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A NATIONAL SURVEY OF
JUDICIAL ETHICS ADVISORY ORGANIZATIONS
A COMPILATION OF STATE STATUTES AND RULES FOR COMMITTEES, COMMISSIONS, AND PANELS CHARGED WITH RENDERING ETHICAL OPINIONS ON JUDICIAL CONDUCT
COMPILED BY:
The Honorable Scott J. Silverman
Dade County Court
Miami Beach, Florida
RULES OF PROCEDURE OF THE JUDICIAL INQUIRY COMMISSION *
Judicial Inquiry Commission Rule 17 - Current with amendments received through 4-1-95
A judge may direct to the Commission in writing a request for an opinion as to whether certain specified action contemplated or proposed to be taken by him may constitute a violation of the Canons of Judicial Ethics, and the Commission may, in its discretion, render to the judge in writing such opinion as it may deem appropriate in the premises. Any such opinion rendered by the Commission that certain specified conduct by the judge would not constitute a violation of the Canons of Judicial Ethics shall be admissible on behalf of the judge to whom it is directed in any disciplinary proceeding involving the propriety of such conduct by the judge to whom the opinion is directed.
* Also has judicial disciplinary responsibilities
RULE 19 - COMMISSION-ISSUED ADVISORY OPINIONS
A. Issuance Formal Advisory Opinions. On written request of a state judicial officer, subject to the Code of Judicial Conduct, the Commission may issue a written formal advisory opinion concerning the application of the Code to a specific fact situation involving that judicial officer. The request for an opinion should specify an the facts relevant to the ethical situation. Both the request for an opinion and the opinion itself shall remain confidential unless the requesting judge asks that it be public.
B. Advisory Opinion Drafting. Written formal advisory opinions shall be drafted by a committee of the Commission appointed by the Chairperson for the purpose of drafting the opinion, with staff assistance. The drafting committee shall be composed of not less than one public member, one attorney member, and one judge member of the Commission. The full Commission shall vote on adoption of the draft opinion.
C. Use of Formal Advisory Opinions. Reliance on the formal advisory opinion by the requesting judge is an absolute defense to subsequent disciplinary proceedings by the Commission concerning the identical facts addressed by the opinion. If there are distinguishing facts, reliance on the formal advisory opinion will be viewed as merely a good faith defense.
D. Informal Verbal Advisory Opinions. As has been its long-standing practice, informal verbal guidance concerning judicial ethics issues, will continue to be available from Commission members and staff. Informal advisory opinions have no legal effect and, if in error, provide no recognized defense to later disciplinary charges.
RULES OF THE SUPREME COURT
RULE 82. JUDICIAL ETHICS ADVISORY COMMITTEE
Current with amendments received through 2/8/96
The Chief Justice shall appoint a Judicial Ethics Advisory Committee of the Supreme Court (referred to in the rule as the "advisory committee") consisting of seven members. Six members shall be judges and one member shall be from the public. Of the judicial members, two members shall be appointed from the Court of Appeals; two members shall be appointed from the Superior Court; one member shall be appointed from the Municipal Courts; and one member shall be appointed from the Justice of the Peace Courts. Members shall serve three-year terms; terms shall be staggered as designated by the Chief Justice; and no member shall serve for more than two consecutive terms. Members shall continue to serve until a successor is appointed, and appointments to fill a vacancy shall be for the balance of the term vacated.
The advisory committee so established shall have authority to:
render advisory opinions on proper judicial conduct with respect to the provisions of the Code of Judicial Conduct, any financial reporting requirements, or any other requirement of law applicable to judges or candidates for judicial office provided that an opinion should not be requested and shall not be issued on a matter known to be pending before a court or before the Commission on Judicial Conduct;
make recommendations to the Supreme Court for amendment of the Code of Judicial Conduct or these rules; and
make recommendations regarding appropriate subjects for judicial education programs.
The advisory committee shall be administered under the direction of a chairperson appointed by the Chief Justice, and assisted, as appropriate, by the staff of the Administrative Office of the Courts and the staff of the Commission on Judicial Conduct.
The chairperson is authorized to appoint a vice-chairperson from the members of the advisory committee, to call meetings as needed, and to otherwise coordinate the work of the advisory committee.
Upon agreement by the Commission on Judicial Conduct, the advisory committee's office shall be located at the same address as the Commission on Judicial Conduct and Commission staff shall be available to answer questions concerning advisory committee procedures, to receive and process opinion requests, to maintain committee records, and to provide other staff assistance as appropriate. All communications with staff concerning requests for advisory opinions shall be confidential, and members of the Commission may not serve on the advisory committee during their tenure on the Commission.
The Administrative Office of the Courts shall distribute the formal opinions of the advisory committee until the advisory committee or the Commission on Judicial Conduct is funded for this purpose, and shall provide other staff assistance as appropriate.
Advisory opinions may be requested by a judge or candidate for judicial office, by a court, by an agency charged with judicial administration or by any member of the advisory committee. Requests for formal advisory opinions shall be submitted in writing at the committee's office or to any committee member and should be accompanied by a letter or memorandum describing the facts and discussing the issues presented in the request. Each request for a formal opinion shall be assigned a number when received, and copies of requests shall be forwarded to all committee members. The identity, organizational affiliation, and geographic location of persons requesting opinions shall be confidential. Requests for informal advisory opinions may be submitted in writing to the committee's office or communicated in person or by telephone to any member of the committee or its staff.
The chairperson of the advisory committee shall determine whether a request for an opinion should be resolved formally with a written, published opinion or informally by letter or other communication. Formal opinions shall be decided by a majority vote of the advisory committee. Informal opinions may be assigned to any member of the advisory committee or its staff to discuss and resolve directly with the person or organization requesting the opinion. The advisory committee may confer in person or by telephone as often as needed to conduct committee business and resolve pending requests.
Immediately upon approval, the advisory committee's formal opinion shall be initially distributed to the requester, the justices, clerk and chief staff attorney of the supreme court, the chief judges of the court of appeals, the presiding judges of the superior court, the director of the Administrative Office of the Courts, and the chief bar counsel tothe Arizona State Bar. Formal opinions shall be accumulated and distributed to all other judges at least annually. Records of advisory committee determinations and opinions shall be maintained at the committee's office.
Within thirty days after the distribution of a formal opinion to all judges, any person, court or agency authorized to request an opinion under this rule may petition the advisory committee to reconsider the opinion by submitting a request for reconsideration to the advisory committee's office in the form of a letter or memorandum explaining the basis for the request. The advisory committee shall respond to the request by either reaffirming or revising the formal opinion. If warranted, the advisory committee or the supreme court may also reconsider an opinion at any time on its own motion. Revised opinions shall be distributed in the same manner as original opinions.
Reliance on a formal advisory opinion may be raised as a defense in any disciplinary proceeding.
Pursuant to Section 5 of Act 791 of 1991 a Judicial Ethics Advisory Committee is hereby created to give advisory opinions to elected officials, judicial officers and candidates for judicial office seeking opinions concerning the compliance of an intended, future course of conduct with the Arkansas Code of Judicial Conduct. The Committee, appointed by the Judicial Discipline & Disability Commission, shall consist of no more than two retired justices or judges and one attorney who is a member of the Arkansas Bar and has never been a publicly elected judicial officer. Committee members may be reappointed and shall serve for three-year terms from date of appointment except that to achieve staggered terms, the first two appointed retired judges shall draw for which one shall serve for three years and which one shall serve for one year. The first appointed attorney shall serve for a two-year term. Vacancies on the committee for an unexpired term shall be filled for the remainder of the term. No member shall serve simultaneously on the Judicial Ethics Advisory Committee and the Judicial Discipline & Disability Commission. Members of the Committee shall be reimbursed their actual and necessary expenses incurred in the discharge of their official duties by the Judicial Discipline & Disability Commission. A chair shall be elected by the Committee members. The Committee may promulgate additional rules of procedure not inconsistent with these rules.
A request for a judicial ethics advisory opinion shall be directed to the Executive Director of the Judicial Discipline & Disability Commission, who shall forward the request to the committee. Requests will be accepted only from elected officials, judicial officials (justices or judges) and publicly declared candidates for judicial office.
Requests for judicial ethics advisory opinions shall relate to prospective conduct only and shall contain a complete statement of all facts pertaining to the intended conduct together with a clear, concise question of judicial ethics. The identity of the individual, whose proposed conduct is the subject of the request, shall be disclosed to the Committee. The requesting individual shall include with the request a concise memorandum setting forth his or her own research and conclusions concerning the question and the statement that the matter is not the subject of a pending disciplinary proceeding. Requests shall not be accepted or referred for opinion unless accompanied by this memorandum.
Advisory opinions shall set forth the facts upon which the opinion is based. Advisory opinions shall address only whether an intended, future course of conduct violates the Arkansas Code of Judicial Conduct and shall provide an interpretation of this Code with regard to the factual situation presented. The opinion shall not address issues of law nor shall it address the ethical propriety of past or present conduct. The identity of the requesting person shall be disclosed in the opinion. If the individual facts and circumstances provided are insufficient in detail to enable the Committee to render an advisory opinion, the Committee shall request supplementary information from the requesting individual to enable it to render such opinion. If such supplementary information is still insufficient or is not provided, the Committee shall so state and shall not render an advisory opinion based upon what it considers to be insufficient detail. The Committee may respond to requests for an advisory opinion by referring the requesting individual to a prior opinion and by so doing need not publish a new advisory opinion. Two members of the Committee shall constitute a quorum for the transaction of any Committee business, including the issuance of any advisory opinion, whether in a meeting or by conference call or by circulated writing.
The Executive Director of the Judicial Discipline & Disability Commission shall provide a copy of each advisory opinion to the requesting party, the Chief Justice of the Supreme Court, the Judicial Discipline & Disability Commission, the Supreme Court library, the two law school libraries and the American Judicature Society. The Executive Director of the Judicial Discipline & Disability Commission shall keep the original opinion in a permanent file. Copies of the opinions will also be published in a publication generally available to judicial officials such as the Supreme Court advance sheets.
All opinions shall be advisory in nature only. No opinion shall be binding on the Judicial Discipline & Disability Commission or the Supreme Court in the exercise of their judicial discipline responsibilities. However, compliance by the requesting individual with a written advisory opinion of the Committee is evidence of a good faith effort to comply with the Arkansas Code of Judicial Conduct. An opinion given to a requesting individual in an oral conversation is not binding on the Committee nor evidence of a good faith effort to comply with the Arkansas Code of Judicial Conduct.
CALIFORNIA JUDGES ASSOCIATION
COMMITTEE ON JUDICIAL ETHICS
BY-LAW, ARTICLE VII, SECTION 4
The President of the Association shall appoint a standing Committee on Judicial Ethics, consisting of fifteen members of the Association. Such Committee shall have the following duties:
It shall consider requests from any judge, justice, commissioner, referee, or aspirant to judicial office for construction of the Code of Judicial Ethics adopted by the Supreme Court, and shall interpret the Code by written or telephonic opinion, and may propose amendments to the Code of Judicial Ethics on behalf of the Association.
It shall make recommendations to the Executive Board and the Association with reference to any amendments to the Code of Judicial Ethics proposed by any member of the Association.
It shall, at the request of the Executive Board, study any problem concerning judicial ethics, and submit a report thereon to the Executive Board or to the next annual meeting of the Association, as may be directed by the Executive Board.
Ten members of the committee may render such an opinion report or recommendation.
No opinion, report or recommendation rendered by such committee shall name any judge whose conduct may have been the subject thereof.
(Adopted June 30, 1984)
(Amended 9/14/86, 11/15/86, 9/25/88, 4/3/90, 8/25/90)
The Committee on Judicial Ethics exists pursuant to the authority of CJA By-Law, Article VII, Section 4. The President of the Association is directed to appoint a committee of fifteen members; at least ten members must concur in rendering any opinion, report or recommendation.
These Rules and Procedures are adopted pursuant to By-Law, Article VII, Section 11 for governance of the Committee
The Committee is charged with construction of the Code of Judicial Conduct on the request of any judge, justice, commissioner, referee, or aspirant to judicial office, the interpretation of, and proposed amendments to that Code. Further, the Committee may be directed by the CJA Executive Board to study and report on any concern relating to judicial ethics.
An inquiry which appears to be resolved by an existing opinion or Canon may be handled (1) by the vice-chairperson of the committee or (2) any member in consultation with the vice-chairperson, by telephone or letter of response, with a copy of an existing opinion when appropriate. Upon consultation with the vice-chairperson, members should cite the suggested canon(s) relayed to the caller. This shall be deemed an "informal response."
The vice-chairperson shall thereafter report, at the next meeting of the Committee, on the subject of all inquiries and responses. Three members of ht Committee may cause an inquiry to be resubmitted for further study and response.
The inquiring judge should be advised that if the resolution is not readily apparent, the Committee invites a written inquiry for further study. Such a request should set forth all relevant facts of the ethical concern, together with the research already undertaken. In case of an urgent request, the chairperson may conduct a telephone poll of members to obtain a tentative response prior to written inquiry, and prior to further study. Upon receipt of such a written inquiry, or on the initiative of the chairperson of the Committee, the chairperson shall assign a committee member or members to complete further research and to formulate a proposed response.
The proposed response shall be discussed at the next meeting of the Committee. Upon approval, the chairperson or a designated member will convey the "Informal Response" to the inquiring judge. (See Attachment A.)
The Committee shall decide if an "Informal Response" is sufficient, or if the question has significance as to require a "Formal Opinion" of the Committee.
If it is decided that there is need for a Formal Opinion of the Committee, an inquiry shall be assigned by the chairperson for study and formulation of a proposed response. The assigned member shall then prepare a draft response for consideration of the Committee at the next meeting giving due regard to brevity and economy of thought, and following the format of Attachment B.
After deliberation, at least ten members of the Committee may adopt an opinion. The opinion shall be limited to the facts presented by the inquiry. Further, the opinion shall state that is so limited, and is advisory only. Any member of the Committee may submit a minority opinion to be circulated and published in the same manner as the majority opinion of the Committee. The names and signatures of each Committee member subscribing to any opinion shall be set forth at the conclusion of the opinion.
The chairperson of the Committee shall designate the procedure and format for a response on any matter referred from the executive Board.
No opinion, report or recommendation, nor the minutes of the Committee shall name any judge whose conduct has been the subject of an inquiry. Neither shall any member reveal the identity of such a judge, nor inquiring judge, except under compulsion of law.
The Committee will not render an opinion or informal response when a matter of inquiry is the subject of investigation with the Commission on Judicial Performance, or is the subject of pending litigation. It will be the responsibility of the member of the committee preparing a tentative or informal response to attempt to determine that the inquiry is not the subject of such investigation or litigation. The Committee may depart from this policy at the request of the Executive Board. The Committee may in its discretion decline to respond to any inquiry where the Committee determines that a response would be inappropriate.
In order that the responses, opinions and reports of the Committee may be well-informed, the Committee or any member may seek information or advice from the inquiring judge or any other source that might contribute to the deliberations of the Committee. The Committee and each member shall use discretion in such consultation, however, so as not to violate the integrity of Committee deliberations, and maintain anonymity of the inquiring judge.
So long as inquires or other business of the Committee remain unresolved, the Committee shall meet at the call of the chairperson. The Committee year coincides with the Annual Meetings of CJA, and every effort shall be made to conclude the business of the Committee on an annual basis.
All existing opinions of the Committee shall be distributed by CJA to new members of the Association. All new formal opinions shall be distributed by CJA to all members annually.
The Committee shall file each new opinion with the Executive Director of the Association and send its opinion to the inquiring judge. Further, the Committee shall publish an annual report entitled "Ethics Update" to summarize the formal opinions and informal responses of the Committee. The Ethics Update shall be distributed by CJA to all members of the Association.
A copy of any formal opinion shall be sent to a member of the Association on request. An opinion, response or Ethics Update may be sent to a non-member at the request of the President of the Association, or the Executive Director, after consultation with the chairperson of the Committee.
The Committee shall periodically review opinions to determine if any are obsolete.
IV. These rules and procedures may be amended by a majority vote of those present at any ethics Committee meeting.
SUPREME COURT OF THE STATE OF COLORADO
CHIEF JUSTICE DIRECTIVE 94-01
MAY 13, 1994
THE COLORADO JUDICIAL ETHICS ADVISORY BOARD
Pursuant to Chief Justice Directive 94-01, a Colorado Judicial Ethics Board is hereby created effective July 1, 1994
The Colorado Judicial Ethics Advisory Board is hereby created to provide advisory opinions to state justices and judges seeking opinions concerning the compliance of an intended, future course of conduct with the Colorado Code of Judicial Conduct
The board shall be composed of five members, who shall be appointed by the Chief Justice of the Colorado Supreme Court.
The board shall consist of three state judges, at least one of whom shall be a state district court judge and one of whom shall be a state or county court judge. At least on judge shall be from an urban area court and one judge shall be from a rural area court. Judge members may be either active or retired.
One member shall be a citizen, who shall be neither a justice nor a judge, active or retired, nor admitted to practice law before the courts of the state of Colorado.
One member shall be an attorney, who shall be neither a justice nor a judge, active or retired, and who shall have been admitted to the practice of law in the state of Colorado for at least ten years.
A chair shall be elected by the board members.
The executive director and general counsel of the Colorado Commission on Judicial Discipline shall act as the Reporter for the board.
Board members shall serve for three year terms from their date of appointment. To achieve staggered terms, the first appointed members shall draw for which two members shall serve for a one year term, which two members shall serve for a two year terms and which one member shall serve for three year term at the expiration of their first term appointment.
The executive director and general counsel of the Colorado Commission on Judicial Discipline shall have an ongoing appointment as Reporter for the board.
Vacancies on the board for an unexpired term shall be filled for the remainder of the term by the Chief Justice of the Colorado Supreme Court.
No member shall serve simultaneously on the Colorado Judicial Ethics Advisory Board and the Colorado Commission on Judicial Discipline.
Meetings for the transaction of any board business, including the issuance of any advisory opinion may be in person, by telephone conference call or by circulated writing.
Members of the board shall be reimbursed for their actual and necessary expenses incurred in the discharge of their official duties as board members.
The board may promulgate additional rules of procedure not inconsistent with these rules subject to approval of the Colorado Supreme Court.
A request for a judicial ethics advisory opinion shall be directed to the executive director and general counsel of the Colorado Commission on Judicial Discipline. Requests shall be accepted only from Colorado state justices or state judges who are serving in active status or as members of the Colorado senior judge program.
Requests for judicial ethics advisory opinions shall relate to prospective conduct only and shall contain a complete statement of all facts pertaining to the intended course of conduct together with a clear, concise question of judicial ethics. The identity of the individual whose proposed conduct is the subject of the request shall be disclosed to the board.
The requesting individual shall include with his or her request a thoroughly researched and detailed memorandum setting forth his or her own ethical and legal research and conclusions concerning the question. The requesting individual shall also include a statement that an opinion is not sought with respect to past or current conduct and that the request is not the subject of a past or pending disciplinary proceeding before the Colorado Commission on Judicial Discipline. Requests shall not be accepted by the board or referred for opinion unless accompanied by these supporting documents.
Advisory opinions shall set forth the facts upon which the opinion is based but shall not include the name of the requesting individual. Advisory opinions shall address only whether an intended, future course of conduct violates or does not violate the Colorado Code of Judicial Conduct and shall provide an interpretation of the Code only with regard to the factual situation presented. The opinion shall not address issues of law nor shall it address the ethical propriety of past or present conduct.
If the facts, circumstances or ethical and legal research provided by the requesting individual are unclear, vague, or insufficient in detail to enable the board to render an advisory opinion, the board may refuse to consider the matter or may request that the judge provide supplementary information to the board
If the supplementary information provided is still unclear, vague or insufficient in detail or is not provided within a reasonable time, the board shall inform the requesting individual and shall not render an advisory opinion based upon what it considers to be unclear, vague or insufficient information.
XII. Distribution of Advisory Opinions
The board shall provide a copy of each advisory opinion to the requesting individual, the Chief Justice of the Colorado Supreme Court, the Colorado Commission on Judicial Discipline, the Colorado Supreme Court law library, the University of Colorado law library, the University of Denver law library, the journal entitled The Colorado Lawyer and the American Judicature Society, The board shall retain the original opinion in a permanent file in the offices of the Colorado Commission on Judicial Discipline.
All opinions shall be advisory in nature only. No opinion shall be binding on the Colorado Commission on Judicial Discipline or the Colorado Supreme Court in the exercise of their judicial disciplinary or other responsibilities. However, compliance by the requesting individual with a written advisory opinion of the board shall be considered to be evidence of a good faith effort by the requesting individual to comply with the Colorado Code of Judicial Conduct.
An opinion given to a requesting individual in an oral conversation is neither binding on the board nor evidence of a good faith effort to comply with the Colorado Code of Judicial Conduct.
The Rules of the Judicial Ethics Advisory Committee
Supreme Court Rule 81
Effective April 10, 1996
Membership of the Committee shall be as provided in Court on the Judiciary Rule 13(a). These rules shall govern procedures of the Judicial Ethics Advisory Committee, as authorized by Court on the Judiciary Rule 13(b)(2).
Definitions. The following terms shall have the following definitions:
"Committee" shall mean the Judicial Ethics Advisory Committee established in Court on the Judiciary Rule 13.
"Rules" shall mean the rules of the Judicial Ethics Advisory Committee.
"Supreme Court" shall mean the Supreme Court of Delaware.
(a) Chair. The chair shall call meetings as needed, preside over those meetings, and otherwise coordinate the work of the committee.
(b) Vice-chair. In the absence of the chair, the vice-chair shall act as chair and shall otherwise perform such other duties as may be assigned by the chair.
(c) Secretary. The secretary shall record the minutes of meetings of the committee, distribute opinions, prepare an annual revised index to the committee's opinions, and otherwise perform such duties as may be assigned by the chair.
(a) Who May Request Opinion. Any person subject to the Delaware Judges' Code of Conduct may request an advisory opinion on proper judicial conduct with respect to the Delaware Judges' Code of Judicial Conduct. The committee shall decline to respond to an inquiry from someone who is not subject to the Delaware Judges' Code of Conduct.
(b) Scope of Opinions. The committee shall not render opinions regarding the proposed conduct of someone other than the inquirer, except that the committee may respond to requests from a judge about a person subject to the judge's direction and control or about a judge's spouse or close relatives. The committee shall only issue opinions that address contemplated or proposed future conduct and shall not issue opinions addressing past or current conduct unless the past or current conduct relates to future conduct or is continuing. The committee may not issue an opinion in a matter known to be the subject of a past or pending litigation or disciplinary investigation or proceeding.
(c) Discretion of Committee. The committee may in its discretion decline to respond to any inquiry where the committee determines that a response would be inappropriate or that an opinion will not aid the judge, benefit the judiciary as a whole, or serve the public interest.
(d) Opinions Issued on Own Initiative. Notwithstanding any other provision of these rules, the committee may also issue opinions at its own initiative on matters of interest to the judiciary.
(a) Contents of Request. Except for an emergency request pursuant to Rule 8, a request for an advisory opinion must be in writing, signed by the person requesting the opinion, and submitted to the chair. A request shall contain a statement describing in detail all relevant facts and circumstances pertaining to the conduct for which an opinion is being sought. The request shall include a clear and concise statement of the question of judicial ethics for which an opinion is sought. The request shall also include references to and summarizations of the relevant section(s) of the Delaware Judges' Code of Judicial Conduct, advisory opinions, case law, and other authority that the inquirer has already consulted.
(b) Threshold Considerations. The chair shall review the request for an advisory opinion and notify the inquirer if it does not comply with these rules. If an existing opinion answers the question presented in a request, the chair may send a copy of that opinion to the inquirer, and the committee need not issue a new advisory opinion. If an existing opinion does not answer the question presented in a request, the chair shall send the request and any accompanying documents to all members of the committee. The identity of the individual whose proposed conduct is the subject of the request shall be disclosed to the members of the committee. If the facts or circumstances provided by the requesting individual are unclear, vague, or insufficient in detail, the chair shall request supplemental information. If the supplemental information provided is still insufficient or is not provided within a reasonable time, the chair shall advise the inquirer that the committee shall not render an advisory opinion.
(c) Drafting of Opinion. The chair shall assign the responsibility for drafting an opinion to members of the committee on a rotating basis. The assigned member shall have 30 days to prepare a proposed opinion and to circulate it to the other members. If a proposed opinion is not submitted within 30 days or within any extension approved by the chair, the chair may re- assign the opinion to another committee member. Committee members shall have 15 days to indicate their approval or disapproval of a proposed opinion to the author of the proposed opinion and to make comments. The failure to respond within 15 days may be deemed an assent to the proposed opinion. Committee members shall send their responses to all other committee members who shall have an additional 15 days to respond to the comments of other committee members. The times set forth in this subsection may be enlarged or shortened by the Chair for good cause.
(d) Voting; Lack of Unanimity. The chair will maintain a record of the voting of all members. A majority of the members shall be required to concur in any advisory opinion issued by the committee. If the committee is evenly divided with regard to an issue, an opinion stating that division, with the arguments of both sides, may be issued. Dissenting members may issue a minority opinion or opinions.
(e) Effect of an Opinion. A judge who has requested and relied upon an opinion shall be entitled to introduce that opinion as evidence that conduct conforming to the opinion is prima facie permissible pursuant to the Delaware Judges' Code of Judicial Conduct, as authorized by Court on the Judiciary Rule 13(c).
(f) Opinion Limited to Judicial Ethics. If the request raises issues under constitutional provisions, statutes, rules, or regulations other than the Delaware Judges' Code of Judicial Conduct, the opinion may note the issues but shall indicate that the committee is not authorized to interpret a judge's obligations under any law other than the Delaware Judges' Code of Judicial Conduct.
Style of Opinions. Formal opinions shall set forth the facts upon which the opinion is based and shall provide advice only with regard to those facts. Formal opinions shall cite the rules, cases, and other authorities that bear upon the advice rendered and shall quote the applicable provisions of the Delaware Judges' Code of Judicial Conduct. Formal opinions shall contain a statement of facts; a brief summary of the conclusion and a thorough but succinct discussion of the issue(s). If the opinion responds to more than one issue, each issue shall be answered separately. The names of each committee member subscribing to any formal opinion shall be set forth at the conclusion of the opinion, but only the chair need actually sign the final opinion.
(a) Basis for Issuance. An informal opinion may be issued if the opinion does not reverse prior formal opinions and the chair finds that the subject is not of general substantial interest and continuing concern to the judiciary or to the public. If a request is made that requires only an informal opinion, the chair or a member designated by the chair may render an informal opinion only after soliciting the advice of three other members. The chair must always be consulted. Informal opinions may initially be oral but shall subsequently be memorialized in writing and circulated to all members of the committee. Informal opinions need not follow the format of formal opinions.
(b) Post-issuance Procedures. The chair shall report at the next meeting of the committee on all informal opinions issued since the last meeting of the committee. If three members of the committee disagree with an informal opinion, that opinion shall be resubmitted for further study and issuance of a formal opinion, and the inquiring judge shall promptly be so notified by the chair. Informal opinions will not be distributed or published in the same manner as formal opinions.
(a) Basis for Issuance. An emergency request for an opinion may be made by any judge faced unexpectedly with a question of judicial ethics that requires an immediate response. Whenever possible, a request for an emergency opinion shall be in writing. An emergency request shall be accompanied by an explanation of the circumstances that make an immediate response necessary.
(b) Procedures. When an emergency request is made, the chair may with the concurrence of two members of the committee give a provisional response, orally or in writing. The response must make clear that the advice is provisional until consideration by the entire committee. The chair shall report promptly to the committee, in writing, on all provisional responses. If a majority of the committee agrees with the advice given, a written, confirming opinion shall be issued to the inquirer. If a majority disagrees, a written opinion shall be issued to the inquirer setting forth the provisional response but also setting forth the views of the entire committee on the issue presented. The view of the majority of the full committee will supersede the inconsistent provisional response.
The original formal opinion and any minority opinion shall be mailed to the judge requesting the opinion, and copies shall be distributed to all committee members. The secretary shall cause to be prepared an edited version of a formal opinion that omits the names of persons, courts, and places, and any other information that might tend to identify either the person making the request or any other person. The edited opinion shall use gender neutral references. The chair shall review the edited opinion, add a heading if necessary, and assign a case number to the formal opinion.
Copies of edited opinions shall promptly be sent by the secretary to the Clerk of the Court on the Judiciary, to the Clerk of the Supreme Court, to the Administrative Office of the Courts, to all county law libraries in Delaware, to the American Judicature Society, and to such other recipients as the chair shall designate. Copies of all edited opinions and an updated index to all
formal opinions shall be sent by the secretary annually to all members of the Judicial Conference. A complete set of the committee's edited opinions shall be provided by the secretary to each new member of the Judicial Conference.
Any determination of the propriety of particular conduct by the Judicial Ethics Advisory Committee or by the Court on the Judiciary shall supersede any conflicting prior opinion of the committee. The committee shall examine and reconsider any of its opinions upon the request of the Court on the Judiciary. At any time, a majority of the committee may modify or reverse any advisory opinion. The committee shall periodically review all of its opinions to determine if any are obsolete. Any judge may petition the committee to reconsider any opinion by letter or memorandum explaining the basis for the request. The committee shall respond to the request by either reaffirming or revising the opinion. Revised opinions shall be distributed and published in the same manner as the original opinion.
Disclosure of a formal or informal opinion shall be as provided in Court on the Judiciary Rule 13(d).
Effective April 23, 1996
ORDER
Before VEASEY, Chief Justice, WALSH, HOLLAND, HARTNETT, and BERGER, Justices, of the Supreme Court; ALLEN, Chancellor of the Court of Chancery; and RIDGELY, President Judge of the Superior Court, constituting the Court on the Judiciary.
AND NOW, to-wit, this 23rd day of April, 1996.
NOW, THEREFORE, IT IS ORDERED, effective immediately:
That Rule 13 of the Court on the Judiciary of the State of Delaware be and it is hereby amended by deleting the present rule and restating it, as follows:
OCTOBER 1, 1990
Upon consideration of the proceedings before the Joint Committee on Judicial Administration on this 1st day of October 1990, it is
ORDERED that:
An Advisory Committee on Judicial Conduct (hereinafter "the Committee") is hereby created, which shall provide informal advice and formal advisory opinions to judges and judicial officers of the District of Columbia court system pursuant to the procedures contained in this order.
FLORIDA COURT RULES
CURRENT WITH AMENDMENTS RECEIVED THROUGH 2-15-95
Pursuant to the authority conferred in Article V, sections 2(b) and 15, Fla.Const., there is created a Committee on Standards of Conduct Governing Judges, to be composed of three district court of appeal judges, four circuit judges, two county court judges, and one practicing member of The Florida Bar. The purpose of the Committee shall be to render written advisory opinions to inquiring judges concerning the propriety of contemplated judicial and non-judicial conduct.
8. Opinions of the Committee may be published, and compiled, by The Florida Bar.
Added Feb. 3, 1979 and Feb. 23, 1976 (327 So.2d 5). Amended March 31, 1976 (327 So.2d 5); Feb. 1, 1979 (367 So.2d 625).
The Commission shall be authorized to render advisory opinions concerning a proper interpretation of the Code of Judicial Conduct and to publish and disseminate the same. It shall be a complete defense to any complaint under these rules that the judge complained against has acted in accordance with and in reliance upon any such advisory opinion.
* Also has judicial disciplinary responsibilities
Hawaii Commission on Judicial Qualifications *
Sup.Ct.Rules, Rule 8
Current with amendments received through 04-15-95
8.15 Advisory Opinions.
[Adopted effective April 26, 1993.]
* Also has judicial disciplinary responsibilities
A formal opinion can only be rendered by the full committee. You should know that even a formal opinion from the full committee does not heave any legal binding effect on the Judicial Inquiry Board or the Courts Commission. The Association will publish the responses issued from time to time.
(March 7, 1995)
(May 23, 1995)
The following procedures shall be employed by the Illinois Judicial Ethics Committee (IJEC) on receipt of a request to reconsider a published opinion.
Compliance with an opinion of the Commission will be considered by it to be a good faith effort to comply with the Code of Judicial Conduct.
* Also has judicial disciplinary responsibilities
[Note: The Indiana Commission on Judicial Qualifications does not have a specific set of rules or regulations addressing advisory opinions on judicial ethics. Nevertheless, the above is set forth as "boiler plate" in each of its written advisory opinions, as per the Commission's legal counsel.]
Current with amendments received through 12-1-95
Rules of the Supreme Court (SCR), Rule 4.310
JUDICIAL RETIREMENT AND REMOVAL COMMISSION
Current with amendments received through 1-31-96
CODE OF JUDICIAL CONDUCT
Current with amendments received through 3-25-96
To the end that these canons may be properly interpreted, and in order to provide a forum to receive inquiries from members of the judiciary related to the interpretation of these canons, the Supreme Court Committee on Judicial Ethics is hereby created. The function of this Committee shall be limited to the issuance of advisory opinions on its own motion or in response to inquiries from any judge insofar as these canons may affect the judge.
The Committee shall consist of nine members, as follows:
(c) The President of the District Judges Association and one other District Judge;
(f) The President of the Louisiana State Bar Association.
The members of said Committee shall be selected and appointed in the following manner and for the terms indicated:
The Judicial Administrator shall be Secretary of the Committee. The Committee shall make its own rules and select members to serve in such other offices as it creates.
The Committee shall act upon all inquiries as promptly as the nature of the case requires.
RULES OF COURT
ADMINISTRATIVE ORDERS OF THE SUPREME JUDICIAL COURT
Current with amendments received through 5-15-95
All of the Justices concurring therein, the administrative order establishing a Judicial Ethics Committee, effective March 1, 1991, is hereby withdrawn and the following substituted in its place:
Comment
Following the adoption of a revised Code of Judicial Conduct, effective September 1, 1993, the Supreme Judicial Court accepted the recommendation of its Advisory Committee on the Code of Judicial Conduct that, having completed its task, the Committee be disbanded. As a result, it became necessary to ensure the continued existence of the Judicial Ethics Committee, which had originally been established as a panel of the Committee on the Code of Judicial Conduct, by providing for the appointment of its members by the Supreme Judicial Court. In addition, two public members are added to the membership of the Committee. The original order establishing the Judicial Ethics Committee may be found at Me.Rptr., 576-588 A.2d CXXIX-CXXXII.
MARYLAND RULES OF PROCEDURE CHAPTER 1200. COURT ADMINISTRATION PART
Current with amendments received through 3-1-96
Canon 7. Judicial Ethics Committee
B. Any judge may in writing request the opinion of the Committee on the proper interpretation of the Code of Judicial Conduct as contained in Rule 1231, or as to the provisions of Subtitle 5 or 6 of Title 15 of the State Government Article, Annotated Code of Maryland. A judge who has requested an opinion and who is in compliance with that opinion is protected from a charge of violation of Code or statute construed in that opinion.
D. Any person, other than a judge, who is a State official of the Judicial Branch within the meaning of that term as used in S 15-104(2) of the State Government Article, Annotated Code of Maryland, may in writing request the opinion of the Committee on the proper interpretation of Subtitle 5 or 6 of Title 15 of the State Government Article. The person who requests an opinion and who is in compliance with it is protected from a charge of violation of the statute construed in that opinion.
St. 1987, c.656, §2, was approved Jan. 4, 1988
The supreme judicial court may establish an advisory committee on the code of judicial conduct, which may render advisory opinions to judges at their request or on its own motion.
RULES OF THE MASSACHUSETTS SUPREME JUDICIAL COURT
ETHICAL REQUIREMENTS AND RULES CONCERNING THE PRACTICE OF LAW
Current with amendments received through 1-15-96
Ethics Opinions
The State Bar Standing Committee on Professional and Judicial Ethics is authorized to provide its written opinion concerning the propriety of professional and judicial conduct when requested to do so by the bench, the bar or other specified agencies. The Committee may issue a written opinion in response to an inquiry from a lawyer or judge concerning the prospective conduct of the inquirer. Ethics opinions do not have the force and effect of law and cannot be relied upon as an absolute defense to a charge of ethical misconduct. The work of the committee is highly regarded by the courts and disciplinary agencies of the state, however, and opinions have been cited in many instances.
Ethics opinions are provided as a service to State Bar members to guide lawyers in ethical situations the lawyers may face. Formal opinions are approved by the State Bar Board of Commissioners as official State Bar policy and concern matters of widespread interest or import to the bar. Informal opinions are issued by the Committee in response to particular inquiries. An ethics opinion will reference the rules, cases and other authorities known to the Committee which bear upon the result reached in the opinion. The Committee does not resolve questions of law, however, ethics opinions may cite to relevant legal authorities which clarify the history, philosophy or application of ethical rules.
Internal Rule, Article VI Re: Advisory Opinions (adopted 7-14-88)
The Commission may render an opinion to any judge who inquires at to the propriety of contemplated judicial or nonjudicial conduct. Such opinion shall be advisory only and shall not be binding on the Commission. Compliance with an opinion of the Commission shall be considered by it to be a good faith effort to comply with the Code of Judicial Conduct. No opinion of the Commission shall be authority for the conduct or evidence of good faith of another judge unless the underlying facts are identical. The Commission may withdraw any opinion.
A request for an opinion shall be in writing and state the facts in detail and the question to be answered. The request shall also state any legal authority or theory known to the requesting judge which would aid the Commission in answering the question.
All opinions rendered by the Commission shall be in writing. A copy of each request and opinion shall be kept by the Commission in its file.
Opinions of the Commission may be released to the public, but all references to the name of the requesting judge shall be deleted therefrom.
* Also has judicial disciplinary responsibilities.
RULES OF THE SUPREME COURT/COURT OF APPEALS OF THE STATE OF NEBRASKA
NEBRASKA CODE OF JUDICIAL CONDUCTAPPENDICES
APPENDIX A. JUDICIAL ETHICS COMMITTEE
Current with amendments received through 12-15-95
B. The Judicial Ethics Committee so established shall have authority to:
C. A judge or candidate for judicial office as defined in the Terminology Section of this Code who has requested and relied upon an opinion may offer the opinion in a disciplinary proceeding based on conduct conforming to that opinion.
RULES OF COURT, RULE 1:18A. ADVISORY COMMITTEE ON EXTRAJUDICIAL ACTIVITIES
Current with amendments received through 3-1-95
The Supreme Court shall appoint an Advisory Committee on Extrajudicial Activities consisting of at least 9 members serving for terms of 2 years with the terms of approximately one half of the members expiring each year. The Committee shall include one practicing attorney and one public member. A vacancy occurring during a term shall be filled for the unexpired portion thereof. The Court shall annually designate a member of the Committee to serve as chairperson. The Administrative Director of the Courts or designee shall serve as secretary of the Committee.
The Committee shall accept inquiries concerning extrajudicial activities only from a judge or the Supreme Court.
All inquiries shall be addressed to the secretary, who shall transmit them to the Committee. They shall be in writing, shall set out the factual situation in detail, and shall be accompanied by a short memorandum citing the relevant Code of Judicial Conduct or Guidelines for Extrajudicial Activities.
Except as may otherwise be determined by the Committee in the case of routine inquiries that require a response before the Committee can act, no opinion shall be given by the Committee unless concurred in by a majority thereof. In every matter, the secretary shall convey the Committee's response in writing to the judge making the inquiry. The Committee may, in its discretion, issue, in addition, a formal opinion for distribution to all judges and make suitable arrangements for its publication. Formal opinions shall not, insofar as practicable, identify the judge making the inquiry.
The Committee shall consider and advise the Supreme Court or render opinions on such matters as the Supreme Court may submit to it from time to time. Those opinions shall not be published without prior approval of the Court.
The Committee shall prescribe the methods and procedure to be followed in considering inquiries and expressing opinions.
Note: Adopted November 29, 1988, to be effective January 2, 1989.
STANDARDS AND ADMINISTRATIVE POLICIES
RULES OF THE CHIEF ADMINISTRATOR OF THE COURTS
PART 101. ADVISORY COMMITTEE ON JUDICIAL ETHICS
Current with amendments received through 12/1/95
There shall be an Advisory Committee on Judicial Ethics to issue advisory opinions to judges and justices of the Unified Court System concerning issues related to ethical conduct, proper execution of judicial duties, and possible conflicts between private interests and official duties.
(b) Each member shall be an active or former judge or justice of the Unified Court System.
Members of the Committee shall serve without compensation but shall be reimbursed for expenses actually and necessarily incurred in the performance of their official duties for the Committee.
Except as set forth in section 101.7, requests for advisory opinions, advisory opinions issued by the Committee, and the facts and circumstances on which they are based shall be confidential and shall not be disclosed by the Committee to any person other than the individual making the request. Deliberations by the Committee shall be confidential.
The Committee shall publish its formal advisory opinions, at such times and in such manner as approved by the Chief Administrator, with appropriate deletions of names of persons, places, or things that might tend to identify the judge or justice making the request or any other judge or justice of the Unified Court System.
Code of Jud.Conduct Compliance
Current with amendments received through 1-15-96
COMPLIANCE WITH THE CODE OF JUDICIAL CONDUCT
Compliance with a written advisory letter or formal opinion issued by the Judicial Ethics Advisory Committee of the Judicial Conference shall constitute evidence of good faith for consideration in any sanction decision pursuant to a disciplinary proceeding.
Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as a magistrate, court commissioner, special master or referee, or surrogate judge is a judge within the meaning of this Code. All judges shall comply with this code except as provided below.
Commentary
A(2) The "court on which the part-time judge serves" refers only to the particular municipal court in the jurisdiction in which the part-time judge presides and exercises judicial authority. A part-time judge is not barred from practicing law in all courts of similar character in other jurisdictions. Thus, a part-time municipal judge may practice law in any municipal court in the state in which the part-time judge does not have the authority and jurisdiction of a municipal judge.
FN* Publisher's Note: This term is explained in the section entitled "Terminology."
SUPREME COURT RULES FOR THE GOVERNMENT OF THE BAR
Current with amendments received through 1-1-96
GOV BAR R V DISCIPLINARY PROCEDURES
* Also has judicial disciplinary responsibilities
Current with amendments received through 12-1-95
RELIANCE ON ADVISORY OPINIONS
The Ethics Committee of the Pennsylvania Conference of State Trial Judges is designated as the approved body to render advisory opinions regarding ethical concerns involving judges, justices and other judicial officers subject to the Code of Judicial Conduct, and, although such opinions are not per se binding upon either the Judicial Inquiry and Review Board or the Supreme Court of Pennsylvania, action taken in reliance thereupon and pursuant thereto shall be taken into account in determining whether discipline should be recommended or imposed.
Added Sept. 9, 1991.
Sup.Ct.Rules, Art. VI, Code of Jud.Conduct, Advisory Committee
Current with amendments received through 10-1-95
ADVISORY COMMITTEE ON THE CODE OF JUDICIAL CONDUCT
In order to assist judges in complying with the foregoing canons, an advisory committee has been appointed by the Supreme Court with authority to interpret the canons and to provide an opinion upon the request of any judge concerning a proposed action and its propriety in the light of said canons. The advisory committee consists of five (5) members of the judiciary, not more than two of whom may be from the same court. The advisory committee will give the inquiring judge an opinion in respect to the propriety or impropriety of the judge's proposed action. An opinion from the advisory committee that it is proper for the judge to take certain action will give rise to a conclusive presumption that the judge has acted properly. Any judge who acts in accordance with an opinion given by the advisory committee shall be presumed to have abided by the Canons of The Code of Judicial Conduct.
APPELLATE COURT RULES, Rule 503
Current with amendments received through 5-15-95
Section A. There is hereby created an Advisory Committee on Standards of Judicial Conduct. The purpose of the Committee shall be to render written advisory opinions to inquiring judges concerning the propriety of contemplated judicial and nonjudicial conduct.
Section B. The Committee shall consist of one Circuit Court judge, one Family Court judge, and one active member of the South Carolina Bar who does not hold and has never held a judicial office. Committee members shall be appointed by the Supreme Court and shall hold office for a period of three (3) years. The terms of the members shall be staggered so that one term expires each year. The Supreme Court shall appoint one of the members of the Committee as the Chairman.
Section C. Two members of the Committee shall constitute a quorum for the transaction of any Committee business, including the issuance of any advisory opinion, whether in a meeting or by circulated writing.
Section D. All opinions shall be advisory in nature only. No opinion shall bind the Board of Commissioners on Judicial Standards in any proceeding properly before that body. However, in the discretion of the Board of Commissioners on Judicial Standards, an opinion of the Committee may be considered as evidence of a good faith effort to comply with the Code of Judicial Conduct.
Section E. All requests for opinions shall be in writing, addressed to the Committee and signed by the requesting judge. All opinions rendered by the Committee shall be in writing and shall, within the body of the opinion, state the facts on which it is based. The name of the requesting judge and any other party or parties shall not be contained in the opinion and shall remain confidential. A copy of each opinion shall be filed with the Clerk of the Supreme Court and with the Board of Commissioners on Judicial Standards. Upon filing with the Clerk of the Supreme Court, opinions shall become a matter of public record. All other files and records of the Committee shall be confidential and shall not be disclosed except upon order of the Supreme Court.
Section F. No member of the Committee shall participate in any matter before the Committee in which he has a direct or indirect interest.
Section G. Any determination of the propriety or impropriety of particular conduct by the Board of Commissioners on Judicial Standards shall supersede any conflicting opinion of the Committee.
Section H. No individual shall serve simultaneously on the Advisory Committee on Standards of Judicial Conduct and the Board of Commissioners on Judicial Standards.
[Former Supreme Court Rule 42 adopted effective November 21, 1979. Adopted as Rule 503, SCACR, effective September 1, 1990; amended effective July 13, 1993; August 26, 1993.]
PRELUDE:
"A judge should uphold the integrity and independence of the judiciary. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved."
Canon 1 of the South Dakota Code of Judicial Conduct. Canon 1 is the foundation upon which the South Dakota Code of Judicial Conduct is built. The Judge's Association of the State of South Dakota recognizes that its members must follow high ethical standards consistent with the South Dakota Code of Judicial Conduct. To assist this state's judges in meeting those high standards, the Judge's Association of the State of South Dakota hereby forms the "THE COMMITTEE ON JUDICIAL ETHICS."
PURPOSE:
The purposes of the committee are as follows:
3. COMPOSITION OF COMMITTEE:
The committee shall be composed of three members, two of whom shall be circuit court judges and one of whom shall be a law-trained magistrate (part-time or full-time). The members shall be elected for three year terms at the annual judge's association meeting. The chairman of the committee shall be one of the three members of the committee and shall be elected annually by a majority vote of the members of the committee.
All opinions shall be adopted at a called meeting by majority vote of the members of the committee. If a majority vote of the members of the committee cannot be obtained, no opinions shall be issued.
The committee will not issue opinions on questions of law or matters pertaining to conduct which is the subject of pending litigation or pending action by the Judicial Qualifications Commission. The committee will not issue opinions involving past conduct or the conduct of someone other than the inquirer.
Any opinion issued by the ethics committee will be issued to the inquirer in letter form. The opinion shall also be published in complete or summary form to all justices, circuit court judges, and law-trained magistrates, with all identifying references of the inquirer removed.
The South Dakota Code of Judicial Conduct, as amended from time to time, will provide the standard to be applied by the committee in formulating opinions pertaining to judicial conduct. The committee may look for assistance in interpreting the Sourth Dakota Code of Judicial Conduct to opinions of the Committee on Professional Ethics, published by the American Bar Foundation in collaboration with the American Bar Association, to the Code of Judicial Conduct and Annotations as adopted by the American Bar Association, to the Code of Judicial Conduct and Annotations for Federal Judges, and to any other source which would aid in the interpretation of the South Dakota Code of Judicial Conduct.
Opinions rendered by the Committee shall be advisory opinions only. These opinions have no binding force or effect. The opinions are issued solely for the purpose of advising members of the judiciary upon the ethical propriety of their contemplated professional, personal or judicial conduct.
Current with amendments received through 7-15-95.
OPINIONS OF JUDICIAL STANDARDS COMMISSION [COURT OF THE JUDICIARY AND JUDICIAL ETHICS COMMITTEE] [FN*]
The Judicial Standards Commission as organized under Chapter 101 of the Public Acts of 1971 (T.C.A. SS 17-801 through 17-816) during the administration of the affairs of that commission, shall issue opinions as to whether certain conduct does or does not violate a particular canon or canons. These opinions shall be given publicity through normal judicial channels such as the "Tennessee Judge" or similar publications.
FN* Publisher's Note: The Judicial Standards Commission has been replaced by the Court of the Judiciary (see T.C.A. S 17-5-101 et seq.), which is authorized "to investigate, hear and determine charges sufficient to warrant discipline or removal" of judges. T.C.A. S 17-5-301.
FN The Judicial Ethics Committee appointed by the Supreme Court (Supreme Court Rule 9, S 26.6) may issue Formal Ethics Opinions "when requested to do so by a judge who is governed by the Code of Judicial Conduct." Supreme Court Rule 9, S 26.6(f).
One (1) judge from the Court of Appeals or Court of Criminal Appeals;
One (1) trial judge from each grand division of the state; and
One (1) general sessions judge licensed to practice law in this state.
RULES OF COURT
CODE OF JUDICIAL ADMINISTRATION Judicial Administration Rule 3-109
Current with amendments received through 5-15-95
Intent. To establish the Ethics Advisory Committee as a resource for judges to request advice on the interpretation and application of the Code of Judicial Conduct. To establish a process for recording and disseminating opinions on judicial ethics.
Applicability. This rule shall apply to all employees of the judicial branch of government who are subject to the Code of Judicial Conduct.
Statement of the Rule.
UTAH RULES OF COURT - Ethics Advisory Committee Rule 8
UTAH CODE OF JUDICIAL ADMINISTRATION
APPENDIX B. RULES OF PROCEDURE FOR ETHICS ADVISORY COMMITTEE
Current with amendments received through 5-15-95
RULE 8. LEGAL EFFECT
Compliance with an informal opinion shall be considered evidence of good faith compliance with the Code of Judicial Conduct. Formal opinions shall constitute a binding interpretation of the Code of Judicial Conduct.
Administrative Order No. 35
COURT RULES ADMINISTRATIVE ORDERS OF THE SUPREME COURT
Current with amendments received through 9-15-95
Pursuant to the Vermont Constitution, Chapter II, Section 30, the Supreme Court hereby issues the following Administrative Order effective September 1, 1995:
COURT RULES OF GENERAL APPLICATION GENERAL RULES
Current with amendments received through 9-1-95
[Adopted effective September 1, 1983; amended effective November 11, 1983; May 25, 1984.]
JUDICIAL INVESTIGATION COMMISSION *
RULES OF JUDICIAL DISCIPLINARY PROCEDURE
Current with amendments received through 10-1-95
[Adopted effective July 1, 1994.]
* Also has judicial disciplinary responsibilities
Judicial Ethics Committee
* Because of the need to encourage the establishment of judicial ethics committees in jurisdictions that do not have such committees either as free-standing entities or in combination with lawyer ethics committees, the following Appendix is provided. It is offered not as a model but simply as an example of provisions that a jurisdiction might adopt. PLEASE NOTE: The Appendix is not a part of the Model Code of Judicial Conduct as adopted on August 7, 1990 by the ABA House of Delegates.
Model procedural Rules for Judicial
Ethics Advisory Committees
NOTE: It is not expected that every advisory committee will adopt every model rule. However, the model rules illustrate the provisions committees have adopted to facilitate their operations and may suggest to existing committees solutions to problems they have experienced or to new committees solutions to problems They anticipate.
Text in brackets Is alternative or optional. Provisions that would not he appropriate unless the committee Is established by the supreme court have been marked with an asterisk.
Enabling Provisions
A judicial ethics advisory committee is hereby established to render advisory opinions concerning the compliance of proposed future conduct with the code of judicial conduct. The committee shall have members. __ members shall be active or retired judges appointed by: ___ members shall be attorneys appointed by ___; and ___ members shall be lay persons appointed by ___. Committee members shall serve for three-year terms from the date of appointment, except that, to achieve staggered terms, -of the members first appointed shall be appointed for one year, - shall be appointed for two years, and ___ shall be appointed for three years. Committee members may be reappointed, but no member shall serve for more than two lull consecutive terms.
A request for an advisory opinion may be made by any judge or candidate [or nominee] for judicial office [or any person whose conduct is subject to the code of judicial conduct]. The committee may not issue an opinion in a manor known to be the subject of a past or pending litigation or disciplinary proceeding or investigation. The committee may also issue opinions at its own initiative on matters of interest to the judiciary. [Notwithstanding any other provision of law,] with the exception of edited opinions, all opinions, inquiries, replies, circulated drafts. records, documents, files, communications with staff, and proceedings of the committee shall be confidential.
All opinions shall be advisory only, and no opinion shall be binding on the judicial conduct commission or the supreme court in the exercise of its judicial discipline responsibilities. However, the judicial conduct commission and the supreme court [shall] [may in their discretion] consider compliance with an advisory opinion [by the requesting Individual] to be evidence of a good faith effort to comply with the code of judicial conduct [provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are identical].
Membership
NOTE: If advisory opinions are issued by the state judicial conduct organization. the number of members and related terms are set by constitution, statute, or court rule, and the provisions In this section are not necessary.
See Guide at 5-7.
NOTE: Members Of committees established by a judges' association or bar association are generally chosen by the president of the association.
NOTE: The exception for employees of educational institutions was Included to allow law professors at public universities to be committee members
NOTE: See Guide at 4-5. States may also want to consider prohibiting persons (both lay and attorney) who are members of other state regulatory or advisory boards from being members of the committee.
General Provisions
NOTE: Existing advisory committees are almost evenly divided between those in which the chair is chosen by the supreme court, those in which the chair is chosen by the chief justice, and those in which the chair is chosen by committee member.
States may also want to consider having a vice chair (the current practice for at least six advisory committees) to preside in the absence of the chair and to perform any duties delegated by the chair. The vice chair could be selected in the same manner as the chair or chosen by the chair.
NOTE: Several states have rules specifying when a committee member cannot participate in the response to a request. In Pennsylvania, "members shall not vote on their personal inquiry or because of similar extraordinary circumstances." Rule 12 of the Rules, Practices and Guidelines of the Judicial Ethics Committee of the Pennsylvania Conference of State Trial Judges. The rules In Utah provide, "[c]ircumstances which require recusal of a judge shall require recusal of a committee member from participation in committee action." Rule 6 of the Utah Ethics Advisory Committee. The model rule Is based on provisions in Florida and South Carolina. See Petition of the Committee on Standards of Conduct for Judges, 387 So. 2d 825 (Florida 1979); Rule 503F of the South Caroline Appellate Court.
NOTE: Many Judicial ethics advisory committees have the authority to make recommendations to the supreme court for amendments to the code of judicial conduct. The Florida Supreme Court described the advisory committee as the "natural body to make Code change recommendations to the Court," although it noted that was not "the principal or primary purpose of the Committee." Petition of the Committee on Standards of Conduct for Judges, 367 So.2d 625 (Florida 1979).
In addition, the Utah Ethics Advisory Committee is directed to "develop and provide educational programs to assist judicial officers and employees In their understanding of the Code of Judicial Conduct and the role of the Judicial Conduct Commission, the Judicial Council and the Supreme court in issues of professional conduct." Rule 1 of the Rules of the Utah Ethics Advisory Committee. The Arizona Judicial Ethics Advisory Committee is also authorized to "make recommendations regarding appropriate subjects for judicial education programs." Rule 82(b)(3) of the Arizona Supreme Court.
NOTE: If a supreme court, judges' association, or other organization wishes to create an advisory committee, it should make the commitment to provide the committee with at least the administrative staff it needs to adequately carry out its responsibilities. See Guide at 7.
Jurisdiction
NOTE: States may want to consider specifically listing positions or agencies other than judges who are able to request opinions. Examples from rules for existing advisory' committees include non-judicial court employees, retired Judges, members of a judge's family aspirants to judicial office, agencies charged with judicial administration, the state court administrator, the judicial conduct organization, the supreme court, and the attorney discipline agency.
Although the judicial advisory committees in several states can issue opinions at the request of the judicial conduct organization, the Florida Supreme Court denied the request of the committee on Standards of Conduct for Judges for such authority. Noting that the committee's authority was carefully confined to giving advice concerning "contemplated conduct, the court stated it could conceive of no way in which the commission on Judicial Qualifications could be legitimately concerned with proposed acts of members of the judiciary. Petition of the Committee on Standards of Conduct for Judges, 367 So. 2d 625 (Florida 1979).
NOTE: lithe judicial conduct organization, the state court administrator, and/or the supreme court are allowed to request advisory opinions, they should also be listed in the exceptions to this rule.
NOTE: The rules of the Colorado Judicial Ethics Advisory Board require the requesting Individual to Include "a statement that an opinion is not sought with respect to past or current conduct and that the request is not the subject of a past or pending disciplinary proceeding before the Colorado Commission on Judicial Discipline." Section XB of Colorado Supreme Court Directive 94-01.
NOTE: The rules of the judicial ethics committee of the Pennsylvania Conference of Trial Judges permit the committee to "decline to respond to a request that appears designed to embroil the committee In public controversy." Rule 52 Of the Rules, Practices and Guidelines of the Pennsylvania Conference of State Trial Judges.
NOTE: Many committees' rules provide that opinions will not address "questions of law," presumably to limit the committee's authority to ethical questions. However, that limitation may be too broad as the question whether conduct violates the code of judicial conduct may be considered a question of law. Model Rule 22 addresses the concern that the committee not exceed its authority without using the term "questions of law.' The types of questions intended to be beyond the committee's authority are, for example, whether a warrant issued by a magistrate who should have recused himself or herself is valid (Georgia Advisory Opinion 93 (1986)), whether a restriction In the code of Judicial conduct on judicial campaign speech violates the state and federal constitutions (Louisiana Advisory Opinion 61 (1984)), whether the state separation of powers doctrine prohibits a Judge from receiving compensation for teaching at a state university (Nebraska Advisory Opinion 95-2), or whether action by a Judicial candidate violates the state election laws (Maryland Advisory Opinion 41 (1970)). See also Model Rule 40.
Procedures
spond within 15 days shall be deemed an assent to the proposed opinion. Each committee member will send his or her response to all other committee members, including the chair, and to staff. Members wilt have an additional 15 days to respond to the comments of other members.
33. The chair [staff] will maintain a record of the voting for all members.
35. Any member(s) of the committee may submit a minority opinion to be circulated for comment.
Formal Opinions
See sample advisory opinions in Appendix B.
NOTE: Committees may want to consider adopting drafting Instructions to guide committee members in drafting opinions. The State Bar of Michigan standing Committee on Professional and Judicial Ethics has adopted a "uniform format for ethics opinions drafting," and the Arizona Judicial Ethics Advisory Committee has adopted "format and style guidelines."
39. The names of each committee member subscribing to any formal opinion shall be set forth at the conclusion of the opinion.
See Model Rule 22.
See Guide at 8-9; Appendix B.
Informal Opinions
NOTE: A procedure allowing for informal opinions enables the committee to respond quickly to requests for advice that are not emergencies but do not raise questions of sufficient import effecting enough judges to justify resort to the more lengthy formal opinion process See Guide at 9-11.
43. Alternative A: Chair or staff may respond
If a request is made that requires only an informal opinion, the chair [staff] may render an informal opinion at once or solicit the advice of other members before rendering an informal opinion.
Alternative B: Chair or stuff must consult other members
If a request is made that requires only an informal opinion, the chair [staff] can render an informal opinion only after soliciting the advice of [two] [three] other members.
44. Informal opinions may be oral but shall subsequently be memorialized in writing.
45. The chair shall report in writing [at the next meeting of the committee], on all informal opinions. If one-third of the members of the committee disagree with an informal opinion, that opinion shall be resubmitted for further study and issuance of a formal opinion.
46. Compliance with an informal opinion shall not have the same effect as compliance with a formal opinion in judicial discipline proceedings.
See Model Rule 64.
47. Informal opinions will not be distributed or published in the same manner as formal opinions, but an edited version of informal opinions should be included in the annual report of the committee.
NOTE: See Model Rule 15. Committees should consider disseminating information about the advice rendered in informal opinions. For example, most of the opinions of the New Jersey Advisory Committee on Extrajudicial Activities are informal but are published as annotations to the Guidelines for Extrajudicial Activities. The California Judges Association Committee on Judicial Ethics publishes an annual report entitled Ethics Update that summarizes informal as well as formal opinions and is distributed to all members of the association.
Emergency Requests
See Model Rule 64,
Distribution and Publication
NOTE: Each committee should determine whether preparing edited opinions that omit the inquirers name is consistent with the state's freedom of information act. See Guide at 16-17; Model Rule 65.
NOTE: Committees may also want to consider sending copies of edited opinions to each clerk of court, all chief or presiding judges, and lawyer disciplinary agencies. See Appendix A.
NOTE. Other methods of distribution and publication that should be considered by committees am discussed in the Guide at 12 and in Appendix A.
58. The committee will release a copy of any edited opinion upon request.
Reconsideration and Modification
Within thirty days after a formal opinion is mailed to the person who requested the opinion, he or she may petition the committee to reconsider the opinion by letter or memorandum explaining the basis for the request. The committee shall respond to the request by either reaffirming or revising the opinion. Revised opinions shall be distributed and published in the same manner as the original opinion.
Alternative B: Request by any person or court authorized to request an opinion
Within thirty days after the distribution of an edited opinion to all judges, any person, court, or agency authorized to request an opinion may petition the committee to reconsider the opinion by letter or memorandum explaining the basis for the request. The committee shall respond to the request by either reaffirming or revising the opinion. Revised opinions shall be distributed and published in the same manner as the original opinion.
See Guide at 12-13.
Effect
64 Alternative A: Discretion to consider compliance as evidence of good faith
The judicial conduct commission and the supreme court may in their discretion consider compliance with a formal opinion [ the requesting Individual to be evidence of a good faith effort to comply with the code of judicial conduct provided that compliance with an opinion issued to another shall not be considered evidence of good faith unless the underlying facts are identical.*
Alternative B: Requirement that compliance be treated as evidence of good faith
The judicial conduct commission and the supreme court shall consider compliance with a formal opinion [by the requesting individual] to be evidence of a good faith effort to comply with the code of judicial conduct [provided that compliance with an opinion issued to another shall not be considered evidence of good faith unless the underlying facts are identical].*
See Guide at 13-16.
Confidentiality
Note: See Guide at 16-17. The rules of the Michigan committee allow a "Committee member [to] seek input from sources outside the Committee regarding the legal or general factual background involved In an inquiry when doing so will assist the member in drafting or commenting on an opinion." Rule S of the Rules of the State Bar of Michigan Standing Committee on Professional and Judicial Ethics.
A.B.A. - "A judge or candidate for judicial office as defined in the Terminology Section of this Code who has requested and relied upon an opinion may not be disciplined for conduct conforming to that opinion." [emphasis added]
Alaska - "Reliance on the formal advisory opinion by the requesting judge is an absolute defense to subsequent disciplinary proceedings by the Commission concerning the identical facts addressed by the opinion. If there are distinguishing facts, reliance on the formal advisory opinion will be viewed as merely a good faith defense." [emphasis added]
Delaware - "A judge who has requested and relied upon an opinion shall be entitled to introduce that opinion as evidence that conduct conforming to the opinion is prima facie permissible pursuant to the Delaware Judges' Code of Judicial Conduct." [emphasis added]
Georgia - "It shall be a complete defense to any complaint under these rules that the judge complained against has acted in accordance with and in reliance upon any such advisory opinion." [emphasis added]
Hawaii - "An advisory opinion rendered by the Commission shall be admissible in any disciplinary proceeding involving a judge to whom the opinion is directed. It shall be a complete defense to any complaint under these rules that the judge complained against acted in accordance with and in reliance on an advisory opinion issued to the judge that certain specified conduct by the judge would not constitute a violation of the Code of Judicial Conduct. In addition, it shall be a mitigating factor in the consideration of any complaint under these rules that the judge complained against acted reasonably in reliance on any formal or informal advisory opinion not directed at the judge. " [emphasis added] [NOTE: Compliance with an opinion 'not' requested by the judge 'shall' be a mitigating factor.]
Maryland - "A person who has requested an opinion and who is in compliance with it is protected from a charge of violation of the Code construed in that opinion. " [emphasis added]
Massachusetts - "This court shall not subject a judge to discipline where the conduct of the judge at issue in a proceeding was undertaken in reasonable reliance on that opinion." [emphasis added]
Rhode Island - "Any judge who acts in accordance with an opinion given by the advisory committee shall be presumed to have abided by the Canons of The Code of Judicial Conduct." [emphasis added]
Tennessee - "A Formal Ethics Opinion shall constitute a body of principles and objectives upon which judges can rely for guidance." [emphasis added] [Note: This is my interpretation, since the Tennessee statute did not say that a Formal Ethics Opinion is one upon which judges "may" rely. Instead, it used the word "can" rely. ]
Utah - "Formal opinions shall constitute a binding interpretation of the Code of Judicial Conduct." [emphasis added] [Note: Informal opinions are evidence of good faith; however, formal opinions may under this language mean that opinions of the Utah Ethics Advisory Committee are binding.]
Kansas - "The fact that a judge or candidate for judicial office (as defined in the Terminology Section of this Code) has requested and relied upon an advisory opinion shall be taken into account by the Commission on Judicial Qualifications in its disposition of complaints and in determining whether to recommend to the Supreme Court discipline of a judge or judicial candidate. The advisory opinion, however, shall not be considered binding upon the Commission on Judicial Qualifications or the Supreme Court in the exercise of their judicial discipline responsibilities." [emphasis added]
Kentucky - "Both formal and informal opinions shall be advisory only; however, the commission and the Supreme Court shall consider reliance by a justice, judge, or trial commissioner upon the ethics committee opinion." [emphasis added]
Maine - " A judge or candidate for judicial office who has requested and received an advisory opinion of the Judicial Ethics Committee shall not be immune from disciplinary action for conduct in reliance on that opinion, but compliance with the advisory opinion is a factor properly to be taken into account in any disciplinary proceedings arising from such conduct." [emphasis added]
Pennsylvania - "…although such opinions are not per se binding upon either the Judicial Inquiry and Review Board or the Supreme Court of Pennsylvania, action taken in reliance thereupon and pursuant thereto shall be taken into account in determining whether discipline should be recommended or imposed." [emphasis added]
Vermont - "A judge or candidate or potential candidate for judicial office who has requested and received an advisory opinion of the Judicial Ethics Committee shall not be immune from disciplinary action for conduct in reliance on that opinion, but compliance with the advisory opinion is a factor properly to be taken into account in any disciplinary proceeding arising from such conduct." [emphasis added]
Arkansas - "All opinions shall be advisory in nature only. No opinion shall be binding on the Judicial Discipline & Disability Commission or the Supreme Court in the exercise of their judicial discipline responsibilities. However, compliance by the requesting individual with a written advisory opinion of the Committee is evidence of a good faith effort to comply with the Arkansas Code of Judicial Conduct." [emphasis added]
Colorado - "All opinions shall be advisory in nature only. No opinion shall be binding on the Colorado Commission on Judicial Discipline or the Colorado Supreme Court in the exercise of their judicial disciplinary or other responsibilities. However, compliance by the requesting individual with a written advisory opinion of the board shall be considered to be evidence of a good faith effort by the requesting individual to comply with the Colorado Code of Judicial Conduct. An opinion given to a requesting individual in an oral conversation is neither binding on the board nor evidence of a good faith effort to comply with the Colorado Code of Judicial Conduct." [emphasis added]
Indiana - "Compliance with an opinion of the Commission will be considered by it to be a good faith effort to comply with the Code of Judicial Conduct." [emphasis added]
Missouri - "Such opinion shall be advisory only and shall not be binding on the Commission. Compliance with an opinion of the Commission shall be considered by it to be a good faith effort to comply with the Code of Judicial Conduct. No opinion of the Commission shall be authority for the conduct or evidence of good faith of another judge unless the underlying facts are identical." [emphasis added] [Note: This language is very similar to Florida's, except that compliance "shall be considered" to be evidence of "good faith" in Missouri. Either Florida got its language from Missouri or visa-versa.]
North Dakota - "Compliance with a written advisory letter or formal opinion issued by the Judicial Ethics Advisory Committee of the Judicial Conference shall constitute evidence of good faith for consideration in any sanction decision pursuant to a disciplinary proceeding." [emphasis added]
Utah - "Compliance with an informal opinion shall be considered evidence of good faith compliance with the Code of Judicial Conduct." [emphasis added]
Washington - "Any judge may in writing request the opinion of the committee. Compliance with an opinion issued by the committee shall be considered as evidence of good faith by the Supreme Court." [emphasis added]
District of Columbia - "Written opinions will provide a body of guidance for the judges. Action in accordance with an advisory opinion may be considered by the District of Columbia Commission on Judicial Disabilities and Tenure as evidence of good faith in the course of any proceeding or investigation conducted by the Commission." [emphasis added]
Florida - "No opinion shall bind the Judicial Qualifications Commission in any proceeding properly before that body. An opinion of the Committee may, however, in the discretion of the Commission, be considered as evidence of a good faith effort to comply with the Code of Judicial Conduct; provided that no opinion issued to one judge or justice shall be authority for the conduct, or evidence of good faith, of another judge or justice unless the underlying facts are identical." [emphasis added]
South Carolina - "All opinions shall be advisory in nature only. No opinion shall bind the Board of Commissioners on Judicial Standards in any proceeding properly before that body. However, in the discretion of the Board of Commissioners on Judicial Standards, an opinion of the Committee may be considered as evidence of a good faith effort to comply with the Code of Judicial Conduct." [emphasis added]
Alabama - "Any such opinion rendered by the Commission that certain specified conduct by the judge would not constitute a violation of the Canons of Judicial Ethics shall be admissible on behalf of the judge to whom it is directed in any disciplinary proceeding involving the propriety of such conduct by the judge to whom the opinion is directed." [emphasis added]
Arizona - "Reliance on a formal advisory opinion may be raised as a defense in any disciplinary proceeding." [emphasis added] [Note: The Rule does not require that the judge raising the defense must also have be the one who requested the opinion.]
Nebraska - "A judge or candidate for judicial office as defined in the Terminology Section of this Code who has requested and relied upon an opinion may offer the opinion in a disciplinary proceeding based on conduct conforming to that opinion." [emphasis added]
West Virginia - "An advisory opinion is not binding on the Judicial Hearing Board or the Court, but shall be admissible in any subsequent disciplinary proceeding involving the requesting judge." [emphasis added]
California - "Further, the opinion shall state that is so limited, and is advisory only." [emphasis added] [Note: These opinions are authored by the California Judges' Association.]
- "Michigan Ethics opinions do not have the force and effect of law and cannot be relied upon as an absolute defense to a charge of ethical misconduct." [emphasis added] [Note: While the committee primarily consists of judges, the opinions are created under the auspices by the state bar association.]
South Dakota - "Opinions rendered by the Committee shall be advisory opinions only. These opinions have no binding force or effect. The opinions are issued solely for the purpose of advising members of the judiciary upon the ethical propriety of their contemplated professional, personal or judicial conduct." [Note: This language is from a committee that was created by a judges' association. The committee is not a creature of the South Dakota legislature or its Supreme Court.]
