In re Judicial Ethics Op. 2018-5, 2018-5

Citation434 P.3d 13
Decision Date17 September 2018
Docket NumberNo. 2018-5,2018-5
Parties JUDICIAL ETHICS OPINION 2018-5
CourtOklahoma Judicial Ethics Advisory Panel

434 P.3d 13

JUDICIAL ETHICS OPINION 2018-5

No. 2018-5

Judicial Ethics Advisory Panel of Oklahoma.

SEPTEMBER 17, 2018


¶1. FACTS

A Special Judge has interest in applying for an open position as a Supreme Court Justice for the Cherokee Nation, while maintaining her position as a Special Judge. This would result in a "dual" judge role.

¶2. QUESTION

The Judge inquires of this panel "if there are any ethical concerns" in her application for the position.

¶3. ANSWER

Yes. The Oklahoma Code of Judicial Conduct prohibits any judge from holding a tribal judicial position concurrently with the judge's employment as a district court judge for the State of Oklahoma, unless the judge has the express approval of the Oklahoma Supreme Court.

¶4. DISCUSSION

From a strictly ethical standpoint, Canon 3, Oklahoma Code of Judicial Conduct, Rule 3.1, states that a judge shall not:

(A) Participate in activities that will interfere with the proper performance of the judge's judicial duties.

¶5. While the Judge requesting this opinion states that her duties as a tribal justice could be performed on her "personal time", even minimal time spent away from her employment as a special judge while she functions as a tribal justice, could be a violation of this section.

¶6. Canon 4, Rule 3.4 is dispositive on this issue. While the rule specifically addresses appointments to "governmental positions" and does not specifically mention judicial appointments, the catch-all phrase, "or the judge has specific approval of the Supreme Court" seems to cover any ambiguities that arise outside the plain language of Rule 3.4. Thus permission of the Supreme Court would be required before a judge could make application for employment as a tribal judge or justice.

¶7. Attached to this opinion is a 1995 SCAD Order which apparently recognizes this procedure. SCAD 1995-20 directly answered a request by a District Judge who sought permission from the Supreme Court to apply for a position as a tribal Appellate Judge. The District Judge's request was denied. While the SCAD order was specific to another Judge, it does indicate that the Supreme Court has recognized that it has the final answer on the issue of whether a state district court judge may apply for a position as a...

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