Opinion 77

The Judicial Qualifications Commission has been asked for an Advisory Opinion as to whether it is appropriate for an active judge to serve as a class representative in a class action litigation. In Opinion No. 2, this Commission held that it would not be appropriate for a judge to become an active objector and participant in hearings before the Public Service Commission with respect to the request of a public utility for a rate increase and, in this Opinion, the Commission stated, in part, as follows:

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.

For the same reasons, the Commission is of the opinion that it is inappropriate for a judge to act as class representative in a class action suit.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rules 1.2(B), 2.4(B), 2.10(A), 2.11(A), 3.2, 3.7, 3.11(B), 3.11(D), 3.13(C). Cross reference to other relevant opinions for review: #2, #78, #92, #115, #138, #174, #178.]

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