Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for his method of handling the misdemeanor pretrial calendar, for leaving the courthouse prior to completion of the pretrial calendar once when no other judge was available to cover the calendar, and for occasionally running on the stairs near his chambers during his pretrial calendar. Inquiry Concerning Sheldon, Decision and order (California Commission on Judicial Performance October 23, 1998).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) inappropriate conduct towards his courtroom clerk and (2) giving his clerk $250 to donate to a candidate for non-judicial office. Public Admonishment of Hiber (California Commission on Judicial Performance October 23, 1998).
  • Adopting a consent agreement, the California Commission on Judicial Performance publicly admonished a judge who had appointed 2 attorneys who rented office space from him and 1 attorney who had a social relationship with him to represent criminal defendants in numerous cases. Inquiry Concerning Shook, Decision and Order Imposing Public Admonishment (California Commission on Judicial Performance October 29, 1998).
  • Adopting a consent agreement, the California Commission on Judicial Performance publicly admonished a judge for failing to rule in 7 cases within 90 days as required by law. Inquiry Concerning Rogers, Decision and Order Imposing Public Admonishment (California Commission on Judicial Performance October 29, 1998).
  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for (1) making comments about 2 pending cases to a newspaper reporter, (2) taking a straw poll of the courtroom audience regarding the guilt of a defendant, and (3) chastising a juvenile in the courtroom. In re Best, 719 So. 2d 432 (Louisiana 1998).
  • Affirming the findings of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge for first offense driving under the influence of intoxicating liquor. Commission on Judicial Performance v. Thomas, 722 So. 2d 629 (Mississippi 1998).
  • The New York State Commission on Judicial Conduct removed a judge who had failed to fulfill his statutory duties to report dispositions and remit court funds to the comptroller; failed to maintain a docket of motor vehicle cases; failed to maintain a docket of criminal cases; failed to maintain a cashbook; failed to issue duplicate receipts; and in 111 cases, failed to send fine notices to defendants who had pleaded guilty by mail, failed to schedule trial for defendants who had pleaded not guilty, and failed to suspend the driving privileges of defendants who had not answered summonses, paid fines, or appeared for trial. In the Matter of Sohns, Determination (New York State Commission on Judicial Conduct October 19, 1998).
  • Based upon an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge who had pleaded guilty to driving while ability impaired. In the Matter of Burns, Determination (New York State Commission on Judicial Conduct October 20, 1998).
  • The New York State Commission on Judicial Conduct publicly censured a judge who had reached out to have the criminal charges against a family friend brought before him, knowing that he should not handle the case, then granted a favorable disposition. In the Matter of Jarvis, Determination (New York State Commission on Judicial Conduct October 20, 1998).

 

The difference between reprimand and removal

On September 21, the New Jersey Supreme Court publicly reprimanded a judge who had involved herself in the scheduling and processing of a friend’s custody case.  In the Matter of Wright, Order (September 21, 2018).  (The Court does not describe the judge’s conduct; this summary is based on the presentment of the Advisory Committee on Judicial Conduct.)

On September 26, the New Jersey Court removed a judge who had involved herself in a former intern’s custody dispute.  In the Matter of DeAvila-Silebi, Order (September 26, 2018).  (The Court’s order does not describe the judge’s misconduct; this summary is based on the report of a 3-judge panel.)

The imposition of drastically different sanctions in 2 cases involving improper use of influence is attributable in part to a difference in the nature and extent of the misconduct.

Judge Wright had escorted a friend seeking temporary custody of his grandson to the court’s intake office, talked to court personnel to ensure he had the right forms, asked the judge on emergent duty about the schedule, and then told a staff member that her friend could return on Monday; the staff member advised the judge that she would bring the friend to her desk so he could complete the application.

In contrast, Judge DeAvila-Silebi called the police the day before Mother’s Day and told a sergeant she wanted an officer to accompany a mother to retrieve her child.  She identified herself as the emergent duty judge and explained that she had received a phone call from an attorney who had filed an emergent application on behalf of a client and that she had seen the order indicating that the mother was supposed to have the child that weekend.  The police department dispatched an officer with the mother to the home of the child’s paternal grandmother; the officer took the 5-year-old boy from his grandmother and returned to police headquarters with the child and the mother, after which the mother left with the child.  The father appeared at police headquarters approximately 2 hours later, irate and questioning why police had removed the child.

The panel also found that Judge DeAvila-Silebi had “demonstrated dishonesty, perversion of her judicial authority and betrayal of the public trust” by making numerous misrepresentations to the police department.  For example, contrary to what she told the police sergeant, she had not received a phone call from an attorney, no emergent application had been filed, and she had not seen the court order regarding parenting time.

Probably the biggest difference that took the Court from reprimand to removal (the intermediate sanctions of censure and suspension without pay were also available) were the aggravating factors in the second case, particularly the judge’s “less than truthful” testimony before the Advisory Committee on Judicial Conduct.

In Wright, there were no aggravating factors, and the mitigating factors included her sincere remorse and contrition, which had demonstrated to the Committee that the likelihood of her repeating the misconduct was “nearly nonexistent.”

In contrast, in DeAvila-Silebi, the judge “not only failed to acknowledge her wrongdoing or express remorse or contrition” but “displayed additional dishonesty and transcended her right to present a defense.”  Most significantly, the panel found that, despite her repeated denials, the judge did know the mother, who had been assigned to her as an intern for several months.  In fact, the judge had continued to have contact with her after the internship ended, including exchanging texts just before and after the judge intervened with the police.  Phone bills produced by the judge had obviously been altered, which was evident when compared with the bills provided by Verizon.

The panel explained that the judge had “constructed a defense predicated on the false claim that she received a call from an attorney or law enforcement agency requiring her emergent intervention to enforce another court’s order” and “perpetuated that falsehood throughout the proceedings before the ACJC, embellishing or revising it as necessary whenever she became aware of contrary evidence” until “the entire house of cards crumbled” when the “telephone records irrefutably demonstrated the falsity of respondent’s assertions.”  The panel emphasized that the judge’s “’disturbing’ decision to perpetuate a defense without any ‘compunction about being less than credible’ as the investigation of her conduct continued, ‘evidence[s] that [she] lacks the honor and integrity demanded of a judge.’”

Throwback Thursday

25 years ago this month:

  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge who had been charged with misdemeanor driving while under the influence of alcoholic beverages and with careless driving for being at fault in an accident. Inquiry Concerning Gloeckner, 626 So. 2d 188 (Florida 1993).
  • The New York State Commission on Judicial Conduct publicly censured a judge for (1) summarily convicting and jailing 2 men for criminal contempt without affording them procedural due process and without a factual or legal basis, (2) after agreeing to release a defend­ant, re-committing him based on ex parte information, and (3) immediately after arraignment, accepting a guilty plea from a 16-year-old unrepresented defendant whose mental stability he questioned, refusing to set bail as required by law, and denying repeated requests to allow the defendant to withdraw the plea and go to trial, even though the prosecutor consented. In the Matter of Meacham, Determination (New York State Commission on Judicial Conduct October 28, 1993).
  • The South Carolina Supreme Court publicly reprimanded a former magistrate who had pled nolo contendere or guilty to 6 counts of misconduct in office, 2 counts of assault and battery of a high and aggravated nature, and 1 count of assault of a high and aggravated nature. In the Matter of Lee, 437 S.E.2d 85 (South Carolina 1993).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for writing a letter on official stationery and an affidavit on behalf of a child living in his home, a minor of no relation, to the American Schools of Correspondence, representing himself as a judge in the documents, and providing legal representation for the minor in the documents. In re Moynihan, Stipulation and order (Washington State Commission on Judicial Conduct October 1, 1993).
  • Pursuant to a stipulation and agreement with a judge, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for using his chambers telephone to make numerous long distance phone calls for personal matters and for having court personnel prepare his personal correspondence using county equipment and supplies on 3 to 5 occasions over 8 years. In re Eiesland, Stipulation and order (Washington State Commission on Judicial Conduct October 1, 1993).

A sampling of recent judicial ethics advisory opinions

  • A judge is not disqualified from matters involving a credit union where she is a member and account holder. New York Opinion 2018-44(A)
  • A judge whose spouse and the construction company he owns are represented by a large law firm is not disqualified from unrelated cases in which that law firm appears. Florida Opinion 2018-22.
  • A judge may preside in a criminal matter involving disruptions at a zoning board by a defendant who has also filed a notice of claim against the town for damages arising from the same incident even though the judge is a resident and taxpayer of the town. New York Opinion 2018-86.
  • A judge may continue to preside in a case after reporting one of the attorneys to a bar association’s lawyer assistance committee. A judge’s disciplinary responsibilities apply to attorney competence as well as misfeasance, malfeasance, and non-feasance.  New York Opinion 2018-58.
  • At the request of a police department’s inspector general, a judge may forward published decisions that appear to involve corrupt or perjured police officers to an appropriate investigative authority, but may decline to do so absent a legal duty. New York Opinion 2018-28.
  • A judge may not participate in a school’s truancy intervention court in his courtroom even if he does not wear a robe and is not the only person making determinations. New Mexico Opinion 2018-5.
  • A judge may write a letter to state agencies with her observations that a state center for the developmentally disabled is no longer suited to house inmates, many of whom are judicially committed for criminal offenses, and requesting action to provide a safer, more secure facility. A judge may inform the legislature of the importance of a center where parents have monitored visitation with their children.  If a judge is concerned that the current law on the apportionment of fault in negligence cases inhibits settlements and increases litigation, the judge may explain to a legislative committee the impact pending legislation on the issue will have on court operations.  A judge may not appear before a legislative committee to support a bill that would increase penalties for domestic violence crimes.  A judge may testify before a county legislative body about the need for indigent legal services in the county.  A judge may make a public service television announcement to encourage people to become foster parents.  California Judges Association Opinion 75 (2018).
  • A judicial official may serve as the president of a local chapter of a college’s alumni association. Connecticut Informal Opinion 2018-15.
  • A judicial official may serve on the board of trustees of a local university. Connecticut Informal Opinion 2018-8.
  • A judge who wrote a book on methods to keep kids out of trouble may speak at a library on the east coast and accept reimbursement for her travel expenses. A judge may attend an economic cooperation and development forum in South Korea but may not accept reimbursement for travel expenses and must attend on his own time.  California Judges Association Opinion 75 (2018).
  • A judge may not publish a scholarly article that is highly critical of the state correctional officers association, the recent administrations in Sacramento, and the “tough on crime” movement. A judge may not sit on an advisory board that distributes grant money to police departments for anti-terror equipment.  California Judges Association Opinion 75 (2018).
  • A newly appointed judge who sits in a misdemeanor calendar may continue to teach a class to at-risk juveniles. California Judges Association Opinion 75 (2018).
  • A judicial official may provide training in collaborative divorce through the Connecticut Council for Non-Adversarial Divorce and receive compensation. Connecticut Informal Opinion 2018-11.
  • A judge may assist a high school team learn the skills necessary to compete in a mock trial competition. New Mexico Opinion 2018-7.
  • A judge may accept a discount to attend a mediation program at Pepperdine University, a discounted membership in California Women Lawyers, and payment of national and local membership dues for the American Board of Trial Advocates offered to all judges by the local chapter. A presiding judge may not authorize a publisher to supply each judge on the court with a free subscription to a local business-type magazine.  California Judges Association Opinion 75 (2018).
  • A judicial official may resell to a commercial ticket reseller or to friends sporting event tickets for more than what he paid, subject to conditions. Connecticut Informal Opinion 2018-9.
  • A judicial official who holds a real estate broker’s license may not receive referral fees consistent with the real estate industry practice even if she connects buyers and sellers. Connecticut Informal Opinion 2018-13.
  • If a municipal parade is a ceremonial community event, not a fund-raiser or a political event, a judicial official may march in the parade with other former municipal officials if her name is not used in connection with soliciting sponsors, if she does not permit any banner or sign displaying her name and office to appear on floats or vehicles promoting political parties or candidates, and if she does not appear with political candidates in the parade or on their floats/vehicles. Connecticut Informal Opinion 2018-12.
  • A judicial candidate may use or re-publish a news report on his opponent’s inappropriate relationship with a legal client, which the opponent has reportedly confirmed. Florida Opinion 2018-12.

 

Throwback Thursday

5 years ago this month:

  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission issued an informal adjustment to a judge for using her title in a threatening text to the ex-husband of a family member. Letter of Informal Adjustment (Hendricks) (Arkansas Judicial Discipline and Disability Commission September 20, 2013).
  • The Mississippi Supreme Court publicly reprimanded a judge and fined him $1,000 for a verbal altercation with a probation officer, including threatening to hold her in contempt of court and having police officers escort her from the clerk’s office. Commission on Judicial Performance v. Fowlkes, 121 So. 3d 904 (Mississippi 2013).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for acting as an attorney for an alleged rape victim and her family after presiding over proceedings in the underlying criminal case. In the Matter of Fleming, Determination (New York State Commission on Judicial Conduct September 30, 2013).
  • Accepting an agreement for discipline by consent in an attorney discipline proceeding, the South Carolina Supreme Court publicly reprimanded a former magistrate for, at the conclusion of a bond court session, kissing the clerk who had been working with him on the forehead. In the Matter of Hatcher, 748 S.E.2d 220 (South Carolina 2013).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for magistrating a woman with whom he had a romantic relationship. Public Reprimand of Nicholds (Texas State Commission on Judicial Conduct September 17, 2013).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for an ex parte communication with an attorney about a contested issue in the attorney’s suit for fees against a former client, which resulted a judgment in favor of the attorney without the former client being given the right to be heard. Public Admonition of Koetter (Texas State Commission on Judicial Conduct September 17, 2013).

 

“We do that all the time” is no excuse

Agreeing with the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for (1) ordering the search of a litigant in open court and the seizure of money found on him; (2) misrepresenting facts about his campaign opponent; (3) publicly pledging during a candidate forum to hold no statute unconstitutional; and (4) holding first appearance hearings without counsel present the Saturday of Memorial Day weekend during his re-election campaign.  Inquiry Concerning DuPont (Florida Supreme Court September 6, 2018).

Approximately 4 months into the judge’s first term, during a hearing involving child support, the father explained that he had not completed a parenting class because he did not have the necessary funds.  The judge then ordered his bailiff to search the husband for money.  The search yielded $180, which the man claimed he was holding for someone else.  The judge immediately turned the $180 over to the mother, ordering that it be credited to outstanding child support.

Law enforcement officers reported the search to Judge Terrill LaRue, then administrative judge for the circuit.  Thinking that the judge had simply made a rookie mistake, Judge LaRue explained to Judge DuPont that he had employed “a very poor procedure” that should not be used again.  Judge LaRue was taken aback when Judge DuPont insisted, “I can do that,” and “we do that all the time in St. Johns County.”

During the discipline proceedings, the judge argued that the search and seizure was appropriate because other judges in the circuit employed similar techniques; he testified that he had directed several such searches previously, but did not do so again after this incident.  Emphasizing that the search and seizure was not forceful, he stated that he had been acting in the best interest of children who are in need of support.

The Court concluded that the judge’s “motives in conducting the search may have been ‘pure’ as he claims,” but “condemned such unlawful, judicially ordered seizures in open court.”  The Court noted it had sanctioned similar conduct in a previous case, referring to Inquiry Concerning Turner, 76 So. 3d 898 (Florida 2011).  In that case, the Court had removed a judge for, in addition to other misconduct, offsetting a juvenile’s court costs in exchange for the juvenile’s earring.  While questioning a juvenile appearing before him about the juvenile’s failure to pay costs, the judge noticed that the juvenile was wearing a “nice diamond earring.”  When asked, the juvenile said that it was fake and had cost $7.  The judge offered to give the juvenile a credit of $10 toward his court costs in exchange for the earring.  When the juvenile agreed, the judge instructed the deputy to take the earring from the juvenile and stated that he would credit $10 toward the juvenile’s outstanding court costs.

The Court held that, “although minor compared to his other transgressions, Judge Turner’s inappropriate conduct during a court-cost hearing . . . is further evidence of Judge Turner’s defective judgment. . . .  The courtroom is not a forum in which defendants may be required sua sponte by a judge to trade items of clothing or personal property in order to offset the costs assessed against them pursuant to our rules of court.”

The North Carolina Supreme Court has also sanctioned a judge for ordering a bailiff to search a husband’s wallet and turn his money over to the wife.  In re Badgett, 666 S.E.2d 743 (North Carolina 2008).

Following a hearing in which Floyd Carreon was pro se, the judge indicated that he would grant the domestic violence order of protection against Mr. Carreon sought by Kathy Carreon.  Mrs. Carreon then stated that she had no money, was without electric power, and needed transportation.  The complaint had not sought spousal support, but, without making any findings, the judge ordered Mr. Carreon to pay $150 a week to Mrs. Carreon.

After Mr. Carreon objected, the judge asked how much money he had on his person.  Mr. Carreon replied that he had $140.  The judge then ordered the deputy sheriff to search Mr. Carreon’s wallet; when the deputy hesitated, the judge repeated his order.  The deputy took Mr. Carreon’s wallet, counted his money, and reported that the wallet contained $140, a driver’s license, and a Social Security card.  The judge directed the sheriff’s deputy to turn over Mr. Carreon’s cash to Mrs. Carreon.

In the discipline proceedings, the Court concluded that the judge misused his judicial power by awarding spousal support when none had been requested and by ordering the bailiff to search Mr. Carreon’s wallet and turn his money over to Mrs. Carreon.  The Court stated that it was telling that the deputy clerk, deputy sheriff, and plaintiff’s attorney had recognized that the judge had violated Mr. Carreon’s rights, while the judge, “the only individual in the courtroom who had sworn to justly adjudicate cases involving constitutional rights of our citizens, was the person who deprived Mr. Carreon of his rights without regard to notions of fairness and due process.”  The Court censured and removed the judge for this and other misconduct.

In the DuPont case, the judge had admitted only to “mistakes” and “carelessness” in making representations about his opponent and denied “knowingly” or intentionally disseminating false information, claiming he relied on a campaign consultant and opposition researcher.  However, the Court concluded that, not only did the judge “fail to verify the accuracy of the information he was provided as was his obligation, but it also appears that Judge DuPont actually manufactured some of the facts he disseminated in relation to that information.”  The Court stated that the judge’s assertion that he had no evil intent was irrelevant.

During a televised judicial candidate forum, the moderator asked each candidate to describe their judicial philosophy.  The judge responded:

I know that this sounds cliché, but-uh, my philosophy is to not legislate from the bench.  I don’t believe that the Constitution is living and breathing.  And I don’t believe that it evolves on its own.  I believe that our founders knew exactly what they were doing when they created it—and that they created a mechanism whereby it can be changed.  And to be quite honest with you, uh, there have been numerous [sic] where I have actually been asked by attorneys to find that [a] statute is unconstitutional.  I have refused to do that, because my thought process is there’s another way to do that.  If they don’t like the decision they can appeal it, and it can start going up the food chain to do it that way.  But even though I’ve been asked to find a statute unconstitutional as a sitting judge, I have refused to do so.  Because again, it’s not my job to legislate from the bench.

The Court rejected the judge’s argument that he had not meant that he would never find a statute unconstitutional, only that he does not go into a case looking to overturn a statute but instead presumes statutes are constitutional.  The Court stated that the judge “made the statement in a very public forum and failed to take any steps to correct the statement even after he realized that he ‘screwed up.’”

On May 26, 2016, at the judge’s direction, his judicial assistant notified necessary personnel, including attorneys from the state attorney’s and public defender’s offices, that the time for first appearances on Saturday and Sunday had been moved up from 9 a.m. to 7 a.m. during the upcoming Memorial Day weekend.  The time was changed due to the judge’s campaign-related obligations that weekend.

On Saturday, with no notice to anyone, the judge began the 7 a.m. first appearance hearings at 6:30 a.m. and conducted them without counsel present.  The judge admitted that he ignored the rule that requires the attendance of counsel at first appearance proceedings.  He was unable to explain why he started the proceedings early and admitted that he committed misconduct by holding first appearances without counsel present.

Throwback Thursday

10 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for driving a vehicle in a reckless manner while under the influence of alcohol and with a blood alcohol level of approximately 0.09%. Public Admonishment of Guy-Schall (California Commission on Judicial Performance September 5, 2008).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for denying motions for disqualification in a murder case without giving counsel a reasonable time to prepare the motions in writing and threatening counsel with contempt. Inquiry Concerning Aleman, 995 So. 2d 395 (Florida 2008).
  • Approving the finding and recommendation of the Judicial Qualifications Commission to which the judge stipulated, the Florida Supreme Court publicly reprimanded a judge for calling the police to secure a defendant’s release in response to a phone call from the defendant’s brother, with whom the judge had previously practiced law. Inquiry Concerning Maxwell, 994 So. 2d 974 (Florida 2008).
  • Pursuant to the judge’s consent, in lieu of filing formal disciplinary proceedings, the Indiana Commission on Judicial Qualifications publicly admonished a judge for accusing a prosecutor of using drugs. Public Admonition of Jessup (Indiana Commission on Judicial Qualifications September 18, 2008).
  • Based on a stipulation and joint recommendation, the Mississippi Supreme Court Commission on Judicial Performance suspended a judge from office for 60 days without pay, publicly reprimanded him, and fined him $2,000 for engaging in ex parte communications with members of the community regarding removal of part of a fence around a cemetery plot, threatening the person who removed the fence pieces, and, although there were no criminal or civil charges, ordering that person to return the fence pieces to the cemetery. Commission on Judicial Performance v. Carr, 990 So.2d 763 (Mississippi 2008).
  • Based on joint stipulations of fact, the Oklahoma Supreme Court disbarred a former judge for (1) submitting travel claims that misrepresented that his personal travel was for court business; (2) contacting a judge who would be sentencing his son, requesting department of corrections employees to testify on his son’s behalf, and writing a letter on court letterhead that criticized a probation officer who wrote an unfavorable report in his son’s case; (3) submitting requests for reimbursement of personal expenses that should not have been paid by the state; and (4) interfering with the arrest on drug charges of his assistant, with whom he was involved in a romantic relationship. State ex rel. Oklahoma Bar Association v. Lile, 194 P.3d 1275 (Oklahoma 2008).
  • The Oklahoma Supreme Court disbarred a former judge based on his conviction on 4 felony counts of indecent exposure for acts in the courthouse while he was a district judge. State of Oklahoma ex rel. Oklahoma Bar Association v. Thompson, 194 P.3d 1281 (Oklahoma 2008).
  • The South Carolina Supreme Court publicly reprimanded a former judge for (1) referring to his judicial office in a dispute with a motorist and (2) his actions during a foreclosure action on his residence. In the Matter of Anderson, 668 S.E.2d 413 (South Carolina 2008).
  • Accepting the findings and recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court publicly reprimanded a former judge for denying due process to defendants in 3 criminal cases in flagrant disregard of the law. State Bar Association v. Goldie, 894 N.E.2d 1226 (Ohio 2008).