Judges

Judges Could Face Greater Scrutiny for Off-Bench Behavior

, The Legal Intelligencer

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Judges Behaviour

Elected officials have long been evaluated based on a balancing act. On one hand, they are given leeway to make tough decisions, and on the other hand, they are held to a high personal standard to ensure the trust of the public. But, in light of numerous judicial scandals over the past few years, have judges seen an expansion of their accountability for actions away from the bench?

While attorneys agree that judges have always been subject to discipline for their actions off the bench, some recent judicial orders and decisions seem to suggest that judges' culpability for activities off the bench is increasing.

In January, the state Supreme Court adopted a new Code of Judicial Conduct. Several new rules, which are expected to take effect later this year and in 2015, target extrajudicial activities. Among other things, the rules mandate that judges can no longer be closely involved with businesses or serve as board members of organizations that may come before them.

Additionally, in October 2013, the state Supreme Court unanimously ruled that Thomas Carney, an Erie County magisterial district judge who allegedly waived a gun at another driver during a road-rage incident, could be disciplined for his actions, despite the fact that the actions were not a part of the judicial decision-making process. The decision found that Carney could be disciplined because the conduct brought the judicial office into disrepute.

The decision in In re Carney overruled two of the court's prior holdings, including the 2000 case In re Cicchetti, which found that alleged sexual misconduct of a court of common pleas judge did not violate Code of Judicial Conduct Canon 2A because the statute was limited to conduct implicating the judicial decision-making process.

Robert A. Graci, chief counsel of the Judicial Conduct Board, said that following the ruling, Code of Judicial Conduct Canon 2A and the related Magisterial District Judge Rule 2A now clearly apply to judges' activities 24 hours a day, seven days a week. However, Graci said the rules always could have been applied to extrajudicial conduct and the Carney ruling simply clarified their application.

The new judicial canons, he said, likewise add more affirmative and clear language to already existing principles.

"I don't think there is any intent or suggestion that the board, which acts independently ... should be applying a greater degree of scrutiny to off-the-bench conduct," Graci said. "Completely off-the-bench conduct has always been regulated."

According to attorney Samuel C. Stretton, more and more cases are becoming visible because judicial prosecutions have become more aggressive since the modern judicial disciplinary system began around 20 years ago.

"I would say the judicial prosecutions have come of age," Stretton, who is a columnist for the Law Weekly, said. "In the last 10 to 15 years, it's really gotten a body of expertise and developed good case law. We're starting to see more and more prosecutions and consistency than in the past."

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