On January 21, 2004, Operation Clean Government, hereinafter referred to as OCG, sent a letter to Senate President Joseph A. Montalbano requesting that he voluntarily resign his position as Municipal Court Judge in North Providence. We believe Judge Montalbano is in violation of the Code of Judicial Conduct in that he concurrently holds judicial office and serves as an elected official, state senator for District 37 in the Rhode Island General Assembly.
As a municipal court judge, Judge Montalbano meets the definition of a "continuing part-time judge" as defined in the Terminology Section of Article VI, Judicial Conduct, of the Supreme Court Rules, as set forth below:
"Continuing part-time judge." A continuing part-time judge is a judge who serves repeatedly on a part-time basis under a continuing appointment, including a retired judge subject to recall.
OCG believes that, as a continuing part-time judge, Judge Montalbano is subject to the following provision of Art. VI, Canon 5, governing a judge or judicial candidate's conduct regarding political activity:
Canon 5. A judge or judicial candidate shall refrain from inappropriate political activity. - A. All Judges and Candidates. (2) A judge shall resign from judicial office upon becoming a candidate for a non-judicial office either in a primary or in a general election, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so.
The Application Section of the Code of Judicial Conduct provides no exception for a continuing part-time judge, such as Judge Montalbano, to the restriction on judges seeking elective office in Art. VI, Canon 5A(2), as set forth above.
OCG believes that the 'spirit' and the intent of the Canons by which judges must abide, bars any continuing part-time judge from seeking or holding elective office without first resigning the judgeship. This assertion is clearly supported by Rule 1, Code of judicial conduct, which sets forth the Preamble to the Code and the Commentary on judges, including those judges in municipal positions. The Preamble states:
The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.
The Commentary to the Application Section of the Code of Judicial Conduct states as follows:
This Code shall be applicable to all members of judicial tribunals whether state or municipal, full-time or part-time, as described in paragraph A of the Application provision of the Code.
Paragraph A of the Application of the Code of Judicial Conduct defines those subject to the Code of Judicial Conduct as follows:
A. Anyone whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as a magistrate, court commissioner, special master or referee, is a judge within the meaning of this Code including but not limited to justices and judges of the Supreme Court, Superior Court, Family Court, District Court and the Workers' Compensation Court, and the Masters who serve in those courts, judges in the Administrative Adjudication Court as well as all judges of Probate, Municipal and Housing Courts of the Cities and Towns.
Based upon the pertinent language from governing Canons, the Preamble, the Application Section of the Code of Judicial Conduct, and the Commentary thereto, OCG asserts that Judge Montalbano, as a continuing part-time municipal judge, must resign his judgeship immediately, since he concurrently holds elected office, in violation of Art. VI, Canon 5A(2). Thank you for your anticipated thorough investigation of this matter.