Alaska's Commission on Judicial Conduct was created by amendment to the state constitution in 1968. The Commission is composed of three state court judges, three attorneys who have practiced law in the state for at least ten years, and three members of the public. This group of nine individuals from differing backgrounds and geographical areas addresses problems of judicial conduct and disability. Complaints alleging judicial misconduct can be filed by any person.
- The Commission Members
- The Commission's Role and Function
- How the Commission Operates
- Commission Finances and Budget
- Formal Ethics Opinions
- Advisory Opinions
- Commission Rules of Procedure
- Alaska Code of Judicial Conduct
- Commission Complaint Form
- Calendar Year 2012 Activities
Recent Commission Actions
Submit any comments to the Commission at email@example.com
Judge Keith Levy
Alaska District Court
PO Box 114100
Juneau, Alaska 99811-4100
(Term expires February 1, 2015)
Judge Philip R. Volland
Anchorage Superior Court
825 W. 4th Avenue
Anchorage, Alaska 99501-2004
(Term expires February 1, 2015)
Judge Eric Smith
Alaska Superior Court
435 South Denali Street
Palmer, Alaska 99645-6437
(Term expires February 1, 2017)
Jan S. Ostrovsky
605 W. Fourth Ave. 138
Anchorage, Alaska 99501
(Term expires March 1, 2013)
Amy Gurton Mead
155 S. Seward St.
Juneau, AK 99801
(Term expires March 1, 2016)
714 Fourth Ave, Suite 200
Fairbanks, Alaska 99701
(Term expires March 1, 2016)
Amy L. Demboski
510 L Street, Suite 585
Anchorage, Alaska 99501
(Term expires March 1, 2015)
510 L Street, Suite 585
Anchorage, Alaska 99501
(Term expires March 1, 2016)
510 L Street, Suite 585
Anchorage, Alaska 99501
(Term expires March 1, 2017)
Judicial Officers Who Come Under the Commission's Authority
Alaska's Commission on Judicial Conduct oversees the conduct of justices of the Alaska Supreme Court, judges of the state court of appeals, state superior court judges, and state district court judges. The Commission cannot handle complaints against magistrates, masters, attorneys or federal judicial officers.
Complaints against state magistrates and masters are handled by the presiding superior court judge for their respective judicial district:
First Judicial District
Honorable Trevor Stephens
Alaska Superior Court
415 Main Street, Room 400
Ketchikan, Alaska 99901
Second Judicial District
Honorable Michael Jeffery
Alaska Superior Court
Barrow, Alaska 99723-0270
Third Judicial District
Honorable Sen Tan
Alaska Superior Court
825 West 4th Avenue
Anchorage, Alaska 99501
Fourth Judicial District
Honorable Michael A. MacDonald
Alaska Superior Court
101 Lacey Street
Fairbanks, Alaska 99701
Complaints against attorneys can be directed to:
Stephen J. Van Goor, Bar Counsel
Alaska Bar Association
Anchorage, Alaska 99510
Complaints against federal judges in Alaska are handled by:
Assistant Circuit Executive
P.O. Box 193939
San Francisco, California 94119
Telephone (415) 556-6100
Types of Complaints the Commission Can Address
Perhaps the broadest category of conduct complaints against judges falls under the term "misconduct." Judicial misconduct has very specific meaning under the Code of Judicial Conduct. The Code of Judicial Conduct generally governs the activities of judges both on and off the bench. It is a comprehensive statement of appropriate judicial behavior and has been adopted by the Alaska Supreme Court as part of the Rules of Court. Judicial misconduct can be divided into several categories.
(a) Improper Courtroom Behavior
Often complaints against judges allege improper behavior in the courtroom during a trial. Allegations of improper courtroom behavior may include: improper consideration and treatment of attorneys, witnesses, and others in the hearing; improper physical conduct; or persistent failure to dispose of business promptly and responsibly.
Examples of improper courtroom behavior include: racist or sexist comments by a judge, sleeping or drunkenness on the bench. Judges can also be disciplined for administrative failures such as taking an excessive amount of time to make a decision.
(b) Improper or Illegal Influence
Judges must be independent from all outside influences that may affect their abilities to be fair and impartial. Consequently, judges are restricted as to the types of activities in which they can participate. At a minimum, judges cannot allow family, social or political relationships to influence any judicial decision. Judges also should not hear a matter in which the judge has a personal interest in the outcome. Extreme examples of improper influence would include the giving or receiving of gifts, bribes, loans or favors. To help assure judicial independence, judges are required to file financial disclosure statements with the court and other financial statements with the Alaska Public Offices Commission.
(c) Impropriety Off the Bench
Judges are required to live an exemplary life off the bench, as well. Consequently, the Commission has the authority and responsibility to look at judges' activities outside of the courtroom. Complaints dealing with off the bench conduct might allege: misappropriation or misuse of public employees, property or funds; improper speech or associations; interference with a pending or impending lawsuit; lewd or corrupt personal life; or use of the judicial position to extort or embezzle funds. Clearly, off the bench conduct includes a wide range of behavior from merely inappropriate actions to criminal violations.
(d) Other Improper Activities
Judges are also subject to restrictions in other aspects of their positions. These include prohibitions against: conducting proceedings or discussions involving one party to a legal dispute; interfering with the attorney-client relationship; bias; improper campaign activities; abusing the prestige of the judicial office; obstructing justice; and criminal behavior.
2. Physical or Mental Disability
Apart from allegations of misconduct in office, the Commission also has the authority and responsibility to address allegations of judges' physical and mental disabilities. Disabilities may include: alcohol or drug abuse; senility; serious physical illness; or mental illness.
The Commission can require medical examinations as part of its investigation and also can recommend counseling when appropriate.
3. Complaints the Commission Cannot Address
The most common complaints that the Commission has no authority to address are questions of law. Frequently, complaints allege dissatisfaction with decisions that judges make in their judicial capacity. For example, individuals often complain of wrong child custody awards or sentences that judges impose in criminal cases. The Commission cannot enter into cases or reverse judicial decisions. That role belongs to the appellate courts.
Filing a Complaint
While the Commission can initiate its own investigation, any person can also file a complaint against a state judge with the Commission. A form is not necessary, but the complaint has to be in writing with a signature and should include enough information to enable the Commission staff to begin an investigation. Necessary information includes: the judge's name, the conduct complained of, a case number if it involves a court case, and the names of others present or aware of the facts. Complaints should be mailed or faxed to:
Alaska Commission on Judicial Conduct, 510 L Street, Suite 585, Anchorage, Alaska 99501
Commission staff will be happy to assist anyone in writing their complaints.
Soon after a complaint is filed, the Commission will review the accusation. Commission staff will often interview the person who filed the complaint to determine the facts giving rise to the complaint. After the initial inquiry, the Commission may conduct a full investigation. All complaints within the Commission's legal authority are investigated further. If the charge is found to be without merit, an accusation against a judge may be dismissed by the Commission during the investigation. If a preliminary investigation supports the complaint, a formal investigation begins. It is at this stage that the judge involved is informed of the complaint. A formal investigation includes an interview with the judge.
Complaints filed with the Commission and all Commission inquiries and investigations are confidential. If the Commission finds that probable cause exists that a judge has committed misconduct, a formal statement of charges is issued. The statement of charges is public information. Some time after the formal charges issue, the Commission will hold an open public formal hearing on the matter. At that hearing, Special Counsel (hired by the Commission) presents the case against the judge. The judge is often represented by an attorney who presents that judge's defenses. The full Commission usually sits as decision makers in the matter and renders a decision that may include recommendations to the Alaska Supreme Court for sanctions against the judge. The results of a Commission proceeding are public when Commission recommendations are made to the supreme court.
The Commission's decision may be to: exonerate the judge of the charge or charges; recommend counseling; or recommend that the supreme court take formal action. The Alaska Supreme Court may impose one of the following sanctions against the judge: suspension, removal, retirement, public or private censure, reprimand,* or admonishment. (*The Commission on Judicial Conduct originally had statutory authority to issue reprimands without actions by the Alaska Supreme Court. That power was held to be unconstitutional by Inquiry Concerning a Judge, 762 P.2d 1292 (1988).)
Rules of Procedure
The Commission's operations are governed by its own Rules of Procedure. While the statutes relating to the Commission broadly outline the Commission's responsibilities, the Rules of Procedure define how the Commission operates. In 1991, the Commission revised its rules clarifying many rules and increasing their scope. Some rules continued to be refined and modified in the past few years.
The rules are more comprehensive and specific in such areas as: discovery, evidence, motions, role of the chair, executive director's role and authority, contempt powers, standards for reopening complaints, and deliberative process. In addition, rules changes were needed to conform to new legislation.
Rules revisions were circulated for public comment prior to their adoption. The Commission's efforts are directed towards improving its public responsiveness, creating the fairest procedures, and fulfilling its directive under the state constitution.
The Commission staff currently consists of an executive director, and an administrative assistant.
The Commission's finances are planned according to the state fiscal year (July 1 - June 30). Each year the Commission on Judicial Conduct submits its budget request to the legislature. The Commission's resources are appropriated from general state operating funds.
At the Commission's request, the House Judiciary Committee introduced a bill in 1989 that would open the Commission's formal hearings to the public. House Bill 268, passed in May 1990, also establishes a constant time period of six years for complaints against judges to be filed with the Commission. (The former law required a period of not more than six years before the start of the judge's current term; creating different time limits for different judges.) The bill also explicitly includes part-time or temporary judges within the Commission's authority. As a result of this bill's passage, all Commission formal hearings and recommendations to the Alaska Supreme Court are open to the public. The public will become aware of the evidence presented and the action taken by the Commission in future hearings. The public will also be aware of charges that are not supported by evidence and exoneration of these charges.
For the first time, in 1991, the Commission issued Formal Ethics Opinions. These opinions are based on actual Commission complaints that resulted in some form of private informal action. Formal Ethics Opinions are reported in a way that protects confidentiality. Only the minimum facts necessary to an understanding of the opinion are reported. The Commission continues supplementing these opinions as the situations occur. In 1994, the Commission continued to adopt new opinions.
Judges who criticize jurors verbally, directly to them, for their work as jurors, violate Canons 2A and 3A (3) of the Code of Judicial Conduct.
Judges who abuse the contempt power by jailing without basis or explanation act in an arbitrary and capricious manner that violates Canons 1, 2A, and 3A (4) of the Code of Judicial Conduct.
Judges who use abusive and profane language off the bench towards attorneys appearing in their courtroom, violate Canons 1, 2 A, and 3 A (3) of the Code of Judicial Conduct.
Judges who make racially oriented comments from the bench on issues that are not raised by the parties or without evidence taken, act in a way that constitutes conduct prejudicial to the administration of justice that brings the judicial office into disrepute.
Judges who make derogatory sexual comments while off the bench to female attorneys and witnesses in a pending proceeding violate AS 22.30.011 (a)(3)(C) and (D).
Judges who write one party in a proceeding without copying the other side and fail to notify the other side of a meeting between the judge and a party act in a way that constitutes improper ex parte communication that are prejudicial to the administration of justice violating Canon 3A(4) of the Code of Judicial Conduct.
Judges who make racist jokes at public events violate Canons 1 and 2 of the Code of Judicial Conduct. Such jokes are worse than profanity. While profanity may offend some and not others, racial slurs offend an identifiable class of people who have struggled to achieve equality.
Judges who become involved with administrative matters of case assignments to other judges for personal reasons violate Canons 1, 2A, 2B, 3A(4) and 3C(1).
Judges who have an overly brusque manner in dealing with court personnel do not violate the Code of Judicial Conduct but should be aware of the need to control and moderate demeanor when relating to court staff.
Presiding judges who, on a single occasion, may not have adequately investigated a complaint against a magistrate do not violate the Code of Judicial Conduct but should devote adequate time and resources when investigating those complaints.
Judges who give speeches on general legal issues at political party fundraising events violate Canons 7A (1) (b) and (c) of the Code of Judicial Conduct.
Judges who use the title "judge" in promotional literature for their businesses and use the court system phone number to conduct business, violate Canon 5 C(1) by improperly exploiting the judges' position.
Judges who share a home telephone line with a spouse's law practice should obtain a separate phone line for the law practice. Sharing a personal phone line with a spouse's law practice could lead to the perception that the judge was also practicing law, and, potentially to inadvertent ex parte communications.
A judge who held a questionable ex parte evidence hearing did not violate the ethical prohibition on ex parte communications where there was an arguable legal basis for holding the hearing ex parte. The Commission could not conclude by clear and convincing evidence that objectively the actions were "obviously wrong in the circumstances." Under the facts of the case, the defendant posed an extreme security risk, the defendant acted as his own co-counsel (requiring his presence if defense counsel were allowed into the hearing), and the judge preserved the entire transaction on record for review. (Approved August 28, 1992)
A judge's phone call to the head of a state office responsible for handling criminal litigation regarding the state of the law under a landmark case, violated Canons 3A(4) and Canon 2A. The judge intended to use the information to draft jury instructions in a pending criminal matter before him. Though the judge did not know that the attorney had given advice to counsel in the case, the judge was aware that the office was part of the litigation team. The judge's subjective belief that the head of the office was a "disinterested expert" under Canon 3A(4) was not determinative. The Commission found that a reasonable prudent judge would not have reached the conclusion that the attorney was a disinterested expert. Because the attorney was visibly a part of the litigation team, the attorneys and public could reasonably conclude that the judge's phone call created an appearance of impropriety as well. (Approved August 28, 1992)
A judge who had an inadvertent informal contact with a witness in a former related proceeding and did not disclose that contact to the parties at a hearing that immediately followed that contact, created an appearance of bias on the part of the court. At a minimum, the judge would have stated that nature of the judge's communication with the witness on the record before making other comments. The fact that the judge did not hold the hearing as scheduled, but instead used the opportunity to make brief statements to one party concerning prior orders, contributed to the appearance of bias. (Approved February 12, 1993)
A judge who became aware of a witness's illegal drug trafficking during the course of civil litigation is under no affirmative ethical duty to report the criminal activity to appropriate authorities. While a judge is free to report the activity at a time and in a manner what will not affect any ongoing litigation before the judge, a judge has no obligation to do so. (Approved February 12, 1993)
A judge was under no obligation to disqualify from hearing a case in which one of the appearing attorneys was serving as a discovery master for the judge in a pending unrelated case. While there was no absolute requirement to disqualify where the working relationship with the master was minimal and where the original appointment of the master was by another judge, a judge does have a duty to use reasonable efforts to disclose an ongoing relationship. Judicial appointments to paid positions like masters may give the public impression that the judge is conferring a monetary benefit and creating a special close professional relationship with the attorney who receives the appointment. Disclosure, by conveying the nature of the relationship, can enhance the public's trust in the process and the integrity of the judge. (Approved as modified December 10, 1993)
Canon 5B(2), prohibits fund solicitation for charitable or civic organizations; it does not, however, require a judge to direct the organization to remove the judge's name from a list of officers, trustees, or directors where the listing is not a prominent part of the fund solicitation. A judge generally should not use the title of the judicial office in connection with any list of officers, trustees, or directors. The title, however, may be used to describe the judge's occupation if all officers, trustees, or directors are listed in a similar manner. (Approved as modified August 26, 1994)
A judge who independently researched the prior convictions of a defendant that the judge sentenced, did not violate Canons 2A and 3A(4) of the Alaska Code of Judicial Conduct. Routine checking of court files is not improper, but fact-finding that goes beyond courts records may be. (Approved August 21, 1995)
Opinion # 021
A judge who, immediately following a hearing, had lunch with one of the attorneys in the proceeding, violated Canon 2A by creating an appearance of impropriety. While nothing improper was discussed at lunch, the closeness in time between the hearing and the social lunch could create to a reasonable observer that the attorney had more influence over the judge based on their social relationship.
Opinion # 022
A judge who routinely provides care for or supervises the judge's child in chambers violates Canons 2 and 3 A by giving the appearance that the judge's non- emergency family duties are paramount over judicial duties during court hours.
Opinion # 023
A judge engages in improper political activity, violating Canon 5 A (1) (d), by moderating a partisan political debate. The debate represented all candidates for the political office and was not sponsored by a political party, nonetheless political debates by their nature engage the moderator in political discourse inappropriate to judicial office. Such a debate improperly lends the prestige of judicial office to the event in a state with a non-elected judiciary.
A judge who recused from one hearing in a criminal case, but not from the case as a whole, did not conform to the requirements of Canon 3E of the Code of Judicial Conduct or the requirements of AS 22.20.020, Alaska’s disqualification statute. The judge granted a motion to disqualify for cause from an evidentiary hearing in the case but retained the ability to sit on the other aspects of the matter. Ethical standards do not allow for a partial disqualification for cause.
A judicial officer who accepted rides from law enforcement while on duty in a small village without any form of public transportation did not violate the Code of Judicial Conduct where no ex parte communication concerning the pending criminal matter occurred. The circumstances in rural Alaska often create a need for accommodations that would not be suitable if there were other alternatives. Where these accommodations include assistance by law enforcement officers, great care should be given to avoiding any discussion of official matters while outside the courtroom. The best practice would be to disclose the special needs and accommodations on the record at the beginning of the court proceeding to avoid appearance of impropriety questions.
Advisory Opinion #97-1
(adopted February 7, 1997 and amended June 6, 1997)
Question : May a judge write an unsolicited reference letter to the Alaska Judicial Council concerning an applicant for a judgeship?
Opinion : A judge may write a letter to the Judicial Council concerning the qualities and abilities of an applicant for a judicial position. The letter need not be solicited by the Council, but its content should be limited to addressing those qualities about which the judge has direct knowledge and which relate to the criteria used by the Council in evaluating the applicant. A judge may ethically permit the Council to forward the letter to the governor. The restriction on content should be extended to all official reference letters by judges, regardless of who the recipient may be. Any use of the judicial office to persuade and influence decision-makers, beyond comments addressing the qualifications of the individual concerned, is not proper. In addition, while sending an unsolicited letter to the Judicial Council is not improper, sending an unsolicited letter to the Governor is improper. The Governor's role in the selection process is political and any written unsolicited comments regarding the selection could be viewed as political.
Advisory Opinion #97-2
(adopted June 6, 1997)
Question : May a judge contribute to charitable organizations that also are involved in political activity such as domestic violence groups?
Opinion : Pursuant to Canon 7 A (1) (c) a judge should not contribute to a "political organization or candidate." While political organization is not defined in the Alaska Code of Judicial Conduct, it has been defined in the 1990 ABA Model Code of Judicial Conduct. That Code defines "political organization" as denoting "a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office." The Alaska Public Offices Commission has a similar definition, viewing such a group as any combination of two or more people "acting jointly who take action the major purpose of which is to influence the outcome of an election." Charitable organizations that also engage in some political activities are not considered political organizations under either of these definitions. Judges may, therefore, contribute to charitable organizations that also engage in some political activities if those organizations are primarily engaged in nonpolitical charitable work. Domestic violence groups, for example, generally have primary purposes such as running shelters and counseling programs that are not political in nature. Judges should be aware, however, that making contributions to groups that have an interest in matters before the court may create a disqualification issue for that judge. These situations should be examined by each individual judge as the specific cases may arise.
Advisory Opinion #98-1
(adopted January 23, 1998)
Question : May a judge allow a state official of the executive or legislative branch to sit on the bench next to the judge or in-court clerk while observing court in session?
Opinion : Providing any preferential seating to visiting state officials that is not available to the general public while court is in session creates an appearance of impropriety in violation of Canon 2 of the Code of Judicial Conduct. State officials hold positions of power within state government that, through the doctrine of separation of powers, is meant to be distinct from the role of state courts. Treating a state official differently from any other member of the public by giving that official preferential seating, creates the appearance to the average observer that the official has special access to the court and its decision-making. While state officials have a special interest in observing how the courts are run to assist in proper legislative or executive decision-making, any questions regarding the court process can be addressed to the judge in private outside of the official public court session. So too, special demonstrations of equipment can be arranged for private observation by state officials, separate from the official court proceeding or special seating arrangements can be provided to both the officials and the public generally to allow observation of court equipment during proceedings.
Other special observers may not necessarily come under this opinion. Often school children tour the courts and are seated in special places, at times on the bench. Children are not in a position of power and, therefore, do not create an appearance of improper influence especially when their presence is explained to be for an educational purpose.
Advisory Opinion 98-3
(adopted September 14, 1998)
Question : May a judge contribute to another judge's retention campaign fund?
Opinion : A judge should not contribute to another judge's retention campaign fund. Canon 5 A (1) (b) and (c) of the Alaska Code of Judicial Conduct prohibits judges from engaging in political activity and expressly prohibits judges from financially contributing to political campaigns. The terminology section of the Code defines candidate for public office and judicial candidate separately. Arguably, candidates in a retention election are not necessarily candidates for "public" office under the Code. The purpose of these Code provisions is to insulate judges from the political pressures that campaigns and campaign fundraising necessarily entail. While judicial retention elections do not typically involve political positions and influence, when a judge's retention is contested it necessarily entails an organized opposition with defined issues. While the judge under attack clearly has the right to respond to that opposition, engaging other judges in the dialogue unnecessarily politicizes their positions as well.
Advisory Opinion #98-4
(adopted September 14, 1998)
Question : Can a judge ethically financially contribute to The Alaska Legal Services Corporation?
Opinion : Judges may contribute financially to The Alaska Legal Services Corporation without violating the Code of Judicial Conduct. In all other respects, judges must comply with Canon 4 C of the Alaska Code of Judicial Conduct regarding charitable activities. Judges should disclose the fact that they are contributors in any case involving a legal services attorney or if the judge knows that the attorney is participating in the case as part of the pro bono program. In fundraising efforts by The Alaska Legal Services Corporation, judges may be listed in the same manner as other contributors or may be listed anonymously but should not hold leadership positions in the organization. The sole exception is the Chief Justice of Alaska, who, as chief administrator of the state courts, may endorse and participate in the program in that role.
Advisory Opinion #99-1
(originally drafted as 98-2)
Question : When is a sitting judge obligated in court proceedings to disclose discussions concerning future employment with an entity involved in litigation before the judge?
Opinion : A judge should disclose the fact that the judge is discussing employment with an entity involved in litigation before the judge. For purposes of this opinion, "an entity involved in litigation before the judge" refers to any party, witness, attorney, government entity, or law firm directly involved in the litigation. Once disclosure has occurred, the judge should offer to recuse. Once the judge has accepted the job, the judge should recuse and disclose the basis for the recusal.
Advisory Opinion #99-3
(adopted September 8, 1999)
Question: When a judicial officer receives an ex parte communication by a court employee concerning facts affecting a pending case before that judicial officer, does full disclosure of the communication include disclosure of the identity of the employee who initiated the communication?
Opinion: Canon 3B(7) prohibits judges from initiating or considering "ex parte communications or other communications made to the judge outside the presence of the parties...." The only partial exception is for scheduling or other administrative purposes. It has been noted that while the "Code of Judicial Conduct does not address the question of remedies. . .courts have held that prompt disclosure of the ex parte communication to all affected parties may avoid the need for other corrective action." SHAMAN, LUBET, ALFINI, JUDICIAL CONDUCT AND ETHICS at 164 (2d ed. 1995).
Disclosure of ex parte communications should be a full disclosure. While the identity of the individual who initiated the communication may not always be a necessary element of full disclosure, where the parties have inquired as to the identity of that individual, absent any legal basis for maintaining the anonymity of that individual, the name should be disclosed. Court employees, in general, have no special privileges and should respect the integrity of the court process by insulating the judicial officer from factual information outside of the court record.
Advisory Opinion #99-4
(adopted December 14, 1999)
Question: May a judge be a member of the Association of Trial Lawyers of America or other specialty bar associations?
Opinion: Maintaining the appearance of impartiality is essential to an effective judiciary. Canon 2 Alaska Code of Judicial Conduct. While judges are generally encouraged to participate in bar associations, specialty bar associations are different. Specialty bar associations have been defined as those associations of lawyers who mainly represent a particular class of clients or engage in a specialized practice or reflect a partisan view on legal issues.
Judges are not permitted to be members of special bar association, as it would convey the appearance of a special relationship to one side in the adversarial process. "An organization need not be racist or vitriolic, however, in order to give the appearance of partiality. Membership on the board of directors of a legal aid society might convey the impression that a judge was predisposed in favor of its lawyers. . . . Thus, judges should avoid membership in even the most praiseworthy and noncontroversial organizations if they espouse or are dedicated to a particular legal philosophy or position." SHAMAN, LUBET, ALFINI, JUDICIAL CONDUCT AND ETHICS at 296 (2d ed. 1995). The Association of Trial Lawyers of America is a plaintiff's bar association. It promotes itself as leading the fight for the rights of injured persons and engages in lobbying activity against efforts to limit defendant liability.
Because the Association of Trial Lawyers of America advocates the position of plaintiffs in civil disputes, a judge's membership in that organization could convey a sense that the judge is predisposed toward plaintiffs. Special categories of membership or affiliation do not obviate the problem. Consequently, judges should not be members of the Association of Trial Lawyers of America, regardless of whether the membership is general or limited, free or paid. (See also Arkansas Advisory Opinion 99-04)
Advisory Opinion #99-5
(adopted December 14, 1999)
Question: May a judge receive free conference travel to a judicial conference sponsored by The Roscoe Pound Foundation, a not-for-profit arm of the Association of Trial Lawyers of America?
Opinion: A judge should not accept an offer of conference travel to a judicial conference sponsored by the Roscoe Pound Foundation. Judges are not permitted to be members of special bar associations as it would convey a special relationship to one side in the adversarial process (see Advisory Opinion 99-4). The Association of Trial Lawyers of America, as a plaintiff's bar association, would not be a permissible organization for judges to join. The Roscoe Pound Foundation is a trust set up for educational purposes by the Association of Trial Lawyers of America. The by-laws of the foundation, however, indicate strong links to the Association of Trial Lawyers of America. For example: the trustees of the foundation are elected at the annual ATLA convention; one of the members of the executive committee is the ATLA President; the purpose stated is "to promote the well-doing or well-being of mankind and especially of injured persons"; and, the trust declaration notes an $800,000 loan by this foundation to ATLA. Consequently, any judicial conference sponsored by this foundation would give the appearance of a plaintiff supported conference and any gift of travel to the conference would give the appearance of a gift by the plaintiff's bar to judges.
Other states have noted that judges should not be guests of special bar associations at conferences. For example, Tennessee Advisory Opinion 96-4 states that judges should not be guests of a defense lawyers' association at its meeting or convention where the judges' registration, lodging, and travel would be paid by the association. Gifts of travel by specialty bar associations give the appearance of influence.
Advisory Opinion #2000-01
(Adopted September 11, 2000 )
Question: May a Children’s Court Master serve on a local juvenile corrections facility’s citizens’ advisory committee? May a Superior Court Judge serve on a community committee to plan for a Child Advocacy Center (a facility for children who are victims of physical or sexual abuse)?
Opinion: Canon 4C(2) of the Alaska Code of Judicial Conduct provides: “A judge shall not accept appointment to or serve on a governmental committee or commission or other governmental 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.” Canon 4C(3) explicitly allows judges to serve as officers, directors, trustees, or advisors of organizations or government agencies “devoted to the improvement of the law, the legal system, or the administration of justice” or of other not-for-profit organizations subject to two basic limitations. The two limitations are: (1) That a judge cannot serve “if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the judge’s court.” (2) Regardless of the nature of the organization or its role, the judge cannot engage in fund solicitation.
Judges also are obligated to avoid impropriety and the appearance of impropriety and to maintain the appearance of impartiality. Specifically, Canon 4A requires judges to conduct all activities so that they do not “cast reasonable doubt on the judge’s capacity to act impartially as a judge.” Fundamentally, whether a judge may sit on any board or committee, turns on whether that board or committee is devoted to the improvement of the law or the administration of justice, and, regardless of whether it is or not, whether participation by a judge would lead to an appearance of partiality in cases coming before that judge.
Both a juvenile corrections facility and a child advocacy center can be construed as being related to the administration of justice, as can an increasingly large number of various social service organizations. Consequently, the key issue will be whether a judge’s participation as a member would create an appearance of partiality. Several factors will contribute to whether that appearance is created. These factors may include:
- whether its members represent only one point of view or whether membership in the group is balanced;
- whether the group will discuss controversial legal issues and those issues likely to come before the courts or merely administrative or procedural concerns;
- whether the group will be viewed by the public as a political or an advocacy group or merely as an administrative group;
- whether the group will take public policy positions that are more appropriate to the other two branches of government than to the courts or whether the policy positions could be viewed as clearly central to the administration of justice.
- Regardless of any of these factors, judges may provide information on matters concerning the law or the administration of justice to groups in which their membership would be precluded by the Code.
Applying these factors to the two groups that the judicial officers presented, one appears permissible, the other does not. The citizens’ advisory committee for the juvenile corrections facility appears to be permissible for judicial membership as it is composed of a cross-section of interested parties who will not be advocates for any particular single interest and the group will be limited to administrative concerns. The child advocacy center planning committee is not appropriate for judicial membership as its membership is prosecutorial in nature and it appears to be fundamentally an advocacy group regardless of the purely administrative function of this particular committee.
Finally, judges who participate as members of permissible groups should constantly keep in mind the Commentary to Canon 4C(3): “The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation.”
Advisory Opinion #2000-02
(Adopted October 16, 2000 )
Question: May a judge contribute to an aggregate campaign fund that supports the retention of one or more judicial candidates?
Opinion: A judge may not contribute to any campaign fund for public office regardless of whether the fund is an aggregate fund or an individual fund or whether the fund supports the retention of a judicial candidate or exists for another elective purpose. This opinion reaffirms Advisory Opinion #98-3. That opinion noted that the purpose of the Code provisions in Canon 5 is to insulate judges from “the political pressures that campaigns and fundraising necessarily entail.” Canon 5A(1)(e) specifically prohibits judges from making “a contribution to a political organization or candidate for public office.” The only exception is for judges who are candidates seeking retention and are covered by Canon 5C. That Canon allows judges who are candidates for retention to engage in limited political activity to secure their own retention. There are no other express exceptions to the Canon 5A(1)(e) prohibitions. However, there is arguably a different definition for “candidate for public office” and “candidate” for judicial retention. If there is a differentiation between the two, neither the language of the Code’s Canons, themselves, nor the terminology section of the Code makes that distinction clear.
While the commentary to Canon 5C(3) (permitting limited political fundraising activity by retention judges) states that the sections of the Canon “are not intended to prohibit an organization of judges from soliciting money from judges to establish a campaign fund to assist judges who face active opposition to their retention,” it does not address the prohibited political contribution activity of non-retention judges under Canon 5A(1). As stated above, that Canon addresses the ability of judges to contribute to political campaigns. The 5C(3) commentary seems to attempt to permit judges to do indirectly what they are prohibited from doing directly. In other words, the commentary implies that an organization of judges could solicit money from judges for a campaign fund (and necessarily that judges could then contribute to the campaign fund) that would not be permitted if the campaign fund were created by a single judge facing active opposition under Canon 5C(3). Judges should not be permitted to do indirectly what the Code prohibits directly.
The public will view an aggregate campaign fund supporting the retention of one or more judges as political activity opposing the various positions that the active opposition espouses. Aggregate funds, like those of individual judicial retention campaigns, necessarily engage the judges in the political forum. The commentary to Canon 5C(3) is unique to Alaska; other states with merit selection and retention systems do not permit judicial contributions. To best protect the non-political nature of Alaska’s judiciary, judges should be insulated as much as possible from political influence and the appearance of political influence. Prohibiting judicial contributions to judicial retention campaign funds, individually or as an aggregate, provides the necessary insulation.
Advisory Opinion #2001-01
(Adopted February 26, 2001)
Question: May a Superior Court Judge serve on a state Children’s Justice Act task force created by federal statute and requiring state judge membership?
Opinion: This opinion supplements our Advisory Opinion #2000-01 in which we noted how Canon 4C(2) of the Alaska Code of Judicial Conduct restricts outside community activities of judges. That opinion summarized the Code’s restrictions by stating: “Fundamentally, whether a judge may sit on any board or committee, turns on whether that board or committee is devoted to the improvement of the law or the administration of justice, and, regardless of whether it is or not, whether participation by a judge would lead to an appearance of partiality in cases coming before that judge.”
To assist judges in determining whether any commission, task force, or committee is appropriate for judicial membership, Advisory Opinion #2000-01 set out four factors as follows:
- whether its members represent only one point of view or whether membership in the group is balanced;
- whether the group will discuss controversial legal issues, issues likely to come before the courts, or merely administrative or procedural concerns;
- whether the group will be viewed by the public as a political or an advocacy group or merely as an administrative group;
- whether the group will take public policy positions that are more appropriate to the other two branches of government than to the courts or whether the policy positions could be viewed as clearly central to the administration of justice.
- Regardless of any of these factors, judges may provide information on matters concerning the law or the administration of justice to groups in which their membership would be precluded by the Code.
The mere fact that federal legislation requires state judge membership on a task force as a prerequisite for funding, does not preclude an independent ethics analysis by appropriate state judicial conduct commissions as to the propriety of state judges sitting in that capacity. Applying the listed factors to the state task force under the federal Children’s Justice Act, Alaska judges may be members of the state task force if they limit their involvement to public policy positions that are appropriate for the courts and are not legislative or executive in nature. The task force has balanced membership, including both defense and prosecution, and appears to be chiefly concerned with administrative solutions to child- abuse problems.
One other state has addressed judge membership on a Children’s Justice Act task force. That state, South Carolina, restricted the judge’s membership to a court coordination subcommittee of the task force. In noting its restriction, the South Carolina Advisory Committee observed that the subcommittee was designed to “narrowly address matters concerning the administration of justice.” (South Carolina Opinion no. 8-1996) The South Carolina view, consistent with our own, was concerned with judicial membership on “governmental advisory committees because the scope of the judge’s involvement was vague and could extend into issues of fact or policy matters other than the improvement of the law, the legal system and the administration of justice.” (S.C. Op. 8-1996)
While there is no indication that at the present the Alaska judges’ involvement on the state task force will be limited to a “court coordination subcommittee,” vigilance by the judge members in limiting their participation to matters directly concerning the administration of justice can achieve the same result. The judge members should avoid that aspect of the task force’s work that concerns the investigation and prosecution of child abuse and neglect. Those areas are most appropriate for the legislative and executive agencies of our state government. Once the task force is constituted, the judge members should explicitly define their membership roles and advise the entire task force of the ethical limitations on their participation.
Advisory Opinion # 2003-01
(Adopted September 11, 2003)
Question: May a Superior Court Judge who sentenced a felon write a letter to the pardon board or parole board at the request of the convicted felon?
Opinion: Canon 2 B of the Alaska Code of Judicial Conduct states, in part, that "A judge shall not use or lend the prestige of judicial office to advance the private interests of the judge or others." The relevant commentary to that section states: "Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation. However, except in very limited circumstances, a judge must not initiate the communication of information to a sentencing judge or a probation or corrections officer. A judge may provide to such persons information for the record in response to a formal request."
A judge should not write a letter at the request of the convicted person nor write a letter on the judge's own initiative. Either a sentencing judge or a judge who presided over the criminal trial may respond to an official request by the pardon or parole board for information that the judge had at the time of sentencing or trial. That request is an official formal request that clearly addresses the judge in the judge's official capacity.
Trial or sentencing judges should not initiate letters to pardon or parole boards without a request by the board. A response that is either initiated by the judge or is at the request of an individual may lead a reasonable observer to believe that the judge has a personal interest in the matter and is using the prestige of judicial office to further that interest. The judge would also be wise to follow an U.S. advisory committee's view (see U.S. Advisory Opinion 65*(1980) that allows a judge to convey only objective information that would assist in the determination. These judges should also refrain from personal opinions, values, or conjecture about the character of the person in any letter and the content should be narrowly drafted to address the criteria used by the pardon or parole board. Because the only permissible communications are "official" communications, official court stationary should be used for the letters to the pardon or parole board.
This opinion is not intended to restrict the ability of judges to act in their personal capacity when a member of their immediate family is either the victim of the crime or the convicted person coming before the board.
Advisory Opinion #2004-01
(Adopted February 2, 2004)
Question: What types of activities may judges perform to help further pro bono participation by attorneys?
Opinion: Resolution of this question requires the Commission to address what judges may do to help further this participation, in response to the Alaska Supreme Court’s application of a 50-hour pro bono aspirational rule to judges, while adhering to Canon 2’s requirement that a judge “avoid impropriety and appearance of impropriety in all of the judge’s activities,” and Canon 4’s requirement to “conduct the judge’s extra-judicial activities [so] as to minimize the risk of a conflict with judicial obligations.”
Alaska Supreme Court Order No. 1496, effective April 15, 2003, amended Rule 6.1 of the Alaska Rules of Professional Conduct. It adopted an annual aspirational goal of 50 hours of pro bono publico legal service for all lawyers, including judges. See, Paragraph 5 of the Commentary. Judge may satisfy their pro bono obligation through participation in “activities for improving the law, the legal system or the legal profession.” This Order, with its commentary, is consistent with the provisions of Canon 4C of the Code of Judicial Conduct.
A judge may make monetary contributions to further pro bono activities. See, Alaska Commission on Judicial Conduct Advisory Opinion #98-4. The commentary to Rule 6.1 allows for the satisfaction of some or all of the judge’s pro bono obligation by contributions. These contributions should be “reasonably equivalent to the value of the hours of service that would have otherwise been provided.” However, a judge may not personally participate in any solicitation of funds or be a guest or speaker at a fundraising event, even on behalf of an organization devoted to the improvement of the law, the legal system, or the administration of justice. The sole exception to this limitation is that a judge may solicit funds from other judges, if the judge holds no supervisory or appellate authority over the judge solicited. See, Canon 4C(3)(b)(i).
Judicial ethics opinions from a number of jurisdictions suggest strongly that it is inappropriate for judges to solicit attorneys to participate in particular pro bono programs. Solicitations on behalf of specific organizations may lead to “the impression that they are in a special position to influence the judge.” This is a violation of Canon 2B. Additionally, since such solicitations ask the attorney to contribute time, which is equivalent to money, it could be considered fundraising. Consequently, it is impermissible for a judge to individually solicit attorneys to participate in pro bono organizations or to accept particular cases. However, general appeals to participate in pro bono efforts are permissible. And a judge’s reference to a list of available pro bono programs is also allowed.
The commentary to Canon 4B makes clear that a judge should undertake efforts to improve the law, the legal system, and the administration of justice. Encouraging attorneys to fulfill their obligation to perform pro bono work, through speaking in support of pro bono activities, serving on the board of a particular pro bono program (see below), or teaching at seminars for pro bono attorneys, would further this ethical responsibility. However, these activities should not refer attorneys to any particular pro bono program or specific cases.
Judges may be active in civic and/or charitable activities. Canon 4C(3) allows a judge to serve as an officer or director for an organization that is devoted to the improvement of the law, the legal system, or the administration of justice, subject to some specific limitations. Those limitations are of two types. The first is a general limitation that prohibits judges from serving as an officer or director for any organization that is involved in frequent adversary proceedings that would come before the judge, the court of which the judge is a member or a court over which the judge has appellate jurisdiction. The commentary to Canon 4C(3) directs judges to regularly reexamine the goals and activities of any organization to which he or she belongs to avoid this problem. The second severely limits the judge’s involvement in the financial affairs of the civic or charitable organization.
Additionally, judges may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system and the administration of justice. See, Canon 4B. Examples of this activity could include participating in a workshop or CLE seminar that is made available at no (or reduced) cost for attorneys who agree to undertake pro bono cases. It would also be permissible for a judge to write articles for publication in bar or general-circulation media, encouraging members of the bar to participate in pro bono work.
Acknowledging the pro bono activity of particular attorneys would be permissible if it were done in a manner that is public, such as in a newspaper advertisement or displaying a plaque in a court. However, letters of congratulation that were sent directly to the attorney could be interpreted as evidence that the attorneys are in a special position of influence or that the judge’s ability to act impartially has been compromised. This same problem would be presented if a judge hosted a social event for the such lawyers. In any activity, the judge must avoid impropriety and the appearance of impropriety. See, Canon 2A.
The Chief Justice of the Alaska Supreme Court serves a unique role in the Alaska Court System and should be provided more latitude when soliciting funds for organizations integrally concerned with the justice system in the state. Article IV, § 16 of the Alaska Constitution designates the Chief Justice the administrative head of all courts. As part of this responsibility, the Chief Justice appoints an administrative director of the court system. The State Personnel Act, (in AS § 39.25.020) grants the Chief Justice the authority to appoint all administrative and clerical personnel in the judicial system. These administrative duties of the office are clearly separate from judicial functions. This administrative role, for example, the Chief Justice gives a “State of the Judiciary” address to the legislature and testifies with the Administrative Director on proposed legislation and budgetary needs of the court system.
Each of the other branches of state government has an identifiable spokesperson. The Chief Justice fills this position in the judiciary. There would be a unique void if the person filling that position, were not allowed to publicly solicit for the needs of the unrepresented. The concerns that led to the prohibitions in Canon 4C(3)(b) while applying with equal validity to the Chief Justice in charitable interests that are unrelated to the court system, fade when balanced against the need for an institutional voice from the court system who can speak to fundamental financial needs of justice administration. For these reasons, the Commission believes that a limited exception exists for the Chief Justice in pleas for funding assistance to particular charitable organizations that provide access to justice for those who are otherwise unable to pay.
Advisory Opinion 2006-01
(adopted October 30, 2006)
Question: May a judge conduct settlement conferences in cases where the judge is also the assigned trial judge?
Opinion: A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge. Canon 3(B)(7)(a)(iii)(e). Trial judges conducting settlement conferences in their own cases must, however, have a heightened awareness of the appearance that the parties might feel improper pressure to settle or that the judge will no longer be impartial if the case fails to settle.
Some guidelines for settlement conferences include:
(1) Before beginning the settlement conference, the parties’ request for and consent to participation by the trial judge should be established either in writing or on record.
(2) Sensitivity to the appearance of impropriety must always be a consideration for the judge. In all cases, the judge should be aware that recusal may be required if the case fails to settle and the judge has learned information during the conference that might undermine objectivity or create the appearance of impropriety. In each instance, the judge should ask whether a reasonable person, with knowledge of all the circumstances of the conference, would question continued impartiality by the judge.
(3) The concerns about the appearance of impropriety mentioned above may be heightened in cases where the judge, not the jury, will decide the case. Courts are divided on the question of whether, if settlement efforts fail in such a case, the judge must recuse from further participation in the matter. One state supreme court has held that the judge must recuse if a party requests it.1 Another state supreme court has held that recusal is automatic by virtue of participation in settlement negotiations.2 Courts in four other states have not required automatic disqualification, leaving the decision to the individual judge to determine whether continued involvement would lead to an appearance of impropriety and bias.3 The Alaska Supreme Court has not addressed this issue.
(4) Although the judge may explain the law to the parties, the judge should not state how he or she intends to rule on disputed legal issues.
(5) Particular care should be taken in cases involving unrepresented parties. The judge should consider the possibility of recording all discussion in order to resolve any later dispute about statements made during the course of negotiations.
(6) Many of the above concerns do not arise where judges share settlement conference work in a way that reduces or eliminates the need for assigned judges to conduct their own settlement conferences.
1 Schellin v. N. Chinook Irrigation Ass’n, 848 P.2d 1043, 1045 (Mont. 1993) (holding that the judge should have recused himself after participating in settlement negotiations between the parties);Shields v. Thunem, 716 P.2d 217, 219 (Mont.1986) ("[W]here a judge is to be the trier of fact, and he participates in pre-trial settlement negotiations which subsequently fail, he should, upon request, disqualify himself from sitting as the trial judge.").
2 Timm v. Timm, 487 A.2d 191, 204 (Conn. 1985) ("When a judge engages in a pretrial settlement discussion in a court case, he should automatically disqualify himself from presiding in the case in order to eliminate any appearance of impropriety and to avoid subtle suspicions of prejudice or bias.").
3 Sinahopoulos v. Villa, 224 A.2d 140, 142 (N.J.Super. 1966) ("[T]he mere fact that the judge participated in a pretrial conference with a view to possible settlement of the case does not and should not indicate prejudgment.").
In re Estate of Sharpley, 653 N.W.2d 124, 129 (Wis.2002) ( disqualification required "[w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner. . . . The determination of a basis for disqualification here is subjective.").
Enterprise Leasing Company v. Jones, 789 So.2d 964, 968 (Fla. 2001) ("A judge is presumed by law to be unbiased and unprejudiced. A mere allegation of bias without a specific factual showing in support is insufficient to require disqualification.").
Home Depot, U.S.A., Inc. v. Saul Subsidiary I Ltd., 159 S.W.3d 339, 341 (Ky.App. 2004 ) (holding that a trial judge is not required to recuse after conducting mediation).
Advisory Opinion 2007-01
(adopted January 22, 2007)
Question: May a judge serve as a National Guard judge advocate?
Opinion: A judge may serve as a National Guard judge advocate if the judge’s role is limited to performing only those duties that do not resemble services provided by civilian attorneys for members of the military . Alaska state court judges must comply with the Alaska Code of Judicial Conduct. Canon 4G of the Alaska Code prohibits judges from practicing law except for limited activity for the judge’s family. Canon 2A requires judges to “avoid impropriety and the appearance of impropriety, and act in a manner that promotes public confidence in the integrity and the impartiality of the judiciary.” And Canon 4 requires a judge to conduct all of the judge’s extra-judicial activities in a way that will “minimize the risk of conflict with judicial obligations.”
These Code provisions must be read together to guide a judge in determining whether duties required by service as a National Guard judge advocate would be permitted. The purpose behind the prohibition of practicing law is to ensure that the judge is not viewed in any way as an advocate or a less than impartial arbiter of the law. Judges are prohibited from assuming any role that could lead to the appearance that the judge is an advocate. Consequently, judges may not take any actions while serving as a National Guard judge advocate that would give the impression that the judge is an advocate on matters that concern the civilian justice system. Examples of impermissible activities include rendering legal advice and opinions on: environmental law, fiscal law, tort claims, administrative law matters, and discipline. Other impermissible activities include: serving as a recorder, legal advisor or military defense counsel or assisting military personnel in drafting personal legal documents such as wills or powers of attorney or advising in civil law areas such as consumer affairs and domestic relations. All of these roles are similar in nature to what civilian attorneys perform and could lead to an appearance of improper advocacy on the part of the judge.
However, there are duties of the judge advocate that do not impact the judge’s impartiality or appearance of impartiality. Those activities include: conducting training in the law of armed conflict, operations law, and international law. Judges are permitted to teach and training in these areas is compatible with the role of the judge.
So too, there is no apparent conflict or appearance problem for a judge who renders legal advice in a military capacity on a purely military issue. These purely military issues are issues without a civil law counterpart such as the law of armed conflict or operations law. Once again, the role here is limited to one of legal advice and should not involve the judge in appearing before a tribunal.
*U.S. Advisory Opinions are published by a committee of the Judicial Conference of the United States called the Committee on Codes of Conduct. Its opinions are addressed to federal court judges. The published advisory opinions are available in the Federal Judiciary's Guide to Judiciary Policies & Procedures or online at www.uscourts.gov/guide/bgol2/ch4.html
Alaska Commission on Judicial Conduct Advisory Opinion 2009-01
Judge's post-verdict communication with discharged jurors
Question: Do ethical considerations restrict a judge’s communications with recently discharged jurors following the conclusion of a jury trial?
Once a civil or criminal jury trial is concluded, jurors commonly express a desire to speak with the judge. Frequently, discharged jurors will have natural curiosity and questions about the case in which they have just participated. Former jurors' questions and comments may range from uncontroversial, administrative matters (parking, jury accommodations, suggestions for improvement of the jury experience), to substantive matters such as trial procedure, evidentiary rulings, possible criminal sentence, and the possibility of an appeal.
Once discharged, the procedural and ethical restrictions, which previously barred contact with empanelled jurors, cease to apply.1 Once discharged, a former juror reverts to the role of private citizen, with no further obligations to the judicial system.
A recently discharged juror is in no different role than any other citizen except for the fact that the recently discharged juror often will have an enhanced and natural curiosity about the case, courtroom procedure, subsequent legal activity, and the effect of the verdict the jury has just rendered.
The trial judge often will have a correspondingly understandable desire to be responsive and accessible to the discharged juror. To the extent that dialog contributes to the discharged juror’s understanding and respect for the legal system, this communication can be positive.
However, the judge's communications are constrained by the Rules of Professional Conduct2 and the Code of Judicial Conduct. The scope of those restrictions depends on whether the verdict and discharge of the jury represents the final litigation event (as in the case of a verdict of (not guilty) in a criminal case) or whether subsequent post-verdict proceedings (such as criminal sentencing or post-trial motions in a civil trial) remain before the judge.
Ethical constraints governing all contacts with discharged jurors regardless of whether matters remain pending before the judge.
Two ethical provisions govern a judge’s contact with all discharged jurors. Canon 2A requires all judges to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and avoids the appearance of impropriety. Canon 3B(10) prohibits judges from commending or complimenting jurors on their verdict, but permits an expression of appreciation for their service to the community.
Therefore, when communicating with a discharged juror in any case regardless of its procedural posture a judge may:
- express appreciation for the discharged jurors’ service;
- inform the jurors that the attorneys may wish to speak with them, that there is nothing improper with this request, that the choice to speak (or decline to speak) with the attorneys is theirs, and that legal professional ethical rules prohibit attorneys from harassing or engaging in a non-consensual contact with a discharged juror; and may
- request that the jurors report any harassment or non-consensual communication stemming from the jurors’ service in the case to the judge or staff.
A judge may not:
- volunteer information about inadmissible, suppressed, confidential or non-public information that could reasonably have the effect of bolstering or undermining the former juror’s confidence in the "correctness" of the verdict, but may respond to a juror’s question about any public matter including suppressed evidence where the answer is an explanation of the evidence rules and court process;
- offer excessively complimentary or derogatory critique regarding the performance or credibility of the attorneys or witnesses; or
- offer comment regarding the judge’s view of the "correctness" of the verdict.
Judges must be mindful that a judge’s communication is restricted to a greater degree than that of the attorneys, the trial participants or private citizens. Other trial participants may have a constitutionally protected right to communicate with the discharged juror about the case. Unlike some other jurisdictions, no Alaska statute or court rule presumptively bars post-verdict communication with a discharged juror.3
The attorneys’ conduct is governed only by the professional conduct rules, not the Judicial Canons. A private citizens’ communication with discharged jurors is unregulated by state statute or court rule. In contrast, the judge’s comments are restricted by the Canons referred to above. This distinction serves an important policy goal: the maintenance of an impartial and independent judiciary in appearance and in fact. Therefore, the judge’s communication is held to a higher standard than the attorneys’ or other private citizens’ communications.
Ethical constraints governing contacts with discharged jurors where post-verdict matters are still pending before the judge, where post-trial motions may occur or there is the possibility of a retrial
Where there is no verdict, i.e. a jury is unable to come to a decision resulting in a mistrial, judges must exercise extreme caution. Juror deliberations should be afforded the highest protection. While individual jurors cannot be restrained in the scope of their speech once discharged, a judge’s interaction with a hung jury as a group may cause extreme discomfort among the jurors in the minority view as to a verdict. Further, if the prosecution decides to retry the matter, the judge’s impartiality could be questioned for similar reasons to those that do not allow judges to participate in criminal plea bargains. Consequently, judges should avoid direct communication that goes beyond appreciation for service with a discharged jury that has not reached a verdict.
Commonly, after a guilty verdict is received and the jury discharged, substantive matters still remain before the trial judge. In a criminal case, sentencing is often scheduled several weeks after the return of verdict. In a civil case, post-verdict motions such as motions for new trial are common. It is in this circumstance where a judge must be cautious. Where post-verdict matters are foreseeable or pending before the judge, the judge must take affirmative steps to avoid even the appearance of communications that give the impression of pre-judging upcoming issues or that jurors can influence those decisions.
Where matters are still before the judge, additional provisions of the Judicial Canons apply. With several exceptions not applicable here, Canon 3B(7) prohibits judges from initiating or permitting ex parte communications regarding a pending matter. Canon 3B(9) prohibits judges from making a public comment that may impair the fairness of a pending proceeding.
Where a judge initiates or participates in a dialog with recently discharged jurors, extra care must be taken to insure that the conversation does not stray toward the discharged jurors’ favorable or unfavorable opinion regarding a trial participant, witness or the factual merits of the case. In a criminal case, where the jury has found the defendant guilty, but sentencing has not yet occurred, it is foreseeable that the jurors will ask the judge about the probable sentence, and express their opinion one way or the other. In a civil case, jurors may ask questions about the financial effect of their verdict upon the litigants, the collateral effect of the verdict, or insurance consequences.
The judge must be particularly on guard because a discharged juror’s opinion about the merits of the just-completed trial could convey the impression that the judge will resolve future issues in a certain way. So too, discussing the probative force of the evidence, the performance of the advocates, or the relative culpability of the criminal defendant, could leave an impression of the likely future decisions by the trial judge. If the judge has post-trial matters still pending, the litigants may legitimately view the communication as appearing to influence, however subtly, the judge’s ultimate ruling on post-trial matters. Even worse, should the judge express agreement or disagreement with a juror’s opinion, the appearance of pre-judgment of any still-pending issue is obvious. A judge in this position runs the risk of inviting a motion for disqualification based upon the communication. A judge may advise the jury of the date for sentencing and the pre-sentence/sentencing process and advise the jury that they are free to attend the sentencing if they choose to do so.
Where matters remain pending, a trial judge must manage any jury conversation with care. While the judge may explain events that occurred on the public record, the judge must not allow or participate in discussion of the merits of the case and must politely decline to answer questions about probable post-verdict rulings.
Before the judge initiates a conversation with the discharged jurors, the judge must inform the litigants of the judge’s intent to speak with them.4 The judge should not engage in a lengthy dialog, as the chances of a questioned communication increase with the length of time the discharged juror spends speaking with the judge. Finally, if the judge is inadvertently exposed to an opinion about the merits of the case, or receives a report of substantive juror misconduct, the judge should immediately inform the parties orally on the record or in writing.
As stated above, mere statements of appreciation for the jurors’ service raise no concern. Judges may also distribute various court approved surveys to jurors that assist in addressing court administration concerns, and may explain court procedures or answer questions concerning matters that occurred in open court.
1 This opinion deals only with a judge's post-verdict contact with recently discharged jurors. The subject of mid-trial or mid-deliberation contact with empanelled jurors is beyond the scope of this opinion.
2 Alaska R. Prof. Conduct Rule 3.5(c) (Impartiality and Decorum of Tribunal) provides that a lawyer may communicate with a former juror unless law or court order specifically prohibits the communication, the juror expresses unwillingness to communicate, the communication involves misrepresentation, duress, coercion or harassment, or the communication is calculated to improperly influence future jury service. Alaska R.Prof. Conduct 3.5(c), enacted by SCO 1680, effective April 15, 2009.
3 Alaska R.Evid 606(b) provides that, where the validity of an indictment or verdict is at issue, a former juror may not testify about jury deliberations or deliberation processes. But, this is an evidence rule that governs admissibility of testimony. This rule does not categorically bar the discharged juror from speaking about the case, or bar any person from seeking to interview the discharged juror.
4 A private, off-record, meeting between the judge and the discharged jurors, outside the parties’ presence, may generate questions about what was said; judges. Judges should determine the best method to address any discomfort by the parties and lawyers, such as allowing litigants the opportunity to be present. or, perhaps most appropriately, having that conversation on the record.
Commission Complaint Form (fax or mail only)
***Note: This complaint form is not necessary, however any complaint needs to be in writing with a signature. Complaints can be mailed or faxed to: Alaska Commission on Judicial Conduct, 510 L Street, Suite 585, Anchorage, Alaska 99501; (907) 272-1033.
NO ELECTRONICALLY FILED COMPLAINT CAN BE ACCEPTED AT THIS TIME.
Alaska Commission on Judicial Conduct Rules of Procedure
Proposed Rules Revisions (12/1/2000)
(Revised and Adopted December 1, 2000 )
RULE 1. ORGANIZATION OF COMMISSION.
(a) Meetings. The commission holds the following meetings:
(1) Annual. The annual meeting. At the annual meeting, the commission will approve the commission’s annual report and will elect officers every two years
(2) Regular. Other regular meetings at designated locations may be held as needed. Regular meetings may be held either in person or by teleconference.
(3) Special. Special meetings may be called by the chairperson or two members of the commission upon prior written or verbal notice to all members where there is a need to meet on short notice for a special purpose. If the special agenda includes any public matter, public notice shall be given at least 24 hours before the meeting. Special meetings may be held either in person or by teleconference.
(b) Notice of Meetings. Notice of meetings is required as follows
(1) Public. At least 14 days before a regular commission meeting, the executive director shall give public notice to be placed in newspapers of general circulation most likely to give notice to the residents of the State of Alaska . The notice shall clearly specify the date, time, and place of the commission meeting and shall also state that anyone wishing to appear at the meeting must contact the executive director at the commission office at least five working days before the meeting. An agenda of public matters shall also be included in the meeting notice.
(2) Members. At least 14 days before a regular commission meeting, the executive director shall give notice of the meeting to each member of the commission. The notice must contain the date, time, and place of the meeting, and a tentative meeting agenda. The commission will, in its discretion, waive notice for any meeting.
(c) Officers. The commission has the following officers:
(1) Chair. The commission will elect a chair and a vice-chair by majority vote at the annual meeting. The term of office is two years. The chair shall conduct the meetings; certify commission recommendations; direct the preparation of meeting agendas, notices, reports, and minutes; and ensure accurate record-keeping. The vice-chair shall act in the absence of the chair.
(2) Executive Committee. The chair may appoint an executive committee to perform matters of administration as from time to time are designated by the commission.
(d) Commission Office. The commission shall establish a permanent office in a building open to the public. The office must be open and staffed at regular office hours.
(e) Quorum. No dispositive action may be taken by the commission unless a quorum of at least a majority of the members serving on the commission is present, in person or telephonically, at the meeting. A quorum of the commission must include at least one judge member, one attorney member, and one public member.
(f) Voting Requirements. The following rules apply to voting on commission action:
(1) Every action of the commission requires a majority vote of the members serving on the commission at the time the action is taken.
(2) The names of commission members voting on any question shall be recorded in the minutes.
(3) Once cast, votes may be changed only during the same meeting on a motion to reconsider unless otherwise provided by these rules.
(g) Order of Business. The chair shall determine the order of business in advance of each meeting.
(h) Public Participation The meetings shall be ordered to encourage attendance by the public, where public matters are considered. To facilitate productive and effective meetings, any member of the public who wishes to testify at a public meeting of the commission shall make the request to the executive director at least 48 hours before the commencement of the meeting. Requests will be honored only if the general substance or subject area on which the individual wishes to testify concerns a public matter related to the commission's function under the Alaska Constitution and the statutes of the state. All requests are subject to approval by the commission chair. Written public testimony will be accepted at any time, concerning any matter relating to the commission's function.
(i) Electronic and Written Records. The executive director shall electronically record all commission meetings except for commission deliberations, prepare minutes of both public and closed sessions subject to approval of the commission, and maintain their permanent storage. The executive director shall preserve all documents, including tape recordings, staff notes and memoranda, transcripts of testimony before the commission, and correspondence.
(j) Commission Member Holdover. To ensure that the commission continuously fulfills its constitutional responsibilities, a commission member continues to serve as an active member after expiration of that member's term until the vacancy is filled by the appropriate appointing authority. [Adopted November 1, 1991 ; amended December 10, 1993 ; May 9, 1995 ; December 1, 2000 .]
RULE 2. FUNCTIONING OF COMMISSION.
(a) Annual Report. Before the annual meeting, the executive director shall prepare an annual report of the commission's activities for presentation at that meeting. Upon approval by the commission, the executive director shall send a copy of the annual report to the governor, president of the senate, speaker of the house, chief justice, state publications distribution and data access center, and president of the Alaska Bar Association. The report shall also be kept available to the public.
(b) Executive Director. The commission will appoint an executive director to serve at its pleasure. While serving, the executive director may not be employed by the court system and may not be a judicial officer.
(c) Agents or Employees of Commission. The commission will employ individuals as appropriate to carry out its duties. Employees may include attorneys, accountants, paralegals, secretaries, and investigators. [Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 3. FINANCIAL ARRANGEMENTS FOR COMMISSION.
(a) Compensation Proscribed. The commission members serve without compensation for their services.
(b) Expenses Allowed. Commissioners are reimbursed for expenses necessarily incurred in the performance of their duties as established by state law.
(c) Authorization for Payments. The commission will authorize payment for expenses that are within the commission’s budget and comply with travel policies and procurement guidelines. Either the executive director or the chair may authorize payments of approved expenses.
(d) Extraordinary Expenses. If there is an unanticipated funding shortfall, the commission will not curtail the discharge of its constitutionally mandated operations, but will authorize the executive director to seek a supplemental appropriation. [Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 4. DUTIES OF EXECUTIVE DIRECTOR.
(a) Listed Duties. The commission will prescribe the duties of the executive director, which include:
(1) considering information regarding judicial misconduct from all sources and receiving allegations and complaints;
(2) making preliminary evaluations;
(3) screening complaints;
(4) conducting and supervising investigations;
(5) maintaining and preserving the commission's records, including all complaints, files, and written dispositions;
(6) maintaining statistics concerning the operation of the commission and making them available to the commission, the court, and the public;
(7) preparing the commission's budget for its approval and administering its funds;
(8) employing and supervising other members of the commission's staff;
(9) preparing an annual report of the commission's activities;
(10) employing, with the approval of the commission, office assistants, special counsel, private investigators, or other experts, as necessary to investigate and process matters before the commission and before the court;
(11) issuing subpoenas as directed by the commission;
(12) attending all meetings and hearings of the commission, except for commission deliberations; and
(13) providing and publishing notice as required by these rules.
(b) Other Duties. The executive director may perform other law-related duties, such as the following:
(1) interpreting statutes and case law and providing legal opinions to the commission related to its duties;
(2) preparing and filing court documents, as needed, on behalf of the commission;
(3) negotiating appropriate discipline and fact stipulations subject to final approval of and direction by the commission. [Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 5. CONFIDENTIALITY.
(a) Confidentiality. All investigative records, files, and reports of the commission are confidential and no disclosure may be made except as permitted by AS 22.30.060. All confidential documents acquired in the course of a commission investigation shall be accorded the same confidentiality as commission-generated documents.
(b) Disclosure – Generally. To preserve public confidence in the administration of justice, the commission will, in its discretion, issue statements clarifying procedural aspects or explaining the right of a judge to a fair hearing when the subject matter of a complaint is generally known to the public. Unless otherwise provided by these rules, a person filing an accusation may have access only to those materials that the person has provided to the commission.
(c) Disclosure – Dismissal. When an accusation against a judge has been considered by the commission and it has been determined that there is no basis for filing a charge or for further proceedings, the commission will, in its discretion and at the judge’s request or approval, issue an explanatory statement.
(d) Disclosure – Determination. Upon completion of an investigation or proceeding, the commission will disclose to the complainant that the commission
(1) has found no basis for action against the judge;
(2) has taken an appropriate corrective action, the nature of which, under AS 22.30.011(b), cannot be disclosed; or
(3) has filed a formal charge against the judge. [Adopted November 1, 1991; amended December 1, 2000 .]
(e) Waivers. A judge may partially waive confidentiality by signing a Commission Waiver of Confidentiality for future employment or retention purposes. This partial waiver will permit the Commission to provide factual summaries of all instances where the Commission has taken disciplinary action under Rule 11 (b)(2)-(4) of these rules, including Informal and Private Admonishment and Recommendations for counseling in all its forms. “Future employment or retention purposes” include applications for other judgeships, other government employment or public office, private employment and seeking retention in current judicial office. (adopted June 29, 2009)
Commission Waiver of Confidentiality
Pursuant to Commission Rule 5(e), I waive my rights to confidentiality concerning any actions taken by the Commission under Rule 11(b)(2)-(4). I am seeking a position of (or seeking to retain my judicial position as) ___________, and authorize Commission staff to provide a factual summary of any and all actions taken by the Commission to ______________, for purposes of determining my qualifications for the position. No other use is authorized by this waiver; however, I recognize that once released, further dissemination of this information may not necessarily be restricted by law.
Judge: ___________________________ print name
RULE 6. PUBLIC INFORMATION.
(a) Public Statements – General. The commission will, in its discretion, issue press releases and other public statements explaining the nature of its jurisdiction, procedures for institution of accusations, limitations upon its powers and authority, and reports on the activities of the commission. The releases and reports may not identify the judge or other person involved in any inquiry before the commission unless disclosure is otherwise provided for in AS 22.30.060.
(b) Formal Proceedings. After a formal charge is filed, only the formal charge, the answer, the formal evidentiary hearing, and the final recommendation by the commission, including any minority report, are public. Unless otherwise ordered, all discovery items introduced into evidence at the public formal hearing become public documents when introduced. All other discovery items remain confidential. Dispositive motions and related resulting orders become public documents when decided.
(c) Formal Ethics Opinions. In its discretion, the commission will issue public formal ethics opinions resulting from actual complaints. Formal ethics opinions are not to be confused with formal advisory opinions issued under Rule 19 of these rules. The purpose of issuing a formal ethics opinion is to guide judges and to inform the public. These opinions may not identify the judge or otherwise violate the commission's obligation to maintain the confidentiality of its proceedings. A formal ethics opinion may not be issued until the disciplinary process involving the underlying facts has been concluded and all related appellate proceedings have been adjudicated.
(d) Inquiries by the Press. Inquiries by the press concerning commission activities may be responded to only by the executive director, unless otherwise directed by the commission.
(e) Comments by Commission Members. Commission members should refrain from publicly commenting on the judicial qualifications of any sitting or pro tem judge. [Adopted November 1, 1991 ; amended March 1, 1996 ; December 1, 2000 .]
RULE 7. INITIATION AND SCREENING OF COMPLAINT.
(a) Filing of complaint. A written complaint about the conduct or physical or mental disability of a judge may be filed upon any reasonable basis. A complaint may be filed by any individual, including a commission member, or by the commission itself. If a commission member files a complaint as an individual and not under (c) of this rule, that member may not participate in the matter.
(b) Screening of complaint. Each written complaint shall be screened in accordance with the following procedures:
(1) The executive director shall review a written complaint and determine whether the information or statement is within the jurisdiction of the commission and is not frivolous.
(2) If the executive director determines that the matter is not within the jurisdiction of the commission or not supported by facts, the executive director shall, after providing notice to the complainant and an opportunity to amend the complaint, recommend dismissal. A judge will not be notified of a dismissal under this paragraph .
(3) If the executive director determines that the matter is not frivolous, the executive director shall make a preliminary investigation to determine what further action should be taken, if any. After the preliminary staff investigation, the commission will either dismiss the complaint or direct further investigation. If the commission directs further investigation, the executive director shall notify the judge of the investigation, as set out in Rule 8 of these rules.
(c) Commission-initiated complaint. When a commission member or staff person becomes aware of information concerning possible judicial misconduct, he or she may inform the executive director. The executive director shall preliminarily investigate the information, and, if supported, present the information to the commission with a recommendation as to whether the matter should be designated a commission-initiated complaint. Once a matter is designated a commission-initiated complaint it will be treated in the same manner as a complaint filed by an individual under (a) of this rule. [Formerly (before December 1, 2000 ) Rule 8. Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 8. NOTICE.
(a) Notice of Investigation. If, after conducting an initial investigation, the executive director anticipates recommending to the commission at its next meeting an outcome other than dismissal and the chair agrees that notice at this time is appropriate, or if the commission does not dismiss the matter at a meeting, the executive director shall send a written notice of investigation to the judge. The notice of investigation must identify the complainant, if the complainant has authorized use of his or her name, and must convey the basic substance of the investigation and the date of the next commission meeting when the investigation will be reviewed. In addition, the written notice must convey the possible outcomes: dismissal, informal and private admonishment, recommendation for counseling, or proceeding to a probable cause determination. The executive director may issue supplemental notices as appropriate. [Revised June 30, 2003]
(b) Notice of Probable Cause Determination. After an investigation, if the commission has decided that a probable cause determination is necessary, the executive director shall send a written notice of probable cause determination to the judge. The notice must include the date of the determination meeting and a citation of Rule 12 of these rules, pre-hearing discovery. In addition, the written notice must state the possible outcomes as listed in (a) of this rule.
(c) Notice After Formal Charge. The executive director shall provide appropriate notice of commission action taken under Rules 14 – 18 of these rules.
(d) Notice of Recommended Dismissal and of Dismissal. The executive director shall inform the complainant in writing of the executive director’s recommendation of dismissal and that the dismissal will be reviewed by the commission at its next meeting. If the judge has been given prior commission notice, the executive director shall also inform the judge in writing of the recommended dismissal. After the commission’s dismissal of a complaint, at whatever stage of proceedings, the executive director shall so inform the complainant and, if the judge has been given prior commission notice, the judge.
(e) Method of Service. Unless otherwise specified, notice to the judge, when required by these rules, shall be given by personal service, or by prepaid certified or registered mail that is addressed to the judge. [Formerly (before December 1, 2000 ) Rule 7. Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 9. FORMAL INVESTIGATION. [Repealed December 1, 2000.]
RULE 10. SUBPOENAS.
(a) When Issued. The commission will, in its discretion, compel by subpoena the attendance and testimony of witnesses, including the judge, and the production of papers, books, accounts, documents, and testimony relevant to the investigation or proceeding. Service may be by commission staff or official process server.
(b) Request for Commission Subpoena. A request for a commission subpoena, under AS 22.30.066, shall be made to the executive director and must include
(1) the name of the person or document to be subpoenaed;
(2) the purpose and relevance of the testimony or document; an
(3) a statement whether the person or document would be available without a subpoena.
(c) Non-compliance With Commission Subpoena. If a person does not attend, testify, or produce a document required by a commission subpoena, the commission will, in its discretion, petition the superior court for an order compelling the person to comply with the subpoena. A claim of privilege must be asserted formally before the commission no later than the date of compliance stated in the subpoena. Privileges are those recognized in Article V of the Alaska Rules of Evidence and claims of privilege will be decided by the commission. [Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 11. INVESTIGATION RESULTS; COMMISSION ACTION.
(a) Initial Commission Determination. The commission will promptly consider the results of an investigation at a regularly scheduled meeting of the commission or a special meeting called for consideration of the matter. In extraordinary situations, as determined by the commission, the commission will designate a master to make findings of fact related to a charge. At the meeting, neither the judge, the judge’s attorney, nor witnesses may appear unless requested by the commission. The commission will consider any brief written statement provided by the judge.
(b) Disposition. The commission will proceed in one of the following ways:
(1) Dismissal. If the commission does not find that misconduct has occurred, the commission will instruct the executive director to send notice of dismissal under Rules 5(d) and 8(d) of these rules.
(2) Informal and Private Admonishment by the Commission. If the commission finds that there has been misconduct for which informal and private admonishment is appropriate, the commission will, in its discretion, issue a written private admonishment to the judge. The admonishment will include findings of fact and conclusions of law. A private admonishment becomes a final disposition 16 days after service on the judge unless the judge requests reconsideration under (c) of this rule.
(3) Recommendation for counseling. If the commission finds that there has been misconduct for which counseling is appropriate, the commission will, in its discretion, recommend counseling. For purposes of this paragraph, “counseling” means personal or professional counseling, further training, and other remedial measures; it can take the form of a cautionary letter. The commission will, in its discretion, also enter into an agreement with the judge, set out in a memorandum, concerning the judge’s future conduct or submission to counseling. The executive director shall notify the complainant, under Rules 5(d) and 8(d) of these rules, that the matter has been resolved by recommended counseling. The commission will monitor any prescribed counseling.
(4) Probable Cause Determination. If the matter has not been resolved under (b)(1), (2), or (3) of this rule, the commission will determine probable cause at a definite time and place with reasonable notice to the judge. The commission chair, or a member of the commission designated by the chair, shall preside. At the meeting, neither the judge, the judge’s attorney, nor witnesses may appear unless requested by the commission. The commission will consider written or taped witness statements, staff investigative reports, and any written information provided by the judge. The commission will make one of the following findings:
(A) Lack of Probable Cause. If the commission fails to find probable cause that there has been misconduct that warrants action more serious than informal and private admonishment or counseling, it will dispose of the matter under (b)(1), (2), or (3) of this rule.
(B) Probable Cause. If the commission finds that there is probable cause to believe that there has been misconduct that warrants action more serious than an informal and private admonishment or counseling, the chair or executive director shall serve the judge with a statement of formal charge and all documents upon which the finding was based. Service upon the judge constitutes notice that a response must be filed within 20 days.
(c) Reconsideration. Within 15 days after service of an informal and private admonishment under (b)(2) of this rule, the judge may request reconsideration, by filing a written motion with the commission. Upon receipt of the motion, the commission will dismiss the complaint, deny the motion for reconsideration, make further investigation, or institute a formal charge under (b)(4)(B) of this rule and Rule 14 of these rules. Reconsideration is not available for recommendations of counseling under (b)(3) of this rule or determinations of probable cause under (b)(4)(B) of this rule. [Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 12. PRE-HEARING DISCOVERY.
(a) General Scope. To expedite the hearing and maintain fairness, discovery will be as full and free as possible. The judge and special counsel are entitled to discovery in accordance with the Alaska Rules of Civil Procedure, including the limitations set out in those rules, except as noted in this rule. Exceptions to discovery are: (1) commission deliberations, and (2) confidential staff memoranda and other communications that do not relate to the charge. In addition, the executive director may not be compelled to testify as to conversations with the chair or other individual commission members concerning nondispositive motions. The judge shall bear the costs of duplication and transcription of all discovery items that require extraordinary staff resources.
(b) Discovery Before Formal Charge. Before a formal charge is issued, the commission will provide witness names, factual allegations, and a statement of legal issues to the judge at the conclusion of the investigation if the information does not warrant dismissal. Additional discovery will be, in the commission’s discretion, as implemented by the chair under Rule 14(d) of these rules, allowed before the probable cause proceeding.
(c) Discovery After Formal Charge. After a formal charge is issued, the chair shall handle discovery requests. All discovery tools are available after a formal charge is issued. With the approval of the commission, the commission chair or the chair's designee (including a special master) may preside over depositions. [Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 13. SPECIAL COUNSEL.
(a) Appointment. The commission will appoint a special counsel when a formal charge is issued or earlier when the commission determines that the appointment is necessary to preserve its adjudicative independence. The special counsel serves at the pleasure of the commission.
(b) Role and Duties. The special counsel is hired by the commission to formally prepare and present the case against the judge. The special counsel represents the public interest and may not represent any individual commission member or staff person but may represent the commission, as an entity, in related proceedings.
(c) Powers. The special counsel may request commission subpoenas, conduct discovery, and file motions. The special counsel may not dismiss or amend a charge, delay proceedings, or take other dispositive action. The special counsel may incur only those expenses authorized by the commission. [Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 14. FORMAL DISCIPLINARY HEARING.
(a) Pre-hearing Conference. Upon receipt of the judge's response to the complaint, the commission will set a pre-hearing conference to be held not later than the next regularly scheduled commission meeting. The commission chair or the chair’s designee shall preside at the pre-hearing conference. At the conference, a discovery and briefing schedule will be established and the hearing date set. The discovery and briefing schedule will include
(1) a preliminary witness list;
(2) a preliminary exhibit list
(3) a schedule for substantive motions.
(b) Discovery. Discovery for a formal hearing is governed by Rule 12(c) of these rules.
(c) Master. The formal hearing will be conducted before either the commission or a master designated by the commission. A master will be used only in compelling and extraordinary situations, as determined by the commission. When the hearing is before the full commission, either the chair or another member appointed by the chair will preside. A member of the commission may not serve as master. The master will have the same procedural authority as the commission chair when conducting the hearing.
(d) Role of the Chair. The chair is the presiding officer both at the hearing and during pre-hearing and post-hearing motions. The chair has the authority to decide all nondispositive motions on behalf of the full commission.
(e) Conduct of Hearing. The following rules apply to the conduct of hearings:
(1) At the time and place set for the hearing, the full commission will, or master shall, proceed with the hearing whether or not the judge has filed an answer or personally appears at the hearing.
(2) A hearing may rely in whole or in part on a statement of facts agreed to by both parties and placed in the public record.
(3) The proceedings at the hearing will be reported by electronic recording device in the same manner as proceedings are reported in a state court. The judge may, at the judge's expense, provide a court reporter of the judge's choosing.
(4) Commission members may question witnesses and hold brief conferences during the course of the hearing, to facilitate their fact-finding function.
(f) Evidence. The rules of evidence apply and all testimony will be under oath. The chair, presiding member, or master will administer the oath, rule on the admissibility of evidence, and otherwise direct the manner and order of proceedings in the same manner as a judge of a state court. The standard of proof is clear and convincing evidence.
(g) Amendment of Complaint. By leave of the commission, a formal charge may be amended after the hearing begins, to conform to proof or to present additional facts, if the judge and the judge’s counsel are given adequate time to prepare a response.
(h) Determination. Upon determination of a matter, the following rules apply:
(1) When the factfinder is a master, that master shall, within 60 days after the hearing, submit findings and recommendations, together with the record and transcript of proceedings, to the commission for review, and contemporaneously serve them upon the judge. The commission will pay all costs associated with the master's findings and recommendations.
(2) The judge, and commission counsel, may submit written objections to the findings and recommendations of the master within 15 days after receipt.
(3) The findings, conclusions, and accompanying materials, together with the objections, if any, will be promptly reviewed by the commission not later than its next regularly scheduled meeting. The commission may make independent findings of fact from the record. If the entire commission served as factfinder, the chair will draft findings and recommendations as directed by the commission.
(4) If no statement of objection is filed within the time provided, the commission will, in its discretion, adopt, in whole or in part, the findings of the master without a hearing. If a statement of objection proposes to modify or reject the findings of the master, the commission will give the judge and special counsel an opportunity to be heard orally before the commission not later than its next regularly scheduled meeting. The executive director shall serve written notice of the time and place of the hearing on the judge at least 10 days before the hearing.
(i) Extension of Time. The chair of the commission or the master may grant reasonable time extensions for good cause shown.
(j) Hearing Additional Evidence. The commission will, in its discretion, order the taking of additional evidence at any time while the matter is pending before it. The order will set the time and place of the hearing and indicate the matters on which the evidence is to be taken. The executive director shall serve a copy of the order on the judge at least 10 days before the date of the hearing. The hearing of additional evidence may be before the master or the commission, at the commission's discretion.
(k) Role of Executive Director After Formal Charge. After a formal charge is issued, the executive director may serve as a liaison between the commission and all counsel of record, and may provide research and administrative assistance as requested by the commission. [Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 15. COMMISSION DECISION.
(a) Decision. A formal decision consists of the commission determination of dismissal or recommendation for discipline. The recommendation for discipline may include any one or more of the sanctions provided for in AS 22.30.011(d). Formal decisions are public documents.
(b) Minority Report and Distribution. If a member of the commission dissents from the decision of the majority of the commission, the dissenting member may submit a minority report, which must accompany the majority report. The minority report may be submitted to the chief justice of the supreme court, the attorney general, and the chairs of the senate and house judiciary committees, as provided in AS 22.30.068.
(c) Voting. Only a member who participated in the matter, and who is present at the meeting or teleconference at which commission action is taken on the matter, may vote on the matter. Before the final decision is issued, votes may be changed only during a meeting or teleconference with all members who participated in the matter being present.
(d) Execution. The determination and recommendation of the commission will be signed by the chair, or the chair's designee, and may be signed by other members, either concurring or dissenting in the determination or recommendation.
(e) Witness Fees. All witnesses will receive fees and expenses in the statutorily allowable amount. Expenses of witnesses will be paid by the party calling them, unless the physical or mental disability of the judge is in issue, when the commission will reimburse the judge for the reasonable expenses of witness testimony related to the disability. [Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 16. SUPREME COURT REVIEW.
The commission recommendation for discipline under Rule 15 of these rules will be filed in accordance with Appellate Rule 406 of the Alaska Rules of Court. [Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 17. CASES INVOLVING MENTAL OR PHYSICAL DISABILITY.
(a) Procedure. When considering an allegation of mental or physical disability, the commission will, except as provided in this rule, follow procedures established by Rules 1 – 16, 18, and 20 of these rules.
(b) Special Provisions. The following additional provisions apply in disability cases:
(1) If the commission finds probable cause to believe that a judge suffers from a mental or physical disability and the judge is not represented by counsel, the commission will, in its discretion, appoint an attorney to represent the judge at commission expense.
(2) If a judge is charged with a disability or raises a disability as an affirmative defense to misconduct, the commission will, in its discretion, under AS 22.30.066(b), request the judge to submit to a physical or mental examination by an independent medical expert. The medical expert shall report the results of the examination to both the commission and the judge. If the judge refuses to submit to the examination, the commission will decide the issue requiring the examination adversely to the judge.
(3) The commission will bear the costs of disability proceedings. [Adopted November 1, 1991 ; amended December 1, 2000 .]
RULE 18. COMMISSION MEMBER DISQUALIFICATION; PROCEEDING AGAINST COMMISSION MEMBER.
(a) Conflict of Interest. A commission member may not participate in the consideration of a complaint against a judge if
(1) the member is the subject of the complaint;
(2) the member is a material witness to the alleged misconduct;
(3) the member is related to the judge or the complainant within the third degree of consanguinity;
(4) the judge has retained the member as the judge's attorney or the member provided legal representation or counseling in any matter within two years before the filing of the complaint with the commission; or
(5) the member believes that, for any reason, that member cannot give a fair and impartial decision.
(b) Disclosure. Each commission member shall disclose all facts that may lead to an inference of bias relating to a matter before the commission. After disclosure, the commission will determine whether the facts warrant disqualification. Commission members may also recuse themselves with a statement on the record as to the basis of the recusal.
(c) Motion for Disqualification. The judge or special counsel may request the disqualification of a commission member by filing a motion. The motion must be accompanied by an affidavit that states with particularity the grounds upon which it is claimed that the member should be disqualified. A motion for disqualification will be decided by that member. If the motion is denied by that member, the motion will be decided by the commission chair or, if the motion concerns the chair, by the longest-serving commission member.
(d) Proceeding Against Commission Members. A proceeding against a member of the commission will be conducted in the same manner as a proceeding against any other judge.
(e) Prohibition Against Representing Judge Before the Commission. No commission member may provide legal representation or counseling to a judge in a matter before the commission during the member's term on the commission or within two years after the member's term has expired. [Adopted November 1, 1991 ; amended May 23, 1994 ; December 1, 2000 .]
RULE 19. COMMISSION-ISSUED ADVISORY OPINIONS.
(a) Issuance of Formal Advisory Opinions. On written request of a state judicial officer subject to the Code of Judicial Conduct, the commission will, in its discretion, issue a written formal advisory opinion concerning the application of the code to a specific fact situation involving that judicial officer. The request for an opinion should specify all facts relevant to the ethical situation. Both the request for an opinion and the opinion itself are confidential unless the requesting judge asks that it be public.
(b) Advisory Opinion Drafting. Written formal advisory opinions will be drafted by a committee of the commission, appointed by the chair for the purpose of drafting the opinion, with staff assistance. The drafting committee will be composed of not less than one public member, one attorney member, and one judge member of the commission. The full commission will vote on adoption of the draft opinion.
(c) Use of Formal Advisory Opinions. Reliance on the formal advisory opinion by the requesting judge is an absolute defense to subsequent disciplinary proceedings by the commission concerning the identical facts addressed by the opinion. If there are distinguishing facts, reliance on the formal advisory opinion will be viewed as merely a good faith defense.
(d) Informal Verbal Advisory Opinions. Informal verbal guidance concerning judicial ethics issues is available from commission members and staff. Informal verbal advisory opinions have no legal effect and, if in error, provide no recognized defense to a later disciplinary charge. [Adopted March 1, 1996 ; amended December 1, 2000 .]
RULE 20. SETTLEMENT PROCEDURES.
(a) Settlement After Investigation. After an investigation, the executive director may initiate settlement discussions with the judge that may result in one of the following: an informal and private admonishment, or a recommendation for counseling. The executive director shall present any agreed disposition to the commission for approval or rejection. If rejected, the commission will, in its discretion, give reasons for the rejection but will not comment on the strength or weakness of the factual investigation. If the settlement is approved, the executive director shall prepare a written statement of facts and a decision in support of the agreed action. The statement of facts and decision may be revised by the commission but, once adopted, will either constitute the private admonishment or state the need for counseling.
(b) Settlement After Probable Cause Finding. After the commission has found probable cause and has issued a formal charge, the commission will hold a formal hearing on the allegation, as required by AS 22.30.011(b) and as provided in Rule 14 of these rules. A settlement after the commission has found probable cause must include a public hearing during which any stipulation between the parties, and the disposition of each charge, are publicly presented and made a part of the public record. If the commission does not dismiss the charges against the judge, a settlement after the hearing must be in the form of a recommendation to the Supreme Court, and does not take effect until approved by the court. [Adopted December 1, 2000 .]
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