text:
    1998 OK JUD ETH 6
    JUDICIAL ETHICS OPINION 1998-6.
    No. 1998-6.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided July 7, 1998.
    Filed: July 24, 1998.
   QUESTION: May a Judge participate in a charitable fund-raising event where the Judge would not solicit funds nor make reports on funds raised, but would only act as an emcee, introduce talent or other guests?

WE ANSWER: NO.

Canon 4(C)(3)(b)(i), provides that a Judge shall not personally participate in the solicitation of funds or other fund-raising activities; and in (iv) provides that the Judge should not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.

It is stated in ABA Informal OP.603 (November 2, 1962) that the basis of the Canon is to avoid giving grounds for any “reasonable suspicion that he is utilizing the power or prestige of his office to persuade or coerce others to patronize or contribute ... to charitable enterprises.” MODEL CODE, Canon 5(B), sets out the standard provisions that a Judge should not solicit funds for charitable organizations and also adds: “He should not be a speaker or the guest of honor at an organization’s fund-raising event, but he may attend events.”

It is stated in Judicial Conduct and Ethics, paragraph 9.06 at page 263: “The advisory opinions evince a strong consensus in favor of a strict interpretation of the anti-solicitation rule.” Various examples have been given of conduct where there is not “even a remote possibility that the proposed activity actually would have exerted undue influence over potential donors.” However, the anti-solicitation rule was invoked.

It is our opinion that a strict interpretation of the pertinent Canon would prohibit a Judge from acting as an emcee at a fund solicitation program of a charitable organization.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


source: Caselaw Access Project

license: Public Domain

text:
    1998 OK JUD ETH 7
    JUDICIAL ETHICS OPINION 1998-7.
    No. 1998-7.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided July 7, 1998.
    Filed: July 24, 1998.
   QUESTION: What is the meaning of the term “Publicly State Support” as stated in Canon 5(C)(2): “A candidate should not ... personally solicit publicly stated support.”

WE ANSWER: Canon 5(C)(2) provides as follows: “A candidate should not personally solicit campaign contributions or personally solicit publicly stated support.”

This Canon suggests campaign actions that a candidate may not do, but which his committee may do. A judicial candidate should not ask others to make public statements of support of the Judge’s candidacy, just as the Judge himself cannot solicit nor accept campaign contributions. These are matters that the judicial candidate should leave to a committee working for his candidacy. Certainly, a judicial candidate’s committee may seek financial support and obtain public statements of support.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 5
    JUDICIAL ETHICS OPINION 1998-5.
    No. 1998-5.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided July 7, 1998.
    Filed: July 24, 1998.
   QUESTION: When a Judge campaigns for re-election, may he use in his campaign a card which identifies him as a Judge? For example, may a card be used which states, “Vote for John/Jane Doe, Associate District Judge?”

WE ANSWER: YES.

Canon 2(B): “A Judge should not lend the prestige of judicial office to advance private interests of the Judge ...”

Canon 5(A) “... (3) A candidate for judicial office: (d) should not: ... (iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent ...:

A seated Judge, running for re-election, has a right to actively campaign and advise the electorate of his/her qualification for the office. The question of the use of the Judge’s name on a campaign card is not discussed in JUDICIAL CONDUCT AND ETHICS, but in discussing a more conspicuous identification of the Judge’s position, it is stated at paragraph 11.11, page 337: “All jurisdictions that have addressed the question agree that an incumbent Judge may be pictured in his or her robe in campaign materials, so long as the picture is not misleading.”

An incumbent Judge may advise the electorate of his position as the prohibition is against any misrepresentation of the candidate’s position.

While there are many restrictions on the conduct and speech of a judicial candidate, note Canon 5, and the Judge may not exploit the power and prestige of the office, he still has the right to actively campaign. As set out in AMERICAN CIVIL LIBERTIES UNION, INC. v. FLORIDA BAR, 744 F.Supp. 1094 (N.D.Fla.1990), when a state decides to elect its judiciary through popular elections, “It must recognize a candidates’ right to make campaign speeches and the concomitant right of the public to be informed about the judicial candidates ... It is in the public interest to permit disclosure of truthful, relevant information helpful in the decision making process ...”

An incumbent Judge may advise the electorate that he/she is presently serving as a Judge by speech, poster or hand card,

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 9
    JUDICIAL ETHICS OPINION 1998-9.
    No. 1998-9.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided July 21, 1998.
    Filed: July 24, 1998.
   QUESTION: One of the requirements of the State Ethics Commission is that the candidate and campaign treasurer must sign all contribution and expenditure reports attesting to the accuracy of the information in the report. In many cases, the candidate takes on the role of chairman and/or treasurer of their own campaign.

Does the Code of Judicial Conduct prohibit a judicial candidate from serving as his or her own treasurer?

WE ANSWER: NO.

The Code of Judicial Conduct does not specifically prohibit a judicial candidate from serving as chairman or treasurer of this or her own campaign committee. A campaign committee is not mandatory under the Code of Judicial Conduct and is unnecessary if the judicial candidate will not solicit or accept contributions and only use personal funds in the campaign.

A judicial candidate without a committee has severe restrictions. Canon 5(C)(2) prohibits the judicial candidate from personally soliciting campaign contributions, from soliciting public endorsements or support and from using any funds received for private benefit.

A judicial candidate’s committee may solicit campaign contributions, may solicit public endorsements and may solicit help in the campaign from other individuals.

The purpose of the Canons is to insulate the judicial candidate from personal contact with financial supporters to avoid the appearance of bias if a contributor has appeared or will later appear in Court before the judicial candidate. The requirement that the judicial candidate and treasurer attest to the accuracy of a Financial Report to the State Ethics Commission tends to compromise the purpose of the provision in the Code.

The model code, Canon 7(B)(2), expresses the intent of the rule by providing that the contributor’s names should not be revealed to the candidate, “unless a candidate is required by law to file a list of his campaign contributors ...”

Obviously, a judicial candidate, like every other candidate, must comply with election laws and rules of the State Ethics Commission. Our conclusion is, though not required, as a practical matter, the judicial candidate should form a committee.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 8
    JUDICIAL ETHICS OPINION 1998-8.
    No. 1998-8.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided July 21, 1998.
    Filed: July 24, 1998.
   QUESTION: What is contemplated by the term, “Family” as used in Canon 5 of the Canons of Judicial Ethics?

WE ANSWER: Canon 5(A)(3) provides: “A candidate for judicial office: (a) should maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and should encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate ...”

In the ordinary sense, a “family” is considered by most dictionaries as a collective body of persons who live in one house or within the curtilege. Black’s Law Dictionary, includes a more narrow definition to include the immediate members of one’s household, specifically, wife, children, brothers, sisters or father and mother.

It is our opinion that Canon 5 uses “family” member as defined above in the sense of family member over which a judicial candidate would have persuasive influence if not out right control.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 10
    JUDICIAL ETHICS OPINION 1998-10.
    No. 1998-10.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided July 31, 1998.
    Filed: Aug. 21, 1998.
   QUESTION: All candidates to a judicial position have been invited to a Church Education Forum to discuss, “Domestic Court Reform.” It will be requested that the judicial candidates consider how the judiciary impacts children’s lives. May the judicial candidates participate and serve on a panel under such circumstances.

WE ANSWER: YES — With reservations.

Canon 5(A)(3) provides:

“A candidate for judicial office:
(a) should maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary ...
(b) should not:
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;
(ii) make statements that commit or appear to commit the candidate with respect to eases, controversies or issues that are likely to come before the Court ...

Clearly, the Canons place broad restrictions on a judicial candidate’s campaign statements. The Treatise, Judicial Conduct and Ethics, (1990), discusses and analyzes opinions of Judicial Ethics Panels from all over the country and we believe an accurate general statement on the question is set out therein at paragraph 11.09, page 330:

“Ethics advisory opinions have addressed the propriety of numerous statements and pledges candidates have proposed to use in the course of a campaign. The general sense of these opinions is that any thing that could be interpreted as a pledge that the candidate will take a particular approach in deciding cases or a particular class of cases is prohibited.”

A judicial candidate must refrain from any statement expressing a philosophy, an attitude, any mental predisposition, that would create an impression of how a judicial candidate might decide cases. The spirit of the Canons are to insure that a judicial candidate makes no promise or pledge that would not be consistent with deciding cases on the law and facts presented in each particular ease.

A judicial candidate may discuss and comment on relevant Court procedures and may recommend efficiencies and economies that could be instituted. But in the forum as contemplated in the question, it is likely that questions will be asked of the panel as to their opinions on disputed legal or political issues. A judicial candidate would be required to decline to offer an opinion.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 15
    JUDICIAL ETHICS OPINION 1998-15.
    No. 1998-15.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Aug. 14, 1998.
    Filed: Sept. 4, 1998.
   QUESTION: A candidate for a judicial office intends to state in his campaign literature: “I believe justice requires a fair system for all, especially little children who may be too small or unable to speak for themselves,” — “Balance the scales of justice for victims.” Are such campaign statements permitted by the Code of Judicial Conduct?

WE ANSWER: NO.

Canon 5(A)(3): A candidate for judicial office ... (d) should not ... (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office (ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the Court ...”

The campaign statements as proposed in the question are committing the judicial candidate, if elected, to favor certain parties in litigation, i.e., children, victims, which the Code of Judicial Conduct prohibits. The Canons attempt to assure a judiciary of unquestioned impartiality.

The objection to the statements proposed in the question are that they could be interpreted to mean a judicial candidate, if elected, would take a pre-announced approach in deciding cases of a particular class. To “balance the scales of justice,” for someone is not balancing at all. Obviously, similar campaign promises as “Tough on Crime,” “Justice for Victims,” are meant to take advantage of the public misperception between a “criminal” and an “accused.”

A judicial candidate should not make a pledge to take a particular approach to any case or issue that might come before him or her as a Judge.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 12
    JUDICIAL ETHICS OPINION 1998-12.
    No. 1998-12.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Aug. 14, 1998.
    Filed: Sept. 4, 1998.
   QUESTION: May a candidate for State judicial office, who is not a Judge of that particular office (for example: a sitting Municipal Judge, sitting Special Judge, or Associate Judge running for District Judge), use campaign literature referring to him/herself as “Judge,” as in “elect Judge J. Doe”?

WE ANSWER: YES. WITH QUALIFICATIONS.

Canon 5(A): “... (3) A candidate for judicial office: (d) should not ... (iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent

A judicial candidate may advise the electorate of his/her present title and position. If the judicial candidate is presently a Judge not a retired Judge, not a former Judge — he or she may so state.

If a candidate refers to him/herself as Judge in any campaign literature or material, the present judicial position must be made clear. The judicial candidate who refers to him/herself as Judge must make it clear that the candidate is not an incumbent of the office sought.

The reservation in our answer concerns the possibility or likelihood of misrepresentation: That the electorate may receive the impression the judicial candidate is an incumbent. That is a misrepresentation prohibited by a strict interpretation of the Canons.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 11
    JUDICIAL ETHICS OPINION 98-11.
    No. 98-11.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Aug. 14, 1998.
    Filed: Aug. 25, 1998.
   QUESTION: May a candidate for State judicial office, who is a former Judge (resigned or retired) use campaign literature referring to him/herself as “Judge,” for example: “Elect Judge J. Doe”?

WE ANSWER: NO.

Canon 5(A): “... (3) A candidate for judicial office: (d) should not: ... (iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent
Canon 5(E): “Canon 5 generally applies to all incumbent Judges and judicial candidates ...”

An incumbent Judge may advise the electorate of his or her position as the prohibition is against any misrepresentation of the candidates’ position. If a judicial candidate is not a Judge, campaign literature or vocal announcements referring to the candidate as “Judge John Doe” is a misrepresentation and would appear to be an attempt to deceive the electorate.

A Judicial candidate can refer to a past judicial position — e.g. “former Special Judge J. Doe,” or “former Chief Justice of the Supreme Court J. Doe,” if the statement is true. The judicial candidate may explain prior judicial service by date, type of litigation experience and precise judicial position. But the key words of the Canon are NO MISREPRESENTATION OF “QUALIFICATIONS” OR “PRESENT POSITION.”

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 13
    JUDICIAL ETHICS OPINION 1998-13.
    No. 1998-13.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Aug. 14, 1998.
    Filed: Aug. 25, 1998.
   QUESTION: May a judicial candidate place campaign materials at the headquarters of a political party?

WE ANSWER: NO.

Canon 5(A)(1): “Except as authorized herein, a Judge or a candidate for election or appointment to judicial office should not:
(a) act as a leader of or hold an office in a political organization;
(b) publicly endorse or publicly oppose another candidate for public office;
(c) make speeches on behalf of a political organization or candidate or publicly endorse a candidate for public office; or
(d) solicit funds for, or pay an assessment to or make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions.

First, we should note a judicial candidate cannot participate in partisan political affairs nor make known his/her party affiliation. 20 O.S. § 1404 and 1404.1. We also note Canon 5 does not specifically prohibit the action suggested in the question.

The Canons seek to prohibit all partisan political activities by judicial candidates. The only explicit exception is in 20 O.S. § 1404.1, which permits a judicial candidate to attend a political gathering upon payment of an admission fee and “for the sole purpose of campaigning in his own behalf for a judicial office.” The spirit, if not the letter, of the Canons discourage even minimal partisan political activity.

It is our opinion, as a practical matter, the campaign literature of a judicial candidate should not be placed in a political party headquarters.

/s/ Robert L. Bailey, Chairman /s/ Robert A. Layden, Vice Chairman /s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 17
    JUDICIAL ETHICS OPINION 1998-17.
    No. 1998-17.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Oct. 12, 1998.
    Filed: Oct. 19, 1998.
   QUESTION: Is it a violation of the Code of Judicial Conduct for a retired Judge to publicly endorse a judicial candidate, make contributions, solicit contributions, serve as chairman of a committee for a judicial candidate and do so under the title of “Retired Judge”?

WE ANSWER: NO.

We assume the former Judge in question is not an active retired Judge. An active retired Judge is under all of the restrictions of the Code of Judicial Conduct just as a sitting Judge and could not properly do any of the actions set out in the question.

A person who has been a Judge but is presently retired is a private citizen and need not comply with any of the Canons of Judicial Ethics. We note, however, the former Judge as an attorney must be aware of and comply with the Rules of Professional Conduct which apply to attorneys.

The former Judge may describe him/herself as “Retired Judge,” “District Judge, Retired,” as a correct statement of current status.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 18
    JUDICIAL ETHICS OPINION 1998-18.
    No. 1998-18.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Oct. 12, 1998.
    Filed: Oct. 26, 1998.
   QUESTION: Should a judge recuse, on his own motion, or at the request of a party, from a case in which a former employer or client is a party litigant, if the judge did not participate in that particular case before taking office?

Is there a difference between situations in which the judge was in private practice, representing a client on case-by-case basis and that in which the judge was house counsel, representing only that entity?

WE ANSWER: NO, with exceptions.

Canon 3E(1) provides “a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned including “but not limited to instances where (a) the judge has a personal bias or prejudice concerning a party as a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding ...”

The judge must disclose to the parties the prior relationship with the party, and if by reason of such relationship is asked to recuse should do so, at least for an extended period of time subsequent to the termination of the relationship. But this does not forever preclude the judge from sitting on a case involving a former client or employer, if the judge has no continuing relationship with the employer, as for example, stock or stock options in a company as vested retirement benefits ■with the former employer.

Obviously, if a judge has been “house counsel” rather than having represented the former client on a “case-by-ease” basis, may give rise to a stronger presumption of bias and require a longer period of disassoeiation to allay such presumption.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 19
    JUDICIAL ETHICS OPINION 1998-19.
    No. 1998-19.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Oct. 12, 1998.
    Filed Oct. 26, 1998.
   QUESTION: Canon 5(D) provides: “An incumbent Judge or Justice who is a candidate for retention in or re-election to office without a competing candidate, and whose candidacy has drawn active opposition, may campaign in response thereto and may obtain publicly stated support in campaign funds in the manner provided herein.”

Under the Code of Judicial Conduct, when is it appropriate for such a candidate to begin a campaign for retention?

WE ANSWER: A candidate for retention for judicial office may commence a campaign when the candidacy has drawn active opposition. Of course, the real question is: What is the meaning of “active opposition” as used in Canon 5 of the Code of Judicial Conduct. That is a fact specific question that must be analyzed and answered depending on the particular facts in each situation.

The Canons do not explain the meaning of “active opposition.” At least one Ethics Panel has responded to the question, Arizona, J.E.A.C., OP. 78-1(1978), by stating that such a candidate may begin a campaign as soon as he or she, “reasonably believes that he or she will have substantial opposition regardless of how early it may be.”

The obvious answer is that the meaning of “active opposition” is a subjective matter left to the wisdom and reasonable inferences of the candidate. A candidate for retention should not be left in the vulnerable position of doing nothing until specific and definite proof of active opposition is obtained. A well organized campaign against a candidate for retention could be publicly launched only a few weeks before election day, although it is doubtful that such a campaign could be organized without some inkling of it being made known.

A candidate for retention in judicial office who reasonably suspects that there will be active or substantial opposition to the candidacy, may begin a campaign subject to the other rules set out for candidates in Canon 5.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 16
    JUDICIAL ETHICS OPINION 1998-16.
    No. 1998-16.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Oct. 12, 1998.
    Filed: Nov. 24, 1998.
   QUESTION: May a judicial candidate, during or after a campaign, write a Thank You Note to campaign contributors?

WE ANSWER: YES.

A judicial candidate cannot personally solicit campaign contributions, Canon 5C(2), but it may be done by a committee established by the judicial candidate. As we stated in Judicial Ethics Opinion 98-9, the purpose of the Canons is to insulate the judicial candidate from personal contact with financial supporters to avoid the appearance of bias if a contributor has appeared or later will appear in Court before the judicial candidate.

The rules of the State Ethics Commission of the State of Oklahoma tend to compromise the spirit of the Code of Judicial Conduct. The judicial candidate, like all candidates in the State of Oklahoma, must comply with the rules of the State Ethics Commission which require the candidate to attest to the accuracy of the campaign contributions. A judicial candidate may attend a fundraiser in his/her behalf. Contributors may voluntarily offer support to the candidate. Lists of supporters are often shown in newspaper advertising. In fact, the candidate will know the names of supporters.

It must be recognized that if contributors and other support seem to be ignored by the judicial candidate, if sacrifice and effort by supporters are not acknowledged, the reputation of the judicial candidate could be substantially impaired.

As a practical matter, it is not a violation of the Code of Judicial Conduct to write a Thank You Note to campaign supporters.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 21
    JUDICIAL ETHICS OPINION 1998-21.
    No. 1998-21.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Oct. 12, 1998.
    Filed: Nov. 24, 1998.
   QUESTION: May a judicial candidate publicly inform others of the political party affiliation of his opponent? For example, may a judicial candidate publicly inform a Republican Club that his opponent is a Democrat, without publicly revealing his own party affiliation? • If the answer is No, what public response, if any, may the opponent give to this public disclosure.

WE ANSWER: NO.

Title 20 O.S. Section 1404(6), states that a candidate for a judicial office may not make publicly known his political party affiliation either directly or by implication. Canon 2A of the Code of Judicial Conduct provides, “A Judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

The intent of the Statute cited above, and the intent and spirit of the Code of Judicial Conduct, are to keep partisan political affiliation completely removed from judicial elections. For a judicial candidate to publicly inform a Republican Club that his opponent is a Democrat indicates that the candidate is implying that he or she is of one political party, which is a violation of the Statute. That is, the candidate cannot suggest political party affiliation by implication.

A judicial candidate who is a victim of the improper statements of an opponent concerning political affiliation must remain silent on the matter despite the violation by the opponent. A candidate might advise an audience that disclosure of political party affiliation is unlawful.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 22
    JUDICIAL ETHICS OPINION 1998-22.
    No. 1998-22.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Oct. 12, 1998.
    Filed: Nov. 24, 1998.
   QUESTION: May a judicial candidate permit others to publicly announce that the candidate is affiliated with a particular political party, when, in fact, the candidate is not registered with this party? For example, may a judicial candidate permit the candidate’s name to be on campaign literature with the phrase, “Let’s Vote Democratic”?

WE ANSWER: NO.

A judicial candidate should never permit his name to be on campaign literature with the phrase, “Let’s Vote” with any political party. The Canons state that the judicial candidate should encourage members of his or her family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate; and discourage other employees and officials subject to his direction and the candidate should prohibit employees and officials who serve at the pleasure of the candidate from doing anything on the candidate’s behalf which the candidate is prohibited from doing. Canon 5A(3).

As stated in Canon 5A(3)(c), except to the extent permitted by Section 5C(2), a judicial candidate should not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under Sections of this Canon. The exception pertains to what a candidate’s committee may do that is prohibited for the candidate.

A judicial candidate should carefully read and understand Title 20 O.S., Section 1404(6), which prohibits the candidate from making publicly known his political party affiliation and prohibits the candidate from “knowingly permitting others” to indicate the candidate’s political party affiliation. Clearly, under the Statute and the Canons, a judicial candidate must not permit supporters to use the candidate’s name in a manner prohibited to the candidate.

It is the intent of 20 O.S., Section 1404, and the intent of the Code of Judicial Conduct to completely remove all partisan political affiliations from judicial campaigns.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 20
    JUDICIAL ETHICS OPINION 1998-20.
    No. 1998-20.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Oct. 12, 1998.
    Filed: Oct. 26, 1998.
   QUESTION: Is an Administrative Law Judge who hears cases for an agency of the State of Oklahoma on a part-time basis as an independent contractor subject to all of the provisions of the Code of Judicial Conduct (Oklahoma Statutes, Title 5, Ch. 1, App. 4), or just subsection C — “Continuing Part-time Judge.”

SPECIFICS: The Administrative Law Judge hears cases one or two days a month in the offices of the state agency. The judge prepares written decisions in his or her own office and delivers the final version to the agency. Pursuant to the one-year contract, the judge is compensated for his/her time at a set rate per hour, not to exceed a maximum amount for each case. The judge receives no other benefits from the state agency.

CODE PROVISIONS: An Administrative Law Judge is a judge within the meaning of the Code. Application of the Code of Judicial Conduct, Section A. All judges should comply with the Code, except as provided in Sections B, C, D, E and F. Id. A Continuing Part-time Judge is not required to comply at any time with Sections 2C, 4C(2), 4D(3), 4E(1), 4F (acting as an arbitrator or mediator), 4G (“Practice of law), 5A(1) (participation in political activities), 5B(2) and 5D. Application of the Code of Judicial Conduct, Section C(l)(b).

WE ANSWER: Based on the specific facts set out as part of the question, the Judge in this case should be considered a “Continuing Part-time Judge” under the Application of the Code of Judicial Conduct.

In paragraph A of the Application of the Code of Judicial Conduct, a Magistrate is included along with others who perform judicial functions. The Code contemplates these individuals being full-time employees as they are prohibited from many financially rewarding activities, such as the practice of law.

A distinction is made for Continuing Part-time Judges since they ordinarily would need income from other sources. It is noted in the question above that the Administrative Law Judge hears cases “one or two days a month.” It would be difficult to find Judges to fill these positions if they were prohibited from engaging in other business activities. The Code specifically provides that a Continuing Part-time Judge may serve as an executor, administrator, other fiduciary activities; may serve as an arbitrator or mediator; and may practice law.

Under the specific facts set out above, although the Judge in question is “an Administrative Law Judge” the position is better described in the Code of Judicial Conduct as “Continuing Part-time Judge.”

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 24
    JUDICIAL ETHICS OPINION 1998-24.
    No. 1998-24.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Nov. 20, 1998.
    Filed: Dec. 17, 1998.
   ¶ 1 QUESTION: May the spouse of a judicial candidate solicit public support, political sign locations and/or financial contributions for the judicial candidacy of his spouse?

¶ 2 WE ANSWER: YES.

¶ 3 Canon 5C(2): “A candidate should not personally solicit campaign contributions or personally solicit publicly stated support. A candidate may, however, establish committees of responsible persons to conduct campaigns for the candidate ... Such committees may solicit and accept reasonable campaign contributions ... and obtain public statements of support ...”

¶4 Canon 5A(3): “A candidate for judicial office: (a) should maintain the dignity appropriate to the judicial office and act in a manner consistent with the integrity and independence of the judiciary, and should encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate ...”

¶ 5 A candidate should encourage the candidate’s spouse not to solicit public support nor solicit political sign locations nor financial contributions, which conduct is prohibited to the candidate. If the spouse is a part of the judicial candidate’s campaign committee, the spouse may be involved in such activities as could any other member of the committee. The candidate should not knowingly permit any other person to do for the candidate what he/she is prohibited from doing except those activities permitted to the candidate’s committee. It surely is presumed that the candidate knows what the candidate’s spouse is doing and if it is improper and in violation of the Canons, the candidate should discourage it. However, it must be recognized the Code of Judicial conduct does not apply to members of the family of Judges or judicial candidates.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1998 OK JUD ETH 23
    JUDICIAL ETHICS OPINION 1998-23.
    No. 1998-23.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Nov. 20, 1998.
    Filed: Dec. 17, 1998.
   ¶ 1 QUESTION: May a judicial candidate answer the question: “What is your position regarding the death penalty?”

¶ 2 QUESTION: In regard to the question in number 1, may the candidate state: “I have no problem enforcing the death penalty.”

¶ 3 QUESTION: In regard to the initial question, may a judicial candidate state: “I am proud to tell you that I support the death penalty.”

¶ 4 WE ANSWER: 1. YES.

2. YES, with reservations.

3. NO.

¶ 5 Canon 5A(3)(d), provides that candidate for judicial office should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office and should not “(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the Court....”

¶ 6 A judicial candidate may state a position regarding the death penalty. The judicial candidate may state that the penalty of death is in the range of punishment for certain crimes and a Judge is required to consider the entire range of punishment specified in the Statutes for a particular case. The candidate may state that he would enforce the death penalty in a proper case.

¶ 7 For a judicial candidate to state that he or she has no problem enforcing the death penalty is not a violation of the Canons specifically, unless in the context of the question and answer and in the circumstances surrounding it, it is meant to imply that the candidate is committed to a certain position with respect to capital cases.

¶ 8 For a judicial candidate to state that he or she takes pride in supporting the death penalty is contrary to the Code of Judicial Conduct in that it implies that the judicial candidate has a general attitude or philosophy with reference to the death penalty. This is the precise type of position the Canons seek to prohibit.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1999 OK JUD ETH 2
    JUDICIAL ETHICS OPINION 1999-2.
    No. 1999-2.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided: April 1, 1999.
    Filed: April 2, 1999.
   ¶ 1 QUESTION: May a newly appointed or elected Judge continue to practice law in the winding-up of his/her legal business after taking the oath of office as a Judge?

¶ 2 WE ANSWER: No.

¶ 3 Canon 4(G): “PRACTICE OF LAW. A Judge shall not practice law.”

¶ 4 Oklahoma Constitution Article 7, Section ll.(b):

“No Justices or Judges, except those with Municipal Courts, shall engage in the practice of law ...”

¶ 5 Oklahoma Statutes, Title 5, § 1:

“No person shall practice as an attorney and counselor at law in any court of this state ... who holds a commission as judge of any court of record ..but nothing herein contained shall prevent any judge of any of the courts of this state from finishing any business by him undertaken in the district, circuit or supreme court of the United States, prior to his election or appointment as judge

¶ 6 Rules of Professional Conduct, Title 5, Chapter 1-Appendix 3-A, Rule 1.3:

“A lawyer shall act with reasonable diligence and promptness in representing a client. ”

¶ 7 Rules of Professional Conduct, Title 5, Chapter 1-Appendix 3-A, Rule 1.16:

“... (b) except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interest of the client ...”

¶ 8 The commentary in the Rules of Professional Conduct pertaining to Rule 1.3, suggest that “unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client.”

¶ 9 We submit the above citations because of the obvious conflicts. First, there is a conflict between the Code of Judicial Conduct and the Oklahoma Statutes wherein the Statues permit a judge to complete work in the federal courts but not in state courts, while the Canons make no exception for completing work in the federal courts. We suggest a possible conflict between the Canon cited above and the provisions of the Rules of Professional Conduct for attorneys in that the Canons provide no practice of law while the Rules of Professional Conduct obviously emphasize an attorney’s fiduciary responsibility to clients.

¶ 10 The Code of Judicial Conduct, prior to the Amendments of 1997, provided in Canon 5(F), that a judge “should not practice law, except as provided in 5 O.S.1971, section 1.” This exception was omitted when the Canons were adopted June 23,1997, and we consider this as a clear intention of the Oklahoma Supreme Court to prohibit a judge from practicing law in any manner, in any court.

¶ 11 Despite the statute, a judge is violating the Code of Judicial Conduct in practicing law in the federal courts on work undertaken before he was a judge.

¶ 12 The Canons of many states provide for a “winding-up exception” to the provision prohibiting the practice of law, but Oklahoma does not. The matter is discussed in “Ethical Issues for New Judges” by Cynthia Gray, published by the American Judicature Society. The analysis of the decisions of various states makes it clear than an attorney, prior to being sworn in as a judge, may continue to practice in court, work on cases, appear as trial counsel for clients and continue the ordinary practice of law. However, in states like Oklahoma that do not have a “winding-up exception”, after a judge is sworn into a judicial office he/she may not practice law.

¶ 13 This panel recognizes the practical problems created when a practicing attorney, particularly a sole practitioner, is appointed to a judicial position. The Tennessee Code provides an exception that allows a newly elected or appointed judge to practice law in winding-up a practice, but requires that it be done “as soon as reasonably possible and in no event longer than 180 days after assuming office.”

¶ 14 Perhaps a “winding-up exception” should be a part of the Oklahoma Code of Judicial Conduct. However, our conclusion must remain as stated at the beginning: A Judge shall not practice law.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1999 OK JUD ETH 1
    JUDICIAL ETHICS OPINION 1999-1.
    No. 1999-1.
    Oklahoma Judicial Ethics Advisory Panel.
    April 1, 1999.
   ¶ 1 QUESTION 1: After an election on November 3,1998, may the campaign committee of a judicial candidate expend funds after December 3, 1998, where checks were received but not deposited prior to December 3, 1998, and cash was received but not spent prior to that date?

¶ 2 QUESTION 2: If there are outstanding obligations incurred in connection with the campaign of a judicial candidate, may campaign committee members contribute towards payment of the debt after December 3,1998?

¶ 3 ANSWER NO. 1: YES.

¶ 4 ANSWER NO. 2: NO.

¶ 5 Code of Judicial Conduct, Canon 5 C. (2)

“A candidate’s committees may solicit and/or accept contributions and public support for the candidate’s campaign no earlier than ninety (90) days before an election filing period and no later than thirty (BO) days after the last election in which the candidate participates during the election year.”

¶ 6 The wording is clear that contributions may not be accepted after the time provided in the Canon and where the election was held on November 3, 1998, contributions could be accepted through December 3rd, but not after.

¶ 7 A check dated and delivered to a committee member before December 3rd is a contribution within the time limit established by the Canon and may be deposited to the committee’s account and used after December 3rd for the payment of outstanding obligations. Cash received by a committee member before December 3rd, even though not deposited to the account of the committee before that date, may still be deposited or expended to pay campaign debts. Either checks or cash would be funds that were “accepted” within the time established by the Canon. In short, a check received by any member of the campaign committee on December 4 or later should not be accepted; cash received by any member of the committee on December 4 or later cannot be accepted. Such funds cannot be used in payment of campaign debts.

¶ 8 With regard to the second questions, payment of a campaign debt by campaign committee member, or by any other person, is in violation of Canon 5C.(2) if done more than 30 days after the election. A direct payment to a campaign creditor would clearly be a contribution to the campaign or to the candidate and cannot be made later than thirty (30) days after the election.

¶ 9 We conclude, after the thirty (30) day period set out in the Canon, only the candidate, personally, may pay campaign financial obligations.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1999 OK JUD ETH 3
    JUDICIAL ETHICS OPINION 1999-3.
    No. 1999-3.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided April 1, 1999.
    Filed: May 12, 1999.
   ¶ 1 QUESTION: Is a Judge required to recuse when an attorney appearing before the Judge in a contested action previously represented the Judge in a legal manner?

¶ 2 SPECIFIC FACTS: Some years prior to the attorney appearing before the Court, the attorney represented the Judge in a personal lawsuit. The lawsuit was settled without trial and the Judge has had no further attorney-client relationship with the attorney for a period of over three (3) years.

The attorney who represented the Judge later left the law firm he had been with and joined another firm so the question extends to two law firms as well as to the attorney himself. The attorney who represented the Judge has appeared in a number of contested cases before the Judge and the attorney who requested the recusal acknowledges that in those past cases there has been no showing of prejudice or misconduct on the part of the Judge.

¶ 3 WE ANSWER: No.

¶4 Canon 3(E)(1): “A Judge should disqualify himself or herself in a proceeding in which the Judge’s impartiality might reasonably be questioned ...”

¶ 5 Canon 2(B): “A Judge should not allow family, social, political or other relationships to influence the Judge’s conduct or judgment ... nor should a Judge convey or permit others to convey the impression that they are in a special position to influence the Judge.”

¶ 6 There are no provisions in the Code of Judicial Conduct requiring disqualification in the fact situation presented in the question. We must emphasize, however, that the answer is based on the specific facts and other considerations might require a different answer. Certainly a Judge should recuse without motion where one of the attorneys is presently representing him in a personal legal matter. The Judge should probably re-cuse where the representation by one of the attorneys is somewhat current, perhaps a year since the representation. We must also emphasize that a Judge should disqualify, as set out clearly in the Canons, where there may be the appearance of impartiality as viewed by a reasonable person.

¶ 7 It is stated in the Federal Compendium of selected opinions, v. 41, paragraph 3.4-8(c), that where there is no existing or continuing attorney/client relationship, recusal is not required because the attorney previously represented the Judge; the answer would be the same where the attorney or the attorney’s firm previously represented a minor child of the Judge.

¶ 8 The question was raised in McKeague v. Talbert, 3 Haw.App. 646, 658 P.2d 898 (1983). The Court stated that “... the mere fact that a judicial officer was formerly represented by a law firm presently appearing before a him would not, per se, require disqualification based on appearance of impropriety.” The Court distinguished the question from other situations where a Judge disqualified because of personally ongoing relationships with an attorney appearing before the Judge.

¶ 9 A Judge must advise of any past representation or any relationship with one of the attorneys before him that might be perceived as a basis for recusal.

¶ 10 In summary, in the facts set out above the Judge is not required to disqualify; however, the main concern is the question of possible perception of judicial prejudice.

¶ 11 We agree with the Arizona Judicial Ethics Advisory Committee which stated in Arizona Advisory Opinion 95-11, that a policy requiring Judges to disqualify themselves simply because of prior professional relationships with attorneys would be burdensome upon the judiciary, particularly in rural areas where there are few Judges and Judges know many of the litigants and lawyers.

¶ 12 ADOPTED this 1st day of April, 1999.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    1999 OK JUD ETH 4
    JUDICIAL ETHICS OPINION 1999-4.
    No. 1999-4.
    Oklahoma Judicial Ethics Advisory Panel.
    Nov. 16, 1999.
   QUESTION: May an active judge receive reasonable compensation for participation in an educational program which does not interfere with judicial duties?

SPECIFIC FACTS: The judge participates in a program presented by the Oklahoma Foundation for the Humanities. The judge portrays a historical figure in making presentations to schools, churches, civic groups and other such entities. The words of a historical figure portrayed by the judge are used in the program, but after the program, the participants step out of character and answer questions. The judge would be expected to commit to several presentations per year and would be paid reasonable compensation and mileage for travel.

WE ANSWER: YES.

Canon 2: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities ”

Canon 3(A): “The judicial duties of a judge take precedence over all the judge’s other activities. The judge’s judicial duties include all the duties of the judge’s office prescribed by law.”

Canon 4(A) “Extra-Judicial Activities In General. A judge should conduct all of the judge’s extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.”

Canon 4(B) “Avocational Activities. A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-leg al subjects, subject to the requirements of this Code.”

Canon 4(D)(1): “A judge should not engage in financial and business dealings that:

(a) may reasonably be perceived to exploit the judge’s judicial position, or
(b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.”

Canon 4(D)(2) “A judge may, subject to the requirements of this Code, hold and manage investments of the judge ... and engage in other remunerative activities.”

The intent of the Canons is clear that a judge may engage in extra-judicial activities, may be paid for those activities so long as the integrity of the judiciary and of the judge is not compromised and the activity does not interfere with the performance of the judge’s judicial duties. The application of the Canons to specific activities is not so clear.

Our answer is based on the specific facts submitted. It is important to note:

1. The compensation is “reasonable.”
2. No interference with judicial duties.
3. No use of judicial equipment or judicial support personnel.
4. The participation is in an educational program, not an income producing business.
5. Nothing in the activity, nor resulting from it, is likely to come before the court.
6. The activity does not tend to lessen respect for the judiciary; on the contrary, the portrayal described in the question would seem to enhance respect for the judiciary.

We do not attempt to set parameters for a judge’s non-judicial, commercial activities. These are impliedly permitted as Canon 4(D)(2) states that subject to requirements of the Code, “A judge may ... engage in other remunerative activities. ” However, the Canons are quite clear that a judge cannot serve in any capacity of any business entity except those that are family related. See Canon 4(D)(3). Also, we cite in this answer other Canons of the Code which set out restrictions on a judge’s extra-judicial activities.

If a judge has unique abilities and can assist in educational programs, the judge should be encouraged to participate. If a judge engages in such activities, on his or her own time, there is no reason for the judge to decline reasonable compensation. We make no attempt to specify what financial activities are permitted to a judge, but we urge judge’s to use caution and discretion in pursuing any type of extra-judicial vocation or avocation,

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    2001 OK JUD ETH 1
    JUDICIAL ETHICS OPINION 2001-1.
    No. 2001-1.
    Oklahoma Judicial Ethics Advisory Panel.
    March 30, 2001.
   QUESTION 1: May a sitting judge or an active retired judge charge and/or accept a fee/honorarium for conducting a marriage outside of the Courthouse when the ceremony is on the judge’s personal time, i.e., evenings or weekends?

WE ANSWER: NO.

Canon 2A: “A judge should respect and comply with the law....”

Oklahoma Constitution, Article XV, § 1:

“All public officers, before entering upon the duties of their offices, shall take and subscribe to the following oath or affirmation: T, ., do solemnly swear (or affirm) ... that I will not knowingly, receive, directly or indirectly, any money or other valuable thing, for the performance or non-performance of any act or duty pertaining to my office, other than the compensation allowed by law....’ ”

43 O.S. § 7:

“A. All marriages must be contracted by a formal ceremony performed or solemnized ... by a judge or retired judge-”

The performance or solemnization of a marriage is an official act of a judge. A judge may not charge a fee nor accept a gratuity for the performance of any official act.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    2002 OK JUD ETH 4
    JUDICIAL ETHICS OPINION 2002-4.
    No. 2002-4.
    Oklahoma Judicial Ethics Advisory Panel.
    April 5, 2002.
   QUESTION 1: Can an active Judge be involved in a campaign organized by the County Commissioners to win passage of a county-wide sales tax to finance the construction of a new County Jail?

WE ANSWER: YES

Canon 4: “A Judge Should So Conduct the Judge’s Extra-Judicial Activities as to Minimize the Risk of Conflict With Judicial Obligations ...

C. Governmental, Civic or Charitable Activities....
(2) A judge should not accept appointment to governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system as the administration of justice unless with the specific approval of the Supreme Court ...
(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice ... subject to the following limitations and the other requirements of this Code.
(a) a judge should not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization
(i)will be engaged in proceedings that would ordinarily come before the judge, or ...
(b) a judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:
(i) may assist such an organization in planning fundraising and may participate in the management and investment of the organization’s funds, but shall not personally participate in the solicitation of funds or other fund-raising activities;
(ii) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice;
(iii) should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 4C(3)(b)(i), if the membership solicitation is essentially a fund-raising mechanism;
(iv) should not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.”

It is our opinion that a campaign to build a new county jail, particularly in those instances where the current jail has been found inadequate and/or in violation of prescribed standards by an appropriate oversight body, clearly is a matter that relates to the “improvement of the law, the legal system or the administration of justice” as referred to in Canon 4(C).

Historically, the probability of a legal challenge to this type of election is so infrequent that it would not invoke the prohibition of Canon 4(C)(3)(a)(i). Likewise, we do not see this as the type of political activity that would in any manner be prohibited by any of the provisions of Canon 5.

We do caution that the judge should be mindful of the canons relative to fund-raising and should refrain from any such activities regarding this election process.

/s/ Robert L. Bailey, Chairman

/s/ Robert D. Simms, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    2002 OK JUD ETH 5
    JUDICIAL ETHICS OPINION 2002-5.
    No. 2002-5.
    Oklahoma Judicial Ethics Advisory Panel.
    April 5, 2002.
   QUESTIONS: Can a full-time Administrative Law Judge who is also a novelist and enters short story contests and submits novels for publication:'

1. Publish under the judge’s real name, without the title of judge?
2. Indicate in a biography that he/she is a judge?
3. Authorize the use of a photograph of the author on the book’s jacket?

WE ANSWER: l.YES

2. YES

3. YES, with restrictions.

DISCUSSION:

Canon 2: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judges Activities
B. ... A judge should not lend the prestige of judicial office to advance the private interests of the judge or others

Canon 4: “A Judge Should So Conduct the Judge’s Extra Judicial Activities as to Minimize the Risk of Conflict With Judicial Obligations ...

D. Financial Activities

(1) A judge should not engage in financial and business dealings that:
(a) may reasonably be perceived to exploit the judge’s judicial position, or
We find nothing in the Canons that prevent a judge from engaging in the activity described so long as it is pursued on the judge’s own time; and nothing that would preclude the use of the judge’s real name as an author so long as the title of judge is not used. We further do not believe that a biographical sketch of the author’s life indicating that he or she is a judge along with other activities and background would violate Canon 2(B). We would caution that it might be inappropriate to emphasis the judge’s vocation in such biographical sketch. We further do not find the use of a personal photograph on a book jacket or cover not identifying the party by title would violate either Canon 2(B) or Canon 4(D).
We find the circumstances surrounding these questions as distinguishable from the question we answered in Opinion 98-4 in which we stated that it would be improper for a judge to use his name as an owner of a non-legal related business in newspaper and telephone advertisements of such business, as being in violation of Canon 4(D).
The questions we answer today relate to trade practices and are not per se, advertising activities directed to the public for solicitation of business. Furthermore, the activity we address in this opinion is not that of a judge being involved in the operation of a business in a locale in which the individual is known as a judge by the general public.

/s/ Robert L. Bailey, Chairman

/s/ Robert D. Simms, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    2002 OK JUD ETH 6
    JUDICIAL ETHICS OPINION 2002-6.
    No. 2002-6.
    Oklahoma Judicial Ethics Advisory Panel.
    Aug. 2, 2002.
   QUESTION: May a part-time Municipal Judge, upon request of the Police Department, don a bullet proof vest, sign an appropriate waiver and ride around with the police in a patrol car to observe what they do?

WE ANSWER: NO.

Canon 1: “A Judge Should Uphold the Integrity and Independence of the Judiciary.”

Canon 2A: “A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Canon 3E(1): “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has ... personal knowledge of disputed evidentiary facts concerning the proceedings.”

Canon 4: “A Judge Should So Conduct the Judge’s Extra-Judicial Activities as to Minimize the Risk of Conflict With Judicial Obligations

A. Extra-judicial activities in general. A judge should conduct all of the judge’s extra-judicial activities so that they do not:

(1) cast reasonable doubt in the judge’s capacity to act impartially as a judge.
(2) ...
(3) interfere with the proper performance of judicial duties.”

DISCUSSION

Obviously, Canon 2 would require a judge to recuse from any ease that might arise out of contacts made by the police in the presence of the judge because of the personal knowledge the judge would obtain. This would thus bring into play the provisions of Canon 4 as being conduct which would conflict with the judge’s judicial obligations and as such should be avoided.

Further, public knowledge that the judge was riding with police officers during the performance of their duties would certainly give rise to a question of the judge’s impartiality and independence as required by Canons 1, 2 and 3; and would therefore be a prohibited activity.

/s/ Robert L. Bailey, Chairman

/s/ Robert D. Simms, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    2002 OK JUD ETH 7
    JUDICIAL ETHICS OPINION 2002-7.
    No. 2002-7.
    Oklahoma Judicial Ethics Advisory Panel.
    Aug. 2, 2002.
   QUESTIONS:

1. May a sitting judge of the District Court, send a letter of recommendation to a law school on behalf of the child of a friend?
2. If so, is it improper to send the letter on official letterhead?

WE ANSWER:

1. Yes, subject to certain conditions.
2. No, as to the specific fact situation, with comments regarding other types of recommendations.
Canon 2B: “... A judge should not lend the prestige of judicial office to advance the private interests of the judge or others; ...”

DISCUSSION

We have reviewed opinions on the subject from Commissions from the states of Texas, Illinois, Florida, Alabama, Washington, West Virginia and Pennsylvania. These questions and similar questions as to letters of recommendation appear to be ones frequently addressed to the Judicial Ethics Commissions of the various states. Our research shows that no state ethics commission has interpreted its Canons to automatically prohibit such activity under appropriate circumstances. A few states prohibit the use of “official letterhead” but most do not. Pennsylvania, which at one time prohibited the use of official letterhead, later found that issue to be de minimis and held that anything that was appropriate for a judge to otherwise write, could be written on .official stationery. We find this reasoning to be sound.

Pennsylvania’s Judicial Ethics Committee (Formal Opinion 98-1) adopted guidelines with regarding to letters of reference. We recommend the following guidelines to the Oklahoma Judicial Conference:

(1) A judge should never write a letter of reference for a person whom the judge does not personally know.
(2) A judge may write a letter of reference if it is the type of letter that would be written in the ordinary course of business (e.g., a court employee seeking a reference to his or her work history). The letter should include a statement of the judge’s personal knowledge.
(3) The letter should ordinarily be addressed and mailed directly to the party or organization for whom the information is being written. A “To Whom it May Concern” letter should be avoided unless it is on behalf of a personal employee of the judge who is seeking other employment.
(4) The Commission recognizes that a judge may be asked to write a letter of recommendation of a purely personal nature, such as the inquiry to which this opinion responds. Such letters may be written if they are the type of letter that a judge would normally be requested to write as a result of a personal relationship.
(5) Any letter that is appropriate for a judge to write may be written on official stationery.

/s/ Robert L. Bailey, Chairman.

/s/ Robert D. Simms, Vice Chairman.

/s/ Milton C. Craig, Secretary.


text:
    2002 OK JUD ETH 8
    JUDICIAL ETHICS OPINION 2002-8.
    No. 2002-8.
    Oklahoma Judicial Ethics Advisory Panel.
    Aug. 2, 2002.
   QUESTION: May a judge attend a joint Federal-State Product Litigation Coordination Conference to discuss administrative issues associated with over 200 cases filed in 60 different federal jurisdictions as against the same defendant, one of whom is assigned to the judge making the request for this opinion? The cost of the judge is to be reimbursed by the plaintiffs and defendants in the federal case. The judge has obtained the consent to attend by all parties in the ease assigned him.

WE ANSWER: YES.

Canon 2: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities

A. A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Canon 3B: “Adjudicative Responsibilities

(6)“... A judge should not initiate nor consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided that the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication.
(b) ...
(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.

Canon 3C: Managerial Responsibilities.

(1) A judge should diligently discharge the judge’s managerial responsibilities, without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

DISCUSSION

The purpose of the conference as we understand it, is to bring together a great number of judges, both state and federal, before whom eases are pending, involving products liability of the same product, to meet and discuss common issues and attempt to arrive at common procedures and schedules.

The judge having asked for and received the consent of all parties in his case; and the great benefit likely to be derived by all litigants in the various eases by coordination of scheduling such matters as discovery, hearing dates and trial dates, together with the assistance this will give the courts in the orderly administration of justice, complies with all of the dictates of those portions of Canons 2 and 3 set out above.

/s/ Robert L. Bailey, Chairman

/s/ Robert D. Simms, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    2002 OK JUD ETH 10
    JUDICIAL ETHICS OPINION 2002-10.
    No. 2002-10.
    Oklahoma Judicial Ethics Advisory Panel.
    Aug. 22, 2002.
   QUESTIONS: 1. Can a Special Judge campaign for his/her boss, i.e., the District Judge?

2. Can a Special Judge assist or be involved in fundraising for a District Judge?

3. Can a Court Reporter for a Special Judge campaign for a District Judge?

4. Can employees of a District Judge campaign for the Judge?

WE ANSWER: 1. No

2. No.

3. Yes, with reservations.

4. Yes, with reservations.

Canon 5: “A Judge or Judicial Candidate Should Refrain From Inappropriate Political Activity

A. All Judges and Candidates.

(1) Except as authorized herein a judge or a candidate for election or appointment to judicial office should not ...

(b) publicly endorse or publicly oppose another candidate for public office;
(e) make speeches on behalf of a political organization or candidate or publicly endorse a candidate for public office; or
(d) solicit funds for, or pay an assessment to or make a contribution to a political organization or candidate,

Canon 5A(3): “A candidate for judicial office:

(a) ...
(b) should prohibit employees and officials who serve at the pleasure of the candidate, and should discourage other employees and officials subject to the candidate’s direction and control from doing on the candidate’s behalf, what the candidate is prohibited from doing under the Sections of this Canon;”

DISCUSSION:

The provisions of the Code of Judicial Conduct specifically provide that a special judge is a judge within the meaning of the Code and subject to its provisions. Canon 5A(l)(b)(c)(d) clearly prohibit a judge from endorsing, campaigning for, or being involved in fundraising activities on behalf of another judge.

A court reporter assigned to a special judge does not serve that judge at will, the special judge has neither the authority to hire or terminate a court reporter, that authority being vested in the district judge or judge of the district. That court reporter under the canon, may engage in any political activity in which the judge may engage, but is likewise restricted from those political activities of which the judge is prohibited. The same rule applies to any other employee of the judge.

/s/ Robert L. Bailey, Chairman

/s/ Robert D. Simms, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    2002 OK JUD ETH 11
    JUDICIAL ETHICS OPINION 2002-11.
    No. 2002-11.
    Oklahoma Judicial Ethics Advisory Panel.
    Aug. 22, 2002.
   QUESTION: May the spouse of a candidate for District Judge who is a member of the candidate’s campaign committee, in an individual capacity and without identifying the judicial candidacy, campaign for a son-in-law who is a legislative candidate.

WE ANSWER: Yes, but should be discouraged from doing so.

Canon 5A(1): “Except as authorized herein a judge or a candidate for election or appointment to judicial office should not

(b) publicly endorse or publicly oppose another candidate for public office;
(c) make speeches on behalf of a political organization or candidate or publicly endorse a candidate for public office; or ...”

Canon 5A(3): “A candidate for judicial office:

(a) should maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and should encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate ...”

DISCUSSION:

The Code requires the judge or candidate to discourage such activity for surely the general public will perceive that the actions of the spouse or family reflect the attitude of the judge or candidate, however misplaced that perception may possibly be. But as we have previously stated in Advisory Opinions 1998-24 and 2000-7, the Code of Judicial Conduct applies to the judge or judicial candidate, but cannot be expanded to the members of their family. To do so would infringe upon the First Amendment rights of those persons.

/s/ Robert L. Bailey, Chairman

/s/ Robert D. Simms, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    2002 OK JUD ETH 9
    JUDICIAL ETHICS OPINION 2002-9.
    No. 2002-9.
    Oklahoma Judicial Ethics Advisory Panel.
    Aug. 22, 2002.
   QUESTION: Does 20 O.S. § 1404(3) allow a judicial officer, or candidate for judicial office to purchase tickets for a political party annual dinner for the purpose of campaigning on his/her behalf without violating Canon 5(A)(1)(d)?

WE ANSWER: YES, with certain restrictions

20 O.S. § 1404 deals with grounds for removal of a judicial officer by the Court on the Judiciary. 20 O.S. § 1404(3) reads: “Participation by a judicial officer, while serving as such officer or while a candidate for judicial office, in any partisan political activity. But the term ‘partisan political activity’ as used herein, shall not include the attendance by judicial officer or by a candidate for a judicial office at a political gathering, upon payment of a nominal admission fee, for the sole purpose of campaigning in his own behalf for a judicial office.”

Canon 5(A)(1)(d): “A Judge or Judicial Candidate Should Refrain From Inappropriate Political Activity

A. All Judges and Candidates.
(1) Except as authorized herein a judge or a candidate for election or appointment to judicial office should not ...
(d)solicit funds for, or pay an assessment to or make a contribution to a political organization or candidate, or purchase tickets for political dinners or other functions.”

DISCUSSION:

It is not within the mandate of the Judicial Ethics Advisory Panel to interpret the statutes of the State of Oklahoma, that function being vested in the Courts of our state. However, in questions such as this, when it may appear that there is a possible conflict between a statute and a canon of the Code of Judicial Conduct, it is necessary in order to be helpful to the party posing the question, to make reference to both and examine them side by side. It would appear that the statute is designed to permit a candidate for judicial office to attend a partisan political function and to pay for the same to the extent that the ticket purchased is for the purpose of defraying the cost of the event, but from which the sponsoring organization would not derive additional revenue with which to advance it’s political agenda.

The canon could be read to absolutely prohibit the purchase of a ticket for political party dinners or other functions. However, taken within the context of the entire canon, and reading the pertinent language of the canon in pari materia with the cited statute, we conclude that so long as the cost of the ticket covers only the reasonable cost of the event apportioned on an individual basis to the judicial candidate and would not enlarge the coffers of the political party to advance its agenda, that such participation is acceptable under the canon.

/s/ Robert L. Bailey, Chairman

/s/ Robert D. Simms, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    2003 OK JUD ETH 8
    JUDICIAL ETHICS OPINION 2003-8.
    No. 2003-8.
    Oklahoma Judicial Ethics Advisory Panel.
    Jan. 14, 2004.
   QUESTION:

Should a Federal Administrative Law Judge recuse from all cases in which a first cousin or any member of the firm by whom the cousin is employed appears as the representative of a claimant?

FACTS:

The hearing before the office of Hearings and Appeals are of record, and appeal from an adverse ruling may be made to the federal Administrative Law Judge. Hearings are non-adversarial in that the government does not appear. Applicants may appoint a lawyer or non-lawyer to appear as their representatives, only an individual may be appointed, not a firm. The Administrative Law Judge approves fees allowed to the attorneys. The Judge, as a practice, recuses when the cousin is the representative.

WE ANSWER:

No, but disclosure should be made.

Canon 2: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities

A. A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

B. A judge should not lend the prestige of judicial office to advance the private interests of the judge or others; nor should a judge convey or permit others to convey the impression that they are in the special position to influence the judge.”

DISCUSSION:

⅛ faet situation as presented, the cousin is an “employee” of a firm and receives no direct benefit over and above his salary from fees earned by other employees or the employer and thus does not benefit directly from fees awarded by the judge. If after disclosure of the judge’s relationship with an employee of the firm representing an applicant, recusal is requested, the judge should be mindful of the provisions of Canon 2 in determining whether recusal is appropriate,

/s/ Robert L. Bailey, Chairman

/s/ Robert D. Simms, Vice Chairman

/s/ Milton C. Craig, Secretary


text:
    2003 OK JUD ETH 9
    JUDICIAL ETHICS OPINION 2003-9.
    No. 2003-9.
    Oklahoma Judicial Ethics Advisory Panel.
    Jan. 14, 2004.
   QUESTION:

May a part-time Municipal Court Judge make a financial contribution to a colleague running for office in a partisan election?

WE ANSWER: Yes

DISCUSSION:

Such judge under the Code, is a periodic part-time judge and is not required to comply with Canon 5A(1) of the Code of Judicial Conduct.

/s/ Robert L. Bailey, Chairman

/s/ Robert D. Simms, Vice Chairman

/s/ Milton C. Craig, Secretary