Article by Allan Ashman, David L. Lee, and Judith Rosenbaum
Can government place restrictions on its servants to ensure that they will act ethically? If so, can government impose different restrictions on different categories of its servants? Recently, in Morial v. Judiciary Commission, the United States Court of Appeals for the Fifth Circuit explored these questions in the context of a judge's constitutional challenge to a requirement that he resign from the bench before running for public office.
Ernest N. Morial was a state court judge in Louisiana who wanted to be mayor of New Orleans. Canon 7A(3) in the Code of Judicial Conduct adopted by the Louisiana Supreme Court and a statute passed by the Louisiana Legislature required judges to resign before running for nonjudicial office. In October 1976, Judge Morial wrote a letter to the state supreme court requesting a leave of absence without pay during the mayoral campaign. After the supreme court denied his request, Morial and thirteen of his supporters sued in federal district court to enjoin the enforcement of Canon 7A(3). They claimed that its enforcement would deny them first amendment rights and equal protection of the law. The district court accepted both arguments and held for the plaintiffs, but the Fifth Circuit reversed and upheld the Canon.
A few months later, the United States Supreme Court denied certiorari. This denial of certiorari is disappointing from an intellectual standpoint, for it would have been instructive to have seen the Supreme Court handle Morial's two interesting, though quite dissimilar, issues: A first amendment issue that required a traditional, common law examination of precedent, and an equal protection issue that required a more contemporary examination of the government's ability to treat different groups differently. Further, the issues raised in Morial go beyond the specific constitutional questions addressed in the Fifth Circuit's opinion. In an age when many citizens distrust government officials, the effective enforcement of ethical standards is becoming more important than in years past. After reviewing the constitutional issues involved in Morial, this article will examine the policy considerations underlying the codes of judicial conduct and resign-to-run statutes in force in many states. This article will also attempt to discover a rationale for the distinctive treatment of judges who wish to become candidates for nonjudicial offices.
About the Author
Allan Ashman. Executive Director, National Conference of Bar Examiners, Chicago, Illinois. B.A. 1962, Brown University; J.D. 1965, Columbia University.
David L. Lee. Associate, Winston & Strawn, Chicago, Illinois. B.A. 1974, Northwestern University; J.D. 1977, Northwestern University.
Judith Rosenbaum. Staff Attorney, American Judicature Society, Chicago, Illinois. B.A. 1973, University of Rochester; J.D. 1976, University of Michigan.
Citation
54 Tul. L. Rev. 382 (1980)