Throwback Thursday

20 years ago this month:

  • Reviewing the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a former appellate judge for (1) making a false or misleading statement during an attorney discipline proceeding and (2) failing to disclose that an attorney appearing before him was representing a member of his immediate family in highly contentious domestic litigation. Inquiry Concerning Frank, 753 So. 2d 1228 (Florida 2000).
  • Pursuant to consent, the Michigan Supreme Court suspended a judge for 10 days without pay and publicly censured him for (1) knowingly executing a judgment that falsely stated that the defendant had pled guilty to 3 misdemeanors, and (2) knowingly making false and misleading statements to the Judicial Tenure Commission during its investigation. In re Milhouse, 605 N.W.2d 15 (Michigan 2000).
  • Adopting a substantial portion of the findings of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge and fined her $1,500 for (1) improperly sentencing a defendant under the wrong statute, doing nothing to correct her error, and stating under oath in her answer to the Commission’s complaint that the defendant had not been sentenced for the crime for which she had sentenced him; and (2) having a reporter arrested for disobeying her order by publishing an article regarding a juvenile proceeding without following correct procedures. Commission on Judicial Performance v. Byers, 757 So. 2d 961 (Mississippi 2000).
  • The Pennsylvania Court of Judicial Discipline removed a former supreme court justice who had been found guilty of 2 felony counts of criminal conspiracy; the Court also ordered that the justice be ineligible to hold judicial office in the future. In re Larsen, 746 A.2d 108 (Pennsylvania Court of Judicial Discipline February 2000).
  • Reviewing the findings of fact and conclusions of law of a judicial conduct panel, the Wisconsin Supreme Court suspended a judge for 6 months without pay for (1) recurring delay in deciding cases between 1991 and 1998, (2) filing certifications of status of pending cases that falsely represented that no cases were awaiting decision beyond the prescribed period, and (3) stating falsely to the Judicial Commission that he had no cases awaiting decision beyond the prescribed period. In the Matter of Waddick, 605 N.W.2d 861 (Wisconsin 2000).

State judicial discipline in 2019

In 2019, as a result of state disciplinary proceedings, 2 judges were removed from office.  (2 other judges were removed by conduct commissions, but those decisions were under review at the end of the year and, therefore, not included in the count for 2019.)  In addition, 15 judges or former judges resigned or retired in lieu of discipline pursuant to public agreements with conduct commissions; 1 of those former judges was also reprimanded.  2 judges were retired for disability.

16 judges were suspended without pay as a final sanction.  The suspensions ranged from 5 days to 1 year, although the 1-year suspension was stayed conditioned on the judge engaging in no further misconduct.  The other suspensions were for 7 days, 3 weeks, 28 days, 30 days (3 judges), 45 days (3 judges), 60 days (3 judges), 90 days, and 6 months (3 judges).  The 90-day suspension also included a $5,000 fine and public reprimand; one 45-day suspension also included a $5,000 fine; one 30-day suspension also included a $500 fine and public reprimand; the 28-day suspension also included a public censure.  The reinstatement of one of the judges suspended for 60 days was conditioned on her undergoing an emotional and behavioral assessment by a health care professional and completing a judicial ethics course.

86 judges (or former judges in 11 cases) received public censures, reprimands, admonishments, warnings, or letters of counsel.

  • There were 16 censures, 1 of which was severe. In addition to being censured, 1 former judge was barred from serving in judicial office in the state; 1 former judge was permanently barred from serving in judicial office in the state and ordered to pay restitution; 1 former judge’s law license was annulled, he was permanently enjoined from seeking public office in the state, fined $3,000, and reprimanded; 2 former judges were permanently enjoined from serving in public office and fined $1,000; and 1 judge was ordered to attend a course at the National Judicial College.
  • There were 36 reprimands. 1 reprimand included a $5,000 fine; 1 included a $1,683 fine; 2 included $500 fines; and 10 included requirements such as mentoring, training, stress management, probation, compliance with a lawyers assistance program agreement, or a psychological assessment.
  • There were 20 public admonishments. In several cases, the admonishments included conditions such as training.
  • There were 9 public warnings. 1 also ordered additional education.
  • 1 letter of counsel was made public with the judge’s consent.
  • 1 retired judge was suspended from eligibility as a reserve judge for 3 years
  • 3 former judges had their law licenses suspended in attorney discipline proceedings for conduct while they were judges. 1 suspension was indefinite; 1 was for 6 months; 1 was for 1 year with 6 months stayed.

“Judge” refers to any type of judicial officer including justices, magistrates, court commissioners, and hearing officers, whether full-time or part-time.  Approximately half of the sanctions were entered pursuant to an agreement with the judge or former judge.

Throwback Thursday

25 years ago this month:

  • Agreeing with the Commission on Judicial Conduct, the Arizona Supreme Court removed from office a judge who had been convicted of soliciting prostitution; thrown a woman with whom he was living against a wall; after he was no longer living with her, verbally abused her friend, pushed the friend, and threatened his life, and pushed his ex-girlfriend with enough force to injure her; and yelled obscenities at another friend of his ex-girlfriend’s, pushed him backward, and threatened his life.  In re Koch, 890 P.2d 1137 (Arizona 1995).
  • Based on the recommendation of the Commission on Judicial Performance, the California Supreme Court publicly censured a judge for a pattern of inappropriate and offensive comments to female members of court staff and inappropriate and non-consensual touching or attempted touching of women he supervised.  Fitch v. Commission on Judicial Performance, 887 P.2d 937 (California 1995).
  • The California Commission on Judicial Performance publicly reproved a judge for a pattern of failing to dispose of judicial matters promptly and efficiently.  Letter to Breen (California Commission on Judicial Performance February 28, 1995).
  • The California Commission on Judicial Performance publicly reproved a justice court judge who (before justice court judges were prohibited from practicing law) abandoned a client for whom he was attorney of record.  Letter to Kelly (California Commission on Judicial Performance February 28, 1995).
  • The California Commission on Judicial Performance publicly reproved a judge for abuse of the contempt power, interference in an attorney-client relationship in a driving under the influence case, and refusing to consider traffic school as a possible disposition in traffic matters.  Letter to Vassie (California Commission on Judicial Performance February 28, 1995).
  • Based on the presentment of the Advisory Committee on Judicial Conduct, to which the judge consented, the New Jersey Supreme Court removed a former judge from office for managing the affairs of a corporation while serving as a judge; receiving compensation from the corporation; and pleading guilty to theft from the corporation.  In the Matter of Imbriani, 652 A.2d 1222 (New Jersey 1995).
  • Approving the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for his behavior while publicly intoxicated in Florida that resulted in his arrest and in a negotiated plea of nolo contendere to trespass after warning; his behavior while publicly intoxicated in North Carolina that resulted in his conviction for indecent exposure; and his continuing refusal, even after admitting psychological dependency, to abstain from consuming alcohol.  In re Leonard, 453 S.E.2d 521 (North Carolina 1995).
  • Agreeing with the recommendation of the Board of Commissioners on Judicial Standards and a panel of hearing masters, the South Carolina Supreme Court publicly reprimanded a judge for issuing a bench warrant against a process server who had served a summons and complaint on him after he was named as a defendant in a civil action.  In the Matter of Edwards, 459 S.E.2d 837 (South Carolina 1995).
  • Affirming an order of the State Commission on Judicial Conduct, after a trial de novo, a Texas Special Court of Review publicly admonished a judge who held a litigant in direct contempt for criticizing the judge in the hallway of the courthouse and mischaracterized the events as taking place in open court in the contempt order.  In re Bell 894 S.W.2d 119 (Texas Special Court of Review 1995).
  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct publicly admonished a former part-time judge for conducting a hearing in a case in which he had advised the defendant over the telephone regarding the implied consent law and, in a second case, representing a defendant who had been arrested pursuant to a bench warrant he had signed as a judge.  In re Monson, Order of admonishment (Washington State Commission on Judicial Conduct February 3, 1995).
  • The Washington State Commission on Judicial Conduct publicly censured a judge for initiating and considering ex parte communications regarding a petition for a name change pending before him; used words and descriptions that humiliated the petitioners in the name change case; and acquired personal knowledge of evidentiary facts from ex parte communications that contributed to a personal bias and/or prejudice.  In re Hutchinson, Commission decision (Washington State Commission on Judicial Conduct February 3, 1995).

 

Yelp, “likes,” and judicial prestige

In a formal opinion, the California Judges Association Judicial Ethics Committee advised that, with qualifications, a judge may (1) write a review on a crowd-sourced site, such as Yelp and (2) use the “like” function on a social networking site.  California Judges Association Formal Opinion 78 (2020).

For purposes of its analysis, the California committee defined “footprint” in the context of social media:  “what others can see on the site as a result of the contribution and who can see it.”  The committee explained that, even when “the content could be perceived as advancing the interest of another, if the footprint does not identify the user with any particularity” as a judge, the prestige of office “would not be implicated.”

As an example, the committee applied its analysis to Open Table, a site used to make reservations at restaurants that includes user reviews of the restaurants.  It explained:

By default, reviewers are identified by their first name, the first initial of their last name and their city.  A posting by “William S., a diner in SF,” gives you so little identifying information that there is no way to connect that review with any specific individual.  Assuming William S. is a judge, nothing about being identified in that manner could be said to lend the prestige of the judicial office to that restaurant.

Would a review by William S. advance the interest of another?  Possibly yes.  But Canon 2B(2) does not read:  A judge shall not in any manner, including any oral or written communication, advance the pecuniary or personal interests of the judge or others.  Rather it reads:  “A judge shall not lend the prestige of judicial office or use the judicial title in any manner, including any oral or written communication, to advance the pecuniary or personal interests of the judge or others.”

(The analogous provision in the current version of the American Bar Association Model Code of Judicial Conduct is Rule 1.3 and states:  “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”)

In addition, the committee noted that a review on a third-party site, such as Yelp, is written not necessarily to benefit the business but to provide information to other users.  Therefore, the opinion stated, a review on Yelp is more like a book review for a journal, which judges are allowed to write, than a laudatory letter to a business that could be used on its website, which judges may not write.

The committee noted that the footprint could be different on a site, such as Trip Advisor, that allows the user to select a username if the judge’s choice includes the judicial title or is readily associated with the judge.

The committee concluded that, before posting a review on a crowd-sourced site, a judge should consider:

1) How likely is it that a reader be able to identify the post as being written by a judge? 2) Where will the post appear? 3) Is there a reasonable possibility the business being reviewed could identify who the post is from and that person’s position? 4) How detailed is the review? and, 5) Who are you writing the review for?

Whether a judge can hit the “like” or thumbs-up icon on Facebook or other social media sites depends on where the icon is, the committee advised.

If a judge “likes” an establishment on its Facebook page, the committee explained, “the only thing that will show up on the establishment’s page is an addition to the number of ‘Likes’ the establishment has received,” not the judge’s username.  The “like” will not appear on the judge’s Facebook page, and the judge’s friends will not receive any notice that the judge has clicked “like.”  The committee noted that the judge’s “likes” will be listed on the judge’s profile so whether others can see them depends on what privacy settings the judge has implemented, with the most restrictive being “only me,” the most open being “public,” and several settings in between.  The committee concluded:

  • If only the judge can see the judge’s “likes,” the judge would not be lending the prestige of the judicial office to further the establishment.
  • If anyone can see the judge’s “likes,” Canon 2B(2) “could very well be implicated.”
  • If only “friends” can see the “likes,” whether the rule is implicated depends on how many friends the judge has and what their relationships is.
  • If only a judge’s close friends and relatives can see the judge’s “likes,” Canon 2B(2) is probably not violated.

If a judge “likes” a comment on someone else’s page or a comment made on the judge’s homepage, the committee advised that Canon 2B(2) could be violated if the judge uses their “true name” or a pseudonym that others know belongs to the judge because whether others can see the “like” depends on the privacy settings of the original poster, not the judge.  However, the committee stated, “if the only people who are aware of the pseudonym are family and close friends there may not be any problem.  Canon 2B(2) doesn’t prevent a judge from telling a friend that they like a particular restaurant, book or movie.”

However, the committee also cautioned:

The problem with online interactions of that sort is that that they are generally much broader than face to face encounters.  [A judge] may be commenting for the benefit of one individual, but [the] comment is going to be potentially shared with everyone that individual is connected with, and conceivably, everyone those people are connected with.  Moreover, anyone who sees the “Like” can access [the judge’s] page by clicking on [the judge’s] username.  If [the judge’s] privacy settings don’t limit the information that others can see, such as [the judge’s] own posts and profile information, the probability that others can identify [the judge] as a judge increase.

The committee also noted that “likes” are more widely disseminated on Twitter and Instagram and, therefore, there is a greater likelihood of the judge’s identity being ascertained on those platforms.

The committee emphasized that the code prohibits certain types of conduct online regardless whether the user can be identified as a judge:  “A judge may not engage in such conduct, period.”  The committee stated that “hitting the thumbs up symbol or the heart symbol” because something is interesting can reasonably be “perceived as an explicit endorsement of the content,” and, therefore, if subject to judicial discipline if direct advocacy of the content by a judge would be inappropriate.

“Liking” an offensive post could cast reasonable doubt on the judge’s capacity to act impartially and could demean the judicial office.  There simply is no place for judges engaging in that type of conduct on an inherently public platform.  Indeed, judges have been disciplined for posting and sharing links to posts that were perceived as racist and offensive.

Further, the committee stated that the prohibitions on judges engaging in certain political activity apply even when the judge is not using the judicial title or might not be otherwise be identifiable as a judge.  “Although the prohibitions do not apply to private comment and only to public endorsement or opposition, “social network platforms are, by their very nature, public,” the committee cautioned.

* * *
A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics web-site.

What judges said that got them in trouble in the second half of 2019

What judges said that got them in trouble in the first half of 2019 was summarized in a previous post

What they said to or about criminal defendants

  • “Crackers” and “homeboys.”  Judge to Caucasian and African American defendants.  Disciplinary Counsel v. Burge, 134 N.E.3d 153 (Ohio 2019) (6-month suspension of former judge’s law license for this and other misconduct).
  • “Now, if I were to believe you were that stupid, James, I would just have Deputy Motelewski shoot you right now, because I know you’re not going to make it through life.  Just tell me you knew it was stolen, that’s all.”  Judge to defendant.  Disciplinary Counsel v. Burge, 134 N.E.3d 153 (Ohio 2019) (6-month suspension of former judge’s law license for this and other misconduct).
  • “In fact, you’ve been such a headache, I was looking forward to putting you in the pen.  And I would have paid 50 bucks to give you a beating before you went.”  Judge to defendant.  Disciplinary Counsel v. Burge, 134 N.E.3d 153 (Ohio 2019) (6-month suspension of former judge’s law license for this and other misconduct).
  • “I do hope you do fight for your life every minute of every day.  And that would be the only reason that I would hope your life is any longer than six weeks.”  Judge during sentencing in a murder case.  Inquiry Concerning Lemonidis, 283 So. 3d 799 (Florida 2019) (reprimand for this and similar comments).
  • “On a lighter note, I can take judicial notice that women can drive you crazy,” and, “You know, a judge could get in trouble for something like this.”  Judge while presiding over a domestic violence case.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) () (removal for this and other misconduct).
  • “I guess it’s ok to urinate everywhere and on yourselves, be drunk in public in this town just because you don’t have any money.”  Judge to police officer who said the prosecution wanted a minimum fine for a woman who pled guilty to public drunkenness and related conduct.  In re Hladio, Opinion (March 25, 2019), Opinion (Pennsylvania Court of Judicial Discipline October 4, 2019) (reprimand of former judge for this and other misconduct).

What they said to litigants in family court cases

  • “Can you point me to one thing you’ve done in your life as an adult, so we are talking about since you turned 18, that would demonstrate, not just words, but demonstrate that you can stick with something to the end, see it through and successfully complete?”  Judge to father in termination of parental rights proceeding.  Public Admonition of Bailey (Texas State Commission on Judicial Conduct July 16, 2019).
  • “My children would never allow me to go to jail for any reason whatsoever . . . I’m appalled because my children respect me so much they would never allow that to happen.”  Judge berating and threatening 15-year-old twin boys whose mother was held in contempt because they refused to visit their father.  In re Foster, 832 S.E.2d 684 (North Carolina 2019) (censure for this and related misconduct).
  • The mother was “just calling me giving me a different side.”  Judge to a father in one of a series of ex parte calls about pending child custody and visitation issues.  In the Matter of Wiggins, Final judgment (Alabama Court of the Judiciary November 18, 2019) (reprimand).

What they said to or about litigants in civil cases

  • “I’m going to do whatever I can to convince you that that’s [a jury trial] is a bad choice.  But I don’t think I’m going to be successful.  I think you’re going to insist upon it, and you are.  And you have the right.  You certainly have the right.  But I’ll tell you the only time I’ve seen someone in your position take a case to a jury trial, it was an unmitigated disaster.  And I warned the plaintiff.  But yeah, you have the right to do it, but you have the same right to perform brain surgery on yourself.  And I think they’re both equally imprudent.”  Judge attempting to dissuade the plaintiff in a civil case from exercising her right to a jury trial.  McMurry, Amended order (Arizona Commission on Judicial Conduct November 8, 2019).
  • “I guess I have to say, from my perspective, it seems like we got to drag Paul screaming and kicking to do what we have told him to do.”  Judge in probate case in which he failed to hold the guardian accountable for over seven years.  In re Lewis, Public reprimand (Vermont Judicial Conduct Board September 6, 2019), based on a stipulation.

What they said to or about attorneys

  • “Entirely inexperienced,” “repeating the bull***t” to which the defendant testified, and turning a “slam-dunk” case into a “60-40” one for the defendant.  Judge in email to paralegal in U.S. Attorney’s Office about the performance of an Assistant U.S. Attorney in a case over which he was presiding.  In re Bruce, Memorandum (U.S. Court of Appeals for the 7th Circuit May 14, 2019) (admonishment for practice of ex parte communications with the U.S. Attorney’s Office).
  • “Not a game.  Trial is 2/22/17.  You agreed to send subpoenaed trial date.  Not a game.  Not a game.  That is the trial date.  Not a game.  This is the trial date.  No more repeats of what happened this past Friday.  Not a game.  That is the date.  You agreed to send revised dates.  That is the scheduled trial date.  Sick of this.  Respect for the city if [sic] Camden.  Respect for our court.”  Judge in one of a series of aggressive, ex parte emails on New Year’s Eve to a prosecutor about scheduling a trial.  In the Matter of Jones-Tucker, Order(New Jersey Supreme Court November 20, 2019), based on a presentment (reprimand for this and related misconduct).
  • “I need to move this along; I have a lot of cases left on the calendar.  I’m not giving you time right now.”  Judge, sharply, to a female deputy public defender who was new to the felony trial department.  Inquiry Concerning Jacobson, Decision and Order (California Commission on Judicial Performance December 19, 2019) (admonishment for this and other misconduct).
  • “ENOUGH.”  Hearing master shouting repeatedly at attorney who objected to her questions to his client, a juvenile.  In the Matter of Henry, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline December 12, 2019) (admonishment).
  • “Without lawful authority . . . with perhaps nefarious motivations . . . .”  Judge unsealing documents and finding, without notice or a reasonable evidentiary basis in a case to which he was not assigned, that attorneys had filed documents under seal to prevent the estranged spouse of one of the attorneys from learning about a large fee.  In re Spanner, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 22, 2019) (reprimand).
  • “What’s going to happen now is your client is going to pay $25,000 to settle this case right now or I am going to report you to the Appellate Division Second Department.  That’s your license counselor.”  Judge to attorney in off-the-record conference in chambers.  In the Matter of Edwards, Determination (New York State Commission on Judicial Conduct October 23, 2019) (admonition).
  • “Sometimes having you in here is like having a teenage daughter—you constantly argue with me and you just keep talk, talk, talking until you get what you want.”  Judge to female deputy public defender.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • “[Y]our parents hadn’t spanked you enough.”  Judge to female deputy public defender.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • “I saw you on TV last night.”  Judge repeatedly telling female deputy public defender she looked like an actress on the TV show “Doc Martin.”  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • “What kind of Asian [are you]?”  Judge to deputy district attorney.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • “She’s the attractive young Asian woman.”  Judge to attorney looking for a deputy district attorney.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).

What they said to or about court staff

  • “She did not know what she started.”  Judge in filing a complaint against a clerk in retaliation for the sexual harassment allegations she made against him.  In re O’Shea, Order (Illinois Courts Commission September 27, 2019).
  • “Quite tall,” “very pretty,” and “[you will] enjoy looking at her.”  Judge to prospective jurors about his court reporter.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • “Something pretty to look at.”  Judge explaining to a law intern why he had asked her to attend a meeting.  Disciplinary Counsel v. Horton (Ohio Supreme Court October 10, 2019) (indefinite suspension of former judge from the practice of law for this and other misconduct).
  • “Number one priority.”  Judge telling clerks how he wanted them to treat him.  In re Hladio, Opinion (March 25, 2019), Opinion (Pennsylvania Court of Judicial Discipline October 4, 2019) (reprimand of former judge for this and other misconduct).
  • “Meow.”  Judge making “cat noises” while sitting close to the court manager’s desk after she complained to human resources about his obsessive conduct regarding whether she liked him as a friend.  Judicial Commission v. Kachinsky, 930 N.W.2d 252 (Wisconsin 2019) (three-year suspension of former judge from eligibility for appointment as a reserve judge for this and related misconduct).
  • “Feel free to report me to HR.  I feel spunky this morning.”  Judge in email to the court manager after she complained to human resources about his obsessive conduct regarding whether she liked him as a friend.  Judicial Commission v. Kachinsky, 930 N.W.2d 252 (Wisconsin 2019).
  • “Are you afraid of me now?”  Judge, lunging over court manager’s desk, after she complained to human resources about his obsessive conduct regarding whether she liked him as a friend.  Judicial Commission v. Kachinsky, 930 N.W.2d 252 (Wisconsin 2019) (3-year suspension of former judge from eligibility for appointment as a reserve judge for this and related misconduct).

What political comments they made

  • “Nothing more than the hobgoblin of a small-minded, mouthbreathing, Tea Party type whose political style and abilities uniquely qualify him to do nothing.”  Judge in letter on court stationery to state representatives about the sponsor of proposed legislation.  Disciplinary Counsel v. Burge, 134 N.E.3d 153 (Ohio 2019) (six-month suspension of law license of former judge for this and other misconduct).
  • “Corrupt.”  Judge about governor in letter to the editor published during the governor’s re-election campaign.  In the Matter of Chamberlain, Decision and order (New York State Commission on Judicial Conduct December 5, 2019) (proceedings closed based on judge’s resignation and agreement not to seek or accept judicial office).
  • “The young black men – and it’s primarily young black men rather than young black women – charged with felony offenses, they’re not getting good advice from their parents.  Who do they get advice from?  Rag-tag organizations like Black Lives Matters, which tell you, ‘Resist police,” which is the worst thing in the world you could tell a young black man . . . they teach contempt for the police, for the whole justice system.”  Judge to reporter.  Public Warning of McSpadden (Texas State Commission on Judicial Conduct November 12, 2019).
  • “IF WE WANT TO MAKE AMERICA GREAT AGAIN WE WILL HAVE TO MAKE EVIL PEOPLE FEAR PUNISHMENT AGAIN.”  Judge’s post on Facebook account with picture of a noose.  In the Matter of Canning, Decision and order (New York State Commission on Judicial Conduct September 12, 2019) (proceeding closed based on judge’s resignation and agreement not to seek or accept judicial office).
  • “As I watched the confirmation process for Brett Kavanaugh, I became more and more disgusted and concerned for the future of the Supreme Court . . . not because he comes from a political party different from mine, but because of his character and conduct.”  Judge explaining why he had closed his courtroom and draped black fabric over the door.  Public Admonition of Lipscombe (Texas State Commission on Judicial Conduct August 8, 2019).

What they said that abused the prestige of office

  • “What do you think you’re doing pulling me over?  For blowing my horn?” and “You better check the registration on this plate soon, mister.”  Judge to police officer during traffic stop.  Letter to Reinaker (Pennsylvania Judicial Conduct Board December 13, 2019) (letter of counsel).
  • “What is this b***s***?” and “Take this s**t down.”  Judge to store employees about smoking paraphernalia in window display, while referring to his judicial office.  In the Matter of Tawil, Determination (New York State Commission on Judicial Conduct December 12, 2019) (censure for this and other misconduct).
  • “Give him a break.”  Judge to police chief about a pending traffic stop in which his former brother-in-law was the driver.  In the Matter of Mann, Decision and order (New York State Commission on Judicial Conduct December 5, 2019) (proceeding closed based on judge’s resignation and agreement not to seek or accept judicial office).
  • “Help [me] out.”  Judge to sheriff’s investigator about prostitution charge against woman whose family he knew.  Commission on Judicial Performance v. Sutton, 275 So.3d 1062 (Mississippi 2019) (reprimand and fine for this and similar misconduct).
  • “The Honorable James Oakley, Burnet County Judge.”  With judge’s permission, on campaign materials for candidate for board of elective cooperative.  In re Oakley, Opinion (Texas Special Court of Review October 25, 2019) (admonishment).
  • “Now as a parent I learned one thing, and as a judge, when you say stay away to a young person, they often don’t stay away.”  Judge in court when representing his daughter, who was petitioning for an order of protection.  In the Matter of Edwards, Determination (New York State Commission on Judicial Conduct December 20, 2019).
  • “[I am] a current Part-Time Town Justice” and would never “intentionally make a racist comment.”  Judge when confronted by another judge about an insensitive remark he made when acting as a private attorney.  In the Matter of Tawil, Determination (New York State Commission on Judicial Conduct December 12, 2019).

What they said in their personal lives

  • “I’m not denying that I said something or egged it on … because I drink … I mean I fully acknowledge that I drink and get mouthy, and I’m fiery and I’m feisty, but if I would have ever thought for a second that they were gonna fight or that that guy had a gun on him, I would never, never ….”  Judge to police officer after a verbal altercation she and 2 other judges had with 2 men in a White Castle parking lot led a physical altercation and the other 2 judges being shot.  In the Matter of Adams, Jacobs, and Bell, 134 N.E.3d 50 (Indiana 2019).
  • “[She] goes from older men to older men with money.”  Judge during a telephone conversation with a man she believed was the estranged husband of a woman she believed was cohabitating with her estranged husband.  Public Admonition of Rocha and Order of Additional Education (Texas State Commission on Judicial Conduct August 26, 2019).
  • “This is my livelihood!” and “Judas Iscariot.”  Judge publicly confronting people who supported his campaign opponent.  In re Maruszczak, Opinion (January 9, 2019), Opinion (Pennsylvania Court of Judicial Discipline October 4, 2019) (reprimand).
  • “For all we know, he could be frying up some platanos in the front seat.”  Judge about a party’s ethnicity in a summation while acting as a private attorney in a civil case.  In the Matter of Tawil, Determination (New York State Commission on Judicial Conduct December 12, 2019) (censure for this and other misconduct).

 

 

Throwback Thursday

 5 years ago this month:

  • Based on an agreement, the Arkansas Commission on Judicial Discipline & Disability Commission publicly censured a judge for (1) issuing arrest warrants for 4 persons without probable cause documentation presented by a law enforcement officer or the county prosecuting attorney and presiding or attempting to preside over the resulting criminal charges and (2) a pattern of rude, impatient, and undignified temperament.  Letter to Van Hook (Arkansas Commission on Judicial Discipline & Disability Commission January 16, 2015).
  • Accepting the findings and recommendation of the Judicial Standards Commission based on an agreement, the North Carolina Supreme Court publicly reprimanded a judge for allowing plaintiff’s counsel to present advice and opinion on the Servicemember’s Civil Relief Act of 2003 outside of the presence of the servicemember/litigant or anyone appointed to represent him, relying on that advice and opinion without independently researching the law, and inappropriately denying the servicemember/litigant the appointment of legal representation guaranteed under the Act.  In re Branch, 767 S.E.2d 47 (North Carolina 2015).

 

A sampling of recent judicial ethics advisory opinions

  • A judge may participate in a study on judicial diversity in state courts but should not answer questions that could be perceived to suggest a predisposition to decide matters in a certain way regardless whether a case is pending or impending in any court.  Maryland Opinion Request 2019-27.
  • A judge and a judicial association may publicly support or oppose proposed legislative or constitutional changes to court structure, court operations, or the terms or conditions of judicial service by writing and submitting letters, articles, or editorials to newspapers and other publications; advocating in person or in writing to public officials, governmental bodies, and labor unions; testifying at public hearings; and speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee.  A judge and a  judicial association should use discretion when expressing a position on social media.  New York Opinion 2019-120.
  • A judge may speak about her judicial experiences at a federal legislator’s non-partisan, non-political youth cabinet meeting.  New York Opinion 2019-100.
  • A judicial official may not play a fictional judge in a scripted docudrama that raises controversial political and societal issues, such as reparations, police brutality, and the killing of innocent blacks.  Connecticut Informal Opinion 2019-3.
  • A judicial official may join a local bar association as a dues-paying member but should regularly re-examine the association’s activities and rules and should carefully consider whether identification with or involvement in specific programs or activities may undermine confidence in his independence, integrity, and impartiality or result in frequent disqualification.  Connecticut Informal Opinion 2019-4.
  • A judge may serve as a member of the House of Deputies at the general convention of the Episcopal Church.  Florida Opinion 2019-31.
  • A judge may serve on the board of a not-for-profit organization that advocates for effective policies and evidence-based solutions for the health, education, and success of children who are vulnerable because of poverty, racism, health disparities, and trauma.  New York Opinion 2019-105
  • A judge may not write or join an article or editorial on issues of substantial public controversy involving American foreign policy and military operations.  New York Opinion 2019-106.
  • A full-time magistrate judge may not be engaged in business as a motivational speaker.  South Carolina Opinion 15-2019.
  • A family court judge should not appear by telephone as a witness for a friend in an out-of-state custody/relocation hearing.  South Carolina Opinion 16-2019.