Providing feedback to attorneys

In response to an inquiry, the California Committee on Judicial Ethics Opinions identified numerous restrictions on judges’ giving feedback about an attorney’s courtroom performance at the request of the attorney or the attorney’s supervisor, although it did not state that such feedback is always prohibited.  California Formal Opinion 2021-18.

The opinion stated that judicial officers may not provide feedback about attorney courtroom performance:

  • If the feedback is immediately after a hearing or trial while the case may be or is being appealed, to prevent ex parte communications;
  • If the feedback would constitute a public comment about a pending or impending proceeding or a non-public comment that may substantially interfere with a fair trial or hearing;
  • If the feedback would exhibit “favoritism or otherwise undermine[] the judicial officer’s impartiality;”
  • If the feedback would suggest that “the requesting attorneys have a special relationship with the judicial officer . . . ;” or
  • If the feedback would constitute “coaching.”

To avoid ex parte communications, the Committee stated that a judge may not “at the close of a trial or hearing” comment on an attorney’s performance in that trial or hearing because the case would still be pending and subject to appeal.  It explained that, “however well-intentioned, commenting on an appearing attorney’s courtroom performance runs the risk of discussing the facts, merits, or status of a particular case or matter.  Even a seemingly innocuous comment may interfere, intentionally or unintentionally, with one party’s decisionmaking process or strategy on appeal.”

Further, the opinion concluded that, even if the feedback is provided “in a nonpublic setting, such as a private conversation in chambers or by electronic means, there is a risk that any discussion of case specifics may interfere with a fair trial or hearing,” violating the prohibition on commenting on pending cases.  Thus, the Committee advised, “when providing solicited feedback about courtroom performance directly to attorneys or their supervisors, judicial officers must ensure that their comments do not involve pending proceedings in their own or any other court.”

The opinion also emphasized that judicial officers “must ensure that the substantive nature and tone of the feedback would not suggest to an objective observer that the judicial officer has a particular affinity or dislike for certain attorneys or parties.”  Thus, it explained:

  • “The content of feedback should be neutral and not disparage any other attorneys or parties.”
  • “The feedback should be equally applicable to and appropriate to say in the presence of attorneys on opposing sides of the same case.”
  • Judicial officers must “make it clear that they are equally available to provide such feedback to all parties upon request,” noting that “if a judge provides feedback at the request of one party, the opposing party may not be aware that the judge is either providing or available to provide this feedback.”
  • A judicial officer should be equally available to provide feedback to attorneys “representing various interests or viewpoints” and should not provide feedback repeatedly only “to one side of the criminal bar to the exclusion of the other.”
  • A judge should not provide feedback only “to a law office with which the judicial officer was previously affiliated.”

The Committee emphasized that judicial officers must ensure that their feedback does not cross the line into coaching because coaching “suggests that a judicial officer may be biased in favor of, or have a special relationship with, the attorneys being coached,” particularly if the attorneys repeatedly appear before the judge.  The opinion distinguished between impermissible coaching on “strategies or tactics that would provide an advantage before a particular judge or court” and the permissible provision of “neutral instruction on substance, procedure, or technique.”  As examples of topics judges may discuss at conferences, for example, the opinion listed “procedures, trial or appellate techniques, black letter law, best practices, tips to avoid common errors, and proper courtroom protocol.”  As examples of discussion that crosses the line into coaching, the opinion listed “topics or strategies that favor a particular side in litigation, such as how to select a pro-plaintiff or pro-defense jury or the ideal demeanor for a police witness in a criminal case.”  The Committee also noted that “coaching may also suggest that a judicial officer is providing legal advice to an attorney.”

Further, the Committee advised that “judicial officers should avoid acting as evaluators of attorney job performance” for promotion or discipline purposes, noting that there are “more effective ways for supervisors to evaluate employees,” particularly as judicial officers’ feedback would have to be delayed until after the close of all proceedings.  The opinion described the “significant pitfalls” for judges’ participating in such evaluations.

  • After providing feedback to a supervisor, a judicial officer loses control over “the content of the information and the manner in which it may later be relayed to others.”
  • “Providing feedback in the context of an employment evaluation may put the judicial officer in the position of becoming a percipient witness in the event of an employment dispute.”

Throwback Thursday

10 years ago this month:

  • The Alabama Supreme Court affirmed the decision of the Court of the Judiciary publicly censuring a former judge and barring him from office for his treatment of litigants and his practice of sentencing to jail defendants who pleaded not guilty early in the docket to discourage other defendants from seeking a trial.  Steensland v. Judicial Inquiry Commission, 87 So. 3d 535 (Alabama 2012).
  • The Alabama Court of the Judiciary prohibited a former judge from serving as a judge or exercising any judicial authority in any case in any court in the state based on the judge’s stipulation that the Judicial Inquiry Commission could prove by clear and convincing evidence that she had failed to avoid the appearance of impropriety by failing to recuse herself from a child custody dispute after the Commission served her with a complaint filed against her by the mother.  In the Matter of Warner, Final Judgment (Alabama Court of the Judiciary January 27, 2012).
  • The California Commission on Judicial Performance removed a judge for diverting to his own court and acting on traffic tickets issued to his son-in-law, friends, and the pastor of his church, improperly waiving or suspending all or practically all fines and fees or granting a continuance.  Inquiry Concerning Stanford, Decision and Order (California Commission on Judicial Performance January 11, 2012).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a non-lawyer judge for notarizing an act of donation purporting to transfer immovable property to his son and daughter-in-law without witnessing the donor execute the document and without the legal authority to notarize the document.  In re Williams, 85 So. 3d 5 (Louisiana 2012).
  • Adopting the recommendation of the Judiciary Commission based on a stipulation, the Louisiana Supreme Court publicly censured a judge for contacting another judge and an assistant district attorney for assistance in getting an order of protection for his niece and giving incomplete and misleading responses in the Commission investigation.  In re Burgess, 85 So. 3d 604 (Louisiana 2012).
  • Adopting the findings of fact and recommendation of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge from office for (1) dismissing cases and inappropriately disposing of cases without holding hearings and without notice to or the authorization of the prosecuting attorney, including fixing traffic citations issued to himself, his spouse, and his staff; (2) preventing the transmission of or altering court information that was legally required to be transmitted to the Secretary of State; (3) ex parte communications; (4) failing to follow plea agreements; (5) failing to promptly dispose of the business of the court; (6) interfering with a landlord/tenant case assigned to another judge; and (7) making false statements under oath during the Commission investigation.  In re Justin, 809 N.W.2d 126 (Michigan 2012).
  • Based on an agreed statement of facts and joint recommendation, the Mississippi Supreme Court suspended a judge for 30 days without pay, publicly reprimanded him, and fined him $2,000 for interfering in cases not pending before him, engaging in ex parte communications, and dismissing citations for no proof of liability insurance when the defendants supplied proof of insurance obtained after the fact.  Commission on Judicial Performance v. Thompson, 80 So. 3d 86 (Mississippi 2012).
  • The New York State Commission on Judicial Conduct removed a non-lawyer judge for (1) accepting a plea from an unrepresented defendant whose ability to understand the proceedings was impaired by alcohol and (2) holding 4 defendants in summary contempt without complying with procedures required by law.  In the Matter of Feeder, Determination (New York State Commission on Judicial Conduct January 31, 2012).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for driving while intoxicated.  In the Matter of Apple, Determination (New York State Commission on Judicial Conduct January 31, 2012).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for unlawfully issuing orders of protection in a neighborhood dispute based on ex parte communications and even though there was no pending criminal action.  In the Matter of Curtis, Determination (New York State Commission on Judicial Conduct January 31, 2012).
  • Pursuant to an agreement for discipline by consent, the North Dakota Supreme Court publicly censured a judge for a pattern of delay.  Disciplinary Action against Hagar, 810 N.W.2d 338 (North Dakota 2012).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for (1) threatening to handcuff and arrest a victim/witness; (2) sentencing a defendant for an uncharged offense without formally appointing counsel; and (3) revoking probation for 3 individuals without a hearing or appointing counsel.  Letter to Moon (Tennessee Court of the Judiciary January 3, 2012).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for twice abusing the contempt power.  Jackson, Letter of Reprimand (Tennessee Court of the Judiciary January 27, 2012).

What judges said that got them in trouble in the second half of 2021: Part 2

What judges said that got them in trouble in the second half of 2021: Part 1

Off-the-bench

  • “Incidentally, [Mr. S.] has a reputation for truth, honesty, reliability and trustworthiness, and the court even waived bond because of this and its trust of [Mr. S.];” and “I am aware of the fact that there is a claim in New Jersey that [Mr. S.] has made fraudulent conveyances of his mother’s money.  THIS IS A COMPLETE AND UNADULTERATED LIE, AND COMPLETELY UNTRUE.  There is NO VALIDITY TO THAT STATEMENT AT ALL.”  Judge in certification submitted in litigation pending in the New Jersey.  In the Matter of Johns, 864 S.E.2d 546 (South Carolina 2021) (18-suspension without pay for this and other misconduct).
  • “We have over forty children in need this year.  Please help us meet our goal of bringing a Magical Christmas to each of these children.  We can only do this through donations. . . .  Santa will arrive on schedule this year!”  Magistrate-elect who was former sheriff in newspaper ad.  Public Admonishment of Headley (West Virginia Judicial Investigation Commission December 15, 2021).
  • “[I might have to] let it ride.”  Judge about his failure to complete any of his required judicial education for several years.  Public Admonition of Valdez (Texas State Commission on Judicial Conduct October 29, 2021).

On social media

  • “Hey come down to visit today or soon.  I may have an ‘Offer you can’t Refuse!!’”  Judge in private Facebook message to court reporter.  Disciplinary Counsel v. Berry, Order (Ohio Supreme Court November 3, 2021) (6-month suspension without pay, stayed with conditions, for this and other inappropriate communications with a court reporter on Facebook and by text and phone calls).
  • “For my birthday this year, I’m asking for donations to American Red Cross.  I’ve chosen this nonprofit because of food, water, and much more provided for those affected by Hurricane Florence in NC & SC.”  Judge in Facebook post.  In the Matter of Johns, 864 S.E.2d 546 (South Carolina 2021) (18-suspension without pay for this and other misconduct).
  • “When stealing stealth is key.  You want to blend in with your surroundings;” “You and your 5’10 sister walk in [Walmart] with green hair and green toenails and green flip flops that smack the back of your feet with every step you make and you don’t blend in and you are caught with three steaks shoved into your pants.  You forgot to be stealth;” “Remember people, the goal of criminal and bad behavior is to get away with it;” “screaming and cursing and fighting in front of police officers 10 out of 10 times is detrimental to ones [sic] freedom;” and it is “downright damn humiliating when [police are] pulling crack from your crack!  Find someplace else to hide your stash.”  Judge providing “legal tips” on Facebook.  Webb (Tennessee Board of Judicial Conduct November 5, 2021) (public reprimand for this and other misconduct).
  • “Well damn!  Give me a black hat and a black horse and call me a desperado, I feel like I was in [sic] just busted.”  Judge on Facebook after newspaper reported on the second suspension of his law license for failing to comply with continuing legal education requirements.  Webb (Tennessee Board of Judicial Conduct November 5, 2021) (public reprimand for this and other misconduct).
  • I receive the phone call early this morning for an inquest.  It’s very hard when it’s a friend, as I still have to do my job.  Now sitting outside the house in my car.  I’m finding it really hard not to break down.  This world lost a GREAT WOMAN today in Bastrop as God has taken another angel too add to the kingdom that awaits us all.  Rest in Peace Kat Stewart Handy.”  Judge in Facebook post after conducting the inquest of a friend.  Public Reprimand of Thomson (Texas State Commission on Judicial Conduct October 29, 2021).
  • “Scientology is not a church.  It is an evil scam.”  Judge commenting on Facebook about an article she shared titled “Scientologist’s Facilities Closed After Police Find People Held Prisoner Inside.”  Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).
  • “How to carry kids across the border . . . .”  Title of book the Looney Tune character Wily E. Coyote was reading before lighting a fuse on a rocket to which Dora the Explorer, a Hispanic cartoon character, was tied in a meme a judge posted to Facebook.  Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).
  • “[George Gascón] took an oath to uphold and defend the constitution of the state of California …  He is blatantly violating Section 28(f)(4) in dismissal of any prior enhancements.”  Judge in post on Facebook group called “Recall George Gascón,” referring to the new county district attorney.  In the Matter Concerning O’Gara, Decision and order imposing public admonishment (California Commission on Judicial Performance September 14, 2021) (admonishment this and other comments on social media).
  • “There’s 3.2 mil AR15’s in the US per Slate.com & about 12 attacks using them.  Why punish other 3,199,988?”  Judge on Twitter.  In the Matter Concerning O’Gara, Decision and order imposing public admonishment (California Commission on Judicial Performance September 14, 2021) (admonishment for this and other comments on social media).
  • “Like.”  Judge on Twitter to tweets such as, “I don’t approve of storming the Capitol but isn’t it a fact that if Antifa and BLM did it, the media would be in raptures about the passionate demonstration of commitment to racial justice?”; and “Liberal media pundits want you to think referring to the coronavirus as the ‘Wuhan’ or ‘Chinese’ virus is racist;” and “#FreeLouieCK.”  In the Matter Concerning O’Gara, Decision and order imposing public admonishment (California Commission on Judicial Performance September 14, 2021) (admonishment for this and other comments on social media).

In campaigns

  • “At the end of the day, I want everyone who leaves my courtroom to know that they have been heard.”  Judge in campaign ad on Facebook with photo of the judge in his judicial robe standing behind the bench in his courtroom.  Inquiry Concerning Hatfield (Kansas Commission on Judicial Conduct July 16, 2021) (cease and desist order for this and other campaign materials).
  • “Hi everybody, Watson here.  I don’t really fill this seat well but ya know who does?  My human Judge Sean Hatfield.  Thank you for supporting him.  You can continue to support my human by making sure you’re registered to vote!  The last day to register is October 13th.  You can find everything you need at this website.  (It said it had cookies but I didn’t see any- howrude!)”  Judicial campaign ad on Facebook with his dog sitting behind the bench.  Inquiry Concerning Hatfield (Kansas Commission on Judicial Conduct July 16, 2021) (cease and desist order for this and other campaign materials).
  • “Socialist James Thompson.”  Judge in campaign flyer creating false impression of opponent’s political position.  Inquiry Concerning Hatfield (Kansas Commission on Judicial Conduct July 16, 2021) (cease and desist order for this and other campaign materials).
  • “Robert Francis O’Rourke.  #fakemexican.”  Judge on Facebook about then-candidate for U.S. Senate, Beto O’Rourke.  Public Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).
  • “Gun grabber” and a “RINO.”  Judge on Facebook about another judge’s campaign opponent.  Public Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).
  • “Like.”  Judge’s reaction to a Facebook post about a campaign event for another judge.  Public Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).
  • “Finally Gone!!!” and 2 laughing emojis.  Judge in a Facebook post about a state representative’s loss in a primary and reacting to the comment, “I’m sure [the former representative] will find a job, there are lots of local opportunities in both the hotel and food service industry.”  Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).

Throwback Thursday

20 years ago this month:

  • Granting the application of the Judicial Qualifications Commission, the Iowa Supreme Court publicly reprimanded a judge who gave permission for a campaign sign supporting the sheriff to be placed in the yard outside his home and telling the Commission it was his wife who had authorized the sign.  In the Matter of McCormick, 639 P.3d 735 (Iowa 2002).
  • Based on the findings, conclusions, and recommendation of the Commission on Judicial Qualifications based on stipulations, the Kansas Supreme Court publicly censured a judge for allowing his administrative assistant to work at a second job at the state turnpike authority at times that conflicted with the performance of her judicial branch duties and signing time sheets that falsely represented that she was working at her judicial branch employment when she was working at her second job; the Court also ordered the judge to repay $1,047.95 to the state and to write a letter to be mailed to all judges in the state judicial system apologizing and urging them to pay attention to administrative rules and regulations.  In the Matter of Groneman, 38 P.3d 735 (Kansas 2002).
  • Pursuant to the recommendation of the Judicial Tenure Commission to which the judge consented, the Michigan Supreme Court suspended a magistrate for 30 days without pay and publicly censured him for advising defendants found guilty of traffic citations to purchase tickets to the Detroit Fire and Police Field Day from a police officer sitting in the courtroom.  In re Shannon, 637 N.W.2d 503 (Michigan 2002).
  • Based on the judge’s consent, and recommendation of the Judicial Tenure Commission, the Michigan Supreme Court suspended a judge from office for 90 days without pay and publicly censured him for (1) altering a screen saver message on a subordinate’s computer screen that read “Ginger Rogers did everything Fred Astaire did, but backwards and in high heels,” to read “Ginger Rogers did everything Fred Astaire did, but on her back and in high heels,” or words to that effect; (2) placing 142 calls over 5 days on a court cell phone to try to reach his then-wife without reimbursing the court; (3) improperly using court equipment, supplies, and personnel for purposes related solely to his judicial retention campaign; (4) verbally confronting the manager of a theatre, identifying himself as a district court judge, and being uncooperative when he was asked to leave; and (5) purchasing a used white Corvette convertible that he drove for approximately 2 weeks without displaying the temporary paper license plates.  In re Trudel, 638 N.W.2d 405 (Michigan 2002).
  • Accepting the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court suspended a judge for 30 days without pay and publicly censured him for (1) refusing to consider evidence or hear arguments regarding the identity of a defendant in a case, being rude, and yelling at the defendant without provocation; and (2) failing to refer a motion to disqualify to the chief judge in accordance with a rule.  In re Bradfield, 638 N.W.2d 107 (Michigan 2002).
  • Pursuant to an agreement, the North Dakota Supreme Court publicly censured a former municipal judge and prohibited him from serving as a municipal judge for presiding while smelling of an alcoholic beverage on a number of occasions.  In the Matter of Tessmann, 638 N.W.2d 883 (North Dakota 2002).
  • Adopting the findings, conclusions, and recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court publicly reprimanded a judge for accepting 8 tickets (2 tickets in each of 4 years) to attend Pittsburgh Steelers football games from an attorney who appeared in numerous cases before the judge.  Office of Disciplinary Counsel v. Lisotto, 761 N.E.2d 1037 (Ohio 2002).
  • Adopting the findings of fact and conclusions of law of the Board of Commissioners on Grievances and Discipline but disagreeing with its recommended sanction, the Ohio Supreme Court suspended a judge for 6 months without pay for (1) finding the Director of the County Department of Human Services in contempt without following proper procedures; failing to sentence the director or enter a final, appealable order; and both testifying and presiding at the contempt hearings; (2) without the filing of a complaint, a case number, or journal entry, finding an individual in civil contempt and sentencing her to 30 days in jail and a $250 fine; (3) relying on an outdated statute book, incorrectly sentencing a juvenile; having ex parte communications with employees of the juvenile probation department; conducting a detention hearing without the juveniles’ attorney being present and requiring the juveniles to question the state’s witness; and failing to disqualify himself although he had asked the prosecutor to press felony charges against the juveniles; and (4) following the transfer of a juvenile from the placement ordered by the judge, asking the county prosecuting attorney to prepare arrest warrants for contempt for a supervisor at the county children services and the director and telling the prosecutor to advise the director that if the supervisor resigned he would not proceed.  Office of Disciplinary Counsel v. Karto, 760 N.E.2d 412 (Ohio 2002).
  • Pursuant to an agreement, the South Carolina Supreme Court publicly reprimanded a judge for (1) failing to personally sign court orders issued in judge’s name, allowing his office personnel to sign his name to the orders; and (2) issuing orders without designating any factual basis to support the issuance of those orders.  In the Matter of Smith, 559 S.E.2d 584 (South Carolina 2002).
  • Accepting an agreement, the South Carolina Supreme Court publicly reprimanded a judge for finding defendants not guilty because the letters “NG” appeared next to their names on a list provided to him by a city official, which the judge understood to mean “not guilty.”  In the Matter of Eskridge, 559 S.E.2d 575 (South Carolina 2002).
  • Accepting an agreement, the South Carolina Supreme Court publicly reprimanded a judge for imposing an unauthorized fee when a victim of an assault refused to take out arrest warrants on all 3 of the men who had attacked him and signing a bench warrant, without a contempt hearing, when the victim did not pay.  In the Matter of Dixon, 559 S.E.2d 576 (South Carolina 2002).

What judges said that got them in trouble in the second half of 2021: Part 1

“What judges said that got them in trouble in the first half of 2021”

During or about court proceedings

  • “I’m going to tell you like I tell a lot of people with this same charge because all of these charges are the same. We as men – and I can speak to you as man, because I’m a man, as well, we get frustrated with the women human beings because we try to straightened out a creation because they was created with a curve, but we as men, we think we are above creation, and we can straighten it out. No matter how much you try, or how you try to straighten out that curve, you can never do it. We get frustrated, and then — but in our frustration you can’t come at them like you’re Mike Tyson, and they’re in the ring like they’re Leon Spinks. You can’t do it. You can’t punch, you can’t hit. At best, you treat as if you’re holding a feather, just to let them know you’re the man, and you’re in control. But on each one of these five complaints it said you went at ‘em like Mike Tyson.” Judge to defendant with multiple domestic violence charges pending against him. In the Matter of Brister, 258 A.3d 1045 (New Jersey 2021), adopting (1-month suspension without pay).
  • “Not that you can do in front of all these people, no.” Judge after a female defendant he had released on her own recognizance asked, “do I owe you anything?” In the Matter of Rodriguez, 260 A.3d 848 (New Jersey 2021), adopting (public reprimand).
  • “Didn’t live in the U.S.” Magistrate explaining why he ordered a defendant held on an $8,000 bond as a flight risk. In the Matter of Guthrie, Order (New Mexico Supreme Court October 29, 2021) (30-day suspension without pay for this and other misconduct).
  • “ID.” Judge on a note pad he showed to a state police officer testifying in a trial because the officer had not identified the defendant as the same person the officer had stopped and ticketed. In the Matter of Guthrie, Order (New Mexico Supreme Court October 29, 2021) (30-day suspension without pay for this and other misconduct).
  • “Oh, before we get started, I think [A.O.’s] under the influence. I want her drug tested.” Judge about a criminal defendant’s girlfriend who was quietly observing the proceedings in his courtroom, whom he subsequently sentenced to 10 days in jail for contempt for refusing to submit to a drug test. Disciplinary Counsel v. Repp (Ohio Supreme Court November 9, 2021) (1-year suspension with 6 months stayed with conditions for this and related misconduct).
  • “[You are putting your dispute] in the hands of a guy who wears a costume;” and Judge Spitzer will “wade through the bulls**t.” Judge to parties in 2 family law cases. In re Hinson, Order of suspension (Tennessee Board of Judicial Conduct September 7, 2021) (30-day suspension with pay for this and a comment in a second case).
  • “It’s frustrating because I don’t think this ever should have been tried. It’s a simple misdemeanor. The guy has no record. Best case scenario, he got carried away. I mean this is the best possible case scenario is that he got carried away in the moment. Do you really want to f*** with someone’s life like that? Apparently. Worst case scenario … The thing is, like I didn’t hear anybody say they saw the guy throw jack.” Judge criticizing city’s decision to file and try a case in comments that were broadcast through the court’s YouTube channel although he thought he could only be heard by the 2 court employees in the courtroom. In re Antush, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 19, 2021) (public admonishment).
  • “I am the judge trying to effect equitable distribution. We’re having a hearing. Now, you let me in that house or [the bailiff] is going to arrest you for being in direct contempt of court.” Judge before searching a self-represented ex-husband’s home for marital property. In the Matter of Goldston (West Virginia Supreme Court of Appeals November 18, 2021) (public censure and $1,000 fine).
  • “No probation=u buying drinks.” Judge in text to attorney/friend who had texted the judge that he “wanted no probation” for a client. Grievance Administrator v. Easthope, Opinion (September 17, 2021), Notice of suspension (Michigan Attorney Discipline Board October 19, 2021) (180-day suspension of former judge’s law license for numerous other ex parte communications with his friend, an attorney who appeared before him in cases).
  • “An appeal to the higher courts in Alabama on behalf of a capital defendant sentenced to death by judicial override is ceremonial at best.” Judge in decision declaring state’s capital murder sentencing scheme unconstitutional. In the Matter of Todd, Final judgment (Alabama Court of the Judiciary December 3, 2021) (90-day suspension without pay for this and related misconduct).
  • “Interesting!” and “That’s sad.” Judge via Facebook Messenger in response to messages from ex-husband complaining about his ex-wife in a custody dispute over which the judge was presiding. Disciplinary Counsel v. Winters (Ohio Supreme Court August 18, 2021) (6-month suspension without pay, stayed with conditions, for this and multiple other communications with the same litigant about 4 cases).
  • “I guess I really shouldn’t since you have a case pending in my court. Thanks for asking. Let get this done. . . . Before your personal injury case gets filed.😊” Judge via Facebook Messenger in response to litigant’s invitation to a private dinner. Disciplinary Counsel v. Winters (Ohio Supreme Court August 18, 2021) (6-month suspension without pay, stayed with conditions, for this and multiple other communications with the same litigant about 4 cases).
  • “Aww that’s too bad to be leaving like that. I’ll include her in my prayers. Family strife is the worst. I’m glad you have Bill and his family.” Judge via Facebook Messenger in response to message from litigant in civil stalking protective case. Disciplinary Counsel v. Winters (Ohio Supreme Court August 18, 2021) (6-month suspension without pay, stayed with conditions, for this and multiple other ex parte communications with the same litigant about 4 cases).
  • “[The courthouse is not] the most safest place in the world;” “I have tried the County Board, I have tried everything to get people to do something to keep guns out of this courthouse, and nothing happens, so you know, you got to protect yourself;” and “[I keep it] up here on the bench just because I want to protect myself.” Judge while removing his handgun from a holster under his robe while sentencing a defendant who had pled no contest to stalking charges. In the Matter of Woldt, 961 N.W.2d 854 (Wisconsin 2021) (7-day suspension without pay for this and other misconduct).
  • “And ma’am, if you come in here and tell me that you just want a fine, everything’s fine, then don’t pick up the phone and dial 911, don’t call the cops. I mean if you think you want to handle it, then you handle it; but if you want to pick up the phone and call the police, we’re going to get involved and we’re going to make him get the counseling which he needs. I’m just sick and tired of victims coming in here and they call the cops when they need ‘em but then later on they come and say: Oh, no, this person’s an angel. I’m sick and tired of hearing it.” Judge castigating domestic violence victim who said she wanted the defendant to be fined and get community service. In the Matter of Woldt, 961 N.W.2d 854 (Wisconsin 2021) (7-day suspension without pay for this and other misconduct).
  • “Counsel, there’s a thin line between being an advocate and being a ‘d**k’ – thin line – and you’re blurring it.” Judge who did not like an attorney’s line of questioning during the cross examination of the director of the county family court services in a custody/placement modification hearing. In the Matter of Woldt, 961 N.W.2d 854 (Wisconsin 2021) (7-day suspension without pay for this and other misconduct).
  • “I would love to grant this motion, I would love to have a trial on this issue, I’d love that he get found guilty, and I’d love to give him a year in jail for wasting my time today. I would love to do that, but unfortunately I can’t. . . .” Judge denying defendant’s post-conviction motion arguing that trial counsel had provided ineffective assistance. In the Matter of Woldt, 961 N.W.2d 854 (Wisconsin 2021) (7-day suspension without pay for this and other misconduct).
  • “I mean that’s a stupid argument;” “Attorneys that practice in front of me a lot know, that when things are getting behind, they know the best thing they can do is to shut their ‘pie holes;’” and “jump to the chase.” Judge displaying irritation with defense counsel’s attempt to argue on behalf of his client. In the Matter of Woldt, 961 N.W.2d 854 (Wisconsin 2021) (7-day suspension without pay for this and other misconduct).
  • The “so-called victim in this case,” and “You’re a very smart man. You would be amazed at the amount of defendants that come in and say, ‘Yeah, there is,’ and then they continue to go on.” Judge referring to the 13-year-old victim in a sexual assault to which a defendant had pled no contest and congratulating the defendant for not exercising his right to speak in allocution after the judge had discouraged him from doing so. In the Matter of Woldt, 961 N.W.2d 854 (Wisconsin 2021) (7-day suspension without pay for this and other misconduct).

Throwback Thursday

25 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge who took no action in a case for over 14 months after receiving a proposed judgement and objections and did not issue a final decision for over 10 months after a hearing.  Public Admonishment of Chapin (California Commission on Judicial Performance January 22, 1997).
  • The California Commission on Judicial Performance publicly admonished a judge for telling several of the attorneys in a civil case that their demand for money was “bulls**t” and making similar comments, making a vulgar gesture, and threatening to retaliate against the attorneys.  Public Admonishment of Williams (California Commission on Judicial Performance January 22, 1997).
  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge and fined him $2,500 for stopping a vehicle at gunpoint on his neighbor’s property, ordering the occupants of the vehicle to get out of the car and lie on the ground, detaining them, and threatening serious bodily harm and possible death.  Commission on Judicial Performance v. Whitten, 687 So. 2d 744 (Mississippi 1997).
  • Adopting the findings of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court privately reprimanded a judge for hugging and kissing a subordinate employee, announcing the private reprimand publicly because of the public interest in the matter reflected by media coverage.  In the Matter of Brenner, 687 A.2d 725 (New Jersey 1997).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for refusing to permit attorneys to participate in small claims proceedings and exhibiting improper demeanor toward an attorney in a case, for example, angrily telling the attorney that he had “verbal diarrhea.”  In the Matter of Rice, Determination (New York State Commission on Judicial Conduct January 31, 1997).
  • The South Carolina Supreme Court publicly reprimanded a former judge who had been charged with indecent exposure after regularly meeting a woman in a parking lot and engaging in sexual activity in his car.  In the Matter of Fournier, 480 S.E.2d 738 (South Carolina 1997).

“Absolutely nothing to justify”

Adopting the findings of misconduct and recommended sanction of the Professional Conduct Board based on stipulations, the Ohio Supreme Court suspended a judge for 1 year without pay for his undignified, improper, and discourteous demeanor toward a criminal defendant and the defendant’s girlfriend in his courtroom, for ordering that the defendant’s girlfriend take a drug test, and for sentencing her to 10 days in jail for contempt when she refused.  Disciplinary Counsel v. Repp (Ohio Supreme Court November 9, 2021).

The Court emphasized its holding in prior judicial discipline cases that “’the power to punish for contempt is properly used to secure the dignity of the courts, not to demean and intimidate people,’ and that abusing that power serves to cast doubt on the judicial officer’s impartiality and to weaken public perception of the integrity of the judiciary.”  The Board had emphasized that the girlfriend had done “absolutely nothing to justify [the judge’s] attention in the courtroom—let alone his order that she be drug tested” and that she “suffered great personal indignities and emotional distress as the result of the security and medical screenings she had to endure during her incarceration, on top of the anxiety regarding the care and well-being of her two young children.” 

On March 11, 2020, A.O. left her 2 young daughters in the car with their grandmother and entered the judge’s courtroom to observe the arraignment and probation-violation hearing of the girls’ father, T.D., who had been arrested the previous day on a bench warrant for violating the terms of his probation by failing to appear at a drug court program.  A.O. sat in the back row of the courtroom and waited quietly for T.D.’s case to be called.

On several occasions, the judge addressed A.O. from the bench although the video recording of the proceedings does not show that A.O. brought any attention to herself.

During the proceedings in an unrelated case, the judge stated, “Going to be lots of drug tests today.  Is that [T.D.’s] girlfriend back there?  I don’t know.  I thought maybe it was.”  After the defendant in that case stated that he did not believe in using drugs, the judge stated, “That’s good.  I wish all of us could say that.  Right, [A.O.]?”  A.O. did not respond to the judge’s comments.

Before calling the next case, the judge stated, “Oh, before we get started, I think [A.O.’s] under the influence.  I want her drug tested.”  A.O. had made no disturbance in the courtroom and did not have a case pending before the judge, was not on probation, and had never been charged with or convicted of a drug-related offense.

The bailiff directed A.O. to follow him out of the courtroom to the probation department so that the drug test could be administered.  A.O. complied.   In a text, she told T.D.’s mother, who was still watching their daughters, that she was afraid to leave the courthouse because she thought that the judge would issue a warrant for her arrest.  In another text, she asked her sister to come get her daughters because T.D.’s mother had to go to work.

At the probation department, A.O. requested a lawyer but was told that she was not eligible for court-appointed counsel because she had not been charged with a crime.  When A.O. said that she would not take a drug test, the probation officer stated that A.O. would go back in front of the judge after he was done with lunch.

Approximately 10 minutes after A.O. had left the courtroom, the judge called T.D.’s case.  T.D. appeared by video from the county jail.  The judge greeted him by stating, “Hold it.  Hold it.  Who’s that vision?  That vision of a man I haven’t seen in so long?  Ho, just getting by, doing his own thing.  Holy Smokes.  How you doing. [T.D.]?  How you been?”  T.D. replied, “You know, not too bad.  Just going to work, coming home, going to work, coming home and slipped up and got caught, you know.”  The judge responded, “Slipped up and got caught.  Yeah, baby.  Slipped up and got caught.”

The prosecutor recited the charges and T.D. entered a no-contest plea.  After accepting T.D.’s plea, the judge stated that he had been looking for T.D. in the drug court program and then asked T.D. whether he or A.O. had recently overdosed.  At the time, the judge did not have any verified evidence that T.D. or A.O. had recently overdosed.  After reading the police report, which indicated that A.O. was in the car with T.D. at the time of his arrest, the judge stated, “Wow.  [A.O.’s] down here.  She’s probably going to go to jail too.  Who’s watching the kids [T.D.]?”  When T.D. stated that his dad was probably taking care of the children, the judge laughed and said, “Your dad.  I heard your dad went to jail for you, too; is that right?”  T.D. replied that he was not sure, and the judge said, “Yes, he did,” although he had no verified evidence to support that statement.

The judge sentenced T.D. to a 180-day jail term for one case and a 30-day jail term for a second case, to be served concurrently.  The prosecutor recommended an additional 150-day jail sentence for T.D.’s probation violations.  When T.D. asked whether the 150 days would be concurrent with his other sentence, the judge replied, “Uh, what do you think, [T.D.]?  Am I giving two for one today?  I don’t think so.  I hate to saddle the Seneca County Jail with you, but, [T.D.], you’ve been so, you know, defiant about this and haven’t followed through with a thing.  I’m trying to help you out.  I know you overdosed since then.  I’m giving you the 150 days.  That’s consecutive * * * not concurrent.  Good luck.”

After lunch, the probation officer took A.O. back into the courtroom and told the judge that she had refused to take a drug test.  When the judge asked why, A.O. explained that she did not think she had done anything to be in trouble.  The judge stated, “Okay.  Well, you come into my courtroom, I think you’re high, you’re in trouble.”  A.O. replied, “Okay.  I’m not, though.”  The judge then asked A.O. whether she wanted to take the drug test, and when she stated that she did not, he said:  “Can I have a journal entry.  We’re going to hold you in contempt.  I’m going to submit and commit you for ten days.  When you decide you want to take a test, then I’ll, then we’ll talk about this again.  All right?”  A.O. replied, “Okay.”  The judge stated, “Is there anything else?  Remand to custody.  You have the keys, [A.O.]”

A.O. was immediately remanded to the custody of the sheriff, handcuffed, and transported to the county jail.

At the jail, A.O. experienced several indignities.  She was required to take a pregnancy test and undergo 2 full-body scans.  The female officer who conducted the scans allegedly detected anomalies that she believed could have been contraband inside A.O.’s body.  A more senior officer, who was a male, was called to review the scan.  Although the female officer attempted to cover A.O.’s breast and genital areas on the screen while the male officer reviewed the scan, the male officer told the female officer that that was unnecessary, and then the male officer asked A.O. whether she had pierced nipples.  A.O. did not respond.  She was handcuffed and transported to the hospital where she was required to submit to a second pregnancy test and a CT scan or an MRI scan.  No contraband was found, and she was returned to the jail.

A few hours later, A.O. became scared and worried about her children and told a correctional officer that she was willing to take the drug test because she wanted to go home.  The officer replied that A.O. was not allowed to take the test and that she already “had her chance.”

On the evening of her arrest, A.O. retained an attorney to represent her.  The next morning, her attorney filed a notice of appeal and a motion requesting that her sentence be stayed pending the appeal.  During a hearing on A.O’s motions later that day, the prosecutor moved to vacate the contempt finding, and the judge agreed but only on the condition that A.O. agree to a drug-treatment assessment.  However, he no longer had jurisdiction due to A.O.’s appeal.  After that hearing, A.O. was released from jail.

In September, the district court of appeals reversed the judge’s judgment of contempt against A.O., finding that the record was “devoid of any specific observations or findings by [the judge] of [A.O.’s] conduct in the courtroom supporting his stated belief that she was under the influence while observing court proceedings” and that the judge did not have the authority to compel her to submit to a drug test.  On remand, the judge dismissed the case.

The Board rejected the judge’s testimony that his misconduct was motivated by a desire to help A.O., finding that the judge’s statements to A.O. and T.D. were arrogant and exhibited “a desire to prove that his suspicions about A.O.’s impairment were accurate and consistent with unsubstantiated rumors that he had heard about her and T.D.’s past drug use.”  The Board also found that the judge’s “hearing testimony demonstrated that he was very frustrated with T.D. and that he had channeled that frustration toward A.O.”

Property issues

Discipline cases have held that it undermines public confidence in the judiciary for a judge to purchase property that is involved in litigation pending before the judge.

  • A judge signed an order authorizing the sale of a conservatee’s home, entered into an agreement to purchase the property, and approved an accounting that included the sale of the property to himself.  Inquiry Concerning Sullivan, Decision and order (California Commission on Judicial Performance May 17, 2002) (public censure for this and other misconduct).
  • A judge purchased real property from an estate being settled in his court and subsequently approved the executor’s final accounting.  Patterson v. Council on Probate Judicial Conduct, 577 A.2d 701 (Connecticut 1990) (public reprimand).
  • A judge made an offer to buy a condominium from an estate only 18 days after he signed the orders admitting the will to probate and purchased a home that was the subject of a foreclosure action pending before him.  In the Matter of Handy, 867 P.2d 341 (Kansas 1994) (public censure for this and other misconduct).
  • A judge tried to buy property that was one of the assets at issue in litigation pending before him involving the distribution of corporate assets.  In re Yaccarino, 502 A.2d 3 (New Jersey 1985) (removal for this and other misconduct).
  • A magistrate purchased items seized from tenants to satisfy rental debts at a distraint sale conducted by his office.  In the Matter of Thompson, 553 S.E.2d 449 (South Carolina 2001) (public reprimand for this and other misconduct).

Advisory committees have also addressed the issue.

  • A judge should not purchase property subject to a foreclosure proceeding over which the judge is currently presiding, but, after the foreclosure proceeding is concluded, may purchase the property from the foreclosure purchaser on the terms that are available to the general public unless the judge acquired information during the proceeding that gives them an advantage or they will be treated preferentially because of their previous involvement.  Colorado Advisory Opinion 2012-4.
  • A judge may be a shareholder of a corporation organized to purchase real estate at foreclosure sales unless the judge presides over mortgage foreclosure actions and the corporation purchases foreclosure properties within the judge’s jurisdiction or the judge’s involvement would result in frequent transactions with individuals likely to appear before the judge.  Illinois Advisory Opinion 2006-4.
  • A judge may not purchase assets from the estate of a minor while proceedings are pending before their court even if the matter has been reassigned to another judge and the attorney for the owners assures the judge that any conflict will be waived.  Kansas Advisory Opinion JE-81 (1998).
  • A judge should not buy assets from an estate that is pending in their court at either a private sale or public auction, directly or through an agent.  Kansas Advisory Opinion JE-124 (2004).
  • A judge may bid at public auction to buy a tract of land being sold at sheriff’s sale as the result of a foreclosure action if the judge had nothing to do with the foreclosure action, has no jurisdiction over the action, and did not know of the action until reading the published notice of sheriff’s sale.  Kansas Advisory Opinion JE-135 (2005).
  • A judge may purchase bank-owned property that was foreclosed in a closed case that was uncontested even though the judge signed the order confirming the sale.  Kansas Advisory Opinion 184 (2015).
  • A judge and their spouse may purchase foreclosed property at a scheduled judicial sale when the judge had no involvement in the case, learned of the sale from the newspaper, and read the court file by checking it out at the clerk’s office in the same manner as any person could, the judge would not attend or personally participate in the bidding, and the judge does not know the special master responsible for conducting the sale.  New Mexico Advisory Opinion 2011-3.
  • If a surrogate entered into a contract to purchase real property in good faith but later learned the property was part of a decedent’s estate, the surrogate must disqualify themself from any further involvement in the probate proceeding but is not required to repudiate the contract.  New York Advisory Opinion 2014-187.
  • A judge may purchase a home at a foreclosure sale in the judge’s court if they have had no judicial involvement in the sale but must not lend, or appear to lend, the prestige of the judicial office to influence the sale and should not alert their co-judge or court personnel that they are interested in purchasing a home at the sale, other than in the same time, place, and manner as other members of the public or voluntarily disclose their judicial status during the sale unless they must do so pursuant to law or administrative rule.  New York Advisory Opinion 2009-134.

Throwback Thursday

5 years ago this month:

  • Based on the judge’s resignation and agreement, the Arkansas Judicial Discipline and Disabilities Commission removed a judge from office for performing probable cause determinations in cases involving friends or former clients following ex parte communications, lowering their bail, and releasing them on their own recognizance.  Parker, Letter of removal from office (Arkansas Judicial Discipline and Disabilities Commission December 31, 2016).
  • Approving the Judicial Qualifications Commission’s findings and recommendations, which the judge accepted, the Florida Supreme Court publicly reprimanded a judge for sending an ex parte e-mail to the public defenders’ office, failing to seek a recusal or transfer when an appeal of his denial of a motion to recuse based on the e-mail effectively froze his division, and making impertinent and belittling remarks in open court about that appeal; the Court also ordered the judge to send a letter of apology, continue judicial mentoring for 3 years, and complete a mental health program.  Inquiry re Contini, 205 So. 3d 1281 (Florida 2016).
  • Pursuant to the judge’s agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for telling 2 girls she would send them to foster care if they did not go on vacation with their father after an ex parte discussion with the father’s attorney.   In re Matter of Embry (Kentucky Judicial Conduct Commission December 27, 2016).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for circulating a designating petition for another candidate for elective office and improperly attesting to the signatures on 2 other designating petitions.  In the Matter of Rumenapp, Determination (New York State Commission on Judicial Conduct December 30, 2016).
  • Accepting a stipulation and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for making improper public comments on her Facebook account about a matter pending in another court and failing to delete public comments about the matter made by her court clerk.  In the Matter of Whitmarsh, Determination (New York State Commission on Judicial Conduct December 28, 2016).
  • Accepting the recommendation of the Judicial Standards Commission based on a stipulation, the North Carolina Supreme Court publicly reprimanded a judge for (1) failing to report income from extra-judicial sources and (2) presiding over a session of district court in which a criminal defendant appeared on his calendar for criminal charges that he had initiated as the complaining witness and agreeing that the charges should be dismissed after the defendant paid him restitution of $3,000 cash in the judge’s chambers.  In re Mack, 794 S.E.2d 266 (North Carolina 2016).
  • • Adopting the sanction recommended by the Board on Professional Conduct, the Ohio Supreme Court suspended a former judicial candidate from the practice of law for 1 year for knowingly or with reckless disregard for the truth running 2 campaign advertisements that contained patently false statements about his opponent; the Court stayed the final 6 months of the suspension on the conditions that he commit no further misconduct and attend a 6-hour CLE course regarding judicial campaigns. Disciplinary Counsel v. Tamburrino, 87 N.E.3d 158 (Ohio 2016).
  • Accepting the sanction recommended by the Board of Professional Conduct based on stipulations of fact and misconduct, the Ohio Supreme Court suspended a judge for 1 year for contacting a landlord on behalf of a tenant; the Court stayed the suspension on condition he commit no further misconduct.  Disciplinary Counsel v. Elum, 71 N.E.3d 1085 (Ohio 2016).

“Understandable, though ill-advised”

2 more judges have been publicly sanctioned for their conduct related to the COVID-19 pandemic, bringing the total to 9.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for making comments criticizing the prosecution of a case that he thought could only be heard by the court employees in the courtroom but that were being broadcast through the court’s YouTube channel. In re Antush, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 19, 2021).

During the Covid-19 pandemic, the Spokane Municipal Court, like many courts in Washington, provided live stream coverage of court proceedings on YouTube to allow the public to observe proceedings. The live stream typically ended at the conclusion of the court proceedings.

On November 12, 2020, the judge presided over a criminal jury trial on charges of disorderly conduct and failure to disperse. After the prosecution and defense had rested their cases, the judge dismissed the jury for the day, planning to have closing arguments, jury instructions, and deliberations the next morning. Shortly after everyone but the judge and 2 clerks had left the courtroom, the judge stated:

It’s frustrating because I don’t think this ever should have been tried. It’s a simple misdemeanor. The guy has no record. Best case scenario, he got carried away. I mean this is the best possible case scenario is that he got carried away in the moment. Do you really want to f*** with someone’s life like that? Apparently. Worst case scenario … The thing is, like I didn’t hear anybody say they saw the guy throw jack. Did you hear that … [recording stops].

Although the judge reasonably believed he could only be heard by the 2 court employees, the courtroom’s audio recording was still activated and being broadcast to the public through the court’s live stream YouTube channel. The prosecution learned of the judge’s comments that evening via the broadcast.

The following morning, the city moved for a mistrial based on the judge’s comments. After hearing argument from the parties and reviewing his comments, the judge “agreed with the City that, while judges are human and have opinions, it was wrong for him to verbalize them in a way that undermined public confidence in the fairness and impartiality of the rulings he had made in the case before him.” He granted the motion for a mistrial, apologized to the parties, and expressed his regret for the waste of time and resources.

In mitigation, the Commission noted that this was an isolated incident, the judge has had no prior judicial discipline history, he had been a judge for less than 3 years when he made the comment, those who know him professionally describe him as very competent, conscientious, and compassionate, and, “importantly, his response to this matter, both at the time it was first brought to his attention, and in this disciplinary proceeding, has been exemplary.” The agreement also stated:

Respondent’s actions were careless, but there is no basis to believe he flagrantly or intentionally violated his oath of office. At the time he made the comments at issue, Respondent was unaware that anyone other than court staff could hear the comments. There are many pressures upon a trial judge, and it is understandable, though ill-advised, for a judge to vent to trusted court associates even in private. Respondent credibly stated that he did not intend to impair the case before him.

On the other hand, Respondent revealed his strong opinion about the merits of a case about to go to a jury and that opinion became public (although Respondent did not intend those comments to be public). In this context, presiding over a pending jury trial, Respondent’s comments caused actual injury by affecting the outcome of a criminal case and consequently damaged the perceived integrity of the justice system to anyone who may have heard the comments.

The Commission noted that the admonishment “may help to alert other judges to the risks of unguarded comments damaging public confidence in the impartiality, integrity and independence of the judiciary, at a time when courts are using more varied technological broadcast means than ever before in conducting the courts’ business.”

Statements inadvertently broadcast live via YouTube by a second judge are also the basis for a statement of charges filed by the Washington Commission. The second judge’s statements were about the fatal shooting of a Black man by local law enforcement and were made after the end of unrelated court proceedings during a conversation between the judge and a fellow judicial officer. The Commission alleges that the statements “displayed overt racial bias, indicated a lack of impartiality, and implied that Respondent has a personal channel of communication with the Sheriff’s Department regarding pending and impending cases.” The charges note that “the Commission received dozens of complaints about this incident,” including a self-report. The judge retired effective June 30, 2021.


Accepting a stipulation agreement and consent to discipline, the New Mexico Supreme Court suspended a judge for 30 days without pay for, in addition to other misconduct, failing to wear a protective face covering at all times while on court premises as required by a state supreme court order and asking a clerk if they minded if he did not wear a mask; and after the court began conducting telephonic hearings due to the pandemic, issuing bench warrants when 11 defendants failed to call the court on their appearance date without determining if the defendants had been properly summonsed. In the Matter of Guthrie, Order (New Mexico Supreme Court October 29, 2021).

The judge failed to wear a protective face covering at all times while on court premises and placed a court clerk in a difficult position when he asked the clerk if they minded if he did not wear a mask. The magistrate failed to follow the New Mexico Supreme Court’s order on the safe and effective administration of the judiciary during the COVID-19 public health emergency and put the health and safety of court staff at risk.

Due to the COVID-19 pandemic, the county magistrate court began conducting telephonic hearings, but the magistrate issued summonses for defendants to appear in person and/or did not include contact information for the court on the summonses. When 11 defendants failed to call the court on their appearance date, the magistrate issued bench warrants and assessed $100 bench warrant fees without determining if the defendants had been properly summonsed.


7 other judges have previously been publicly sanctioned for conduct related to the COVID-19 pandemic. Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021) () (public reprimand for speaking sharply to court staff when disconnected from a Zoom hearing and yelling at court staff when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case); Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021) (public reprimand for repeatedly failing to wear a face covering when interacting with the public and staff in court facilities as required by administrative orders issued by the Arizona Supreme Court and the Maricopa County Superior Court in response to the COVID-19 pandemic, failing to require individuals in his courtroom to abide by administrative orders regarding the use of face coverings, and appearing “to publicly denigrate those orders”); In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for, in addition to other misconduct, displaying improper demeanor toward 2 criminal defense attorneys appearing by phone for an arraignment on the first day after the stay-at-home order was in effect); Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand for stating, “the Grand Wizard of our Supreme Court said we have to wear these masks”); In the Matter of Rivers, 862 S.E.2d 449 (South Carolina 2021) (6-month suspension for disruptive behavior during a meeting about the court’s COVID-19 safety plan, his confrontations with another magistrate and the Chief Magistrate after the meeting, and his statement to a clerk about the Chief Magistrate’s complaint to Disciplinary Counsel); Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand for failing to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commenting that he wished the chief justice “would win an award so that the COVID-19 mandates” would end); In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021) (reprimand for, in addition to other misconduct, declining to determine who was attempting to appear at the end of a calendar via Zoom).