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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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