Judge Jones' statement about election results violated ethics code
I have long pointed out that Judge Jones' statement to a newspaper that the school board election results would not affect his decision was improper legal advice to the school board because the statement implied that repeal of the ID policy prior to judgment would not do the school board any good in avoiding an attorney fee award to the plaintiffs. Judge Jones knew exactly what he was implying -- the new board had a majority of new members opposed to the ID policy who might try to avoid an attorney fee award by repealing the ID policy prior to judgment. I have now discovered -- not surprisingly -- that the statement violated specific provisions of the Canon 3(b) of the American Bar Association's Model Code of Judicial Conduct:
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Even if Judge Jones could speak for himself on the issue, he could not speak for other judges in higher courts who might review the case. And he could not even speak for himself because the defendants did not have an opportunity to present him with arguments that repeal of the ID policy could be grounds for dismissing the case and denying an attorney fee award.
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Canon 3(b)
(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing . . . .
(10) A judge shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.
Commentary:
Sections 3B(9) and (10) restrictions on judicial speech are essential to the maintenance of the integrity, impartiality, and independence of the judiciary. A pending proceeding is one that has begun but not yet reached final disposition. An impending proceeding is one that is anticipated but not yet begun. The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition.
Even if Judge Jones could speak for himself on the issue, he could not speak for other judges in higher courts who might review the case. And he could not even speak for himself because the defendants did not have an opportunity to present him with arguments that repeal of the ID policy could be grounds for dismissing the case and denying an attorney fee award.
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posted by Larry Fafarman | 7/13/2008 12:06:00 AM
13 Comments:
Darling, darling, darling.
That was some creative editing.
Here's the full text of that part of the code with emphasis added (by me) to the important parts that Larry conveniently left out:
(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require* similar abstention on the part of court personnel* subject to the judge’s direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.
(10) A judge shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial* performance of the adjudicative duties of the office.
Telling the public how a judge would make such a decision clearly falls under the emphasized part above.
Larry, you never fail to amuse me with your creative interpretation of the word "read."
>>>>>> "This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. " <<<<<<
You stupid dunghill, the court rules do not say anything specific about "procedures" for handling voluntary cessation by the defendant. Furthermore, several court cases, e.g., Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), were dismissed because of voluntary cessation by the government. An excellent article by Michael Francisco gives several examples of such cases. And in Buckhannon, the plaintiffs were denied an award of attorney fees.
Rule 12 of the Federal Rules of Civil Procedure actually authorizes dismissal of court cases on the basis of "voluntary cessation." Rule 12(b)(6) says that a case may be dismissed when the complaint fails "to state a claim upon which relief can be granted," and Rule 12(h)(2) says that the Rule 12(b)(6) defense may be raised during the trial (I presume that the trial period extends until a judgment is issued), and thus a lawsuit may be dismissed on the basis of Rule 12(b)(6) even if a claim upon which relief can be granted existed when the lawsuit was filed.
"I have long pointed out that"
Just because you've thought something for a long period of time doesn't make it right
"the new board had a majority of new members opposed to the ID policy who might try to avoid an attorney fee award by repealing the ID policy prior to judgment"
There's no evidence that they had any interest in doing so. In fact, they showed none.
"that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing"
The statement was made after the trail phase had concluded. There was no intent to "interfere with a fair trial or hearing" because the hearing had already taken place
"with respect to cases, controversies or issues that are likely to come before the court,"
The issue had already come before the court. This rule is irrelevant.
Furthermore, as Erin notes, these rules "do[] not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court"
This is precisely what his statement is -- a comment on the procedures of the court. In no way were the members of the school board -- outgoing or newly elected -- dissuaded from trying any unlikely end-around of the judicial process. They were not interested in doing so.
>>>>>> Just because you've thought something for a long period of time doesn't make it right <<<<<<
You stupid dunghill, I was just pointing out the fact that I have been pointing something out for a long time -- that has nothing to do with whether it is right or wrong.
>>>>>> There's no evidence that they had any interest in doing so. <<<<<<<
Irrelevant. Even if they showed no interest in doing so, that does not mean that they could not have been persuaded to do so.
>>>>>> The statement was made after the trail phase had concluded. There was no intent to "interfere with a fair trial or hearing" because the hearing had already taken place <<<<<<
My original post includes the following quotation from the code:
The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition.(emphasis added)
The Canon 3(b)(9) and 3(b)(10) requirements do not end with the end of the courtroom-testimony phase of a court case.
>>>>>>The issue had already come before the court. This rule is irrelevant. <<<<<<<
The issue of whether voluntary cessation here should result in mootness and/or a denial of an attorney fee award had not come before Judge Jones or judges in higher courts.
I should not even be answering Anonymous's comment, because I don't want this blog to have readers who are too dumb to see without help the obvious flaws in his arguments. I should simply say to readers, "If you are too dumb to see the flaws in Anonymous's arguments on your own, then I beg you to read some other blog" (like the Glenlivet whiskey ad where the distillery spokesman, deploring the practice of drinking Scotch whiskey on the rocks, said, "if you won't drink Glenlivet in the proper way, then I beg you to drink some other Scotch").
Erin wrote: "these rules "do[] not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court"
I added "This is precisely what his statement is -- a comment on the procedures of the court. In no way were the members of the school board -- outgoing or newly elected -- dissuaded from trying any unlikely end-around of the judicial process. They were not interested in doing so."
Larry's response:
(evidently because he has none).
Also, I saw the newspaper article in which Jones was "quoted" as saying that the election results would not affect his decision. He was paraphrased. Not sure what the question was.
Furthermore, the link that Larry provides of Michael Francisco is an article that does not suggest that the claims in question (the same claims that Larry is making for the zillionth time here) would work -- he says that might possibly have. Ed Brayton notes a change in Francisco's arguments from "would have" to "could have," recognition that his arguments were unlikely. Ed Brayton notes that not one legal scholar has backed any of these claims in similar cases. Not one. Larry is not a legal scholar, nor is Michael Francisco.
Larry, you've resorted to name calling pretty early in this "debate"
Feeling threatened?
Anyway,
"You stupid dunghill, I was just pointing out the fact that I have been pointing something out for a long time -- that has nothing to do with whether it is right or wrong."
But that's exactly why you said it. You've been saying it for a long time, so why don't we know it's true already?
"I should simply say to readers, 'If you are too dumb to see the flaws in Anonymous's arguments on your own, then I beg you to read some other blog'"
Then why don't you?
Indeed. I heartily agree. Everyone should read another blog, as this one is so full of the dunghills that Larry so erroneously attributes to others.
"I have long pointed out that"
Just because you've thought something for a long period of time doesn't make it right
I think it's called "marination".
Anonymous said,
>>>>>>I added "This is precisely what his statement is -- a comment on the procedures of the court. In no way were the members of the school board -- outgoing or newly elected -- dissuaded from trying any unlikely end-around of the judicial process. They were not interested in doing so."
Larry's response:
(evidently because he has none). <<<<<<
I did respond -- I said, "Even if they showed no interest in doing so (i.e., repealing the ID policy prior to judgment), that does not mean that they could not have been persuaded to do so."
>>>>>> Also, I saw the newspaper article in which Jones was "quoted" as saying that the election results would not affect his decision. He was paraphrased. <<<<<<
The newspaper's paraphrase was accurate about what he said, unlike the trolls' paraphrase that said that he told the newspaper that he "was going to follow the law." There is no way that the newspaper could have interpreted a statement that he was going to follow the law as a statement that the election results would not affect his decision, so he must have told the newspaper that the election results would not affect his decision. DUH. Under the Social Darwinism that you trolls love so much, you trolls would be the first to be euthanized for the purpose of improving the overall intelligence of the human race.
>>>>>> Furthermore, the link that Larry provides of Michael Francisco is an article that does not suggest that the claims in question (the same claims that Larry is making for the zillionth time here) would work -- he says that might possibly have. <<<<<<
Yes, it might possibly have worked -- which is why it was worth trying because it might have saved the school district $1 million in attorney fees.
>>>>>>Ed Brayton notes a change in Francisco's arguments from "would have" to "could have," recognition that his arguments were unlikely. <<<<<<<
"Could have" also can mean certainty. "Might have" definitely expresses uncertainty.
Erin driveled,
>>>>>>Larry, you've resorted to name calling pretty early in this "debate" <<<<<<<
You started the insults, dunghill, with "Darling, darling, darling. That was some creative editing" and "Larry, you never fail to amuse me with your creative interpretation of the word 'read.'"
The trolls' strategy is to try to keep me tied up answering their stupid comments so that I have less time to write new articles. Pretty soon I am going to stop answering their stupid comments altogether.
"I'm always kicking their butts -- that's why they don't like me."
-- Gov. Arnold Schwarzenegger
"The trolls' strategy is to try to keep me tied up answering their stupid comments so that I have less time to write new articles. Pretty soon I am going to stop answering their stupid comments altogether."
Geez, paranoid much?
Larry, the reason you've got no time to write any articles is because you apparently spend it all arguing about Dover on dozens of different websites. That's not an exaggeration, either; I googled your name and got to about 3 dozen sites before I got bored and stopped counting. That was a mere 4 pages into 3,470 results!
The fact that you have no time is your own fault. It's silly to blame "trolls" (by which you apparently mean "people who disagree with you.)
> I was just pointing out the fact that I have been pointing something out for a long time -- that has nothing to do with whether it is right or wrong. <
Progress. You are finally facing the fact that you might be (in fact are) wrong.
> I should not even be answering Anonymous's comment, because I don't want this blog to have readers who are too dumb to see without help the obvious flaws in his arguments. <
The problem seems to be that you are too dumb to see the obvious wisdom of his arguments.
I finally discovered the correct word for the legal advice that Judge Jones gave the school board -- "hint"! He gave them a "hint"! By saying that the election results would not affect his decision, he "hinted" that repeal of the ID policy would not affect his decision. So this means that the trolls here can't take a hint -- which shows how really dense they are. How could anyone be so stupid?
How about "clue" -- Judge Jones gave the school board a "clue." So the trolls here are clueless!
"I'm always kicking their butts -- that's why they don't like me."
-- Gov. Arnold Schwarzenegger
Well, Larry, all I can say is that, if that's the strength of your argument, that really speaks for itself.
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