CHAPTER 274
(SCR 05-13)
In the Matter of the Amendment of SDCL Chapter 16-2 Appendix;
Amendment of SDCL Chapter 16-1A Appendix;
and Repeal of SDCL Chapter 12-9 Appendix
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
IN THE MATTER OF THE AMENDMENT
OF SDCL CHAPTER 16-2 APPENDIX;
SDCL CHAPTER 16-1A APPENDIX; AND
REPEAL OF SDCL CHAPTER 12-9 APPENDIX RULE 05-13
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A hearing having been held on November 9, 2005, at Pierre, South Dakota, relating to: 1)
The proposed amendment of SDCL Chapter 16-2 Appendix-South Dakota Code of Judicial
Conduct; 2) The proposed amendment of SDCL Chapter 16-1A Appendix-Rules of Procedure of
the Judicial Qualifications Commission; and 3) The proposed repeal of SDCL Chapter 12-9
Appendix-Guidelines for Judicial Campaign; and the Court having considered the proposed
amendments, the correspondence and oral presentations relating thereto, if any, and being fully
advised in the premises, now, therefore, it is
ORDERED that SDCL Chapter 16-2 Appendix be and is hereby amended to read in its
entirety as follows:
PREAMBLE
Our legal system is based on the principle that an independent, impartial,* fair and competent
judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to
American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the
precepts that judges, individually and collectively, must respect and honor the judicial office as a
public trust and strive to enhance and maintain confidence in our legal system. The judge is an
arbiter of facts and law for the resolution of disputes and a highly visible symbol of government
under the rule of law.
The Code of Judicial Conduct is intended to establish standards for ethical conduct of judges.
It consists of broad statements called Canons, specific rules set forth in Sections under each Canon,
a Terminology Section, an Application Section and Commentary. The text of the Canons and the
Sections, including the Terminology and Application Sections, is authoritative. The Commentary,
by explanation and example, provides guidance with respect to the purpose and meaning of the
Canons and Sections. The Commentary is not intended as a statement of additional rules. When
the text uses "shall" or "shall not," it is intended to impose binding obligations the violation of
which can result in disciplinary action. When "should" or "should not" is used, the text is intended
as hortatory and as a statement of what is or is not appropriate conduct but not as a binding rule
under which a judge may be disciplined. When "may" is used, it denotes permissible discretion or,
depending on the context, it refers to action that is not covered by specific proscriptions.
The Canons and Sections are rules of reason. They should be applied consistent with
constitutional requirements, statutes, other court rules and decisional law and in the context of all
relevant circumstances. The Code is
not to be construed so as
not to impinge on the essential
independence of judges in making judicial decisions
or on judges' or candidates'* First Amendment
rights of freedom of speech and association but should be construed to protect the due process
rights of litigants to impartial courts and to promote public confidence in the judiciary.
The Code is designed to provide guidance to judges and candidates
* for judicial office and to
provide a structure for regulating conduct through disciplinary agencies. It is not designed or
intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code
would be subverted if the Code were invoked by lawyers for mere tactical advantage in a
proceeding.
The text of the Canons and Sections is intended to govern conduct of judges and to be binding
upon them. It is not intended, however, that every transgression will result in disciplinary action.
Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be
determined through a reasonable and reasoned application of the text and should depend on such
factors as the seriousness of the transgression, whether there is a pattern of improper activity and
the effect of the improper activity on others or on the judicial system. See ABA Standards Relating
to Judicial Discipline and Disability Retirement.
The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges.
They should also be governed in their judicial and personal conduct by general ethical standards.
The Code is intended, however, to state basic standards which should govern the conduct of all
judges and to provide guidance to assist judges in establishing and maintaining high standards of
judicial and personal conduct.
TERMINOLOGY
Terms explained below are noted with an asterisk ( * ) in the Sections where they appear. In
addition, the Sections where terms appear are referred to after the explanation of each term below.
"Appropriate authority" denotes the authority with responsibility for initiation of disciplinary
process with respect to the violation to be reported. See Sections 3D(1) and 3D(2).
"Candidate." A candidate is a person seeking selection for or retention in judicial office by
election or appointment. A person becomes a candidate for judicial office as soon as he or she
makes a public announcement of candidacy, declares or files as a candidate with the election or
appointment authority, or authorizes solicitation or acceptance of contributions or support. The
term "candidate" has the same meaning when applied to a judge seeking election or appointment
to non-judicial office. See Preamble and Sections
3E(1)(e), 3E(3), 5A, 5B, 5C and 5E.
"Continuing part-time judge." A continuing part-time judge is a judge who serves repeatedly
on a part-time basis by election or under a continuing appointment, including a retired judge
subject to recall who is permitted to practice law. (This term includes part-time law and lay
magistrates, as well as retired judges. This code applies to retired judges unless the retired judge
files a statement of nonconsent to be recalled for judicial service with the Clerk of the South
Dakota Supreme Court.) See Application Section C.
"Court personnel" does not include the lawyers in a proceeding before a judge. See Sections
3B(7)(c) and 3B(9).
"De minimis" denotes an insignificant interest that could not raise reasonable question as to
a judge's impartiality. See Sections 3E(1)(c) and 3E(1)(d).
"Economic interest" denotes ownership of a more than de minimis legal or equitable interest,
or a relationship as officer, director, advisor or other active participant in the affairs of a party,
except that:
(i)
ownership of an interest in a mutual or common investment fund that holds securities
is not an economic interest in such securities unless the judge participates in the
management of the fund or a proceeding pending or impending before the judge could
substantially affect the value of the interest;
(ii)
service by a judge as an officer, director, advisor or other active participant in an
educational, religious, charitable, fraternal or civic organization, or service by a judge's
spouse, parent or child as an officer, director, advisor or other active participant in any
organization does not create an economic interest in securities held by that organization;
(iii)
a deposit in a financial institution, the proprietary interest of a policy holder in a mutual
insurance company, of a depositor in a mutual savings association or of a member in a
credit union, or a similar proprietary interest, is not an economic interest in the
organization unless a proceeding pending or impending before the judge could
substantially affect the value of the interest;
(iv)
ownership of government securities is not an economic interest in the issuer unless a
proceeding pending or impending before the judge could substantially affect the value
of the securities.
See Sections 3E(1)(c) and 3E(2).
"Fiduciary" includes such relationships as personal representative, trustee, and guardian. See
Sections 3E(2) and 4E.
"Impartiality" denotes absence of bias or prejudice in favor of, or against, particular parties or
classes of parties, as well as maintaining an open mind in considering issues that may come before
the judge. See Preamble and Sections 1A, 2A, 3B(10), 3E, 4A, and 5A(3).
"Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of the fact in
question. A person's knowledge may be inferred from circumstances. See Sections 3D, 3E(1), and
5A(3).
"Law" denotes court rules as well as statutes, constitutional provisions and decisional law. See
Sections 2A, 3A, 3B(2), 3B(6), 4B, 4C, 4D(5), 4F, 4I, 5A(2), 5A(3), 5B(2), 5C(1), 5C(3) and 5D.
"Member of the candidate's family" denotes a spouse, child, grandchild, parent, grandparent
or other relative or person with whom the candidate maintains a close familial relationship. See
Section 5A(3)(a).
"Member of the judge's family" denotes a spouse, child, grandchild, parent, grandparent, or
other relative or person with whom the judge maintains a close familial relationship. See Sections
4D(3) 4D(5), 4E and 4G.
"Member of the judge's family residing in the judge's household" denotes any relative of a
judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who
resides in the judge's household. See Sections 3E(1) and 4D(5).
"Nonpublic information" denotes information that, by law, is not available to the public.
Nonpublic information may include but is not limited to: information that is sealed by statute or
court order, impounded or communicated in camera; and information offered in grand jury
proceedings, presentencing reports, dependency cases or psychiatric reports. See Section 3B(11).
"Periodic part-time judge." A periodic part-time judge is a judge who serves or expects to
serve repeatedly on a part-time basis but under a separate appointment for each limited period of
service or for each matter. This term includes child support referees. See Application Section D.
"Political organization" denotes a political party or other group, the principal purpose of which
is to further the election or appointment of candidates to political office. See Sections 5A(1), 5B(2)
and 5C(1).
"Political party." A party whose candidate for Governor at the last preceding general election
at which a Governor was elected received at least two and one-half percent of the total votes cast
for Governor. See Sections 5B(2) and 5C(1).
"Pro tempore part-time judge." A pro tempore part-time judge is a judge who serves or expects
to serve once or only sporadically on a part-time basis under a separate appointment for each
period of service or for each case heard. This term applies to referees and masters appointed under
Rule 53, except child support referees. See Application Section E.
"Public election." This term includes primary and general elections; it includes partisan
elections, nonpartisan elections and retention elections. See Section 5C.
"Require." The rules prescribing that a judge "require" certain conduct of others are, like all
of the rules in this Code, rules of reason. The use of the term "require" in that context means a
judge is to exercise reasonable direction and control over the conduct of those persons subject to
the judge's direction and control. See Sections 3B(3), 3B(4), 3B(5), 3B(6), 3B(9) and 3C(2).
"Third degree of relationship." The following persons are relatives within the third degree of
relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild,
great-grandchild, nephew or niece. See Section 3E(1)(d).
CANON 1
A Judge Shall Uphold the Integrity, Impartiality and Independence of the Judiciary
A. An independent and honorable judiciary is indispensable to justice in our society. A judge
should participate in establishing, maintaining and enforcing high standards of conduct, and shall
personally observe those standards so that the integrity
, impartiality* and independence of the
judiciary will be preserved. The provisions of this Code are to be construed and applied to further
that objective.
COMMENTARY
Deference to the judgments and rulings of courts depends upon public confidence in the
integrity, impartiality and independence of judges. The integrity, impartiality and independence
of judges depends in turn upon their acting without fear or favor. A judiciary of integrity is one
in which judges are known for their probity, fairness, honesty, uprightness, and soundness of
character. An independent judiciary is one free of inappropriate outside influences. Although
judges should be independent, they must comply with the law, including the provisions of this
Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each
judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the
judiciary and thereby does injury to the system of government under law.
CANON 2
A Judge Shall Avoid Impropriety and the Appearance of Impropriety
in All of the Judge's Activities
A. 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.
COMMENTARY
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges.
A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the
subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's
conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and
willingly, without impinging on the judge's or candidate's First Amendment rights of freedom of
speech and association. Examples are the restrictions on judicial speech imposed by Sections
3(B)(9) and (10) that are indispensable to the maintenance of the integrity, impartiality, and
independence of the judiciary.
The prohibition against behaving with impropriety or the appearance of impropriety applies
to both the professional and personal conduct of a judge. Because it is not practicable to list all
prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by
judges that is harmful although not specifically mentioned in the Code. Actual improprieties under
this standard include violations of law, court rules or other specific provisions of this Code. The
test for appearance of impropriety is whether the conduct would create in reasonable minds a
perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality
and competence is impaired.
See also Commentary under Section 2C.
B. A judge shall not allow family, social, political or other relationships to influence the judge's
judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the
private interests of the judge or others; nor shall a judge convey or permit others to convey the
impression that they are in a special position to influence the judge. A judge shall not testify
voluntarily as a character witness.
COMMENTARY
Maintaining the prestige of judicial office is essential to a system of government in which the
judiciary functions independently of the executive and legislative branches. Respect for the judicial
office facilitates the orderly conduct of legitimate judicial functions. Judges should distinguish
between proper and improper use of the prestige of office in all of their activities. For example,
it would be improper for a judge to allude to his or her judgeship to gain a personal advantage
such as deferential treatment when stopped by a police officer for a traffic offense. Similarly,
judicial letterhead must not be used for conducting a judge's personal business.
A judge must avoid lending the prestige of judicial office for the advancement of the private
interests of others. For example, a judge must not use the judge's judicial position to gain
advantage in a civil suit involving a member of the judge's family. In contracts for publication of
a judge's writings, a judge should retain control over the advertising to avoid exploitation of the
judge's office. As to the acceptance of awards, see Section 4D(5)(a) and Commentary.
Although a judge should be sensitive to possible abuse of the prestige of office, a judge may,
based on the judge's personal knowledge, serve as a reference or provide a letter of
recommendation. However, a judge must not initiate the communication of information to a
sentencing judge or a probation or corrections officer but may provide to such persons
information for the record in response to a formal request.
Judges may participate in the process of judicial selection by cooperating with appointing
authorities and screening committees seeking names for consideration, and by responding to
official inquiries concerning a person being considered for a judgeship. See also Canon 5
regarding use of a judge's name in political activities.
A judge must not testify voluntarily as a character witness because to do so may lend the
prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when
a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in
the awkward position of cross-examining the judge. A judge may, however, testify when properly
summoned. Except in unusual circumstances where the demands of justice require, a judge should
discourage a party from requiring the judge to testify as a character witness.
C. A judge shall not hold membership in any organization that practices invidious
discrimination on the basis of race, sex, religion or national origin.
COMMENTARY
Membership of a judge in an organization that practices invidious discrimination gives rise
to perceptions that the judge's impartiality is impaired. Section 2C refers to the current practices
of the organization. Whether an organization practices invidious discrimination is often a complex
question to which judges should be sensitive. The answer cannot be determined from a mere
examination of an organization's current membership rolls but rather depends on how the
organization selects members and other relevant factors, such as that the organization is dedicated
to the preservation of religious, ethnic or cultural values of legitimate common interest to its
members, or that it is in fact and effect an intimate, purely private organization whose membership
limitations could not be constitutionally prohibited. Absent such factors, an organization is
generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis
of race, religion, sex or national origin persons who would otherwise be admitted to membership.
See New York State Club Ass'n. Inc. v. City of New York, 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d
1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107
S.Ct. 1940 (1987), 95 L.Ed.2d 474; Roberts v. United States Jaycees, 468 U.S. 609, 104 Sup.Ct.
3244, 82 L.Ed.2d 462 (1984).
Organizations dedicated to the preservation of religious, fraternal, sororal, spiritual,
charitable, civic, or cultural values, which do not stigmatize any excluded persons as inferior and
therefore unworthy of membership, are not considered to discriminate invidiously.
Although Section 2C relates only to membership in organizations that invidiously discriminate
on the basis of race, sex, religion or national origin, a judge's membership in an organization that
engages in any discriminatory membership practices prohibited by the law of the jurisdiction also
violates Canon 2 and Section 2A and gives the appearance of impropriety. In addition, it would
be a violation of Canon 2 and Section 2A for a judge to arrange a meeting at a club that the judge
knows practices invidious discrimination on the basis of race, sex, religion or national origin in
its membership or other policies, or for the judge to regularly use such a club. Moreover, public
manifestation by a judge of the judge's knowing approval of invidious discrimination on any basis
gives the appearance of impropriety under Canon 2 and diminishes public confidence in the
integrity and impartiality of the judiciary, in violation of Section 2A.
When a person who is a judge on the date this Code becomes effective learns that an
organization to which the judge belongs engages in invidious discrimination that would preclude
membership under Section 2C or under Canon 2 and Section 2A, the judge is permitted, in lieu of
resigning, to make immediate efforts to have the organization discontinue its invidiously
discriminatory practices, but is required to suspend participation in any other activities of the
organization. If the organization fails to discontinue its invidiously discriminatory practices as
promptly as possible (and in all events within a year of the judge's first learning of the practices),
the judge is required to resign immediately from the organization.
CANON 3
A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's
other activities. The judge's judicial duties include all the duties of the judge's office prescribed by
law.* In the performance of these duties, the following standards apply.
B. Adjudicative Responsibilities.
(1)
A judge shall hear and decide matters assigned to the judge except those in which
disqualification is required.
(2)
A judge shall be faithful to the law* and maintain professional competence in it. A
judge shall not be swayed by partisan interests, public clamor or fear of criticism.
(3)
A judge shall require* order and decorum in proceedings before the judge.
(4)
A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers
and others with whom the judge deals in an official capacity, and shall require* similar
conduct of lawyers, and of staff, court officials and others subject to the judge's
direction and control.
B(4) COMMENTARY
The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to
dispose promptly of the business of the court. Judges can be efficient and businesslike while being
patient and deliberate.
(5)
A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the
performance of judicial duties, by words or conduct manifest bias or prejudice,
including but not limited to bias or prejudice based upon race, sex, religion, national
origin, disability or age, and shall not permit staff, court officials and others subject to
the judge's direction and control to do so.
COMMENTARY
A judge must refrain from speech, gestures or other conduct that could reasonably be
perceived as sexual harassment and must require the same standard of conduct of others subject
to the judge's direction and control.
A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any
basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into
disrepute. Facial expression and body language, in addition to oral communication, can give to
parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias.
A judge must be alert to avoid behavior that may be perceived as prejudicial.
(6)
A judge shall require* lawyers in proceedings before the judge to refrain from
manifesting, by words or conduct, bias or prejudice based upon race, sex, religion,
national origin, disability or age, against parties, witnesses, counsel or others. This
Section 3B(6) does not preclude legitimate advocacy when race, sex, religion, national
origin, disability or age, or other similar factors, are issues in the proceeding.
B(6) COMMENTARY
A judge must refrain from speech, gestures or other conduct that could reasonably be
perceived as sexual harassment and must require the same standard of conduct of others subject
to the judge's direction and control.
A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any
basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into
disrepute. Facial expression and body language, in addition to oral communication, can give to
parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias.
A judge must be alert to avoid behavior that may be perceived as prejudicial.
(7)
A judge shall accord to every person who has a legal interest in a proceeding, or that
person's lawyer, the right to be heard according to Law*.* A judge shall not initiate,
permit, or consider ex parte communications, or consider other communications made
to the judge outside the presence of the parties concerning a pending or impending
proceeding except that:
(a)
Where circumstances require, ex parte communications for scheduling,
administrative purposes or emergencies that do not deal with substantive matters
or issues on the merits are authorized; provided:
(i)
the judge reasonably believes that no party will gain a procedural or
tactical advantage as a result of the ex parte communication, and
(ii)
the judge makes provision promptly to notify all other parties of the
substance of the ex parte communication and allows an opportunity to
respond.
(b)
A judge may obtain the advice of a disinterested expert on the law* applicable
to a proceeding before the judge if the judge gives notice to the parties of the
person consulted and the substance of the advice, and affords the parties
reasonable opportunity to respond.
(c)
A judge may consult with court personnel* whose function is to aid the judge in
carrying out the judge's adjudicative responsibilities or with other judges.
(d)
A judge may, with the consent of the parties, confer separately with the parties
and their lawyers in an effort to mediate or settle matters pending in any circuit
court in the state.
(e)
A judge may initiate or consider any ex parte communications when expressly
authorized by law* to do so.
B(7) COMMENTARY
The proscription against communications concerning a proceeding includes communications
from lawyers, law teachers, and other persons who are not participants in the proceeding, except
to the limited extent permitted.
To the extent reasonably possible, all parties or their lawyers shall be included in
communications with a judge.
Whenever presence of a party or notice to a party is required by Section 3B(7), it is the party's
lawyer, or if the party is unrepresented the party, who is to be present or to whom notice is to be
given.
An appropriate and often desirable procedure for a court to obtain the advice of a
disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.
Certain ex parte communication is approved by Section 3B(7) to facilitate scheduling and
other administrative purposes and to accommodate emergencies. In general, however, a judge
must discourage ex parte communication and allow it only if all the criteria stated in Section 3B(7)
are clearly met. A judge must disclose to all parties all ex parte communications described in
Sections 3B(7)(a) and 3B(7)(b) regarding a proceeding pending or impending before the judge.
A judge must not independently investigate facts in a case and must consider only the evidence
presented.
A judge may request a party to submit proposed findings of fact and conclusions of law, so
long as the other parties are apprised of the request and are given an opportunity to respond to
the proposed findings and conclusions.
A judge must make reasonable efforts, including the provision of appropriate supervision, to
ensure that Section 3B(7) is not violated through law clerks or other personnel on the judge's staff.
If communication between the trial judge and the appellate court with respect to a proceeding
is permitted, a copy of any written communication or the substance of any oral communication
should be provided to all parties.
(8)
A judge shall dispose of all judicial matters promptly, efficiently and fairly and shall
report promptly and accurately all undecided matters in compliance with the reporting
requirements of the Supreme Court.
B(8) COMMENTARY
In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due regard
for the rights of the parties to be heard and to have issues resolved without unnecessary cost or
delay. Containing costs while preserving fundamental rights of parties also protects the interests
of witnesses and the general public. A judge should monitor and supervise cases so as to reduce
or eliminate dilatory practices, avoidable delays and unnecessary costs. A judge should encourage
and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to
have their controversy resolved by the courts.
Prompt disposition of the court's business requires a judge to devote adequate time to judicial
duties, to be punctual in attending court and expeditious in determining matters under submission,
and to insist that court officials, litigants and their lawyers cooperate with the judge to that end.
(9)
A judge shall not, while a proceeding is pending or impending in any court, make any
public comment that might reasonably be expected to affect its outcome or impair its
fairness or make any nonpublic comment that might substantially interfere with a fair
trial or hearing. The judge shall require* similar abstention on the part of court
personnel* subject to the judge's direction and control. This Section does not prohibit
judges from making public statements in the course of their official duties or from
explaining for public information the procedures of the court. This Section does not
apply to proceedings in which the judge is a litigant in a personal capacity.
COMMENTARY
The requirement that judges abstain from public comment regarding a pending or impending
proceeding continues during any appellate process and until final disposition. This Section does
not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal
capacity, but in cases such as a writ of mandamus where the judge is a litigant in an official
capacity, the judge must not comment publicly. The conduct of lawyers relating to trial publicity
is governed by DR 7-107 of the Code of Professional Responsibility.
(10)
A judge shall not
commend or criticize jurors for their verdict other than in a court order
or opinion in a proceeding, but may express appreciation to jurors for their service to
the judicial system and the community, with respect to cases, controversies or issues
that are likely to come before the court, make pledges, promises or commitments that
are inconsistent with the impartial* performance of the adjudicative duties of the office.
B(9)(10) COMMENTARY
Commending or criticizing jurors for their verdict may imply a judicial expectation in future
cases and may impair a juror's ability to be fair and impartial in a subsequent case. Sections 3B(9)
and (10) restrictions on judicial speech are essential to the maintenance of the integrity,
impartiality, and independence of the judiciary. A pending proceeding is one that has begun but
not yet reached final disposition. An impending proceeding is one that is anticipated but not yet
begun. The requirement that judges abstain from public comment regarding a pending or
impending proceeding continues during any appellate process and until final disposition. Sections
3B(9) and (10) do not prohibit a judge from commenting on proceedings in which the judge is a
litigant in a personal capacity, but in cases such as a writ of mandamus where the judge is a
litigant in an official capacity, the judge must not comment publicly. The conduct of lawyers
relating to trial publicity is governed by South Dakota Rule of Professional Conduct 3.6.
(10)(11)
A judge shall not commend or criticize jurors for their verdict other than in a
court order or opinion in a proceeding, but may express appreciation to jurors for
their service to the judicial system and the community.
COMMENTARY
Commending or criticizing jurors for their verdict may imply a judicial expectation in future
cases and may impair a juror's ability to be fair and impartial in a subsequent case.
(11)(12)
A judge shall not disclose or use, for any purpose unrelated to judicial duties,
nonpublic information* acquired in a judicial capacity.
(12)(13)
With the exception of the rules for expanded media coverage of appellate court
proceedings, a judge should prohibit broadcasting, televising, recording, or taking
photographs in the courtroom and areas immediately adjacent thereto during
sessions of court or recess between sessions, except that a judge may authorize:
(a)
the use of electronic or photographic means for the presentation of evidence, for
the perpetuation of a record, or for other purposes of judicial administration;
(b)
the broadcasting, televising, recording, or photographing of investitive,
ceremonial, or naturalization proceedings;
(c)
the photographic or electronic recording and reproduction of appropriate court
proceedings under the following conditions:
(i)
the means of recording will not distract participants or impair the dignity
of the proceedings;
(ii)
the parties have consented, and the consent to being depicted or recorded
has been obtained from each witness appearing in the recording and
reproduction;
(iii)
the reproduction will not be exhibited until after the proceeding has been
concluded and all direct appeals have been exhausted; and
(iv)
the reproduction will be exhibited only for instructional purposes in
educational institutions.
COMMENTARY
Temperate conduct of judicial proceedings is essential to the fair administration of justice. The
recording and reproduction of a proceeding should not distort or dramatize the proceeding.
C. Administrative Responsibilities.
(1)
A judge shall diligently discharge the judge's administrative responsibilities without bias
or prejudice and maintain professional competence in judicial administration, and
should cooperate with other judges and court officials in the administration of court
business.
(2)
A judge shall require* staff, court officials and others subject to the judge's direction
and control to observe the standards of fidelity and diligence that apply to the judge and
to refrain from manifesting bias or prejudice in the performance of their official duties.
(3)
A judge with supervisory authority for the judicial performance of other judges shall
take reasonable measures to assure the prompt disposition of matters before them and
the proper performance of their other judicial responsibilities.
(4)
A judge shall not make unnecessary appointments. A judge shall exercise the power of
appointment impartially and on the basis of merit. A judge shall avoid nepotism and
favoritism. A judge shall not approve compensation of appointees beyond the fair value
of services rendered.
COMMENTARY
Appointees of a judge include assigned counsel, officials such as referees, commissioners,
special masters, receivers and guardians and personnel such as clerks, secretaries and bailiffs.
Consent by the parties to an appointment or an award of compensation does not relieve the judge
of the obligation prescribed by Section 3C(4).
D. Disciplinary Responsibilities.
(1)
A judge who receives information indicating a substantial likelihood that another judge
has committed a violation of this Code should take appropriate action. A judge having
knowledge* that another judge has committed a violation of this Code that raises a
substantial question as to the other judge's fitness for office shall inform the appropriate
authority.*
(2)
A judge who receives information indicating a substantial likelihood that a lawyer has
committed a violation of the Code of Professional Responsibility should take
appropriate action. A judge having knowledge* that a lawyer has committed a violation
of the Code of Professional Responsibility that raises a substantial question as to the
lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the
appropriate authority.*
(3)
Acts of a judge, in the discharge of disciplinary responsibilities, required or permitted
by Sections 3D(1) and 3D(2) are part of a judge's judicial duties and shall be absolutely
privileged, and no civil action predicated thereon may be instituted against the judge.
COMMENTARY
Appropriate action may include direct communication with the judge or lawyer who has
committed the violation, other direct action if available, and reporting the violation to the
appropriate authority or other agency or body.
(1)
A judge shall disqualify himself or herself in a proceeding in which the judge's
impartiality
* might reasonably be questioned, including but not limited to instances
where:
E(1) COMMENTARY
Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be
questioned, regardless whether any of the specific rules in Section 3E(1) apply. For example, if
a judge were in the process of negotiating for employment with a law firm, the judge would be
disqualified from any matters in which that law firm appeared, unless the disqualification was
waived by the parties after disclosure by the judge.
A judge should disclose on the record information that the judge believes the parties or their
lawyers might consider relevant to the question of disqualification, even if the judge believes there
is no real basis for disqualification.
By decisional law, the rule of necessity may override the rule of disqualification. For example,
a judge might be required to participate in judicial review of a judicial salary statute, or might be
the only judge available in a matter requiring immediate judicial action, such as a hearing on
probable cause or a temporary restraining order. In the latter case, the judge must disclose on the
record the basis for possible disqualification and use reasonable efforts to transfer the matter to
another judge as soon as practicable.
(a)
the judge has a personal bias or prejudice concerning a party or a party's lawyer,
or personal knowledge* of disputed evidentiary facts concerning the proceeding;
(b)
the judge served as a lawyer in the matter in controversy, or a lawyer with whom
the judge previously practiced law served during such association as a lawyer
concerning the matter, or the judge has been a material witness concerning it.
E(1)(b) COMMENTARY
A lawyer in a government agency does not ordinarily have an association with other lawyers
employed by that agency within the meaning of Section 3E(1)(b); a judge formerly employed by
a government agency, however, should disqualify himself or herself in a proceeding if the judge's
impartiality might reasonably be questioned because of such association.
(c)
the judge knows* that he or she, individually or as a fiduciary,* or the judge's
spouse, parent or child wherever residing, or any other member of the judge's
family residing in the judge's household,* has an economic interest* in the
subject matter in controversy or in a party to the proceeding or has any other
more than de minimis* interest that could be substantially affected by the
outcome of the proceeding;
(d)
the judge or the judge's spouse, or a person within the third degree of
relationship* to either of them or the spouse of such a person:
(i)
is a party to the proceeding, or an officer, director or trustee of a party;
(ii)
is acting as a lawyer in the proceeding;
(iii)
is known * by the judge to have a more than de minimis* interest that
could be substantially affected by the proceeding, but the judge shall
disclose such de minimis interest to the parties;
(iv)
is to the judge's knowledge* likely to be a material witness in the
proceeding.
E(1)(d) COMMENTARY
The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the
judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact
that "the judge's impartiality might reasonably be questioned" under Section 3E(1), or that the
relative is known by the judge to have an interest in the law firm that could be "substantially
affected by the outcome of the proceeding" under Section 3E(1)(d)(iii) may require the judge's
disqualification.
(e)
the judge, while a judge or a candidate* for judicial office, has made a public
statement that commits, or appears to commit, the judge with respect to:
(i)
an issue in the proceeding; or
(ii)
the controversy in the proceeding.
E(1)(e) COMMENTARY
Candidates for judicial office often receive questionnaires or requests for interviews from the
media and from issue advocacy or other community organizations, seeking to learn their views on
disputed or controversial legal or political issues. Expressing such views may require a judge's
recusal or disqualification. Candidates are generally not prohibited from responding to this kind
of inquiry, but candidates should proceed with caution if they choose to respond. Depending on
the wording of the questions and the format provided for answering, a candidate's responses might
constitute pledges, promises or commitments to perform the adjudicative duties of office other than
in an impartial way. In order to avoid violating Canon 3, therefore, candidates who choose to
respond should make clear their commitment to keeping an open mind while on the bench,
regardless of their own personal views. If elected, such candidate shall be recused from cases
where a candidate's responses constitute pledges, promises or commitments to perform the
adjudicative duties of office other than in an impartial way.
(2)
A judge shall keep informed about the judge's personal and fiduciary* economic
interests,* and make a reasonable effort to keep informed about the personal economic
interests* of the judge's spouse and minor children residing in the judge's household.
(3)
A judge or candidate* who answers a written questionnaire seeking the judge's or
candidate's* views on disputed or controversial legal or political issues shall file a copy
of any response with the Clerk of the Supreme Court within ten days of the submission
of the response to the questionnaire.
F. Remittal of Disqualification.
A judge disqualified by the terms of Section 3E may disclose on the record the basis of the
judge's disqualification and may ask the parties and their lawyers to consider, out of the presence
of the judge, whether to waive disqualification. If following disclosure of any basis for
disqualification other than personal bias or prejudice concerning a party, the parties and lawyers,
without participation by the judge, all agree that the judge should not be disqualified, and the judge
is then willing to participate, the judge may participate in the proceeding. The agreement shall be
incorporated in the record of the proceeding.
COMMENTARY
A remittal procedure provides the parties an opportunity to proceed without delay if they wish
to waive the disqualification. To assure that consideration of the question of remittal is made
independently of the judge, a judge must not solicit, seek or hear comment on possible remittal or
waiver of the disqualification unless the lawyers jointly propose remittal after consultation as
provided in the rule. A party may act through counsel if counsel represents on the record that the
party has been consulted and consents. As a practical matter, a judge may wish to have all parties
and their lawyers sign the remittal agreement.
CANON 4
A Judge Shall So Conduct the Judge's Extra-Judicial Activities as to
Minimize the Risk of Conflict With Judicial Obligations
A. Extra-judicial Activities in General. A judge, subject to the proper performance of his
judicial duties may engage in the following quasi-judicial activities, if in doing so he does not cast
doubt on his capacity to decide impartially
* any issue that may come before him. He may speak,
write, lecture, teach, and participate in other activities concerning the law, the legal system, and
the administration of justice. A judge shall conduct all of the judge's extra-judicial activities so that
they do not:
(1)
cast reasonable doubt on the judge's capacity to act impartially* as a judge;
(2)
demean the judicial office; or
(3)
interfere with the proper performance of judicial duties.
COMMENTARY
Complete separation of a judge from extra-judicial activities is neither possible nor wise; a
judge should not become isolated from the community in which the judge lives.
Expressions of bias or prejudice by a judge, even outside the judge's judicial activities, may
cast reasonable doubt on the judge's capacity to act impartially as a judge. Expressions which may
do so include jokes or other remarks demeaning individuals on the basis of their race, sex,
religion, national origin, disability or age. See Section 2C and accompanying Commentary.
B. Avocational Activities. A judge may speak, write, lecture, teach and participate in other
extra-judicial activities concerning the law,* the legal system, the administration of justice and
non-legal subjects, subject to the requirements of this Code.
COMMENTARY
As a judicial officer and person specially learned in the law, a judge is in a unique position
to contribute to the improvement of the law, the legal system, and the administration of justice,
including revision of substantive and procedural law and improvement of criminal and juvenile
justice. To the extent that time permits, a judge is encouraged to do so, either independently or
through a bar association, judicial conference or other organization dedicated to the improvement
of the law. Judges may participate in efforts to promote the fair administration of justice, the
independence of the judiciary and the integrity of the legal profession and may express opposition
to the persecution of lawyers and judges in other countries because of their professional activities.
In this and other Sections of Canon 4, the phrase "subject to the requirements of this Code"
is used, notably in connection with a judge's governmental, civic or charitable activities. This
phrase is included to remind judges that the use of permissive language in various Sections of the
Code does not relieve a judge from the other requirements of the Code that apply to the specific
conduct.
C. Governmental, Civic or Charitable Activities.
(1)
A judge shall not appear at a public hearing before, or otherwise consult with, an
executive or legislative body or official except on matters concerning the law,
* the legal
system or the administration of justice or except when acting pro se in a matter
involving the judge or the judge's interests.
COMMENTARY
See Section 2B regarding the obligation to avoid improper influence.
(2)
A judge shall not accept appointment to a governmental committee or commission or
other governmental position that is concerned with issues of fact or policy on matters
other than the improvement of the law,* the legal system, or the administration of
justice. A judge may, however, represent a country, state or locality on ceremonial
occasions or in connection with historical, educational or cultural activities.
COMMENTARY
Section 4C(2) prohibits a judge from accepting any governmental position except one relating
to the law, legal system or administration of justice as authorized by Section 4C(3). The
appropriateness of accepting extra-judicial assignments must be assessed in light of the demands
on judicial resources created by crowded dockets and the need to protect the courts from
involvement in extra-judicial matters that may prove to be controversial. Judges should not accept
governmental appointments that are likely to interfere with the effectiveness and independence of
the judiciary.
Section 4C(2) does not govern a judge's service in a nongovernmental position. See Section
4C(3) permitting service by a judge with organizations devoted to the improvement of the law, the
legal system or the administration of justice and with educational, religious, charitable, fraternal
or civic organizations not conducted for profit. For example, service on the board of a public
educational institution, unless it were a law school, would be prohibited under Section 4C(2), but
service on the board of a public law school or any private educational institution would generally
be permitted under Section 4C(3).
(3)
A judge may serve as an officer, director, trustee or non-legal advisor of an organization
or governmental agency devoted to the improvement of the law,* the legal system or the
administration of justice or of an educational, religious, charitable, fraternal or civic
organization not conducted for profit, subject to the following limitations and the other
requirements of this Code:
COMMENTARY
Section 4C(3) does not apply to a judge's service in a governmental position unconnected with
the improvement of the law, the legal system or the administration of justice; see Section 4C(2).
See Commentary to Section 4B regarding use of the phrase "subject to the following
limitations and the other requirements of this Code." As an example of the meaning of the phrase,
a judge permitted by Section 4C(3) to serve on the board of a fraternal institution may be
prohibited from such service by Sections 2C or 4A if the institution practices invidious
discrimination or if service on the board otherwise casts reasonable doubt on the judge's capacity
to act impartially as a judge.
Service by a judge on behalf of a civic or charitable organization may be governed by other
provisions of Canon 4 in addition to Section 4C. For example, a judge is prohibited by Section 4G
from serving as a legal advisor to a civic or charitable organization.
(a)
A judge shall not serve as an officer, director, trustee or non-legal advisor if it is
likely that the organization
(i)
will be engaged in proceedings that would ordinarily come before the
judge, or
(ii)
will be engaged frequently in adversary proceedings in the court of which
the judge is a member or in any court subject to the appellate jurisdiction
of the court of which the judge is a member.
COMMENTARY
The changing nature of some organizations and of their relationship to the law makes it
necessary for a judge regularly to reexamine the activities of each organization with which the
judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example,
in many jurisdictions charitable hospitals are now more frequently in court than in the past.
Similarly, the boards of some legal aid organizations now make policy decisions that may have
political significance or imply commitment to causes that may come before the courts for
adjudication.
(b)
A judge as an officer, director, trustee or non-legal advisor, or as a member or
otherwise:
(i)
may assist such an organization in planning fund-raising and may
participate in the management and investment of the organization's funds,
but shall not personally participate in the solicitation of funds or
participate in other fund-raising activities, except that a judge may solicit
funds from other judges over whom the judge does not exercise
supervisory or appellate authority;
(ii)
may make recommendations to public and private fund-granting
organizations on projects and programs concerning the law,* the legal
system or the administration of justice;
(iii)
shall not personally participate in membership solicitation if the
solicitation might reasonably be perceived as coercive or, except as
permitted in Section 4C(3)(b)(i), if the membership solicitation is
essentially a fund-raising mechanism;
(iv)
shall not use or permit the use of the prestige of judicial office for
fund-raising or membership solicitation.
COMMENTARY
A judge may solicit membership or endorse or encourage membership efforts for an
organization devoted to the improvement of the law, the legal system or the administration of
justice or a nonprofit educational, religious, charitable, fraternal or civic organization as long as
the solicitation cannot reasonably be perceived as coercive and is not essentially a fund-raising
mechanism. Solicitation of funds for an organization and solicitation of memberships similarly
involve the danger that the person solicited will feel obligated to respond favorably to the solicitor
if the solicitor is in a position of influence or control. A judge must not engage in direct, individual
solicitation of funds or memberships in person, in writing or by telephone except in the following
cases: 1) a judge may solicit for funds or memberships other judges over whom the judge does not
exercise supervisory or appellate authority, 2) a judge may solicit other persons for membership
in the organizations described above if neither those persons nor persons with whom they are
affiliated are likely ever to appear before the court on which the judge serves and 3) a judge who
is an officer of such an organization may send a general membership solicitation mailing over the
judge's signature.
Use of an organization letterhead for fund-raising or membership solicitation does not violate
Section 4C(3)(b) provided the letterhead lists only the judge's name and office or other position
in the organization, and, if comparable designations are listed for other persons, the judge's
judicial designation. In addition, a judge must also make reasonable efforts to ensure that the
judge's staff, court officials and others subject to the judge's direction and control do not solicit
funds on the judge's behalf for any purpose, charitable or otherwise.
A judge must not be a speaker or guest of honor at an organization's fund-raising event, but
mere attendance at such an event is permissible if otherwise consistent with this Code.
(1)
A judge shall not engage in financial and business dealings that:
(a)
may reasonably be perceived to exploit the judge's judicial position, or
(b)
involve the judge in frequent transactions or continuing business relationships
with those lawyers or other persons likely to come before the court on which the
judge serves.
COMMENTARY
The Time for Compliance provision of this Code (Application, Section F) postpones the time
for compliance with certain provisions of this Section in some cases.
When a judge acquires in a judicial capacity information, such as material contained in filings
with the court, that is not yet generally known, the judge must not use the information for private
gain. See Section 2B; see also Section 3B(11).
A judge must avoid financial and business dealings that involve the judge in frequent
transactions or continuing business relationships with persons likely to come either before the
judge personally or before other judges on the judge's court. In addition, a judge should
discourage members of the judge's family from engaging in dealings that would reasonably appear
to exploit the judge's judicial position. This rule is necessary to avoid creating an appearance of
exploitation of office or favoritism and to minimize the potential for disqualification. With respect
to affiliation of relatives of judges with law firms appearing before the judge, see Commentary to
Section 3E(1) relating to disqualification.
Participation by a judge in financial and business dealings is subject to the general
prohibitions in Section 4A against activities that tend to reflect adversely on impartiality, demean
the judicial office, or interfere with the proper performance of judicial duties. Such participation
is also subject to the general prohibition in Canon 2 against activities involving impropriety or
the appearance of impropriety and the prohibition in Section 2B against the misuse of the prestige
of judicial office. In addition, a judge must maintain high standards of conduct in all of the judge's
activities, as set forth in Canon 1. See Commentary for Section 4B regarding use of the phrase
"subject to the requirements of this Code."
(2)
RESERVED.
(3)
Subject to the requirement of subsection (1), a judge may hold and manage investments,
including real estate and engage in other remunerative activity including the operation
of a business.
(4)
A judge shall manage the judge's investments and other financial interests to minimize
the number of cases in which the judge is disqualified. As soon as the judge can do so
without serious financial detriment, the judge shall divest himself or herself of
investments and other financial interests that might require frequent disqualification.
(5)
A judge shall not accept, and shall urge members of the judge's family residing in the
judge's household* not to accept a gift, bequest, favor or loan from anyone except for:
COMMENTARY
Section 4D(5) does not apply to contributions to a judge's campaign for judicial office, a
matter governed by Canon 5.
Because a gift, bequest, favor or loan to a member of the judge's family residing in the judge's
household might be viewed as intended to influence the judge, a judge must inform those family
members of the relevant ethical constraints upon the judge in this regard and discourage those
family members from violating them. A judge cannot, however, reasonably be expected to know
or control all of the financial or business activities of all family members residing in the judge's
household.
(a)
a gift incident to a public testimonial, books, tapes and other resource materials
supplied by publishers on a complimentary basis for official use, or an invitation
to the judge and the judge's spouse or guest to attend a bar-related function or an
activity devoted to the improvement of the law,* the legal system or the
administration of justice;
COMMENTARY
Acceptance of an invitation to a law-related function is governed by Section 4D(5)(a);
acceptance of an invitation paid for by an individual lawyer or group of lawyers is governed by
Section 4D(5)(h).
A judge may accept a public testimonial or a gift incident thereto only if the donor
organization is not an organization whose members comprise or frequently represent the same
side in litigation, and the testimonial and gift are otherwise in compliance with other provisions
of this Code. See Sections 4A(1) and 2B.
(b)
a gift, award or benefit incident to the business, profession or other separate
activity of a spouse or other family member of a judge residing in the judge's
household, including gifts, awards and benefits for the use of both the spouse or
other family member and the judge (as spouse or family member), provided the
gift, award or benefit could not reasonably be perceived as intended to influence
the judge in the performance of judicial duties;
(c)
ordinary social hospitality;
(d)
a gift from a relative or friend, for a special occasion, such as a wedding,
anniversary or birthday, if the gift is fairly commensurate with the occasion and
the relationship;
COMMENTARY
A gift to a judge, or to a member of the judge's family living in the judge's household, that is
excessive in value raises questions about the judge's impartiality and the integrity of the judicial
office and might require disqualification of the judge where disqualification would not otherwise
be required. See, however, Section 4D(5)(e).
(e)
a gift, bequest, favor or loan from a relative or close personal friend whose
appearance or interest in a case would in any event require disqualification under
Section 3E;
(f)
a loan from a lending institution in its regular course of business on the same
terms generally available to persons who are not judges;
(g)
a scholarship or fellowship awarded on the same terms and based on the same
criteria applied to other applicants; or
(h)
any other gift, bequest, favor or loan, only if: the donor is not a party or other
person who has come or is likely to come or whose interests have come or are
likely to come before the judge; and, if its value exceeds $150.00, the judge
reports it in the same manner as the judge reports compensation in Section 4H.
COMMENTARY
Section 4D(5)(h) prohibits judges from accepting gifts, favors, bequests or loans from lawyers
or their firms if they have come or are likely to come before the judge; it also prohibits gifts,
favors, bequests or loans from clients of lawyers or their firms when the clients' interests have
come or are likely to come before the judge.
(1)
Unless specifically approved by the Supreme Court, a judge shall not serve as executor,
administrator or other personal representative, trustee, guardian, attorney in fact or other
fiduciary,* except for the estate, trust or person of a member of the judge's family,* and
then only if such service will not interfere with the proper performance of judicial
duties.
(2)
A judge shall not serve as a fiduciary* if it is likely that the judge as a fiduciary will be
engaged in proceedings that would ordinarily come before the judge, or if the estate,
trust, or ward becomes involved in adversary proceedings in the court on which the
judge serves or one under its appellate jurisdiction.
(3)
The same restrictions on financial activities that apply to a judge personally also apply
to the judge while acting in a fiduciary* capacity.
COMMENTARY
The Time for Compliance provision of this Code (Application, Section F) postpones the time
for compliance with certain provisions of this Section in some cases.
The restrictions imposed by this Canon may conflict with the judge's obligation as a fiduciary.
For example, a judge should resign as trustee if detriment to the trust would result from divestiture
of holdings the retention of which would place the judge in violation of Section 4D(4).
F. Service as Arbitrator or Mediator. A judge shall not act as an arbitrator or mediator or
otherwise perform judicial functions in a private capacity unless expressly authorized by law.*
COMMENTARY
Section 4F does not prohibit a judge from participating in arbitration, mediation or settlement
conferences performed as part of judicial duties.
G. Practice of Law. A judge shall not practice law. Notwithstanding this prohibition, a judge
may act pro se and may, without compensation, give legal advice to and draft or review documents
for a member of the judge's family.*
COMMENTARY
This prohibition refers to the practice of law in a representative capacity and not in a pro se
capacity. A judge may act for himself or herself in all legal matters, including matters involving
litigation and matters involving appearances before or other dealings with legislative and other
governmental bodies. However, in so doing, a judge must not abuse the prestige of office to
advance the interests of the judge or the judge's family. See Section 2(B).
The Code allows a judge to give legal advice to and draft legal documents for members of the
judge's family, so long as the judge receives no compensation. A judge must not, however, act as
an advocate or negotiator for a member of the judge's family in a legal matter.
H. Compensation, Reimbursement and Reporting.
(1)
Compensation and Reimbursement. A judge may receive compensation and
reimbursement of expenses for the quasi-judicial and extra-judicial activities permitted
by this Code, if the source of such payments does not give the appearance of influencing
the judge in his judge's performance of judicial duties or otherwise give the appearance
of impropriety, subject to the following restrictions:
(a)
Compensation shall not exceed a reasonable amount nor shall it exceed what a
person who is not a judge would receive for the same activity.
(b)
Expense reimbursement shall be limited to the actual cost of travel, food, and
lodging reasonably incurred by the judge and, where appropriate to the occasion,
by the judge's spouse or guest. Any payment in excess of such an amount is
compensation.
(2)
Public Reports. A judge shall report the date, place and nature of any activity for which
the judge received compensation, and the name of the payor and the amount of
compensation so received. Compensation or income of a spouse attributed to the judge
by operation of a community property law is not extra-judicial compensation to the
judge. The judge's report shall be made at least annually and shall be filed as a public
document in the office of the Clerk of the South Dakota Supreme Court.
COMMENTARY
See Section 4D(5) regarding reporting of gifts, bequests and loans.
The Code does not prohibit a judge from accepting honoraria or speaking fees provided that
the compensation is reasonable and commensurate with the task performed. A judge should
ensure, however, that no conflicts are created by the arrangement. A judge must not appear to
trade on the judicial position for personal advantage. Nor should a judge spend significant time
away from court duties to meet speaking or writing commitments for compensation. In addition,
the source of the payment must not raise any question of undue influence or the judge's ability or
willingness to be impartial.
I.
Disclosure of a judge's income, debts, investments or other assets. Disclosure of a judge's
income, debts, investments or other assets is required only to the extent provided in this Canon and
in Sections 3E and 3F, or as otherwise required by law.*
COMMENTARY
Section 3E requires a judge to disqualify himself or herself in any proceeding in which the
judge has an economic interest. See "economic interest" as explained in the Terminology Section.
Section 4D requires a judge to refrain from engaging in business and from financial activities that
might interfere with the impartial performance of his judicial duties; Section 4H requires a judge
to report all compensation the judge received for activities outside judicial office. A judge has the
rights of any other citizen, including the right to privacy of the judge's financial affairs, except to
the extent that limitations established by law are required to safeguard the proper performance
of the judge's duties.
CANON 5
A Judge or Judicial Candidate Shall Refrain from
Inappropriate Political Activity
A. All Judges and Candidates
(1)
Except as authorized in Sections 5B(2), 5C(1) and 5C(3), a judge or a candidate* for
election or appointment to judicial office shall not:
(a)
act as a leader or hold an office in a political organization*;
(b)
publicly endorse or publicly oppose another candidate for public office;
(c)
make speeches on behalf of a political organization*; or
(d)
attend political gatherings; or
(e)
solicit funds for
, pay an assessment to or make a contribution to a political
organization
* or candidate
, or purchase tickets for political party dinners or other
functions.
*
COMMENTARY
A judge or candidate for judicial office retains the right to participate in the political process
as a voter. As South Dakota maintains a partisan primary election process SDCL 12-6-26, this
provision insures that a judge or candidate may still declare a party affiliation for voting purposes
without violating ethical standards.
Where false information concerning a judicial candidate is made public, a judge or another
judicial candidate having knowledge of the facts is not prohibited by Section 5A(1) from making
the facts public.
Section 5A(1)(a) does not prohibit a candidate for elective judicial office from retaining during
candidacy a public office such as county prosecutor, which is not "an office in a political
organization."
Section 5A(1)(b) does not prohibit a judge or judicial candidate from privately expressing his
or her views on judicial candidates or other candidates for public office.
A candidate does not publicly endorse another candidate for public office by having that
candidate's name on the same ticket.
(2)
A judge shall resign from judicial office upon becoming a candidate* for a non-judicial
office either in a primary or in a general election, except that the judge may continue to
hold judicial office while being a candidate
* for election to or serving as a delegate in
a state constitutional convention if the judge is otherwise permitted by law* to do so.
COMMENTARY
This section applies regardless of whether the office sought is partisan or nonpartisan.
(3)
A candidate* for a judicial office:
(a)
shall maintain the dignity appropriate to judicial office and act in a manner
consistent with the integrity
, impartiality,* and independence of the judiciary,
and shall encourage members of the candidate's family* to adhere to the same
standards of political conduct in support of the candidate as apply to the
candidate
*;
COMMENTARY
Although a judicial candidate must encourage members of his or her family to adhere to the
same standards of political conduct in support of the candidate that apply to the candidate, family
members are free to participate in other political activity.
(b)
shall prohibit employees and officials who serve at the pleasure of the
candidate,* and shall discourage other employees and officials subject to the
candidate's direction and control from doing on the candidate's behalf what the
candidate* is prohibited from doing under the Sections of this Canon;
(c)
except to the extent permitted by Section 5C(2), shall not authorize or
knowingly* permit any other person to do for the candidate* what the candidate*
is prohibited from doing under the Sections of this Canon;
(d)
shall not:
(i)
with respect to cases, controversies, or issues that are likely to come
before the court, make pledges or, promises of conduct in office other than
the faithful and, or commitments that are inconsistent with the impartial*
performance of the adjudicative duties of the office; or
(ii)
make statements that commit or appear to commit the candidate with
respect to cases, controversies or issues that are likely to come before the
court; or
(iii)
knowingly* misrepresent the identity, qualifications, present position or
other fact concerning the candidate
* or an opponent;
COMMENTARY
Section 5A(3)(d) prohibits a candidate for judicial office from making statements that appear
to commit the candidate regarding cases, controversies or issues likely to come before the court.
As a corollary, a pledges, promises or commitments that are inconsistent with the impartial
performance of the adjudicative duties of the office regarding cases, controversies or issues that
are likely to come before the court. A candidate should emphasize in any public statement the
candidate's duty to uphold the law regardless of the candidate's views. See also Section Sections
3B(9) and (10), the general rule rules on public comment by judges. Section 5A(3)(d) does not
prohibit a candidate from making pledges or promises respecting improvements in court
administration. Nor does this Section prohibit an incumbent judge from making private statements
to other judges or court personnel in the performance of judicial duties. This Section applies to
any statement made in the process of securing judicial office, such as statements to commissions
charged with judicial selection and tenure and legislative bodies confirming appointment. See
also, Rule 8.2 of South Dakota's Model Rules of Professional Conduct SDCL 16-18 (Appx.
Adopted July 1, 1988). The promises and commitments clause must be narrowly construed and
cautiously applied to campaign speech.
(e)
may respond to personal attacks or attacks on the candidate's record as long as
the response does not violate Section 5A(3)(d).
B. Candidates Seeking Appointment to Judicial or Other Governmental Office.
(1)
A candidate* for appointment to judicial office or a judge seeking other governmental
office shall not solicit or accept funds, personally or through a committee or otherwise,
to support his or her candidacy.
(2)
A candidate* for appointment to judicial office or a judge seeking other governmental
office shall not engage in any political activity to secure the appointment except that:
(a)
such persons may, unless otherwise prohibited by law:*
(i)
communicate with the appointing authority, including any selection or
nominating commission or other agency designated to screen candidates;
(ii)
seek support or endorsement for the appointment from organizations that
regularly make recommendations for reappointment or appointment to the
office, and from individuals to the extent requested or required by those
specified in Section 5B(2)(a); and
(iii)
provide to those specified in Sections 5B(2)(a)(i) and 5B(2)(a)(ii)
information as to his or her qualifications for the office;
(b)
a non-judge candidate* for appointment to judicial office may, in addition, unless
otherwise prohibited by law*:
(i)
retain an office in a political organization*,
(ii)
attend political gatherings, and
(iii)
continue to pay ordinary assessments and ordinary contributions to a
political organization
* or candidate and purchase tickets for political
party
* dinners or other functions.
COMMENTARY
Section 5B(2) provides a limited exception to the restrictions imposed by Sections 5A(1) and
5D. Under Section 5B(2), candidates seeking reappointment to the same judicial office or
appointment to another judicial office or other governmental office may apply for the appointment
and seek appropriate support.
Although under Section 5B(2) non-judge candidates seeking appointment to judicial office are
permitted during candidacy to retain office in a political organization, attend political gatherings
and pay ordinary dues and assessments, they remain subject to other provisions of this Code
during candidacy. See Sections 5B(1), 5B(2)(a), 5E and Application Section.
C. Judges and Candidates Subject to Public Election.
(1)
A judge or a candidate* subject to public election* may, except as provided by law:*
(a)
at any time
(i)
purchase tickets for and attend political gatherings;
(ii)
identify himself or herself as a member of a political party for voting
purposes only; and*;
(iii)
contribute to a political organization* [or candidate]; and
(iv)
speak to gatherings on his or her own behalf;
(b)
when a candidate for election
(i)
speaks to gatherings on his or her own behalf;
(ii)
appears appear in newspaper, television and other media advertisements
supporting his or her candidacy;
(iii)(ii)
distributes distribute pamphlets and other promotional campaign
literature supporting his or her candidacy; and
(iv)(iii)
publicly
endorses endorse or publicly
opposes oppose other
candidates for the same judicial office in a public election in which
the judge or judicial candidate is running.
COMMENTARY
Section 5C(1) permits judges subject to election to be involved in limited certain political
activity. Section 5D, applicable solely to incumbent judges, would otherwise bar this activity. The
conduct of a judicial campaign and the manner of presentation of any material in connection with
a campaign for judicial office should comport with the dignity and integrity required of that office.
(2)
A candidate* shall not personally solicit or accept campaign contributions or personally
solicit publicly stated support. A candidate may, however, establish committees of
responsible persons to conduct campaigns for the candidate through media
advertisements, brochures, mailings, candidate forums and other means not prohibited
by law. Candidates*, including an incumbent judge, may personally solicit campaign
contributions and publicly stated support from individuals and organizations other than
political parties*. Such candidates* or candidates' campaign committees may solicit and
accept reasonable campaign contributions, not to exceed one thousand dollars ($1,000)
in the election year per individual or organization. Such candidates* or candidates'
campaign committees may manage the expenditure of funds for the candidate's
candidates campaign and obtain public statements of support for his or her candidacy
from individuals or organizations other than political parties*. The limitation on
individual contributions to any individual candidate* in this section does not apply to
contributions from the candidate*, the candidate's spouse, any relative within the third
degree of kinship of the candidate* or the candidate's spouse, and the spouses of such
relatives.
Such
candidates* or candidates' campaign committees are not prohibited from soliciting
and accepting reasonable campaign contributions and public support from lawyers. A
candidate* or candidate's
committees campaign committee may solicit contributions
and
public support for the
candidate's candidates campaign no earlier than
90 days before
a primary election January first of the election year and no later than
90 days after the
last election in which the candidate participates during the election year
December thirty-first of the election year. In addition to complying with all applicable
statutory requirements for disclosure of campaign contributions, candidates* or
candidates' campaign committees shall comply with all reporting requirements
established in §§ 12-25-13 and 12-25-13.1. The reports must be filed with the Secretary
of State on the dates specified in §§ 12-25-13 and 12-25-13.1. The candidates* or
candidates' campaign committees shall also comply with § 12-25-4.1. A candidate
*
shall not use or permit the use of campaign contributions for the private benefit of the
candidate
* or others.
COMMENTARY
Section 5C(2) permits a candidate, other than a candidate for appointment, to establish
campaign committees to solicit and accept public support and reasonable financial contributions.
Although judges and judicial candidates are free to personally solicit campaign contributions and
publicly stated support, they are encouraged to establish campaign committees of responsible
persons to conduct campaigns for candidates through media advertisements, brochures, mailings,
candidate forums and other means not prohibited by law. Judges and judicial candidates are also
encouraged to allow campaign committees to secure and manage the expenditure of funds for their
campaigns and obtain public statements or support for their candidacies. The use of campaign
committees is encouraged because they may better maintain campaign decorum and reduce
campaign activity that may cause requests for recusal or the appearance of partisanship with
respect to issues or the parties. At the start of the campaign, the candidate candidates must
instruct his or her campaign committees to solicit or accept only contributions that are reasonable
under the circumstances. Unless the candidate is required by law to file a list of his campaign
contributors, their names should not be revealed to the candidate. Though not prohibited,
campaign contributions of which a judge has knowledge, made by lawyers or others who appear
before the judge, may be relevant to disqualification under Section 3E.
Campaign permitted under this rule. Candidates or candidates' campaign committees
established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits
that might necessitate post-election fund-raising, to the extent possible. Contributions for a
campaign for judicial office should not be knowingly solicited or accepted from a party, or one
employed by, affiliated with or a member of the immediate family of a party, to litigation that (a)
is before the candidate, (b) may reasonably be expected to come before the candidate if elected,
or (c) has come before the candidate so recently that the knowing solicitation or acceptance of
funds may give the appearance of improper use of the power or prestige of judicial office.
Similarly, contributions may not be knowingly solicited or accepted from any firm, corporation
or other organization that has as one of its purposes the promotion of one side of a legal issue
which may reasonably be expected to come before the candidate if elected. Contributions may be
solicited and accepted from lawyers (including lawyers having cases before, or which may come
before, the candidate), provided that the solicitation makes no reference, direct or indirect, to any
particular pending or potential litigation.
Section 5C(2) does not prohibit a candidate from initiating an evaluation by a judicial
selection commission or bar association, or, subject to the requirements of this Code, from
responding to a request for information from any organization. With regard to the issue of
solicitation of contributions or publicly stated support from political parties, candidates or
candidates' campaign committees are directed to review § 12-9-2, making it a Class 2
misdemeanor for any political party to endorse or nominate any candidate for judicial office.
(3)
Except as prohibited by law*, a candidate* for judicial office in a public election* may
permit the candidate's
* name: (a) to be listed on election materials along with the names
of other candidates
* for elective public office, and (b) to appear in promotions of his or
her candidacy.
COMMENTARY
Section 5C(3) provides a limited exception to the restrictions imposed by Section 5A(1).
D. Incumbent Judges. A judge shall not engage in any political activity except (i) as authorized
under any other Section of this Code, (ii) on behalf of measures to improve the law,* the legal
system or the administration of justice, or (iii) as expressly authorized by law.
COMMENTARY
Neither Section 5D nor any other Section of the Code prohibits a judge in the exercise of
administrative functions from engaging in planning and other official activities with members of
the executive and legislative branches of government. With respect to a judge's activity on behalf
of measures to improve the law, the legal system and the administration of justice, see
Commentary to Section 4B and Section 4C(1) and its Commentary.
E. Applicability. Canon 5 generally applies to all incumbent judges and judicial candidates.*
A successful candidate,
* whether or not an incumbent, is subject to judicial discipline for his or
her campaign conduct; an unsuccessful candidate
* who is a lawyer is subject to lawyer discipline
for his or her campaign conduct. A lawyer who is a candidate
* for judicial office is subject to Rule
8.2(b) of the South Dakota Model Rules of Professional Conduct.
APPLICATION OF THE CODE OF JUDICIAL CONDUCT
A.
Application of Code. Anyone, whether or not a lawyer, who is an officer of a judicial system
magistrate, special master or referee, is a judge within the meaning of this Code. All judges shall
comply with this Code except as provided below.
COMMENTARY
The three categories of judicial service in other than a full-time capacity are necessarily
defined in general terms because of the widely varying forms of judicial service. For the purposes
of this Section, as long as a retired judge is subject to recall the judge is considered to "perform
judicial functions." The determination of which category and, accordingly, which specific Code
provisions apply to an individual judicial officer, depend upon the facts of the particular judicial
service.
C. Continuing Part-time Judge. A continuing part-time judge:*
(1)
is not required to comply
(a)
except while serving as a judge, with Section 3B(9); and
(b)
at any time with Sections 4C(2), 4E(1), 4F, 4G, 4H, 5A(1), 5B(2) and 5D.
(2)
shall not act as a lawyer in a proceeding in which the judge has served as a judge or in
any other proceeding related thereto.
COMMENTARY
When a person who has been a continuing part-time judge is no longer a continuing part-time
judge, including a retired judge no longer subject to recall, that person may act as a lawyer in a
proceeding in which he or she has served as a judge or in any other proceeding related thereto
only with the express consent of all parties pursuant to Rule 1.12(a) of the ABA Model Rules of
Professional Conduct.
D. Periodic Part-time Judge. A periodic part-time judge:*
(1)
is not required to comply
(a)
except while serving as a judge, with Sections 2A and 3B(9);
(b)
at any time, with Sections 4C(1), 4C(2), 4C(3)(a) and (b), 4D(1)(b), 4D(4),
4D(5), 4E, 4F, 4G, 4H, 5A(1), 5A(2), 5B(2) and 5D.
(2)
shall not act as a lawyer in a proceeding in which the judge has served as a judge or in
any other proceeding related thereto.
COMMENTARY
When a person who has been a periodic part-time judge is no longer a periodic part-time judge
(no longer accepts appointments), that person may act as a lawyer in a proceeding in which he
or she has served as a judge or in any other proceeding related thereto only with the express
consent of all parties pursuant to Rule 1.12(a) of the ABA Model Rules of Professional Conduct.
E. Pro Tempore Part-time Judge. A pro tempore part-time judge:*
(1)
is not required to comply
(a)
except while serving as a judge, with Sections 2A, 2B and 3B(9);
(b)
at any time with Sections 2C, 4C(1), 4C(2), 4C(3)(a), 4C(3)(b), 4D(1)(b), 4D(4),
4D(5), 4E, 4F, 4G, 4H, 5A(1), 5A(2), 5B(2) and 5D.
(2)
A person who has been a pro tempore part-time judge* shall not act as a lawyer in a
proceeding in which the judge has served as a judge or in any other proceeding related
thereto except as otherwise permitted by Rule 1.12(a) of the ABA Model Rules of
Professional Conduct.
F. Time for Compliance. A person to whom this Code becomes applicable shall comply
immediately with all provisions of this Code except Sections 4D(2) and 4E and shall comply with
these Sections as soon as reasonably possible and shall do so in any event within the period of one
year.
COMMENTARY
If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the
prohibitions in Section 4E, continue to serve as fiduciary but only for that period of time necessary
to avoid serious adverse consequences to the beneficiary of the fiduciary relationship and in no
event longer than one year. Similarly, if engaged at the time of judicial selection in a business
activity, a new judge may, notwithstanding the prohibitions in Section 4D(3), continue in that
activity for a reasonable period but in no event longer than one year.
DIAGRAM OF EXCEPTIONS TO COMPREHENSIVE APPLICATION OF CODE
PROVISIONS FOR PART-TIME JUDICIAL OFFICERS
Pro
Continuing Periodic tempore
part-time part-time part-time
judge judge judge
(law mag., (child referees
lay mag., support appointed
ret. judge) referees) (SDCL 15-6-53)
Section: Subject:
:
2A act at all times to ** **
promote confidence
in judiciary's
impartiality and
integrity
2B inappropriate
influence and use
of judicial office
2C membership in
discriminatory
organizations
3B(9) comment on pending ** ** **
or impending
proceedings
4C(1) appearance/ **** ****
consultation with
executive or
legislative bodies
4C(2) appointment to **** **** ****
governmental
positions
4C(3)(a) service as officer, **** ****
etc., of a §
4C(3) organization
4C(3)(b) solicitation of **** ****
funds or
memberships for a
§ 4C(3)
organization
4D(1)(b) transactions with **** ****
persons likely to
come before the
judge's court
4D(4) management of **** ****
financial interests
to minimize
disqualification
4D(5) acceptance of **** ****
gifts, bequests,
favors and
4E(1) fiduciary service **** **** ****
prohibited except
for judge's family
4E(2) fiduciary service **** ****
prohibited if
proceedings likely
before court
4E(3) parallel **** ****
application of
fiduciary and
financial rules
4F service as **** **** ****
arbitrator or
mediator
4G practice of law **** **** ****
4H compensation, **** **** ****
reimbursement and
reporting
5A(1) political conduct **** **** ****
of all judges and
candidates
5A(2) candidacy for **** ****
non-judicial office
5B(2) non-judge candidate **** **** ****
for appointment
5(D) all other political **** **** ****
activity by
non-candidate
incumbent judges
________
** Provision applies only while serving as a judge
**** Provision does not apply at any time
IT IS FURTHER ORDERED that SDCL Chapter 16-2 Appendix shall be conditionally
amended as follows effective upon the effective date of the repeal of SDCL 12-9-2 making it a
Class 2 misdemeanor for any political party to endorse or nominate any candidate for judicial
office.
TERMINOLOGY
"Political party." A party whose candidate for Governor at the last preceding general election
at which a Governor was elected received at least two and one-half percent of the total votes cast
for Governor. See Sections 5B(2) and 5C(1).
CANON 5
A Judge or Judicial Candidate Shall Refrain from
Inappropriate Political Activity
A. All Judges and Candidates
(1)
Except as authorized in Sections 5B(2), 5C(1) and 5C(3), a judge or a candidate*
for election or appointment to judicial office shall not:
(a)
hold an office in a political organization*;
(b)
publicly endorse or publicly oppose another candidate for public office;
(c)
make speeches on behalf of a political organization*; or
(d)
solicit funds for a political organization* or candidate.*
COMMENTARY
Where false information concerning a judicial candidate is made public, a judge or another
judicial candidate having knowledge of the facts is not prohibited by Section 5A(1) from making
the facts public.
Section 5A(1)(a) does not prohibit a candidate for elective judicial office from retaining during
candidacy a public office such as county prosecutor, which is not "an office in a political
organization."
Section 5A(1)(b) does not prohibit a judge or judicial candidate from privately expressing his
or her views on judicial candidates or other candidates for public office.
A candidate does not publicly endorse another candidate for public office by having that
candidate's name on the same ticket.
B. Candidates Seeking Appointment to Judicial or Other Governmental Office.
(1)
A candidate* for appointment to judicial office or a judge seeking other
governmental office shall not solicit or accept funds, personally or through a
committee or otherwise, to support his or her candidacy.
(2)
A candidate* for appointment to judicial office or a judge seeking other
governmental office shall not engage in any political activity to secure the
appointment except that:
(a)
such persons may, unless otherwise prohibited by law:*
(i)
communicate with the appointing authority, including any selection or
nominating commission or other agency designated to screen candidates;
(ii)
seek support or endorsement for the appointment from organizations that
regularly make recommendations for reappointment or appointment to the
office, and from individuals to the extent requested or required by those
specified in Section 5B(2)(a); and
(iii)
provide to those specified in Sections 5B(2)(a)(i) and 5B(2)(a)(ii)
information as to his or her qualifications for the office;
(b)
a non-judge candidate* for appointment to judicial office may, in addition, unless
otherwise prohibited by law*:
(i)
retain an office in a political organization*,
(ii)
attend political gatherings, and
(iii)
continue to pay ordinary assessments and ordinary contributions to a
political organization* or candidate and purchase tickets for political
party
* dinners or other functions.
COMMENTARY
Section 5B(2) provides a limited exception to the restrictions imposed by Sections 5A(1) and
5D. Under Section 5B(2), candidates seeking reappointment to the same judicial office or
appointment to another judicial office or other governmental office may apply for the appointment
and seek appropriate support.
Although under Section 5B(2) non-judge candidates seeking appointment to judicial office are
permitted during candidacy to retain office in a political organization, attend political gatherings
and pay ordinary dues and assessments, they remain subject to other provisions of this Code
during candidacy. See Sections 5B(1), 5B(2)(a), 5E and Application Section.
C. Judges and Candidates Subject to Public Election.
(1)
A judge or a candidate* subject to public election* may, except as provided by
law:*
(a)
at any time
(i)
purchase tickets for and attend political gatherings;
(ii)
identify himself or herself as a member of a political party*;
(iii)
contribute to a political organization* or candidate; and
(iv)
speak to gatherings on his or her own behalf;
(b)
when a candidate for election
(i)
appear in newspaper, television and other media advertisements
supporting his or her candidacy;
(ii)
distribute pamphlets and other promotional campaign literature supporting
his or her candidacy; and
(iii)
publicly endorse or publicly oppose other candidates for the same judicial
office in a public election in which the judge or judicial candidate is
running.
COMMENTARY
Section 5C(1) permits judges subject to election to be involved in certain political activity.
Section 5D, applicable solely to incumbent judges, would otherwise bar this activity. The conduct
of a judicial campaign and the manner of presentation of any material in connection with a
campaign for judicial office should comport with the dignity and integrity required of that office.
(2)
Candidates*, including an incumbent judge, may personally solicit campaign
contributions and publicly stated support from individuals and organizations
other than political parties*. Such candidates* or candidates' committees may
solicit and accept reasonable campaign contributions not to exceed one thousand
dollars ($1,000) in the election year per individual or organization. Such
candidates* or candidates' campaign committees may manage the expenditure of
funds for the candidates campaign and obtain public statements of support for his
or her candidacy from individuals or organizations other than political parties*.
The limitation on individual contributions to any individual candidate* in this
section does not apply to contributions from the candidate*, the candidate's
spouse, any relative within the third degree of kinship of the candidate* or the
candidate's spouse, and the spouses of such relatives.
Such candidates* or candidates' campaign committees are not prohibited from
soliciting and accepting reasonable campaign contributions and public support
from lawyers. A candidate* or candidate's campaign committee may solicit
contributions for the candidates campaign no earlier than January first of the
election year and no later than December thirty-first of the election year. In
addition to complying with all applicable statutory requirements for disclosure
of campaign contributions, candidates* or candidates' campaign committees shall
comply with all reporting requirements established in §§ 12-25-13 and 12-25-
13.1. The reports must be filed with the Secretary of State on the dates specified
in §§ 12-25-13 and 12-25-13.1. The candidates* or candidates' campaign
committees shall also comply with § 12-25-4.1. A candidate* shall not use or
permit the use of campaign contributions for the private benefit of the candidate*
or others.
COMMENTARY
Although judges and judicial candidates are free to personally solicit campaign contributions
and publicly stated support, they are encouraged to establish campaign committees of responsible
persons to conduct campaigns for candidates through media advertisements, brochures, mailings,
candidate forums and other means not prohibited by law. Judges and judicial candidates are also
encouraged to allow campaign committees to secure and manage the expenditure of funds for their
campaigns and obtain public statements or support for their candidacies. The use of campaign
committees is encouraged because they may better maintain campaign decorum and reduce
campaign activity that may cause requests for recusal or the appearance of partisanship with
respect to issues or the parties. At the start of the campaign, candidates must instruct his or her
campaign committees to solicit or accept only contributions that are permitted under this rule.
Candidates or candidates' campaign committees established under Section 5C(2) should manage
campaign finances responsibly, avoiding deficits that might necessitate post-election fund-raising,
to the extent possible. Contributions for a campaign for judicial office should not be knowingly
solicited or accepted from a party, or one employed by, affiliated with or a member of the
immediate family of a party, to litigation that (a) is before the candidate, (b) may reasonably be
expected to come before the candidate if elected, or (c) has come before the candidate so recently
that the knowing solicitation or acceptance of funds may give the appearance of improper use of
the power or prestige of judicial office. Similarly, contributions may not be knowingly solicited
or accepted from any firm, corporation or other organization that has as one of its purposes the
promotion of one side of a legal issue which may reasonably be expected to come before the
candidate if elected. Contributions may be solicited and accepted from lawyers (including lawyers
having cases before, or which may come before, the candidate), provided that the solicitation
makes no reference, direct or indirect, to any particular pending or potential litigation.
With regard to the issue of solicitation of contributions or publicly stated support from
political parties, candidates or candidates' campaign committees are directed to review § 12-9-2,
making it a Class 2 misdemeanor for any political party to endorse or nominate any candidate for
judicial office.
IT IS FURTHER ORDERED that SDCL Chapter 16-1A Appendix be and is hereby amended
in part to read as follows:
APPENDIX TO CHAPTER 16-1A
RULES OF PROCEDURE OF THE JUDICIAL QUALIFICATIONS COMMISSION
IV. JUDICIAL ELECTIONS
1. Special Committee--Proceedings and Authority.
In every year in which a circuit court judicial election is held in this State and at such other
times as the Commission may deem appropriate, a Special Committee on Judicial Election
Campaign Intervention ("Special Committee") shall be created whose responsibility shall be to
issue advisory opinions and to deal expeditiously with allegations of ethical misconduct in
campaigns for judicial office. The membership of such committee shall consist of
five (5) nine (9)
members
. Two (2) members shall be appointed by the Chair of the Commission and shall be
former members of the Commission. Two (2) members shall be appointed by the Chairperson of
the Disciplinary Board of the State Bar of South Dakota ("the Board") and shall be former
members of the Board. The fifth member shall be appointed by the Chief Justice and shall be a
retired circuit court judge or a retired Supreme Court Justice. Any action appointed by the Supreme
Court. The Special Committee shall include two (2) retired justices or retired judges, three (3)
lawyers, with no more than two (2) from one (1) political party, and four (4) other citizens who are
neither lawyers nor judges with no more than two (2) from one political party. One of the judge
or lawyer members shall be designated by the Supreme Court to chair the work of the Special
Committee. Unless otherwise provided, any action taken by the Special Committee shall require
a majority vote
of the participating members. The objective of the Special Committee shall be to
alleviate unethical and unfair campaign practices in judicial elections, and to that end, the Special
Committee shall have the following authority:
(a)
Within ten (10) days of the effective date of this rule or within the ten (10) days
after formally announcing and/or officially qualifying for election or re-election
to any judicial office in this State (whichever is earliest), after filing their
nominating petitions all candidates, including incumbent judges, shall forward
written notice of such candidacy, together with an appropriate mailing address,
to the Commission. Upon receipt of such notice, the Special Committee shall
cause to be distributed to all such candidates by certified mail-return receipt
requested copies of the following: Canon 5 of the Code of Judicial Conduct; this
Rule 30; summaries of any previous opinions issued by the Special Committee,
or the Supreme Court of South Dakota, which relate in any way to campaign
conduct and practices; and a form acknowledgment which each candidate shall
promptly return to the Commission Special Committee and therein certify that
he/she has read and understands the materials forwarded and agrees to be bound
by comply with such standards during the course of the campaign. A failure to
comply with this section shall constitute a per se violation of this Rule
authorizing authorize the Commission Special Committee to immediately
publicize such failure to all candidates in such race, the Commission, the
Disciplinary Board of the State Bar of South Dakota ("the Board") and to all
appropriate media outlets. In the event of a question relating to conduct during
a judicial campaign, judicial candidates are encouraged to seek an opinion from
the Special Committee before such conduct occurs.
(b)
Opinions as to the propriety of any act or conduct and the construction or
application of Canon 5 may be provided by the Special Committee upon request
from any judicial candidate. If the Special Committee finds the question of
limited significance, it may provide an informal opinion to the questioner. If,
however, it finds the questions question of sufficient general interest and
importance, it may render a formal opinion, in which event it shall cause the
opinion to be circulated to all candidates and published in complete or synopsis
form. Furthermore, the Special Committee may issue formal opinions on its own
motion under such circumstances, as it finds appropriate. as deemed appropriate
by the Special Committee. If two-thirds of the participating members of the
Special Committee determine that there is clear and convincing evidence of a
violation it may issue a public statement relative to campaign conduct that is not
the subject of a written complaint. The Special Committee may decline to issue
an opinion when a majority of the participating Special Committee members
determine that it would be inadvisable to respond to the request and to have so
confirmed in writing their reasoning to the person who requested the opinion. All
formal opinions of the Special Committee shall be filed with the Supreme Court
and shall be a matter of public record except for the names of the persons
involved, which shall be excised.
Both formal and informal opinions shall be advisory only; however, the
Commission, the Board and the Supreme Court shall consider reliance by a
judicial candidate upon the Special Committee opinion.
(c)
Upon receipt of a complaint or otherwise receiving information facially
indicating a violation by a judicial candidate of any provision of Canon 5 of the
South Dakota Judicial Code of Conduct during the course of a campaign for
judicial office, the secretary or chair of the Commission shall immediately
forward a copy of the same by facsimile, if available, and U.S. mail to the Special
Committee members and said the Special Committee shall:
(1)
seek, from the complainant and/or the subject of the complaint, such further
information on the allegations of the complaint as it deems necessary;
(2)
provide the candidate with notice and an opportunity to respond in a manner
specified by the Special Committee;
(3)
conduct such additional investigation as the Special Committee may deem
necessary;
(3)(4)
determine whether the allegations of the complaint warrant speedy intervention
and, if so, immediately issue a confidential cease-and-desist request to the
candidate and/or organization believed to be engaging in unethical and/or unfair
campaign practices. If the Committee determines that the unethical and/or unfair
campaign practice is of a serious and damaging nature, the Committee may, in
its discretion, disregard the issuance of a cease-and-desist request and
immediately impose the appropriate sanction authorized by the provisions of
paragraph (4)(i) and (ii), hereafter described. If In the instance the allegations of
the complaint do not warrant intervention, the Special Committee shall dismiss
the same and so notify the complaining party and candidates in such race;
(d)
Complaints shall be confidential until such time as the Special Committee, by a
vote of at least two-thirds of its participating members, has determined clear and
convincing evidence exists that a violation has occurred. Complaint forms and
campaign conduct acknowledgment forms used by the Special Committee shall
include language which notifies complainants and candidates of this restriction.
The Special Committee may issue a public statement concerning the campaign
conduct.
(4)
if a cease-and-desist request is disregarded or if the unethical or unfair campaign
practices otherwise continue, the Committee is further authorized:
(i)
to immediately release to all appropriate media outlets, as well as the
complaining party and the person and/or organization complained against,
a public statement setting out the violations believed to exist. In the event
that the violations have continued after the imposition of the cease-and
desist request, the media release shall also include a statement that the
candidate and/or organization has failed to honor the cease-and-desist
request.
(ii)
to refer the matter to the full Commission or the Board for such action as
may be appropriate under the applicable rules.
(d)(e)
All proceedings under this Rule shall be informal and non-adversarial, and the
Special Committee shall act on all complaints within ten (10) five (5) days of
receipt, either in person; by facsimile, by U.S. mail, by electronic mail; or by
telephone.
(e)(f)
Except as hereinabove specifically authorized, the proceedings of the Special
Committee shall remain confidential as provided in Commission Rule III 1., and
in no event shall the Special Committee have the authority to institute
disciplinary action against any candidate for judicial office, which power is
specifically reserved to the full Commission or the Board under applicable rules.
(f)(g)
The Committee shall after conclusion of the election distribute to the
Commission and the Board copies of all complaints and all proceedings relating
thereto.
(h)
The Special Committee may promulgate rules pertaining to its operation and
procedures as it deems appropriate.
2. Applicability of Code of Judicial Conduct and Guidelines.
These guidelines shall apply to all candidates for judicial office, be they incumbent judges or
not
, and to the families and
to the campaign/solicitation committees of all candidates.
Every person who files a petition to have their name placed on the ballot as a candidate for
judicial office and
the any judicial candidate's election committee chairperson, shall by May 15th
of the year in which the petition was filed complete a two-hour course on campaign practices,
finance, and ethics sponsored and approved by the Judicial Qualifications Commission. Within
thirty days of completing the course, the candidate shall certify to Commission that he or she has
completed the course and understands fully the requirements of South Dakota law and the Code
of Judicial Conduct concerning campaign practices for judicial office. A
person subject purely to
retention election or a circuit court candidate who has no opposition is exempt from application
of this rule.
VI. JUDICIAL ETHICS COMMITTEE
1. Judicial Ethics Committee and Opinions.
(a) There shall be an ethics committee of the South Dakota judiciary consisting of two circuit
court judges and one magistrate judge. The judicial members shall be selected at the annual judges
association meeting. Each member shall serve for a term of three years from the date of the
election. A chairperson shall be elected annually by a majority vote of the ethics committee.
(b) Opinions as to the propriety of any act or conduct and the construction or application of any
canon shall be provided by the committee upon request from any justice, judge or magistrate,
except as to matters relating to judicial campaigns which shall be the exclusive jurisdiction of the
Special Committee
created in Rule 30. If the committee finds the question of limited significance,
it shall provide an informal opinion to the questioner. If, however, it finds the questions of
sufficient general interest and importance, it shall render a formal opinion, in which event it shall
cause the opinion to be published in complete or synopsis form with the names of the persons
involved excised. Likewise, the committee may issue formal opinions on its own motion under
such circumstances as it finds appropriate. All opinions shall be adopted by a majority vote of the
members of the Committee. If a majority vote cannot be obtained, no opinion shall be issued.
(c) Both formal and informal opinions shall be advisory only; however, the Commission and
the Supreme Court shall consider reliance by a justice, judge or magistrate upon the ethics
committee opinion.
IT IS FURTHER ORDERED that SDCL Chapter 12-9 Appendix be and is hereby repealed in
its entirety.
IT IS FURTHER ORDERED that this rule, except for the conditional amendment of SDCL
Chapter 16-2 Appendix, shall become effective January 1, 2006. The conditional amendment of
SDCL Chapter 16-2 Appendix shall be effective upon the effective date of the repeal of SDCL 12-
9-2.
DATED at Pierre, South Dakota, this 1st day of December 2005.