by Carole J. Buckner
Judicial impartiality is central to the public’s perception of the integrity of our system of justice. Cal. Code Jud. Ethics, Canon 1 (2013). Safeguarding judicial propriety requires vigilance from both lawyers and judges. Protecting against partiality involves not only guarding against corruption but measuring the appearance of impropriety, which can be more subtle. Judges’ past and present affiliations can create an appearance of partiality, which bears scrutiny. At the same time, judges have constitutional freedom to associate and freedom to speak. Cal. Code Jud. Ethics, Canon 5 (2013). Complete separation of judges from outside activities is impossible, and unwise. The quality of justice benefits from judicial involvement in our communities, and yet, somewhere we must draw a line.
Several recent developments address these issues in disparate scenarios, considering the extent to which particular judicial conduct should be permitted. Examined together they form a fascinating picture of the nuanced balancing of competing interests. Such matters merit the attention of the legal profession for several reasons. Lawyers appearing before judges must know when to move to disqualify a judge. In addition, some of the ethical constraints on judges, such as those governing the types of gifts judges may receive, also constrain the conduct of lawyers.
The foundational premises are well established. Judges must not only avoid impropriety, but also the appearance of impropriety in all the judges’ activities. Cal. Code Jud. Ethics, Canon 2 (2013). Judges must also perform their duties impartially. Cal. Code Jud. Ethics, Canon 3 (2013). Judges must also conduct their quasi- and extra-judicial activities so as to minimize the risk of conflict with their judicial obligations, and so that they do not cast doubt on the judge’s ability to act impartially. Cal. Code Jud. Ethics, Canon 4 (2013). These straightforward tenets are sacrosanct.
Three recent developments extrapolate on these core guidelines. One ethics opinion determines where to draw the line on giving gifts to judges. A second ethics opinion addresses when judges who are former prosecutors must be disqualified from serving as judges in cases where they formerly served as attorneys. A third development involves a recent change in judicial ethics rules which moves the line limiting judges’ affiliations with certain youth groups. Together, these recent developments provide insight into some of the current challenges and practical realities involved in protecting judicial impartiality.
Judicial Participation in Youth Organizations
Over the next year judges may resign from their involvement in the Boy Scouts in order to comply with a new rule eliminating the exemption that previously allowed their participation, to become effective in January 2016. Canon 2 precludes judges from holding membership in organizations that practice invidious discrimination based on race, sex, gender, religion, national origin, ethnicity, or sexual orientation. Cal. Code Jud. Ethics, Canon 2 (2015). Prior language exempted membership in religious organizations, military organizations, and nonprofit youth organizations. The California Supreme Court announced a revision to Canon 2C to the California Code of Judicial Ethics, eliminating the exceptions for participation in military and youth organizations that practice invidious discrimination.
One of the reasons for this change as to youth organizations is the Boy Scout’s policy that does not allow gay and lesbian troop leaders. Some do not accept the proposition that the Boy Scout’s practices constitute “invidious” discrimination. Paul A. Hoffman, Judges Aren’t Out of the Scouts Just Yet, Daily J., Feb. 6, 2015, at 1. Hoffman argues that the First Amendment protects judges’ freedom to associate and that the blanket ban will not survive strict scrutiny. Id. Assuming arguendo that a judge’s affiliation with a youth program that discriminates in this manner creates an appearance of impropriety, one might ask whether the rule change mandating that judges disaffiliate repairs the appearance of bias. Assume a judge serving as a Boy Scout Troop leader for many years now resigns. Or, suppose the judge was himself an Eagle Scout. Does the remedy effectively cure the implicit appearance of potential bias that triggered the rule change in the first place? The California Supreme Court has drawn a new practical line with its delay in implementation, recognizing this reality. Time will reveal whether this survives constitutional scrutiny.
Judges Who Previously Served as Prosecutors
In a second recent development, the California Supreme Court Committee on Judicial Ethics Opinions (CJEO) considered whether a judge must be disqualified from hearing a case that the judge handled as a former prosecutor. CJEO, Formal Op. 2015-007 (2015). Impartiality is the absence of bias or prejudice in favor of or against particular parties. Cal. Code Jud. Ethics, Terminology (2013). Impartiality maintains the integrity of judicial decision-making. Id. Canon 1 (Comment). Judges must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Id. Canon 2A. The test for the appearance of impropriety is whether a person aware of the facts might reasonably entertain a doubt that the judge would be able to act with integrity, impartiality, and competence. Id. Canon 2 (Comment). Normally, where a judge previously acted as an advocate for one party in a case that comes before the judge, impairment of impartiality is presumed. For example, judges who previously acted as attorneys for the parties before them have been disqualified from acting as judges in the case.
By looking to legislative history, the CJEO tells us this need not be the case where a former district attorney is now serving as a judge. Previously, the phrase, “served as a lawyer in the proceedings” had been construed to include any appearance. CJEO, Formal Op. 2015-007 at 7; Cal. Civ. Proc. Code § 170.1 (2014). Now, at least as to former prosecutors, the term “served as a lawyer in the proceedings” should no longer be interpreted to refer to any legal services. According to the opinion, the phrase “served as a lawyer in the proceedings” was only intended to require disqualification of judges if the legal services performed raise a reasonable doubt about the judge’s impartiality. CJEO, Formal Op. 2015-007 at 2. For prosecutors, serving as a lawyer includes only “active” participation or “substantive” involvement. Id. at 10.
Based on this reasoning, the former-prosecutor-turned-judge need not be disqualified from hearing the same case in which the judge previously appeared as a district attorney, if the prior appearance was “perfunctory” or “non-substantive.” CJEO, Formal Op. 2015-007 at 2. This is because “it would be unreasonable for the law to presume that a judge’s prior appearance at a perfunctory, non-substantive hearing—essentially carrying out an administrative task—would compromise the judge’s impartiality.” CJEO, Formal Op. 2015-007 at 12. In these situations, the attorney would not be considered to have “actively participated,” where the former prosecutor, now judge, gained no knowledge of disputed facts, legal issues, or prosecution strategy. Id. at 3. A few examples given in the opinion include handling a scheduling conference or uncontested motion, where the attorney did not gain knowledge of the disputed facts and legal issues, and therefore had no occasion to form an opinion or develop a bias about the case that would impair impartiality. Id. In contrast, if the judge had participated actively in the hearing, by reviewing the facts, or arguing the merits of even a disputed matter, disqualification would be appropriate based on reasonable doubt regarding the judge’s impartiality. Id. at 12.
Given that other jurisdictions are split on the issue of whether active participation is required for disqualification, (id.), one might ask why not simply disqualify all judges that had made any appearance on a matter of any nature? Prosecutors routinely handle a high volume of matters, cover matters for others, and appear on multiple matters in a manner that could be described as non-substantive. The CJEO chose not to draw the line so as to bar any prosecutors who made appearances in a case from hearing those same cases as judges. We are not protecting against all risks of impropriety, only against situations that create an objective reasonable doubt as to impartiality. This may be a matter of perspective. Indeed, the defendant involved may recall that the prosecutor who made what is described as a perfunctory appearance against him at a scheduling hearing, is the same person now hearing the case on the bench. Any doubt about impartiality is implicitly categorized as objectively unreasonable, and to conclude otherwise would impede the administration of justice.
Gifts to Judges
A third recent opinion considers where we draw the lines on gifts to judges. Because this area involves potential corruption, with judges most frequently disciplined for gifts from lawyers (as opposed to non-lawyers), the CJEO considered whether judges may accept items of little or nominal value under the “ordinary social hospitality” exception to the prohibition against gift giving. CJEO, Formal Op. 2014-005. Gifts to judges are strictly regulated. Cal. Civ. Proc. Code § 170.9 (2014). A “gift” is anything of value to the extent that consideration is not received, including rebates and discounts, and including commercially purchased food and homemade food. Cal. Code Jud. Ethics, Terminology (2013); CJEO, Formal Op. 2014-005 at 5. Think of the box of holiday treats dropped off at the judge’s chambers, or the pizza delivered by a law firm to courtroom staff following a long trial.
Because gifts may be viewed as intended to influence a judge, the Opinion provides that such gifts may not be accepted if offered by a party who has appeared or is likely to appear before the judge—gifts by current and former parties are banned entirely. Cal. Code Jud. Ethics, Canon 4D(5); CJEO, Formal Op. 2014-005 at 8. What about gifts from attorneys? The code provides that judges may not receive a gift that would reasonably be perceived as intended to influence a judge in the performance of judicial duties. Cal. Code Jud. Ethics, Canon 4D(6). If such gifts raise a perception of influence, they are banned. CJEO, Formal Op. 2014-005 at 9. The pizza delivered to the courtroom is unacceptable, as well as dinner and fishing trips. Id. at 10. As to perishable gifts, they should be returned, or disposed of, and a letter sent stating that the gift was not accepted. Id. This is an objective test, which turns on whether a person aware of the facts might “reasonably entertain” a doubt regarding the judge’s impartiality. Id.
The Opinion includes an interesting discussion of what constitutes “ordinary social hospitality.” Such gifts must be ordinary in the sense of being common, and also social, in the sense of relationships for socializing rather than business purposes. CJEO, Formal Op. 2014-005 at 12. Hospitality involves hosting or being hosted. Id. at 13. This would not include tickets where the giver is not hosting the event. Id.
The careful consideration of the boundaries on judicial activity helps to protect the integrity of our judicial process. Understanding recent developments in judicial ethics will enable lawyers to address disqualification of judges and to properly regulate their own conduct.
Carole J. Buckner is Dean of St. Francis School of Law in Irvine, and President of Buckner Law Corp. in Irvine. She can be reached at firstname.lastname@example.org.