Posted: August 3, 2012
Code of Judicial Conduct
CJC Applicability. Application of this Code. Amend. Provides a definition of a full-time judge.
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Posted: August 3, 2012
CJC Applicability. Application of this Code. Amend. Provides a definition of a full-time judge.
The antecedent of “whose” in Subdivision I(C)(2) is unclear. I believe it techically refers to “one court,” particularly since “judicial weighted caseload measure” is singular. I believe it would be more clear if “measure” in line 16 were changed to “measures,” and “shows” were changed to “show.”
I am an attorney, fomer Chair of the Utah Judicial Conduct Commission and the Mayor of Centerville. We have a Justice Court in our city and a part-time judge. Our current justice court judge also serves part time in other justice courts. I am very concerned that the proposed amendment to the definition of a full-time judge will have the unintended consequence of discouraging qualified judges from serving. A full-time judge cannot practice law, be a mediator, fiduciary, trustee, or employee of a non-family business. By making a part-time judge who serves in more than one court a full-time judge, the proposed definition would jeopardize the ability of our current judge to continue serving. He would likely have to resign in one of the cities he serves or stop practicing law. The effect will be a smaller and less qualified pool of applicants for future justice court openings.
I believe the definition of “full-time judge” is highly unrealistic. For example, a number of Justice Court judges serve in two (or more) jurisdictions but, in total, appear much less than five days a week in the role of judge. The mechanical application of your restrictive definition will very likely cause the loss of some or all of these judges. Consequently, at the very least, the definition ought to cover only those judges whose appearances cover at least a five-day workweek and who are required to be present for judical functions for at least forty hours during a typical week. This would bring your definition into line with the general understanding of full time employment. It would also allow judges whose work is presently exemplary to keep their positions. If the presently proposed definition is adopted, it will have the unintended consequence of removing excellent judges from the bench, and that would be a highly unfortunate turn of events.
The Utah Supreme Court is considering changes to the rules governing judges sitting on the Justice Courts. In general terms, the proposed rule redefines judges previously considered part-time to be full-time solely for the purpose of restricting secondary income opportunities. Under the proposal, if a part-time judge sits on a court whose weighted caseload is determined to be at least 1.0, even if the part-time judge is a 0.2 judge appointment, the judge will be considered full-time. The prposed rule also defines part-time judges holding multiple Justice Court appointments totaling 1.0 weighted caseload as full-time judges.
The explanation for this proposal appears to be an attempt to address the perceived ethical issues raised by part-time Justice Court judges engaging in civil practice before other courts, or acting as a fiduciary, etc. (Justice Court judges are currently barred from practicing criminal law or from appearing as counsel before their own courts and are subject to other restrictions. See §78-7-206 & current CJC restrictions for part-time judges.) The proposal raises a number of concerns, and appears to have little connection to the problem it has been proposed to address.
First, the perceived ethical conflict is directly inverse to the application of the proposed rule. The perception of concern is that parties will believe that they are at a disadvantage when a part-time Justice Court judge appears as adverse counsel in a proceeding before another court (or, correlatively, may select counsel for a perceived advantage). But the proposed rules specifically exempts those Justice Courts which have less than a full weighted caseload. Thus, the smaller communities are exempted from the rule. Yet it is obvious that it is exactly in such communities that a part-time judge is most likely to be identified as a judge while engaged in other civil practice, and thus most likely to raise the perceived ethical issue. In larger communities, Justice Court judges are far less likely to be identifiable by the public or, for that matter, by the bar. This is simply a reflection of the differences in population size and mobility. Thus, the proposed rule has effect only where least justified and exempts where it might do some good.
Second, the scope of the prohibition in the proposed rule is very wide. Judges of the Justice Court are already barred from criminal law practice. The proposed rule would also bar them from civil practice in any court in the state. That is, part-time judges would be barred from civil practice before all of the courts of counties and cities of Utah, the federal district court, and the federal bankruptcy court. It will bar part-time judges from serving as bankruptcy trustees, acting as special masters for state or federal courts, or from acting in a fiduciary role in, for example, business activities. It may also bar transactional practices, including estate planning, for example.
Third, the proposed rule may force judges (primarily attorney judges) to leave the bench. Because the proposed rule bars civil practice, serving as a fiduciary, etc., it may force current part-time judges in locales with at least 1 full time weighted caseload allocation to step down. Given the scope of the proposed rule’s application, sitting judges who also act as bankruptcy trustees, have limited civil practices, etc., in addition to part-time appointments will need to leave the bench. This represents a grave loss in experience for the bench.
Fourth, the rule will have a decimating effect on recruitment of new judges to the Justice Courts. The applicant pool for Justice Court positions is already uncomfortably restricted. Recent positions elicited 8 to 14 applicants. If the proposed rule is adopted, that number will be significantly smaller. Justice Courts will increasingly be staffed by judges either without legal training or with only very limited training, a circumstance that is very unlikely to improve satisfaction with the level or quality of justice in those courts.
Fifth, the proposed rule presents problems of administration. Weighted caseload is, frankly, a standard that is opaque to the public and bar, and to most judges. The weighted caseload of particular courts is not regularly, timely, informatively, or accurately conveyed to Justice Courts. The measure is volatile over short periods. Worst of all, it has no conceivable connection to the issue the proposed rule is purported to address. Surely no one thinks that perceptions of ethical issues tie to the weighted caseload measurements. There is an administratively simple alternative. Full time judges either hold a fulltime appointment from a single employing agency (e.g., city), or hold appointments from several agencies that cumulate to one fulltime appointment. I.e., judges are appointed as 0.2 or 0.5, etc., by the employing agency and those are the numbers to count.
If the issue is not a perception of an ethical conflict, but instead the proliferation of part-time appointments in lieu of full-time appointments where full-time appointments are warranted, the proposed rule will do nothing to solve that problem. That issue can and should be addressed directly.
I believe the comments of Messrs. Bogart, Thompson, and Russell are astute and highlight the problems that the proposed rule change would create.
It is not at all clear what perceived concern the change is designed to address, and the stated “supposition that a uniform system of ethical principles should apply to all those authorized to perform judicial functions” is faulty at best. That supposition forces a square peg of judges who perform significantly different duties into a round hole that does not fit and that threatens to undermine the quality of judges who serve the Justice Courts and who will be willing to serve in the future.
Moreover, the supposition is not served by the proposed rule change given the broad carve outs that it makes for Justice Courts with less than a full case load, judges pro tem, and senior judges. Obviously, such carve outs are necessary to ensure qualified people can be found to fulfill these duties, just as the existing carve out for all part time Justice Court judges is needed. The harm this rule change will bring to the reputation, efficiency, and effectiveness of Justice Courts by undermining the quality of judges willing and able to serve will be profound.
If there is another perceived problem that is not identified in the comments to the proposed rule change, it needs to be identified and addressed narrowly and specifically. It should not be addressed as proposed and without a full vetting of the issue.
When I was a law student, Walter Oberer (former dean of the University of Utah [now SJ Quinney] College of Law) told our ethics class, “When I cannot remember a rule, I think of the reason behind the rule, and then I remember the rule.” I believe he might have a problem remembering the proposed rule pertaining to the definition of a full-time judge, as there is no reason behind it. As the other comments have pointed out specifically, justice court judges in more densely-populated areas are less likely to be recognized than judges in less well-populated areas. In Salt Lake City, for example, there are many pleas by affidavits from out-of-state residents who never appear in court, as well as many transients who are not part of the permanent Salt Lake City community. My profile, as well as that of other part-time judges in the larger cities of the Wasatch Front, is correspondingly low. In addition, as noted in other comments, there have been no complaints about judges who also served as trustees or lawyers in non-criminal cases.
There are good reasons behind not imposing this rule, however; reasons which are also specifically described in the other comments. For example, the lack of interest in a part-time judge position which prohibits other legal work, work that would allow the law-trained judges to support a family and be a judge, will discourage law-trained applicants. In addition, the Code of Judicial Conduct is replete with rules which govern the behavior of judges outside the courtroom. This rule brings nothing to that table.
By narrowing the field of likely applicants for part-time judge positions, this rule would almost certainly reduce the quality of those applicants, and therefore the fairness of justice administered by the justice courts. There is no reason for this rule, and it should be forgotten.
Others commenters have made clear my objection to this rule change. It it apparently intended to fix a problem that does not exist. But the change in the rule creates a real problem in limiting applicant pools for judicial positions.
Utah has a long history of persons serving as part time judges. Although the proposed rule preserves this right for judges in rural areas, those serving in higher density Utah communities will likely leave the bench. This proposed rule will likely result in a brain drain of experienced and capable members of the bar serving as part time judges. I recommend that you withdraw this proposed rule. If there is a problem with a particular judge, then I recommend that you resolve the problem with that judge instead of passing another rule. Paul Newton
I believe that the comments of Bogart, Thompson, Russell, Stormont, Roberts, Robison, and Newton below highlight the problem the proposed rule change would create.
I offer these additional thoughts:
This rule does nothing to improve the quality of justice in our justice courts, but instead, diminishes the quality of justice.
First, the proposed rule addresses a non-existent problem. Colin Winchester, the Executive Director of the Utah Judicial Conduct Commission, has stated that the Commission has received “zero” complaints concerning a Justice Court Judge practicing law. Further, the existing Judicial Canons and rules regarding recusals and disqualifications (including those relating to any appearance of impropriety) make this proposed rule moot.
In addition, Mr. Winchester has stated that he is aware of no other jurisdiction which has adopted a rule restricting part-time judges from practicing law.
Second, the proposed rule removes almost all possibility of secondary employment for part-time judges serving in larger courts. Recent positions in both Salt Lake and Weber Counties had to re-open because there were not enough applicants.
Third, the proposed rule defines as full-time Justice Court Judges who are clearly paid part-time, clearly work part-time, and who are clearly considered by the appointing authority and the AOC’s own weighted caseload assignment and salary recommendations to be part-time.
Moreover, under § 78A-7-206, a 0.2 judge may be paid as little as $13,200 per year. If this judge is employed in a jurisdiction that also has a full-time judge (like Sandy, Salt Lake City, West Jordan, Salt Lake County, Taylorsville, Ogden, Utah Conty, etc.), this judge would be prohibited from almost all secondary employment.
Fourth, the proposed rule will have a decimating effect on the recruitment of new judges to the Justice Courts and on existing judges. The prohibitions from secondary employment are particularly concerning in larger jurisdictions that have more than one full-time judge. Larger jurisdictions do not grow from 1 full-time judge to 2 full-time judges. Instead, jurisdictions hire part-time judges to assist with the growing caseload.
Fifth, the proposed rule arbitrarily allows a .84 judge in South Jordan, a .95 judge in Draper, and a .85 Judge in Wasatch County the ability to serve as an arbitrator, mediator, and civil attorney, while disallowing a 0.2 judge in Sandy or a 0.5 judge in Salt Lake City to serve in the same capacity.
Sixth, if the issue is not a perception of an ethical conflict, but instead the proliferation of part-time appointments in lieu of full-time appointments where full-time appointments are warranted, the proposed rule will do nothing to solve that problem. However, the AOC under current statute has the ability to stop such appointments.
Section 78A-7-206(1)(b) provides:
(ii) The caseload of a part-time judge shall be determined by the office of the state court administrator and expressed as a percentage of the caseload of a full-time judge.
(iii) The judge’s salary shall then be determined by applying the percentage determined in Subsection (1)(b)(ii) against the salary range determined in Subsection (1)(a) [50-90 percent of a District Court Judge’s salary].
The AOC has sanctioned and put forth nominating committees for the part-time positions in Sandy and Salt Lake as 0.2 and 0.5 for weighted caseload and salary. It seems peculiar that these part-time positions will be considered full-time position solely for purposes of restricting secondary income.
Further, the proposed rule presents problems of administration. Mr. Shea’s memorandum to the Judicial Council dated April 17, 2012, acknowledges many problems with the weighted caseload approach. There are administratively simple alternatives to this proposed rule. If the issue is simply the proliferation of part-time appointments in lieu of full-time appointments where full-time appointments are warranted, the AOC could solve this problem by fulfilling its obligation of determining the weighted caseload of part-time judges appropriately under section 78A-7-206(1). Or, if the problem is that weighted caseloads are more difficult to determine in larger multi-judge courts, the following rule could be adopted:
(C) A “full-time judge, within the meaning of this Code, includes any judge of a court of record and a judge of a court not of record:
1. who is appointed as a full-time judge by the entity the judge is employed with; or
2. whose cumulative total appointment percentages as designated by the entities employing said judge is equal to or greater than a 1.0 of a full-time judge.
(D) For courts who have a total judicial weighted caseload of less than 1.0, the appointment percentage will be the total judicial weighted caseload as approved by the Judicial Council.
(E) This definition of what a full-time judge is does not apply to justice court judges who are were appointed prior to May 2012.
(F) A judge might rebut the presumption that the judge is full-time by demonstrating unique circumstances such as the following: the judge does not receive a salary commensurate with full-time professional work; the judge, by contract or in practice, performs substantially less than forty hours in judicial service per week; the employing entity, by contract or in practice, permits or anticipates that the judge will have other employment; or the employing entity does not regard the judicial employment as full-time.
Though not perfect, the above suggested language has fewer pitfalls than the current proposed language.
Strangely, Active Senior Judges (who performed judicial duties 300 days in 2011) would remain far less restricted than part-time Justice Court Judges under this rule. Active Senior Judges would continue to be able to serve as arbitrators, mediators, trustees, fiduciaries, and engage in business activities which part-time Justice Court Judges serving larger jurisdictions on a part-time basis would not. Pro Tempore Small Claim Judges who, as far as the public is concerned, are the same as Justice Court Judges, would not be restricted other than not practicing in the small claims division they serve. (It should be noted that Small Claims Judges Pro Tempore handle approximately 700 cases in just the Salt Lake City Justice Court alone each month.)
Seventh, this proposed rule change ignores the reasons why the Model Code of Judicial Conduct allows part-time judges to practice law highlighted in the quotes below.
Canon 31 of the 1924 Canons of Judicial Ethic indicated that “[i]n inferior courts in some states, it [the practice of law by one holding judicial position] is permitted because the county or municipality is not able to pay adequate living compensation for a competent judge,” Lisa L. Milord, The Development of the ABA Judicial Code, 131, 141 (1992).
The reporter’s notes to the 1972 Code of Judicial Conduct explains “[t]he concept of the part-time judge assumes that such a judge does not receive full-time pay and is allowed to carry on remunerative outside activities.” E. Wayne Thode, Reporter’s Notes to Code of Judicial Conduct 101 (1973).
During the development of the 1972 code, the North American Judges Association President indicated that “[i]n view of the inequities presently existing in the judicial system, and in view of a judge’s right to enjoy a decent standard of living, it may be reasonable to suggest that the payment of adequate compensation should be a condition precedent to any limitation on his activities.” Standards for Part-Time Judges, Report of North American Judges’ Association’s Special Committee on Standards of Judicial Conduct, 10 Court Review 2, 3-4 (1971).
Before adopting a rule with so many pitfalls, it would be helpful to have someone articulate what this proposed rule is intended to accomplish, and how it will actually accomplish its objective. It would also be helpful to have an explanation of why it is desirable to impose these restrictions on only some part-time judges. If there is an ethical problem lurking here, it applies equally to all, i.e., to all part-time judges, to active senior judges, to judges pro tempore, etc.
This proposed rule is:
(1) unfair in its limited application;
(2) over broad as to those it does affect; and
(3) not needed.
But, if you must, a cleaner and simpler rule would accomplish the original stated objective more precisely — and without as many unintended and unfair consequences. The purpose as stated by the AOC was very simply: “to clarify the current provision that prohibits full-time judges from practicing law.”
Consider this possible alternative to achieve that goal:
First, require all Part-Time judges to sign an annual perjury statement that all of their judicial activities total less than 30 (or some other number) hours per week. This would be in a new “Applicability” paragraph at I.C. (Or perhaps have all judges inform the public how many average hours a week they work as a judge.)
Second, add a paragraph under “Part-Time Justice Court Judge” at Rule III.C. which requires that an otherwise part-time judge: “shall cease the adversarial (in court) practice of law in Utah State and Local Courts within one year after that judge’s annual certification required by Rule I.C. evidences, or it is otherwise finally determined, that more than 30 total average weekly hours are served in any and all judicial capacities.”
This possible alternative has the benefit of avoiding unintended collateral consequences, and making each judge responsible for his or her truthful oath. It is also consistent with the spirit of Utah’s existing Judicial Advisory Opinion on the subject. Informal Opinion 96-1 already allows a presumptively full-time judge to “rebut this presumption by demonstrating unique circumstances such as the following: the judge does not receive a salary commensurate with full-time professional work; the judge, by contract or in practice, performs substantially less than forty hours in judicial service per week; the employing entity, by contract or in practice, permits or anticipates that the judge will have other employment; or the employing entity does not regard the judicial employment as full-time.”
But, please look closely at whether the rule is truly needed in any form, and if it is, whether it should be revised and limited as above, or out of fairness, expanded to cover similar situations involving all judges. For example, if this is truly necessary, why should there not also be some limit on all former judges from acting as an attorney, etc. at least for a certain period of time after resigning/retiring? The possible public perception of the potential for unfairness seems similar.
I am the Executive Director of the Utah Judicial Conduct Commission, a position I have held for ten years. Many years ago, I served as the Associate General Counsel, then General Counsel, to the Administrative Office of the Courts. I have also twice participated, once as staff and once as a committee member, on ad hoc committees tasked with recommending changes to the Code of Judicial Conduct (“the Code”) to the Utah Supreme Court. My comments below are my own. They should not be attributed to the Judicial Conduct Commission, the Administrative Office of the Courts or the Utah Supreme Court.
I support the idea of defining “full-time judge” for purposes of the Code. I would, however, place the definition in the Code’s Terminology section.
As proposed, I would include within the definition of “full-time judge” any judge of a court of record.
For judges of courts not of record, I would include within the definition of “full-time judge” those judges who: (1) serve only in one justice court AND are considered or classified by their employer to be a “full-time” employee; or (2) serve in more than justice court AND personally have a combined weighted caseload greater than or equal to 1.0.
I take no position on the proposed grandfather/effective dates.