Thursday, September 30, 2021

Department of Serendipity

Serendipitous finds are terrifying because they make you wonder what else you've missed and how close you came to missing what you have stumbled upon. As today's case in point, consider this 2009 advisory opinion from the Committee on Codes of Conduct of the Judicial Conference of the United States:

No. 76: Service of State Employees as Part-Time United States Magistrate Judges

This opinion considers the propriety of appointing state or local public defenders or prosecutors as part-time United States Magistrate Judges.

The Committee advises that it would be inappropriate to appoint as part-time United States Magistrate Judges persons who are simultaneously serving as state or local public defenders or prosecutors. Likewise, it would be inappropriate for a part-time United States Magistrate Judge to serve as a state or local public defender or prosecutor.

The Judicial Conference has adopted Conflict-of-Interest Rules for Part-time Magistrate Judges. See Guide to Judiciary Policy, Vol. 2C, § 1110. Rule 3 provides that a part-time magistrate judge may appear as counsel in criminal actions in a state court. That provision relates to appearances as private counsel for the defendant and is permissible so long as it does not interfere with the performance of duty as a part-time magistrate judge.

Appearances in court of a part-time magistrate judge as a representative of the state or local government, whether as prosecutor or public defender, implicates two Canons of the Code of Conduct for United States Judges: Canon 1, that a judge should uphold the independence of the judiciary, and Canon 2, that a judge should avoid impropriety and the appearance of impropriety. Dual employment of the same person in the federal and in state or local judicial systems would be in conflict with the intent of these canons.

The military justice system is not included in the Judicial Conference of the United States, so the Committee's opinion -- one of many -- is not directly binding on military trial and appellate judges. Still, one must assume that it would be something those responsible for the administration of military justice (the TJAGs, the Joint Service Committee, the Chief Judges of the CCAs, the Chief Trial Judges, and less directly, the CAAF Judges) would heed unless there was a compelling basis for military justice exceptionalism on the question presented. Is there? After all, the services' judicial conduct rules closely echo the Code of Conduct for United States Judges.

Given Advisory Opinion 76, should Reserve Component (RC) judge advocates who are state prosecutors or public defenders be assigned as general or special court-martial military judges, CCA judges, or military magistrates? What about RC judge advocates who are Assistant U.S. Attorneys, Main Justice attorneys, or federal defenders?

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