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August 8, 2000

Honorable Donald Goodner
Municipal Judge
315 Washington Street
P.O. Box 567
Waldron, AR 72958

Re: Advisory Opinion No. 2000-08

Dear Judge Goodner:

In your letter dated June 30, 2000 you stated that the office of Attorney General is preparing to file suit against Scott County because the jail fails to meet the jail standards. You have stated, "I know the suit is well based and I have no doubt but what it will be closed." You state further, "Since I know that our jail is very likely illegal I feel that I may be violating Canon 2 by continuing to use the jail."

Canon 2 of the Code of Judicial Conduct which you cited is generally applicable, but we believe that the following applies more directly to your situation:

"2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism." Code of Judicial Conduct, Canon 3A (2)

The issue is whether you would violate this Canon if you continue to sentence and hold persons in a jail that you believe does not meet established minimum standards. In addressing the issue of whether you would be in violation of the Arkansas Code of Judicial Conduct by sentencing a person to a jail that you consider "is very likely illegal" we are required to distinguish between a violation of the Code and legal error. The following quotation from Judicial Conduct and Ethics, Second Edition we find most helpful:

"2.02 Distinguishing Misconduct from Mere Legal Error When a judge commits a
legal error, it usually is a matter for appeal and does not raise a question of improper judicial conduct subject to judicial discipline. In some instances, however, legal error may amount to judicial misconduct calling for discipline ranging from admonishment to removal from office. Imposing discipline upon a judge for an incorrect legal ruling is an extremely sensitive issue because of the potential impact on judicial independence. The preservation of an independent judiciary requires that judges not be exposed to personal discipline on the basis of case outcomes or particular rulings, other than in extreme or compelling circumstances. An independent judge is one who is able to rule as he or she determines appropriate, without fear or jeopardy or sanction. So long as the rulings are made in good faith, and in an effort to follow the law as the judge understands it, the usual safeguard against error or overreaching lies in the adversary system and appellate review. As the courts have often said, the disciplinary process should not be used as a substitute for appeal. Due to the possible threat to judicial independence, it has been suggested that legal error should be dealt with only in the appellate process and never should be considered judicial misconduct.
While the courts have often said that mere legal error does not amount to judicial misconduct, that does not mean that legal error can never constitute misconduct. In fact, egregious legal error, legal error motivated by bad faith, or a continuing pattern of legal error does amount to misconduct subject to discipline."

Judicial Conduct and Ethics, Second Edition, Shaman, Lubet and Alfini, The Michie Company (1990)

You will have to answer the question as to whether you consider your sentencing and retaining people to this jail would be egregious legal error, legal error motivated by bad faith or a continuing pattern of legal error. We cannot make such a determination for you.

The Code does not require that a judge have universal knowledge of all things that affect the sentencing process. It does not require that you be intimately familiar with everything happening at the local police office, sheriff's office, the probation office, the jail and the like. However if you in your carefully considered judgment, without being influenced by partisan interests, public clamor or fear of criticism, determine that the conditions of the jail are so unsatisfactory as to be illegal or unconscionable you may use alternative methods of sentencing so long as those alternative methods comply with law.

You mentioned that "the Quorum Court has yet to take any type of action" and it seems clear that politics will eventually come into play. You must be very careful in this area but you may wish to review our Advisory Opinion 94-01 wherein we concluded that the code does not prohibit a judge from being a member of a committee formed to promote passage of a sales tax to pay for a new courthouse and jail so long as the judge is not involved in the fund raising activities of the committee.


Edwin Alderson
For the Committee

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