WHAT IS APPROPRIATE FOR A JUDGE?

Given the discussion about what a judge should or should not do, be or not be, I decided to read the canons for myself. I confess I had only read bits and pieces, usually quoted by others for effect. Reading them as a whole made them more meaningful. They can be downloaded from the State's website, and read in a word processing program. After my review, I find a few exerpts of the canons come into play in the Cascade County Justice of the Peace race. Because we have so little on which to assess Steven Fagenstrom, my comments will necessarily focus more heavily on Judge Harris. To the extent we do have insight into Mr. Fagenstrom, these are still the rules against which he should be measured.

2. The Public Interest.
Courts exist to promote justice, and thus to serve the public interest . . . Every judge . . . should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts instead of the courts for the litigants.

By reputation, Judge Harris has made the Justice Court his court. Given the extreme focus on how the court must be run, often to the detriment of litigants or attorneys who do not feel a fair shake has been given, he may have lost sight of the public interest.

3. Constitutional Obligations.
It is the duty of all judges to support the federal Constitution and that of this state; in so doing, they should fearlessly observe and apply fundamental limitations and guarantees.

Judge Harris articulates how he can use elements of the law, like contempt power, to justify things like jailing debtors. Unfortunately, the most carefully crafted statutory or case law based argument fails when it fails to comport with either the state or federal constitution. He seems to have forgotten this point in finding a way to go against the Montana Constitutional protection against being jailed for debt.

4. Avoidance of Impropriety.
A judge’s official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach.

This is the big one, where the private lives come under the microscope. Judge Harris' actions related to the GORE game subject him to reproach in his everyday life. Likewise, Mr. Fagenstrom, if elected, will have to avoid any other missteps with the law. No matter how justified he may have been in refusing a police order, no matter how out of line the officer may have been in making the situation worse and filing questionable charges, it is foolish to allow the situation to come up. A private citizen, especially a lawyer, may have the urge to show he is right. A judge has to avoid any situation where he may create doubt about his judgement. Right or wrong, getting into an altercation with police will always cause public concern.

5. Essential Conduct.
A judge should be temperate, attentive, patient, impartial, and, since he is to administer the law and apply it to the facts, he should be studious of the principles of the law and diligent in endeavoring to ascertain the facts.

Judge Harris has developed a reputation of intemperate behavior. The revelations from his personal life give rise to questions about his bias. Given that these traits are "essential," it is worthy to evaluate whether or not his opponent bears the appropriate traits, too.

10. Courtesy and Civility.
A judge should be courteous to counsel . . .

While I have not seen incivility out of either candidate, there are too many antecdotes from people I trust to accept that Judge Harris always gives courtesy to counsel.

14. Independence.
A judge should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism.

I thought, at first, Judge Harris did well in this regard. Perhaps he was a bit harsh in sentencing only to be playing to the public, but I think he believes in what he does, so that is not a serious concern (regarding this canon). However, I am concerned that perhaps he has started showing signs of letting criticism bother him too much. The public has the right to judge him as a candidate, and he put his life under the microscope. Seeking leniency from his opponents, as I have learned he has done, does not sit well.

20. Influence of Decisions Upon the Development of the Law.
A judge should be mindful that his duty is the application of general law to particular instances, that ours is a government of law and not of men and that he violates his duty as a minister of justice under such a system if he seeks to do what he may personally consider substantial justice in a particular case and disregards the general law as he knows it to be binding on him . . . He should administer his office with a due regard to the integrity of the system of the law itself, remembering that he is not a depositary of arbitrary power, but a judge under the sanction of law.

Several concerns come to mind with regard to this rule. In particular, high bail, harsh sentences and significant strings tied to bail or sentencing, when they are far outside the norm throughout the system, disrupt the system.

21. Idiosyncrasies and Inconsistencies.
Justice should not be molded by the individual idiosyncrasies of those who administer it. A judge should adopt the usual and expected method of doing justice, and not seek to be extreme or peculiar in his judgments, or spectacular or sensational in the conduct of the court. Though vested with discretion in the imposition of mild or severe sentences he should not compel persons brought before him to submit to some humiliating act or discipline of his own devising, without authority of law, because he thinks it will have a beneficial corrective influence.
In imposing sentence he should endeavor to conform to a reasonable standard of punishment and should not seek popularity or publicity either by exceptional severity or undue leniency.

As with the paragraph above, Judge Harris' maverick approach, not only to bail and sentencing, but to court room procedure (eg, requiring defendants to attend simple housekeeping type hearings), makes his court out of touch with other courts. It is hard to explain to the public why being in Cascade County Justice Court should give a defendant a significanlty different outcome than if he were in another county, or the city court, facing identical charges under identical facts.

34. A Summary of Judicial Obligation.
In every particular his conduct should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointments as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.

This sums up society's high expectations of judges. It explains why many would never want to be a judge--because doing so is a sacrifice. We must applaud and thank those who are willing to sacrifice many freedoms in their personal lives, just to live up to the ideal we create. But, we must have people of such character so that our system maintains integrity. We must therefore scrutinize those who would judge us very carefully--which is what I am trying to do.

With that, I thank Mr. Harris for his service and sacrifice, and Mr. Fagenstrom for his willingness to do the same. While I know, like and respect you both, I would not wish the sacrifice and scrutiny on my enemies, let alone my friends.