46 Am. Jur. 2d Judges American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc.

Judges Summary I. IN GENERAL Research References 1. Definition and characterization of judges 2. Magistrates 3. Constitutional or legislative power to create judge's office 4. Legislative power to abolish judge's office II. QUALIFICATION AND SELECTION Research References 5. Generally; eligibility 6. Requirement that judge be attorney 7. Method of selection 8. --Election 9. --Appointment 10. Oath; bond III. TERM OF OFFICE, IN GENERAL Research References 11. Generally

12. Holding over IV. TERMINATION OR SUSPENSION OF OFFICE; CENSURE A. Termination, Resignation, or Retirement Research References 13. Generally 14. Mandatory retirement provisions 15. Judicial activities of judges following resignation or retirement B. Impeachment And Removal Research References 16. Generally 17. Nature of proceedings 18. --Confidentiality 19. Grounds C. Suspension; Censure Research References 20. Generally V. POWERS AND DUTIES A. In General Research References 21. Generally 22. Delegation of duties 23. Particular duties as acts of court 24. Territorial limits of power 25. Apportioning work among judges of court 26. Appointment and removal of officers; fixing salaries 27. Acting in vacation and at chambers 28. Powers and duties after expiration of term

B. Successor Judges Research References 29. Generally 30. Successors of courts having several judges 31. Entering judgment or rendering decision 32. --By stipulation 33. Changing findings of fact and conclusions of law 34. Vacating judgment 35. Retrial of case C. Reconsidering Rulings By Another Judge Research References 36. Generally 37. Effect of existence or absence of right to appeal 38. Effect of change of circumstances or additional facts 39. Unavailability of first judge 40. Rulings on questions of law 41. Administrative or discretionary orders of court VI. PRIVILEGES, EXEMPTIONS, AND DISABILITIES A. In General Research References 42. Generally 43. Holding other office 44. --As effecting vacation of office 45. Political activity B. Practice Of Law Research References 46. Generally; prohibition

47. Restriction of practice 48. Practice by judges having relatively light duties 49. Practice after resignation or retirement VII. Compensation; Benefits; Allowances for Expenses A. In General Research References 50. General basis of authority for compensation 51. Right to compensation and benefits of, or as between, particular types of judges 52. Adequacy of compensation 53. Additional compensation 54. Allowances for expenses 55. Retirement and disability benefits 56. Validity of disparities in compensation or benefits B. Changes in Compensation Research References 57. Generally; during term of office 58. Effect of allowances for expenses on prohibition against change of salary during term 59. Retirement benefits 60. Suspension of pay pending disciplinary or criminal proceedings VIII. Liabilities A. Civil Liability Research References 1. In General 61. Generally; rule of absolute judicial immunity 62. Basis and rationale for rule of absolute immunity 63. Persons protected by rule of absolute immunity

64. Effect of bad faith or wrongful conduct on application of rule of absolute immunity 65. Actions for injunctive or declaratory relief 66. --Civil rights and Bivens actions 2. Liability for Particular Types of Conduct a. In General; Conduct Within Scope of Rule of Absolute Judicial Immunity 67. Generally 68. Determination whether act is "judicial" in nature 69. --Factors considered 70. Nonjudicial acts 71. Particular acts as within rule of absolute judicial immunity b. Conduct Within Scope of Other Types of Immunity 72. Legislative and prosecutorial acts 73. Acts protected by qualified immunity 3. Effect of Jurisdiction or Lack Thereof 74. Generally 75. Acts in determining jurisdiction 76. Acts under invalid law or in excess of jurisdiction B. Criminal Liability; Contempt Research References 77. Criminal liability 78. --Liability for judicial acts and official misconduct 79. Contempt IX. Disqualification to Act in Particular Case A. In General Research References 80. Generally

81. Statutes governing disqualification 82. --Validity 83. --Construction 84. Disqualification as yielding to necessity 85. Courts and proceedings in which rules of disqualification apply B. Grounds Research References 1. In General 86. Generally 87. Knowledge of judge of disqualifying facts as element 2. Interest a. In General 88. Generally 89. Nature of interest 90. --Necessity that interest be direct, certain, and present 91. --Necessity that interest be substantial b. Particular Interests (1). Pecuniary or Property Interest 92. Generally 93. Compensation or benefits; on fee basis 94. Liability to party for damages or costs 95. Interest in position or term 96. Judge as debtor to party or estate 97. Judge as agent or employee (2). Judge as Party or Witness 98. Judge as party or potential party in own or related case 99. Judge as witness

100. --As potential witness 101. --As material or necessary witness (3). Association with Organization or Business 102. Membership in organization or body, generally 103. Officer, director, or trustee of corporation; officer of unincorporated association 104. Stockholder 105. Officer, director, trustee, or advisor of religious organization (4). Other Interests 106. Officer of municipality 107. Interest of judge in estate 108. --Trustee; fiduciary for creditors 109. Citizen, resident, or taxpayer 110. Power to appoint and remove officers or trustees 111. Political interests; interest in election cases 3. Relationship a. To Parties or Persons Interested 112. Generally 113. Nature of relationship to party 114. --Degree; computation 115. Who are parties 116. --Stockholder; corporate director or officer 117. --Policyholder 118. Nature of relative's interest 119. Relationship to one not a party 120. --Relationship to witness b. To Attorneys

121. Generally 122. Statutes specifically disqualifying 123. Statutes disqualifying for relationship to "attorney of record" or to "attorney engaged in case" 124. What constitutes pecuniary interest making attorney "party" 125. --Contingent fee 126. Criminal cases 4. Bias or Prejudice a. In General 127. Generally 128. Definitions 129. Presumption of impartiality and nonbias 130. Statutes or constitutional provisions providing for disqualifications because of bias or prejudice 131. Origin of bias; requirement that bias be extrajudicial 132. --Requirement that bias be personal 133. Opinions 134. Effect of bringing action against judge 135. Effect of acts intended to create bias 136. Bias against attorney for party 137. Probate proceedings 138. Prior contact with party b. Apparent Prejudice 139. Generally 140. Judge's impartiality might reasonably be questioned 141. Business, political, or social relations 142. Acquaintance or relationship with counsel 143. --Contributions or participation by attorney to judge's campaign

144. Judge's past background and experiences 145. Representation of judge by counsel for one of the parties 146. Judge's actions in prior proceedings; plea bargain and pretrial negotiations c. Judge's Actions or Rulings 147. Adverse or erroneous rulings 148. Ex parte communications 149. Comments made by judge during proceedings 5. Prior Participation in, Connection With, or Knowledge of the Case or Parties a. In General 150. Generally 151. Knowledge of disputed evidentiary facts b. As Judge 152. Generally 153. Prior proceedings in same case 154. Prior proceedings in different case 155. Right to review own acts 156. Retrial of case reversed by higher court c. As Attorney 157. Generally 158. Statutes providing for disqualification 159. Canon or rule disqualifying judge for serving as lawyer in "matter in controversy" 160. Party as client 161. Prior relationship of attorney and client 162. Identity or similarity of actions 163. As attorney general 164. As defense counsel

165. As counsel for criminal defendant in previous civil action 166. As prosecutor 167. --Prosecution in other criminal proceedings C. Remedies and Procedure Research References 1. In General 168. Generally 169. Duty of judge to disqualify self 170. --Where judge is called as a witness 171. Who may move to disqualify 172. --Intervenors 2. Time for Objection 173. Generally 174. Nonstatutory time limitations 175. Time limitations imposed by statute 176. Time limitations imposed by statute on automatic challenges 177. Service of information or summons as starting statutory time requirement 178. Independent or new proceedings 179. Excuse for delay in raising judicial disqualification 3. Motion for Disqualification and Affidavit a. In General 180. Generally 181. Allegations and necessity for setting forth grounds 182. --Where judge is witness 183. Notice 184. Peremptory challenges

185. --Criminal proceedings b. Affidavit of Prejudice 186. Necessity of filing affidavit 187. Timeliness of affidavit 188. Form and sufficiency of affidavit 189. When mere filing of affidavit of prejudice disqualifies 190. --Number of disqualifications 191. Supporting affidavits 192. Attorney's certificate of good faith 4. Hearing, Determination, and Appeal 193. Generally 194. Where affidavit not conclusive 195. --Judge does not decide issue of disqualification 196. Where affidavit of prejudice conclusive 197. Successive applications for disqualification 198. Determination as to disqualification of appellate judges 199. Presumption of qualification 200. Overcoming presumption of qualification 201. Prior rulings and other conduct as evidence of prejudice and bias 202. Appeal and review D. Waiver and Estoppel Research References 203. Generally 204. Statutory availability of waiver and estoppel 205. Knowledge of basis for disqualification 206. Effect of waiver on other parties 207. Express and implied waiver

208. Failure to make timely objection as effecting waiver or estoppel 209. Withdrawal or abandonment of objection as effecting waiver or estoppel 210. Failure to follow proper procedure as effecting waiver or estoppel 211. Consent or other actions of parties as effecting waiver or estoppel 212. Participation in proceedings as effecting waiver or estoppel 213. Particular acts not resulting in waiver E. Effect of Disqualification Research References 214. Rights and duties of judge where disqualified 215. Retroactive effect of disqualification 216. Validity of actions pending disqualification 217. Validity of formal and ministerial orders and acts after disqualification 218. Validity of official acts after disqualification 219. Validity of official acts where one or more of several judges are disqualified F. Revocation or Removal of Disqualification Research References 220. Effect of removal of disqualification 221. Revocation of determination of disqualification 222. --Effect of change of judges X. Vacancy in Office Research References 223. Generally 224. Circumstances creating vacancy 225. --Retirement or resignation 226. --Entry of judge into military service 227. Procedure for filling vacancy

228. --By appointment 229. --By election 230. Duration of appointment or election XI. De Facto Judges Research References 231. Generally 232. Requisites for de facto judge 233. Particular circumstances creating de facto judge 234. --Holding over 235. Validity of judicial acts 236. Challenge to authority XII. Special, Substitute, or Pro Tem Judges A. In General Research References 237. Generally 238. Distinction between special and pro tem judges 239. Justification for and qualifications of substitute 240. Oath of office 241. Retired judges 242. When substitution may be made B. Selection of Judge Research References 243. Selection of judge by other judges and government officials 244. Selection of judge by parties and members of the bar 245. Necessity for record of selection 246. Exchange of judges C. Rights, Powers, and Duties

Research References 247. Generally 248. Extent of authority 249. --Ancillary matters 250. Duration of authority 251. --Effect of presence or return of regular judge 252. Authority after expiration of period of appointment 253. Extension by temporary judge of time to act D. Objection to Authority Research References 254. Generally 255. Time for objection 256. Waiver of objection 257. Objection on appeal Correlation Tables Correlation Table

46 Am. Jur. 2d Judges Summary American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. Correlation Table

Summary

Scope: This article discusses matters pertaining to judges, generally, in their personal character and relations including selection and tenure; powers and duties; privileges and disabilities; compensation, liabilities, qualification or disqualification to act in particular instances; and vacancies in office. De facto judges and special, substitute, and pro tem judges are also discussed. Federal Aspects: Principles applicable to federal judges, and pertinent provisions of the Constitution and federal statutes, are considered in Am. Jur. 2d, Federal Courts 19 to 160. See "Federal Legislation" for U.S.C.A. citations. Treated Elsewhere: Administrative judges, see Am. Jur. 2d, Administrative Law Acknowledgment, authority of judge to take, see Am. Jur. 2d, Acknowledgments 9 Alternative dispute resolution proceedings, see Am. Jur. 2d, Alternative Dispute Resolution Arrest, exception of judges from, see Am. Jur. 2d, Arrest 137 Attorneys' communications with judge, see Am. Jur. 2d, Attorneys at Law 48 Civil process, exception of judges from, see Am. Jur. 2d, Process 18 Contempt of court, see Am. Jur. 2d, Contempt Courts, operation of, generally, see Am. Jur. 2d, Courts Discipline of attorney for criticism of judicial acts, see Am. Jur. 2d, Attorneys at Law 52 Drain or drainage district, disqualification of judge, see Am. Jur. 2d, Drains and Drainage Districts 16 Federal judges as government employees under Federal Tort Claims Act, see Am. Jur. 2d, Federal Tort Claims Act 8 Grand jury, authority of judge, see Am. Jur. 2d, Grand Jury 7 Judicial councils, generally, see Am. Jur. 2d, Judicial Councils and Conferences 1 et. seq Judges in District of Columbia, see Am. Jur. 2d, District of Columbia 20 Judges of election, see Am. Jur. 2d, Elections 86 Judges of particular courts, see Am. Jur. 2d, Federal Courts 19 to 160; Am. Jur. 2d, Indians 154; Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children 1 et. seq Judicial supervision of legal profession, see Am. Jur. 2d, Attorneys at Law 13 to 29 Justices of the peace, see Am. Jur. 2d, Justices of the Peace 1 et. seq Laws relating to public officers, generally, see Am. Jur. 2d, Public Officers and Employees Mandamus to compel judicial action, see Am. Jur. 2d, Mandamus 301 Marriage ceremony, authority of judge to perform, see Am. Jur. 2d, Marriage 33 Military judges, see Am. Jur. 2d, Military and Civil Defense 267 Occupied territory, appointment of judges in, see Am. Jur. 2d, War 127 Referee, judge as, see Am. Jur. 2d, References 24 Trials, powers, and duties of judges with respect to, see Am. Jur. 2d, Trial Venue, change of for bias or prejudice of judge, see Am. Jur. 2d, Venue 65, 66 Research References:

West's Key Number Digest West's Key Number Digest, Judges 1 to 56

West's Key Number Digest, Parties

1 to 97

Westlaw Databases American Law Reports (ALR) West's A.L.R. Digest (ALRDIGEST) American Jurisprudence 2d (AMJUR) American Jurisprudence Legal Forms 2d (AMJUR-LF) American Jurisprudence Proof of Facts (AMJUR-POF) American Jurisprudence Pleading and Practice Forms Annotated (AMJUR-PP) American Jurisprudence Trials (AMJUR-TRIALS) Code of Federal Regulations (C.F.R.) Federal Procedure (FEDPROC) Federal Procedural Forms (FEDPROF) Uniform Laws Annotated (ULA) United States Code Annotated (U.S.C.A.)

Primary Authority U.S. Const. Art. II 2 U.S. Const. Art. III 1 U.S. Const. Art. VI 2 4 U.S.C.A. 101, 102 (oath of state court judges) 28 U.S.C.A. 144, 454, 455 (practice of law by justices and judges) 29 U.S.C.A. 621 et seq. (Age Discrimination in Employment Act) Fed. R. Civ. P. 63 (inability of a judge to proceed)

A.L.R. Library A.L.R. Index, Constitutional Law

A.L.R. Index, Judges A.L.R. Index, Justice of the Peace A.L.R. Index, Public Officers and Employees A.L.R. Index, Qualification or Disqualification A.L.R. Index, Recusal A.L.R. Index, Waiver and Estoppel West's A.L.R. Digest, Judges West's A.L.R. Digest, Parties

Trial Strategy Religious Prejudice, 73 Am. Jur. Proof of Facts 3d 89 Bias or Prejudice, 58 Am. Jur. Proof of Facts 3d 393 Disqualification of Judge for Cause, 50 Am. Jur. Proof of Facts 3d 449 Dealing with Judges and Court Personnel, 55 Am. Jur. Trials 443, Defamation, 19 Am. Jur. Trials 499 18 Juvenile Court Proceedings, 14 Am. Jur. Trials 623 19 Defending Minor Felony Cases, 13 Am. Jur. Trials 465 33

Forms Am. Jur. Legal Forms 2d, Judges Am. Jur. Pleading and Practice Forms, Criminal Procedure Am. Jur. Pleading and Practice Forms, Divorce and Separation Am. Jur. Pleading and Practice Forms, Judges Am. Jur. Pleading and Practice Forms, Motions, Rules, and Orders, Am. Jur. Pleading and Practice Forms, Trials Am. Jur. Pleading and Practice Forms, Venue

Model Codes and Restatements A.B.A. Code of Judicial Conduct, Canon 3, 4, 5

2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES SUM END OF DOCUMENT

46 Am. Jur. 2d Judges I Refs. American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. I. IN GENERAL Topic Summary Correlation Table Research References

West's Key Number Digest West's Key Number Digest, Judges 1, 2

Primary Authority 28 U.S.C.A. 631 et seq.

A.L.R. Library A.L.R. Index, Judges

West's A.L.R. Digest, Judges

1, 2

2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES I REF END OF DOCUMENT

46 Am. Jur. 2d Judges 1 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. I. IN GENERAL Topic Summary Correlation Table References 1. Definition and characterization of judges West's Key Number Digest West's Key Number Digest, Judges 1, 2

A judge is generally defined as a public officer authorized by law to hear and determine causes and to hold court for that purpose.[FN1] The term "judge" may also be more broadly defined as meaning any public officer performing judicial functions.[FN2] The term includes every judicial officer authorized, alone or with others, to hold or preside over a court of record, but in its most extensive sense, it includes all officers appointed to decide litigated questions,[FN3] and there exists a presumption of honesty and integrity in those serving as an adjudicator.[FN4] "Judge" also includes a judge pro tempore, which is defined as a person who is appointed to act temporarily as a judge.[FN5] In addition, the term "judge" as used in the Code of Judicial Conduct includes a candidate for a judicial position.[FN6]

[FN1] Schuster v. Raflowitz, 245 A.D. 248, 281 N.Y.S. 379 (3d Dep't 1935). [FN2] Todd v. U.S., 158 U.S. 278, 15 S. Ct. 889, 39 L. Ed. 982 (1895). [FN3] Babigan v. Wachtler, 133 Misc. 2d 111, 506 N.Y.S.2d 506 (Sup 1986), judgment aff'd, 126 A.D.2d 445, 510 N.Y.S.2d 473 (1st Dep't 1987), order aff'd, 69 N.Y.2d 1012, 517 N.Y.S.2d 905, 511 N.E.2d 49 (1987).

- As to magistrates, generally, see 2. - As to the status of administrative officers as judges or judicial officers, see Am. Jur. 2d, Administrative Law 49. - As to justices of the peace, see Am. Jur. 2d, Justices of the Peace 1 et seq. - As to judges of juvenile courts, see Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children 6. - As to members of courts-martial, see Am. Jur. 2d, Military and Civil Defense 267, 268, 272, 273. [FN4] Romig v. Jefferson-Pilot Life Ins. Co., 132 N.C. App. 682, 513 S.E.2d 598 (1999), aff'd, 351 N.C. 349, 524 S.E.2d 804 (2000). [FN5] Mississippi Judicial Performance Com'n v. Thomas, 549 So. 2d 962 (Miss. 1989). - As to pro tem judges, generally, see 237 to 257 [FN6] In re Fadeley, 310 Or. 548, 802 P.2d 31 (1990). 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 1 END OF DOCUMENT

46 Am. Jur. 2d Judges 2 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. I. IN GENERAL Topic Summary Correlation Table References 2. Magistrates West's Key Number Digest West's Key Number Digest, Judges 1, 2

A.L.R. Library

Civil jurisdiction of magistrates under Federal Magistrates Act of 1968 (28 U.S.C.A. secs. 631 et seq.), 128 A.L.R. Fed. 115 Criminal jurisdiction of magistrate under Federal Magistrates Act of 1968 (29 U.S.C.A. secs. 631 et seq.), 127 A.L.R. Fed. 309 A magistrate is usually considered to be an inferior judicial officer.[FN1] However, the term "magistrate" is not confined to justices of the peace and other persons who exercise judicial powers, but includes others whose duties are strictly executive.[FN2] The Office of United States Magistrates is provided for by federal statute.[FN3]

[FN1] Compton v. State of Alabama, 214 U.S. 1, 29 S. Ct. 605, 53 L. Ed. 885 (1909) (justice of the peace); Falk Integrated Technologies, Inc. v. Stack, 132 N.C. App. 807, 513 S.E.2d 572 (1999) (small claims). - As to justices of the peace, generally, see Am. Jur. 2d, Justices of the Peace 1 et seq. [FN2] Compton v. State of Alabama, 214 U.S. 1, 29 S. Ct. 605, 53 L. Ed. 885 (1909). [FN3] 28 U.S.C.A. 631 et seq., discussed generally in Am. Jur. 2d, Federal Courts 161 to 214. - As to the criminal jurisdiction of federal magistrates, see Am. Jur. 2d, Criminal Law 358 to 360. - As to additional duties assignable to magistrates by local court rule with respect to preliminary review for applications for posttrial relief by individuals convicted of criminal offenses, see Am. Jur. 2d, Habeas Corpus and Postconviction Remedies 142.5. 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 2 END OF DOCUMENT

46 Am. Jur. 2d Judges 3 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. I. IN GENERAL Topic Summary Correlation Table References 3. Constitutional or legislative power to create judge's office

West's Key Number Digest West's Key Number Digest, Judges 1, 2

The office of judge may be created by constitutional provision[FN1] or at the discretion of the legislature.[FN2] Some state constitutions provide that an area is entitled to a judge in a particular court for a specified number of people or major fraction thereof; such a provision is self-executing.[FN3] Even where the constitution lacks such a provision, the legislature may provide for the automatic creation of judgeships in an area based on increases in population.[FN4]

[FN1] Gray v. Bryant, 125 So. 2d 846 (Fla. 1960). [FN2] In re Carroll, 91 Kan. 395, 137 P. 975 (1914). - As to the creation of courts, see Am. Jur. 2d, Courts 5, 6. [FN3] Gray v. Bryant, 125 So. 2d 846 (Fla. 1960). [FN4] Dobbs v. Board of County Com'rs of Oklahoma County, 1953 OK 159, 208 Okla. 514, 257 P.2d 802 (1953). 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 3 END OF DOCUMENT

46 Am. Jur. 2d Judges 4 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. I. IN GENERAL Topic Summary Correlation Table References 4. Legislative power to abolish judge's office

West's Key Number Digest West's Key Number Digest, Judges 1, 2

The legislature generally cannot deprive a judge of his or her office or of the right to exercise the duties arising from that office by abolishing the court or the judicial district to which the judge was elected prior to the expiration of the judge's term as that term is fixed by a state constitution.[FN1] Statutes abolishing courts sometimes contain saving clauses to the effect that they will not affect the tenure of the judges.[FN2] A statute abolishing an existing office and creating the office of judge in its place is not invalid as an attempt to legislate the incumbent of the first office out of office, where the form and structure of the two offices are substantially different.[FN3] Where the executive branch has exclusive authority to appoint judicial officers, a statute declaring the office of chief justice administrative and providing for the manner of their selection and term of office has been found unconstitutional and an impermissible encroachment on the independence of the judiciary.[FN4]

[FN1] State v. Friedley, 135 Ind. 119, 34 N.E. 872 (1893). - As to the abolition of courts, see Am. Jur. 2d, Courts 9. [FN2] Donegan v. Dyson, 269 U.S. 49, 46 S. Ct. 55, 70 L. Ed. 159 (1925). [FN3] Caldwell v. Lyon, 168 Tenn. 607, 80 S.W.2d 80, 100 A.L.R. 1152 (1935). [FN4] In re Petition of Governor, 151 N.H. 1, 846 A.2d 1148 (2004). 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 4 END OF DOCUMENT

46 Am. Jur. 2d Judges II Refs. American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. II. QUALIFICATION AND SELECTION

Topic Summary Correlation Table Research References

West's Key Number Digest West's Key Number Digest, Judges 3, 4, 5

Primary Authority 4 U.S.C.A. 101, 102

A.L.R. Library A.L.R. Index, Judges West's A.L.R. Digest, Judges 3, 4, 5

Forms Am. Jur. Legal Forms 2d, Judges 156:4 to 156:6, 156:10 Am. Jur. Pleading and Practice Forms, Judges 73

2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES II REF END OF DOCUMENT

46 Am. Jur. 2d Judges 5 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National

Legal Research Group, Inc. II. QUALIFICATION AND SELECTION Topic Summary Correlation Table References 5. Generally; eligibility West's Key Number Digest West's Key Number Digest, Judges 3, 4, 5

The rules governing the selection and tenure of public officers, generally,[FN1] apply to judges in the absence of any provision to the contrary; requirements with respect to eligibility for the office of judge are usually prescribed by the constitution or statutes of the various states, and generally any person may be selected for the office who comes within the prescribed qualifications.[FN2] The Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard, regarding qualifications of judges, and thus most questions concerning a judge's qualifications to hear a case are not constitutional ones but, rather, are answered by common law, statute, or professional standards of bench and bar.[FN3] A statute prescribing additional qualifications to hold a judicial position is constitutional so long as it does not interfere with or nullify the constitutionally prescribed qualifications.[FN4] For example, the legislature may require that a judge take and pass an examination,[FN5] so long as such requirement is consistent with constitutional provisions.[FN6] Where a constitutional amendment prescribing additional qualifications to hold a judicial position is adopted by the electorate at the same time that a person is elected to judicial office, that person must, at the time he or she is to take office, meet the qualifications required by the constitutional amendment; the fact that the person was eligible at the time his or her name was placed on the ballot does not make the person qualified to assume judicial office.[FN7] CUMULATIVE SUPPLEMENT Cases: Eleventh Amendment did not bar suit by Vice-Chief Justice of Oklahoma Supreme Court against others justices, claiming that change of rules governing election of Chief Justice effectively barred him from position, in violation of his equal protection and due process rights; relief requested was prospective in nature. Opala v. Watt, 393 F. Supp. 2d 1154 (W.D. Okla. 2005), subsequent determination, 2005 WL 1657041 (W.D. Okla. 2005) and judgment rev'd, 454 F.3d 1154 (10th Cir. 2006), cert. denied, 127 S. Ct. 738 (U.S. 2006). District judge did not "actually reside" in Idaho County, within meaning of statute setting forth residency requirement, where judge indicated in testimony before Idaho Judicial Council that he spent six if not seven days per week in another house in another county. West's I.C.A. 1803, 1809. Bradbury v. Idaho Judicial Council, 233 P.3d 38 (Idaho 2009). [END OF SUPPLEMENT]

[FN1] Am. Jur. 2d, Public Officers and Employees 85 to 122. [FN2] Villane v. Azar, 566 So. 2d 645 (La. Ct. App. 4th Cir. 1990), writ denied, 567 So. 2d 1108 (La. 1990) (domicile for two years preceding election); Chowning v. Magness, 792 S.W.2d 438 (Mo. Ct. App. S.D. 1990)

(residency); State ex rel. Martin v. Preston, 325 N.C. 438, 385 S.E.2d 473 (1989) (residency). - As to the various restrictions and limitations imposed upon judges once judicial office has been attained, see 42 to 49. [FN3] Bracy v. Gramley, 520 U.S. 899, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997); In re Barr, 13 S.W.3d 525 (Tex. Review Trib. 1998) (stating that since members of the judiciary serve as a collective guidon of a banner representing the fairness and impartiality in the state, jurists must be held to the highest standards of integrity and ethical conduct). [FN4] LaFever v. Ware, 211 Tenn. 393, 365 S.W.2d 44 (1963). - As to statutory or constitutional provisions requiring status as an attorney as a qualification to hold a judicial office, see 6. [FN5] Sinclair v. Schroeder, 225 Kan. 3, 586 P.2d 683 (1978). [FN6] Clayton v. Kiffmeyer, 688 N.W.2d 117 (Minn. 2004); Flegal v. Dixon, 472 Pa. 249, 372 A.2d 406 (1977). [FN7] In re Advisory Opinion to the Governor, 192 So. 2d 757 (Fla. 1966). 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 5 END OF DOCUMENT

46 Am. Jur. 2d Judges 6 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. II. QUALIFICATION AND SELECTION Topic Summary Correlation Table References 6. Requirement that judge be attorney West's Key Number Digest

West's Key Number Digest, Judges

3, 4, 5

A.L.R. Library Constitutional restrictions on nonattorney acting as judge in criminal proceeding, 71 A.L.R.3d 562 Validity and construction of constitutional or statutory provision making legal knowledge or experience a condition of eligibility for judicial office, 71 A.L.R.3d 498

Forms Petition or applicationFor writ of mandamusBy electorTo require omission of name of ineligible candidate from ballotRequirement that candidate for judge be attorney. Am. Jur. Pleading and Practice Forms, Judges 73 Some jurisdictions have constitutional or statutory provisions to the effect that to be eligible for a judgeship, or to be a judge of a particular court, the person seeking the office must have been admitted to practice law in the courts of the state,[FN1] or must be, or have been for a specified period, engaged in the practice of law.[FN2] In the absence of any constitutional or statutory provision, a person is not required to be an attorney in order to be eligible for a judicial office.[FN3] State constitutional provisions restricting candidacy for certain judicial offices to individuals admitted or entitled to be admitted to the practice of law in a state generally do not violate the civil rights of nonattorneys; the Equal Protection Clause does not prevent a state from adopting more rigorous standards for insuring excellence in its judiciary than it adopts for other state elective offices, and the requirement that candidates be eligible to practice law in the state clearly advances the state's compelling need to obtain candidates who are qualified to understand and deal with the complexities of law.[FN4] Similarly, statutes requiring judicial officers to be attorneys are generally constitutional, although in at least one jurisdiction a statute requiring a judge to be not only a licensed attorney but also a practicing attorney was found to be unconstitutional as making an unreasonable classification.[FN5] Statutory provisions requiring judges to be attorneys have been upheld where they except from the requirement justices of the peace in sparsely populated areas,[FN6] or where the requirement pertained to only one court of unusual jurisdiction.[FN7] Eligibility with respect to legal experience or learning is determined as of the time of the election or appointment.[FN8] Observation: A judge who is also an attorney is subject to discipline as an attorney and as a judge by the bar association of which he or she is a member.[FN9] Thus, where a judge is required to be a member of the bar, an attorney who is disbarred or suspended may not take office as a judge, and a judge who is disbarred or suspended may be removed from office by quo warranto proceedings.[FN10]

[FN1] Mitchell v. Shea, 80 Fed. Appx. 899 (5th Cir. 2003), cert. denied, 541 U.S. 1077, 124 S. Ct. 2419, 158 L. Ed. 2d 989 (2004); Gamble v. White, 566 So. 2d 171 (La. Ct. App. 2d Cir. 1990), writ denied, 565 So. 2d 923 (La. 1990). [FN2] Cook v. Campbell, 360 So. 2d 1193 (La. Ct. App. 2d Cir. 1978), writ denied, 362 So. 2d 573 (La. 1978); Hannett v. Jones, 104 N.M. 392, 722 P.2d 643 (1986); Sears v. Bayoud, 786 S.W.2d 248 (Tex. 1990). -

[FN3] City of Decatur v. Kushmer, 43 Ill. 2d 334, 253 N.E.2d 425 (1969); State ex rel. Swann v. Freshour, 219 Tenn. 482, 410 S.W.2d 885 (1967). [FN4] Bullock v. State of Minn., 611 F.2d 258 (8th Cir. 1979); Torjesen v. Smith, 114 Ill. App. 3d 147, 69 Ill. Dec. 813, 448 N.E.2d 273 (5th Dist. 1983). [FN5] LaFever v. Ware, 211 Tenn. 393, 365 S.W.2d 44 (1963). [FN6] In re Bartz, 47 Wash. 2d 161, 287 P.2d 119 (1955). - Statutory provisions classifying cities by population and permitting lay judges to preside in some cities while requiring law-trained judges in others does not deny equal protection of the laws to an accused facing possible confinement before a lay judge. North v. Russell, 427 U.S. 328, 96 S. Ct. 2709, 49 L. Ed. 2d 534 (1976); Young v. Konz, 88 Wash. 2d 276, 558 P.2d 791 (1977), on reh'g, 91 Wash. 2d 532, 588 P.2d 1360 (1979). [FN7] Crawford v. Gilpatrick, 646 S.W.2d 433 (Tenn. 1983). [FN8] Gamble v. White, 566 So. 2d 171 (La. Ct. App. 2d Cir. 1990), writ denied, 565 So. 2d 923 (La. 1990). [FN9] Am. Jur. 2d, Attorneys at Law 71. [FN10] Am. Jur. 2d, Attorneys at Law 33. 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 6 END OF DOCUMENT

46 Am. Jur. 2d Judges 7 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. II. QUALIFICATION AND SELECTION Topic Summary Correlation Table References 7. Method of selection

West's Key Number Digest West's Key Number Digest, Judges 3, 4, 5

In the absence of constitutional restrictions, the legislature has the power to prescribe the method of selection of judges.[FN1] However, where the method of selection is prescribed by constitution, the legislature has no power to change it.[FN2] Judicial officers are generally exempted by law from the scope of civil service laws.[FN3]

[FN1] Renaud v. State Court of Mediation and Arbitration, 124 Mich. 648, 83 N.W. 620 (1900). [FN2] State ex rel. Madden v. Crawford, 207 Or. 76, 295 P.2d 174 (1956) (holding that where the constitution gives the people the power to elect a judge, it implicitly forbids the legislature to appoint one, and a statute permitting such an appointment is invalid). [FN3] Am. Jur. 2d, Civil Service 16. 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 7 END OF DOCUMENT

46 Am. Jur. 2d Judges 8 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. II. QUALIFICATION AND SELECTION Topic Summary Correlation Table References 8. Method of selectionElection West's Key Number Digest West's Key Number Digest, Judges 3, 4, 5

Forms Declaration of candidacyPartisan primary election. Am. Jur. Legal Forms 2d, Judges 156:4 Certificate of election. Am. Jur. Legal Forms 2d, Judges 156:5 In some states, judges are elected by the vote of the people[FN1] on nonpartisan ballots.[FN2] Within constitutional limits, the legislature generally may prescribe the time and manner of conducting elections for judges.[FN3] Thus, it is sometimes provided by constitution that judges shall be elected by the qualified voters of the district or circuit to which they are to be assigned.[FN4] A statute may also provide for the postponement of elections for judge in cases where the office was vacated between the last date to file nomination documents and the primary election date.[FN5] The legislature may require a candidate for judicial office to pay a qualifying fee so long as it is not palpably arbitrary and unreasonable.[FN6] Attorneys who are judicial candidates must comply with the state code of judicial conduct regulating campaign conduct of candidates for judicial office.[FN7] However, rules or regulations which prohibit judicial candidates from announcing their views on "disputed political or legal issues" during a campaign may be found to be in violation of the First Amendment.[FN8] CUMULATIVE SUPPLEMENT Cases: Supreme Court declined to extend statutory definition of in-kind contribution applicable to nonjudicial political candidates to amounts expended by political party for television advertising on behalf of judge running for re-election, where such retroactive extension would have resulted in violation of judge's due process rights to notice and opportunity to be heard. U.S.C.A. Const.Amend. 14; Const. Art. 1, 16; R.C. 3517.01(B)(16); Code of Jud.Conduct, Canon 7. Disciplinary Counsel v. Spicer, 106 Ohio St. 3d 247, 2005-Ohio-4788, 834 N.E.2d 332 (2005). Judge's activities with respect to expenditure of funds by political party to air television commercial prepared by him in connection with his re-election campaign did not rise to level of active involvement or interaction in consultation, cooperation, or coordination needed to render party's expenditure in-kind contribution, within scope of applicable canon of judicial conduct; although judge participated in decision to create advertisement at issue, he had no involvement in party's decision to air that ad, and party contacted state Supreme Court regarding advertising and acted on information thus obtained, excluding judge from decisionmaking. Code of Jud.Conduct, Canon 7(A)(4). Disciplinary Counsel v. Spicer, 106 Ohio St. 3d 247, 2005-Ohio4788, 834 N.E.2d 332 (2005). "In-kind contribution" within the scope of the canon of the code of judicial conduct governing campaign expenditures must be made with the consent, coordination, cooperation, or consultation of the judicial candidate or his or her agent, or at the request or suggestion of the judicial candidate or agent of that candidate; there can be no such expenditure absent a meeting of the minds, including informal or de facto arrangements, with respect to the intended advertising, with an agreement being an essential component of such an expenditure. Code of Jud.Conduct, Canon 7. Disciplinary Counsel v. Spicer, 106 Ohio St. 3d 247, 2005-Ohio-4788, 834 N.E.2d 332 (2005). Judicial campaign expenditure "made with the consent of, in coordination, cooperation, or consultation with, or at the request or suggestion of a judicial candidate, [or] the campaign committee or agent of the judicial candidate" refers to one made with more than mere knowledge or passive participation on the part of the candidate and occurs when the candidate engages in substantial discussion or negotiation with the political party regarding the contents, timing, type, or frequency of the communication or when the candidate has the ability to direct or control the political party's expenditure in a meaningful way, such that the candidate and the political

party engage in a joint venture. Code of Jud.Conduct, Canon 7(A)(4). Disciplinary Counsel v. Spicer, 106 Ohio St. 3d 247, 2005-Ohio-4788, 834 N.E.2d 332 (2005). Once a judicial candidate learns of a conflict of interest with respect to the roles of a campaign operative, the candidate should eliminate the conflict or discharge the individual to avoid potential disciplinary action; judicial candidates are admonished to avoid such intermingling of interests in election campaigns. Code of Jud.Conduct, Canon 7. Disciplinary Counsel v. Spicer, 106 Ohio St. 3d 247, 2005-Ohio-4788, 834 N.E.2d 332 (2005). Amounts expended by political party for television advertising on behalf of judge running for re-election did not constitute in-kind contribution to judge's campaign committee and were not subject to reporting requirements or contribution limits, where such amounts were not expended with consent of, in coordination, cooperation, or consultation with, or at request or suggestion of judge, his agent, or his campaign committee. R.C. 3517.10; Code of Jud.Conduct, Canon 7(A)(4), (C)(8). Disciplinary Counsel v. Spicer, 106 Ohio St. 3d 247, 2005-Ohio-4788, 834 N.E.2d 332 (2005). Determination as to whether a particular expenditure in a judicial campaign constitutes an "in-kind contribution" must be made on a case-by-case basis after a consideration of the totality of the circumstances. Code of Jud.Conduct, Canon 7(A)(4). Disciplinary Counsel v. Spicer, 106 Ohio St. 3d 247, 2005-Ohio-4788, 834 N.E.2d 332 (2005). When a judicial candidate requests, suggests, directs, or exercises some degree of control over a political party's expenditure on behalf of his or her campaign or engages in substantial discussion or negotiation with the political party regarding the content, timing, type, or frequency of the advertising, the expenditure becomes an in-kind contribution to the candidate's campaign committee. Code of Jud.Conduct, Canon 7(A)(4). Disciplinary Counsel v. Spicer, 106 Ohio St. 3d 247, 2005-Ohio-4788, 834 N.E.2d 332 (2005). Fact that treasurer of county political party was also de facto organizer of judge's re-election campaign did not render his role in producing and arranging for political party's slate advertisements which included commercial prepared by judge the type of active involvement or interaction in consultation, cooperation, or coordination needed to render party's expenditure in-kind contribution subject to reporting requirements within scope of applicable canon of judicial conduct, where such individual did not act solely as campaign operative in producing and arranging for broadcast of party's slate advertisements. Code of Jud.Conduct, Canon 7(A)(4). Disciplinary Counsel v. Spicer, 106 Ohio St. 3d 247, 2005-Ohio-4788, 834 N.E.2d 332 (2005). [END OF SUPPLEMENT]

[FN1] Catapano v. Goldstein, 64 A.D.2d 88, 408 N.Y.S.2d 527 (2d Dep't 1978), order rev'd on other grounds, 45 N.Y.2d 810, 409 N.Y.S.2d 207, 381 N.E.2d 605 (1978); Brady v. Cortes, 873 A.2d 795, 2005 WL 1295854 (Pa. Commw. Ct. 2005). [FN2] Evans v. State Election Bd. of State of Okl., 1990 OK 132, 804 P.2d 1125 (Okla. 1990). [FN3] Winston v. Moore, 244 Pa. 447, 91 A. 520 (1914). [FN4] McCulley v. State (State Report Title: The Judges' Cases), 102 Tenn. 509, 53 S.W. 134 (1899). [FN5] Cathey v. Weissburd, 202 Cal. App. 3d 982, 249 Cal. Rptr. 204 (2d Dist. 1988). [FN6] Bodner v. Gray, 129 So. 2d 419, 89 A.L.R.2d 860 (Fla. 1961); White v. Stanley, 707 S.W.2d 883 (Tex. 1986). -

[FN7] Stretton v. Disciplinary Bd. of Supreme Court of Pennsylvania, 763 F. Supp. 128 (E.D. Pa. 1991), aff'd in part, vacated in part on other grounds, 944 F.2d 137 (3d Cir. 1991); In re Shanley, 98 N.Y.2d 310, 746 N.Y.S.2d 670, 774 N.E.2d 735 (2002) (holding that judicial campaign literature holding a judge out as a "law and order" candidate did not create an appearance that the judge would favor the prosecution or amount to impermissible pledge as to how she would decide cases). - A candidate for judicial office should not himself solicit or accept campaign funds; such actions violate the Judicial Code of Ethics; however, a committee established by a judicial candidate, including an incumbent judge, may solicit or accept funds for such candidate's campaign. Matter of Karr, 182 W. Va. 221, 387 S.E.2d 126 (1989). [FN8] American Civil Liberties Union of Florida, Inc. v. The Florida Bar, 744 F. Supp. 1094 (N.D. Fla. 1990) (finding a statute not to be the most narrowly drawn means of protecting the state's compelling interest in protecting the integrity of the judiciary). - As to the prohibition against political activity by judges once elected to office, see 45. 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 8 END OF DOCUMENT

46 Am. Jur. 2d Judges 9 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. II. QUALIFICATION AND SELECTION Topic Summary Correlation Table References 9. Method of selectionAppointment West's Key Number Digest West's Key Number Digest, Judges 3, 4, 5

Forms Notice of appointment. Am. Jur. Legal Forms 2d, Judges 156:6

There is no federal constitutional or statutory principle that requires that state judges be elected rather than appointed.[FN1] In some states, judges are appointed by the governor[FN2] or by the legislature.[FN3] Judges generally may not be appointed by other judges.[FN4] The Federal Constitution provides that federal judges must be appointed by the President of the United States by and with the advice and consent of the Senate.[FN5] The President has the power to appoint judges during a recess of the Senate and may exercise the power even if the vacancy occurred while the Senate was in session[FN6] or during an intra-session break, even when the vacancy occurred prior to the break.[FN7] Practice Guide: In the absence of statute, a person who has no interest other than as a citizen and a member of the bar of a court may not question the validity of the appointment of a judge.[FN8]

[FN1] Pocker v. Brown, 819 F.2d 148 (6th Cir. 1987). [FN2] State v. Wilson, 545 A.2d 1178 (Del. 1988). - As to the appointment of judges in occupied territory, see Am. Jur. 2d, War 152. [FN3] Murphy v. City of Mobile, 504 So. 2d 243 (Ala. 1987); State v. Clark, 87 Conn. 537, 89 A. 172 (1913). [FN4] Sexton v. Arkansas Supreme Court Committee on Professional Conduct, 299 Ark. 439, 774 S.W.2d 114, 9 A.L.R.5th 1032 (1989). - Babigian v. Wachtler, 69 N.Y.2d 1012, 517 N.Y.S.2d 905, 511 N.E.2d 49 (1987) (holding that a statutory provision for the appointment of housing judges by the Chief Administrative Judge, rather than the executive branch as required for the appointment of judges, did not violate the doctrine of separation of powers; housing judges are considered nonjudicial officers of the court); Ohio State Bar Assn. v. Shattuck, 85 Ohio St. 3d 334, 1999-Ohio-271, 708 N.E.2d 199 (1999) (holding that a judge may be transferred from one division of the court to another only by the Chief Justice under authority of statute). [FN5] U.S. Const. Art. II 2. - As to appointment of federal judges, generally, see Am. Jur. 2d, Federal Courts 19 to 24. [FN6] U. S. v. Allocco, 305 F.2d 704 (2d Cir. 1962). [FN7] Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 125 S. Ct. 1640, 161 L. Ed. 2d 510 (U.S. 2005). [FN8] Ex parte Levitt, 302 U.S. 633, 58 S. Ct. 1, 82 L. Ed. 493 (1937). 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 9 END OF DOCUMENT

46 Am. Jur. 2d Judges 10 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. II. QUALIFICATION AND SELECTION Topic Summary Correlation Table References 10. Oath; bond West's Key Number Digest West's Key Number Digest, Judges 3, 4, 5

Forms Oath of officeState court judge. Am. Jur. Legal Forms 2d, Judges 156:10 Before entering on the duties of the position, an appointed or elected judge is usually required to take an oath of office,[FN1] and this requirement generally applies to special judges.[FN2] A special oath is prescribed for federal judges,[FN3] and the judges of state courts are required by federal statute to take an oath to support the Constitution of the United States.[FN4] A failure to file an oath of office does not necessarily, by itself, deprive a judge of the authority to act.[FN5] Similarly, the failure to post a bond does not necessarily provide a basis for forfeiture of office.[FN6]

[FN1] City of Crossett v. Switzer, 302 Ark. 239, 788 S.W.2d 738 (1990); Adams v. State, 214 Ind. 603, 17 N.E.2d 84, 118 A.L.R. 1095 (1938). [FN2] 240. [FN3] Am. Jur. 2d, Federal Courts 26. [FN4] 4 U.S.C.A. 101, 102. [FN5] Espinosa v. State, 115 S.W.3d 64 (Tex. App. San Antonio 2003). [FN6] Vos v. Village of Washingtonville, 2004-Ohio-1388, 2004 WL 549818 (Ohio Ct. App. 7th Dist. Columbiana County 2004). -

2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 10 END OF DOCUMENT

46 Am. Jur. 2d Judges III Refs. American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. III. TERM OF OFFICE, IN GENERAL Topic Summary Correlation Table Research References

West's Key Number Digest West's Key Number Digest, Judges 7, 9

Primary Authority U.S. Const. Art. III 1

A.L.R. Library A.L.R. Index, Judges West's A.L.R. Digest, Judges 7, 9

Forms Am. Jur. Pleading and Practice Forms, Judges 75

2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES III REF END OF DOCUMENT

46 Am. Jur. 2d Judges 11 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. III. TERM OF OFFICE, IN GENERAL Topic Summary Correlation Table References 11. Generally West's Key Number Digest West's Key Number Digest, Judges 7, 9

Judges are usually elected or appointed for a term of years.[FN1] The Federal Constitution provides that the judges of the Supreme Court and of inferior federal courts shall hold their offices during good behavior.[FN2] A constitutional amendment may change the term of an incumbent judge; however, the terms of office of judicial positions may not be changed by a constitutional amendment that is not self-executing, that does not supersede the preexisting constitutional provision by an express repeal, and that does not clearly express the intent that the change in the term be made immediately.[FN3] In the absence of constitutional authority, if the term of a judge is fixed by the constitution, the legislature cannot extend or diminish it[FN4] by providing that judges shall serve for the term so fixed and until their successors are duly appointed and qualified.[FN5] Similarly, in exercising the executive power of appointment, a governor does not have discretion regarding the length of an appointed judge's term and the date of the expiration of that term where such matters are explicitly prescribed by the state constitution.[FN6]

[FN1] Draughn v. Brown, 651 S.W.2d 728 (Tex. 1983). - As to the duration of the term of a judge chosen to fill a vacancy, see 230. [FN2] U.S. Const. Art. III 1, as discussed in Am. Jur. 2d, Federal Courts 19, 20. -

[FN3] State ex rel. Cotter v. Leipner, 138 Conn. 153, 83 A.2d 169 (1951). [FN4] State ex rel. Rundbaken v. Watrous, 135 Conn. 638, 68 A.2d 289 (1949). [FN5] 12. [FN6] Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988). 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 11 END OF DOCUMENT

46 Am. Jur. 2d Judges 12 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. III. TERM OF OFFICE, IN GENERAL Topic Summary Correlation Table References 12. Holding over West's Key Number Digest West's Key Number Digest, Judges 7, 9

Forms Complaint, petition, or declarationFor judgment declaring justice of the peace to be holdover magistrate and ordering reinstatement and back pay until successor is appointedBy justice of the peace who failed to be confirmed for additional term. Am. Jur. Pleading and Practice Forms, Judges 75 Constitutions or statutes frequently provide that judges will hold office until their successors are elected or appointed and qualified.[FN1] Even in the absence of a statutory provision, an incumbent judge may have the right and duty to hold over and exercise the duties and functions of the office until a successor is appointed;

however, under such circumstances he or she is not a judge de jure, but is at most a judge de facto.[FN2] A judge de facto merely performs the functions of the office until a duly qualified appointee appears, and then is bound to yield the office to the appointee; a judge de facto's incumbency does not prevent a vacancy of the office or the filling of the vacancy.[FN3] Where the constitution or statute fixes the term of a judge at a certain number of years, a statutory provision to the effect that public officers may hold over until a successor is chosen does not apply to judicial officers.[FN4] Under such a statute, a judge does not hold over but ceases to hold office as of right at the conclusion of the specified number of years.[FN5] Observation: Under a statute providing that judges will serve for a specified term from the date of appointment and until his or her successor is appointed and qualified, the appointing authority cannot appoint a judge holding over from a previous term of appointment to the statutory term beginning at the termination of the prior term, but must appoint the judge for the statutory term from the date of the appointment.[FN6]

[FN1] Gray v. Bryant, 125 So. 2d 846 (Fla. 1960); Levine v. Mayor of City of Passaic, 233 N.J. Super. 559, 559 A.2d 485 (Law Div. 1988). [FN2] State v. Clark, 87 Conn. 537, 89 A. 172 (1913). - A judge whose term has ceased may sign orders nunc pro tunc for a judgment entered into before the expiration of his or her term. Lansing v. Lansing, 736 S.W.2d 554 (Mo. Ct. App. E.D. 1987). - A district judge who has been properly replaced by a successor has the authority to sign a written judgment after he or she has been replaced, provided that such judge heard the cause and entered his or her judgment in the docket sheet before the expiration of his or her term. Martinez v. Martinez, 759 S.W.2d 522 (Tex. App. San Antonio 1988). [FN3] Nollette v. Christianson, 115 Wash. 2d 594, 800 P.2d 359 (1990). - As to de facto judges, generally, see 231. [FN4] Etelson v. Jacaruso, 80 Misc. 2d 685, 364 N.Y.S.2d 103 (Sup 1975), judgment aff'd, 47 A.D.2d 715, 366 N.Y.S.2d 389 (2d Dep't 1975). [FN5] State ex rel. Rundbaken v. Watrous, 135 Conn. 638, 68 A.2d 289 (1949). [FN6] Levine v. Mayor of City of Passaic, 233 N.J. Super. 559, 559 A.2d 485 (Law Div. 1988). 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 12 END OF DOCUMENT

46 Am. Jur. 2d Judges IV A Refs.

American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. IV. TERMINATION OR SUSPENSION OF OFFICE; CENSURE A. Termination, Resignation, or Retirement Topic Summary Correlation Table Research References

West's Key Number Digest West's Key Number Digest, Judges 10

Primary Authority 29 U.S.C.A. 621 et seq., 630

A.L.R. Library A.L.R. Index, Judges West's A.L.R. Digest, Judges 10

Forms Am. Jur. Legal Forms 2d, Judges 156:18

2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES IV A REF END OF DOCUMENT

46 Am. Jur. 2d Judges 13

American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. IV. TERMINATION OR SUSPENSION OF OFFICE; CENSURE A. Termination, Resignation, or Retirement Topic Summary Correlation Table References 13. Generally West's Key Number Digest West's Key Number Digest, Judges 10

Forms Resignation. Am. Jur. Legal Forms 2d, Judges 156:18 The term of a judge may be terminated, or he or she may cease to hold office, among other ways, by resignation,[FN1] expiration of his or her term of office,[FN2] reaching an the age of mandatory retirement as specified by statute or constitutional provision,[FN3] or the acceptance of an incompatible office.[FN4] Some jurisdictions also provide for the recall of judges by the electorate.[FN5] A judge may cease to hold office by resigning.[FN6] There is authority supporting the view that a judge does not have the absolute right at his or her own pleasure to abandon duties and resign the office, that an acceptance of a resignation, or its equivalent, may be necessary to perfect it, and that when an acceptance specifies the time at which it will take effect, until such time the resignation is not complete.[FN7] Once a judge's resignation is written, signed, and delivered to the appropriate authority, that authority has no discretion but to accept the resignation.[FN8] There is authority for the view that the resignation of a county judge, submitted to the governor to become operative on a specified date, may become operative on that date, even though, before that date and before the governor has acted on it, the judge attempts to withdraw the resignation.[FN9] A judge may still continue to serve on a court from which he or she has resigned until the effective date of the resignation, even though he or she has taken an oath of office to be judge of another court a few days prior to the beginning of that term.[FN10] A judge's voluntary retirement is sufficient to render misconduct charges and related issues moot, warranting dismissal of a complaint.[FN11] Statutes may provide for the resignation or retirement of judges under certain conditions; for example, Congress has made such a provision in the case of federal judges.[FN12] CUMULATIVE SUPPLEMENT Cases: Retired status of a judge does not deprive the Judicial Qualifications Commission (JQC) of its jurisdiction so long as a complaint is filed within one year after retirement. West's F.S.A. Const. Art. 5, 12(a)(1). In re Downey, 937 So. 2d 643 (Fla. 2006).

Retirement of a judge does not deprive the Supreme Court of disciplinary jurisdiction. West's F.S.A. Const. Art. 5, 12. In re Downey, 937 So. 2d 643 (Fla. 2006). [END OF SUPPLEMENT]

[FN1] 13. [FN2] Todd v. Bradley, 97 Conn. 563, 117 A. 808, 25 A.L.R. 22 (1922). [FN3] 13. [FN4] 43, 44. [FN5] Am. Jur. 2d, Public Officers and Employees 202 to 217. [FN6] Todd v. Bradley, 97 Conn. 563, 117 A. 808, 25 A.L.R. 22 (1922). [FN7] In re Dempsey, 101 Ill. Dec. 58, 498 N.E.2d 240 (Ill. 1986). [FN8] Texas Democratic Executive Committee v. Rains, 756 S.W.2d 306 (Tex. 1988). [FN9] People ex rel. Adamowski v. Kerner, 19 Ill. 2d 506, 167 N.E.2d 555, 82 A.L.R.2d 740 (1960). [FN10] Carey Canada, Inc. v. Hinely, 181 Ga. App. 364, 352 S.E.2d 398 (1986), judgment rev'd on other grounds, 257 Ga. 150, 356 S.E.2d 202 (1987). [FN11] In re Charge of Judicial Misconduct, 91 F.3d 90 (9th Cir. Jud. Council 1996). [FN12] Am. Jur. 2d, Federal Courts 153 to 159. 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 13 END OF DOCUMENT

46 Am. Jur. 2d Judges 14

American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. IV. TERMINATION OR SUSPENSION OF OFFICE; CENSURE A. Termination, Resignation, or Retirement Topic Summary Correlation Table References 14. Mandatory retirement provisions West's Key Number Digest West's Key Number Digest, Judges 10

A.L.R. Library Who is exempt from definition of "employee," under sec. 11(f) of Age Discrimination in Employment Act (ADEA) (29 U.S.C.A. sec. 630(f)), so as to be excepted from coverage of Act, 110 A.L.R. Fed. 490 State constitutional provisions which require retirement of state judges upon reaching a specified age are constitutional.[FN1] The Age Discrimination in Employment Act (ADEA),[FN2] which prohibits arbitrary age discrimination in employment, exempts from its coverage persons "elected to public office,"[FN3] and elected state court judges are considered persons "elected to public office" under the ADEA.[FN4] Thus, state statutory or constitutional provisions, as applied to elected judges, requiring state court judges to retire upon reaching a specified age will withstand ADEA challenges.[FN5] Appointed state court judges are within the exception for "appointees on the policymaking level" and are not covered by the protections of the ADEA.[FN6]

[FN1] Malmed v. Thornburgh, 621 F.2d 565 (3d Cir. 1980) (equal protection); Hatten v. Rains, 854 F.2d 687 (5th Cir. 1988) (equal protection); Zielasko v. State of Ohio, 873 F.2d 957 (6th Cir. 1989) (first amendment); Martin v. State, 330 N.C. 412, 410 S.E.2d 474 (1991) (equal protection). - A determination not to retain a judge already retired by a constitutional mandate does not affect any property right; thus, the failure to provide such a judge with a hearing does not violate due process. Marro v. Bartlett, 61 A.D.2d 729, 403 N.Y.S.2d 924 (3d Dep't 1978), judgment aff'd, 46 N.Y.2d 674, 416 N.Y.S.2d 212, 389 N.E.2d 808 (1979). [FN2] 29 U.S.C.A. 621 et seq., as discussed, generally, in Am. Jur. 2d, Job Discrimination 16, 17, 160 to 167. [FN3] 29 U.S.C.A. 630(f), as discussed in Am. Jur. 2d, Job Discrimination 112. [FN4] Diamond v. Cuomo, 70 N.Y.2d 338, 520 N.Y.S.2d 732, 514 N.E.2d 1356 (1987); Gondelman v. Com., 120 Pa. Commw. 624, 550 A.2d 814 (1988). -

[FN5] Diamond v. Cuomo, 70 N.Y.2d 338, 520 N.Y.S.2d 732, 514 N.E.2d 1356 (1987). [FN6] Gregory v. Ashcroft, 501 U.S. 452, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991). 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 14 END OF DOCUMENT

46 Am. Jur. 2d Judges 15 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. IV. TERMINATION OR SUSPENSION OF OFFICE; CENSURE A. Termination, Resignation, or Retirement Topic Summary Correlation Table References 15. Judicial activities of judges following resignation or retirement West's Key Number Digest West's Key Number Digest, Judges 10

Some states have statutory or constitutional provisions by which retired judges may be assigned to sit as judges.[FN1] A judge who has retired does not have a constitutional due process right to a judicial review of a determination not to reinstate him or her to judicial duties, since such a determination does not affect a property right.[FN2] A judge who resigns or retires from a court after hearing a matter may be allowed to participate fully in consideration of the case subsequent to his or her retirement.[FN3]

[FN1] In re National Recreation Products, Inc., 403 F. Supp. 1399 (C.D. Cal. 1975); Duff v. A. Teichert & Son, Inc., 134 Cal. App. 2d 28, 285 P.2d 21 (3d Dist. 1955). [FN2] Davis v. Commission On Judicial Qualifications, 73 Cal. App. 3d 818, 141 Cal. Rptr. 75 (2d Dist. 1977); Marro v. Bartlett, 61 A.D.2d 729, 403 N.Y.S.2d 924 (3d Dep't 1978), judgment aff'd, 46 N.Y.2d 674, 416 N.Y.S.2d 212, 389 N.E.2d 808 (1979) (holding that the statute which provides that a retired Supreme Court Justice "may" be certified by an Administrative Board to continue to perform the duties of a Justice, does not

create an automatic "right" in such judges to remain in office; the failure of the board to list the reasons for their denial of certification is not evidence of arbitrariness or capriciousness). [FN3] Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592, 59 Ed. Law Rep. 133 (1989) (state supreme court justice). 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 15 END OF DOCUMENT

46 Am. Jur. 2d Judges IV B Refs. American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. IV. TERMINATION OR SUSPENSION OF OFFICE; CENSURE B. Impeachment And Removal Topic Summary Correlation Table Research References

West's Key Number Digest West's Key Number Digest, Judges 11

A.L.R. Library A.L.R. Index, Judges West's A.L.R. Digest, Judges 11

Forms

Am. Jur. Legal Forms 2d, Judges 156:19, 156:20 Am. Jur. Pleading and Practice Forms, Judges 74, 77

2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES IV B REF END OF DOCUMENT

46 Am. Jur. 2d Judges 16 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. IV. TERMINATION OR SUSPENSION OF OFFICE; CENSURE B. Impeachment And Removal Topic Summary Correlation Table References 16. Generally West's Key Number Digest West's Key Number Digest, Judges 11

A.L.R. Library Consorting with, or maintaining social relations with, criminal figure as ground for disciplinary action against judge, 15 A.L.R.5th 923 Confidentiality of proceedings or reports of judicial inquiry board or commission, 5 A.L.R.4th 730 Power of court to remove or suspend judge, 53 A.L.R.3d 882

Forms Notice of removal. Am. Jur. Legal Forms 2d, Judges 156:19

Petition by judge for reinstatement after setting aside of conviction on appeal. Am. Jur. Legal Forms 2d, Judges 156:20 Complaint, petition, or accusationBy judicial commissionAlleging misconduct of judge. Am. Jur. Pleading and Practice Forms, Judges 74 Generally, any power existing in a state court to remove a state judge from office must be based upon express constitutional provisions or upon valid statutory enabling provisions enacted thereunder.[FN1] The method by which judges may be removed, and the grounds for their removal, are also generally fixed by state constitutions and statutes.[FN2] Where the constitution prescribes the method of removal, the legislature has no power to provide for a removal in any other way.[FN3] United States judges, including district judges, are subject to removal only by the Senate of the United States sitting as a court of impeachment.[FN4] Judges of inferior courts may be removed by courts of general jurisdiction,[FN5] which may delegate the task to a disciplinary commission.[FN6] However, a court does not have the power to remove a judge from office where neither the state constitution nor statutes confer on it disciplinary authority over acting judges.[FN7] Observation: In the absence of a specific constitutional or statutory authorization, under its general power of superintendence, a state supreme court may exercise its administrative authority to conduct an inquiry and take such action as is deemed necessary, short of removal of a judge from office.[FN8] Actual levels of discipline to be imposed by the court for judicial misconduct are, in the end, institutional and collective judgment calls; they rest on the Court's assessment of the individual facts of each case, as measured against the Code and Rules of Judicial Conduct and the prior precedents of the court.[FN9] When the Judicial Standards Commission's recommendations are reviewed, they are not binding upon the state supreme court, which will consider the evidence of both sides and exercise its independent judgment as to whether it should censure, remove, or decline to do either.[FN10] CUMULATIVE SUPPLEMENT Cases: Violation of a Canon of the Code of Conduct for United States Judges does not necessarily amount to judicial misconduct under the Judicial Conduct and Disability Act. In re Complaint of Judicial Misconduct, 575 F.3d 279 (3d Cir. 2009). The Judicial Standards Commission's recommendations are not binding upon the Supreme Court in judicial disciplinary cases, and thus the Supreme Court exercises its independent judgment with respect to the disciplinary measures to be imposed. In re Badgett, 362 N.C. 202, 657 S.E.2d 346 (2008). In reviewing the Judicial Standards Commission's recommendations regarding judicial disciplinary matters, the Supreme Court acts as a court of original jurisdiction, rather than in its typical capacity as an appellate court. In re Badgett, 362 N.C. 202, 657 S.E.2d 346 (2008). In judicial misconduct cases in which no evidence is presented regarding the judge's mental state at the time of the misconduct, the Supreme Court presumes that the judge was healthy and unhindered in that regard. Disciplinary Counsel v. Campbell, 126 Ohio St. 3d 150, 2010-Ohio-3265, 931 N.E.2d 558 (2010). Conduct of municipal court judge, in abusing 911 emergency response system to have a police officer sent to his chambers, and in trying to deflect responsibility for the illicit use onto another lawyer by lying and using the influence of his judicial office, violated Code of Judicial Conduct canons providing that a judge uphold the integrity and independence of the judiciary, that a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and that a judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities, and violated Disciplinary Rules providing that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation, that a lawyer shall not engage in conduct that is prejudicial to the administration of justice, and that a lawyer shall not engage in conduct that adversely reflects on the lawyer's fitness to practice law. Disciplinary Counsel v. Parker, 116 Ohio St. 3d 64, 2007-Ohio-5635, 876 N.E.2d 556 (2007). Conduct of municipal court judge, in presiding over a criminal defendant's plea and sentencing after participating in the defendant's arrest, violated Code of Judicial Conduct canons providing that a judge shall uphold the integrity and independence of the judiciary, that a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, that a judge shall disqualify himself in a proceeding in which the judge's impartiality might reasonably be questioned, and that a judge shall not initiate, receive, permit, or consider ex parte communications, and violated Disciplinary Rule providing that a lawyer shall not engage in conduct that is prejudicial to the administration of justice. Disciplinary Counsel v. Parker, 116 Ohio St. 3d 64, 2007-Ohio5635, 876 N.E.2d 556 (2007). Conduct of municipal court judge, in harassing and humiliating victim of domestic violence who wished to drop charges against her alleged attacker, violated Code of Judicial Conduct canons providing that a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and violated Disciplinary Rule providing that a lawyer shall not engage in conduct that is prejudicial to the administration of justice. Disciplinary Counsel v. Parker, 116 Ohio St. 3d 64, 2007-Ohio-5635, 876 N.E.2d 556 (2007). Judges may chastise defendants for wrongdoing in court. Disciplinary Counsel v. Parker, 116 Ohio St. 3d 64, 2007-Ohio-5635, 876 N.E.2d 556 (2007). [END OF SUPPLEMENT]

[FN1] Delahay v. State, 476 P.2d 908 (Alaska 1970); Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49 (1968); Cusack v. Howlett, 44 Ill. 2d 233, 254 N.E.2d 506 (1969); In re Municipal Court of City of Cedar Rapids, 188 N.W.2d 354 (Iowa 1971); In re Haggerty, 257 La. 1, 241 So. 2d 469 (1970); Muka v. Bryant, 44 A.D.2d 611, 352 N.Y.S.2d 693 (3d Dep't 1974); Sharpe v. State ex rel. Oklahoma Bar Ass'n, 1968 OK JUD 1, 448 P.2d 301 (Okla. Jud. Ct. App. Div. 1968). [FN2] In re Hapner, 737 So. 2d 1075 (Fla. 1999); Small v. Guste, 383 So. 2d 1011 (La. 1980); In re Watson, 71 Nev. 227, 286 P.2d 254, 53 A.L.R.2d 301 (1955). - The legislature cannot delegate the power to remove a judge to the executive or the judicial branches of government. In re Murphy, 726 S.W.2d 509 (Tenn. 1987). - As to grounds for the removal of judges, see 19. - As to the recall of public officers by the electorate, generally, see Am. Jur. 2d, Public Officers and Employees 202 to 217. [FN3] Cusack v. Howlett, 44 Ill. 2d 233, 254 N.E.2d 506 (1969). [FN4] Am. Jur. 2d, Federal Courts 20. [FN5] In re Gillard, 271 N.W.2d 785 (Minn. 1978); Matter of Yengo, 72 N.J. 425, 371 A.2d 41 (1977). [FN6] In re Terry, 262 Ind. 667, 323 N.E.2d 192 (1975). [FN7] In re Watson, 71 Nev. 227, 286 P.2d 254, 53 A.L.R.2d 301 (1955). -

[FN8] Goldman v. Bryan, 104 Nev. 644, 764 P.2d 1296 (1988). [FN9] Matter of Duckman, 92 N.Y.2d 141, 677 N.Y.S.2d 248, 699 N.E.2d 872 (1998). [FN10] In re Tucker, 348 N.C. 677, 501 S.E.2d 67 (1998). 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 16 END OF DOCUMENT

46 Am. Jur. 2d Judges 17 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. IV. TERMINATION OR SUSPENSION OF OFFICE; CENSURE B. Impeachment And Removal Topic Summary Correlation Table References 17. Nature of proceedings West's Key Number Digest West's Key Number Digest, Judges 11

Before a judge may be adjudged to have forfeited his or her office or become disqualified from holding future office, the judge's guilt must have been adjudicated at least in a formal proceeding wherein he or she was accorded due process of law; conviction in a criminal proceeding is not necessarily required.[FN1] The combination of investigative and adjudicatory functions in one body during such a proceeding does not constitute a violation of due process.[FN2] Although the constitutional remedy by impeachment does not prevent a subsequent indictment and conviction, and does not extend beyond a removal from office and a disqualification to hold office during the term for which the officer was elected or appointed, due process requires that a judge not be permanently enjoined from seeking another judgeship in the future.[FN3] However, because the purpose of judicial discipline proceedings is to protect the public, rather than to punish the individual judge,[FN4] the proceeding is neither civil nor criminal but sui generis.[FN5]

Charges against a judge need not be established by proof beyond reasonable doubt, but rather by a preponderance of the evidence[FN6] or by clear and convincing evidence.[FN7] CUMULATIVE SUPPLEMENT Cases: A cognizable misconduct complaint, under the Judicial Conduct and Disability Act, based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law. In re Memorandum of Decision of Judicial Conference Committee on Judicial Conduct and Disability, 517 F.3d 558 (U.S. Jud. Conf. 2008). In a judge discipline case, the Supreme Court reviews the findings of the Judicial Qualifications Commission (JQC) to determine if they are supported by clear and convincing evidence and reviews the recommendation of discipline to determine whether it should be approved. In re Dempsey, 29 So. 3d 1030 (Fla. 2010). Judicial Qualifications Commission's (JQC) decision to initiate judicial disciplinary proceedings against Judge for accusing a fellow appellate judge of corruption in a concurring opinion did not serve to undermine Judge's judicial independence; Judge's opinion was not one of intemperate or colorful language but crossed that line by falsely accusing his colleague of corruption and using unverified statements from materials outside of the record of the case. In re Allen, 998 So. 2d 557 (Fla. 2008). Before reporting findings of fact to Supreme Court, the Judicial Qualifications Commission (JQC) must conclude that they are established by clear and convincing evidence; the Supreme Court must then review the findings and determine whether they meet this quantum of proof, a standard which requires more proof than a "preponderance of the evidence" but less than "beyond and to the exclusion of a reasonable doubt". In re Allen, 998 So. 2d 557 (Fla. 2008). Evidence was sufficient to establish that District Court of Appeal Judge's concurring opinion, in which he explained his vote to commit criminal case on appeal to en banc consideration by directing pointed remarks at his colleague, a fellow appellate judge, was a personal attack against a member of judiciary, motivated by ill will; with a history of dislike and disrespect for his colleague, Judge, in his concurring opinion, accused colleague of corruption by linking him, through prior professional association, to the defendant in the criminal case on appeal, all based on unverified facts that came from outside the record. In re Allen, 998 So. 2d 557 (Fla. 2008). If a judge believes that another judge's conduct is in violation of the Code of Judicial Conduct, the proper course for the judge is to report what the judge knows to the Judicial Qualifications Commission (JQC); or, if a judge believes that another judge has violated criminal law, the proper course is to report what the judge knows to the State Attorney. In re Allen, 998 So. 2d 557 (Fla. 2008). Judges should be careful to avoid ex parte contacts of any kind, even through the use of judicial assistants, that could be perceived to have been made without the knowledge of all parties. Riechmann v. State, 966 So. 2d 298 (Fla. 2007), as revised on denial of reh'g, (Sept. 20, 2007). Judicial Qualifications Commission (JQC) and state Supreme Court had subject-matter jurisdiction in disciplinary proceedings against circuit judge, initiated more than one year after judge left county bench, for conduct occurring during his prior term as county judge, where judge's return to bench in circuit court revived jurisdiction to proceed against him for misconduct during his previous judicial service, and formal charges were instituted during judge's second term of judicial service. West's F.S.A. Const. Art. 5, 12(a)(1). In re Henson, 913 So. 2d 579 (Fla. 2005). Findings in proceedings before the Judicial Qualifications Commission (JQC) that meet the "clear and convincing evidence" standard are given great weight by the Supreme Court. In re Henson, 913 So. 2d 579 (Fla. 2005).

Ultimate responsibility for making a determination on the appropriate sanction in judicial disciplinary proceedings rests with the Supreme Court. West's F.S.A. Const. Art. 5, 12(c)(1). In re Henson, 913 So. 2d 579 (Fla. 2005). Questions of bias and credibility of witnesses before hearing panel of Judicial Qualifications Commission (JQC), and any conflicts in evidence, were for resolution by the hearing panel, and did not warrant overturning finding that judge engaged in misconduct. In re Henson, 913 So. 2d 579 (Fla. 2005). On appeal, the Supreme Court must accept the findings and conclusions of the Judicial Conduct Commission unless they are clearly erroneous or unreasonable. Gormley v. Judicial Conduct Commission, 332 S.W.3d 717 (Ky. 2010). The Supreme Court is not bound by the findings of the Commission on Judicial Performance in a judicial misconduct proceeding, and the Court may impose additional sanctions. Mississippi Com'n on Judicial Performance v. DeLaughter, 29 So. 3d 750 (Miss. 2010). When reviewing recommendations from the Judicial Standards Commission in judicial disciplinary case, the Supreme Court may adopt the Commission's findings of fact if they are supported by clear and convincing evidence, or it may make its own findings. In re Badgett, 362 N.C. 202, 657 S.E.2d 346 (2008). Judicial misconduct, as basis for judicial discipline, must be shown by clear and convincing evidence. Disciplinary Counsel v. Hoskins, 119 Ohio St. 3d 17, 2008-Ohio-3194, 891 N.E.2d 324 (2008). Evidence supported finding that Judicial Conduct Board properly conducted its investigation of respondent with diligence; although respondent claimed that Board delayed filing charges, Board spent six months obtaining a mental health examination of respondent, after which respondent spent three months resisting the Board's subpoena to depose her, and respondent offered no evidence, beyond her own speculation, that the Board acted without diligence or in bad faith. In re Lokuta, 11 A.3d 427 (Pa. 2011). The findings of the Commission on Judicial Conduct Panel, in a judicial disciplinary proceeding, are entitled to great weight, particularly when the inferences drawn from the testimony in the record depend largely on the credibility of the witnesses. In re Hutchins, 378 S.C. 14, 661 S.E.2d 343 (2008). [END OF SUPPLEMENT]

[FN1] In re Inquiry Concerning Holien, 612 N.W.2d 789 (Iowa 2000) (holding that the failure of the Commission on Judicial Qualifications to allow a judge to discover statements of the complaint and supporting documentation did not prejudice the judge); Matter of Probert, 411 Mich. 210, 308 N.W.2d 773 (1981); Johnson v. Johnson, 1967 OK 16, 424 P.2d 414 (Okla. 1967); In re Canales, 113 S.W.3d 56 (Tex. Review Trib. 2003), review denied, (Apr. 9, 2004) and order withdrawn, (Sept. 24, 2004) and aff'd, (Sept. 24, 2004) (stating that only legal evidence is to be received). - As to the determination and hearing required for disqualification of a judge in particular cases, see 193 to 202 [FN2] Kloepfer v. Commission On Judicial Performance, 49 Cal. 3d 826, 264 Cal. Rptr. 100, 782 P.2d 239, 89 A.L.R.4th 235 (1989); Matter of Mikesell, 396 Mich. 517, 243 N.W.2d 86 (1976); In re Elliston, 789 S.W.2d 469 (Mo. 1990). [FN3] Matter of Probert, 411 Mich. 210, 308 N.W.2d 773 (1981). [FN4] Matter of Duckman, 92 N.Y.2d 141, 677 N.Y.S.2d 248, 699 N.E.2d 872 (1998). [FN5] In re Inquiry Concerning a Judge, 788 P.2d 716 (Alaska 1990); In re Nelson, 207 Ariz. 318, 86 P.3d 374 (2004). -

[FN6] In re Dunleavy, 2003 ME 124, 838 A.2d 338, 2003 WL 22400723 (Me. 2003); In re Noecker, 472 Mich. 1, 691 N.W.2d 440 (2005); In re Canales, 113 S.W.3d 56 (Tex. Review Trib. 2003), review denied, (Apr. 9, 2004) and order withdrawn, (Sept. 24, 2004) and aff'd, (Sept. 24, 2004). [FN7] In re Doggett, 874 So. 2d 805, 2004-319 La. 5/25/04, 2004 WL 1153325 (La. 2004); In re Hughes, 874 So. 2d 746, 2003-3408 La. 4/22/04, 2004 WL 867701 (La. 2004); In re Diaz, 908 So. 2d 334 (Fla. 2005); In re Ford-Kaus, 730 So. 2d 269 (Fla. 1999); In re Braswell, 358 N.C. 721, 600 S.E.2d 849 (2004); Disciplinary Counsel v. O'Neill, 103 Ohio St. 3d 204, 2004-Ohio-4704, 815 N.E.2d 286, 2004 WL 2008813 (2004). 2011 Thomson Reuters. 33-34B 2011 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR JUDGES 17 END OF DOCUMENT

46 Am. Jur. 2d Judges 18 American Jurisprudence, Second Edition Database updated August 2011 Judges Laura Hunter Dietz, J.D. and Fern L. Kletter, J.D. and Thomas J. Czelusta, J.D., of the staff of the National Legal Research Group, Inc. IV. TERMINATION OR SUSPENSION OF OFFICE; CENSURE B. Impeachment And Removal Topic Summary Correlation Table References 18. Nature of proceedingsConfidentiality West's Key Number Digest West's Key Number Digest, Judges 11

A.L.R. Library Confidentiality of proceedings or reports of judicial inquiry board or commission, 5 A.L.R.4th 730 Proceedings relating to the investigation of alleged judicial misconduct are generally required by state constitution or statute to be kept confidential.[FN1] However, provisions in some jurisdictions permit public disclosure of judicial investigation procedures in certain specified instances.[FN2] In addition, although a state constitution required that a judicial inquiry board investigating charges of judicial misconduct maintain the

confidentiality of all its proceedings, where the judge under investigation for alleged criminal conduct had sought a court order directing that the board's investigatory files be made available for inspection and in order to obtain disclosure the judge was required to show a compelling and particularized need, due process required the board to disclose evidence and material which it had collected in the investigation, to the extent that such evidence and material plainly negated on its face the judge's guilt.[FN3] CUMULATIVE SUPPLEMENT Cases: Confidentiality of hearings before an investigative panel of the Judicial Qualifications Commission (JQC) is aimed at protecting judges from unsubstantiated claims, not meritorious claims that advance to a hearing panel. West's F.S.A. Const. Art. 5, 12(a)(4). In re Eriksson, 36 So. 3d 580 (Fla. 2010). Misconduct committed by an attorney who subsequently becomes a judge falls within the subject-matter jurisdiction of the Supreme Court and the Judicial Qualifications Commission (JQC), no matter how remote. West's F.S.A. Const. Art. 5, 12. In re Henson, 913 So. 2d 579 (Fla. 2005). Judicial Qualifications Commission (JQC) proceedings are constitutionally authorized for alleged misconduct by a judge during the time he or she was a lawyer, based on a complaint filed against a judge currently in office for misconduct during a previous term of service in the same or a different judicial office if there has been no interruption of judicial service, or, if the complaint is filed no later than one year after judicial service, for misconduct by a judge who has left the bench and has not returned. West's F.S.A. Const. Art. 5, 12. In re Henson, 913 So. 2d 579 (Fla. 2005). Findings of fact by a Judicial Qualifications Commission (JQC) Hearing Panel must be supported by clear and convinci