

(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges.

(d) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

(7) A judge should dispose of all judicial matters promptly, efficiently and fairly.

(8) A judge should not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect the outcome or impair its fairness or make any non-public comment that might substantially interfere with a fair trial or hearing. The judge should require similar abstention on the part of court personnel subject the judge's direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.

(9) Except as permitted by the individual judge, the use of cameras, television or other recording or broadcasting equipment is prohibited in a courtroom or in the immediate vicinity of a courtroom.

(a) Before cameras, television or other recordings or broadcasting equipment are used, express permission of the judge must be obtained.

(b) The judge shall prescribe the conditions and specific rules under which such equipment may be used.

(c) Media personnel shall not distract participants or impair the dignity of the proceedings.

(d) No witness, juror or party who expresses any objection to the judge shall be photographed nor shall the testimony of such a witness, juror or party be broadcast or telecast.

(e) There shall be no photographing or broadcasting of :

(1) any proceeding which under the laws of this State are required to be held in private; or

(2) any portion of any criminal proceedings until the issues have been submitted to the jury for determination unless all accused persons who are then on trial shall have affirmatively, on the record, given their consent to the photographing or broadcasting.

(f) No media representative shall offer, nor shall any party, witness or juror accept, consideration in exchange for consent to telecast, broadcast or photograph the judicial proceeding.

8. Representatives of the news media shall conduct themselves at all times in a professional manner consistent with the spirit and intent of this rule. In order to insure such conduct, if such conduct of the news media which violates any of these rules is brought to the attention of any judge, the offending person shall be notified to immediately cease and desist such activity. If the offending party refuses to comply with the order, the judge may act to end such activity, including the seizure of the equipment of such person. Any offender may be dealt with for contempt of court.

 

(10) A judge should not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community.

C. Managerial Responsibilities.

(1) A judge should diligently discharge the judge's managerial responsibilities, without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

(2) A judge should require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.

(3) A judge with supervisory authority for the judicial performance of other judges should take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.

(4) A judge should not make unnecessary appointments. A judge should exercise the power of appointment impartially and on the basis of merit. A judge should avoid nepotism and favoritism. A judge should not approve compensation of appointees beyond the fair value of services rendered.

D. Disciplinary Responsibilities. A judge should report to the appropriate disciplinary authority any unprofessional conduct of a judge or lawyer of which the judge may become aware.

E. Disqualification.

(1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;

(c) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or has an interest more than de minimis that could be substantially affected by the proceeding;

(d) The judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person;

(i) is a party to the proceeding, or an officer, director or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have an interest more than de minimis that could be substantially affected by the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding.

 

(2) A judge shall keep informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge's spouse and minor children residing in the judge's household.

F. Remittal of Disqualification. A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge's disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

 

CANON 4

A JUDGE SHOULD SO CONDUCT THE JUDGE'S EXTRA-JUDICIAL ACTIVITIES AS TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL OBLIGATIONS

A. Extra-judicial Activities in General. A judge should conduct all of the judge's extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;

(2) demean the judicial office; or

(3) interfere with the proper performance of judicial duties.

B. Avocational Activities. A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code.

C. Governmental, Civic or Charitable Activities.

(1) A judge may appear at a public hearing before or consult with an executive or legislative body or official on matters concerning the law, the legal system, or the administration of justice.

(2) A judge should not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice unless with specific approval of the Supreme Court. A judge may, however, represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities.

(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.

(a) A judge should not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization

(i) will be engaged in proceedings that would ordinarily come before the judge, or

(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

(b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:

(i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fund-raising activities;

(ii) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice;

(iii) should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 4C(3)(b)(i), if the membership solicitation is essentially a fund-raising mechanism;

(iv) should not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.

D. Financial Activities.

(1) A judge should not engage in financial and business dealings that:

(a) may reasonably be perceived to exploit the judge's judicial position, or

(b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.

(2) A judge may, subject to the requirements of this Code, hold and manage investments of the judge and members of the judge's family, including real estate, and engage in other remunerative activity.

(3) A judge should not serve as an officer, director, manager, general partner, advisor or employee of any business entity except that a judge may, subject to the requirements of this Code, manage and participate in:

(a) a business closely held by the judge or members of the judge's family, or

(b) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge's family.

(4) A judge should manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge should divest himself or herself of investments and other financial interests that might require frequent disqualifications.

(5) A judge should not accept, and should urge members of the judge's family residing in the judge's household, not to accept, a gift, bequest, favor or loan from anyone except for:

(a) a gift incidental to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge's spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice;

(b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;

(c) ordinary social hospitality;

(d) a gift from a relative or friend, for a special occasion, such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship;

(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Section 3E;

(f) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges;

(g) a scholarship or fellowship award on the same terms and based on the same criteria applied to other applicants; or

(h) any other gift, bequest, favor or loan, but only if the donor is not a party or other person who has come or is likely to come or whose interests have come or likely to come before the judge; and the judge reports it as may be required by law.

E. Fiduciary Activities.

(1) A judge should not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge's family, and then only if such service will not interfere with the proper performance of judicial duties.

(2) A judge should not serve as fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.

(3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity.

F. Service as Arbitrator or Mediator. A judge should not act as an arbitrator or mediator. A retired judge who is eligible for recall may act as an arbitrator or mediator except while serving as a judge. A retired judge who acts as an arbitrator or mediator in a matter may not thereafter act as a judge in the same matter. A retired judge who acts as an arbitrator or mediator may receive reasonable compensation to be paid by the parties. A retired judge, as the term is used, is one who had been approved by the Supreme Court for active service or otherwise perform judicial functions in a private capacity unless expressly authorized by law.

G. Practice of Law. A judge shall not practice law. Notwithstanding, a judge may, without compensation, give legal advice to and draft or review documents for a member of the judge's family. A judge may appear pro se in a matter in which he is a litigant.

 

CANON 5

A JUDGE OR JUDICIAL CANDIDATE SHOULD REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY

A. All Judges and Candidates.

(1) Except as authorized herein a judge or a candidate for election or appointment to judicial office should not:

(a) act as a leader of or hold an office in a political organization;

(b) publicly endorse or publicly oppose another candidate for public office;

(c) make speeches on behalf of a political organization or candidate or publicly endorse a candidate for public office; or

(d) solicit funds for, or pay an assessment to or make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions.

(2) A judge should resign from judicial office upon becoming a candidate for a non-judicial office either in a primary or in a general election, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so.

(3) A candidate for judicial office:

(a) should maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and should encourage members of the candidate's family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate;

(b) should prohibit employees and officials who serve at the pleasure of the candidate, and should discourage other employees and officials subject to the candidate's direction and control from doing on the candidate's behalf what the candidate is prohibited from doing under the Sections of this Canon;

(c) except to the extent permitted by Section 5C(2), should not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon;

(d) should not:

(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;

(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or

(iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent;

(e) may respond to personal attacks or attacks on the candidate's record as long as the response does not violate Section 5A(3)(d).

B. Candidates Seeking Appointment to Judicial or Other Governmental Office.

(1) A candidate for appointment to judicial office or a judge seeking other governmental office should not solicit or accept funds, personally or through a committee or otherwise, to support his or her candidacy.

(2) A candidate for appointment to judicial office or a judge seeking other governmental office should not engage in any political activity to secure the appointment except that:

(a) such persons may:

(i) communicate with the appointing authority, including any selection or nominating commission designated to screen candidates, or members thereof;

(ii) seek support or endorsement for the appointment from organizations that regularly make recommendations for reappointment or appointment to the office, and from individuals to the extent requested or required by those specified in Section 5B(2)(a); and

(iii) provide to those specified in Sections 5B(2)(a)(i) and 5B(2)(a)(ii) information as to his or her qualifications for the office.

C. Judges and Candidates Subject to Public Election.

(1) A judge or candidate subject to public election may, except as prohibited by law:

(a) speak to gatherings on his or her own behalf;

(b) appear in newspaper, television and other media advertisements supporting his or her candidacy;

(c) distribute pamphlets and other promotional campaign literature supporting his or her candidacy; and

(d) publicly endorse or publicly oppose other candidates for the same judicial office in a public election in which the judge or judicial candidate is running.

(2) A candidate should not personally solicit campaign contributions or personally solicit publicly stated support. A candidate may, however, establish committees of responsible persons to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums and other means not prohibited by law. Such committees may solicit and accept reasonable campaign contributions, manage the expenditure of funds for the candidate's campaign and obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers. A candidate's committees may solicit and/or accept contributions and public support for the candidate's campaign no earlier than 90 days before an election filing period and no later than 30 days after the last election in which the candidate participates during the election year. A candidate should not use or permit the use of campaign contributions for the private benefit of the candidate or others.

D. Incumbent Judges on Retention Ballot. An incumbent judge or justice who is a candidate for retention in or re-election to office without a competing candidate, and whose candidacy has drawn active opposition, may campaign in response thereto and may obtain publicly stated support and campaign funds in the manner provided herein.

E. Applicability. Canon 5 generally applies to all incumbent judges and judicial candidates. A successful candidate, whether or not an incumbent, is subject to judicial discipline for his or her campaign conduct; an unsuccessful candidate who is a lawyer is subject to lawyer discipline for his or her campaign conduct.

APPLICATION OF THE CODE OF JUDICIAL CONDUCT

A. Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as an administrative law judge, magistrate, court commissioners, special master or referee, is a judge within the meaning of this Code. All judges should comply with this Code except as provided below.

B. Retired Judge Subject to Recall. A retired judge subject to recall who by law is not permitted to practice law is not required to comply:

(1) except while serving as a judge, with Section 4F; and

(2) at any time with Section 4E.

C. Continuing Part-time Judge. A continuing part-time judge:

(1) is not required to comply:

(a) except while serving as a judge, with Section 3B(9); and

(b) at any time with Sections 2C, 4C(2), 4D(3), 4E(1), 4F, 4G, 5A(1), 5B(2) and 5D.

(2) should not practice law in the court on which the judge serves and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.

D. Periodic Part-time Judge. A periodic part-time judge is a municipal judge who serves on a continuing or periodic basis but is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge.

(1) a periodic part-time judge is not required to comply

(a) except while serving as a judge, with Section 3B(9);

(b) at any time, with Sections 2C, 4C(2), 4C(3)(a), 4D(1)(b), 4D(3), 4D(4), 4D(5), 4E, 4F, 4G, 5A(1), 5B(2) and 5D.

(2) A periodic part-time judge shall not practice law in the court on which the judge serves and should not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.

E. Pro Tempore Part-time Judge. A pro tempore part-time judge is a person who is appointed to act temporarily as a judge. A pro tempore part-time judge:

(1) is not required to comply:

(a) except while serving as a judge, with Sections 2A, 2B, 3B(9) and 4C(1);

(b) at any time with Sections 2C, 4C(2), 4C(3)(a), 4C(3)(b), 4D(1)(b), 4D(3), 4D(4), 4D(5), 4E, 4F, 4G, 5A(1), 5A(2), 5B(2) and 5D.

(2) A person who has been a pro tempore part-time judge should not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto except as otherwise permitted by Oklahoma Rules of Professional Conduct.

F. Time and Compliance. A person to whom this Code becomes applicable should comply immediately with all provisions of this Code except Sections 4D(2), 4D(3) and 4E and should comply with these Sections as soon as reasonably possible and should do so in any event within the period of one year.