17 July 2014
Justice Matters: Judges do not express personal opinions in performance of judicial duties
The following reflections of Missouri Chief Justice Mary R. Russell make up her most recent Justice Matters column.
It is almost primary election time. Voters soon will face decisions about issues and candidates. Among the candidates are those running for judgeships in outstate Missouri.
Friends and family frequently ask my opinion about ballot proposals and controversial laws. Voters also wonder about the "positions" of judicial candidates. They are surprised to learn judges and judicial candidates face potential ethics issues, including possible disqualification, if they publicly express personal opinions about legal matters that could result in litigation.
Why is this? First, part of our job as judges is to interpret laws as written by the legislature or constitutional provisions as approved by our citizens. We take an oath to support those laws – in other words, promise to uphold the laws – regardless of our personal beliefs.
Our personal opinions or public sentiment about the merits or morality of certain laws simply are not factors in judicial decision making. We are charged to interpret the laws and to protect the constitutional rights of all citizens, regardless of power or position.
Sometimes when deciding the meaning of a statute and its application to a case, I am required to reach a result with which I do not personally agree. But it makes no difference what my personal views are. Each day, when I put on my black robe, it is as though I am retaking my oath of office – to fulfill my constitutional duties and to support the laws as they are written, not as how I might wish they were written. The job of writing and amending the law belongs exclusively to senators and representatives. As for amendments to our state constitution, I get to express my personal view only alongside my fellow Missourians – at the ballot box – not on the bench.
A second reason judges face potential ethics issues if they express their personal opinions is that everyone is entitled to a neutral judge who has no predisposition to the facts of a case or the law. How unfair it would be if the judge in your case previously stated that she could not agree with the type of suit you had filed, even though she had not yet given you an opportunity to explain the facts of your case.
This ethical issue becomes especially important when judicial candidates are on the ballot. In the legislative and executive branches, it is appropriate for officials to pledge to uphold the will of their constituents. But that is not the job of a judge, who must uphold the law, not popular will. As dictated by the oath of office and the judicial code of conduct, the only promises a judicial candidate can make are to support the state and federal constitutions and the laws of this state and to be faithful and impartial in the performance of the duties of office.
If judicial candidates make any other campaign promises, they could be setting themselves up for recusal from certain kinds of cases. For example, judicial candidates who state a public position regarding abortion may have to recuse themselves from cases involving trespass at an abortion clinic. And a judicial candidate who promises to be “tough on crime” may be viewed as biased against all criminal defendants and, therefore, may be disqualified to hear any criminal case as a judge. Running afoul of the code of ethics also could lead to discipline. If the candidate is a current judge, the sanction could range from a reprimand to removal from office. If the candidate is not currently a judge, the sanction could range from a reprimand to disbarment.
The requirement that judges be impartial is the bedrock of our system of justice. Judges always should keep an open mind in deciding matters, free of personal opinions or campaign promises. When judges refrain from expressing opinions outside the courtroom, our laws and constitution remain supreme.