Supreme Court makes changes in judicial ethics rules | Arkansas Blog

Thursday, December 15, 2016

Supreme Court makes changes in judicial ethics rules

Posted By on Thu, Dec 15, 2016 at 11:09 AM

click to enlarge NEW ETHICS RULES: Issued today by Arkansas Supreme Court.
  • NEW ETHICS RULES: Issued today by Arkansas Supreme Court.
The Arkansas Supreme Court today issued an order responding to a petition by the Arkansas Bar Association that made recommendations, among others, for changes in the Code of Judicial Conduct that would explicitly allow judicial candidates to know who's made campaign contributions and to say that such contributions could be a factor to consider in whether a judge should recuse from a case.

The Court dismissed the petition as moot, pointing to a per curiam order adopted today that made changes to ethics rules. It said the changes were to address recent questions, clarify some areas and also to make clear that rules apply to people who've been elected, but not yet taken office. Among the changes were tweaks to  the rule on disqualifications, which says, "A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned." In a footnote, the court addressed the influence of campaign contributions:

The fact that a lawyer in a proceeding, or a litigant, contributed to the judge's campaign, or publicly supported the judge in his or her election does not of itself disqualify the judge. However, the size of contributions, the degree of involvement in the campaign, the timing of the campaign and the proceeding, the issues involved in the proceeding, and other factors known to the judge may raise questions as to the judge's impartiality
This has been an issue recently in the effort by lawyers for plaintiffs in a nursing home damage lawsuit to get Justice Rhonda Wood to step down from the case on account of the significant contributions she received from nursing home owner Michael Morton and her involvement in the tangle of controversial campaign contributions Morton made through PACs to her and other candidates, including the now-defrocked Michael Maggio. Maggio has pleaded guilty to taking a bribe in the form of campaign contributions to reduce a $5.2 million jury verdict against a Morton nursing home. Maggio is trying to withdraw the plea and no one else has been charged. Wood has refused to step down from the case, but the lawyers have asked the entire Supreme Court to consider the question.

The bar also proposed to allow judges to receive gifts only from relatives, not also "friends," except a gift "commensurate" with a special occasion, such as a wedding anniversary. It also proposed to beef up rules aimed at preventing coordination or support by independent and political organizations for judicial candidates. The full bar filing is here.

The court retained the ability to accept gifts from "friends," but indicated that they should be limited to cases where no appearance of favoritism attached and shouldn't be allowed by people with interest in the judge's court.

The new court rules bars a judicial candidate from seeking or using endorsements by political organizations or partisan elected officials. In her past races, Justice Wood used robocalls by Mike Huckabee, the former Republican governor, as testimonials.

The Bar Association also had urged Supreme Court support for a law change to require disclosure of the source of money spent in independent political campaigns for and against judicial candidates, the "dark money" that has become important in recent judicial races.In an unsigned order, the court said. The court order didn't address the practice. It did underscore a candidate's ability to respond to claims in such advertising though:

... a judge, judicial candidate, and judge-elect is permitted to respond directly to false, misleading, or unfair allegations made against him or her during a câmpaign, although it is preferable for someone else to respond if the allegations relate to a pending case.

The Bar's petition also supported appointment rather than election of Supreme Court members. It is pushing consideration of a proposed constitutional amendment on that question before the legislature. That issue wasn't addressed by the Court.

The Supreme Court today also issued per curiam orders commending two members who'll be departing the court at the end of the year — Chief Justice Howard Brill and Justice Paul Danielson.

Here's the order thanking Brill for his service, with the names of all other justices on the order. Here's the order thanking Danielson for 10 years of dedicated service, also carrying the names of the other six justices.

Brill completed the term of the late Chief Justice Jim Hannah. Danielson was forced to retire by the Arkansas law that takes retirement benefits from judges who take another term after they've turned 70.

No per curiam order was issued today taking note of the death this week of retired Associate Justice Donald J. Corbin. His retirement had been noted in a per curiam order two years ago. As I've noted before, the courtesy of such orders hasn't always been routine, particularly on the occasion of initial resistance by some court members to issuing a recognition of Hannah. Hannah and Danielson had upset some other members of the court by a public filing that suggested other members of the court had unethically manipulated the same-sex marriage case to delay a ruling.

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