Judicial Code Conduct Letter html

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=2 height=90 BGCOLOR="#006699" TEXT="#080000" background="04bfd5a3.jpg"> <div> <FONT SIZE="5" COLOR="#000000" FACE="Arial" ><B>4th Watch</B></FONT><B>    </B><B> |     </B><A HREF="index.htm" TARGET="_top" TITLE="4th Watch"><U><B>home</B></U></A></div> <div> <B>Judicial Code Conduct Letter html</B>   |   <A HREF="id33.htm" TARGET="_top" TITLE="ABA Judicial Code of Conduct Revision"><U>ABA Judicial Code of Conduct Revision</U></A>   |   <A HREF="id34.htm" TARGET="_top" TITLE="ABA Judicial Content Letter pdf"><U>ABA Judicial Content Letter pdf</U></A></div> <div> </div> </td> </tr><tr> <td valign="top" width=210 BGCOLOR="#FFCC66" TEXT="#080000" background="04cd2043.jpg"> <bR> </td> <td valign="top" height=390 BGCOLOR="#FFFFFF" TEXT="#080000"> <div> <I>Judicial Code Conduct Letter html</I></div> <div> Eileen Gallagher</div> <div> American Bar Association</div> <div> Justice Center, 321 N. Clark St. </div> <div> Chicago, IL 60610 USA</div> <bR> <div> <U>gallaghe@staff.abanet.org</U></div> <div> November 13, 2004</div> <div>                                         </div> <div> <B>Recommendations on Model Code of Judicial Conduct</B></div> <div> 1) To improve long term public confidence in the law, and to reduce the growing number of conflicting interpretations between courts, I recommend adding the following CANON 5 to abide by Foundational Principles of Organic laws (or incorporating this principle within one of the other canons.)  </div> <div> 2) I recommend deleting all references to “sexual orientation” in the Code until there is recognized “consent of the Governed” to do so. </div> <div> 3) I recommend making the criteria for gifts be established relative to average judicial income. E.g., 0.1%.</div> <bR> <div> David L. Hagen</div> <div> 61485 County Road 13</div> <div> Goshen IN 46526-8713</div> <bR> <div> <B>1) Foundational Principles</B></div> <div> Recommend adding the following CANON 5 or incorporating it in another CANON.</div> <div> “CANON 5</div> <div> A JUDGE SHALL ABIDE BY THE FOUNDATIONAL PRINCIPLES OF ORGANIC LAWS</div> <div> A judge’s performance of judicial duties shall not be repugnant to the foundational principles of the Declaration of Independence, the Northwest Ordinance, and the Constitution, as required of all States for equal standing, by enabling acts of States joining the Union. A judge shall uphold the Rule of Law.” </div> <bR> <div> Commentary:</div> <div> By the Declaration of Independence, Founders held: “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights . . . it is the Right of the People ... to institute new Government, <B>laying its foundation on such principles . . .”. </B> In providing for States to accede to the Union on equal footing, Congress required by the Northwest Ordinance and Enabling Acts that: “. . .the governor, legislative council, and house of representatives, shall have authority to make laws in all cases, for the good government of the district, <B>not repugnant to the principles and articles </B>in this ordinance established and declared.” By Enabling Acts for later States to accede to the Union, Congress required that their Constitutions “shall be republican in form, and make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, <B>and not to be repugnant to the Constitution of the United States and the principles of the Declaration of Independence</B>.” Accordingly, a judge shall comply with these principles in performing his judicial duties.</div> <bR> <div> Following are selected documents and comments in support of this CANON and Commentary:</div> <div> In the Declaration of Independence (1776), the Founders clearly enunciated principles on which they were founding the United States of America. E.g., </div> <div> “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, <B>laying its foundation on such principles </B>and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”     </div> <div> http://www.archives.gov/national_archives_experience/charters/declaration_transcript.html</div> <bR> <div> To provide for other States to join the Union on equal footing, Congress established “An Ordinance for the government of the Territory of the United States northwest of the River Ohio”, known as the  Northwest Ordinance (1787).</div> <div> “And the governor, legislative council, and house of representatives, shall have authority to make laws in all cases, for the good government of the district, not repugnant to the principles and articles in this ordinance established and declared.”</div> <div> http://www.ourdocuments.gov/print_friendly.php?page=transcript&doc=8&title=Transcript+of+Northwest+Ordinance+%281787%29</div> <bR> <div> Then in Enabling Acts, Congress required of States acceding by the Northwest Ordinance to form Constitutions not repugnant to its irrevocable articles. </div> <div> For example, the Enabling Act of Indiana April 19, 1816 states:</div> <div> “An act to enable the people of the Indiana Territory to form a constitution and state government, and for the admission of such state into the Union on an equal footing with the original states.”</div> <div> Sec 4. “. . . which said representatives shall be chosen in such manner, and in such proportion, and shall meet at such time and place, as shall be prescribed by the said ordinance, and shall then form, for the people of said territory,<B> a constitution and state government: Provided, That the same, whenever formed, shall be republican, and not repugnant to those articles of the ordinance of the thirteenth of July, one thousand seven hundred and eighty-seven, which are declared to be irrevocable between the original states, and the people and states of the territory northwest of the river Ohio</B>; excepting so much of said articles as relate to the boundaries of the states therein to be formed.”</div> <div> <A HREF="http://www.statelib.lib.in.us/www/ihb/resources/docenab.html" TARGET="_top" TITLE="http://www.statelib.lib.in.us/www/ihb/re"><U><U>http://www.statelib.lib.in.us/www/ihb/resources/docenab.html</U></U></A></div> <bR> <div> After the Civil War, Congress required of States acceding to the Union with equal standing, to form constitutions not repugnant to the Constitution and the principles of the Declaration of Independence. For example:</div> <bR> <div> “ENABLING ACT, Approved, July 16, 1894.</div> <div> AN ACT to enable the People of Utah to form a Constitution and State Government, and to be admitted into the Union on an equal footing with the original States.. . .</div> <div> SEC. 3. That the delegates to the Convention thus elected shall meet at the seat of government of said Territory on the first Monday in March, eighteen hundred and ninety-five, and, after organization, shall declare on behalf of the people of said proposed State that they adopt the Constitution of the United States, whereupon the said Convention shall be, and is hereby, authorized to form a Constitution and State government for said proposed State.</div> <bR> <div> The Constitution shall be republican in form, and make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, <B>and not to be repugnant to the Constitution of the United States and the principles of the Declaration of Independence</B>. And said Convention shall provide by ordinance irrevocable without the consent of the United States and the people of said State--</div> <bR> <div> First. That perfect toleration of religious sentiment shall be secured, and that no inhabitant of said State shall ever be molested in person or property on account of his or her mode of religious worship; Provided, That polygamous or plural marriages are forever prohibited. . . .”</div> <div> <A HREF="http://www.archives.state.ut.us/exhibits/Statehood/1894text.htm" TARGET="_top" TITLE="http://www.archives.state.ut.us/exhibits"><U><U>http://www.archives.state.ut.us/exhibits/Statehood/1894text.htm</U></U></A></div> <bR> <div> Having required of new States that their constitutions not be repugnant to Constitution and the irrevocable principles of the Declaration of Independence or the Northwest Ordinance, in order to have equal standing, all States either established, required of others or accepted these principles. It is accordingly appropriate to remind Judges of these principles in conducting their duties.</div> <bR> <div> <B>2) Canon 2; 2.05 Bias and Discrimination          </B></div> <div> Recommend deleting the four references to “sexual orientation” in Section 2.05. </div> <bR> <div> A foundational principle of the United States is of governments “deriving their just powers from the consent of the governed.” Thirty five states had passed the Defense of Marriage Act (DOMA). Four states passed constitutional amendments defining heterosexual marriage. In 2003 Massachusetts Supreme Court reinterpreted their constitution to favor of homosexual marriage. However in 2004 thirteen States passed constitutional amendments defining marriage as between one man and one woman. E.g.</div> <div> Arkansas - 74 percent</div> <div> Georgia - 77 percent</div> <div> Kentucky - 75 percent</div> <div> Michigan - 61 percent</div> <div> Montana - 66 percent</div> <div> Mississippi - 85 percent</div> <div> Ohio - 62 percent</div> <div> North Dakota - 75 percent</div> <div> Oklahoma - 74 percent</div> <div> Oregon - 57 percent</div> <div> Utah - 73 percent</div> <div> Nine more States (Alabama, Idaho, Massachusetts, South Carolina, Tennessee, Texas, Virginia,  Wisconsin), are already preparing similar amendments. With 35:1 on DOMA and 17 to 1 on constitutional amendments, there does not yet appear to be any “consent of the Governed” over non-discrimination in marriage based on “sexual orientation.” </div> <bR> <div> Judges referring to such results could be accused of breaching the present Judicial Code Canons 2, 3 over bias regarding “sexual orientation.” Based on these “sexual orientation” clauses some would disqualify the Founders and members of Congress from participating as Judges for their holding entitlement by “the Laws of Nature and of Nature's God” and by “appealing to the Supreme Judge of the world for the rectitude of our intentions . . .” With these references to “sexual orientation,” the ABA appears to be advocating social principles without the majority consent of “We the People.” </div> <bR> <div> Accordingly I recommend deleting each occurrence of “sexual orientation” in this Judicial Code of Conduct until there is a public consensus to include it.</div> <bR> <div> <B>3) </B><B><U>Rule 4.13(b) Acceptance of Gifts </U></B></div> <div> A specific dollar amount is subject to devaluation relative to the salary because of inflation.</div> <div> Recommend referring instead to:</div> <div>      <B>“gifts greater than 0.1% of the average judicial income.”</B></div> <div> Then provide for a separate document where that amount is stated and adjusted annually.</div> <bR> <bR> </td> </tr></table></body>