Me. Code. Jud. Cond. 2.3
Me. Code. Jud. Cond. 2.3
Advisory Notes - 2015
Rule 2.3 follows fairly closely the words of paragraphs (5) and (6) of 1993 Canon 3(B) but with the mandatory "shall" substituted for the aspirational "should" that appeared in 1993 Canon 3(B)(6), and with references to "gender" and "gender identity" added to recognize more current references to protected classes of individuals. Rule 2.3 also follows the language of ABA Model Code Rule 2.3, but with the addition of "for or against an individual or party" in the first sentence of (B). Also, recognizing that language barriers sometimes pose particular problems, judges must endeavor to ensure that all individuals understand and are allowed to participate fully in court proceedings, while ensuring that the judge's actions do not manifest any prejudice or bias.
Bias claims subjecting a judge to disciplinary complaints may arise from either judicial or administrative actions. Although administrative decisions such as hiring and discipline of court personnel are administrative functions, not judicial functions, a judge may commit judicial misconduct when performing administrative functions. In re Complaint of Judicial Misconduct, 726 F.3d 1060, 1061 (9th Cir. 2013). "But any such charges of misconduct must allege more than disagreement with the judge's administrative decision. The complaint must document conduct by the judge that is wrongful, independent of whether the judge's decision is correct. The misconduct process cannot be used to second-guess the judge's administrative decision; nor can it result in a reversal of that decision." Id.
The 1993 Advisory Committee's Note to paragraphs (5) and (6) of Canon 3(B) stated:
Canons 3B(5) and (6) are intended "to emphasize the requirements of impartial decision-making and the appearance of fairness in the courtroom." ABA Model Code (1990), Committee Note to Sections 3B(5), (6). The Commentary to ABA Model Code (1990), Section 3B(5), emphasizes that the purpose is to assure impartiality and fairness in the performance of judicial duties. Manifestation of bias may impair "the fairness of the proceeding" and bring "the judiciary into disrepute." A judge "must be alert to avoid behavior that may be perceived as prejudicial." The provision includes "[f]acial expression and body language, in addition to oral communication," all of which can convey the appearance of bias "to parties or lawyers . . . , jurors, the media and others." Id. As in Canon 3B(4), the duty to control the conduct of others is aspirational, rather than mandatory.
Canon 3B(6) is also aspirational in form. Judges "should require" lawyers to observe the standards imposed on judges and court personnel by Canon 3B(5). The provision is not mandatory, because judges have no line supervisory authority over lawyers and can control lawyers' behavior only through the drastic sanctions of contempt or professional discipline. This section imposes no obligation upon judges to intervene in the exercise of peremptory challenges in the ordinary case. The decisions of the United States Supreme Court in Georgia v. McCollum, [505] U.S [42], 112 S.Ct. 2348 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. [614], 111 S. Ct. 2077 (1991); and Batson v. Kentucky, 476 U.S. 79 (1986), prohibit discriminatory use of peremptory challenges to exclude jurors solely on account of their race. If the objecting party makes a prima facie showing that the challenge was based on race, the challenging party must offer a racially neutral explanation for the challenge. In light of the burdens placed upon the objecting party by these cases, the judge's only obligation is to follow the procedure there outlined. In the absence of objection, a peremptory challenge should be presumed to have been made without discriminatory intent as an act of "legitimate advocacy" permitted by the second sentence of section (6), unless other circumstances, such as the lawyer's demeanor in the voir dire or the absence of any apparent tactical reason for the challenge, manifest actual bias or prejudice.
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