Terminology

As amended through May 30, 2024

Terminology

Terms defined below are marked with an asterisk in the Sections where they appear. In addition, each definition cross-references the Sections where the defined term appears.

"Appropriate disciplinary authority" means the governmental or quasi-governmental agency whose responsibility for initiation of the disciplinary process covers the violation to be reported. See Sections 3D(1), 3D(2), and 3D(3).

"Bias or prejudice" does not include references to or distinctions based upon race, color, sex, religion, national origin, disability, age, marital status, changes in marital status, pregnancy, parenthood, sexual orientation, or social or economic status when these factors are legitimately relevant to the advocacy or decision of the proceeding, or, with regard to administrative matters, when these factors are legitimately relevant to the policies or decisions involved. See Sections 3B(5), 3B(6), 3C(1), and 3C(2).

Commentary. -- The definition of "bias or prejudice" was written in an exclusionary manner to allow courts to countenance legitimate distinctions relevant to litigation before them. See Section 3B(6).

The definition implies the obvious -- that a court demonstrates impermissible bias or prejudice if it uses constitutionally or statutorily protected categories as a basis for unfairly discriminating. Bias or prejudice may also arise from other than legally impermissible categorization and still be something a court should recognize and avoid.

As the symbols and bastions of justice in our society it is important for courts to provide their services to all on essentially the same basis.

"Candidate" means a person seeking any public office. A person becomes a candidate as soon as he or she makes a public announcement of candidacy, or declares or files as a candidate with the election or appointment authority, or authorizes solicitation or acceptance of contributions or public support. See Preamble and Sections 5A(1), 5A(2), 5B(1), 5B(2), 5B(2)(b), 5C(1), 5C(2), 5C(3), and 5C(4).

"Candidate for judicial office" means a candidate seeking selection for or retention in judicial office, whether by election or appointment. This term is used interchangeably with "judicial candidate." See Sections 5A(1)(b), 5A(3), and 5E.

"De minimis interest" means an insignificant interest that would not lead reasonable persons to question a judge's impartiality. See Sections 3E(1)(c) and 3E(1)(d).

"Economic interest" means ownership of a more than de minimis legal or equitable interest or a relationship as an officer, director, advisor, or other legal participant in the affairs of a party, except that:

(i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;

(ii) service by a judge as an officer, director, advisor, or other active participant in an educational, religious, charitable, fraternal, or civic organization, or service by a judge's spouse, parent, or child as an officer, director, advisor, or other active participant in any organization does not create an economic interest in securities held by that organization;

(iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest;

(iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities.

See Sections 3E(1)(c) and 3E(2).

"Fiduciary" means a person who has undertaken a duty to conduct financial or other affairs for another person's benefit. The term includes any person acting as executor, administrator, personal representative, trustee, guardian, or attorney in fact for another. It also includes any other person who, because of his or her relationship to another person, is obliged to give paramount consideration to the benefit of that other person and to abide by duties of care, good faith, and candor in the conduct of matters falling within the scope of the relationship, even when doing so conflicts with the self-interest of the fiduciary. See Sections 3D(2), 3E(1)(c), 3E(2), 4E(1), 4E(2), and 4E(3).

"Governmental office" means the four types of office a judge may seek without resigning:

(i) retention in the judge's current judicial office;

(ii) selection to a different judicial office;

(iii) selection as a delegate to a constitutional convention; or

(iv) selection to an appointive non-judicial public office.

See Sections 5B(1) and 5B(2).

Commentary. -- Canon 5 speaks of judges who are candidates for government office -- both appointive government office (Section 5B ) and elective government office (Section 5C(4) ). However, Section 5A(2) requires judges to resign upon becoming a candidate for elective non-judicial office. Thus, the phrase "governmental office" is necessarily limited to the four types of office a judge may seek without resigning.

"Judicial duties" means all the duties of a judge in connection with judicial proceedings and acts of the judge in discharge of disciplinary responsibilities required or permitted by Section 3D. See Sections 3A, 3B(5), 3B(11), 3D(4), 4A(3), 4D(5)(b), 4E(1), and 4H(2).

"Knowingly," "knowledge," "known," and "knows" mean that a person is aware of the existence of the fact or circumstance in question, or is aware of the substantial probability of its existence. However, a person does not "know" or have "knowledge" or act "knowingly" if the person actually believes, despite any indications to the contrary, that the fact or circumstance does not exist. See Sections 2B, 2C, 3D(1), 3E(1)(a), 3E(1)(c), 3E(1)(d), 5A(l)(b), and 5A(3)(d).

"Law" means court rules as well as statutes, constitutional provisions, and decisional law. See Sections 2A, 3A, 3B(2), 3B(7), 3B(7)(a), 3C(2), 4B, 4C(1), 4C(2), 4C(3), 4C(3)(b), 4D(5)(a), 4F, 4I, 5B(2)(b), and 5D.

"Member of the judge's family" means a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. See Sections 2B, 3E(1)(c), 4E(1), and 4G.

"Nonpublic information" means information that, by law, is not available to the public. Nonpublic information may include but is not limited to: information that is sealed by statute or court order, information impounded or communicated in camera, and information offered in grand jury proceedings, presentencing reports, dependency cases, or psychiatric reports. See Section 3B(11).

"Political activity" means:

(i) becoming a candidate for elective public office;

(ii) serving as an officer of a political party, a member of a national, state, or local committee of a political party, an officer or member of a committee of any other political organization, or becoming a candidate for any of these positions;

(iii) serving as a delegate, alternate, or proxy to a political party convention;

(iv) addressing a convention, caucus, rally, or similar gathering of a political party in support of or in opposition to a candidate for public office or political party office;

(v) organizing or re-organizing a political party or organization;

(vi) taking part in a political campaign to elect someone to public office or political party office, to recall someone from such an office, or to enact or defeat a ballot proposition;

(vii) taking any other part in the management of a political party or organization, or a political candidate, or a group for or against a ballot proposition;

(viii) soliciting votes in support of or in opposition to a candidate's election to public office or political party office, or in support of or in opposition to an incumbent's recall from such an office, or in support of or in opposition to a ballot proposition;

(ix) publicly endorsing or opposing a candidate for public office or political party office, or publicly endorsing or opposing a ballot proposition, whether in a speech, a published letter, a political advertisement or broadcast, campaign literature, or any similar material;

(x) initiating or circulating a nominating petition, recall petition, or petition to put a ballot proposition before the voters.

(xi) directly or indirectly soliciting, receiving, collecting, handling, disbursing, or accounting for assessments, contributions, or other funds for a political purpose;

(xii) organizing, selling tickets to, promoting, or actively participating in a fund-raising activity of a candidate, political party, or political organization; or

(xiii) acting as a recorder, watcher, challenger, or similar officer at the polls on behalf of a political party or a candidate, or driving voters to the polls on behalf of a political party or a candidate, or doing any other act as an official or unofficial representative of a political party or candidate;

(xiv) but "political activity" does not include:

(a) being a member of a political party;

(b) registering and voting;

(c) expressing one's opinion in private on political subjects and candidates;

(d) participating in the non-partisan activities of a civic, community, social, labor, or professional organization; or

(e) speaking or writing in support of or in opposition to proposals to change the legal system or the administration of justice.

See Sections 5B(2), 5C(4), and 5D.

"Political organization" means a party, committee, association, club, foundation, fund, or any other organization, whether incorporated or not, whose primary purpose is to:

(i) influence the selection, nomination, election or appointment of any individual to public office or to office in a political party, or

(ii) influence the outcome of any recall effort or ballot proposition, or

(iii) further or defeat proposals to change the law in matters other than the improvement of the law, the legal system, or the administration of justice.

See Sections 5A(1)(a), 5A(1)(c), 5A(1)(e), and 5B(2)(b).

The words "shall" and "shall not" mean a binding obligation on judicial officers, and a judge's failure to comply with this obligation is a ground for disciplinary action.

The words "should" and "should not" mean conduct or a course of action to which judicial officers should aspire, but a judge's failure to meet such an aspirational goal is not a ground for disciplinary action.

"Spouse" includes not only a husband or wife but also any person with whom the judge maintains a shared household and conjugal relations. See Sections 3E(1)(c), 3E(l)(d), 3E(2), 4D(5)(a), 4D(5)(b), 4H(1)(b), 4H(3), and 5A(3)(a).

Adopted by SCO 1322 effective 7/15/1998

Commentary. -- Because the same potential conflicts of interest and loyalty arise when a judge maintains a shared household and conjugal relations with another person to whom the judge is not married, the provisions of Canons 3 and 4 should apply more broadly than simply to legally recognized spouses. Rather than try to reword each affected provision, this Code retains the ABA's use of "spouse" but includes an expanded definition of spouse in the Terminology Section.

"Third degree of relationship." The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece. See Section 3E(1)(d).