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March 24, 1993


Honorable Floyd Lofton
Circuit Judge
31 Sandtrap Drive
Maumelle, AR 72113

 

RE: Judicial Ethics Advisory Committee # 93-01

Service on GAIN Committee

Dear Sir,

This is written in reply to your written request dated February 23, 1993 in which you ask for our opinion as to whether you may be in violation of the Code of Judicial Conduct, in particular Canon 5B, if you serve on a committee created and operated by the Division of Mental Health Services (State Hospital) of the Arkansas Department of Human Services under the acronym GAIN Forensic Program.

You state that this committee is an advisory group to a program of the State Hospital designed especially for persons who have been excused from criminal conduct by our circuit courts by reason of mental incapacity, and under treatment by the State Hospital. You advise that the thrust of this effort is an intensive care program for those persons.

Since the entry of the decree in the discrimination case of Hunt vs. State of Arkansas by Judge Henry Wood, and the resulting elections last year, you have been displaced as an active, sitting judge. However, you will remain as an "active" Circuit Judge for the remainder of your last elected term, a little less than two years from now. In your present inactive status you are subject to various judicial assignment by the Chief Justice of this State because of special circumstances requiring it, and in such event you advise that it is possible (we are compelled to observe, but highly improbable because of the several ways to avoid it, among other reasons) that persons involved in this program could appear before you for judicial action; in which even judicial impartiality and fairness could be in jeopardy.

Canon 5B of the Code reads as follows:

CANON 5 - A JUDGE SHOULD REGULATE HIS EXTRA-JUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH HIS JUDICIAL DUTIES

B. CIVIC AND CHARITABLE ACTIVITIES

A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court...

We add to this the wording of Canon 5G because of its clarification and limitation upon

Canon 5B:

G. EXTRA-JUDICIAL APPOINTMENTS

A judge should not accept appointments to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his country, state, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities.

The treatise on Judicial Conduct and Ethics, by Shaman, Lubet and Alfini, 1990, in its Section 9.04 at page 257 discusses this problem and we find no better way to respond to you than to quote from it:

"9.04. The term "civic activities" is a broad one which is used here to encompass involvement with legislative and other governmental bodies, service on public commissions, bodies, service, and similar donations of time and effort. Canon 5B allows judges to participate in civic activities...In the early days of the Republic it was common for ...(judges) to hold other appointive positions in government (e.g., John Jay, C. J. and secretary for foreign affairs; C. J. John Marshall, secretary of state: C. J. Earl Warren, Kennedy assassination committee; Judge Jackson the Nuremburg War Crimes prosecutor). Although...these assignments were undertaken to advance the public good, they were not uncontroversial...Even in those cases where there is a broad public consensus in support of the judge's extra-judicial duties...(Some) refer to this absence as an embarrassment. The question of judicial service on governmental commissions presents a policy conflict which is not simple to resolve...(N)on judicial service tends to erode the appearance of impartiality which is essential to judging itself. The drafters of the Code...were urged to avoid confronting this issue, thereby presumably leaving each judge to his or her own ad hoc decisions on a case-by-case basis. Such a solution ultimately would be unsatisfactory given the reluctance which most responsible judges would feel -- notwithstanding the Code general admonition to avoid activities which conflict with judicial duties -- at turning down an important request...In effect, the absence of a bar against accepting appointments would have to be taken as endorsement, if not pressure, to accept. The Code...deals squarely with this problem in Canon 5G...Judges are now prohibited from service on investigating or policy-making commissions, with the exception that they may participate on bodies concerned with improvement of the law or legal system..."

It may be argued that a "government committee" is only one created by official act of the Executive or Legislative branches of government (you do not advise of the genesis or authority for this Committee), and we assume it is the brainchild of the State Hospital without other specific authorization, but we prefer to adopt the philosophy that a government committee is any body created by any department of state, county, or local government, whether authorized by the special notice of the Legislative or Executive branches.

It follows that it is our opinion that your service on this Committee would be in violation of this ethical code.

Sincerely,

 

 

James A. Badami

For the Committee

 

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