The ABA Model Code of Judicial Conduct Receives an Update
by Tanya Noreen Lewis

The Commission, chaired by Phoenix attorney Mark I. Harrison of the law firm of Osborn Maledon, P.A., held public hearings across the country in 2004 and 2005. The purpose of the hearings was to elicit commentary from members of the bar and judiciary about the existing Code and to formulate ideas on changes, both procedural and substantive, to the Model Code. The Commission, comprised of prominent members of bar and judiciary from around the country, worked to create a code that would improve upon the 1990 code and be applicable to the issues and concerns of today’s judiciary, bar, and public. In fact, the Commission held nine public hearings, met in person 20 times, and held more than 30 teleconferences to accomplish its goals.

One of the goals of the Joint Commission was to clarify the Code and break it down into sections, much like the Model Code of Professional Responsibility. Additionally, new language was added to highlight that, at all times, judges should avoid both impropriety and the appearance of impropriety in their professional and personal lives and that they should aspire to conduct that ensures the greatest possible public confidence in their independence, integrity, impartiality, and competence.

Key points of the revisions
New terms were added to the Model Code to reflect society’s changing views on personal relationships. For example, the Model Code now includes the term "domestic partner," instead of "spouse. " The theory is that now commonplace "non-traditional" relationships that exist outside marriage are deserving of treatment equal to that afforded marital relationships in evaluating their potential conflict-of-interest implications under the Rules.

Furthermore, the Joint Commission’s changes to the comments clarified that undertaking activities that encourage public understanding of and confidence in the justice system is not a duty of judicial office per se, but such activities promote public confidence in the courts and to that extent facilitate the courts’ mission.

The Joint Commission also focused its efforts on defining bias and harassment, both terms that have taken on new significance since the last revision of the Model Code in 1990. Prior to 2007, the Model Code required judges to avoid bias and prejudice, but included nothing in the black letter about harassment, which it relegated to a discussion in the Commentary, limited to sexual harassment. The Commission agreed that harassment was a form of bias or prejudice that the Rules prohibited, but wanted to expand it beyond sexual harassment to reach other forms of harassment as well. Witnesses, however, argued that the proposed change could be construed to have an unintended consequence. By deleting the reference to "sexual" harassment per se, the change could be construed as deleting sexual harassment from the range of behaviors barred by the Rules, or at least diminishing its significance. The Commission remained of the view that harassment—including but not limited to sexual harassment—should be proscribed by the Rules. It was, however, persuaded that sexual harassment deserved special mention, given the significance of the problem.

Four new items were added to the list of factors upon which bias is prohibited: gender ("sex" is a term of art employed in sex discrimination statutes, but may not capture bias, prejudice, or harassment against trans-gendered individuals); ethnicity (which the Commission regarded as distinct from national origin; for example, in the case of an Arab-Canadian, discrimination on the basis of Arab ancestry would relate to ethnicity, while discrimination based on Canadian derivation would relate to national origin); marital status (the Commission was made aware of instances in which judges had berated a party for cohabiting or having a child outside of wedlock); and political affiliation (as, for example, when a judge displays animus toward plaintiffs affiliated with a particular political party).

The Joint Commission also added Rule 2.14, requiring that judges report situations involving the impairment or potential impairment of fellow members of the judiciary. This new rule governs a difficult and extremely important issue. Impairment can undermine judicial competence, diligence, and demeanor specifically, and public confidence in the courts generally. The Rule imposes a mandatory obligation to take appropriate action when a judge learns of a colleague’s impairment. The objective of this provision is to guide and encourage judges to address impairment problems when they arise.

The revised Model Code of Judicial Conduct was unanimously approved by the ABA House of Delegates on February 12, 2008.

Moving forward
Harrison states that it was a goal of the committee to prepare a Model Code that would be appropriate for adoption by each state to improve and clarify the standards for its judiciary. This fall, Harrison plans to meet with members of the Nevada Supreme Court to explain key provisions of the new code, and to assist them with their plans to evaluate the new Model Code and discuss its adoption in Nevada.

In his comment on the enactment of the new Model Code, Harrison wrote, "An independent, impartial judiciary is indispensable to our system of justice. Equally important is the confidence of the public in the independence, integrity and impartiality of our judiciary as an institution. In its work over the last three years, the Joint Commission took great care to adhere to those principles while at the same time providing sound, clear, and reasonable guidance to judges faced with uncertainty. The end result is a Code that should serve both judges and the public well for many years to come."

The author would like to thank Mark Harrison and Janette Bloom for their assistance in preparing this article. Additionally, substantive portions of the ABA Reporters’ Explanation of Changes were used in this article.

Judges chosen in the upcoming election have a bit more guidance available regarding judicial authority and conduct than those elected in previous years. That is because in the two years since the last election, the Nevada Supreme Court (the Court) has had the opportunity to address several legal issues relevant to the judiciary. Disciplinary proceedings provided the most fodder for new judge-related law, but the Court also addressed issues relating to the inherent powers of the judiciary, recusal, residency requirements for judicial candidates, and the constitutionality of the creation of new judicial positions.

Judicial discipline
The Court had to weigh in on a number of issues rising out of the Halverson situation. In the first of the three published opinions involving this judge, In Matter of Halverson, 123 Nev. 48, 169 P.3d 1161 (2007), the Court addressed the appropriate procedure and standard for the Nevada Commission on Judicial Discipline (NCJD) to follow when suspending a judge pending disciplinary proceedings. An interim suspension may be imposed at any stage of the proceedings. However, an interim suspension may be imposed only when the NCJD determines there is a "substantial threat of serious harm to the public or to the administration of justice." NRS 1.4675(3). In determining whether a current threat exists, the NCJD should consider the totality of the circumstances, based on the information available to it, and may consider a wide of array of past misconduct. However, unless the past misconduct shows a current threat of harm, it cannot justify an interim suspension. Furthermore, the Court cautioned the NCJD not to allow a suspension to be used as a permanent discipline.

The decision of In re Assad, __ Nev. __, 185 P.3d 1044 (2008) presented an evidentiary question. The Court clarified that the NCJD had the authority to determine the admissibility of evidence in its proceedings, including whether expert testimony on judicial ethics would be helpful. The Court clarified that its previous opinion in Matter of Mosley, 120 Nev. 908, 102 P.3d 555 (2004) had not intended to discourage admission of such expert testimony. If the Commission determines the evidence would be helpful to it in its fact-finding function, it may admit the testimony; otherwise, the Commission may reject any expert testimony that would not be helpful.

Inherent powers of the courts
A series of factually diverse cases presented the Court with issues relating to the judiciary’s inherent authority. In 2006, the Court acted to protect the inherent authority of the courts by severing from a ballot initiative provisions that infringed upon court administration. In Nevadans for the Protection of Property Rights, Inc. v. Heller, 122 Nev. 894, 141 P.3d 1235 (2006), the Court removed provisions that would have created special rules for eminent domain cases, including invalidating unpublished opinions on such issues, preventing senior or appointed judges from presiding over such cases, and granting property owners in eminent domain cases extra preemption rights. The Court held that these provisions were directed at the day-to-day operations of the courts, and therefore, matters delegated to the judicial branch of government.

In the second of the Halverson opinions, where the issues turned on the authority of a district court chief judge, the Court took the time to present an extensive explanation of the Nevada judiciary’s express and inherent powers. Halverson v. Hardcastle, 123 Nev. 29, __, 163 P.3d 428, 438 (2007). The Court noted that the judiciary’s administrative power is both express, stemming from the constitutional separation of powers doctrine, as well as implied from "the judiciary’s sheer existence."

The express authority comes from Article 6, § 19(1), which designates the Chief Justice of the Supreme Court as the "administrative head of the court system." Additionally, pursuant to the separation of powers doctrine, each branch of government has the authority to administer its own affairs and perform its own duties, without interference from the other branch.

The inherent authority arising from the "sheer existence" of the courts also relates to the courts’ ability to accomplish its basic functions, but is broader than the implied constitutional authority. Among the resulting powers of the courts are their ability to "protect the dignity and decency of its proceedings and to enforce its decrees" using contempt or sanctions proceedings; through contempt proceedings or sanctions; the "power to prevent injustice and to preserve the integrity of the judicial process" through disciplinary proceedings; and to provide for the security of the courtroom. 123 Nev. at __, 163 P.3d at 440.

However, the Court also noted that such inherent authority is not unlimited, as it must be exercised within the confines of existing law, and only when the administration of justice is in jeopardy. Additionally, the court’s authority to discipline judges can be constitutionally modified, as occurred in Nevada with the creation of the Nevada Commission of Judicial Discipline. Id. The latter creation eliminated the ability of the judiciary to remove a judge from office.

Pursuant to statutory authority, a chief judge in counties may assign cases, albeit, in random fashion, set court hours, and adopt any rules necessary for the proper conduct of court business. The chief judge is obliged to ensure that procedures are applied uniformly and that a case administration grievance system is in place. NRS 3.025. The chief judge’s authority, however, is subject to that of the Chief Justice, and is also tempered by the requirement the chief judge’s authority be exercised within the confines of established rules adopted by the court.

Applying these principles, the Court held that, in the Eighth Judicial District, the chief judge had the authority to create a committee to assist a judge who had shown difficulties in exercising her duties, provided the judicial independence of that judge was not threatened, and further, had the authority to limit a judge’s caseload to civil only. However, absent an immediate threat to the administration of justice, the chief judge did not have the authority to bar a sitting judge from the courthouse.

Two other cases required the Court to consider the judiciary’s inherent powers. In Caballero v. Seventh Judicial Dist. Court ex rel. County of White Pine, __Nev. __, 167 P.3d 415 (2007), the Court concluded that the inherent powers included the power to appoint an interpreter when administration of justice so requires, including in civil proceedings, and free of charge to indigent civil litigants. More recently, the Court had to determine whether senior judges could preside over capital cases. The Court found that nothing in its rules prevented a senior judge from presiding over a capital trial or penalty phase. Browning v. State, __ Nev. __, 188 P.3d 60 (2008). The Court did not discuss its inherent powers in this opinion; however, the opinion in Nevadans for the Protection of Property had established that a determination regarding the authority of senior judges to preside over cases lay within the Court’s rulemaking authority.

Recusal
The use of recusal lists by judges sparked the issuance of a writ of mandamus against a family court judge in Millen v. Eighth Judicial Dist., 122 Nev. 1245, 148 P.3d 694 (2006). Although the Court had previously disapproved of recusal lists, the Court acknowledged that such lists could aid in efficient case assignment, provided the lists are public and identify the Nevada Code of Judicial Conduct (NCJC) Canon 3E(1)(b)-(d) disqualifying relationship that excuses the judge’s duty to sit. The Court further held, however, that where such a relationship exists with a party’s chosen counsel, and such counsel was not chosen for the purpose of forcing recusal, the party’s right to counsel of choice prevails over the judge’s duty to sit.

Judicial elections
The residency requirement for a district court judge was clarified in Masto v. Montero, __ Nev. __, 188 P.3d 47 (2008). A candidate need not reside in the judicial district of the seat sought. Accordingly, a candidate who resided in Washoe County could stand for election for a district court judge seat in Humboldt County. The Court held that district court judges are state officers, and therefore, NRS 293.1755 required only that the two–year state residency requirement set forth in NRS 3.060 be satisfied.

Finally in what seems likely to be the final decision involving Judge Halverson, the Court rejected a claim that the Legislature had no constitutional authority to create judicial positions for which the initial term is shorter than six years. Halverson v. Secretary of State, __ Nev. __, 186 P.3d 893 (2008). The Court held that the constitution provides the Legislature with the authority to create such shortened judicial positions in order to place judicial positions on the same election cycle. The Court further rejected the right of a judge to accept a two–year term, but later claim entitlement to a six–year term.

Judicial duties
Judges have an affirmative obligation to ensure that all parties have an opportunity to review and comment upon proposed orders presented for the judge’s signature. The Court found that such an obligation arises pursuant to Nevada Code of Judicial Conduct (NCJC) Canon 3B(7), which requires the district court to "accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard."

Only time will tell what new issues regarding judicial elections, authority, and duties may come up in the coming years. But given that this is Nevada, no doubt we can always look forward to some interesting scenarios presenting such issues.