Avoiding the Appearance of Impropriety: With Great Power Comes Great Responsibility
Gray, Cynthia, Judicature
Judges must demonstrate their commitment to maintaining public confidence in the integrity and impartiality of their decisions by considering how the public might reasonably view their conduct.
If a judge tells a police officer who stopped him for a traffic offense that his arrest is unnecessary because "we need each other," the judge clearly violates the proscription on using the prestige of judicial office to advance the judge's private interests.1 But is it a violation if a judge simply shows the officer a judicial identification card instead of a driver's license without expressly asking for or demanding favorable treatment?2 A judge's call advising an assistant prosecutor to be more emotional in front of the jury in a sexual assault trial is an obvious, prohibited ex parte communication.3 But if a judge meets privately with some attorneys in chambers just before they are to appear in his court, is it reasonable to assume ex parte communications took place?4
To hold judges to the highest standards of ethical conduct, a code of judicial conduct must cover not just the clear and obvious improprieties but indirect, disguised, or careless conduct that looks like an impropriety to an observer who is neither overly suspicious nor unusually gullible. Thus, Canon 2 of the American Bar Association Model Code of Judicial Conduct provides that "a judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities," defining an "appearance of impropriety" as conduct that "would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired."
Some critics have argued that the appearance of impropriety standard is at best merely aspirational and at worst unconstitutionally vague and in either case out of place in a code used as the basis for disciplinary sanctions of judges. The ABA has been asked to eliminate the standard from the model code in its current revision process.5 In an initial draft , the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct appeared to waiver in its commitment to the standard, but was persuaded by "a majority of commentators on the subject, citing to judicial discipline cases decided over a three-decade period, [who] urged that the concept be retained" in its preliminary report.6
Canon 2 is a vital component of the code of judicial conduct both as a rule that can be the basis for sanctions and as a hortatory, aspirational standard.
Appearance of impropriety as a disciplinary standard
Although in most judicial discipline cases, a judge is charged with violating a specific canon, such as the prohibition on ex parte communications, there are cases based on findings of an appearance of a violation. Subtle but still manifest attempts to gain an improper advantage from the judicial office represent the largest number of cases finding an appearance of impropriety. These cases reflect the reasonable person's understanding that much of human communication is unspoken, between-the-lines with winks and nods, and depends on what goes without saying. Gratuitous references to the judicial office, for example, have been held to impliedly but obviously and inappropriately invoke the prestige of the office even absent an express request for favorable treatment.
For example, in In the Matter of Collester,7 the New Jersey Supreme Court considered a judge who, stopped on suspicion of driving while intoxicated, told the trooper that he was a superior court judge when asked for his driving credentials and repeated the statement during the field sobriety tests. The court found that the judge's '"references to his judicial status gave the impression that he was entitled to some special preference.' He thus clearly used the prestige and weight of his judicial office to try to gain some personal advantage."8 The judge was arrested anyway, indicating that proof that the judge's attempt actually resulted in inappropriate influence is not necessary to prove an appearance of influence. …