Supreme Court Code of Judicial Conduct Task Force
Memo from Judge Mary Kay Becker
Appearance of Impropriety
Mary Kay Becker
February 19, 2009
Canon 1, Rule 1.2, as proposed in the Model Code and recommended by Canon 1 task group:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
Canon 1, Rule 1.2—alternative proposal considered by Canon 1 task group and recommended as minority report:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety.
Pros and cons: See generally articles by Ronald Rotunda and Cynthia Gray.
Opponents of the “appearance of impropriety” language contend:
· It is so vague and arbitrary as to be unfair. Judges do not know what conduct will violate the code as there is no clear boundary between approved and offending behavior. Disciplinarians will necessarily have to make an ad hoc judgment call in each case.
· Some persons will be tempted to bedevil judges with frivolous charges that may appear legitimate to a public that does not understand the test.
· “Appearances” rule should be replaced with specific restrictions.
· Lawyers are not subject to rule prohibiting “appearance of impropriety”; why should judges be?
· It is illogical to discipline a judge for an appearance of impropriety when the judge has been cleared of the underlying allegation of impropriety.
· Defending against a disciplinary charge is expensive and fraught with anxiety because of the potential consequences to reputation and job security. Judges have to make many decisions quickly and should not have to live in a constant state of anxiety about what other people may be thinking.
· Disciplinary decisions that cite “appearance of impropriety” rule tend to use it as a makeweight allegation supplementing other more serious charges, rather than an independent basis for discipline. So why is it needed?
· The rest of the Code is clear enough now that it will adequately cover every situation that has come up in the past where the “appearance of impropriety” language was applied.
Proponents of the “appearance of impropriety” language contend:
· The language is not unfairly vague. It has an objective test: “whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.” Comment 5. On a daily basis the law already permits juries to decide weighty matters of money and personal liberty using the “reasonable person” test.
· The public rightly expects judges to hold themselves to the highest standards of ethical conduct, even when—especially when—it is personally burdensome to comply with those standards. Tough disciplinary standards are the price for independence and high office.
· The present commission was established by a constitutional amendment following a scandal involving a judge who had been admonished for having inappropriate contacts with juvenile offenders, but this discipline was kept secret as required by law. The process is now more open and lay people serve on the commission, but the ultimate control remains with the Supreme Court. Relaxing the standards by which the judicial branch polices itself may, in some future scandal, invite the public to turn over regulation of judges to the other branches of government.
· The “appearance of impropriety” rule forces judges to ask themselves how their conduct will appear to others. It is easier to rationalize your own misconduct if you can only be disciplined under a bright line rule that expressly forbids what you are about to do. Given the infinite variety in human misconduct, some generality is necessary in every set of rules.
· Opponents have not identified any disciplinary cases decided on the basis of “appearance of impropriety” where they think the judge’s conduct should not have been subject to discipline. If it ain’t broke, why fix it?
· If “appearance of impropriety” language is removed from the rule, judges will still be subject to discipline under the remaining language: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.” This equally imprecise language provides the same opportunity to discipline judges for conduct not prohibited by a more specific rule. Caselaw interpreting the “appearance of impropriety” rule has given it shape. Why abandon a standard that has become familiar, in favor of a new standard with unknown parameters?
· The anxiety and fear inspired by the potential for discipline exists because the Commission exists—not because of “appearance of impropriety” language. Anyone can bring frivolous charges at any time under any rule.
· The Conference of Chief Justices unanimously endorsed “appearance of impropriety” as a basis for disciplinary enforcement when the ABA commission tried to get rid of it. The Chief Justices are a group whose collective wisdom cannot be easily dismissed.
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