Roland ABA Testimony on Judicial Code of Conduct

Testimony
of
Jon Roland
President, Constitution Society
http://constitution.org
before the
Commission on Model Code of Judicial Conduct
American Bar Association
February 6, 2004, San Antonio, Texas

In the following testimony I will be suggesting some additional provisions without reference to the existing framework of the Canons, leaving it to others to suggest where they might be inserted and how they might be numbered.

My general position on the Canons is that while they are fairly good as far as they go, they are lacking in specificity, leaving too much range for discretion in application. There are some serious deficiencies in current judicial practice that contribute to the loss of public confidence in the integrity and competence of the legal profession generally and the judiciary in particular.

After I suggest some additional provisions for the Canons, I will also offer some suggestions for needed reforms in areas of practice that are not so much in the realm of judicial ethics as in the realms of judicial rules of procedure, training, and other areas of practice that may have become somewhat established but which are prone to abuse. These suggestions are far from complete. This is only a selection of a few key proposals that might be easier to implement in the short term. It also includes some suggestions that go far enough beyond current practice that they will be controversial, but I ask your serious consideration of them, because they are likely to be matters that will demand your attention in the years ahead. For further discussion of these and related subjects see our website at http://constitution.org.

In my suggested additions, however, I will be using the term "judicial officer" rather than the less precise term "judge" that is presently used. I do this because, strictly speaking, the "judge" in a court session is not always a single individual. It may be a judicial panel, and where there is a jury, the function of judge is divided between the jury and the bench. It may also be a clerk who exercises considerable influence over court proceedings.

Suggested additions

A candidate for an elected judicial position and his or her treasurer shall not solicit or accept campaign donations or commercial services in excess of $500.00 over any election cycle from any law firm or lawyer in practice, or from any active or imminently prospective litigant, in the jurisdiction over which he or she will serve if elected, or closely coordinate with any independent campaign expenditures tending to support his or her election, and shall fully disclose all such donations of $20.00 or more, even if not required to do so by law.
A judicial officer shall recuse himself or herself from any case in which:: He or she has been engaged in a business relationship with a litigant or attorney therefor within the preceding ten years, or with which he or she expects to resume a business relationship after leaving the bench.; He or she has ever been engaged in litigation for or against a litigant or attorney therefor; He or she is related by blood or marriage to the second degree with any litigant or attorney therefor.; He or she has ever received a campaign money nor in kind donation from, or made a campaign money or in kind donation to, any litigant or attorney therefor, in an amount in excess of $50.00, including services as a campaign official or worker.; A litigant or attorney therefor shall demand it on grounds of a close personal or social relationship with a litigant or attorney therefor.
The presiding judicial officer of any jurisdiction where there are multiple judicial officers available to hear cases shall, consistent with law, assign judicial officers to cases strictly by lot, conducted in a public, auditable manner, among those judicial officers not disqualified.
A judicial officer shall not exercise his discretion to the prejudice of any litigant or attorney therefor who has, had, or expects to have, an action for malpractice against a lawyer, or a complaint of legal, investigatory, prosecutorial, or judicial misconduct, or any appeal from a judicial decision, or for any action for abuse of process or malicious prosecution.
A judicial officer who supervises the selection of petit or grand jurors shall conduct such selection in a public and auditable manner in accordance with law, from the original list of candidates through the random preliminary selection to voir dire and final selection.
A judicial officer who supervises a grand jury shall insure that prosecutors and judicial personnel do not exercise undue influence over their proceedings or public access to them.
In any jury trial, unless all opposing parties consent to the contrary, the presiding judicial officer shall insure that all issues of law shall be argued in the presence of the jury, who shall receive copies of all pleadings, including motions and decisions thereon, amicus curiae briefs, actions in intervention, and proposed jury instructions, and access to a law library adequate for referring to all material cited in the pleadings or other court documents.
In any criminal jury trial, the presiding judicial officer shall insure that the jury is provided with copies of all relevant constitutions, statutes, regulations, manuals, forms, or other legal documents that are needed to provide evidence of an unbroken logical chain of legal authority for the charges made leading back to the applicable constitution, using the rigorous logic of mathematics and the propositional calculus and not just informal reasoning.
A judicial officer may require reasonable notice of an affirmative defense but not a motion for affirmative defense, which he or she shall consider a right at common law.
In a criminal jury trial the presiding judicial officer shall not grant motions in limine against the defense except such as may be clearly required by statute.
In any jury trial a judicial officer shall support any of his or her statements, decisions, or instructions concerning what the law is or is not with supporting and dissenting reference documentation, and if any litigant objects to such statements, decisions, or instructions, the judicial officer shall provide an opportunity for opposing witnesses before the jury concerning points of law in dispute.
In writing any decision, a judicial officer shall clearly label and separate the findings, order, and commentary, to avoid any confusion.
In the final order or sentence of a trial, the judicial officer shall explicitly state which rights the exercise of which are disabled, the limits of such disabilities, what penalties or actions consistent with those disablements are imposed, and the officers who shall execute such impositions; and in any subsequent proceeding, a judicial officer shall not consider any right disabled that is not thus explicitly disabled.
A judicial officer shall not order any legal records or decisions to be sealed or unpublished unless doing so would severely impair the rights of a person or endanger the nation, and then only as required by statute.
In the construction of any constitution, statute or other rule, the judicial officer shall first exhaust textual, then structural, then historical evidence, before considering precedents of orders and findings, and to only cite commentary for the reasoning used and not treat it as though it were law superior to the text of a written constitution.
In the construction of any constitution, statute or other rule, a judicial officer shall interpret a delegated power as narrowly, and a claimed right against the exercise of a delegated power as broadly, as the text, structure, and historical evidence shall allow, and on any judicial panel of multiple judicial officers, they shall agree to be unanimous to sustain a claimed power of government against a claimed right of a non-official against the exercise of such delegated power.
In any dispute between an official claiming a delegated power and a non-official claiming a right against the exercise of such claimed power, a judicial officer shall accord the benefit of the doubt to favor the non-official, and the challenged official shall be required to prove his lawful authority for his actions by an unbroken logical chain of authority leading back to a constitution, lacking which the judicial official shall stay the execution of such power, unless a public emergency shall require it.
A judicial officer shall not neglect to provide oyer and terminer for any petition for a writ of habeas corpus or quo warranto, and, except in times of public emergency when the courts are not open, shall treat any such petition as granted by default if oyer and terminer is not accorded within the time prescribed by statute, or within two days if it is not.
A judicial officer shall not deny standing to any person seeking private prosecution of a public right, even if such person has not yet suffered injury thereby, for declaratory or injunctive relief.
A judicial officer shall not deny access to a court or grand jury for private criminal prosecutions, except to provide that if there are multiple contenders for prosecution of the same case, the grand jury shall decide which contender shall prosecute by returning a bill of indictment to one and not to the others, and shall favor private criminal prosecutions in cases of public corruption.

I respectfully request consent to revise and extend this testimony in subsequent messages, based on any questions or comments raised during discussion.