Knowledge Management Office MEMORANDUM Re: Ref. No.: By: Date: Regulation of Retired Judges Serving as Arbitrators and Mediators IS 98.0561 Jerry Nagle, Colleen Danos, and Anne Endress Skove October 22, 1999 JUDGES SERVING AS ARBITRATORS AND MEDIATORS The Information Service was asked to determine how state courts regulate retired judges activities as arbitrators and mediators. This determination is complicated by the fact that the definition of "retired judge" varies among the states. Upon retirement some states designate judges as "senior judges," while in other states, a retired judge who remains eligible for recall to judicial service would be considered a "part-time judge" or a "judge pro tempore." Some senior judges are eligible for recall; compliance with their state s code of judicial conduct may depend on whether they serve in a full- or part-time capacity, and whether their compensation will equal the compensation of a full-time judge on the court from which the judge retired. For the purposes of this code and rules search, "retired judges" include any of the aforementioned definitions in terms of compliance with the codes of judicial conduct regarding judges activities as arbitrators or mediators. Practices in each state reviewed have been broken down into the following categories: s in which retired judges may continue to conduct arbitrations or mediations while on temporary assignment or while eligible for the bench s in which a retired judge eligible for recall may conduct arbitrations or mediations except while serving on the bench s in which retired judges who remain eligible for recall are considered to be performing a judicial function (whether serving or not) and therefore may not conduct arbitrations or mediations s in which retired judges eligible for recall or serving temporarily may not conduct arbitrations or mediations at all. Practices are listed for all states except Idaho, Illinois, Michigan, Montana, and the District of Columbia. Exceptions or clarifications are noted with an asterisk (*). s in which retired judges may continue to conduct arbitrations or mediations while on temporary assignment or while eligible for recall to the bench: The language typically states that retired judges subject to recall or while acting as a judge temporarily are not required to comply with canons prohibiting a judge from conducting arbitrations or mediations in other than a judicially related capacity.
Alabama* Alaska* Arizona Arkansas* California Colorado Connecticut Florida Georgia Indiana* Kansas Compliance D(2). *Retired judges serving part-time do not have to comply with Canon 5E. Compliance C; referring to Canon 5E. *May continue doing arbitrations and mediations with some limitations. Supreme Court Rule 81, Application, B, referring to Canon 4F Application B(1)(b), referring to Canon 4F. *A retired judge is construed to be a part-time judge if recalled to perform judicial duties. Canon 6C Canon 8D, referring to Canon 5E Canon 5E Application B, referring to Canon 5F Canon 5E Application B and D, referring to Canon 4F. *Indiana uses the term "senior judge" for periodic, part-time judges. A senior judge might be comparable to a retired judge in other states. Supreme Court Rule 601A, Compliance B, referring to Rule 601A (Canon 4F) Kentucky* Supreme Court Rule 4.300 Compliance B(1), referring to Canon 5E. *Retired judges recalled to service act as judges pro tempore. Louisiana Maryland Mississippi* Compliance B and C, referring to Canon 5D Rule 16-813, Canon 6C, referring to Canon 4H Canon 5E. Compliance C, referring to Compliance A(1). *Only retired part-time judges or retired judges not receiving the same compensation as a full-time judge on the court from which they retired are eligible to do arbitrations and mediations; referring to Compliance A(1).
Missouri Nebraska New Hampshire* New York* North Dakota* Ohio Oregon South Dakota Tennessee Texas Utah* Vermont Virginia Washington* Compliance (1), referring to Canon 5E; only part-time judges are exempt, in which capacity retired judges may be considered to serve. Application B(1), referring to Canon 4F Supreme Court Rule 38, Compliance C referring to A governing part-time judges, and referring to Canon 5E. *Only retired part-time judges retired judges not receiving the same compensation as fulltime judges on the court from which retired are eligible to conduct arbitrations and mediations. Compliance C, referring to Canon 5E. *Only retired part-time judges or retired judges not receiving the same compensation as a full-time judge on the court from which they retired are eligible to do arbitrations and mediations. Compliance C referring to A, and referring to Canon 4F. *A retired judge, "except when using the judge s office or title, or when a candidate for judicial office, is not required to comply with [Canon 4F]." Compliance D, referring to Canon 4E Judicial Rule 5-103. Senior Judges, referring to JR 5-102(A) Application C and D, referring to Canon 4F Application C(1)(b), referring to Canon 4F Canon 6F(1), referring to Canon 4F Applicability D, referring to Canon 4F. *Utah uses the term "active senior judge" for periodic, part-time judges. For the purposes of this research a senior judge might be comparable to a retired judge in other states. Rule 38, Compliance C, referring to Canon 5E Canon 8B, referring to Canon 5E Application A(2)(a)(ii), referring to Canon 5E. *No provision for retired judges is given in the code, but a retired judge recalled to service is considered a judge pro tempore.
West Virginia Wisconsin Canon 6B(3)(4), referring to Canon 6E governing activities of a parttime judge or judge pro tempore. Supreme Court Rule 60.05(6). According to the Comment this rule prohibiting judges from doing arbitrations and mediations does not apply to a retired judge serving on the bench on a part-time basis. s where a retired judge who is eligible for recall may conduct arbitration or mediation sessions except while serving on the bench: The code typically states that a retired judge may not continue doing arbitrations or mediations "while assigned to judicial service or when such action or appointment will interfere with an assignment to judicial service" (Iowa Code of Judicial Conduct, Compliance, C. Senior or Retired Judge). Alabama* Delaware Iowa Minnesota Nevada New Jersey North Carolina Oklahoma Rhode Island South Carolina Wyoming eligibility to arbitrate or mediate Compliance D(3). *Retired judges serving full time must comply with Canon 5E prohibitions. Compliance B, referring to Canon 5E Compliance C, referring to Canon 5E Canon 4F(1), but noting provision 4F(3). Application B(1), referring to Canon 4F Compliance B, referring to Canon 5F No provision for retired judges, but retired judges do arbitrate and mediate. They must stop doing so if they are recalled to the bench (according to Leslie Ratliffe, NC ADR coordinator). Canon 4F Supreme Court Rule, Art. VI, Application B; referring to Canon 4F Application B(1), referring to Canon 4F Application B(1), referring to Canon 4F
s where retired judges who remain eligible for recall are considered to be performing a judicial function (whether serving or not) and therefore may not conduct arbitration or mediation. The language typically found under "application of" or "compliance with" the code of judicial conduct states that anyone who is an officer of a judicial system and who performs judicial functions is a judge within the meaning of the Code. The interpretation of this language implies that "as long as a retired judge is subject to recall the judge is considered to perform judicial functions. " (Hawaii, Application of the Code, A). Hawaii New Hampshire* New Mexico Application of the Code of Judicial Conduct, A; referring to Canon 4F Supreme Court Rule 38, Compliance C; referring to Canon 5E. Retired judges who receive the same compensation as a full-time judge on the court from which they retired and are eligible for recall cannot arbitrate or mediate. Rule 21-901 Applicability; referring to Rule 21-500F. Under the editorial Commentary, compliance depends on the "facts of the particular judicial service." s where retired judges who are eligible for recall or are serving temporarily may not conduct arbitration or mediation at all. The language typically reads, "A judge whose name has been placed upon the list of retired judges eligible to perform judicial duties... should comply with all provisions of the Code of Judicial Conduct during the term of eligibility" (Massachusetts, Supreme Court Rule, Canon 8(1)). Massachusetts Mississippi* Canon 8(1); referring to Canon 5E Canon 5E. Compliance C *A retired judge who receives the same compensation as a full time judge on the court from which the judge is retired and is eligible for recall to judicial service should comply with all the provisions of this Code. s where retired judges must continue to comply with the Code of Judicial conduct
and may not conduct arbitration or mediation. Maine* Pennsylvania Part II: General Provisions, 1A, referring to Canon 4F. * 1B(b) may be construed to mean that an active retired probate judge does not have to comply with Canon 4F at any time. Compliance--Senior Judges must comply with Canon 5E prohibiting judges from doing arbitrations or mediations. The Knowledge Management Office is supported by assessments from all fifty states, a grant from the Justice Institute, and individual contributions. Points of view and opinions expressed herein do not necessarily reflect the views or policies of the Justice Institute. Date Last Modified: