As of August 31, 2016
AMERICAN BAR ASSOCIATION
CPR POLICY IMPLEMENTATION COMMITTEE
COMPARISON OF ABA MODEL JUDICIAL CODE AND STATE VARIATIONS
RULE 2.3: Bias, Prejudice, and Harassment
(A)
A judge shall perform the duties of judicial office, including administrative
duties, without bias or prejudice.
(B)
A judge shall not, in the performance of judicial duties, by words or conduct
manifest bias or prejudice, or engage in harassment, including but not limited to
bias, prejudice, or harassment based upon race, sex, gender, religion, national origin,
ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or
political affiliation, and shall not permit court staff, court officials, or others subject
to the judge’s direction and control to do so.
(C)
A judge shall require lawyers in proceedings before the court to refrain from
manifesting bias or prejudice, or engaging in harassment, based upon attributes
including but not limited to race, sex, gender, religion, national origin, ethnicity,
disability, age, sexual orientation, marital status, socioeconomic status, or political
affiliation, against parties, witnesses, lawyers, or others.
(D)
The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers
from making legitimate reference to the listed factors, or similar factors, when they
are relevant to an issue in a proceeding.
COMMENT
[1]
A judge who manifests bias or prejudice in a proceeding impairs the fairness of the
proceeding and brings the judiciary into disrepute.
[2]
Examples of manifestations of bias or prejudice include but are not limited to epithets;
slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes;
threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or
nationality and crime; and irrelevant references to personal characteristics. Even facial
expressions and body language can convey to parties and lawyers in the proceeding, jurors, the
media, and others an appearance of bias or prejudice. A judge must avoid conduct that may
reasonably be perceived as prejudiced or biased.
[3]
Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that
denigrates or shows hostility or aversion toward a person on bases such as race, sex, gender,
religion, national origin, ethnicity, disability, age, sexual orientation, marital status,
socioeconomic status, or political affiliation.
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As of August 31, 2016
[4]
Sexual harassment includes but is not limited to sexual advances, requests for sexual
favors, and other verbal or physical conduct of a sexual nature that is unwelcome.
Twelve (12) states have identical language (AR, CO, DC, IN, KS, MT, NE, NV, NH, OH, UT,
and WY)
Fifteen (15) states have similar language (AZ, CA, CT, HI, IA, ME, MD, MN, MO, NM, ND,
OK, OR, PA and TN)
Three (3) states have different language (DE, SD, and WA)
AL
AK
AZ
Effective
9/1/2009
AR
Effective
7/1/2009
CA
Effective
1/1/2013
CO
Effective
7/1/2010
CT
Effective
1/1/2011
DE
Effective
11/1/2008
DC
Effective
1/1/12
FL
HI
Effective
1/1/2009
ID
Effective
7/1/2016
IL
[4]: adds reference to judiciary sexual harassment policy
Identical
Canons 3B(5) and 3B(6). Adds gender, ethnicity, marital status, and political affiliation to the list
of protected categories as in Model Code.
Canon 3C. Make Canon 3C more logically arranged.
Identical
(B): replaces “and shall not…to do so” to end, with “and shall not condone such conduct by court
staff, court officials, or others subject to the judge’s direction and control.”
[2]: changes “crime” to “criminality”
Title: replaces “Harassment” with “Impropriety”
(A): replaces “shall” with “should”
(B): similar to second half of Rule 1.2 but replaces “shall” with “should”
Deletes(C) and (D)
[2]: replaces “must” with “should” in last sentence
[3]: similar to first sentence of 1990 Model Code Canon 2B Commentary third paragraph but adds
permission to use judicial stationery
Deletes [4]
Identical
(A): deletes “including administrative duties”
[3]: adds “personal characteristics” to end
(C): deletes language after “affiliation”
2
As of August 31, 2016
IN
Effective
1/1/2009
IA
Effective
5/3/2010
KS
Effective
3/1/2009
KY
MD
Effective
7/1/2010
Identical
[2] Adds clause after “nationality and crime:” “insensitive statements about crimes against
women.”
Identical
Replaces “judge” with “judicial appointee” throughout;
(B): Inserts “appointee’s” between “judicial” and “duties”; deletes “engage in” between “or” and
“harassment”; deletes “including but not limited to;” deletes language after “political affiliation”
and adds: “A judge shall require lawyers in proceedings before the court, court staff, court
officials, and others subject to the judge's direction and control to refrain from similar conduct.”
Deletes Model Rule (C):
MD Rule (C) is similar to Model Rule (D); State Rule deletes reference to paragraph (C)
MA
Effective
1/1/2016
[2]: State Rule moves final sentence in Model Rule to first sentence: “A judge must avoid
conduct that may reasonably be perceived as prejudiced or biased.”; deletes “but are not limited
to” between “include” and “epithets”
[3]: Deletes paragraph “(C)” from language
[4]: Deletes “but is not limited to” between “includes” and “sexual advances”
(A): Adds “or harassment” after “prejudice”
(B): Changes first sentence to read: “A judge shall not, in the performance of judicial duties, by
words or conduct manifest bias or prejudice or engage in harassment, including bias, prejudice, or
harassment based upon a person's status or condition.”
(C): Deletes list of attributes & replaces with language “based upon a person’s status or
condition”
[1]: Adds “or engages in harassment” between “prejudice” and “in a proceeding”; Adds sentence
to end: “A judge must avoid words or conduct that may be reasonably perceived as manifesting
bias or prejudice or engaging in harassment.”
Adds [2]: As used in this Rule, examples of status or condition include but are not limited to race,
color, sex, gender identity or expression, religion, nationality, national origin, ethnicity,
citizenship or immigration status, ancestry, disease or disability, age, sexual orientation, marital
status, socioeconomic status, or political affiliation.
[3]: Similar to MR Comment [2]: “As used in this Rule, examples of manifestations of bias or
prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative
stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts;
improper suggestions of connections between status or condition and crime; and irrelevant
references to personal characteristics. Even facial expressions and body language can convey an
appearance of bias or prejudice to parties and lawyers in the proceeding, jurors, the media, and
others.”
[4]: MR Comment [3]
3
As of August 31, 2016
ME
Effective
9/1/2015
MI
MN
Effective
7/1/2009
MO
Effective
1/1/2012
MS
MT
Effective
1/1/2009
NE
Effective
1/1/2011
NV
Effective
1/19/2010
NH
Effective
4/1/2011
NJ
NM
Effective
1/1/2012
NY
NC
ND
Effective
7/1/2012
OH
Effective
3/1/2009
OK
Effective
4/15/2011
OR
[5]: MR Comment [4]
(B) Adds “gender identity” after “gender”
(C) Adds “gender identity” after “gender”
(c): deletes language after “affiliation”
(A) Deletes including administrative duties”
(B), (C), and [3] Deletes “socioeconomic status, or political affiliation”
(D) Replaces “to the listed factors, or similar factors” with “to personal factors or characteristics”
Identical
Identical
Identical
Identical
(B), (C), and [3] Expands prohibited discriminatory grounds by adding to the list: “color,”
“ancestry,” “gender identity,” “spousal affiliation;” Replaces “disability” with “physical or mental
handicap or serious medical condition”
[3] Reads: “Harassment, as referred to in Paragraphs (B) and (C), is verbal or physical
conduct that denigrates or shows hostility or aversion toward a person on bases such as
race, religion, color, national origin, ethnicity, ancestry, sex, sexual orientation, gender
identity, marital status, spousal affiliation, socioeconomic status, political affiliation, age,
physical or mental handicap or serious medical condition. Judges are also subject to the
New Mexico Judicial Branch harassment policy.”
(B) Replaces “judicial duties” with “the duties of judicial office”
Identical
[2] Replaces “as prejudiced or biased” at end of last sentence with “as hostility or aversion toward
a person on bases such as race, sex, gender, religion, national origin, ethnicity, disability, age,
sexual orientation, marital status, socioeconomic status, or political affiliation.”
OR Rule 3.3 is similar to MCJC Rule 2.3.
4
As of August 31, 2016
Effective
12/1/2013
(A) A judge shall uphold and apply the law and perform all duties of judicial office, including
administrative duties, fairly, impartially, and without bias or prejudice.
(B) A judge shall not, in the performance of judicial duties, by words or conduct, manifest
bias or prejudice, or engage in harassment, against parties, witnesses, lawyers, or others
based on attributes including but not limited to, sex, gender identity, race, national origin,
ethnicity, religion, sexual orientation, marital status, disability, age, socioeconomic status,
or political affiliation and shall not permit court staff, court officials, or others subject to
the judge's direction and control to do so.
PA
Effective
7/1/2014
SD
Effective
1/1/2006
(C) A judge shall not take any action or make any comment that a reasonable person would
expect to impair the fairness of a matter pending or impending in any Oregon court.
Identical.
Adds [5]: “The Supreme Court’s Rules and Policies, e.g. the Rules of Judicial Administration and
the Unified Judicial System Policy on Non-Discrimination and Equal Employment Opportunity,
have continued force and effect.”
Model Code Rule 2.3 (A) corresponds to the 1st sentence of SD Canon 3B (5). Similar, but the
Model Code adds “including administrative duties.”
Model Code Rule 2.3 (B) corresponds to the 2nd sentence of SD Canon 3B (5). Similar, but the
Model Code adds additional (prohibited) grounds of discrimination.
Model Code Rule 2.3 (C) corresponds to the 1st sentence of SD Canon 3B (6). Similar, but the
Model Code adds additional (prohibited) grounds of discrimination.
TN
Effective
7/1/12
TX
UT
Effective
4/1/2010
VT
VA
WA
Effective
1/1/2011
Model Code Rule 2.3 (D) corresponds to the 2nd sentence of Canon 3B (6). Same substantive
effect.
[2] Deletes “…upon stereotypes…” to end of paragraph
[2]: deletes “negative”
[3] Adds “Examples of” to beginning of sentence; changes “is” to “are.”
(B) State Code deletes clause, “including but not limited to bias, prejudice, or harassment based
upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation,
marital status, socioeconomic status, or political affiliation.”
(C) State Code deletes clause, “based upon attributes including but not limited to race, sex,
gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status,
socioeconomic status, or political affiliation.”
(D) State Code deletes “legitimate” before “reference,” changes “the listed factors, or similar
factor” to simply “factors,” changes “when they are relevant” to “that are relevant.”
5
As of August 31, 2016
Adds:
WV
Effective
12/1/2015
WI
WY
Effective
7/1/2009
[5] “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
issues involved.”
Identical
[2]: Deletes “Even facial expressions and body language can convey to parties and lawyers in the
proceeding, jurors, the media, and others an appearance of bias or prejudice.”
Identical
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chart is to be considered the rendering of legal advice. The chart is intended for
educational and informational purposes only. We make every attempt to keep the chart as
accurate as possible. If you are aware of any inaccuracies in the chart, please send your
corrections or additions and the source of that information to John Holtaway, (312) 9885298, [email protected]
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