Posted: March 14, 2018
Code of Judicial Conduct – Comment Period Closed April 28, 2018
CJC02.2 Amend. The proposal adds language to the comment clarifying when legal error violates the Code.
CJC04.1 Amend. The proposal will exempt judicial candidates from certain prohibitions on political activity.
CJC04.2 Amend. The proposal will allow a judge to operate a retention election campaign if the judge anticipates public opposition.
I’m concerned that allowing a non-judge judicial candidate to make a contribution to a political organization or candidate, (A)(4), or attend political campaign fundraiser, (A)(5), prior to confirmation could undermine public confidence in the impartiality of the judicial candidate’s selection if the political candidate (or political organization closely affiliated with the political candidate) would have a role in the judicial candidate’s nomination, appointment, or confirmation. I suggest either eliminating the references to subsections (A)(4) and (A)(5) from proposed subsection (C) or excepting political candidates and their closely affiliated organizations that could play a role in the judicial candidate’s nomination, appointment, or confirmation from the proposed subsection’s permission allowing non-judge judicial candidates not to comply with subsections (A)(4) and (A)(5).
I find proposed subsection (C)’s limitation to campaigning “until the judge reasonably believes opposition will become public” confusing when considered with subsection (B)’s limitation restricting campaigning to when the judge’s retention election “has drawn public opposition.” How can a judge, for example, review the statements and materials produced by her campaign committee under (B)(3), which is limited to when the judge’s retention has already drawn public opposition, if those statements are made and materials produced when the judge only “reasonably believes opposition will become public”? It seems inconsistent.
I oppose allowing judges the ability to run retention campaigns if they anticipate public opposition. A judge’s decisions and actions should speak for herself and should be evaluated accordingly. Permitting retention campaigns will take focus away from whether a judge has acted with respect and thoughtfully dealt with the issues before her and will instead shift focus on campaign contributions and marketing. This is a step in the wrong direction.
CJC02.2 I think last phrase of Comment 2 should be changed from the disjunctive to the conjunctive. Judges should be given the discretion to rule at a trial level if the judge is compelled by an argument that a law is unconstitutional or against public policy. The language currently suggests sanctions if a judge makes any ruling contrary to existing statutory or case law. I believe most judges would avoid any suggestion of activism thus leaving such monumental changes to the appellate courts. Nevertheless, judges should not be fearful to rule based upon his or her conscientious interpretation of the law, the Constitution and the facts. Many litigants who receive an adverse ruling believe it is because the judge doesn’t like them. This language opens up a huge can of worms. Does this comment apply equally to appellate judges?
CJC04.1 I support this change. Although politics can be a confounding issue as political pressure is improperly placed upon judges, many who participate in the political process demonstrate a strong commitment to public service, which is a critical character trait in a judicial candidate. Any candidate who has demonstrated such a commitment to public service through political action should be encouraged to apply for judicial vacancies. The manner by which a judicial candidate may have participated in the political process will speak volumes about their character and commitment to public service, and should fairly be evaluated to guard against appointing any judges whose temperament may not be suitable to the bench. But we should encourage (as this rule change does) those who are engaged in their communities through positive political participation to seek judicial appointment.
I oppose a judge having the ability to campaign for his or her retention election. I especially oppose the change to Rule 4.2 in subsection (C). CANON 4 requires INDEPENDENCE and IMPARTIALITY of the judiciary. Comment to Rule 4.1 states that judges, even when subjected to public elections, are not in the same role as a legislator or executive branch official; they make decisions based upon the law and facts of each case before them and should not make “decisions based upon the expressed views or preferences of the electorate.” Judges and judicial candidates, “must, to the greatest extent possible, be free and appear to be free from political influence and political pressure.” Allowing a judge to campaign for his or her retention election is contrary to the independence and impartiality required by this rule. Allowing campaigning removes the focus the role a judge fulfills and erodes the public confidence in the independence and impartiality of the judge.
Subsection (C) of Rule 4.2 increases the ability and likelihood of a judge engaging in a campaign for his or her retention election. This change creates a very subjective standard (“reasonably believes”) without providing a clear guide on when the judge violates the rule. In order to maintain public confidence in the independence and impartiality of the judge, Rule 4.2 needs more clear and restrictive measures related to campaigning, not vague and open ended provisions.
The Judicial Conduct Commission (JCC) acknowledges the rule-making authority of the Utah Supreme Court in regards to the Utah Code of Judicial Conduct, and the JCC’s role to apply that Code in specific cases. During the most recent public JCC meeting, the Commission discussed the proposed addition to comment (2) of Rule 2.2. Unanimously, the JCC found the proposed additional language unnecessary and had concerns that the proposed additional language may have some unintended consequences.