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Legally Speaking

 

Issue: August, 2009
Author: John M. Burman

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Ethically Speaking - Wyoming Supreme Court Adopts New Code of Judicial Conduct

By Order dated June 23, 2009, the Wyoming Supreme Court adopted a new Wyoming Code of Judicial Conduct (“the New Code”). The New Code, which is based on the American Bar Association’s 2007 Model Code of Judicial Conduct, represents the first change to the Code of Judicial Conduct in Wyoming since 1990; the New Code became effective on July 1, 2009. It reflects the unique circumstances of Wyoming. In particular, the New Code addresses Wyoming’s judicial selection and retention process, a process which puts Wyoming in the small minority of states that do not have judicial elections. The New Code is the result of recommendations made to the Court by the Select Committee to Review the Code of Judicial Conduct.

Lawyers may wonder why they need to know about the Code of Judicial Conduct. While they should be interested, in general, lawyers have an ethical duty to report judges in certain circumstances:

A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

Three terms of the reporting obligation are in bold: “applicable rules,” “shall inform,” and “appropriate authority.” The reason is lawyers need to know what the applicable rules are, that the reporting obligation is mandatory, and the identity of the appropriate authority.

The “applicable rules” are contained in the Wyoming Code of Judicial Conduct. The “appropriate authority” is the Commission on Judicial Conduct and Ethics (“the Commission”), a body which has its own set of rules: “Rules Governing the Commission on Judicial Conduct and Ethics.”

The Commission consists of 12 members: two district court judges, one circuit court judge, three lawyers appointed by the Wyoming State Bar, and “six electors of the state who are not active or retired judges or attorneys,” appointed by the Governor, subject to confirmation by the State Senate The Commission is to, inter alia, “receive, investigate, hear, and adjudicate allegations of judicial misconduct . . . .” Upon finding judicial misconduct, the Commission may privately censure a judge, or recommend public discipline, including removal from the bench, to the Wyoming Supreme Court.


The Committee
On December, 17, 2007, Chief Justice Voigt signed an Order (“the Order”) creating the Select Committee to Review the Code of Judicial Conduct (“the Committee”). Timothy O. Beppler was subsequently added to the Committee. The Committee was directed to examine the 2007 ABA Model Code of Judicial Conduct, the Wyoming Code of Judicial Conduct (“the old Wyoming Code”), changes in the practice of law, the profession of judging, and the regulation of judges since the then current Wyoming Code had been adopted in 1990 and other related matters, to evaluate whether it would be appropriate to recommend changes to the Wyoming Code.

The Order directed the Committee to report “to the Wyoming Supreme Court by and through the Board of Judicial Policy and Administration (“the Board”).” The Committee submitted a Final Report with recommendations in November of 2008. The Board unanimously adopted the Committee’s recommendations. Those recommendations were subsequently sent back to the Board, which made minor changes. The modified version was returned to the Wyoming Supreme Court, which adopted the Board’s modified version on June 23, 2009.


Membership
The Committee consisted of 16 voting members, a chair (who voted only in case of a tie, and there were none), and a recorder:

  • Chair, John M. Burman, Carl M. Williams Professor of Law & Ethics, University of Wyoming College of Law, Laramie
  • Timothy O. Beppler, Attorney at law, Evanston
  • Hon. E. James Burke, Justice, Wyoming Supreme Court
  • Hon. Robert A. Castor, Circuit Judge, Albany County
  • Bernadine Craft, Public Member, Sweetwater County
  • Hon. Timothy C. Day, Circuit Judge, Teton County
  • Sleeter Dover, Executive Director, Wyoming State Bar
  • Hon. Jeffrey A. Donnell, District Judge, Second Judicial District
  • Hon. Jane Eakin, Circuit Judge, Carbon County
  • Mark W. Gifford, Attorney/Mediator, Casper
  • Hon. Gary P. Hartman, District Judge (now retired), Fifth Judicial District
  • Teresa K. Jensen, District Court Commissioner, Second Judicial District
  • Richard A. Lavery, Municipal Judge, Evanston and Mountain View
  • Rebecca A. Lewis, Bar Counsel, Wyoming State Bar
  • Ruth Neely, Municipal Judge, Pinedale
  • Hon. Scott W. Skavdahl, District Judge, Seventh Judicial District
  • Rhonda Sigrist Woodard, Attorney at Law, Cheyenne
  • Recorder, Maren P. Schroeder, law student, University of Wyoming College of Law (class of 2009), Laramie

Process
Starting in January of 2008, and continuing through October of that year, the Committee met twice per month by telephone conference call. Its last meeting was in November of 2008. It first decided to accept the recommendation of the Conference of Chief Justices to adopt the format of the 2007 ABA Model Code of Judicial Conduct (“the 2007 Model Code”). The Committee then proceeded through each of the Canons, Rules, Comments, and the other parts of the 2007 Model Code, beginning with Canon 4 (which addresses judicial campaigns). As each section of the Code was finished, such as the Terminology or individual Canons, the Committee reviewed that section in its entirety. When the Committee had worked through the entire 2007 Model Code, it considered the proposed New Code as a whole. It is that code which the Committee presented to the Board, with its recommendation that it be adopted to replace the old Wyoming Code of Judicial Conduct. It was. The Supreme Court adopted the New Code on June 23, 2009, with an effective date of July 1, 2009.


Summary of Changes
A summary of the New Code follows. It is not practicable to show strike outs and underlining with the old Wyoming code (there are many changes and the format is very different–and much easier to understand), so the New Code as recommended by the Committee and adopted by the Wyoming Supreme Court is based on the 2007 ABA Model Code. Accordingly, the first significant change is that the entire old Wyoming Code was repealed and replaced with a new one, which has a much different and much more readable format.

The old Wyoming Code began with a Preamble, which contained general principles. The New Code has both a Preamble and a Scope, but the two sections essentially contain what the old Preamble did. That is, they contain general principles.

After the Preamble and Scope comes the “Terminology” section. It contains a number of new terms and some old ones were deleted.

The following definitions have been deleted from the New Code: Candidate, Continuing part-time judge, Court personnel, Judge, Member of the candidate’s family, Periodic part-time judge, Pro tempore part-time judge, Public election, and Require. The following terms are new: Contribution, Domestic partner, Impartial, Impending matter, Impropriety, Independence, Integrity, Judicial candidate, Nonjudicial candidate. The new definitions of “Judicial candidate” and “nonjudicial candidate” are unique to Wyoming. The former is designed to encompass those lawyers who are applying for a judgeship or seeking retention. The latter is used in Rule 4.4, which requires a judge to resign his or her judgeship to run for or seek a non-judicial office.

After the” Terminology” section is a section entitled “Application.” It “establishes when the various Rules apply to a judge or judicial candidate.” The old Wyoming Code had an “Application” section, but it came at the end of the code. The section is now near the beginning, which seems to make more sense. The old Application section contained a number of categories of part-time judges. Those have been eliminated from the New Code, which applies to all judges, with exceptions for part-time judges. Eliminating the multiple categories should simplify the code.

Perhaps the most important part of the new “Application” section is that the code does not apply to administrative law judges or hearing officers. Part I(b), in the last sentence, says that “judge . . . shall not include administrative hearing officers or other members of the administrative law judiciary.” While such decision-makers or recommenders have an increasingly important role in the legal system, their role is very different and they should have their own code. (The ABA has a Model Codes for Federal Administrative Law Judges, and a Model Code for State Administrative Law Judges, and the Court may want to consider what standards should apply to the administrative judiciary in Wyoming as there appears to be a void that should be filled.)


The Canons, Rules, and Comments
“The [new] Wyoming Code of Judicial Conduct consists of four Canons, numbered Rules under each Canon, and Comments that generally follow and explain each Rule.” Each part has a different function.

“The Canons state overarching principles of judicial ethics that all judges must observe. Although a judge may be disciplined only for violating a Rule, the Canons provide important guidance in interpreting the Rules.” The old code contained five Canons. The New Code has four, which contain the same basic principles.

“The Comments that accompany the Rules serve two functions. First, they provide guidance regarding the purpose, meaning, and proper application of the Rules. They contain explanatory material and, in some instances, provide examples of permitted or prohibited conduct. Comments neither add to nor subtract from the binding obligations set forth in the Rules . . . .” Second, the Comments identify aspirational goals for judges. To implement fully the principles of this Code as articulated in the Canons, judges should strive to exceed the standards of conduct established by the Rules, holding themselves to the highest ethical standards . . . .”

Canon 1. “A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”

The first clause of this canon is substantially similar to former Canon 1. The second clause, avoiding “impropriety and the appearance of impropriety,” was in Canon 2 of the old code (the “appearance of impropriety” standard formerly applied to lawyers (before 1986), but it is not part of the ABA’s Model Rules of Professional Conduct or the Wyoming Rules of Professional Conduct.). The rules which appear under the canon, Rules 1.1 through 1.3, were all in the old Wyoming Code. They were, however, located in Canon 2 of the old code.

Canon 2. ”A judge shall perform the duties of judicial office impartially, competently, and diligently.” New Canon 2 was Canon 3 of the old code.

All of the rules under Canon 2, with minor changes, were present in the old code; they can be found under old Canon 3. The Court adopted a few changes to the ABA’s 2007 Model Code. Those changes are discussed below:

Rule 2.5 The words “promptly, efficiently” were added after “competently” in part (A).

Rule 2.8 This rule regulates judges’ contact with jurors. The Court added the following phrase, to expressly allow judges to thank jurors, at the end of Rule 2.8(C): “but may express appreciation to jurors for their service to the judicial system and the community.”

Rule 2.9 This rule governs ex parte communications with judges. Such communications are common, and the new rule tries to strike a balance between not unduly burdening judges and being fair to the parties. The Court made several changes to the ABA’s Model Code. First, the words “or issues on the merits” were added to Rule 2.9(a)(1). Second, the issue of “unsolicited” ex parte communications is addressed by adding the phrase “which in the interest of justice the court believes is required to be considered” to Rule 2.9(B).

Canon 3. “A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. New Canon 3 was Canon 4 in the old code.

All of the rules under Canon 3, with minor changes, were present in the old code; they could be found under Canon 4. The Court made a few changes to the ABA’s 2007 Model Code:

Rule 3.2 This rule addresses judges appearances before other government officials. The new rule makes it clear that judges may appear before the State Legislature or Governor on matters related to the judiciary. New Comment [2] contains additional language at the end: “These rules should not be construed to prohibit a judge from contacting and/or consulting with legislative and/or executive officials concerning judicial budgets, compensation and benefits as a whole.”

Rule 3.6 This rule regulates judges’ affiliations with discriminatory organizations. The Rule strives to strike a balance between wanting to avoid even the appearance of impropriety, while not unduly limiting judges’ private activities. New Comment [2] contains the following additional language at the end: “Absent these or similar factors [the Comment mentions “how the organization selects members . . . whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.”] Such an organization may be perceived to discriminate invidiously. A judge’s apparent condoning of such practices diminishes public confidence in the integrity and impartiality of the judiciary.”

Rule 3.15 This rule establishes reporting requirements for judges who receive gifts or reimbursement for expenses. The ABA Model Code leaves the dollar amounts blank. The New Code says that the amounts should be lower for gifts than for reimbursement of expenses. The amounts chosen are higher than in some states and lower than in others.

New Rule 3.15(A)(2) requires the reporting of gifts that exceed $250.00 per calendar year. New Rule 3.15(A)(3) requires the reporting of over $1,000.00 of reimbursement in a calendar year.

Canon 4. “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” Canon 4 was Canon 5 of the old Wyoming Code.

This is the part of the New Code which is the most different from the old Wyoming Code and the ABA’s 2007 Model Code. The reason is the ABA’s Model Code, and Wyoming’s old code, are written for “regular” elections, not for retention elections. Given the vast differences between regular and retention elections, many of the ABA’s 2007 Model Code provisions do not fit with Wyoming, or the several other states that have retention elections.

Rule 4.1 This rule addresses campaign activities. The Court added subparagraph (A)(6), which says a judge shall not: “engage in any other political activity except on behalf of measures to improve the law, legal system or the administration of justice or except as permitted under the sections of this Canon.”

Rule 4.2 This rule addresses campaign activities in retention elections. Wyoming’s rule makes several changes to the 2007 ABA Model Rules. First, the Court added language to make the rule specific to retention elections, Second, the Court added subparagraphs (3), (4) and (5) to paragraph (A). The subparagraphs say a judge seeking retention “shall:”

* * *

(3) maintain the dignity appropriate to judicial office, and shall encourage members of his or her family to adhere to the same standards of political conduct that apply to the judge;

(4) prohibit public officials or employees subject to the judge’s direction or control from doing for the judge what he or she is prohibited from doing under this Canon; and except to the extent authorized under subsection B, the judge shall not allow any other person to do for the judge what he or she is prohibited from doing under this Canon;

(5) not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce how the judge would rule on any case or issue that might come before the judge; or misrepresent his or her identity, qualifications, present position, or other fact.

Third, the Court added a new paragraph (B):

(B) A judge who is a candidate for retention in office shall abstain from any campaign activity in connection with the judge’s own candidacy unless there is active opposition to his or her retention in office. If there is active opposition to the retention of a candidate judge:

(1) the judge may speak at public meetings;

(2) the judge may use advertising media, provided that the advertising media is within the bounds of proper judicial decorum;

(3) a nonpartisan citizens’ committee or committees advocating the judge’s retention in office may be organized by others, either on their own initiative or at the request of the judge;

(4) any committee organized pursuant to subsection B(3) may raise funds for the judge’s retention election campaign, but the judge shall not solicit funds personally or accept any funds except those paid to the judge by a committee for reimbursement of the judge’s retention election campaign expenses; and,

(5) the judge shall not be advised of the source of funds raised by the committees;

(6) the judge shall not knowingly, or with reckless disregard for the truth, make any false or misleading statement;

(7) the judge shall not make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court; or

(8) the judge shall not in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

Fourth, the Court adopted three comments about “active opposition.”

Comment

[1] Section 4.2 (B) allows judges seeking retention in office to engage in certain activities if there is active opposition to his or her retention. Active opposition is difficult to define but is intended to include any form of public opposition. The term is meant to be broadly construed.

[2] A judge may respond to unsolicited requests from non-partisan groups to provide general biographical information concerning the judge or the judge’s candidacy for retention. A judge may also provide, without request, general information pertaining to the retention and selection of judges and the general functions of the judiciary.

[3] A judge is encouraged to educate the public about the role of the judiciary and the process of judicial selection. Any such educational efforts are not campaign activity.

Rule 4.4 This rule addresses judges who become candidates for nonjudicial offices. The Court adopted a rule that requires a judge to resign to run.

Paragraph (a) establishes the general rule that “a judge shall resign his or her judicial office when the judge becomes a candidate for a nonjudicial elective office, except the judge may continue to hold his or her judicial office while a candidate for election to or serving as a delegate in a state or federal constitutional convention, if otherwise permitted by law to do so.”

Conclusion
With the adoption of the New Code, Wyoming has, for the first time, a Code of Judicial Conduct that is specific to Wyoming. In particular, the New Code addresses Wyoming’s method of selecting and retaining judges, a system that is far superior to the election system that is the predominant system in the country. Because of that different system, the ABA’s 2007 Model Code contains numerous provisions regarding judicial elections that are simply not applicable to Wyoming, and are not part of the New Code.

Because of Wyoming’s different system of selecting and retaining judges, the ABA’s 2007 Model Code is not well-suited for Wyoming when it comes to the selection and retention of judges. For that reason, the New Code does not include most of the ABA’s recommendations regarding selection and retention. Rather, the New Code contains unique provisions that directly address Wyoming’s system, and which should enhance a judge’s ability to operate ethically within the boundaries established by the New Code.

John M. Burman is the Carl M. Williams Professor of Law & Ethics and teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at jmburman@uwyo.edu.

The views and opinions expressed and included in "Ethically Speaking" are those of the author only and do not constitute an opinion, finding or viewpoint, official or unofficial, of the Wyoming State Bar or the Board of Professional Responsibility.


Copyright © 2009 – Wyoming State Bar

     

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