by Dr. Carl Bernofsky
Fearful of a growing backlash from the public against arbitrary, prejudiced, and even malicious judgments that are protected by judicial immunity, judges have banded together under government sponsorship to devise means of defending themselves from aggrieved and increasingly militant pro-se litigants.Continuing Education Credit Prejudices JudgesJUNE WISNIEWSKIMy name is June Wisniewski. I live in Reno, Nevada, about two miles from the National Judicial College, the non-profit organization that trains judges, and grew up in Linden, New Jersey.Here is John Boyle, the judge who went on Fox News twice and talked about my case,In the Matter of Joseph Wisniewski, Sr., Docket No. J-1733. Judge John Boyle called me a quack, a loser, and a mental case, but admitted that I had money due and owning me in a civil case.On another videotape, Boyle stated that his father introduced him to the Mafia when he was twelve years old, and made sure that he did not have his picture taken with any Mafia leader. Boyle went into detail on how money was confiscated from poor persons, and stated that the Mafia was all about the money, and not about the fellowship.Judge John M. Boyle accepted a bribe in the case, In the Matter of the Estate of Joseph Wisniewski, Sr., and fradulently concealed over $140,000 improperly paid to the attorney, Walter A. Kipp, of Rutherford, NJ. Boyle arranged with the Administrator of the estate, Joe Wisniewski, Jr., of McLean, VA, and his attorney, Kipp, to substitute $250,000 worth of bogus, bankrupt, junk bonds that were not part of my father’s estate instead of cash or actual assets. The State of New Jersey supports the fradulent concealment of estate assets in selected cases.http://judicialterrorism.blogspot.com/2009/07/here-is-judge-who-went-on-fox-news.htmlThis book, along with Dealing With Common Law Courts: A Model Curriculum for Judges and Court Staff, published in 1997 by NCSC, was developed from an Institute for Course Management (ICM) course on dealing with common law courts, held in Scottsdale, Arizona, February 5-7, 1997.
The curriculum and manuals for this course were prepared with a grant from the State Justice Institute: Award No. SJI-96-02B-B-159, “The Rise of Common Law Courts in the United States: An Examination of the Movement, the Potential Impact on the Judiciary, and How the States Could Respond.”
The State Justice Institute (SJI) is a non-profit, 501C(3) corporation that was started in 1986 and funded by Congress to develop courses and training manuals for state courts and judicial training organizations.This course and training manuals were developed by a group of 27 judges, court clerks, court administrators, and prosecutors in Arizona who examined the history and procedures of the Common Law Court Movement (CLC) and created the training curriculum and responses that courts, judges, and court administrators can use when dealing with common law courts in their own jurisdictions.
My contact at the conference said that one of its goals was to identify ways the courts can make preemptive strikes against the CLC movement.Some of the keynote speakers who helped produce the CLC course in Arizona were Chief Justice Thomas Moyer of Columbus, Ohio, T.C. Brown of Columbus, Ohio (a reporter for theCleveland Plain Dealer), and Jonathan Mozzochi, Executive Director of the Coalition for Human Dignity in Seattle, Washington. Mozzochi, who distributed Guns and Gavels, a publication of the Coalition, was listed as “a nationally recognized expert on militias and hate group activity.”
The Coalition is like a west coast version of the Southern Poverty Law Center (SPLC).I originally found out about this course by watching a videotaped session of the 1996 combined conference of the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA), held in Nashville, Tennessee in the summer of 1996 and called “Impact of the Common Law Court Movement on the Courts.”
More than 50 state supreme court justices and state court administrators attended the Tennessee conference. The CLC session was taped with a grant from SJI. Keynote speakers were Michael Reynolds, senior intelligence analyst for the SPLC, and James Reynolds, chief of the Terrorism and Violent Crime Section, U.S. Department of Justice.
The panel discussion included Susan Hansen, senior reporter with American Lawyer, Ohio Supreme Court Chief Justice Thomas Moyer (past president of CCJ), Utah Supreme Court Justice Michael Zimmerman, and Judges Jeffrey Langton and Gregory Mohr from Montana.
The taped session was more than three hours long. At the end of the session, one of the speakers mentioned that there was funding for additional CLC conferences. I immediately called ICM, located at NCSC in Virginia, and asked about the additional CLC conferences. My contact told me that a Scottsdale conference was going to take place in about three days. Since those two conferences, there have been additional conferences sponsored by SJI with other organizations.
SJI sponsored a conference with the American Judicature Society in Scottsdale, Arizona in November, 1999 that was closed to the public and the press. There will also be an ICM course in Orlando, Florida on February 5-7, 2001 called “Increasing Access to Justice for pro-se Litigants,” with that organization’s perception of what “access” means.
“Constitutionalists in Court” was held in the St. Paul-Minneapolis, Minnesota area in the summer of 2000 by the National Judicial College (NJC) of Reno, Nevada, and the same course was held again November 13-14, 2000, also at NJC in Reno. This course discusses the history of protest movements affecting the judiciary, identifies typical challenges and ways to handle them, anticipates courtroom security needs, and plans solutions and strategies.
NJC, together with the University of Nevada, Reno (UNR), conducted a survey, developed material for their courses from SJI materials and grants, and published a brief report called “Right-Wing Extremist Challenges to the Authority and Jurisdiction of the Court” in 1998.
This course and report contains a preemptive plan against pro-se litigants and others who may disagree with the court, including the American Civil Liberties Union (ACLU), Native American protest groups, religious organizations, and anyone else who may take issue with a court decision. The information from NJC is so controversial that NJC has banned its course and conference materials from the public, but their library and the SJI repository is open to the public.
I originally started researching judicial training organizations in 1996 after I was denied an inheritance by the New Jersey court system when my parents died and was also denied entrance to a conference and course materials at NJC in May, 1996, called “The National Conference on the Media and the Courts: Working Together to Serve the American People.”
The media conference was closed to the public. Only one New Jersey judge, Martin Kravarick, attended that conference. Judge Kravarick was elected president of the American Judges Association (AJA), a judge’s organization under NCSC. AJA publishes a quarterly journal called Court Review, available in your local law library, by subscription, or through interlibrary loan.
I first found out about the judicial movement against pro-se litigants and the CLC movement by reading Kravarick’s “President’s Message” in the Fall, 1996 issue of Court Review. I called Judge Kravarick for more information on what the CLC movement was all about, and he gave me some additional contact information. I called Mike Reynolds of SPLC, and he told me there were four conference proceedings and that the conference was taped.
I waited over three months to get a copy of the tape, “Impact of the Common Law Movement on the Courts.” That tape is available through interlibrary loan from NCSC along with the training manuals mentioned above.Each state has an SJI repository for all publications put out by the organizations they have funded. For example, the repository in Nevada is at NJC in Reno.
In New Jersey, the SJI repository is at the New Jersey State Library in Trenton. You can check out these training manuals with a New Jersey library card. You can also find out where your SJI repository is by looking it up on the Internet at http://www.statejustice.org, by calling SJI at 703-684-6100, or by writing to the State Justice Institute, 1650 King street, Alexandria, VA 22314.SJI is funded by Congress with your tax dollars.
If you don’t like the courses and materials they are funding, you can write to your senator or congressman, or directly to SJI and ask them to stop funding these materials. SJI gets very few letters from the public, and I’m sure they would love to hear from you. When you get to their Web site, read and download the newsletters. Most of their new grants are in their newsletters.The National Center for State Courts is an umbrella organization for several judges’ organizations such as the National College of Probate judges (NCPJ), AJA, CCJ, COSCA, ICM and others.
I have been a member of NCPJ since 1996 and have attended four judges’ conferences. The most controversial and harmful material against the public is coming from NJC and NCSC materials, two agencies that compete with each other for SJI and federal government funding.In the training manuals mentioned above, there are two sections in each book where the writers advise judges and court personnel such as court clerks and guards on how to handle pro-se litigants using a step-by-step process. The writers of these manuals reveal a court that is biased and has a dangerous point of view about justice and equal access in the court system.Copyright © 2001 June Wisniewski
The Author: June Wisniewski is a legal researcher and journalist in Reno, Nevada, and can be reached at firstname.lastname@example.org. She has written a number of articles on judicial subjects and is author of the book, The Coffin Chasers: An Aggrieved Litigant’s Journey Through the Corrupt World of Probate. The source of this article is the January 5, 2001 issue of the Idaho Observer (http://proliberty.com/observer/20010105.htm).
The text has been modified by reformating and other nonconsequential editing and is noted as such at the request of the author. The subject matter is the basis of another book by Wisniewski, Unequal Justice: The Inside Story of the National Judicial College.Note 1: The vulnerability of pro se’s to the hostility of judges is exemplified by the fate of Elena Sassower in 2004. See also: Sherman Skolnick’s Big Court Fix.
Note 2: In 2006, the American Bar Association issued a manual, Countering the Critics; Q&E Guide [PDF], that instructs judges on how to respond to complaints about the lack of accountability and other “hot-button” issues they are likely encounter from critics of the American court system.
Note 3: On March 11, 2008 the Judicial Conference of the United States adopted a new set of rules for processing misconduct complaints against federal judges [PDF]. This document also contains instructions for filing complaints against judges.
Hellman, Arthur D., Proposed Amendments to the Federal Judicial Misconduct Rules: Comments and Suggestions (January 23, 2015).
Hearing Before the Judicial Conference of the United States — Committee on Judicial Conduct and Disability, October 30, 2014; U. of Pittsburgh Legal Studies Research Paper No. 2015-10. Available at SSRN:http://ssrn.com/abstract=2554596
Proposed Amendments to the Federal Judicial Misconduct Rules: Comments and Suggestions
Arthur D. Hell man
University of Pittsburgh
January 23, 2015
Hearing Before the Judicial Conference of the United States — Committee on Judicial Conduct and Disability, October 30, 2014
U. of Pittsburgh Legal Studies Research Paper No. 2015-10
Most of the amendments in the published draft involve clarification or emphasis. But I have identified six revisions that do reflect changes of policy from the 2008 Rules. Five of the six reflect sound policy; they will serve to enhance transparency and strengthen procedural regularity. However, one proposed revision – an amendment that would allow tie votes in the Conduct Committee on petitions for review – is unwise. I urge the Committee to reconsider it.
Part IV addresses a variety of issues raised by the proposed draft and the Rules as originally adopted. These include: the chief judge’s obligation to “identify” a complaint based on public reports suggesting that a judge may have engaged in misconduct; judicial council authority to impose sanctions on complainants who abuse the process; disqualification of judges from proceedings under the 1980 Act; and making the Rules more user-friendly. The most detailed discussion involves two issues raised by the misconduct complaint against former District Judge Richard Cebull of Montana: judicial-council authority to conclude a proceeding and disclosure of judicial-council orders that have been vacated or modified.
Click on http://ssrn.com/abstract=2554596
Keywords: Federal Judicial Misconduct Statutes, Breyer Committee Report, Judicial Conduct, Judicial Misconduct, Federal Judges, Judicial Ethics, National Commission on Judicial Discipline and Removal, Rulemaking, United States Code Chapter 16, Reform, Judicial System, Federal Courts, Judicial Discipline
Code of Conduct for United States Judges
The Code of Conduct for United States Judges includes the ethical canons that apply to federal judges and provides guidance on their performance of official duties and engagement in a variety of outside activities.
Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
Canon 4: A Judge May Engage in Extrajudicial Activities That are Consistent With the Obligations of Judicial Office
Canon 5: A Judge Should Refrain From Political Activity
Compliance with the Code of Conduct
Applicable Date of Compliance
The Code of Conduct for United States Judges was initially adopted by the Judicial Conference on April 5, 1973, and was known as the “Code of Judicial Conduct for United States Judges.”
See: JCUS-APR 73, pp. 9-11. Since then, the Judicial Conference has made the following changes to the Code:
- March 1987: deleted the word “Judicial” from the name of the Code;
- September 1992: adopted substantial revisions to the Code;
- March 1996: revised part C of the Compliance section, immediately following the Code;
- September 1996: revised Canons 3C(3)(a) and 5C(4);
- September 1999: revised Canon 3C(1)(c);
- September 2000: clarified the Compliance section;
- March 2009: adopted substantial revisions to the Code.
- March 2014: revised part C of the Compliance section, which appears below, immediately following the Code.
This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.
Certain provisions of this Code apply to special masters and commissioners as indicated in the “Compliance” section.
The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code.
The Judicial Conference has authorized its Committee on Codes of Conduct to render advisory opinions about this Code only when requested by a judge to whom this Code applies.
Requests for opinions and other questions concerning this Code and its applicability should be addressed to the Chair of the Committee on Codes of Conduct by email or as follows:
Chair, Committee on Codes of Conduct
c/o General Counsel
Administrative Office of the United States Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, D.C. 20544
Procedural questions may be addressed to:
Office of the General Counsel
Administrative Office of the United States Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, D.C. 20544
An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges.
The integrity and independence of judges depend in turn on their acting without fear or favor. Although judges should be independent, they must comply with the law and should comply with this Code. Adherence to this responsibility helps to maintain public confidence in the impartiality of the judiciary. Conversely, violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.
The Canons are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law, and in the context of all relevant circumstances.
The Code is to be construed so it does not impinge on the essential independence of judges in making judicial decisions.
The Code is designed to provide guidance to judges and nominees for judicial office.
It may also provide standards of conduct for application in proceedings under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (28 U.S.C. §§ 332(d)(1), 351-364).
Not every violation of the Code should lead to disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline, should be determined through a reasonable application of the text and should depend on such factors as the seriousness of the improper activity, the intent of the judge, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the judicial system.
Many of the restrictions in the Code are necessarily cast in general terms, and judges may reasonably differ in their interpretation. Furthermore, the Code is not designed or intended as a basis for civil liability or criminal prosecution. Finally, the Code is not intended to be used for tactical advantage.
(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
(B) Outside Influence.
A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.
A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.
A judge should not testify voluntarily as a character witness.
(C) Nondiscriminatory Membership.
A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.
An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct.
A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.
Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code.
Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.
Canon 2B. Testimony as a character witness injects the prestige of the judicial office into the proceeding in which the judge testifies and may be perceived as an official testimonial.
A judge should discourage a party from requiring the judge to testify as a character witness except in unusual circumstances when the demands of justice require.
This Canon does not create a privilege against testifying in response to an official summons.
A judge should avoid lending the prestige of judicial office to advance the private interests of the judge or others.
For example, a judge should not use the judge’s judicial position or title to gain advantage in litigation involving a friend or a member of the judge’s family.
In contracts for publication of a judge’s writings, a judge should retain control over the advertising to avoid exploitation of the judge’s office.
A judge should be sensitive to possible abuse of the prestige of office.
A judge should not initiate communications to a sentencing judge or a probation or corrections officer but may provide information to such persons in response to a formal request.
Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration and by responding to official inquiries concerning a person being considered for a judgeship.
Canon 2C. Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired.
Canon 2C refers to the current practices of the organization. Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive.
The answer cannot be determined from a mere examination of an organization’s current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. See New York State Club Ass’n. Inc. v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984).
Other relevant factors include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members.
Thus the mere absence of diverse membership does not by itself demonstrate a violation unless reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination.
Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership.
Although Canon 2C relates only to membership in organizations that invidiously discriminate on the basis of race, sex, religion or national origin, a judge’s membership in an organization that engages in any invidiously discriminatory membership practices prohibited by applicable law violates Canons 2 and 2A and gives the appearance of impropriety.
In addition, it would be a violation of Canons 2 and 2A for a judge to arrange a meeting at a club that the judge knows practices invidious discrimination on the basis of race, sex, religion, or national origin in its membership or other policies, or for the judge to use such a club regularly.
Moreover, public manifestation by a judge of the judge’s knowing approval of invidious discrimination on any basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A.
When a judge determines that an organization to which the judge belongs engages in invidious discrimination that would preclude membership under Canon 2C or under Canons 2 and 2A, the judge is permitted, in lieu of resigning, to make immediate and continuous efforts to have the organization discontinue its invidiously discriminatory practices.
If the organization fails to discontinue its invidiously discriminatory practices as promptly as possible (and in all events within two years of the judge’s first learning of the practices), the judge should resign immediately from the organization.
The duties of judicial office take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards:
(A) Adjudicative Responsibilities.
(1) A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.
(2) A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings.
(3) A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.
A judge should require similar conduct of those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.
(4) A judge should accord to every person who has a legal interest in a proceeding, and that person’s lawyer, the full right to be heard according to law.
Except as set out below, a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers.
If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested.
A judge may:
(a) initiate, permit, or consider ex parte communications as authorized by law;
(b) when circumstances require it, permit ex parte communication for scheduling, administrative, or emergency purposes, but only if the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication;
(c) obtain the written advice of a disinterested expert on the law, but only after giving advance notice to the parties of the person to be consulted and the subject matter of the advice and affording the parties reasonable opportunity to object and respond to the notice and to the advice received; or
(d) with the consent of the parties, confer separately with the parties and their counsel in an effort to mediate or settle pending matters.
(5) A judge should dispose promptly of the business of the court.
(6) A judge should not make public comment on the merits of a matter pending or impending in any court.
A judge should require similar restraint by court personnel subject to the judge’s direction and control.
The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.
(B) Administrative Responsibilities.
(1) A judge should diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court personnel.
(2) A judge should not direct court personnel to engage in conduct on the judge’s behalf or as the judge’s representative when that conduct would contravene the Code if undertaken by the judge.
(3) A judge should exercise the power of appointment fairly and only on the basis of merit, avoiding unnecessary appointments, nepotism, and favoritism. A judge should not approve compensation of appointees beyond the fair value of services rendered.
(4) A judge with supervisory authority over other judges should take reasonable measures to ensure that they perform their duties timely and effectively.
(5) A judge should take appropriate action upon learning of reliable evidence indicating the likelihood that a judge’s conduct contravened this Code or a lawyer violated applicable rules of professional conduct.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness;
(c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;
(d) the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:
(i) a party to the proceeding, or an officer, director, or trustee of a party;
(ii) acting as a lawyer in the proceeding;
(iii) known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or
(iv) to the judge’s knowledge likely to be a material witness in the proceeding;
(e) the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.
(2) A judge should keep informed about the judge’s personal and fiduciary financial interests and make a reasonable effort to keep informed about the personal financial interests of the judge’s spouse and minor children residing in the judge’s household.
(3) For the purposes of this section:
(a) the degree of relationship is calculated according to the civil law system; the following relatives are within the third degree of relationship: parent, child, grandparent, grandchild, great grandparent, great grandchild, sister, brother, aunt, uncle, niece, and nephew; the listed relatives include whole and half blood relatives and most step relatives;
(b) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
(c) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party, except that:
( i) ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
(ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(iii) the proprietary interest of a policyholder in a mutual insurance company, or a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities;
(d) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation.
(4) Notwithstanding the preceding provisions of this Canon, if a judge would be disqualified because of a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the judge (or the judge’s spouse or minor child) divests the interest that provides the grounds for disqualification.
(D) Remittal of Disqualification.
Instead of withdrawing from the proceeding, a judge disqualified by Canon 3C(1) may, except in the circumstances specifically set out in subsections (a) through (e), disclose on the record the basis of disqualification.
The judge may participate in the proceeding if, after that disclosure, the parties and their lawyers have an opportunity to confer outside the presence of the judge, all agree in writing or on the record that the judge should not be disqualified, and the judge is then willing to participate.
The agreement should be incorporated in the record of the proceeding.
The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court.
Courts can be efficient and businesslike while being patient and deliberate.
The duty under Canon 2 to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary applies to all the judge’s activities, including the discharge of the judge’s adjudicative and administrative responsibilities.
The duty to be respectful includes the responsibility to avoid comment or behavior that could reasonably be interpreted as harassment, prejudice or bias.
The restriction on ex parte communications concerning a proceeding includes communications from lawyers, law teachers, and others who are not participants in the proceeding.
A judge may consult with other judges or with court personnel whose function is to aid the judge in carrying out adjudicative responsibilities.
A judge should make reasonable efforts to ensure that law clerks and other court personnel comply with this provision.
A judge may encourage and seek to facilitate settlement but should not act in a manner that coerces any party into surrendering the right to have the controversy resolved by the courts.
In disposing of matters promptly, efficiently, and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay.
A judge should monitor and supervise cases to reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.
Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to take reasonable measures to ensure that court personnel, litigants, and their lawyers cooperate with the judge to that end.
The admonition against public comment about the merits of a pending or impending matter continues until the appellate process is complete.
If the public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality, which would violate Canon 2A.
A judge may comment publicly on proceedings in which the judge is a litigant in a personal capacity, but not on mandamus proceedings when the judge is a litigant in an official capacity (but the judge may respond in accordance with Fed. R. App. P. 21(b)).https://www.law.cornell.edu/rules/frap/rule_21 (Rule 21 (b))
A judge’s appointees include assigned counsel, officials such as referees, commissioners, special masters, receivers, guardians, and personnel such as law clerks, secretaries, and judicial assistants. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by this subsection.
Appropriate action may include direct communication with the judge or lawyer, other direct action if available, reporting the conduct to the appropriate authorities, or, when the judge believes that a judge’s or lawyer’s conduct is caused by drugs, alcohol, or a medical condition, making a confidential referral to an assistance program.
Appropriate action may also include responding to a subpoena to testify or otherwise participating in judicial or lawyer disciplinary proceedings; a judge should be candid and honest with disciplinary authorities.
Recusal considerations applicable to a judge’s spouse should also be considered with respect to a person other than a spouse with whom the judge maintains both a household and an intimate relationship.
In a criminal proceeding, a victim entitled to restitution is not, within the meaning of this Canon, a party to the proceeding or the subject matter in controversy.
A judge who has a financial interest in the victim of a crime is not required by Canon 3C(1)(c) to disqualify from the criminal proceeding, but the judge must do so if the judge’s impartiality might reasonably be questioned under Canon 3C(1) or if the judge has an interest that could be substantially affected by the outcome of the proceeding under Canon 3C(1)(d)(iii).
The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge.
However, if “the judge’s impartiality might reasonably be questioned” under Canon 3C(1), or the relative is known by the judge to have an interest in the law firm that could be “substantially affected by the outcome of the proceeding” under Canon 3C(1)(d)(iii), the judge’s disqualification is required.
A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects.
However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.
(A) Law-related Activities.
(1) Speaking, Writing, and Teaching.
A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice
A judge may consult with or appear at a public hearing before an executive or legislative body or official:
(a) on matters concerning the law, the legal system, or the administration of justice;
(b) to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area; or
(c) when the judge is acting pro se in a matter involving the judge or the judge’s interest.
A judge may participate in and serve as a member, officer, director, trustee, or nonlegal advisor of a nonprofit organization devoted to the law, the legal system, or the administration of justice and may assist such an organization in the management and investment of funds.
A judge may make recommendations to public and private fund-granting agencies about projects and programs concerning the law, the legal system, and the administration of justice.
(4) Arbitration and Mediation.
A judge should not act as an arbitrator or mediator or otherwise perform judicial functions apart from the judge’s official duties unless expressly authorized by law.
(5) Practice of Law.
A judge should not practice law and should not serve as a family member’s lawyer in any forum.
A judge may, however, act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family.
(B) Civic and Charitable Activities. A judge may participate in and serve as an officer, director, trustee, or nonlegal advisor of a nonprofit civic, charitable, educational, religious, or social organization, subject to the following limitations:
(1) A judge should not serve if it is likely that the organization will either be engaged in proceedings that would ordinarily come before the judge or be regularly engaged in adversary proceedings in any court.
(2) A judge should not give investment advice to such an organization but may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.
(C) Fund Raising. A judge may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fund-raising activities and may be listed as an officer, director, or trustee. A judge may solicit funds for such an organization from judges over whom the judge does not exercise supervisory or appellate authority and from members of the judge’s family. Otherwise, a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose. A judge should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-raising mechanism.
(D) Financial Activities.
(1) A judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should refrain from financial and business dealings that exploit the judicial position or involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves.
(2) A judge may serve as an officer, director, active partner, manager, advisor, or employee of a business only if the business is closely held and controlled by members of the judge’s family. For this purpose, “members of the judge’s family” means persons related to the judge or the judge’s spouse within the third degree of relationship as defined in Canon 3C(3)(a), any other relative with whom the judge or the judge’s spouse maintains a close familial relationship, and the spouse of any of the foregoing.
(3) As soon as the judge can do so without serious financial detriment, the judge should divest investments and other financial interests that might require frequent disqualification.
(4) A judge should comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the Judicial Conference Gift Regulations.
A judge should endeavor to prevent any member of the judge’s family residing in the household from soliciting or accepting a gift except to the extent that a judge would be permitted to do so by the Judicial Conference Gift Regulations.
A “member of the judge’s family” means any relative of a judge by blood, adoption, or marriage, or any person treated by a judge as a member of the judge’s family.
(5) A judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s official duties.
(E) Fiduciary Activities.
A judge may serve as the executor, administrator, trustee, guardian, or other fiduciary only for the estate, trust, or person of a member of the judge’s family as defined in Canon 4D(4).
As a family fiduciary a judge is subject to the following restrictions:
(1) The judge should not serve if it is likely that as a fiduciary the judge would be engaged in proceedings that would ordinarily come before the judge or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.
(2) While acting as a fiduciary, a judge is subject to the same restrictions on financial activities that apply to the judge in a personal capacity.
(F) Governmental Appointments.
A judge may accept appointment to a governmental committee, commission, or other position only if it is one that concerns the law, the legal system, or the administration of justice, or if appointment of a judge is required by federal statute.
A judge should not, in any event, accept such an appointment if the judge’s governmental duties would tend to undermine the public confidence in the integrity, impartiality, or independence of the judiciary. A judge may represent the judge’s country, state, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities.
(G) Chambers, Resources, and Staff.
A judge should not to any substantial degree use judicial chambers, resources, or staff to engage in extrajudicial activities permitted by this Canon.
(H) Compensation, Reimbursement, and Financial Reporting.
A judge may accept compensation and reimbursement of expenses for the law-related and extrajudicial activities permitted by this Code if the source of the payments does not give the appearance of influencing the judge in the judge’s judicial duties or otherwise give the appearance of impropriety, subject to the following restrictions:
(1) Compensation should not exceed a reasonable amount nor should it exceed what a person who is not a judge would receive for the same activity.
(2) Expense reimbursement should be limited to the actual costs of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge’s spouse or relative. Any additional payment is compensation.
(3) A judge should make required financial disclosures, including disclosures of gifts and other things of value, in compliance with applicable statutes and Judicial Conference regulations and directives.
Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.
To the extent that the judge’s time permits and impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the law. Subject to the same limitations, judges may also engage in a wide range of non-law-related activities.
Within the boundaries of applicable law (see, e.g., 18 U.S.C. § 953) a judge may express opposition to the persecution of lawyers and judges anywhere in the world if the judge has ascertained, after reasonable inquiry, that the persecution is occasioned by conflict between the professional responsibilities of the persecuted judge or lawyer and the policies or practices of the relevant government.
A person other than a spouse with whom the judge maintains both a household and an intimate relationship should be considered a member of the judge’s family for purposes of legal assistance under Canon 4A(5), fund raising under Canon 4C, and family business activities under Canon 4D(2).
Teaching and serving on the board of a law school are permissible, but in the case of a for-profit law school, board service is limited to a non-governing advisory board.
Consistent with this Canon, a judge may encourage lawyers to provide pro bono legal services.
This Canon generally prohibits a judge from mediating a state court matter, except in unusual circumstances (e.g., when a judge is mediating a federal matter that cannot be resolved effectively without addressing the related state court matter).
A judge may act pro se in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with governmental bodies.
In so doing, a judge must not abuse the prestige of office to advance the interests of the judge or the judge’s family.
The changing nature of some organizations and their exposure to litigation make it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if the judge’s continued association is appropriate.
For example, in many jurisdictions, charitable hospitals are in court more often now than in the past.
A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event. Use of a judge’s name, position in the organization, and judicial designation on an organization’s letterhead, including when used for fund raising or soliciting members, does not violate Canon 4C if comparable information and designations are listed for others.
Canon 4D(1), (2), and (3).
Canon 3 requires disqualification of a judge in any proceeding in which the judge has a financial interest, however small. Canon 4D requires a judge to refrain from engaging in business and from financial activities that might interfere with the impartial performance of the judge’s judicial duties. Canon 4H requires a judge to report compensation received for activities outside the judicial office.
A judge has the rights of an ordinary citizen with respect to financial affairs, except for limitations required to safeguard the proper performance of the judge’s duties. A judge’s participation in a closely held family business, while generally permissible, may be prohibited if it takes too much time or involves misuse of judicial prestige or if the business is likely to come before the court on which the judge serves. Owning and receiving income from investments do not as such affect the performance of a judge’s duties.
The restriction on using nonpublic information is not intended to affect a judge’s ability to act on information as necessary to protect the health or safety of the judge or a member of a judge’s family, court personnel, or other judicial officers if consistent with other provisions of this Code.
Mere residence in the judge’s household does not by itself make a person a member of the judge’s family for purposes of this Canon.
The person must be treated by the judge as a member of the judge’s family.
The Applicable Date of Compliance provision of this Code addresses continued service as a fiduciary.
A judge’s obligation under this Code and the judge’s obligation as a fiduciary may come into conflict.
For example, a judge should resign as a trustee if it would result in detriment to the trust to divest holdings whose retention would require frequent disqualification of the judge in violation of Canon 4D(3).
The appropriateness of accepting extrajudicial assignments must be assessed in light of the demands on judicial resources and the need to protect the courts from involvement in matters that may prove to be controversial.
Judges should not accept governmental appointments that could interfere with the effectiveness and independence of the judiciary, interfere with the performance of the judge’s judicial responsibilities, or tend to undermine public confidence in the judiciary.
A judge is not required by this Code to disclose income, debts, or investments, except as provided in this Canon. The Ethics Reform Act of 1989 and implementing regulations promulgated by the Judicial Conference impose additional restrictions on judges’ receipt of compensation.
That Act and those regulations should be consulted before a judge enters into any arrangement involving the receipt of compensation.
The restrictions so imposed include but are not limited to:
(1) a prohibition against receiving “honoraria” (defined as anything of value received for a speech, appearance, or article),
(2) a prohibition against receiving compensation for service as a director, trustee, or officer of a profit or nonprofit organization, (3) a requirement that compensated teaching activities receive prior approval, and (4) a limitation on the receipt of “outside earned income.”
(A) General Prohibitions. A judge should not:
(1) act as a leader or hold any office in a political organization;
(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or
(3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.
(B) Resignation upon Candidacy. A judge should resign the judicial office if the judge becomes a candidate in a primary or general election for any office.
(C) Other Political Activity. A judge should not engage in any other political activity. This provision does not prevent a judge from engaging in activities described in Canon 4.
The term “political organization” refers to a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.
Anyone who is an officer of the federal judicial system authorized to perform judicial functions is a judge for the purpose of this Code.
All judges should comply with this Code except as provided below.
(A) Part-time Judge
A part-time judge is a judge who serves part-time, whether continuously or periodically, but is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge.
A part-time judge:
(1) is not required to comply with Canons 4A(4), 4A(5), 4D(2), 4E, 4F, or 4H(3);
(2) except as provided in the Conflict-of-Interest Rules for Part-time Magistrate Judges, should not practice law in the court on which the judge serves or in any court subject to that court’s appellate jurisdiction, or act as a lawyer in a proceeding in which the judge has served as a judge or in any related proceeding.
(B) Judge Pro Tempore
A judge pro tempore is a person who is appointed to act temporarily as a judge or as a special master.
(1) While acting in this capacity, a judge pro tempore is not required to comply with Canons 4A(4), 4A(5), 4D(2), 4D(3), 4E, 4F, or 4H(3); further, one who acts solely as a special master is not required to comply with Canons 4A(3), 4B, 4C, 4D(4), or 5.
(2) A person who has been a judge pro tempore should not act as a lawyer in a proceeding in which the judge has served as a judge or in any related proceeding.
(C) Retired Judge
A judge who is retired under 28 U.S.C. § 371(b) or § 372(a) (applicable to Article III judges), or who is subject to recall under § 178(d) (applicable to judges on the Court of Federal Claims), or who is recalled to judicial service, should comply with all the provisions of this Code except Canon 4F, but the judge should refrain from judicial service during the period of extrajudicial appointment not sanctioned by Canon 4F.
All other retired judges who are eligible for recall to judicial service (except those in U.S. territories and possessions) should comply with the provisions of this Code governing part-time judges.
However, bankruptcy judges and magistrate judges who are eligible for recall but who have notified the Administrative Office of the United States Courts that they will not consent to recall are not obligated to comply with the provisions of this Code governing part-time judges.
Such notification may be made at any time after retirement, and is irrevocable. A senior judge in the territories and possessions must comply with this Code as prescribed by 28 U.S.C. § 373(c)(5) and (d).
The 2014 amendment to the Compliance section, regarding retired bankruptcy judges and magistrate judges and exempting those judges from compliance with the Code as part-time judges if they notify the Administrative Office of the United States Courts that they will not consent to recall, was not intended to alter those judges’ statutory entitlements to annuities, cost-of-living adjustments, or any other retirement benefits.
Persons to whom this Code applies should arrange their financial and fiduciary affairs as soon as reasonably possible to comply with it and should do so in any event within one year after appointment.
If, however, the demands on the person’s time and the possibility of conflicts of interest are not substantial, such a person may continue to act, without compensation, as an executor, administrator, trustee, or other fiduciary for the estate or person of one who is not a member of the person’s family if terminating the relationship would unnecessarily jeopardize any substantial interest of the estate or person and if the judicial council of the circuit approves.
Last revised (Transmittal 02-016) March 20, 2014
Interviews with Dr. Bernofsky on…
Inns of Court
Conservative talk show host of The Justice Hour, Florida attorneyLisa Macci, spoke with Dr. Bernofsky about the Inns of Court, his case against Tulane University, and his experience with the civil justice system.
The program, which also featured her fellow attorney Elizabeth Case, was broadcast live over WPBR 1340 AM radio at 9:00 a.m., eastern standard time, on June 26, 2006. The audio clip presented here runs about 38 minutes and has no commercial breaks.
Lisa Macci may be contacted by email at: email@example.com.
Her Web site is at: http://www.lisamacci.com.
Judicial Conflict of Interest
Social activist and talk show host of Late Night with D’Anne, Illinois investigative reporter D’Anne Burley spoke with Dr. Bernofsky about judicial conflict of interest, his case against Tulane University, and his experience with the civil justice system. The program was broadcast live over the Internet by the Republic Broadcasting Network (http://www.rbnlive.com) at 10:00 p.m., central standard time, on July 29, 2006. The audio clip presented here runs about 41 minutes and has no commercial breaks.
D’Anne Burley may be contacted at: (630) 477-0860 or (630) 441-0548.
No Justice Here
Special Rules for Special Cases,
for Example, in Rule 26A.015
Disqualification of justice or judge of the Court of Justice, or master commissioner.
(1) For the purposes of this section the following words or phrases shall have the meaning indicated: (a) “Proceeding” includes pretrial, trial, appellate review, or other stages of litigation; (b) “Fiduciary” includes such relationships as executor, administrator, conservator, trustee, and guardian; (c) “Financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
1. Ownership in a mutual or common investment fund that holds securities, or a proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, or ownership of government securities is a “financial interest” only if the outcome of the proceeding could substantially affect the value of the interest;
2. An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization.
(2) Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding:
(a) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding;
(b) Where in private practice or government service he served as a lawyer or rendered a legal opinion in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter in controversy, or the judge, master commissioner or such lawyer has been a material witness concerning the matter in controversy;
(c) Where he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a pecuniary or proprietary interest in the subject matter in controversy or in a party to the proceeding;
(d) Where he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
1. Is a party to the proceeding, or an officer, director, or trustee of a party;
2. Is acting as a lawyer in the proceeding and the disqualification is not waived by stipulation of counsel in the proceeding filed therein;
3. Is known by the judge or master commissioner to have an interest that could be substantially affected by the outcome of the proceeding;
4. Is to the knowledge of the judge or master commissioner likely to be a material witness in the proceeding.
(e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.
(3) (a) Any justice or judge of the Court of Justice disqualified under the provisions of this section shall be replaced by the Chief Justice.
(b) Any master commissioner disqualified under the provisions of this section or unable to discharge the duties of his office for any other reason shall be replaced by a special commissioner who shall be appointed by the judge of the court before whom the action is pending.
The special commissioner shall meet the same qualifications as a master commissioner and shall take an oath and execute a bond as the regular commissioner is required to do.
Effective: July 1, 1982 History: Amended 1982 Ky. Acts ch. 141, sec. 41, effective July 1, 1982. — Created 1976 (1st Extra. Sess.) Ky. Acts ch. 22, sec. 4. Note: 1980 Ky. Acts ch. 396, sec. 44 would have amended this section effective July 1, 1982. However, 1980 Ky. Acts ch. 396 was repealed by 1982 Ky. Acts ch. 141, sec. 146, also effective July 1, 1982.
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