Alaska Jud. Cond. 3
Commentary. -- See Feichtinger v. State, 779 P. 2d 344, 348 (Alaska App. 1989) ("Judges will frequently be assigned cases involving unpleasant issues and difficult problems. Often litigants and their attorneys will be particularly vexatious. In many cases, publicity adverse to the judge is virtually certain no matter what decision he or she reaches. In such cases, judges insufficiently attuned to their responsibilities might readily welcome a baseless request for recusal as an escape from a difficult case. To surrender to such a temptation would justly expose the judiciary to public contempt based on legitimate public concern about judicial integrity and courage. While we agree that judges must avoid the appearance of bias, it is equally important to avoid the appearance of shirking responsibility.")
Commentary. -- Section 3B(3) addresses a judge's responsibility to preserve order and decorum in court proceedings. "Order" refers to the level of regularity and civility required to guarantee that the business of the court will be accomplished in conformity with the rules governing the proceeding. "Decorum" refers to the atmosphere of attentiveness and earnest endeavor which communicates, both to the participants and to the public, that the matter before the court is receiving serious and fair consideration.
Clearly, individual judges have differing ideas and standards concerning the appropriateness of particular behavior, language, and dress for the attorneys and litigants appearing before them. What one judge may perceive to be an obvious departure from propriety, another judge may deem a harmless eccentricity or no departure at all. Also, some proceedings call for more formality than others. Thus, at any given time, courtrooms around the state will inevitably manifest a broad range of "order" and "decorum."
Section 3B(3) is not intended to establish a uniform standard of what constitutes "order" and "decorum." Rather, the Section requires a judge to take reasonable steps to achieve and maintain the level of order and decorum necessary to accomplish the business of the court in a manner that is both regular and fair, while at the same time giving attorneys, litigants, and onlookers assurance of that regularity and fairness.
Commentary. -- The duty to hear all proceedings with patience, dignity, and courtesy is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.
Commentary. -- A judge must refrain from speech, gestures, or other conduct that manifests bias or prejudice, including sexual harassment, and must require the same standard of conduct from others subject to the judge's direction and control.
A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as an expression of prejudice.
Commentary. -- This Section is intended to prohibit not only express judicial support for the bias or prejudice but also speech, gestures, or inaction that could reasonably be interpreted as implicit approval of the expressed bias or prejudice. A judge may not ignore or overlook expressions of bias or prejudice in any judicial proceeding, even informal proceedings such as scheduling or settlement conferences. Appropriate action will depend on the circumstances. In some instances, a polite correction might be sufficient. However, deliberate or particularly offensive conduct will require more significant action, such as a specific direction from the judge, a private admonition, an admonition on the record, or, if the attorney repeats the misconduct after being warned, contempt.
Commentary. -- The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted.
Whenever presence of a party or notice to a party is required by Section 3B(7), it is the party's lawyer, or if the party is unrepresented the party, who is to be present or to whom notice is to be given.
A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.
If communication between the trial judge and the appellate court with respect to a proceeding is permitted, a copy of any written communication or the substance of any oral communication should be provided to all parties.
The first sentence of Section 3B(7) ("A judge shall accord to every person the right to be heard according to law.") is not intended to expand or alter the law of standing (a person's right to bring an action), nor is it intended to expand or alter the procedural rules governing the scope and manner of a person's right to be heard in a case.
Judges should endeavor to create some form of record of ex parte communications whenever possible, even when the communications are authorized under this Section.
Section 3B(7)(a) permits an ex parte communication when it is expressly authorized by law, including communications that may reveal privileged information. For example, a judge may engage in an ex parte communication when the judge must question a criminal defendant about the defendant's request for appointment of a different attorney, and the judge determines that privileged information will be revealed.
Under Section 3B(7)(b), a judge may engage in ex parte communications for "scheduling or other administrative purposes." For example, a judge may make or receive an ex parte communication when the sole purpose of the communication is to provide courtesy notification to the parties or to the court of a delay or change in scheduling. Another example of an ex parte communication contemplated by this Section is when a defense attorney notifies the judge that the defendant cannot be located, that the scheduled trial should be called off, and that the defense concedes that a bench warrant should be issued for the defendant's arrest.
Section 3B(7)(b) requires a judge to take reasonable steps to promptly notify all parties of any ex parte communication. The continuing development of communications technology will affect what steps are "reasonable." Telephone communication is now virtually ubiquitous and telefax communication is widespread. In the near future, it may be common to notify lawyers through computer mail or computer bulletin boards. A judge should consider these alternatives when deciding the most expeditious means of communication reasonably available to the court and the parties.
A judge's secretary or law clerk may also engage in ex parte communications to discuss scheduling or other administrative matters. Such communications are permitted as long as the requirements of Sections 3(B)(7)(b)(i) and (ii) are satisfied, that is, as long as the communications do not deal with the substance or merits of the litigation and no party gains an advantage as a result of the ex parte contact. When the communication is with a staff member rather than a judge, Section 3B(7)(b)(iii) does not apply. Thus, if an attorney asks about the status of a pending motion, the judge's secretary may provide this information without notifying the other parties of the communication or including them in a conference call.
Section 3B(7)(c) allows the various parties in multi-party litigation to designate a "lead" party for their side and have that party appear at pretrial hearings to deal with issues such as scheduling and discovery.
Section 3B(7)(d) assumes that the other judge or member of the judge's adjudicative staff is not disqualified from participating in the decision of the case. Thus, it would be improper for a judge to consult another judge who had been challenged either peremptorily or for cause, and it would likewise be improper for a judge to consult another judge, a law clerk, or anyone else who the judge knows has a disqualifying interest in the proceeding. Likewise, it would be improper for the judge to consult a member of an appellate court whose duty it would be to review the judge's decision.
The verb "consult" is intended to mean "engage in discussions regarding the substance or merits of the case." Just as a presiding judge may continue to perform purely administrative functions following his or her peremptory challenge -- see Criminal Rule 25(d)(3) -- a disqualified judge may engage in limited, purely administrative communication with the successor judge. Thus, when a new judge is assigned to a case following a judicial disqualification, the successor judge may speak to the disqualified judge about purely administrative matters (the dates already scheduled for court proceedings, the identities of the attorneys, etc.). However, the new judge may not speak to the disqualified judge about the merits of any pending issues, the merits of any previously decided issues, or the substance of any proceedings already held in the case. The new judge's information on these topics is to be gleaned from the court file or from the attorneys.
Section 3B(7)(d) is not intended to authorize a judge to engage in ex parte consultation with court staff such as custody investigators and court-employed juvenile intake officers, whose function is to provide evidence in the proceeding.
A judge may not ex parte seek advice on the law applicable to a proceeding from a disinterested expert.
Commentary. -- In disposing of matters promptly, efficiently, and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. Containing costs while preserving fundamental rights of parties also protects the interests of witnesses and the general public. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays and unnecessary costs. A judge should encourage and seek to facilitate settlement, but should not coerce parties into surrendering the right to have their controversy resolved by the courts.
Prompt disposition of the court's business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants and their lawyers cooperate with the judge to that end.
Commentary. -- The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition. This Section does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity, but in cases such as a writ of mandamus where the judge is a litigant in an official capacity, the judge must not comment publicly. The conduct of lawyers relating to trial publicity is governed by Rule 3.6 of the Alaska Rules of Professional Conduct.
Commentary. -- Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial in a subsequent case.
Commentary. -- The ABA's version of this Section prohibits a judge from disclosing or using nonpublic information acquired in a judicial capacity for any purpose unrelated to judicial duties. This rule does not adequately address the problem presented when a judge obtains confidential information that has relevance to the judge's personal life outside of the financial sphere. A judge hearing a confidential proceeding might obtain information about a doctor that has potentially crucial relevance to the judge's decision of which doctor to employ. A judge who hears a search warrant application might obtain information that would affect the judge's decision regarding what day-care center to use or what restaurant to patronize. Even though the judge reveals this information to no one, it would not strain the English language to say that a judge who makes decisions based on this information has "used" the nonpublic information for a purpose unrelated to the judge's official duties.
The Alaska version of the Section recognizes that a judge cannot reasonably be expected to disregard nonpublic information when it comes to the health or safety of the judge's immediate family. The first clause of the Alaska rule forbids "disclosure" of such information for any non-judicial purpose (thus allowing the judge to "use" the information for personal purposes so long as the judge does not violate the second clause).
The second clause forbids the "use" of nonpublic information for anyone's financial gain. A judge who wishes to misuse confidential information for financial gain will often not need to disclose the information to anyone else; indeed, the amount of the improper financial gain may be directly proportionate to the judge's success in concealing the information from all other persons.
Commentary. -- This Section does not prohibit a judge from exercising the judge's authority to independently call witnesses if the judge believes that these witnesses might shed light on the issues being litigated or to take judicial notice of certain facts. See Evidence Rules 614 & 201.
Commentary. -- See Terminology, "bias or prejudice." The definition of "bias or prejudice" found in the terminology Section was written in an exclusionary manner to allow judges, with regard to administrative matters, to countenance legitimate distinctions relevant to the policies or decisions involved.
To the extent judges have administrative authority over other judges, that authority should likewise be exercised in such a way as to provide the best use of judicial resources and the optimum development of all judicial officers. Just as the individual court must perform judicial administration without bias or prejudice, so too, judges with administrative authority over others must do the same with respect to the judicial officers subject to their orders.
Commentary. -- Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers and guardians and personnel such as clerks, secretaries and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Section 3C(4).
Commentary. -- Section 3D establishes a judge's duty to take action in response to the misconduct of another judge (Section 3D(1) ) or the misconduct of a lawyer (Section 3D(2) ). In many instances, Section 3D allows a judge a degree of discretion in determining how he or she should respond to misconduct; the Section specifies only that the judge shall take "appropriate action." Thus, a judge who learns that another judge has engaged in an improper but de minimis ex parte contact, or who learns that a judge has engaged in a fundraising activity for a charity, may believe that the only action needed is to point out to the other judge that his or her conduct violates the Code. Similarly, a judge who learns that another judge is suffering from alcohol or drug addiction might direct that other judge to counseling or might seek the help of the other judge's colleagues or friends or refer the matter to a judicial assistance committee. On the other hand, if the other judge refuses to admit the problem or submit to ameliorative measures, and if the other judge's intoxication is interfering with his or her judicial duties (so as to constitute a violation of Canon 1 and Section 3A ), then a judge who knows of this problem may be obliged to report it to the Commission on Judicial Conduct, unless that judge is a senior judge acting as a member of a judicial assistance committee.
Appropriate action will vary with particular situations and with particular individuals. There will generally be a range of reasonable responses available to the judge who learns of misconduct. However, a judge who learns of misconduct must respond reasonably. For example, the judge may not "respond" by explicitly or implicitly condoning the misconduct.
A judge's discretion to determine an appropriate response to misconduct is circumscribed in certain instances. Both Sections 3D(1) and 3D(2) grant no discretion -- they require the judge to report misconduct to the appropriate disciplinary authority -- if (a) the misconduct is serious and (b) the judge's awareness of the misconduct rises to the specified level of certainty.
With regard to this level of awareness, a judge must report judicial misconduct if he or she "knows" that another judge has engaged in serious misconduct, while a judge must report attorney misconduct if he or she has information "establishing a likelihood" that an attorney has engaged in serious misconduct. The term "knows" is defined in the Terminology Section. The term "likelihood" is used in the sense of "more probable than not," a preponderance of the evidence.
If the misconduct the judge learns of is not among the serious types of misconduct, or if the misconduct is serious but the judge's level of awareness of the misconduct does not rise to the specified degree of certainty, there is no absolute duty to report. However, the judge who is aware of a likelihood of misconduct will still be under the more general obligation to take appropriate action.
A judge is not required to report all conduct that indicates lack of fitness for judicial office, only conduct of the same seriousness as that described in Subsections 3D(1)(a)-(c).
Section 3D applies to magistrates. However, a magistrate may report serious misconduct to the presiding judge or chief justice instead of the Judicial Conduct Commission.
Commentary. -- Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared, unless the disqualification was waived by the parties after disclosure by the judge.
A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.
By decisional law, the rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In the latter case, the judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable.
Commentary. -- A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Section 3E(1)(b); a judge formerly employed by a government agency, however, should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association.
Commentary. -- The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge under Section 3E(1)(d). Under appropriate circumstances, the fact that "the judge's impartiality might reasonably be questioned" under Section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceeding" under Section 3E(1)(d)(iii) may require the judge's disqualification.
Cross Reference. -- Additional grounds for disqualification are set out in AS 22.20.020(a). This statute provides:
Most of the grounds for disqualification under AS 22.20.020(a) are also listed as grounds for disqualification under Section 3E(1) of the Code. But the statute requires a judge to disqualify himself or herself in four situations that are not expressly covered by Section 3E(1):
Under AS 22.20.020(a)(5), a judge must disqualify himself or herself if the judge served as an attorney for one of the parties within two years preceding assignment of the case to the judge. This disqualification does not apply if the party is the state or a municipality.
Under AS 22.20.020(a)(6), a judge must disqualify himself or herself if the judge was opposing counsel in a matter involving one of the parties within two years preceding assignment of the case to the judge. Again, this disqualification does not apply if the party is the state or a municipality.
Under AS 22.20.020(a)(7), a judge must disqualify himself or herself if an attorney in the case represented the judge, either in the judge's public or private capacity, within two years preceding the filing of the action. A judge must also disqualify himself or herself if an attorney in the case was opposing counsel in a matter involving the judge within two years preceding the filing of the action.
Under AS 22.20.020(a)(8), a judge must disqualify himself or herself if the judge's former law firm is representing one of the parties in the case or has represented one of the parties with respect to the matter, and the judge was associated with the law firm within the two years preceding the filing of the case.
The first two of these disqualifications would only be of concern to judges who have been on the bench less than two years.
Commentary. -- Many judges and their families either are or will be the beneficiaries of law firm annuities or pensions. Depending upon the type of pension or annuity arrangement, the law firm's success or failure in major litigation may affect the value or collectibility of pension or annuity benefits. When this economic interest is present, Sections E3(1)(c)(iii) or 3E(1)(d)(iii) may require a judge's disqualification from litigation involving the law firm, even though Sections 3E(1)(b), 3E(1)(c)(ii), and 3E(1)(d)(ii) would not otherwise require disqualification.
Commentary. -- A waiver procedure provides the parties an opportunity to proceed without delay if they wish to waive the disqualification. Under AS 22.20.020(b), the following disqualifications may not be waived:
The decision whether or not to waive a disqualification is not one that must be made by the client. An attorney may make the decision without consulting with the client if the client is not present or readily available, or if the attorney decides that consultation is unnecessary.
All aspects of the communications between the judge and the parties (but not the parties' discussions among themselves) must either be in writing and included in the case file or on the record in court.
Alaska Jud. Cond. 3