Law, ethics in judicial campaigns essential in a democracy

2014-05-20T08:00:00Z Law, ethics in judicial campaigns essential in a democracyGuest column by KAREN ORZECH missoulian.com
May 20, 2014 8:00 am  • 

I am honored to serve since 1999 as Missoula County Justice of the Peace, Department II, and appreciate your encouragement and support. I also have served since 2003 on the Montana Supreme Court Commission on Judicial Ethics. Our Commission of 11 was tasked with adapting the American Bar Association Model of Judicial Conduct to fit our judicial system and judicial elections here in Montana.

In January 2009, the Code of Judicial Conduct was adopted. It was distributed to every Montana judge and lawyer and established mandatory rules on ethical conduct for all judges and judicial candidates.

The rules of the Code are in accordance with the United States and Montana constitutions and speak to the independence of the judiciary and the separation of powers between the administrative, legislative and judicial branches of government.

To quote the pertinent parts of the Code, “An independent, fair and impartial judiciary is indispensable to our system of justice... Judges should maintain the dignity of judicial office at all times, and avoid impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest public confidence in their independence, impartiality, integrity and competence … A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.” As concerned citizens, we hold all judges and judicial candidates to these high ethical standards.

Over the years, I have pointedly endeavored to maintain my independence and impartiality and stay out of local politics. At this time, however, my oath to uphold the law and follow the Code requires me to take appropriate action when I witness misconduct by a judge or judicial candidate. Accordingly, and sadly, I must point out what I have seen as the unethical behavior of one candidate.

Campaigns for judicial office are necessarily different from partisan campaigns. Nonjudicial candidates are free to advertise endorsements made by anyone. Judicial candidates are not. Preserving the ethics and honesty of an independent judiciary and the validity of an election that is supposed to be nonpartisan is essential in a democracy. The Code states, in short, that a judge or a judicial candidate shall not use endorsements from any nonjudicial office-holder or candidate. This rule is not optional; it is mandatory. Matt Lowy’s website and current judicial campaign literature list over 25 endorsements from politicians currently in office or running for election. It is hard to see this as anything but a violation of the Code of Judicial Conduct, bringing discredit and disgrace not only to himself but also to these politicians and their parties.

Additionally, there are statutes that govern the behavior of candidates for any elected office. The law of Montana (Section 2-2-121 (3) (a) of the Montana Code Annotated) reads, “A public officer or public employee may not use public time, facilities, equipment, supplies, personnel, or funds to solicit support for or opposition to any political committee, the nomination or election of any person to public office.”

Matt Lowy, a county employee and candidate for judicial office, distributed campaign information to the clerks in Justice Court while they were at their work stations in the county courthouse, during court hours. Several people confronted him about his actions. When I confronted him to tell him that his actions were absolutely inappropriate, he replied, “Even if it’s wrong, I would do it again.”

The Code of Judicial Conduct (Rule 4.2) allows me to publicly support or oppose candidates for judicial office. I urge you to choose an ethical, independent and truly nonpartisan candidate for Justice of the Peace, Department I. You be the judge. Whether you cast your vote for Marie Andersen, Matt Ereksen, Bev Smith or Harlan Wells, you will be choosing a candidate who, as far as I have seen, has demonstrated good judgment and judicial temperament, while embracing the highest ethical standards. Sadly, I cannot say the same about the other candidate.

Karen A. Orzech is Missoula County Justice of the Peace, Department II.

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(9) Comments

  1. Goneyard22
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    Goneyard22 - May 26, 2014 11:43 pm
    And this is a perfect example of the problem. People who lack a legal understanding do not see the connection and therefore do not understand the violation. Whereas, those with a legal education do. It's the very reason why those who work in and with the legal field not only understand the legal complexities and processes involved, but overwhelmingly support Lowy for JP.
  2. Hearsay
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    Hearsay - May 25, 2014 11:49 am
    Looking at Orzeck's letter, I do not see any reference to Wells' complaint. I only see her own individual complaint about Lowy's actions, which she is allowed to do per the Code of Judicial Ethics. You created the connection between the two complaints all by your self. If I were Lowy, I would be a bit upset with you right now. Plenty of people who would not have put the two together on their own, do now.

    Is there any other way you would like to torpedo his campaign?
  3. Goneyard22
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    Goneyard22 - May 25, 2014 10:27 am
    You would assume correctly that the commission is tasked with determining whether Wells' complaint holds any merit.
  4. Hearsay
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    Hearsay - May 25, 2014 6:34 am
    But I am glad to see that you first hand knowledge on the situation. Can I assume that your familiarity with the subject confirms Lowy is part of an ongoing investigation for unethical behavior?
  5. Hearsay
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    Hearsay - May 25, 2014 6:33 am
    This is the type of Lawyer Logic that makes people hate Lawyers. If it is a court, then call it a court. Why? BECAUSE THEY HAVE TWO DIFFERENT DEFINITIONS!

    com·mis·sion noun \kə-ˈmi-shən\
    : a group of people who have been given the official job of finding information about something or controlling something

    court noun, often attributive \ˈkȯrt\
    : a formal legal meeting in which evidence about crimes, disagreements, etc., is presented to a judge and often a jury so that decisions can be made according to the law

    : a place where legal cases are heard

    : an official group of people (such as a judge and jury) who listen to evidence and make decisions about legal cases



  6. Goneyard22
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    Goneyard22 - May 24, 2014 10:42 am
    It's a "commission" of judges from various jurisdictions that oversee the judicial ethics court. Maybe not a traditional court, but certainly a court where a preliminary hearing will take place than can include witnesses, testimony and the submission of evidence. Which is why the Rule states "any court."
  7. Hearsay
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    Hearsay - May 23, 2014 8:24 pm
    So which is it? Lowy has said, “If it’s so crystal clear in black and white, the (judicial conduct) complaint that was filed would have already resulted in a reprimand." So are you or aren't you under investigation? Not that it matters because Lowy is up before a commission, not a court... so 2.11(A) doesn't apply. Furthermore, if you have been cleared than Orzech's statement again would not be a violation as it would not be ongoing. If you have not been cleared, then all of your statements that you willing pulled down the endorsements are false. PS, I noticed you waited to pull the endorsements until after your campaign literature went out. LIAR!
  8. Goneyard22
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    Goneyard22 - May 23, 2014 2:47 pm
    Ironic that in her attempt to discredit Mr. Lowy,Judge Orzech violates Rule 2.11(A) of the Code. The issue of whether endorsements from private citizens who also are elected officials is currently a pending matter to which Lowy is a party to. Judge Orzech's assertions about Lowy and this issue not only is a direct violation, but could reasonably impact that outcome unfairly. It appears Judge Orzech is not as apprised of the Code to which she asserts is so important to adhere to.
  9. familytruckster
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    familytruckster - May 20, 2014 10:40 pm
    Thank you for this revelation, Judge Orzech. I hope others take heed. I have interacted with Mr. Lowy as a CASA and I never felt favorably impressed by him, as apparently so many members of Missoula's good old boy network seem to be.

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