Throwback Thursday

10 years ago this month:

  • Based on an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court publicly reprimanded a judge for ordering that an attorney be incarcerated for criminal contempt after the attorney refused to recite the pledge of allegiance in open court.  Commission on Judicial Performance v. Littlejohn, 62 So. 3d 968 (Mississippi 2011).
  • Based on an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court suspended a judge for 30 days without pay and publicly reprimanded her for conditioning defendants’ release on bail on church attendance; ex parte communications; sua sponte reducing bonds and charges; presiding at her nephew’s initial appearance on domestic violence charges; and expressing her view on the sheriff’s handling of the county drug problem and inviting ex parte communications on the subject.  Commission on Judicial Performance v. Dearman, 66 So.3d 112 (Mississippi 2011).
  • The Mississippi Supreme Court suspended a judge for 30 days without pay, fined him $500, and publicly reprimanded him for fixing 9 citations and intervening, or attempting to intervene, in 3 cases assigned to another judge.  Commission on Judicial Performance v. McKenzie, 63 So. 3d 1219 (Mississippi 2011).
  • Based on the presentment of the Advisory Committee on Judicial Conduct, which the judge had accepted,  the New Jersey Supreme Court reprimanded a judge for, in a loud, hostile, angry, and antagonistic manner, making extreme and excessive remarks to a mother after she questioned a visitation schedule.  In the Matter of Baker, Order (New Jersey Supreme Court June 16, 2011).
  • With the judge’s agreement, the North Carolina Judicial Standards Commission publicly reprimanded a judge for escalating a personal disagreement with the public defender into an unauthorized, closed proceeding that did not comply with due process and embroiled court personnel and the sheriff’s department.  Public Reprimand of Scarlett (North Carolina Judicial Standards Commission June 15, 2011).
  • The Tennessee Supreme Court affirmed the decision of the Court of the Judiciary suspending a judge for 90 days “without impairment of compensation” for a 9-month delay in deciding a case, failing to disqualify himself from a related case, and asking a party through an attorney to drop the judicial complaint while the party had a case pending before him.  In re Bell, 344 S.W.3d 304 (Tennessee 2011).
  • Based on the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for appearing before the county commission to gain approval for a “Citizens Heritage Display” for the courtroom lobby of the Justice Center and becoming involved in fund-raising for the display.  In re Taylor, Agreed order (Tennessee Court of the Judiciary June 6, 2011).

Recent cases

  • Based on an agreement, the Arkansas Judicial Discipline & Disability Commission publicly censured a judge for (1) leaving the bench while a public defender was questioning a witness during a hearing, refusing to let her make her record when she attempted to respond to an objection, and using a curt voice and displaying an alarming demeanor and (2) in a separate proceeding, making statements about the way a public defender was conducting voir dire, asking if her client had a defense, and stating that he would still accept a guilty plea.  Re Sims (Arkansas Judicial Discipline & Disability Commission May 21, 2021).
  • Approving a stipulated disposition, the Colorado Supreme Court accepted the retirement of a judge and publicly censured her for 2 convictions for driving under the influence.  In the Matter of Gunkel (Colorado Supreme Court May 13, 2021).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for (1) telling community members that he was supporting an incumbent judge’s opponent in a judicial election and asking some of them to support his favored candidate, and (2) failing to designate a campaign account and treasurer with the Division of Elections before receiving campaign contributions or issuing funds, as required by the state campaign financing statute.  Inquiry Concerning Cupp (Florida Supreme Court May 13, 2021).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for attempting to dissuade a judicial candidate from running against an incumbent judge and to run against a different incumbent judge or not to run at all.  Inquiry Concerning Howard (Florida Supreme Court May 20, 2021).
  • Following a trial de novo, a Texas Special Court of Review affirmed the public admonition of a judge for approaching a legal assistant in his courtroom, touching her on the arm or shoulder, and admonishing her for sitting in a section of the courtroom reserved for attorneys; the Court also ordered the judge to complete 2 hours of instruction about decorum with a mentor.  In re Wilson (Texas Special Court of Review May 4, 2021).
  • Based on an agreement, which included the judge’s resignation, the West Virginia Judicial Investigation Commission publicly admonished a former magistrate for touching a court employee.  In the Matter of Cole, Public admonishment (West Virginia Judicial Investigation Commission April 29, 2021).

Throwback Thursday

20 years ago this month:

  • Agreeing with the recommendation of the Judiciary Commission based on a statement of stipulated facts, the Louisiana Supreme Court suspended a non-lawyer justice of the peace for 6 months without pay, followed by 2 years’ probation, for rendering a default judgment against a defendant in a small claims case without serving the defendant with notice of the suit and without convening a hearing or receiving relevant and competent evidence from the plaintiff to make a prima facie case.  In re Landry, 789 So. 2d 1271 (Louisiana 2001).
  • Based on an agreed statement of facts and recommendation, the Mississippi Supreme Court publicly reprimanded a justice court judge and fined him $100 for allowing 1 arraignment and 2 initial appearances to be photographed and electronically recorded by the news media, which broadcast the proceedings to the public.  Commission on Judicial Performance v. Carr, 786 So. 2d 1055 (Mississippi 2001).
  • Adopting the findings of fact and recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court removed a justice court judge from office for (1) accepting payment or partial payment of fines payable to the justice court; (2) suspending fines for violations of the implied consent law; (3) dismissing a DUI charge on his own motion; (4) engaging in ex parte communications and improperly dismissing traffic citations for 4 defendants who did not appear in court; (5) improperly dismissing a DUI charge ex parte, on his own motion, without the defendant being present and without any testimony; (6) rendering a verdict of not guilty related to a hunting violation; (7) engaging in ex parte communications and conducting justice court business at his tire and pawn shop; (8) rendering a not-guilty verdict following ex parte communications; (9) conducting a hearing concerning an alleged violation of probation in which the defendant did not receive notice and was not advised of his due process rights, his right to an attorney, or his right to remain silent; (10) suspending a fine without the authority to do so and without knowledge of the underlying charges; (11) utilizing a criminal process to collect a civil debt; (12) dismissing a criminal conviction and canceling the ordered restitution; (13) dismissing a case ex parte; (14) contacting a law enforcement officer regarding a criminal case; (15) contacting law enforcement officials during a criminal trial, engaging in other ex parte communications, and dismissing criminal charges; (18) issuing an arrest warrant for someone who did not actually owe any fines; (19) reducing the interest rate in a contract that was the subject of a civil action; (20) dismissing a speeding charge in the absence of both the arresting officer and the defendant; (21) conducting ex parte communications with a defendant regarding citations for hunting violations; (24) conducting a contempt hearing when there had been no sworn affidavit or warrant issued; (25) issuing a citation for contempt of court without providing any notice or advising of rights; (28) convicting a defendant without creating a file and without notice or hearing; (29) sentencing the justice court clerk to contempt without notice and refusing her repeated requests for an attorney; and (30) refusing to allow the justice court clerk or deputy clerk to appear in court when the judge was conducting court.  Commission on Judicial Performance v. Willard, 788 So. 2d 736 (Mississippi 2001).
  • Agreeing with the findings of fact and conclusions of law of the Commission on Judicial Qualifications, the Nebraska Supreme Court suspended a judge for 6 months without pay for, while serving as a county attorney in 1984, altering a copy of a police report in a criminal case, providing the altered report to defense counsel, and asking the police officer who made the report to either alter his original report or alter his testimony to conform to the changes.  In re Krepela, 628 N.W.2d 262 (Nebraska 2001).
  • The New York State Commission on Judicial Conduct publicly admonished a part-time judge for presiding over a small claims action brought by a client whom he had represented in a traffic case involving the same incident and whose father was the judge’s friend and court assistant.  In the Matter of Hayden, Determination (New York State Commission on Judicial Conduct June 27, 2001).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a part-time lawyer judge who had angrily confronted his wife, waved a knife close to her throat, and threatened to run her through.  In the Matter of Roepe, Determination (New York State Commission on Judicial Conduct June 27, 2001).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) repeatedly violating the rights of 2 unrepresented 16-year old defendants, (2) refusing to accept a defendant’s not guilty plea to a charge of failure to license dogs and, without a trial, issuing an order to seize the dogs; (3) in 3 other cases, relying to the detriment of defendants on ex parte information from his daughter, the arresting officer, or the complaining witness; and (4) failing to correct the records of a case involving a mandatory youthful offender to reflect the correct disposition and to seal the records, as required by law.  In the Matter of the Rock, Determination (New York State Commission on Judicial Conduct June 27, 2001).
  • Based on an agreement, the South Carolina Supreme Court publicly reprimanded a former magistrate for (1) communicating his personal interest in a case to the judge presiding over the case; (2) engaging in one or more communications with the arresting officers and other officers in the county sheriff’s department regarding traffic charges pending before him; and (3) negotiating the trade-in of his automobile for a new automobile with a defendant who was employed at a car dealership and later, while the charges were still pending, purchasing another vehicle from the dealership.  In the Matter of Looper, 548 S.E.2d 219 (South Carolina 2001).
  • Accepting an agreement, the South Carolina Supreme Court suspended a magistrate for 9 months without pay for signing an order giving public notice of a judicial sale and issuing the bill of sale at the behest of another magistrate even though the magistrate knew the requirements of the statute were not met.  In the Matter of Lynah, 548 S.E.2d 218 (South Carolina 2001).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a part-time commissioner for serving as a lawyer and a judge in the same or a related proceeding.  In re Fuller, Stipulation, agreement, and order of admonishment (Washington State Commission on Judicial Conduct June 1, 2001).

Zoom problems

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for, in addition to other misconduct, declining to determine who was attempting to appear at the end of a calendar via Zoom.  In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021).  The judge also agreed to continue to work with a mentor judge and to participate in at least 4 hours of ethics training.

At the conclusion of the afternoon calendar one day in February 2021, just after 3:15 p.m., the court clerk told the judge that there was 1 more person in the Zoom “waiting room” and asked if they should be “let in” so that the judge could speak with them.  Apparently tired, the judge said that she “just can’t.”  The clerk indicated that they needed to see who it was and set the case over.  The person in the Zoom waiting room had renamed themselves “Help I couldn’t log in at 2 p.m.,” and the clerk surmised that it could be the 1 person from the 2 p.m. docket who had failed to appear and for whom a warrant had been issued.  The judge said, “You almost hate to not talk to them if they can figure that out,” referring to the way the person had renamed themselves, but the judge again declined the clerk’s request to bring the person in from the waiting room and said that they “would have to do the bench warrant docket.”

The Commission found that the judge had displayed a “disregard for an individual attempting to navigate technology and appear in court” that violated the rules requiring a judge to “accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law;” to “comply with the law, including the Code of Judicial Conduct;” and to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and . . . avoid impropriety and the appearance of impropriety.”

The reprimand was also for the judge’s failure to advise defendants at probation review hearings of their rights; for conducting an ex parte investigation into whether a defendant had performed community service hours and stating on the record that she intended to recommend significant jail time and further charges; for asking 2 defendants when they were arraigned in traffic offense cases whether they had a valid driver’s license; for regularly recommending specific businesses to defendants for re-licensing and insurance purposes related to their charges; and for regularly presiding over cases in which a notice of disqualification had been filed against her.

The judge is the fourth judge to be publicly sanctioned for conduct related to the COVID-19 pandemic.  See also 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); 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”); 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).

Throwback Thursday

25 years ago this month:

  • Adopting the recommendation of the Commission on Judicial Performance, the California Supreme Court publicly censured a judge for making sexually suggestive remarks to and asking sexually explicit questions of female staff members, using crude and demeaning names and descriptions and an ethnic slur when referring to staff members, referring to a fellow jurist’s physical attributes in a demeaning manner, and mailing sexually suggestive postcards to staff members.  In re Gordon, 917 P.2d 627 (California 1996).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) failing to disqualify himself in 4 cases in which the Walt Disney company was a litigant although he owned 1000 shares of Disney stock valued at approximately $45,000 and (2) writing 2 letters on court letterhead to a collection service regarding a claim against a member of his family.  Public Admonishment of Stoll (California Commission on Judicial Performance June 3, 1996).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for improperly jailing 2 individuals for their purported failure to pay fines and restitution obligations that he had imposed.  In the Matter of Hamel, 668 N.E.2d 390 (New York 1996).
  • Modifying the recommendation of the Commission on Judicial Tenure and Discipline, the Rhode Island Supreme Court publicly censured a judge for (1) soliciting attorneys to purchase jewelry for the benefit of the Franciscan Missionaries of Mary in New Mexico; (2) permitting his chambers to be used for the sale of sweaters knit by a Russian immigrant nun for the benefit of an immigrant group; and (3) selling to several judges and approximately 40 attorneys who practiced in the court over $5,000 in raffle tickets for a spring weekend in Washington, D.C. that included a memorial regatta in honor of his deceased son.  In re Arrigan, 678 A.2d 446 (Rhode Island 1996).
  • The West Virginia Judicial Investigation Commission publicly admonished a candidate for receiving 2 donations to his campaign prior to designating a financial agent or treasurer for his campaign committee and submitting the first campaign financial report in his name and not the committee’s name.  In the Matter of Robb, Public Admonishment (West Virginia Judicial Investigation Commission June 3, 1996).

Spring Judicial Conduct Reporter

The spring issue of the Judicial Conduct Reporter has been published.  The issue has articles on:

  • Social media posts by judges on controversial issues
  • Private dispositions of judicial conduct complaints
  • Recent cases
    • Zoom problems:  In re Burchett (Washington Commission 2021)
    • Juror intimidation:  In the Matter of Scott (Nevada Commission 2021)
    • No excuses:  In the Matter Concerning Connolly (California Commission 2021); Public Admonishment of Roberts (California Commission 2021)

The Judicial Conduct Reporter is published electronically, and an index and current and past issues of the Reporter are available on-line.  Anyone can sign up to receive notice when a new issue is available.

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for (1) telling the parents in a custody hearing, “I don’t know what the hell you two are thinking, but get it together.  All of you,” and “I don’t give a crap about any of you” and (2) in an unrelated severance hearing, telling litigants that “I honestly don’t give a crap about either one of these people.”  Hancock, Order (Arizona Commission on Judicial Conduct May 12, 2016).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for immediately denying a litigant’s oral motion to dismiss a photo radar ticket; cutting him off when the litigant said the judge did not know what the motion was about; speaking throughout in an elevated tone and belittling fashion; and telling the litigant to “shut up” and “knock it off,” and that he could do what the judge asked or eat green soup at the jail that evening.  Forshey, Order (Arizona Commission on Judicial Conduct May 12, 2016).
  • The Arkansas Commission on Judicial Disability and Discipline announced the resignation and permanent removal of a judge and concluded its cases based on allegations that, in addition to other misconduct, he used his judicial status to form sexual relationships with young Caucasian male defendants.  Press release (Boeckmann) (Arkansas Commission on Judicial Disability and Discipline May 9, 2016).
  • The California Commission on Judicial Performance publicly admonished a judge for ordering a witness in a criminal case incarcerated for contempt; ordering the payment of monetary sanctions, attorney fees, and costs in a family case; and granting ex parte relief in a custody case.  Public Admonishment of Román (California Commission on Judicial Performance May 16, 2016).
  • Granting the application of the Judicial Qualifications Commission, the Iowa Supreme Court publicly admonished a judge for signing an ex parte order presented by an attorney who had recently represented her in a personal matter without charge.  In the Matter of Howes, 880 N.W.2d 184 (Iowa 2016).
  • Based on the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a justice of the peace for failing to comply with the Court’s previous order to pay a civil penalty for violation of the financial reporting requirements imposed by law and disregarding the actions and legal proceedings connected with that order.  In re Myers, 189 So. 3d 1056 (Louisiana 2016).
  • Based on the decision and recommendation of the Judicial Tenure Commission and a settlement agreement, the Michigan Supreme Court suspended a judge for 120 days without pay and publicly censured her for (1) following ex parte communications, reducing charges, dismissing charges outright, or modifying sentences in at least 20 criminal cases and dismissing at least 32 ticket cases without holding a hearing or explicit authority from the prosecutor; (2) meeting with a defendant and his counsel in the holding cell prior to a bench trial without a prosecuting attorney; (3) sending 2 ex parte texts to the judge who had been assigned to several cases after she had disqualified herself; and (4) declining to appoint a translator for the defendant when she should have.  In re Church, 879 N.W.2d 246 (Michigan 2016).
  • With the judge’s consent, the New Hampshire Judicial Conduct Committee (1) publicly reprimanded a judge for independently investigating facts on Zillow and tax records and considering those facts in reaching her decision in a divorce case and receiving and considering a real estate flyer in a second divorce case and (2) cautioned her about delays.  In the Matter of Albee, Reprimand and caution (New Hampshire Judicial Conduct Committee May 9, 2016).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly censured a judge for driving while intoxicated and identifying himself as a judge to the state trooper who stopped him.  In the Matter of Baptista, Order (New Jersey Supreme Court May 19, 2016).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly reprimanded a judge for, in chambers during a break in court proceedings, telling a deputy attorney general she was doing a great job and that he liked how she “shoves it up” or “rams it up” the law guardian’s “a**” and later in the hearing, complimenting a state’s witness while she was testifying.  In the Matter of Portelli, Order (New Jersey Supreme Court May 18, 2016).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for (1) impermissibly delegating her judicial duties by failing to review or approve dispositions and sentences negotiated by the deputy town attorney with defendants in traffic cases and (2) altering original court records requested by the Commission by placing her initials on case files, next to the prosecutor’s notation of plea agreements.  In the Matter of Calano, Determination (New York State Commission on Judicial Conduct May 9, 2016).
  • Based on the report of a referee following a hearing, the New York State Commission on Judicial Conduct publicly censured a judge for speaking about her personal tort action with the judge presiding in the case and subsequently faxing and mailing that judge a letter that included details about her claim.  In the Matter of Dixon, Determination (New York State Commission on Judicial Conduct May 26, 2016).
  • Pursuant to the judge’s agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for characterizing the father in a custody case and/or his attorney as a “sneaky snake” who had connived, engaged in a “ploy,” and manipulated the court schedule when they filed a motion to transfer and for directing that a transcript of her comments be forwarded to the transferee court.  Re Davenport (Tennessee Board of Judicial Conduct May 18, 2016).
  • Pursuant to an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a former judicial commissioner for failing to disqualify himself from a case in which one of the attorneys had recommended him for a part-time prosecutor position a month earlier or to disclose the relationship.  Re Cross (Tennessee Board of Judicial Conduct May 18, 2016).

Judicial touching

Recently, 2 judges were sanctioned for touching people in the courthouse.

The West Virginia Judicial Investigation Commission unequivocally held:  “Unwanted touching is harassment.  Therefore, a judge should never intentionally touch someone without first asking permission.”  The Commission explained:

A common phrase used by almost everyone is “don’t invade my personal space!”  What does it mean and should society be cognizant of the phrase when dealing with other people?  The Merriam Webster Dictionary defines “personal space” as “the distance from another person at which one feels comfortable when talking to or being next to that other person.”  It’s the physical distance between two people in a social, family or work environment.  As the author Robert Sommer said, “Personal space refers to an area with invisible boundaries surrounding a person’s body into which intruders may not come.”

The study of personal space is called proxemics.  There are four distinct personal space zones:  intimate (0-2 feet); personal (2-4 ft.); social (4-12 ft.) and public (more than 12 ft).  Deference for a person’s space is a sign of respect for the person.  No one should ever invade someone’s personal space in a work setting without permission.  Consequently, no one should intentionally touch someone in a work setting without permission or even in jest.  As noted by Anthropologist Jane Goodall once said, “You have to realize that touching is a real violation of personal space.”

Thus, based on an agreement that included the magistrate’s resignation, the Commission publicly admonished a now-former magistrate for coming up behind a court employee at work and placing his hands on her hips.  In the Matter of Cole, Public admonishment (West Virginia Judicial Investigation Commission April 29, 2021).  The touching was unwelcome and made the employee uncomfortable, but she did not say anything to the magistrate because of his position.  The employee did report the incident to her immediate supervisor, who contacted the chief magistrate, who reported it to the administrative office, which investigated and filed the complaint.

The magistrate said that he had no memory of the incident although he did not deny that it happened, acknowledging that he had always found the employee truthful and had no reason to believe that she made up the incident.

The magistrate admitted that, during a birthday celebration at the courthouse in 2017, he had swatted the same employee on her rear end approximately 9 times.  The magistrate said he stopped when the employee asked him to and that everyone in the room had laughed in a good-natured way.  The employee had been embarrassed but said nothing because of the judge’s status.

The Commission found:

Respondent considers himself a jokester.  Respondent said he often liked to sneak up behind the same employee and make a loud noise or touch her back in an effort to startle her.  Respondent said the employee would jump and they would both laugh.  Respondent acknowledged engaging in such activity with other employees.  Under repeated questioning, Respondent refused to admit that his actions were improper.  Instead, he claimed that he was just being spontaneous, that his actions were intended to be humorous and that he was trying to have some fun. . . .  Respondent declined to acknowledge that any unwelcome touch is an unwarranted touch or that an uneven balance of power would cause an employee to refrain from complaining about an unwanted touch. 

The magistrate agreed to stop spanking employees but “saw no need to stop touching people in an effort to scare them . . . .”

The Commission concluded that the magistrate’s touching of the employee “clearly constituted harassment . . . .  There is no place in the judiciary for a judge who has no respect for boundaries.  By his actions, Respondent cast shame on the whole judiciary and no longer deserves the title of judge.”

* * *

A Texas judge was admonished for approaching a legal assistant in his courtroom, touching her on the arm or shoulder, and rebuking her for sitting in a section of the courtroom reserved for attorneys.  In re Wilson (Texas Special Court of Review May 4, 2021).

The judge took office on January 1, 2019.  On January 29, Sarai Garza, a legal assistant for an attorney, was seated on the first bench in the judge’s courtroom, where, she testified, she had always sat with attorneys, interpreters, and other legal assistants in her 11 years as a legal assistant.

On that day, the judge apparently mistook Garza for the interpreter, saying, “Lady interpreter, are you ready?”  Noting that he was looking at her, Garza introduced herself and said that she was not the interpreter but that she would be “more than glad to help.”  Garza said that “everyone in the courtroom started laughing.”

Blasa Lopez, the interpreter, then entered the courtroom.  The judge left the bench, walked toward Lopez, and grabbed her arm.  Garza walked toward them to clear up the confusion about who the interpreter was.  Then, Garza testified, the judge grabbed and “jiggl[ed]” her right arm and told her in an “angry” and “very upset” voice that she could not sit where she had been sitting.  Garza said that his touch was painful, that she had not expected him to grab her arm in that manner, and that she was speechless.  Garza left the courtroom crying.

Lopez and an attorney who had been in the courtroom testified that they saw the judge grab Garza by the shoulder or arm.  An attorney called by the judge as a witness testified that the judge “came off the bench” in a packed courtroom of “probably 300 people,” “touched [Garza] on the elbow like [he was] trying to get somebody’s attention,” and told her that she could not be on that side of the courtroom. 

According to Garza, the judge grabbed her arm so hard that it was bruised.  Approximately 2 days later, Garza had a medical examination that indicated she presented with “[r]ight biceps and triceps, mild swelling with tenderness.” 

Lopez texted her supervisor to report the incident; the presiding judge filed the complaint with the Commission.  The incident generated a great deal of media attention.  Police investigated, but a grand jury declined to indict the judge.

The judge denied touching or grabbing Garza, or at most admitted to lightly touching her elbow or shoulder.  When asked if it was ever appropriate for a judge to touch a person in open court without their consent, the judge replied, “When a judge gently touches someone . . . it is not sexual harassment, it is not objectionable.”

The Texas Special Court of Review concluded that, “although Judge Wilson claims to not remember touching Garza, every other witness who was present . . . testified that Judge Wilson touched Garza in some way.”  The Court stated that it did not need to resolve whether the judge “forcefully touched or grabbed Garza because it is uncontested that the touching was without Garza’s permission.”  The Court also concluded that the judge’s conduct was willful because he had intended to touch Garza without her consent and to publicly admonish her in his crowded courtroom.  The Court found that the judge had failed “to treat Garza with patience, dignity, and courtesy” as required by the code of judicial conduct.

In mitigation, the Court noted that the judge had been in office for less than 30 days at the time of the incident and that the record revealed no previous or subsequent complaints against him.  However, in aggravation, it emphasized:

The misconduct took place in a public courtroom setting while Judge Wilson was robed and acting in his official capacity as a sitting judge.  The preponderance of the evidence shows that Judge Wilson’s behavior showed no regard or respect for Garza and caused her to be publicly embarrassed. . . .  Judge Wilson has largely failed to acknowledge that the charged misconduct against Garza occurred and has thus failed to take responsibility for his actions.

The Court rejected the judge’s argument “that it was ‘not objectionable’ ‘[w]hen a judge gently touches someone.’” 

The State Commission on Judicial Conduct had also ordered the judge to complete 2 hours of instruction about sexual harassment with a mentor; the Court modified that requirement to 2 hours of instruction about decorum.

Throwback Thursday

10 years ago this month:

  • Based on a stipulated agreement, the Arizona Supreme Court publicly censured a judge for repeatedly abusing his contempt power and a pattern of interference with attorney-client relationships.  Chiles, Order (Arizona Supreme court May 25, 2011).
  • The Arkansas Supreme Court publicly reprimanded a judge for conducting a Rule 11 proceeding before attempting to establish the falsity of the allegations in a motion for recusal and imposing sanctions on the attorney who filed the motion without establishing the allegations were false.  Judicial Discipline and Disability Commission v. Simes, 381 S.W.3d 764 (Arkansas 2011).
  • In lieu of filing formal disciplinary proceedings and with the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for making inappropriate public comments to a television reporter after his son parked in a handicapped parking space in the court’s public parking lot without an appropriate placard.  Public Admonition of Hunter (Indiana Commission on Judicial Qualifications May 5, 2011).
  • Based on a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for driving while intoxicated.  In the Matter of Hughes, 947 N.E.2d 418 (Indiana 2011).
  • The South Dakota Supreme Court ordered the retirement of a judge for mistreating court employees, insulting lawyers, insensitive racial and sexist jokes, conducting himself on the bench “with unconscionable arrogance,” and referring to law enforcement from the bench as a “bunch of racists” without evidentiary basis.  In the Matter of Fuller, 798 N.W.2d 408 (South Dakota 2011).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge for making an inappropriate comment to a law student at a county bar reception and having an inappropriate image on his cell phone that was viewed by the law student and others at the reception.  In the Matter of Hughes, 710 S.E.2d 75 (South Carolina 2011).
  • The Tennessee Court of the Judiciary publicly reprimanded a judge for signing ex parte orders of dismissal and expunging convictions.  Letter to Hamilton (Tennessee Court of the Judiciary May 4, 2011).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) forcing a driver to appear before him so he could lecture her about her driving; (2) directing his court staff to accept payments from defendants on behalf of plaintiffs to discharge judgments and/or to comply with settlement agreements; and (3) directing his court staff to accept rental payments from tenants on behalf of landlords in eviction cases.  Public Admonition of Corbin (Texas State Commission on Judicial Conduct May 9, 2011).

A sampling of recent judicial ethics advisory opinions

  • When an attorney alleges in a recusal motion that they had a close social relationship with a judge that deteriorated into an adversarial relationship, the judge should fully disclose the nature and extent of that relationship so a determination can be made whether recusal is required in cases in which the attorney appears.  New York Opinion 2021-48.
  • As long as a proceeding brought by a judge on behalf of their minor child is pending, the judge is disqualified from matters involving the adverse party or parties and counsel, subject to remittal.  New York Opinion 2021-23.
  • A judge may accept or reject plea dispositions but must make good faith, individualized determinations regarding the law and its application and may not adopt a broad policy. New York Opinion 2021-46.
  • A judge may direct the court clerk to include with unlawful detainer summonses materials that describe legal and financial assistance available to tenants without giving contemporaneous notice to landlords if the clerks provide notice and a copy to landlords when they file the matter and the materials state that they are not an official court communication and that the court does not endorse the information or require tenants to avail themselves of the resources.  Virginia Opinion 2020-1.
  • Judges may use social media to make statements about the law, the legal system, or the administration of justice, including legislation affecting the judiciary or the legal system, but judges must exercise caution and restraint; should assume the widest possible audience due to lack of control over the dissemination and permanence of online statements; may not engage in prohibited social or political commentary; must carefully evaluate what they intend to post; and must continually monitor reactions to their statements and the social media forums they use.  California Expedited Opinion 2021-42.
  • A judge who views another judge’s profile on Facebook and sees that it has posts regarding the 2020 presidential election, media coverage, and bias; links to articles about politics; internet memes regarding politics; expressions of political opinions; and exchanges about politics must report the other judge to the appropriate authority.  Massachusetts Opinion 2021-1.
  • A judge with personal knowledge that an attorney knowingly assisted a client effectuate a transfer of disputed real estate under false pretenses must report the attorney to the appropriate grievance committee.  New York Opinion 2020-213.
  • A judge may not write and publish an article that analyzes a criminal statute, asserts that the Virginia Supreme Court has incorrectly interpreted that statute, and provides an alternative interpretation.  Virginia Opinion 2020-2.
  • A judge may not serve as a member of a county task force created to address hate crimes if the task force has a broad agenda, including legal, educational, social, and policy reforms, but may assist the task force in other ways, for example, by appearing before, providing information to, or advising it on issues within the judicial branch’s purview and relating to the judge’s experiences and perspective as a judge.  California Expedited Opinion 2021-41.
  • A judge may solicit other judges to join, or renew their memberships in, a local bar association, but may not solicit attorneys or other non-judges.  New York Opinion 2021-34.
  • A judge may not be a member of a bar association task force that will monitor and discuss fiscal and human rights issues faced by residents of Puerto Rico.  New York Opinion 2020-209.
  • A judge may not be a member of a voluntary bar association that endorses a particular candidate for appointment as U.S. Attorney.  Florida Opinion 2021-1.
  • A judge may not serve on the board of directors of a not-for-profit senior housing development that is likely to regularly engage in adversarial litigation in any court.  New York Opinion 2021-34.
  • A judicial officer may serve on the board of an organization even if another member of the board is a partner in a firm that regularly appears before the judicial officer on child support cases.  Florida Opinion 2021-2.
  • A judge may allow a CASA program to post pictures of the judge in court in an adoption proceeding (without identification of the child) and to quote the judge on the beneficial value of the program on, for example, the program’s website, social media, and newsletter.  A judge may not submit written correspondence to the local county board in support of funding for the CASA program.  A judge may attend a CASA program’s annual fund-raising event if the judge pays but may not speak at the event.  A judge may speak at educational sessions for volunteers to the CASA program regarding the court’s expectations of a CASA volunteer.  Nebraska Opinion 2021-1.
  • A judge may notify the media relations staff of the administrative office of the court notice that a charitable organization has begun producing handmade robes as part of its mission to break the cycle of poverty for Baltimore citizens returning from prison.  Maryland Opinion Request 2021-3.
  • A judge who objected orally and in writing to their name being in an email soliciting funds for a charitable cause need not take any further action.  A judge may contribute their personal funds, alone or with a co-judge, to sponsor a family in need and may be identified by name and title in doing so but may not make charitable contributions in the name of the court or permit their court staff to do so.  New York Opinion 2020-190.
  • A judge may not provide a biographical video for use in a not-for-profit organization’s social media campaign if the required release and the overall context create an impression that the video will be used to promote the organization and its gala fund-raising event.  New York Opinion 2021-31.
  • A judge may serve as president of a not-for-profit organization that supports a branch of the U.S. military through education, community outreach, youth programs, and programs and services for military personnel and their families.  New York Opinion 2021-47.
  • A judge may not serve on the advisory board of the Center for Court Innovation, which provides alternatives to detention and incarceration for criminal defendants.  New York Opinion 2020-212.
  • A judge may volunteer as an editor for a not-for-profit poetry journal.  New York Opinion 2021-53.
  • A judge may not serve on a committee investigating sexual harassment claims against a member of a worldwide not-for-profit service organization even if the individual is in another county.  New York Opinion 2021-55.
  • A judge may serve on the search committee for the dean of a law school that is financially supported primarily by New York State or one of its political subdivisions, even if the prior dean’s tenure or departure was controversial.  New York Opinion 2021-70.
  • A judge may write a letter about their personal experience while attending a law school and practicing law in the same community that will be sent to prospective law students by the admissions department of a law school in an effort to further diversity at the law school and in the legal community if the school will not use the letter in general fund-raising efforts.  Washington Opinion 2021-2.
  • A judge who is the parent of a child on the autism spectrum may write an article supporting proposed state legislation prohibiting the use of seclusion and restraints as behavior modification tools for public school students who have autism or are on the autism spectrum but may not be identified as a judge.  Florida Opinion 2021-3.
  • A judge may not participate in an interview with a local news station regarding the experiences of the judge’s first-degree relative at a local nursing home.  New York Opinion 2021-24.
  • A new judge may wind down their prior law practice and collect previously earned legal fees, including billing an assigned counsel program for services and complying with a state administrative agency’s requirements for obtaining payment of previously awarded legal fees.  New York Opinion 2021-13.
  • A judge may not participate in a proposed not-for-profit corporation that would be controlled by the judge’s family and would feature the judge as its sole compensated lecturer with a sliding scale of fees.  New York Opinion 2020-200.
  • A judge may not invest in a publicly traded company the sole business of which is the sale of medicinal and recreational marijuana and other cannabis-related products if the company is operating in the U.S. in violation of federal law.  New York Opinion 2020-208.
  • A judge may attend a sporting event or concert in a luxury box as a guest of their spouse when use of the luxury box seats is a benefit incident to the spouse’s employment as an officer of a company that is unlikely to come before the judge.  New York Opinion 2021-35.
  • A judge may seek appointment to a non-judicial employment position with the executive branch of the federal government but must resign prior to accepting the appointment.  Wyoming Opinion 2021-1.