I've blogged previously about the wording of the proposed amendment and how it leaves room for mischief. Now Carol Coulter of the Irish Times reports that judges have raised some issues about the drafting as well:
“At a minimum it might be thought that any amendment should closely and specifically identify the circumstances in which any deviation from the historic principles set out in Article 35.5 could be contemplated, such as a financial crisis involving the public finances, accompanied by the mechanism by which any salary reduction should be calculated, which should itself be independent of Government.”
The document adds that the proposed wording is extremely loose. “It would provide no limitation on the circumstances in which a reduction should be made; the Government’s view of the public interest . . . would suffice. There is no method of calculating the reduction identified.”
The judges also claim that it "would have huge reputational implications for Ireland and for confidence in our legal system." I am not persuaded about this last point but I believe that the drafting could be improved. Their claim about other income earned by judges in other jurisdictions has been addressed in the post below.
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As predicted, the judges' pay reduction issue might turn out to be a storm in a teacup and not worth the bother if this article in the Independent about the cuts only being applicable to future appointments is correct.
The article claims that judges in the US and elsewhere are able to hold other jobs while holding judicial office: "[question being discussed is] whether judges will, in the future, be able to take on paid work outside of their judicial office as judges in America and other countries can."
I don't know which "other" countries the article is referring to, but this claim about the U.S. is highly misleading and the authors should have done their homework better. U.S. law clearly embargoes a judge from practicing any profession - including law - and contains strong limitations on earning outside income, which in any case is limited to 15% of basic pay:
Regulations of the Judicial Conference of the United States under Title VI of the Ethics Reform Act of 1989 Concerning Outside Earned Income, Honoraria, and Outside Employment
§ 3. Outside Earned Income Limitation.
“At a minimum it might be thought that any amendment should closely and specifically identify the circumstances in which any deviation from the historic principles set out in Article 35.5 could be contemplated, such as a financial crisis involving the public finances, accompanied by the mechanism by which any salary reduction should be calculated, which should itself be independent of Government.”
The document adds that the proposed wording is extremely loose. “It would provide no limitation on the circumstances in which a reduction should be made; the Government’s view of the public interest . . . would suffice. There is no method of calculating the reduction identified.”
The judges also claim that it "would have huge reputational implications for Ireland and for confidence in our legal system." I am not persuaded about this last point but I believe that the drafting could be improved. Their claim about other income earned by judges in other jurisdictions has been addressed in the post below.
___
As predicted, the judges' pay reduction issue might turn out to be a storm in a teacup and not worth the bother if this article in the Independent about the cuts only being applicable to future appointments is correct.
The article claims that judges in the US and elsewhere are able to hold other jobs while holding judicial office: "[question being discussed is] whether judges will, in the future, be able to take on paid work outside of their judicial office as judges in America and other countries can."
I don't know which "other" countries the article is referring to, but this claim about the U.S. is highly misleading and the authors should have done their homework better. U.S. law clearly embargoes a judge from practicing any profession - including law - and contains strong limitations on earning outside income, which in any case is limited to 15% of basic pay:
Regulations of the Judicial Conference of the United States under Title VI of the Ethics Reform Act of 1989 Concerning Outside Earned Income, Honoraria, and Outside Employment
§ 3. Outside Earned Income Limitation.
(a) No covered senior employee may have outside earned income attributable to a calendar year which exceeds 15 percent of the annual rate of basic pay for Level II of the Executive Schedule under 5 U.S.C. § 5313 as of January 1 of that calendar year.§ 4. Prohibition on Receipt of Honoraria.
(b) "Outside earned income" means all wages, salaries, commissions, professional fees, and payments and compensation of any kind for services rendered or to be rendered by the covered senior employee, less the ordinary and necessary expenses paid or incurred in producing the income, provided, however, that the following shall not constitute outside earned income:
(1) Funds received for services rendered to or for the United States government and income attributable to service with the national guard;
(2) Pensions, annuities, deferred compensation (whether qualified or nonqualified) and other funds received for services rendered by the reporting individual before becoming a covered senior employee, or before January 1, 1991 ;
(3) Funds received from investments to the extent not attributable to significant personal services of the covered senior employee;
(4) Funds received from a business totally owned by the covered senior employee, or his or her family, as defined in Canon 5C(2) of the Code of Conduct for United States Judges, to the extent that such funds do not result from significant personal services of the covered senior employee;
(5) Royalties, fees, and their functional equivalent, from the use or sale of copyright, patent, and similar forms of legally recognized intellectual property rights, when received from established users or purchasers of those rights;
(6) Anything of value earned or received for services rendered which is not includible as gross income in the relevant calendar year under controlling provisions of the Internal Revenue Code; and
(7) Compensation received by a senior judge for approved teaching under § 5(a)(5) if the senior judge –
(c) "Outside earned income" is attributed solely to the actual earner, even though under applicable community property law one-half of any personal service income earned by a covered senior employee may be deemed to belong to a spouse.
(i) retired from regular active service under § 371(b) and is certified as having met the requirements of § 371(e) of title 28, United States Code; or
(ii) retired from regular active service on permanent disability under § 372(a) of title 28, United States Code.
(a) No judicial officer or employee shall receive any honorarium while that individual is a judicial officer or employee.§ 5. Limitations on Outside Employment.
(b) "Honorarium" means a payment of money or anything of value (excluding or reduced by travel expenses as provided in 5 U.S.C. App. §§ 505(3) and (4)) for an appearance, speech or article by a judicial officer or employee, provided that the following shall not constitute an honorarium:
(1) Payment for a series of related appearances, speeches or articles, provided that the subject matter is not directly related to the officer's or employee's official duties and that the payment is not made because of the officer's or employee's status with the Government.(c) Any honorarium which, except for subsection 4(a) hereof, might be paid to a judicial officer or employee, but which is paid instead on behalf of such officer or employee to a charitable organization described in section 170(c) of the Internal Revenue Code of 1986, shall be deemed not to be received by such individual for purposes of that subsection so long as such payment does not exceed $2,000 and is not made to a charitable organization from which such individual or a parent, sibling, spouse, child, or dependent relative of such individual derives any direct financial benefit separate from and beyond any general benefit conferred by the organization's activities. However, no payment may be made to a charitable organization under this subsection if the judicial officer or employee would be prohibited from receiving and retaining the honorarium by any applicable standards of conduct other than subsections 3(a) or 4(a) (for example, where an appearance, speech or article is prepared as part of official duties).
(2) Compensation received for teaching activity, provided that in the case of covered senior employees such teaching activity is approved pursuant to Section 5 hereof.
(3) Awards for artistic, literary or oratorical achievement made on a competitive basis under established criteria.
(4) Compensation for any performance using an artistic, athletic, musical, or other skill or talent or any oral presentation incidental thereto, provided that the subject matter is not directly related to the officer's or employee's official duties and further provided that the opportunity is not extended because of the officer's or employee's official position.
(5) Compensation for any writing more extensive than an article.
(6) Compensation for works of fiction, poetry, lyrics, script or other literary or artistic works.
(7) A suitable memento or other token in connection with an occasion or article, provided that it is neither money nor of commercial value.
(a) No covered senior employee shall:
(1) affiliate with or be employed by a firm, partnership, association, corporation, or other entity to provide professional services which involve a fiduciary relationship for compensation;
(2) permit the use of his or her name by any such firm, partnership, association, corporation, or other entity;
(3) practice a profession which involves a fiduciary relationship for compensation;
(4) serve for compensation as an officer or member of the board of any association, corporation, or other entity; or
(5) receive compensation for teaching, without the prior notification and approval as herein provided.
(b) "Teaching" in these regulations includes teaching a course of study at an accredited educational institution or participating in an educational program of any duration that is sponsored by such an institution and is part of its educational offering. Examples of the latter are a lecture, lecture series or symposia sponsored by a law school or college. Teaching also includes participation in continuing legal education programs for which credit is given by licensing authorities or programs which are sponsored by recognized providers of continuing legal education.
(c) A covered senior employee who obtains prior approval from the chief judge of the circuit, or in the case of the chief judge from the judicial council, may engage in part-time teaching for compensation. Covered senior employees of the Court of International Trade or the Court of Federal Claims shall obtain approval from the chief judges of those courts. Covered senior employees of the Tax Court shall obtain approval from the chief judge of the Tax Court. Covered senior employees of the Court of Appeals for Veterans Claims shall obtain approval from the chief judge of the Court of Appeals for Veteran Claims. Covered senior employees of the Sentencing Commission shall obtain approval from the Chairman of the Sentencing Commission. Covered senior employees of the Administrative Office of the United States Courts must obtain approval from the Director of the Administrative Office.
(d) The procedures for obtaining prior approval of teaching activities are as follows:
(1) A request for approval for compensated teaching shall be made –(e) Reports of teaching requests and rulings covering the 12-month period ending June 30 shall be sent by chief judges or others authorized to approve such requests to the Judicial Conference Committee on Codes of Conduct by July 31 of each year. That committee shall monitor these submissions and report to the Judicial Conference.
(A) prior to the commencement of any compensated teaching;(2) A request for approval for compensated teaching shall state the institution for which the teaching will be done, the source and amount of compensation, and the time required, including travel. The requester shall represent that the proposed activity will be consistent with the relevant Code of Conduct.
(B) during the performance of a previously approved teaching commitment, prior to any material increase in the compensation or the time required; and
(C) during the performance of a previously approved long-term teaching commitment, prior to the commencement of teaching in any new academic year (i.e., the Fall semester).
(3) The chief judges of the circuits, the Court of International Trade, the Court of Federal Claims, the Tax Court, and the Court of Appeals for Veterans Claims shall approve or disapprove a request based on whether (i) the proposed activity will be consistent with the Codes of Conduct, (ii) the requester is current in his or her judicial work, and (iii) the proposed activity is unlikely to affect adversely the ability of the court in which the requester serves to conduct its operations efficiently. In the case of a request by the chief judge of the circuit, the judicial council of that circuit shall approve or disapprove the request. A request by the chief judge of the Court of Appeals for the Federal Circuit, the Court of International Trade, the Court of Federal Claims, the Tax Court, or the Court of Appeals for Veterans Claims shall be approved or disapproved by majority vote of their respective courts. In the case of a covered senior employee of a district court, the chief judge of the circuit shall consult with the chief judge of the district court and, where appropriate, the chief judge of the bankruptcy court before making the decision. In the case of a senior judge, the chief judge shall make adjustments in the criteria for approval to take account of the senior judge's status and decreased work assignments.
(4) The decision by the chief judge may be appealed to the judicial council, or the Court of Appeals for the Federal Circuit, the Court of International Trade, the Court of Federal Claims, the Tax Court, or the Court of Appeals for Veterans Claims as appropriate. A majority vote to approve or disapprove the request shall be final.
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