A Program for Judges and Court Administrators Involved in Legislative Processes
Ethical Considerations
Although now superseded by the 1990 Code of Judicial Conduct, the American Bar Association's 1972 Code of Judicial Conduct contained a very clear and useful statement regarding judges and legislatures, and it distinguished between public appearances at a hearing and private lobbying.
Canon 4 expressly authorized judges to "appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice." Canon 4 continued by providing that a judge "may otherwise consult with an executive or legislative body or official, but only on matters concerning the administration of justice." Note that for private meetings, Canon 4 limited the range of subject topics to "matters concerning the administration of justice." In effect, this prohibited private lobbying by judges regarding legal matters that did not touch upon the administration of justice.
The commentary to Canon 4 gives the traditional explanation for why judges should be permitted to work with executive and legislative branch officials: "As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice." This commentary broadly endorses judicial involvement in legislative policy-making, including involvement in matters of substantive law.
Although the commentary broadly endorses judicial involvement in legislative processes, the distinction drawn in Canon 4 between public appearances at hearings and private lobbying should be borne in mind. On matters of judicial administration, matters directly affecting the administration and operation of the courts, judges and court managers can consult privately with legislators and legislative staff. On any other matters, judicial involvement should be limited to testimony at public hearings (and, as noted in Chapter 3, great caution should be exercised when venturing out of the administration of justice and into more controversial topics such as changes to the substantive law).
The 1990 revision by the ABA of its Code of Judicial Conduct removed the language expressly authorizing judicial involvement with the legislative and executive branches, and, in effect, collapsed several separate and specific provisions into one general provision. According to the revised Canon 4B, "a judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice, and non-legal subjects, subject to the requirements of this code." Appearing before a legislative committee or talking to a legislator would apparently be covered by this language.
The only apparently relevant limitation is the general provision that "a judge shall conduct all of the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties." Of these three, the first is the most important limitation when appearing before a legislative committee. Judges need to avoid making statements about a bill that would cast doubt upon their impartiality. For example, a judge should generally not render an opinion about the constitutionality of a bill since offering that opinion publicly would probably cast doubt on a judge's impartiality if the issue of the bill's constitutionality ever arose before that judge.
If you have been taking the topics in order, you should now click on the "Practical Pointers" button in the left-hand column.