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Canon 2. A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities.
A. In all activities, a judge shall exhibit respect for the rule of law, comply with the law,* 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.
Commentary. - Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, and other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.
See also Commentary to Section 2C.
B. A judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not use or lend the prestige of judicial office to advance the private interests of the judge or others. A judge shall not knowingly* convey or permit others to convey the impression that anyone is in a special position to influence the judge. A judge shall not testify voluntarily as a character witness, except that a judge may testify as a character witness in a criminal proceeding if the judge or a member of the judge's family* is a victim of the offense or if the defendant is a member of the judge's family.
Commentary. - Maintaining the prestige of judicial office is essential to a system of government in which the judiciary functions independently of the executive and legislative branches. Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions. Judges should distinguish between proper and improper use of the prestige of office in aft of their activities. For example, it would be improper for a judge to allude to his or her judgeship to gain a personal advantage such as differential treatment when stopped by a police officer for a traffic offense. Similarly, judicial letterhead must not be used for conducting a judge's personal business.
A judge must avoid lending the prestige of judicial office for advancement of the private interests of others. For example, a judge must not use the judge's judicial position to gain advantage in a civil suit involving a member of the judge's family. In contracts for publication of a judge's writings, a judge should retain control over the advertising to avoid exploitation of the judge's office. As to the acceptance of awards, see Section 4D(5)(a) and Commentary.
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 may also initiate the communication of information for the record if the judge or a member of the judge's family was a victim of the offense or the defendant is a member of the judge's family.
Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration, and by responding to official inquiries concerning a person being considered for a judgeship. See also Canon 5 regarding use of a judge's name in political activities.
A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned and in the special circumstances described in the last sentence of this Section.
C. A judge shall not hold membership in any organization that the judge knows* practices invidious discrimination on the basis of race, sex, religion or national origin, nor shall a judge regularly use the facilities of such an organization. A judge shall not arrange to use the facilities of an organization that the judge knows* practices invidious discrimination on the basis of race, sex, religion, or national origin unless there are no alternative facilities in the community and use of the facilities would not give rise to an appearance of endorsing the discriminatory practices of the organization.
Commentary. - This Section prohibits a judge from holding membership in any organization that the judge knows engages in invidious discrimination on the basis of race, sex, religion or national origin. The membership of a judge in an organization that practices such discrimination gives rise to perceptions among the public that a judge is insensitive to minorities, women, and others protected against discrimination.
The common judicial definition of invidious discrimination "is a classification which is arbitrary, irrational and not reasonably related to a legitimate purpose." McLaughlin v. Florida; 379 U.S. 1984 (1964). Whether an organization practices invidious discrimination is often a complex question which requires careful consideration by the judge. The answer cannot be determined from a mere examination of an organization's current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex or national origin persons who would otherwise be admitted to membership. See New York State Club Ass'n v. City of New York, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984).
Judges in Alaska must be particularly sensitive to this inquiry. Alaska's Human Rights Act has been narrowly construed as it applies to membership discrimination. Compare United States Jaycees v. Richardette, 666 P. 2d 1008 (Alaska 1983) with Roberts v. Jaycees, 468 U.S. 609 (1984). Consequently, discriminatory practices which would not be illegal in Alaska may nevertheless be arbitrary, irrational, and unrelated to a legitimate organizational purpose, and thus covered by the prohibition in Section 2C. Nonetheless, some discrimination is viewed as innocuous when measured by contemporary standards and therefore not invidious.
Section 2C prohibits regular use by a judge of the facilities of an organization which invidiously discriminates. It does not prohibit incidental use of such facilities, for example, attending a wedding reception in such a facility.
When a person who is a judge on the date this Code becomes effective learns that an organization to which the judge belongs engages in invidious discrimination that would preclude membership under Section 2C, the judge is permitted, in lieu of resigning, to make immediate efforts to have the organization discontinue its invidiously discriminatory practices, but is required to suspend participation in any other activities of the organization. If the organization fails to discontinue its invidiously discriminatory practices as promptly as possible (and in all events within a year of the judge's first learning of the practices), the judge is required to resign immediately from the organization.
Nothing in Section 2C should be interpreted to diminish a judge's right to the free exercise of religion.
(Adopted by SCO 1322 effective July 15, 1998)
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Copyright 1995-1999 by Touch N' Go Systems, Inc. All rights reserved. No copyright claim is made to the text of the rules.
Last Modified 7/14/1999