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August
8, 2000
Honorable
Donald Goodner
Municipal Judge
315 Washington Street
P.O. Box 567
Waldron, AR 72958
Re: Advisory
Opinion No. 2000-08
Dear Judge
Goodner:
In your
letter dated June 30, 2000 you stated that the office of Attorney
General is preparing to file suit against Scott County because
the jail fails to meet the jail standards. You have stated,
"I know the suit is well based and I have no doubt but
what it will be closed." You state further, "Since
I know that our jail is very likely illegal I feel that I may
be violating Canon 2 by continuing to use the jail."
Canon 2
of the Code of Judicial Conduct which you cited is generally
applicable, but we believe that the following applies more directly
to your situation:
"2)
A judge shall be faithful to the law and maintain professional
competence in it. A judge shall not be swayed by partisan interests,
public clamor or fear of criticism." Code of Judicial Conduct,
Canon 3A (2)
The issue
is whether you would violate this Canon if you continue to sentence
and hold persons in a jail that you believe does not meet established
minimum standards. In addressing the issue of whether you would
be in violation of the Arkansas Code of Judicial Conduct by
sentencing a person to a jail that you consider "is very
likely illegal" we are required to distinguish between
a violation of the Code and legal error. The following quotation
from Judicial Conduct and Ethics, Second Edition we find most
helpful:
"2.02 Distinguishing Misconduct from Mere Legal Error When
a judge commits a
legal error, it usually is a matter for appeal and does not
raise a question of improper judicial conduct subject to judicial
discipline. In some instances, however, legal error may amount
to judicial misconduct calling for discipline ranging from admonishment
to removal from office. Imposing discipline upon a judge for
an incorrect legal ruling is an extremely sensitive issue because
of the potential impact on judicial independence. The preservation
of an independent judiciary requires that judges not be exposed
to personal discipline on the basis of case outcomes or particular
rulings, other than in extreme or compelling circumstances.
An independent judge is one who is able to rule as he or she
determines appropriate, without fear or jeopardy or sanction.
So long as the rulings are made in good faith, and in an effort
to follow the law as the judge understands it, the usual safeguard
against error or overreaching lies in the adversary system and
appellate review. As the courts have often said, the disciplinary
process should not be used as a substitute for appeal. Due to
the possible threat to judicial independence, it has been suggested
that legal error should be dealt with only in the appellate
process and never should be considered judicial misconduct.
While the courts have often said that mere legal error does
not amount to judicial misconduct, that does not mean that legal
error can never constitute misconduct. In fact, egregious legal
error, legal error motivated by bad faith, or a continuing pattern
of legal error does amount to misconduct subject to discipline."
Judicial
Conduct and Ethics, Second Edition, Shaman, Lubet and Alfini,
The Michie Company (1990)
You will
have to answer the question as to whether you consider your
sentencing and retaining people to this jail would be egregious
legal error, legal error motivated by bad faith or a continuing
pattern of legal error. We cannot make such a determination
for you.
The Code
does not require that a judge have universal knowledge of all
things that affect the sentencing process. It does not require
that you be intimately familiar with everything happening at
the local police office, sheriff's office, the probation office,
the jail and the like. However if you in your carefully considered
judgment, without being influenced by partisan interests, public
clamor or fear of criticism, determine that the conditions of
the jail are so unsatisfactory as to be illegal or unconscionable
you may use alternative methods of sentencing so long as those
alternative methods comply with law.
You mentioned
that "the Quorum Court has yet to take any type of action"
and it seems clear that politics will eventually come into play.
You must be very careful in this area but you may wish to review
our Advisory Opinion 94-01 wherein we concluded that the code
does not prohibit a judge from being a member of a committee
formed to promote passage of a sales tax to pay for a new courthouse
and jail so long as the judge is not involved in the fund raising
activities of the committee.
Sincerely,
Edwin Alderson
For the Committee
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