A New Code of Judicial Conduct! (Minus the Most Worrisome Parts)

By way of an Order issued today, the Minnesota Supreme Court promulgated a revised Code of Judicial Conduct that will take effect on July 1, 2009.

The revised Code sets forth “overarching principles of judicial ethics that all judges must observe” and includes specific prohibitions with respect to extra-judicial activities – most notably, standards for ethical conduct during campaigns for judicial office.

Significantly, the Court jettisoned recommendations that the Code of Judicial Conduct punish campaigning for judicial office at any time outside of a two-year interval which precedes an election. Because state court judges in Minnesota typically serve six year terms, I worried that a wholesale ban on campaign activities during two-thirds of this time period would draw the state into expensive civil rights litigation. In written comments submitted in 2007, I urged the Court not to adopt this proposal. It is a real holiday blessing that the Court moved away from such prohibitions when issuing the new standards.

The most surprising addition to the new Code is a special exception to the general ban on judges contributing money “to a candidate for public office.” The exception permits state court judges to solicit campaign contributions from fellow judges; provided that the judge who makes the solicitation “does not exercise supervisory or appellate authority” over the would-be donor judges. See, Canons 4.1 (a) and 4.2 (b)(3) (c). It is not clear from the accompanying Comment how this exception to the general ban on judges contributing to political campaigns is helpful.

Lastly, it is worthy of note that two Justices (G. Barry Anderson and Helen Meyer) withheld their votes from the final plan. In dissent, Justice G. Barry Anderson argued that under the new Code the Board of Judicial Standards would be asked to operate as a “campaign finance regulatory agency;” a mission for which it was not now equipped. He wrote:

As a practical matter, I fear we have asked the underfunded Board on Judicial Standards, which enforces the Minnesota Code of Judicial Conduct, to undertake a task for which it is ill-equipped and without experience….
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I question the wisdom of kicking the judicial disciplinary machinery into high gear for minor and inadvertent violations of the contribution limits but it might be equally problematic to give the Board on Judicial Standards, and its executive secretary, discretion to decide what is, or is not, a de minimis violation of those standards.

Justice Anderson speaks with genuine authority on the topic of “operating a campaign finance regulatory agency” – having run the Minnesota Campaign Finance and Public Disclosure Board, as its Chairman, in 1997 and 1998.

The entire Order, dissent, and accompanying Code text is accessible here.