What they said that got them in trouble in the first half of 2017

  • “If you speak I’m going to put you in handcuffs and put you in jail.” Judge to assistant district attorney who had asked to speak when the judge indicated he was going to dismiss charges in a high profile murder case after a mistrial.  In the Matter of Piampiano, Determination (New York State Commission on Judicial Conduct March 13, 2017) (censure for this and other misconduct).
  • “Give this to Judge Hawthorne and have him dismiss it for me.”  Judge to court clerk about traffic ticket received by an acquaintance.  In the Matter of Aluzzi, Determination (New York State Commission on Judicial Conduct June 26, 2017) (censure).
  • “Un-cuff Zohra . . . . I think she’s learned a lesson.”  Judge who had ordered his bailiff to handcuff a deputy public defender to a chair when she continued to argue for leniency as he sentenced her client.  In the Matter of Hafen, Stipulation and order of consent (Nevada Commission on Judicial Discipline February 27, 2017) (censure).
  • “I’m not appointing them right now, I’m waiting 60 days to – so the public defender cannot disqualify me.” Judge to clerk while giving back form for appointment of counsel for a defendant during dispute with public defender.  In re Mennemeyer, 505 S.W.3d 282 (Missouri 2017) (6-month suspension without pay for this and other misconduct).
  • “IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.”  Chief Justice in administrative order disregarding federal court injunction.  Moore v Judicial Inquiry Commission (Alabama Supreme Court April 19, 2017) (suspension until end of term).
  • “We have at least one magistrate who will do same-sex marriages, but I will not be able to.” Judge to reporter.  Inquiry Concerning Neely, 390 P.3d 728 (Wyoming 2017) (censure).
  • “I’m not sure, Cody, that I can recall, in recent times, somebody being that sympathetic a figure.” Judge to reporter about the defendant in 1 of 3 media interviews he gave shortly after declaring a mistrial in a high profile murder case.  In the Matter of Piampiano, Determination (New York State Commission on Judicial Conduct March 13, 2017) (censure for this and other misconduct).
  • “Time for a tree and a rope . . .” Judge in comment on the sheriff’s Facebook post about the arrest of an African-American man for the killing of a police officer.  Amended Public Reprimand of Oakley and Order of Additional Education (Texas State Commission on Judicial Conduct May 8, 2017).
  • “Colored.” Judge referring to black people but, he stated, “never in the courtroom or directed at one particular individual.”  Public Reprimand of DeLaPaz and Order of Additional Education (Texas State Commission on Judicial Conduct March 17, 2017).
  • “Ok, I’m not gonna argue with you.  I will throw you out of this office, though.”  Judge before escorting out of his office a member of the public who had asked to see the case files on a particular defendant.  Public Warning of Alford and Order of Additional Education (Texas State Commission on Judicial Conduct March 28, 2017).
  • “Barack Obama & Gary Johnson Party at the White House . . . .” False and misleading caption to photo-shopped picture in a campaign flyer attacking an incumbent judge.   In the Matter of Callaghan, 796 S.E.2d 604 (West Virginia 2017) (2-year suspension without pay and $15,000 fine).
  • “’Ms. Shepard has done well. She has kept her promises.  She has worked hard.  She has maintained her integrity.’ – The Orlando Sentinel.”  Judicial candidate’s mailer using an edited version of a newspaper endorsement for her 1994 legislative re-election campaign in her 2014 judicial campaign.  Inquiry Concerning Shepard, 217 So. 3d 71 (Florida 2017) (90-day suspension without pay).
  • “Karen Shatzle [sic] has sex with defense lawyer whike [sic] shw [sic] is a DA on his cases and nobody cares. Interesting politics.”  Judge about a judicial candidate on the bar association Facebook page with knowing or reckless disregard to the truth of the statement.   In the Matter Concerning Ferguson, Public admonishment (California Commission on Judicial Performance May 31, 2017) (public admonishment for this and other misconduct).

 

 

Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge who became irritable and impatient with an attorney and, when the attorney tried to make a record, said, “I don’t care for the record, Mr. Jones. You say one more word and you’re in contempt.”  Andress, Order (Arizona Commission on Judicial Conduct July 11, 2007).
  • With the judge’s agreement, the D.C. Commission on Judicial Disabilities and Tenure determined that a judge made comments about cultural issues prior to sentencing in a sexual abuse case that created an appearance of bias and compromised the integrity of the judicial process. Re Mitchell-Rankin, Determination and Undertaking (D.C. Commission on Judicial Disabilities and Tenure July 9, 2007).
  • Adopting the recommendation of the Advisory Committee on Judicial Conduct to which the justice did not object, the New Jersey Supreme Court publicly censured a supreme court justice for communications with the police, prosecutors, and judges that created an unacceptable risk that his judicial office could influence the handling of a matter relating to his son. In the Matter of Rivera-Soto, 927 A.2d 112 (New Jersey 2007).
  • Granting a petition filed by the Commission on Judicial Standards based on stipulated findings of fact, the New Mexico Supreme Court publicly reprimanded a judge for endorsing a mayor for re-election and authorizing the use of his name in an endorsement that was published in the local newspaper. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007).
  • Upholding the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for (1) dismissing several code violation cases based on ex parte communications without providing the prosecution with notice or an opportunity to be heard and (2) testifying falsely about her actions and altering her court calendar to support her false testimony. In the Matter of Marshall, 872 N.E.2d 247 (New York July 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge who failed for over 6 years to adequately supervise his court clerks and to discharge his administrative duties diligently, resulting in missing court monies. In the Matter of Cavotta, Determination (New York State Commission on Judicial Conduct July 19, 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge whose handling of 3 small claims matters was fraught with errors and violated well-established statutory and ethical mandates. In the Matter of Edwards, Determination (New York State Commission on Judicial Conduct July 19, 2007).
  • The New York State Commission on Judicial Conduct removed a non-lawyer judge who, in a property dispute involving a relative, had abused his judicial authority, presided over the matter notwithstanding his bias against the defendants, used his judicial power to benefit his relative’s interests, and used the term “jewing” while berating the defendants. In the Matter of Ellis, Determination (New York State Commission on Judicial Conduct July 24, 2007).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) finding a defendant guilty in absentia; (2) in a second case, failing to provide adequate notice or an opportunity to respond before finding a defendant in contempt and issuing orders and fines that he had no authority to enforce; and (3) issuing a subpoena to compel another judge to appear before him. Public Admonition of Wall (Texas State Commission on Judicial Conduct July 13, 2007).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge following his guilty plea to common law misconduct in office. In the Matter of Stephens, 650 S.E.2d 849 (South Carolina 2007).

 

Top judicial ethics stories of 2017 – So far

  • In early 2017, several judicial ethics advisory committees answered inquiries from judges about whether they could participate in marches, contact their elected representatives, or engage in similar political activities as private citizens or respond as judges to other public officials’ misconceptions about the rule of law. Click here for a previous post about the opinions.
  • A special Alabama Supreme Court affirmed the decision of the Court of the Judiciary suspending Chief Justice Roy Moore from office without pay for the remainder of his term for entering an administrative order that directed all probate judges to follow Alabama’s marriage laws in disregard of a federal court injunction. Click here for a previous post about the case.  Shortly after the decision, the Chief Justice resigned to run for the U.S. Senate seat vacated by Jeff Sessions when he became Attorney General of the U.S.
  • Following a de novo review, the Wyoming Supreme Court censured Judge Ruth Neely for her refusal to perform same-sex marriages and ordered that she either perform no marriage ceremonies or that she perform marriage ceremonies regardless of the couple’s sexual orientation. Inquiry Concerning Neely, 390 P.3d 728 (Wyoming 2017).  Click here for a previous post about the case.

Top stories still developing:

  • On June 16, the Oregon Supreme Court held oral arguments on the recommendation of the Commission on Judicial Fitness and Disability that Judge Vance Day be removed from office for a variety of misconduct. The Commission found that the judge had committed misconduct by (1) after the state’s ban on same-sex marriage was overturned, directing his staff to lie about his availability to same-sex couples asking to be married and direct them to another judge; (2) at 2 community college soccer games for his son’s team, trying to intimidate a referee by, for example, brandishing his judicial business card while threatening to complain to the referee’s employer about his job performance; (3) facilitating the handling of a firearm by a former Navy SEAL and convicted felon (identified as “BAS”) on active supervised probation in the veterans court over which the judge presided; (4) “enamored with BAS’s notoriety and his accomplishments in the military,” having unsolicited, often unwanted, personal, and completely inappropriate out-of-court contacts with him, including texting him, showing up at BAS’s home uninvited, taking him to a wedding, bringing BAS to his home, nurturing a relationship between BAS and his son, and facilitating favors for BAS such as rides and food; (5) securing funds for a “Hall of Heroes” (military art hung in his courtroom and in the surrounding public areas, including a donated portrait of Hitler) in part by soliciting financial support from attorneys who appeared before him and collecting the money, often in the courthouse and once during a status conference in his chambers; (6) making public statements to create the impression that the Commission proceeding was solely about his religious beliefs and refusal to conduct same-sex marriages to deflect attention away from his other misconduct; and (7) engaging in a pattern of dishonesty and untruthfulness during the Commission proceedings.
  • In May, the ACLU of Kentucky, Lambda Legal, the American Civil Liberties Union, Kentucky’s Fairness Campaign, and a law professor filed a complaint with the Kentucky Judicial Conduct Commission against Judge Mitchell Nance after he announced he would no longer hear adoption cases involving “homosexual parties” because he “as a matter of conscience” believes that “under no circumstance” would “the best interest of the child be promoted by the adoption by a practicing homosexual”
  • On April 17, in an exercise of its general superintending control and to protect the integrity of the judicial system and “ensure that all are given a fair and impartial tribunal,” the Arkansas Supreme Court re-assigned all cases involving the death penalty or the state’s execution protocol, whether civil or criminal, that had been assigned to Judge Wendell Griffen and referred Judge Griffen to the Commission on Judicial Discipline & Disability.  Judge Griffen has also filed a complaint about the order against the justices with the Commission.  The Court’s order was prompted by Judge Griffen’s participation in 2 protests against the death penalty on Good Friday April 14 (he is also a pastor) and his entry of a temporary injunction that same day in a suit brought by a drug distributor against the use of its paralytic drug in 8 executions the state had scheduled in 10 days beginning Monday April 17 because its supply of the drug, which was one of the drugs used in executions, was about to expire.

Throwback Thursday

20 years ago this month:

  • The New York State Commission on Judicial Conduct publicly admonished a judge who had routinely required out-of-town defendants in traffic cases to post $100 bail if they pled guilty by mail. In the Matter of Kelson, Determination (New York State Commission on Judicial Conduct July 17, 1997).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge who had told a litigant “it appears to me that you are more than a little nuts” and, when the litigant objected, said, “I understand what I have heard with my own ears and it appears to me that you are nuts.” In the Matter of Going, Determination (New York State Commission on Judicial Conduct July 18, 1997).
  • The Pennsylvania Court of Judicial Discipline severely reprimanded and censured a former judge for sexually harassing a court employee and filing false and misleading campaign expense reports. In re Cicchetti, 698 A.2d 704 (Pennsylvania Court of Judicial Discipline 1997).
  • The Pennsylvania Court of Judicial Discipline suspended a judge for 60 days without pay for contacting the supervisor of the statutory appeal unit regarding a defendant who had appealed from a sentence the judge had imposed and for making false statements to FBI agents about the contact. In re Trkula, 698 A.2d 180 (Pennsylvania Court of Judicial Discipline 1997).
  • Based on an agreement, the South Carolina Supreme Court publicly reprimanded a former judge who had pled guilty to official misconduct in office for dismissing DUI charges against a friend; the Court also ordered that he not seek appointment to any judicial office in the state unless authorized by the Court. In the Matter of Chiles, 490 S.E.2d 259 (South Carolina 1997).
  • Agreeing with the recommendation of the Judicial Conduct Commission, the Utah Supreme Court publicly reprimanded a judge for allowing a litigant to submit a sworn affidavit signed by the judge that gave the judge’s opinions and conclusions on the ultimate issue in a pending judicial proceeding. In re McCully, 942 P.2d 327 (Utah 1997).
  • The Vermont Supreme Court publicly reprimanded a judge and suspended her for 1 year without pay for falsely denying, during a hearing by the Vermont Association of County Judges, that she had secretly taped meetings or conversations. In re Kroger, 702 A.2d 64 (Vermont 1997).
  • Adopting the recommendations of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly admonished a magistrate for contacting the arresting officer and prosecuting attorney concerning an action against his son-in-law. In the Matter of Rice, 489 S.E.2d 783 (West Virginia 1997).
  • Pursuant to a stipulation, the Wisconsin Supreme Court publicly reprimanded a former judge for battering his wife and causing her bodily harm. In the Matter of Crivello, 564 N.W.2d 785 (Wisconsin 1997).

 

Recent cases

  • With the judge’s consent, in lieu of filing formal disciplinary proceedings, the Indiana Judicial Qualifications Commission admonished a judge for participating in an ex parte hearing at which the clerk of court was banned from the courthouse without providing the clerk with notice of the purpose of the hearing or the opportunity to obtain counsel. Public Admonition of Barry (Indiana Judicial Qualifications Commission June 28, 2017).
  • The Maine Supreme Judicial Court ordered that a former probate judge forfeit $5,000 and be suspended from the practice of law in Maine for 2 years for (1) directing that 7 attorneys not be included on the appointments list; (2) removing an attorney from cases to which she had previously been appointed; (3) ordering the destruction of a lawfully obtained public document; (4) issuing orders urging litigants before him to lobby for increased court time; and (5) personally soliciting campaign contributions. In the Matter of Nadeu (Maine Supreme Judicial Court June 20, 2017).
  • Based on a settlement agreement and stipulated findings of fact and conclusions of law, the Michigan Supreme Court suspended a judge for 6 months without pay and publicly censured him for sexually harassing his judicial secretary. In re Iddings (Michigan Supreme Court July 6, 2017).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct admonished a judge for (1) invoking her judicial title and position in a letter she wrote on behalf of her childhood babysitter to be filed in connection with a motion to vacate her conviction and (2) writing 2 affirmations on behalf of her son to be filed in the appellate division in connection with his criminal case. In the Matter of Ramirez, Determination (New York State Commission on Judicial Conduct May 4, 2017).
  • Based on the report of a referee following a hearing, the New York State Commission on Judicial Conduct censured a non-lawyer judge for seeking special consideration from court officials in connection with an acquaintance’s traffic ticket. In the Matter of Aluzzi, Determination (New York State Commission on Judicial Conduct June 26, 2017).

 

 

Throwback Thursday

25 years ago this month:

  • The Delaware Court on the Judiciary censured and removed from office a judge who, without first resigning, sought the endorsement of his party convention for the nomination for Governor of Delaware. In the Matter of Buckson, 610 A.2d 203 (Delaware 1992).
  • Approving a conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded and admonished a former judge for pulling down his pants and revealing his undergarments and portions of his bare buttocks in his office in the presence of a female clerk employee, a police officer, and an employee of the court, without invitation or forewarning; the Court also prohibited the former judge from serving as a judge for 8 years. In the Matter of Katic, 595 N.E.2d 259 (Indiana 1992).
  • The Nebraska Supreme Court removed from office a judge who (1) regularly conducted disposition hearings without providing for a verbatim record, contrary to previous opinions and to discourage appellate review; (2) improperly ordered parties in a case out of the courtroom, prevented the attorney from the department of social services from making a record and excluded her from meetings, and received information out of court that affected his decision; and (3) ordered law enforcement officers to take 2 juveniles into custody and place them in the custody of the county administrator to prompt the county board of commissioners to provide a county juvenile detention facility and in retaliation for a dispute over parking spaces. In re Staley, 486 N.W.2d 886 (Nebraska 1992).
  • Based on an agreed statement of facts and memoranda as to sanction, the New York State Commission on Judicial Conduct admonished a judge who, in court and to a newspaper reporter, made comments about the celebration of Christmas by the mother in a custody proceeding in which the litigants and their children were Jewish. In the Matter of Feiden, Determination (New York Commission on Judicial Conduct July 29, 1992).

 

 

A sampling of recent judicial ethics advisory opinions

  • A judge who presides in a high-volume court may discuss administrative issues with the attorneys who appear before her in annual or semi-annual meetings; the meetings should not include catered meals paid for by the attorneys, but the judge may host “brown bag luncheons” to which attorneys bring their own meals. New York Opinion 2017-24
  • A judge may attend a private organization’s diversity and racial equality seminar at his own expense. Florida Opinion 2017-10.
  • A judge may sponsor and participate in a public education program about the heroin epidemic, the Good Samaritan Law, and related Maryland law, with some conditions. Maryland Opinion Request 2017-13.
  • A judge may give a presentation on civil enforcement and related matters at a training conference for a sheriff’s association as long as he does not give advice on litigation strategy or comment on pending or impending cases. New York Opinion 2017-81.
  • A judge may speak to an audience of animal control officers about court procedures in dangerous-dog and unlicensed-dog cases, with some conditions. New York Opinion 2017-35.
  • A judge may organize a free community “Law Day” event at the library or historical society where volunteer attorneys would provide free 10-minute private consultations, with some conditions. New York Opinion 2017-30.
  • A judge should not give a baby gift to a lawyer who is appearing in a highly contested case pending before the judge or attend a baby shower given in the lawyer’s honor. Connecticut Informal Opinion 2017-1.
  • A judge may swear in the officers of a chamber of commerce at the organization’s annual installation dinner. Maryland Opinion Request 2017-5.
  • A judge may not allow his home to be part of a tour to raise funds for a charity. Maryland Opinion Request 2017-10.
  • A judge who is a board member of not-for-profit charitable and educational organizations that are not concerned with the law, the legal system, or the administration of justice may attend fund-raisers for the organizations even if a speaker points out the judge’s presence as long as the speaker also points out other prominent persons and identifies them by their honorifics.  Maryland Opinion Request 2017-14.
  • A judge may not participate in a university’s video profile series, published on the school’s web-site and social media channels, even if the videos are used for general campus promotion, but not for fund-raising, when each 2- to 3- minute video features a prominent alumnus discussing how undergraduate education helped him or her identify goals, aspire to a career, and achieve success; includes images of the university’s campus; and ends with the alumnus announcing the “tag line” that he or she “stands with” the school.  Massachusetts Opinion 2017-2.
  • A judge may not be a member of an ecclesiastical court or a hearing officer in a church-related disciplinary hearing. New York Opinion 2017-25
  • A judge may file a pro se answer in a real estate case in which she and her siblings are defendants but may not file an answer on her siblings’ behalf even though their interests are identical to hers. New York Opinion 2017-72.
  • A judge as administrator of a first-degree relative’s estate may act pro se at a closing for the estate’s real property. New York Opinion 2017-82.
  • A judge may serve on the board of directors of a non-profit organization that addresses issues of aging. South Carolina Opinion 6-2017.
  • A judge may not serve on the board of a charter school or of a non-profit organization that operates charter schools. California Formal Opinion 2017-11.
  • A judge may serve on a law section council of a general membership state bar association and participate in discussions and votes concerning proposed legislation. Illinois Opinion 2016-3.
  • A senior judge may be part of a team monitoring the Baltimore police department’s compliance with a consent decree between the U.S. Department of Justice, the mayor and city council, and the police department, with some conditions. Maryland Opinion Request 2017-8.
  • A judge must resign before becoming a candidate in a primary or general election for district attorney. North Carolina Opinion 2017-1.