In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by the President of the Arkansas Municipal Judges Council if council representatives communicating with the Legislative, Supreme Court and Arkansas Bar Association committee members working to restructure the Arkansas court system under Amendment 80. The Committee is of the opinion that such contacts, direct or in writing, would come within the purview of Canon 4 of the Arkansas Code of Judicial Conduct; and, therefore, be permissible. Further, the Committee could conceive of no reason why the use of a municipal court judge’s official letterhead stationery when communicating with the restructuring committee would be inappropriate.

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee issued an advisory opinion as to whether a judge who has conducted a trial and convicted a defendant of certain charges can testify against that same defendant in a subsequent perjury trial concerning the defendant’s testimony in the first trial The Committee is of the opinion that if subpoenaed to testify before another court, the judge should simply abide by the law and by the Arkansas Code of Judicial Conduct. The only provision in the Arkansas Code of Judicial Conduct that deals directly with a judge testifying in court is Canon 2 B which states in part that “A judge shall not testify voluntarily as a character witness.” Canon 2 A provides that “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether, in light of the constitutional changes to Arkansas judicial elections, there should be a temporary suspension of the enforcement of the 180-day fundraising limit in Canon 5C(2) of the Code of Judicial Conduct until the Supreme Court has the opportunity to consider appropriate revisions to that Canon. The Committee is of the opinion states that Canon 5C(2) prohibits fundraising by the committee of a candidate prior to 180 days before a primary election. With the new amendment and implementing statutes, the general elections for judges have been moved from November to May. However, the Arkansas Supreme Court has not changed the language of the Code of Judicial Conduct. It is the intent of the Code provision to place limits on the length of judicial campaigns, and that intent applies also to non-partisan elections. The Committee stated that they have no authority to rewrite the Code or to temporarily suspend its operation. It was therefore of the opinion that Canon 5C(2) is applicable and, fundraising may not begin until 180 days prior to the May 2002 election.

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Circuit Judge candidate J. Leon Johnson of Little Rock. He requested an opinion as to whether a candidate for Circuit Judge can sit as a Star Panelist at the United Negro College Fund Annual Telethon (UNCF). The UNCF telethon requires each panelist to call upon its friends and associates and ask that they make a pledge or donation to the UNCF. It is not a political event and he would not be identified as a candidate for Circuit Judge, and there would be no solicitation of voting by the UNCF. The opinion states that Mr. Johnson is not prohibited under the Code from participating in the event. The fund-raising activities he described are expressly disallowed under Canon 4C3(b)(iv); however, Canon 4 applies to judges rather than judicial candidates. Judicial candidates are covered under Canon 5, which contains no similar restriction. A copy of the advisory opinion is attached.

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Circuit Judge candidate Carla D. Fuller of Searcy, Arkansas. She requested an opinion as to whether it would violate Canon 5 of the Arkansas Code of Judicial Conduct for her to personally solicit signatures of registered voters on the Independent Candidate (or Non-Partisan Judicial Candidate) Petition for the district position of Circuit Judge. The opinion states that Canon 5C2 states: “(2) A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support”. Ms. Fuller asking persons on an individual basis and not as a group such as an social gathering, assembly, club or any other organization, whether organized formally or otherwise, to sign her petition does not constitute soliciting publicly stated support. The key is approaching people on an individual basis to ask them to sign the petition. Reference was made to Advisory Opinion # 95-04. A copy of the advisory opinion is attached.

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Circuit Judge candidates William W. Benton, F. Wilson Bynum, Jr., James L. Hall, and James L. Williams, II. They all are seeking the same judicial position, and requested an opinion as to whether a judicial candidate for Circuit Judge may describe himself in his campaign materials, advertisementsand public statements as “Judge”, when he has served for the past six years as a part time city judge. The position of city judge is an appointive, rather than elective position. The opinion states that the Code of Judicial Conduct views a city judge as a Continuing Part-time Judge, who is required to comply with most provisions of the Code. The Code bars a judicial candidate from knowingly misrepresenting “the identity, qualifications, present position or other facts concerning the candidate or an opponent.” Regardless of whether the candidate is appointed or elected, full time or part time, he is a judge. Accordingly, the Committee concluded that the Code does not bar him from describing himself as a “City Judge” or a “Judge” in the campaign. The term does not misrepresent his present position. It does not suggest he is an incumbent; it does not urge his re-election. The opinion further stated that the Committee is aware of Ark. Code Ann. 7-7-305 which states that a person may use the prefix “Judge” in an election for a judgeship only if the person is currently serving in a judicial position to which the person has been elected. However, that statute prescribes the name that will be used on the election ballot. The statute does not purport to control campaign advertising by judicial candidates. The Committee understands the potential elective disadvantage to other judicial candidates who may have been judges in the past, perhaps even to elective positions. But because they are not presently serving as a judge, the Code bars them from calling themselves “Judge.” However, the Code permits them to list their prior positions and their qualifications. The Committee stated that the Supreme Court could amend the language of the Code or the comments to it. Likewise, the Supreme Court could provide consistency by amending the Code provisions on campaign advertising to correspond to the statute on ballot names. But it has not yet done so. The Committee concluded that under the language of the Code it is not misleading for a city judge to describe himself or herself as “Judge” in his campaign advertising. A copy of the advisory opinion is attached.

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Doug Norwood, of Rogers, Arkansas, Special Judge for Centerton City Court. He requested the opinion on behalf of a number of special judges in the area. Judge Norwood, and the other attorneys are serving as part-time judges in the absence of Judge Rodney Owens, since Judge Owens has voluntarily recused from hearing cases, pending the outcome of his trial on felony charges. The attorneys are concerned that they may have a conflict based on Judicial Ethics Advisory Opinion No. 98-02. The opinion states that while the Committee recognizes the exigency of the circumstances outlined in Judge Norwood’s letter, they find nothing in the Code of Judicial Conduct or relevant case law distinguishing continuing part-time judges from part-time judges serving temporarily, albeit indefinitely. Nor do they believe the appearance of impropriety may be cured by waiver. The Committee referred to Advisory Opinion No. 98-02 which notes that the concurrent practice of law and judicial service are prohibited under Canon 4G, but that exception is made for continuing part-time judges under Section B of the Application section of the Code. The Committee pointed out that while the Code stops short of an outright ban on the practice of law by part-time judges, clearly restraint and caution are called for. In that context, the Committee cited Canon 2 and concluded: [A]n individual who accepts the position of a continuing part-time judge places the judicial office first in service and priority, and certain restrictions must follow. It is, the Committee believes, self evident that a municipal judge who is engaged in an adversarial role opposing a prosecuting attorney in a criminal case brought by the State and who presides over proceedings involving that same prosecuting attorney is in an untenable position, however principled that individual may be. Acting as both judge and jury, the municipal judge has significant discretion in dealing with the prosecuting attorney. To oppose that same attorney in another matter creates an appearance of impropriety. The Committee concludes, as have a majority of other jurisdictions, that license must yield to ethic, where, in the perception of reasonable minds, the ability of municipal judges to carry out their responsibilities with integrity, competence and impartiality could be impaired. It follows that the initial responsibility rests on the municipal judge to decline the personal representation of a criminal defendant in any circuit within which the prosecuting attorney has jurisdiction. A copy of the advisory opinion is attached.

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Wrightsville District Judge Dennis L. James, in his capacity as President of the Arkansas District Judges Council. Judge James requested an opinion concerning the Arkansas District Judges Council’s endorsement of the Arkansas State Highway and Transportation Department’s Click It or Ticket program. Judge James is unsure whether the Arkansas District Judges Council’s endorsement by letter, with use of judicial letterhead and Arkansas District Judges Council letterhead, of this program would appear inappropriate or suggestive of bias on seatbelt violations. Judge James states that the district judges would certainly be hearing cases involving charges of seatbelt violations, while at the same time, it is Judge James’ opinion that this program is a very admirable one in that it promotes safety and education of the public. The opinion states that members of the Arkansas District Judges Council will be acting as judges of most all the charges brought under this program, and if the Council endorsed it, the member judges would certainly have to recuse since there would the appearance of bias or prejudice. The Committee’s answer is that an endorsement of this or any other law enforcement program, however worthy of support, by the Arkansas District Judges Council, Inc., or any individual judge would be in violation of the Arkansas Code of Judicial Conduct, Canons 1, 2 , 3 and 4. A copy of the advisory opinion is attached.

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Circuit Judge David Goodson of Paragould, Arkansas. He requested an opinion as to whether his wife may work either as a paid employee or volunteer in the political campaign of a candidate seeking election to a statewide office. The opinion states that the Code of Judicial Conduct places clear restrictions on a judge. A judge may not publicly endorse or publicly oppose a candidate seeking election to office. Canon 5 (A) (1). A judge may not identify himself as a member of a political party. Canon 5 (F). In addition, the judge must encourage members of the candidate’s family to adhere to the same standards of political conduct. Canon 5 (A) (3). The context of that language suggests that in the course of judicial campaigns, the candidate must encourage his relatives to behave in the same fashion. The Committee further stated that the issue here is whether the Code bars a spouse from participating in a non-judicial political campaign. We note that the Commentary to the Code states that family members are free to participate in other political activity. Further it is questionable whether authority exists to bar relatives, who do not serve as public servants, from political life. The Committee concludes that the spouse of a judge is free to participate in other political campaigns. The participation may be on a paid or on a voluntary basis. However, the spouse should make all efforts to avoid any suggestion or hint that the judge is supportive of a candidate. A copy of the advisory opinion is attached.

The Arkansas Judicial Ethics Advisory Committee stated that it was beyond the scope of its duties to answer the questions whether a judge should report a city attorney who had advised the judge that he would not call any witnesses in a DWI case, which would result in dismissal of the case, so the defendant would not lose his CDL license, how the judge should proceed in the case, and whether the judge should disqualify in future cases involving the city attorney.

Circuit judges may appoint a part-time district judge to perform judicial duties at the county jail under the code of judicial conduct but there may be statutory or other restrictions that apply.

The Judicial Council may host a dinner for members of the Arkansas House and Senate Judiciary Committee to introduce the legislators the Judicial Council’s president-elect and to discuss legislative issues of interest to the judiciary at large. One member filed a dissenting opinion.

The first three requests for advisory opinions received by the Judicial Ethics Advisory Committee evolved around the issue of nepotism. In each case the requesting judge asked if the continued employment of his spouse or relative under the unique circumstances of each employment situation was a violation of Canon 3B(4) of the Code of Judicial Conduct. In each of these instances, the requests did not meet a threshold requirement to go before the Judicial Ethics Advisory Committee. That threshold requirement is that the request for an advisory opinion relate to prospective conduct only.

The first three requests for advisory opinions received by the Judicial Ethics Advisory Committee evolved around the issue of nepotism. In each case the requesting judge asked if the continued employment of his spouse or relative under the unique circumstances of each employment situation was a violation of Canon 3B(4) of the Code of Judicial Conduct. In each of these instances, the requests did not meet a threshold requirement to go before the Judicial Ethics Advisory Committee. That threshold requirement is that the request for an advisory opinion relate to prospective conduct only.

The first three requests for advisory opinions received by the Judicial Ethics Advisory Committee evolved around the issue of nepotism. In each case the requesting judge asked if the continued employment of his spouse or relative under the unique circumstances of each employment situation was a violation of Canon 3B(4) of the Code of Judicial Conduct. In each of these instances, the requests did not meet a threshold requirement to go before the Judicial Ethics Advisory Committee. That threshold requirement is that the request for an advisory opinion relate to prospective conduct only.

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion stating that a judge may serve on a bank’s advisory board, that the judge’s ownership of approximately 2% of the voting stock of the bank constitutes a financial interest that requires disqualification in all cases in which the bank is a party, and that the judge should consider divesting the stock and resigning from the board if frequent disqualification is required. The Committee also advised that the judge must disqualify himself from cases filed or tried by his brother-in-law, the city attorney, and must not issue warrants at the request of his brother, the deputy prosecuting attorney. The Committee also advised that the judge is not precluded from appointing his wife as an unpaid deputy clerk but that it would be better not to do so, although she could still occasionally do general secretarial or administrative work. The committee stated that if the judge still considers appointing his wife as a clerk, he should do so only if she is qualified, the position is a deputy position, the position is temporary and part-time, the appointment is on a volunteer and philanthropic basis with no perceived present or future financial benefits (either direct or fringe) to the relative or the judge, and the volunteer service provided by a relative is not considered with respect to increases in the judge’s salary. In response to a question about what financial reports judges must file, the Committee stated that the request was not made in accordance with Procedural Rule 3 because it was not accompanied by a concise memorandum setting forth the judge’s own research and conclusion.

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion stating that a judge may not solicit funds in person, by telephone, or by letter from individuals or corporations to support a reception to be held following a continuing legal education seminar sponsored by the Arkansas Association of Women Lawyers nor may the judge solicit funds on personal stationery from her residence, but the judge may suggest to the organization the names of potential donors and participate in the planning of fund-raising, and non-judicial members or employees of the organization may contact donors if they are careful not to suggest that they are acting on behalf of or with the knowledge of the judge. The Committee noted that Canon 4C implies that a judge may personally participate in “private” fund-raising, but stated that private fund-raising should be interpreted as limited to narrow situations involving, for example, fund-raising among relatives and other judges.

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion stating that 1) because a press release issued by a judge prior to his request for an ethical opinion is a past event, the propriety of the press release falls as a matter for the Judicial Discipline and Disability Commission, not the Committee, 2) because motions for recusal based on the press release made in two pending cases were properly within the jurisdiction of the chancery court and appellate review is available, the Committee would not address the issue of recusal in those cases, and 3) because the matter of future disqualification based on the press release is an issue of law that should be resolved in an adversary setting, the Committee would not address that issue. In the press release, the judge had criticized a consent decree signed by a United States judge resolving a voting rights act challenge to judicial districts, announced his intention to run for re-election in 1992 in the newly created sub-district, and commented on race relations in the judicial district. The motions to recuse in two pending cases were brought by the plaintiff in the federal suit, his law partner who had represented him in the federal action, and the Jefferson County Child Support Enforcement Unit. One member of the three member committee dissented from the advisory opinion, stating that he did not find any evidence of bias, prejudice, or judicial impropriety in the press release.

In response to a request for an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that it did not have authority to respond to a judge’s request for an opinion regarding a pending motion for recusal.

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may not speak at a dinner sponsored by a college to try to develop ways to persuade more young people to attend the college where the ticket sales receipts will be used in part to fund workshops for future training sessions for the same purpose and to pay other speakers for future events sponsored by the college.