Don't shoot the Canons: maintaining the appearance of propriety standard.

• Author: McKeown, M. Margaret
• Position: Canons of Judicial ethics

Judges, especially appellate judges who usually bask in anonymity, are very much in the news these days. The topic du jour is recusal. No court or judge enjoys a safe harbor from publicity in this arena. Whether it is the United States Supreme Court, (1) the federal district bench, (2) a state supreme court, (3) or a county court, (4) public scrutiny is rigorous. In most cases, the issue is not an actual conflict of interest or a claim of actual bias, but rather the appearance of potential bias in hearing a case where a judge's impartiality is perceived to be in doubt. It is an examination of this circumstance, which is generally cast as "the appearance of impropriety," that prompts this essay. In my view, the appearance standard fosters public confidence in the judiciary and augments judicial independence.

1. EVOLUTION OF THE CANONS OF JUDICIAL ETHICS

   Although the notion of formal canons of ethics for judges in the United States is a phenomenon of the early twentieth century, the concept of impartiality derives from ancient law. Under the Roman Code of Justinian, a party who deemed the judge "under suspicion" was permitted "to recuse him before issue joined, so that the cause go to another." (5) The principle of invoking recusal for "suspicion" of bias was carried through in disqualification statutes in civil law countries. (6) In the common law system, however, the buck literally stopped where the judge had a direct financial interest, as that was the only basis for disqualification. (7) In the United States, since 1792 recusal has been required where judges have a financial interest in a case or where they previously served as an attorney. (8)

   The first formal judicial ethics code in the United States came about through an American Bar Association project: the Committee on Judicial Ethics, headed by Chief Justice Taft. The Canons were adopted in 1924, (9) ironically in response to the conflict presented by Judge Kenesaw Mountain Landis serving both as a federal judge and as the Commissioner of Baseball while attempting to clean up the Chicago Black Sox baseball betting scandal. (10) The original thirty-four canons were broad and wide ranging and included the principle that remains in the code today--a judge should avoid both impropriety and the appearance of impropriety. (11) With respect to disqualification, the standard was a subjective one--whether a judge should withdraw in a particular case was in the eyes of the beholder, the judge.

   The first major overhaul of the Canons came in 1972. (12) The admonition to avoid actual impropriety as well as the appearance of impropriety remained in the Canons, but the disqualification provision was radically revamped. The standard changed from a subjective to an objective one, that is whether a judge's "impartiality might reasonably be questioned." Despite another round of revisions in 1990, the appearance and disqualification language remained the same. The key change in 1990 was to replace "should" with "shall" to reflect the mandatory nature of the standards. (13)

   Today the appearance concept is imbedded in two separate canons. Canon 2 reads, "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." (14) Canon 3E(1) on disqualification provides that "[a] judge "shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." (15)

   Canon 3E(1) goes on to list separate instances in which disqualification is required because of (a) personal bias/prejudice or personal knowledge; (b) prior service as a lawyer in the matter; (c) economic interest; and (d) close personal relationship of relatives or parties to a proceeding. (16) For federal judges, virtually the same restrictions are contained in a federal statute. (17)

   In the face of a string of court decisions involving judges and political speech and a renewed effort to scrutinize judicial ethics, the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct is presently undertaking a comprehensive review of the Canons. The Commission is examining the disqualification standards in light of the increased attention and sensitivity about recusal.

2. DEVELOPMENT OF THE APPEARANCE OF IMPROPRIETY STANDARD

   Although the first formal judicial code adopted by the ABA did not advise judges to recuse based on an appearance of impropriety, three years after the adoption of the original Canons, the Supreme Court held that the Due Process Clause requires that judges recuse where there is an appearance of a conflict of interest. In 1927, the Court reviewed a defendant's conviction for possession of alcohol in violation of Prohibition because, amazingly, he was tried by an official who was reimbursed only for convictions and not for acquittals. (18) After acknowledging that the most virtuous judges would not allow the prospect of fees to influence their decisionmaking, the Court invalidated the conviction on the grounds that

   [e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused denies the latter due process of law. (19) In developing the appearance standard, the Supreme Court has suggested that it accomplishes two notable ends. First, the prophylactic measure of requiring recusal based on the objective appearance of partiality avoids instances of actual partiality. Proving the partiality of a judge poses the obvious difficulty of having to offer evidence of the judge's state of mind, an unattainable burden in all but the most extraordinary cases. The standard also ensures that, according to the now oft-quoted words, "justice must satisfy the appearance of justice." (20) The Court reasoned that the standard "may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties." (21) The Court concluded that eliminating the appearance of impropriety has its own independent value, engendering public confidence in the judiciary.

   The standard achieves its ends, in part, because courts have little difficulty applying it. For example, the Supreme Court found the standard violated where a judge served as the complaining witness and prosecutor as well as the judge; (22) where a mayor, sitting as a judge, convicted the petitioner of traffic offenses for tickets that represented about half of village revenues; (23) and where a state supreme court justice had filed two actions that hinged on the outcome of law he was making in his capacity as a justice. (24)

   That the appearance standard should prove manageable in a practical sense is unsurprising, as it is, at bottom, a reasonableness standard. (25) The commentary to Canon 2 states that the test for appearance of impropriety hinges on the impression that conduct would make on "reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose." (26) Judges apply reasonableness standards all the time. For instance, a reasonableness...