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Opinion 2

The Commission has been requested to give its opinion as to whether it would be appropriate for a judge to become an active objector with respect to a public utility’s request to the Georgia Public Service Commission for an increase in its rates, and an active participant in the hearing before the commission.

It is our opinion that under the Code of Judicial Conduct it would not be appropriate for a Judge to do so.

The duties of a judge very definitely require that he give up some of the previous rights and liberties that he could properly exercise as a lawyer and citizen. Commentary [2] to Rule 1.2 expresses this idea by stating that a judge “must expect to be the subject of constant public scrutiny. Judges must therefore accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen, and they should do so freely and willingly.”  

Foremost among the duties of a judge is the duty to conduct himself and his affairs so that he may be able to impartially and fully exercise and perform the powers and duties of his office. See for example, Rules 2.10(A), 2.11(A), 3.11(B), 3.11(D), 3.13(A). However, being impartial is not the full extent of a judge’s responsibility; for even though a judge may in fact be strictly impartial, nevertheless, he must also refrain from conduct which might reasonably lead one to believe that he is not so. In this as in other matters, it is the judge’s duty not only to avoid impropriety but the appearance of impropriety. Canon 1.

Another obligation of a judge is the primary and complete commitment of his legal training and talents to the performance of his judicial duties and to otherwise act only in accordance with the permissible quasi-judicial, avocational, civic, charitable, financial and fiduciary activities outlined in the code. Canon 3.

The canons also prohibit a judge from lending the prestige of his office to advance private interests. Rule 1.3.

A careful consideration of these duties and obligations points to the conclusion that, excluding those situations involving purely personal causes of action with respect to which the judge must of necessity personally act as distinguished from controversial matters relating to the public-at-large and involving administrative and judicial proceedings, a judge must not lend his name to nor actively participate in such proceedings. Even in a situation involving a purely personal cause of action, the spirit of the code might well commend to the judge the employment of counsel rather than otherwise unavoidably involving the prestige of his office in the proceedings.

A judge can hardly attach himself to a “cause” and become personally and legally involved in related administrative and judicial proceedings in which he as one of a class tests the rights of an adversary without thereby impairing to a considerable degree his image as a judge – a person committed to deciding not participating in controversies. If a judge should follow such an activist course, it is reasonable to assume that his impartiality might be seriously questioned with respect to his ability to sit in judgment in other cases in which his adversary is a party that might come before him in his capacity as a judge. It also seems reasonably clear that if every judge should decide to become active in some kind of class litigation, such as utility, transportation and insurance rates, environmental protection, civil rights, and many others, it would be very difficult for the courts, in the minds of the public to retain their essential characteristic of impartiality; and it would also be questionable whether in these times of proliferation of litigation, crowded dockets and heavy case loads, the courts, as the canons direct, could promptly and adequately dispose of the business coming before the courts.

It is for these reasons we have reached the conclusion that the action referred to in paragraph one of this opinion would be incompatible with the Code of Judicial Conduct.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rules 1.2(B), 2.4(C), 2.10(A), 2.11(A), 3.7(A), 3.11(B), 3.11(D), 3.13(A) . Cross reference to other relevant opinions for review: #77, #92.] 

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