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Thursday, February 08, 2007

ABA panel urges weakening code of judicial conduct

A New York Times article reports,

A commission of the American Bar Association has recommended that the group weaken its code of judicial conduct by changing, from a mandatory rule to nonbinding advice, an instruction to judges to “avoid impropriety and the appearance of impropriety.”

Supporters of the change say disciplining judges for violating a concept as vague as “the appearance of impropriety” is unfair. Opponents denounce any retreat from the longstanding and widely embraced standard, and one critic — Robert H. Tembeckjian, the administrator of the New York State Commission on Judicial Conduct — has resigned in protest as an adviser to the A.B.A. commission.

“At a time when the A.B.A. is defending judicial independence from relentless attack,” Mr. Tembeckjian wrote in a resignation letter on Saturday, “I cannot imagine that either the judiciary or the public will applaud the A.B.A. for relegating the ‘impropriety and appearance of impropriety’ standard to a virtually meaningless phrase.”

. . . Victoria Henley, the president of the Association of Judicial Disciplinary Counsel, whose members hear and consider complaints against judges, said the recent revisions were unlikely to gain wide acceptance. “If they basically gut the ‘appearance of impropriety’ standard,” Ms. Henley said, “it’s unlikely that the A.B.A. will continue to be responsible for drafting a model code that will be used by any state.”

It is not clear from the article whether the recommendation of a change from a "mandatory rule to nonbinding advice" applies just to an "appearance of impropriety" or also to "impropriety" itself, but applying the change just to the former would be bad enough. As an experienced pro se litigant, I know that often there is no solid evidence of impropriety but only an appearance of impropriety. For example, once when I sued the county of Los Angeles, the county's sole defense was that I had not given advance notice of intent to sue, but I pointed out that the statute requiring such notice applied only to monetary suits, which my suit was not. The county even repeated this defense after I pointed out the inapplicability. The judge later ruled against me on the basis of a statute of limitations. So there was apparent collusion here between the county and the judge: the county would raise a frivolous defense and the judge would then rule against me on a completely different basis. If the county had not been confident that the judge would rule against me on the basis of the statute of limitations, the county would not have risked just making a frivolous defense. Of course I could not prove that there was actual collusion, but there was definitely an "appearance of impropriety." I could give other examples. Anyone who says that there are not a lot of judges who are crooks is either blind or a liar. Judicial accountability should accompany judicial independence.

My thanks to www.jail4judges.org for bringing this to my attention.

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