Judicial Power: Can Judges Break The Law?

The integrity of the justice system relies on judges making decisions that are fair, impartial, and in accordance with the law. While judges are expected to act independently, they must also comply with the law and a Code of Conduct. Deviating from these standards can lead to judicial misconduct allegations and sanctions. Judges are expected to avoid any impropriety or appearance of impropriety, including violations of law, court rules, or specific provisions of the Code. They must also avoid conflicts of interest and ex parte communications, which can compromise their independence and the fairness of their rulings. While judges have discretion and personal judgement, they are bound by legal precedent and rules of evidence, which provide a framework for their decisions. This raises the question: can a judge violate the law when issuing a decision?

Judicial independence and public confidence

Judicial independence is a core principle of democracy and is critical to a well-functioning justice system. An independent and impartial judiciary is essential for the operation of justice and is a prerequisite for the courts to be accepted by the public as the proper forum for the settlement of disputes and the ascertainment of legal rights and obligations.

Public confidence in the judiciary is dependent on the integrity and independence of judges. Judges must act without fear or favour and must comply with the law and the Code of Conduct. The Code of Conduct for United States Judges includes provisions such as the prompt, efficient, and fair disposal of matters, demonstrating due regard for the rights of the parties involved, and avoiding unnecessary costs or delays. Judges are also expected to avoid all impropriety and the appearance of impropriety, including violations of the law, court rules, or other provisions of the Code, as well as personal conduct that calls their judicial integrity into question.

In the event of judicial misconduct, sanctions or remedies must be determined. Conduct commissions have the authority to issue warnings or reprimands, and in more serious cases, suspension or removal from office may be warranted. Public discipline serves to correct the judge in question and educate others in the judiciary.

To strengthen public confidence in the judiciary, it is important to educate the public about the role and functions of the courts and to reinforce the principle of judicial independence. This can be achieved through initiatives such as judicial education and cooperation between different levels of courts, as well as by upholding the rule of law and ensuring that judges are held accountable for any misconduct or unethical behaviour.

In summary, judicial independence is crucial for a well-functioning justice system, and public confidence in the judiciary depends on the integrity and independence of judges, as well as their adherence to the Code of Conduct. To maintain and strengthen this confidence, it is essential to educate the public about the role of the judiciary and reinforce judicial independence through various measures, while also holding judges accountable for their actions.

Disciplinary action for judges

Judges are expected to act with integrity and independence, complying with the law and the Code of Conduct for United States Judges. This code includes ethical canons that guide federal judges in their official duties and outside activities. Disciplinary action for judges can be taken if they violate this code, with the seriousness of the improper activity, the intent of the judge, the pattern of improper activity, and its effect on others or the judicial system all being considered.

The Code of Conduct for United States Judges outlines specific canons that judges must adhere to. Canon 3A(5) states that judges must dispose of matters promptly, efficiently, and fairly, demonstrating respect for the rights of the parties involved and resolving issues without unnecessary cost or delay. Canon 3A(6) prohibits public comment about pending matters until the appellate process is complete to maintain public confidence in the judiciary. Canon 2 emphasizes the importance of avoiding impropriety and the appearance of impropriety in all activities, including respect for the law.

When it comes to disciplinary action, appropriate measures can vary. Direct communication with the judge or lawyer, reporting the conduct to the relevant authorities, or referring the judge or lawyer to an assistance program if their conduct is believed to be influenced by substances or medical conditions, are all possibilities. Additionally, judges should cooperate with disciplinary proceedings and be candid with disciplinary authorities.

The Model Rules for Judicial Disciplinary Enforcement, established in 1994, provide a framework for addressing judicial misconduct. Rule 6 defines the grounds for discipline, including violations of the Code of Judicial Conduct, Rules of Professional Conduct, or other professional conduct codes. Rule 7 sets the standard of proof as "clear and convincing evidence." The rules also address the organization and structure of the commission, with separate investigative and hearing panels, each comprising judges, lawyers, and members of the public.

Public confidence in the judiciary is crucial, and it can be eroded by irresponsible or improper conduct by judges, including harassment and inappropriate behaviour. Therefore, disciplinary action serves to correct the judge's behaviour and educate others in the judiciary. While most violations may not warrant it, removal from office is reserved for the most egregious instances of misconduct. It is essential to hold judges accountable and maintain the public's trust in the justice system.

Judges' personal conduct

Judges are responsible for administering justice and are thus expected to act ethically and be subject to correction when necessary. This means that judges must comply with the law and the Code of Conduct for their jurisdiction.

The Code of Conduct for United States Judges, for example, states that a judge must avoid all impropriety and the appearance of impropriety in all activities, both professional and personal. This includes violations of criminal law, sexual misconduct, joining discriminatory organisations, and using their position to enhance a private interest. Judges must also dispose of matters promptly, efficiently, and fairly, demonstrating due regard for the rights of the parties involved. They must also avoid engaging in ex parte communication unless expressly allowed by law.

Public confidence in the judiciary is of utmost importance and can be eroded by irresponsible or improper conduct by judges, including harassment and other inappropriate workplace behaviour. Judges must therefore accept that their personal conduct will be subject to constant public scrutiny and that they may need to accept restrictions that an ordinary citizen might view as burdensome.

Judicial conduct oversight should not, however, attempt to regulate purely personal aspects of a judge's life. Not every violation of the Code of Conduct will lead to disciplinary action. The decision to take disciplinary action and the degree of discipline will depend on factors such as the seriousness of the activity, the intent of the judge, whether there is a pattern of improper activity, and the effect of the activity on others or the judicial system.

In summary, while judges enjoy a certain degree of independence in their decision-making, they are still subject to the law and ethical standards. Their personal conduct is scrutinised to maintain public confidence in the judiciary and ensure the proper administration of justice.

Judges' interpretation of evidence

Judges are expected to be aware of the issues they are supposed to define and limit in their mandatory pre-trial order. The admissibility of evidence is determined by the Rules or the law. The grounds for objection to the competency of evidence are: irrelevancy, immateriality, and incompetency. Evidence is admissible when it is relevant to the issues and is competent, i.e., it is not excluded by the law or the Rules of Court. Evidence is relevant if it tends to establish the probability or improbability of a fact in issue. It is of a lesser degree of reliability as evidence than material evidence. Material evidence directly proves a fact in issue. For example, the testimony of an eyewitness to the commission of a crime is material; the evidence of motive or flight of the accused may be relevant. Evidence that is material or relevant must also be competent to be admissible.

In the United States, the Federal Rules of Evidence and parallel rules at the state level define the scope of the evidence that can be introduced in civil and criminal trials. However, one must also understand how courts have interpreted these rules and certain related constitutional doctrines. Courts have addressed issues such as relevance, character evidence, witness qualifications and impeachment, the hearsay rule and its exceptions, and privileges that shield communications from disclosure. Under Federal Rule of Evidence 401, evidence is relevant if it may make the existence of any fact of consequence more or less probable. Rule 402 provides that evidence is admissible if it is relevant, unless the Constitution, a federal law, the Federal Rules of Evidence, or rules created by the US Supreme Court provide that it is not admissible. Rule 404 generally prevents evidence of a person’s character or character trait to show that they acted in accordance with it. In a criminal case, however, the defendant can introduce evidence regarding their character or the character of the alleged victim if that is pertinent to the case. Unless the defendant opens this door, the prosecution generally cannot use character evidence.

In the United States, public confidence in the judiciary is eroded by irresponsible or improper conduct by judges, including harassment and other inappropriate workplace behaviour. A judge must avoid all impropriety and the appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition 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, or other specific provisions of this Code.

Judicial conduct oversight should not attempt to regulate purely personal aspects of a judge's life. However, a judge can commit misconduct by engaging in personal behaviour that calls their judicial integrity into question. This is true even if the same behaviour would merely be considered unwise for the average citizen. Obvious examples are violations of criminal law, sexual misconduct with staff/attorneys/parties, joining discriminatory organizations and using the judicial position to enhance a private interest.

Judges' communication with parties

Judges are expected to act with integrity and independence, adhering to a Code of Conduct and judicial ethics standards. Public confidence in the judiciary is contingent on judges upholding these standards and avoiding any appearance of impropriety in their professional and personal conduct.

Judges are prohibited from engaging in ex parte communication, which refers to direct communication with a party to a case without the knowledge of the other parties. This ban ensures fairness in the court process and preserves public trust in the legal system. Judges may only consider ex parte communication when expressly authorized by law, such as in cases of emergency requests for a temporary restraining order or confidential letters from a settlement conference.

In disposing of matters, judges must demonstrate due regard for the rights of all parties involved, ensuring that issues are resolved without unnecessary cost or delay. This includes monitoring and supervising cases to reduce avoidable delays and cooperating with court personnel, litigants, and their lawyers.

Judges are also expected to avoid public comment on pending or impending matters until the appellate process is complete. Public comments should be made with caution to avoid denigrating public confidence in the judiciary, especially when the comment involves a case from the judge's own court.

While not every violation of the Code of Conduct warrants disciplinary action, corrective measures may be implemented, such as mentoring, monitoring, or additional education. In more serious cases of misconduct, sanctions such as suspension or removal from office may be imposed.

Frequently asked questions