JUDICIAL ETHICS OPINION 2018 v. << (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 tribal judge or justice. Even if no ethical issues exist (we believe they do exist), the permission of the Oklahoma Supreme Court is required before any application could be made by a state district court judge for appointment as a tribal judge or justice.

¶8. This is also a “Chain of Command” issue as much as an ethical issue, especially as this opinion is requested by a special judge who is appointed by the district judge or judges in the judicial district, and who is under the supervisory authority of the presiding judge of the judicial administrative district, the district judges who employ the special judge would also have to be consulted and approve of this “dual” judgeship. Whether these “supervisory” judges would have to join in a special judge's request for employment as a tribal judge or justice is a matter best resolved by the Supreme Court.

WITNESS OUR HANDS AS OF THIS 17th DAY OF September, 2018.

/s/ The Honorable April Sellers White, (Retired)

Judicial Ethics Advisory Panel Member

/s/ The Honorable Edward C. Cunningham, (Retired)

Judicial Ethics Advisory Panel Chair

/s/ The Honorable William C. Hetherington, (Retired)

Judicial Ethics Advisory Panel Member

/s/ The Honorable Allen McCall, (Retired)

Judicial Ethics Advisory Panel Member

/s/ The Honorable Thomas Landrith, (Retired)

Judicial Ethics Advisory Panel Member

Attachment

In re: Appointment of Farrell Hatch to Choctaw Nation Court of Appeals

SCAD 1995-20

Decided: 05/30/1995

Filed in the Office of the Clerk of the Supreme Court June 2, 1995

IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

IN RE: APPOINTMENT OF FARRELL HATCH TO CHOCTAW NATION COURT OF APPEALS

SCAD No. 95-20

ORDER

The Honorable Farrell Hatch, District Judge of the Nineteenth Judicial District, requested Supreme Court approval for his appointment as Chief Judge of the Appeals Division of the Choctaw Nation Court of Indian Offenses. After consideration by the Court, the request is denied.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 30th DAY OF MAY, 1995.

/s/ _

Chief Justice

WILSON, C.J., KAUGER, V.C.J., LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS, and WATT, JJ., concur.

HODGES, J., dissents.

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