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TCL > May 2006 Issue > Court Business

The Colorado Lawyer
May 2006
Vol. 35, No. 5 [Page  131]

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Court Business

Court Business

United States District Court for the District of Colorado

Abbreviated Public Notice for Reappointment of
Incumbent Magistrate Judge
Michael J. Watanabe

Comments Due: May 17, 2006

The current term of office of United States Magistrate Judge Michael J. Watanabe at the U.S. District Court for the District of Colorado, Denver, is due to expire on February 11, 2007.

The United States District Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge to a new eight-year term.

A full public notice for the magistrate judge position is posed in the office of the Clerk of the District Court at 901 19th Street, Denver, Colorado. The notice is also available on the court’s Internet website at www.cod.uscourts.gov.

Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the court and should be directed to:

Human Resources Division of the U.S. Courts
Attn: R. Duncan
1929 Stout Street, Suite C102
Denver, CO 80294

Comments must be received by May 17, 2006.

_______________________________________________________________________________

Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2006-03
(Finalized and Effective February 28, 2006)

ISSUE PRESENTED

The requesting judge has been asked to testify under subpoena as a character witness for a former client, a registered representative in the securities industry, whose employer is now the subject of a United States Securities and Exchange Commission (SEC) enforcement proceeding based on allegations involving the representative. During his tenure in private practice, the judge worked closely with the former client, whom he knows very well, holds in high esteem, uses to manage some investments, and now counts as a personal friend. The judge would not be expected to testify concerning the merits of the enforcement proceeding and would not offer any opinions, expert or otherwise, concerning the merits of the employer’s defense. May the judge provide character testimony?

CONCLUSIONS

The judge may not testify as a character witness on a voluntary basis, but he is obligated to comply with a subpoena if one is issued. Where a judge has been asked to provide such testimony, the judge should consider whether the interests of justice require his or her testimony, and if not should then consider attempting to discourage the subpoenaing party or lawyer from requiring the testimony, because of the possibility that the testimony is being sought to trade on the judge’s position. Whether the interests of justice require the testimony depends on three factors related to the specifics of the particular case in which the judge would be asked to testify.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 2B provides that a judge should not lend the prestige of his or her office to advance the private interests of others and it specifies that "[a] judge should not testify voluntarily as a character witness." The commentary to Canon 2B states that a judge’s testimony as a character witness "injects the prestige of the judge’s office into the proceeding in which the judge testifies and may be misunderstood to be an official testimonial." However, the commentary goes on to note that the Canon "does not afford a judge the privilege against testifying in response to an official summons."

DISCUSSION

Canon 2B makes clear that a judge should not testify voluntarily as a character witness. As the commentary to the Canon explains, the general rule against voluntary testimony reflects concern that the judge’s testimony might lend the prestige of the judicial office in support of the private interests of the party for whom the judge testifies. The commentary nevertheless recognizes that judges are obligated to comply with a subpoena to testify.

Ethical advisory opinions from other jurisdictions discuss a requirement that a judge discourage a subpoenaing party from subpoenaing the judge. The basis for this requirement is language in the Code of Judicial Conduct as adopted in those jurisdictions: the commentary to Canon 2 explicitly states "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." E.g., Nevada Ad. Op. JE05-005; Indiana Ad. Op. 3-98. The Indiana opinion was particularly concerned with the fact that parties generally seek character testimony only from those witnesses whom they expect will provide favorable testimony, making the threat to subpoena a judge as an "unwilling" character witness somewhat illusory. Thus, the Indiana opinion requires that judges not rely on the prospect of being subpoenaed to legitimize what is, in effect, improper voluntary testimony. This requirement also recognizes that service of a subpoena is not determinative of the subpoenaing party’s intent, which could be to trade on the prestige of the judicial office.

Colorado’s Canon and commentary do not include language explicitly requiring the judge to discourage the subpoenaing party. Nevertheless, our Supreme Court has agreed with the statement that the "practice of judges appearing as character witnesses should be discouraged, but we agree that, if subpoenaed, a judge must respond to the subpoena." People v. Tippett, 733 P.2d 1183, 1194 (Colo. 1987). Further, the Board believes that eliciting character testimony from a judge risks misuse of the judicial office. Accordingly, the Board concludes that, as an aspirational goal, a judge should consider attempting to discourage, to the extent reasonable, a party or lawyer from subpoenaing the judge as a character witness, unless the interests of justice require the judge’s testimony.

In evaluating whether the interests of justice require the testimony, the judge should consider and make reasonable inquiry into three factors related to the specifics of the particular case in which the judge’s testimony is being sought. First, the judge should assess the nature and depth of his actual awareness of the character of the party for whom he would testify. Second, the judge should weigh whether he or she is in a unique position to offer singular and meaningful testimony. Third, the judge should consider the forum in which the testimony will be given. If the judge is being asked to testify in a colleague’s court, the opposing party might justifiably fear that the presiding judge in a bench trial would place undue weight on the judge’s testimony. The opposing party might also have justifiable concerns about his or her own attorney’s zeal, particularly if the attorney also practices in the testifying judge’s court; when a judge testifies as a witness, lawyers who regularly practice in front of that judge may be placed in the awkward position of cross-examining the judge. When a judge unnecessarily appears as a character witness in a colleague’s courtroom, that testimony may raise an issue of the presiding judge’s recusal. Further, in those forums where the judge’s testimony would carry more weight, such as before a jury, the judge would more likely need to discourage the subpoenaing attorney than in those forums where the judge’s position would carry less weight, such as in a proceeding before a regulatory agency.

In this case, the Board lacks sufficient factual information to conclude that the judge should attempt to discourage the subpoenaing attorney from calling him as a character witness. The judge seems to possess intimate knowledge of the former client’s character and could speak meaningfully in the enforcement proceeding, which suggests that the interests of justice would be served by his anticipated testimony. But whether he alone is equipped to provide such character testimony is unknown. The judge would be testifying before a regulatory agency that lacks any connection with the judge’s own court, which suggests that the subpoenaing attorney is not seeking to trade on the judge’s office.

In sum, the requesting judge should consider seeking to dissuade the former client’s attorney from subpoenaing him if he determines, through reasonable inquiry of the attorney or from other credible sources, that comparable character evidence is available from another source.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 28th day of February 2006.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)

_________________________

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2006-04
(Finalized and Effective March 30, 2006)

ISSUE PRESENTED

A judge’s spouse is a registered member of a political party, supports certain candidates of that party, and desires to make financial contributions to candidates. The judge is registered unaffiliated, is not politically active, and desires to distance himself from his spouse’s political activity and contributions. The judge is not asking whether the spouse may make such contributions because, in his view, she retains that right regardless of the judge’s position. Rather, the judge’s question is, assuming that the spouse makes a financial contribution to a political candidate, what must the judge do to make clear that the contribution is from the spouse only, and otherwise to insulate the judge from the appearance of improper partisan activity on his part? In connection with his inquiry, the judge notes that the spouse holds a job from which she earns a significant salary; the couple shares a joint bank account; and they do not segregate their income or assets, all of which are held in joint tenancy. The judge states that, if necessary, they could set up a separate bank account in her name only, but he notes that if they did so, it would be funded by marital income as all their income is marital, not separate. What steps should the judge take to make clear that political contributions are made only by the spouse, and not by the judge?

CONCLUSION

To make clear that any contribution by the judge’s spouse to a political candidate is not from the judge, that contribution should be made in the spouse’s name alone from the spouse’s separate bank account with no reference to the judge or his judicial position.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 2 generally directs a judge to avoid impropriety and the appearance of impropriety in all of the judge’s activities. Canon 2B specifies that a judge should not allow family, social, or other relationships to influence the judge’s conduct or judgment. A judge should not lend the prestige of his or her office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position to influence him or her.

Canon 7A addresses a judge’s political conduct in general. Canon 7A(b) provides that a judge shall not make speeches on behalf of or endorse a candidate for public office. Canon 7A(c) states that a judge shall not solicit funds for or make a contribution to a political organization or candidate, attend political partisan gatherings, or purchase tickets for political party dinners or other similar functions. All other political activity, except on behalf of measures to improve the law, legal system, the administration of justice, or the role of the judiciary as an independent branch, or as otherwise expressly permitted when the judge is a candidate for retention, is prohibited.

DISCUSSION

The Board recently considered a judge’s request for guidance as to his involvement in his spouse’s campaign for non-partisan elected office. See CJEAB Op. 2005-05. In that opinion, the Board noted that the Code of Judicial Conduct does not bind a judge’s spouse, who may pursue any office to which the spouse aspires, but concluded that the judge should refrain from participating in activities that could be seen as either endorsing the spouse’s candidacy or using the prestige of the judicial office to benefit the spouse.

The general principles set forth in the 2005-05 opinion guide the Board’s analysis in the instant inquiry. Thus, we reiterate that a judge is not in violation of the Code of Judicial Conduct because the judge’s spouse runs for office or actively supports or opposes candidates for office. The Board recognizes that the judge cannot control the activities of his spouse.

Although the spouse is free to support, monetarily or otherwise, any candidate, her contributing to a political candidate using funds from a joint account held by the judge and the spouse could invite the perception that the judge made the contribution, and thus endorsed the candidate in violation of Canon 7, and used the prestige of the judge’s office to advance the candidate’s private interests in violation of Canon 2. Accordingly, we join a number of other jurisdictions in concluding that when a judge’s spouse contributes to a political candidate, the contribution should be made in the spouse’s name alone, with no reference to the judge or his judicial position, and from the spouse’s separate bank account. See Mass. CJE Op. No. 98-4; Kans. A. Op. JE-13; N.H. Ad. Op. 78-3; Fla. Ad. Op. 84-19; Okla. Ad. Op. 2000-7; Neb. Ad. Op. 96-6; S.C. Ad. Op. 33-2001; see also In the Matter of Sallee, 579 N.E.2d 75 (Ind. 1991) (reprimanding a judge who delivered a check drawn on a joint account with his wife to a political candidate); In the Matter of Briggs, 595 S.W.2d 270 (Mo. 1980) (removing judge from office for various improper activities including making contributions to political candidates on checks drawn by his wife from a joint bank account in which the judge’s paychecks were deposited).

FINALIZED AND EFFECTIVE this 30th day of March 2006, by the Colorado Judicial Ethics Advisory Board.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)

 

Attention Readers: For complete text of rule changes, including forms and versions showing ighlighted revisions, please visit the Court’s website: http://www.courts.state.co.us.

_______________________________________________________________________________

United States Bankruptcy Court
For the District of Colorado

General Procedure Order Number 2006-1
In the Matter of Adopting Transitional Local Bankruptcy Form 1002-1—
Cover Sheet for Voluntary Petitions Filed on or After April 9, 2006

THIS MATTER arises to address confusion surrounding the filing requirements for commencing a case under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, to reduce the number of deficiency notices for new cases and/or to prevent the rej ection of individual debtor cases that do not satisfy Credit Counseling Certification requirements. Accordingly, in an effort to clarify what is required, as well as to assist debtor(s) and court staff in determining what documents are being tendered for filing, the Court adopts Transitional Local Bankruptcy Form 1002-1 Cover Sheet for Voluntary Petitions which should be completed, signed and filed with all Voluntary Petitions commencing on April 9, 2006.

THE COURT ORDERS that pursuant to 28 U.S.C. § 2071, Rule 83 of the Federal Rules of Civil Procedure and Rule 9029 of the Federal Rules of Bankruptcy Procedure, Transitional Local Bankruptcy Form 1002-1 is hereby adopted and shall remain in effect until further notice.

Dated: March 16, 2006

By the Court:

Sidney B. Brooks, Chief Judge
A. Bruce Campbell, Judge
Elizabeth E. Brown, Judge
Howard R. Tallman, Judge
Michael E. Romero, Judge
_______________________________________________________________________________

Colorado Supreme Court Rules Committee

Rule Change 2006(3)
Colorado Rules of Civil Procedure
Chapter 18. Rules Governing Admission to the Bar
Amended and Adopted

(Some Forms in this Appendix are available from the Colorado Courts Web page at http://www.courts.state.co.us/chs/court/forms/selfhelpcenter.htm.)

Rule 227. Registration Fee

A. Registration Fee of Attorneys and Attorney Judges

(1) [No Change]

(a), (b), and (c) [No Change]

(d)

(2) through (8) [No Change]

Amended and Adopted by the Court, En Banc, March 16, 2006, effective immediately.

By the Court:

Justice Michael L. Bender, Colorado Supreme Court
Justice Nathan B. Coats, Colorado Supreme Court

 

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2006.


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