 A federal Judicial Center Orientation Program for United States Judges and Magistrate Judges. Judicial Ethics, Part 2, a panel discussion. Judicial Ethics, a panel discussion, features discussion of three hypothetical cases by three judges on the Judicial Conference Codes of Conduct Committee. The participants on the panel are Judge Walter K. Stapleton of Delaware, Judge Patricia Wald of Washington, D.C., and Judge James B. Zagel of Illinois. Judge Stapleton was appointed to the United States Court of Appeals for the Third Circuit in 1985. He served as United States District Judge for the District of Delaware from 1970 to his appointment to the Court of Appeals. Judge Stapleton has been a member of the Committee on Codes of Conduct since 1985 and was appointed Chairman in 1987. Judge Stapleton received an A-B degree from Princeton University in 1956 and an L-L-B degree from Harvard Law School in 1959. Judge Wald attended Connecticut College where she received her B-A degree in 1948 and Yale Law School where she received her L-L-B degree in 1951. She has served on the United States Court of Appeals for the District of Columbia since 1979 and served as Chief Judge from 1986 until 1991. She has been a member of the Codes of Conduct Committee since 1987. Judge Zagel received a B-A degree in June 1962 and an M-A degree in August 1962 from the University of Chicago. He received a J-D degree from Harvard Law School in 1963. He was appointed to the United States District Court for the Northern District of Illinois in 1987. Judge Zagel has served as a member of the Codes of Conduct Committee since 1987. Case number one, membership in legal and non-legal associations and similar activities. The first case that we're going to take up today is that of Court of Appeals judge D.O. Good who needs to make some critical choices about what parts of her formerly very activist life as a lawyer and community do-gooder, she can appropriately continue now that she is a judge on a United States Court of Appeals. Now, you have the hypothetical which lists the long history of her activities in the community and the variety of those activities. What we're going to do now is to try to sort them out under the applicable canons in the Judicial Code of Conduct that may apply to her situation. I think the first thing that we will do is look at her activities that are law-related or that deal with the administration of justice. And these activities would be governed by Canon 4. Canon 4 says a judge may engage in activities to improve the law, the legal system, and the administration of justice so far so good. The commentary to Canon 4 in fact encourages such law-related activities within certain limits. On the principle that a judge has some unique talents and unique experiences to contribute to the better administration of law and justice. So let's look at Judge Good's American Bar Association and American Law Institute memberships and directorates. On first glance, they would clearly seem to fall within Canon 4. Those are long traditional organizations which are dedicated to improving the law, the legal system, and the administration of justice. So is Judge Good automatically okay on retaining her membership and even her directorship in those two organizations? Before we move on to discussing that with my colleagues, I would like to make three points that even as to Canon 4 organizations, Judge Good has to be careful in the following aspects. One is that she should never do so much on the outside that her outside activities, be they law-related or not, interfere with her judicial functions. That's a given. Secondly, the Canon tells us, and several Canon's tell us, that she should not be identified with positions or policies that may impair her ability or the perception of her ability to decide cases which may involve those issues. And any time one belongs to an organization, there is always the danger that one can take on the coloration of that organization's position. So she has to be careful there. And finally, there is a general caveat about judges not in any way soliciting or permitting their judicial office to be used by others to solicit funds for any organization no matter how worthy, no matter how law-related. And that also has been interpreted to mean no solicitation personally for membership in those organizations. Now let's stop there a minute on Canon 4 and look at two things. One, Canon 4 talks about organizations that improve the law, the legal system, and the administration of justice. Read broadly, that could encompass a lot of organizations other than ones like the American Bar Association or the American Law Institute. Almost any policy reform we can think of could eventually end up as a law. Walt, where do you think Canon 4 draws the line about what kind of organizations are judges encouraged to belong to? When the Canon talks about organizations devoted to the improvement of the law, the legal system, and the administration of justice, I think the last two, the legal system or the administration of justice, the meaning there is clear. They're talking about organizations pertaining to how courts are run and how our system delivers legal services. Where you get into a debate is what it means when it talks about organizations for improvement of the law and what that means. And our committee has interpreted that in the context of the purpose of Canon 4, which really is to single out for special treatment from the universe of all the activities on the outside a judge might engage in, those activities where the judge is by virtue of his office, having been a judge and his legal training, to contribute something unique to the objective of the organization. And as a result, we've construed it to mean fairly narrowly. That is, it's talking about organizations like the ALI, which is devoted to the structure, clarification, overall improvement of the law through restatements or uniform codifications and that sort of thing, and not organizations that promote a particular policy change, even though it may involve a change of the law, amendment of the law, or the addition of a new statute. If you interpreted that broadly, I think you would do away, you'd encompass the whole universe. So I think one has to ask, is this the kind of organization where the judge by virtue of having been a judge is able to contribute something unique? And where it's, if it's an organization for a statute to ban nuclear weapons, I think the judge, even though it's promoting a statute, the judge has no unique contribution there. Jim, what about her position on the governor's task force on drugs? We all know, and especially we federal judges know, that the war against drugs has had a profound impact on our dockets, our courts, our district courts, and some of our appellate courts, have a severe case burden due to all of the processing of the numerous arrests. Now the governor's task force is looking for perhaps a better way to handle the drug problem, which would undoubtedly, if its recommendations were adopted, end up in some legislation, but also end up perhaps in having impact on both state and federal courts. Now, does that qualify for a Canon 4 organization, or does it fall within Canon 5, which deals with non-law related activities, and specifically bars membership on a governmental commission, that is Canon 5, that deals with fact and policy in non-law related activities? My view is that the task force, the governor's task force on drugs is out, that the judge cannot continue to participate in this. Part of this is based on the circumstances involving the debate over drugs, because there is a debate over what we ought to do about drugs. The debate does focus on questions of fact, questions of statistics, questions of policy, and typically task forces on drugs and other major issues in the environment end up recommending legislation. When they recommend legislation, unless the legislation is not very non-controversial, which it's not likely to be in this case, I think you have a situation in which although law is involved, it's involved in the same sense that Walt said it was involved in a law to ban nuclear testing. There is law at the bottom of it, but it is not the kind of law-related activity envisioned by Canon 4. It is in fact the kind of activity in Canon 5, and if the task force becomes very controversial, and it may very well, considering its subject matter, it trips over also into Canon 7, which contains relatively absolute bars against any kind of political activity. Although I might add, Canon 7 has an exception for activities that fall within Canon 4. So I suppose the lesson there is that these canons are quite often cross-referenced, and there are judgment calls as to which is the predominant canon that applies here. All right, we're rapidly simplifying Judge Good's very busy calendar. Now let's turn to the private local law reform activity that she had so usefully been involved in. The Council on Court Reform, which had a very extensive plan for reforming the state courts, and she had been a very articulate spokeswoman for that plan. It's just now reaching the point where the state legislature is considering it, and she would have been a primary witness in the move to put that ahead. Perhaps she might also have appeared on TV and in a variety of local forums pushing the recommendations. Now can she continue that? Does she have to get off of that and leave the Council on Court Reform in the lurch as it were? I think that this is the kind of organization that Canon 4 authorizes a judge to be involved in. Our committee has given advice that it's appropriate for a judge to be a member and active in an organization favoring merit selection of judges, for example. So I think it's the kind of activity that's authorized, but it's terribly important how she goes about it and how the story develops, so to speak. If she gets into a situation where what she's doing is going to be viewed by the public as politically partisan activity, I think she's got to back off. But going to the legislature and speaking to legislators about Court Reform I think is entirely appropriate. I think you have to realize there are two levels here, one, two questions. One is, can you participate? And then two, whether if you do participate, you may find yourself in a position where you have to recuse as a result of having participated, but it doesn't make it wrong to participate just because there may be an occasional situation where you are going to have to recuse later. Our committee has been of two minds on the degree to which judges ought to participate in these kinds of things. In 1970 we issued an opinion which said that a judge ought not to engage in any kind of activity in which the judge gave some positive commitment on a question of law. Seven years later we indicated that at least for purposes of teaching, a judge might very well teach and not have to refrain from expressing views on the law. My opinion on the matter is that it's a delicate problem because even something on its face is non-controversial as the American Law Institute, which is a heavy component of memberships of federal judges, is an organization that issues the restatements, deals occasionally with controversial matters of law, and there are statements themselves once their issue tends to be very influential. I think there is no barrier to a judge being on the ABA or being on the ALI. I think that to the extent Canon 4 encourages law-related activities and that's what Canon 4 does, the drafters of the Canon made a decision that it is better to permit this activity at the risk of having judges express views on the merits of certain issues. Jim, take the American Bar Association. For instance, in recent years it's in varying meetings taking a pro-abortion and an anti-abortion, that's a generalized statement, position. Now, if a federal judge is a member, a participating member of the ABA, does he or she have any responsibility to distance themselves either affirmatively or negatively when a Canon 4 organization occasionally finds itself in the midst of a very hot political controversial topic, which may end up in a case in a federal court? I think that the judge does. I think the judge does even with respect to certain non-controversial areas of the law. What I've often thought of is, Canon 4 by its encouragement of law-related activities tells the judge that you can participate. But I think other provisions of the Canon, Canon 1 dealing with the judge's conduct, counsel also that the level of participation must be restrained in some respect. And I think that one of the things the judge does lose is the right to be in the forefront on a large number of issues. And on issues that are particularly controversial that are likely to arise, I think the judge really has a duty not to withdraw from the organization, but to abstain from voting on these particular matters. Doesn't it depends a lot on whether you're talking about an occasional situation where the organization takes a controversial stand, as opposed to an organization where they are continually taking positions on the same side. One issue organization. Yes, or the ACLU is not a one issue organization, but in the public's mind it's devoted, it is associated with a particular point of view. Where you have the occasional position, controversial position like the ABA, we've advised that there's no duty to resign membership and indeed you can sit on a case involving an abortion issue so long as you didn't take part in developing the policy of the ABA. If you didn't take part then you've got to recuse, but you don't have to back off, you don't have to resign from the organization. Before we leave Canon 4, Judge Dio Good used to be a very constructive member of the state law school. Can she stay on that board? I think so. I think that is expressly authorized by Canon 5, even though if it's a state law school it is a governmental entity, but it does seem to me to be devoted to the improvement of the law, the legal system and the administration of justice. I think there's a difference of opinion on that and I'm not speaking for the committee there, but I think that's my view. As I recall the committee has actually spoken only on being on the governing board of a state university or a community college which are not exclusively law oriented and said no to that. I suppose on the theory that you would inevitably get involved in all sorts of issues dealing with state governance if you were on the governing board of one of their agents. A law school might be different and that's one of those questions I guess that will, for an ultimate answer, will await the right inquiry. Okay, I'd like to move on now to DO's non-law related activities. Specifically her memberships on such organizations as the Right to Life Board, the Sierra Club, the NAACP, and later on the Red Cross. As you can see she was a very bipartisan individual before she came on the court. Now those are all Canon 5 activities and Canon 5 reads that a judge should regulate extra judicial activities to minimize the risk of conflict with judicial duties, but recognizes both in the Canon and in the commentary that judges are human beings and there is some part of their life that they may wish to devote to things other than the law just to keep their sanity if for no other reason. However the Canon 5 is I would say more neutral as to such activities than Canon 4, which has a note of positive encouragement in them. The guiding lights as I see it on Canon 5 activities are again the perception or the reality of the judge's ability to remain impartial in cases that come before her and of course her ability to put her judicial duties in front of everything else. There is one additional component which comes up in several of these organizations. You mentioned the ACLU, it would be true of the NAACP and it would be true of the Sierra Club too. And that is are these organizations which themselves have a sizable litigating agenda. I know in the court I serve on the Sierra Club and most of the environmental organizations are before us all the time and the ACLU is certainly there a good bit of the time. I believe and tell me if any of you think that there is something else to be said on it that for such organizations the judge should not join or participate in the governance of on the ground that they will be a litigator with sufficient frequency that it will be a real dislocation as it were if she is going to recuse in all those cases. There's another point to be made here too and I'd like your reactions to that. We touched on it even on the Canon 4 activities and that is some of these organizations have a decided point of view. Certainly we know the NAACP is only going to be on one side of discrimination cases. Sierra Club is only going to be on one side of environmental cases. The ACLU presumably will be only on one side of cases that they think involve significant issues of free speech. That does raise a real problem of the perception of the judge if she is a member or especially if she is a very active governing member of these organizations as to how impartial she can be when they bring their cases to court and if she recuses herself how frequently she would have to recuse it. I think my reaction is that she can't belong to those organizations but let me hear Jim your view. I think that she can't belong to the organizations. I think all of those that have a substantial litigation component are simply organizations to which no judge can belong. The Red Cross which she's a member is something that doesn't litigate and she can continue her membership there but even then she has certain restraints in terms of her ability to be part of the governing board. She cannot give for example legal advice. She can simply serve as any other member who was not a judge could serve. I think the only difficult position, the difficult question, is that which revolves around organizations that may have controversial positions but they do not litigate and on this it's a close question. You've given the example of a right to life committee that doesn't litigate but perhaps seeks to influence the course of law and litigation and maybe the passage of statutes. I think under those circumstances the judge ought to shy away from that sort of organization as well. There are two published opinions that deal fairly extensively with some of the questions we've taken up. Those are opinions 28 and 40 that deal with our thinking on Canon 5 activities. Walt, do you have anything to add? No, I agree 100%. The Red Cross is alright. The others I would advise against because I think even if they didn't litigate that the substantial segment of the public would think that they might cause them to question the judge's impartiality in some cases. Alright. As a wife and a mother and a neighbor, D.O. Goode has always been a role model for the women attorneys in her jurisdiction and she wants to retain that kind of double aspect to her life. She wants to stay active in her church affairs. She wants to stay active on the board of her small daughter's co-op nursery school and she is also a good neighbor and she wants to make sure that her neighborhood is the right kind of place for her children to grow up on. A couple of caveats. She certainly can be as devout a churchgoer, as active a member in her church organization. She has to be absolutely careful about not lending her name or making any personal solicitations even for as worthy an organization as her local church or her local co-op school. This is perhaps the most definite no-no in the entire code is not doing any personal solicitation of money no matter what the cause. I think she can stay on the co-op board. She's got to be careful not to give legal advice as she may have done formally about leases or about contracts. Or investment advice. Or investment advice, absolutely. But I think she certainly can participate in the direction, the educational direction of the co-op. Let's take up her activities to try to prevent the demolition of the midwife's historical preservation dwelling, which is in the middle of the nice in-town area that D.O. Good lives in and which would be replaced by a filling station. She's prior to going on the bench, she had signed petitions, gone to her neighbors to sign petitions. She was slated to testify before the zoning board about what the effect of that would be on her neighborhood. Now, can she still do any of that, Jim? I think she can do most of it. In fact, there's very little I think that she can't do. But again, it's an area in which she has to be careful in the manner in which she does it. Appointment to the judiciary does not erase the fact that you reside in a neighborhood, you're a parent, and you assume certain social responsibilities. The one thing that presents significant problems, of course, is if a judge goes to a zoning board and makes a big thing of the fact that she's a judge and demands that the zoning board act in a certain way. The canon operates on the assumption that no judge is going to have the poor judgment to do such a thing. The questions become difficult because many judges will say, well, I'm going to testify as an individual. I'm going to speak solely on my own behalf, but everybody knows. Well, they get asked specifically, aren't you judge so-and-so from the Court of Appeals? We do have one canon. Canon 4 does address this issue. It says that a judge may appear to public hearing before an executive or legislative body in matters concerning the law of the legal system. And it then also says a judge may otherwise consult but only on matters concerning the administration of justice. On the face of it, it could be argued that this prohibits a judge's testimony before a zoning board. I don't think it does. I think this applies, Canon 4B does, only to those situations in which the judge is acting as a judge, testifying on the basis of the judge's interest as a judge in the law. I do not think it applies to those situations which a judge is testifying as a parent or as a homeowner in a particular neighborhood or as someone concerned about some other private social issue. All right. Our final aspect of Judge Good's new life will deal with Canon 7 which says a judge should refrain from political activity and certainly Judge Good knows that and intends to abide by it. She does, however, have a happy marriage with an aspiring politician in the state in which she lives. He's already in the legislature. He's being slated as a very promising candidate for the governorship. Now, as we all know in political campaigns, it's part of the political wisdom that you have your loyal wife by your side and your children hanging onto your coattails to show what a solid citizen you are. He would like very much to have her go with him to the rallies, to go with him to the political gatherings. Certainly if he wins, he'd like her to be there with him at the inauguration and all the attendant celebrations. What do you think, Walt? I'm afraid she can't do it except with respect to the inauguration. I think the inauguration is a ceremonial public event that she could, if he's fortunate enough to win, she could attend. But I'm afraid Canon 7 rules out even attendance at a political rally. Now suppose in one of those rallies she doesn't appear and somebody says to her husband, hey, where's your wife? How come she never comes to these things? Obviously her husband isn't bound by the cannons, but is there any problem if his campaign headquarters puts out a statement of some sort saying he's married to U.S. Court of Appeals Judge Dio Good, who because of Canon 7 cannot attend any of these activities? I think that's appropriate. I think that a judge and a judge's spouse are entitled to defend a course of conduct and cite the cannons to do so. Indeed, I think most judges feel many times in their lives have occasion to do this, particularly when they're asked to participate in fundraising, which I think happens to all of us and we all have to say, no, we can't do it, we think it's a very worthy cause, but the cannon's prohibited. As a final blow, are we going to tell Judge Good that she has to relinquish her membership in the Women's Democratic Club, which is basically, despite its name, a social club where both Republican and Democratic women and adjunct members who are their spouses go to get good food and to hear speakers from both sides of the political aisle, but the name remains for historical reasons or whatever the Women's Democratic Club. Yes or no, Jim? I say she has to give it up. I agree. I agree too. Well, all in all, it's going to be a very different life for Dio Good, who may see much less of her old causes and of her old friends, but it's a great job and we know she's made the right choice.