Throwback Thursday

5 years ago this month:

  • Approving the findings, conclusions, and recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for sending a letter to a university president and engaging in an ex parte communication with the chief assistant state attorney on behalf of a defendant over whose case he was presiding in veteran’s court.  Inquiry Concerning Holder, 195 So. 3d 1133 (Florida 2016).
  • Approving a revised consent judgment, the Florida Supreme Court publicly reprimanded a judge for finding the victim in a domestic violence case in contempt for failing to respond to the prosecution’s subpoena to testify at trial and being discourteous and impatient toward the victim; the Court also ordered the judge to complete an anger management course and attend a domestic violence course offered by the Florida Judicial College.  Inquiry Concerning Collins, 195 So. 3d 1129 (Florida 2016).
  • The Georgia Judicial Qualifications Commission publicly admonished a judge for, in response to a defendant’s obscene remarks and display of utmost contempt for the court, making highly inappropriate remarks in a murder case.  Durham (Georgia Judicial Qualifications Commission July 29, 2016).
  • Pursuant to the judge’s agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a former judge for making numerous mocking statements to criminal defendants in open court, making numerous inappropriate statements to criminal defendants in an attempt to influence their decisions, making numerous critical statements to defense attorneys, making numerous inappropriate statements regarding fellow judges and court personnel while on the bench, and failing to take adequate steps to apprise criminal defendants of their rights in open court.  In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016).
  • Based on the finding of a hearing justice after a de novo review of a report of the Committee on Judicial Responsibility and Disability, the Maine Supreme Judicial Court suspended a part-time judge for 30 days and publicly censured him for statements he made in a letter to counsel regarding a court proceeding in which he was a party.  In the Matter of Nadeau, 144 A.3d 1161 (Maine 2016).
  • Pursuant to the judge’s waiver of his right to demand a formal complaint and public hearing, the Minnesota Board on Judicial Standards publicly reprimanded a judge for accusatory, hostile, and discourteous comments he made in 2 family law cases.  Public Reprimand of Stacey (Minnesota Board on Judicial Standards July 26, 2016).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for unilaterally amending a charging instrument, negotiating a plea with the defendant, and leaving a threatening, intimidating, and harassing voicemail message for the defendant.  Public Reprimand of Scales (Texas State Commission on Judicial Conduct July 18, 2016).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for driving while intoxicated and repeatedly invoking his judicial position during the traffic stop; the Commission also ordered the judge to obtain 2 hours of instruction with a mentor.  Public Admonition of Glicker and Order of Additional Education (Texas State Commission on Judicial Conduct July 12, 2016).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a court commissioner for meeting privately with a former judge before a hearing in a case in which the former judge’s daughter was a litigant and failing to disclose that contact; allowing the former judge to argue a motion to the court; and voiding a valid court order despite the daughter’s absence from the hearing.  In re Anderson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 15, 2016).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for refusing to allow a defendant to testify when he would not, for religious reasons, raise his hand while affirming he would tell the truth.  In re Parise, Stipulation, agreement, and admonishment (Washington State Commission on Judicial Conduct July 15, 2016).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for failing to comply with state campaign reporting laws.  In re Tveit, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 15, 2016).
  • The West Virginia Judicial Inquiry Commission publicly admonished a magistrate for endorsing a judicial candidate and failing to respond to Disciplinary Counsel’s request for information and to be candid in her reply.  In the Matter of Campbell (West Virginia Judicial Inquiry Commission July 11, 2016).
  • The West Virginia Judicial Investigation Commission publicly admonished a magistrate for posting bond for her granddaughter, having improper ex parte communications with the special magistrate presiding over the case, and accepting a discount from the bond company.  In the Matter of Viderman, Amended public admonishment (West Virginia Judicial Investigation Commission July 5, 2016).

A sampling of recent judicial ethics advisory opinions

  • For purposes of the exception to the prohibition on ex parte communications, a mediator is not court staff or a court official whose role is to assist the judge in adjudicative responsibilities.  A judge who has referred a case to alternative dispute resolution may not discuss concerns about the case and the parties’ relative bargaining positions with the mediator outside the presence of the parties.  After mediation, the mediator may report to the judge whether the mediator has been successful but may not disclose the terms of the settlement, except as the parties may agree or as allowed by the mediation procedures act.  New Mexico Opinion 2021-3.
  • A judge may not perform a simulated public marriage ceremony for a couple who are keeping private that they already got married in an earlier private ceremony during the pandemic. Maryland Opinion Request 2021-10.
  • Judges may serve on the state bar’s Access to Justice Commission and the statutorily-created Child Welfare Council. California Expedited Opinion 2021-43.
  • A judge may not serve on the board of trustees of a city’s arts council. Utah Informal Opinion 2021-2.
  • A judge may serve as a member of the judiciary board of a church, which interprets policy and practice and is the ultimate authority on church constitutional and ecclesiastical interpretation. Virginia Opinion 2021-1.
  • A judge may serve on the board of directors of a local non-profit entity that provides mediation services to litigants who may come before the judge’s court. Maryland Opinion Request 2021-8.
  • A judge who sometimes decides ex parte applications for search warrants directed at a particular social media company may not give an in-house address to the company’s employees about how legal process is authorized, the use and purpose of the company’s records in legal proceedings, and the importance of accuracy and vigilance in response to legal process. New York Opinion 2021-65.
  • A judge may participate, without compensation, in a commercially produced documentary comparing judicial systems around the world as long as they do not create an appearance that they are an “active participant” in the business that is producing the film and do not promote the program to the public at large. New York Opinion 2021-67.
  • A judge may publish through a commercial publisher a legal suspense novel set in both real and fictional Massachusetts locations and engage in promotional activities, including maintaining a website, building a mailing list, conducting virtual book club events or readings, attending book signings, and maintaining profiles on social media websites, as long the promotional activities do not invoke the prestige of the judicial office or otherwise violate the code, taking particular care when promotional activities use social media. A judge may not use judicial email or court mailing lists to promote sales of their novel. A judge should not directly sell or be involved in financial transactions for the sale of copies of their novel; for example, at a book signing, the financial transactions for the sale should be handled by someone other than the judge. A judge should not participate in promotional activities at a courthouse or any other location that would lend the prestige of judicial office to efforts to sell the judge’s novel. When a book has appeal to a wider audience, a judge should not target lawyers in efforts to promote the book. A judge may be identified as a judge or by title in biographical materials that contain only factual statements, including on the book jacket, as long as their position is not unnecessarily emphasized or exploited. At book-signing events and in public discussion of their book, a judge may identify as a judge in response to questions. A judge should only state their judicial position in an incidental way, without relating their position to the novel. Massachusetts Letter Opinion 2021-2.
  • A judge may write a chapter of a book about reforms in child welfare in the public and not-for-profit sectors. New York Opinion 2021-71.
  • A judge may speak at a bar association’s fund-raising event to introduce a video clip highlighting the bar association’s “Women’s History Project” initiative even though others will solicit funds during the event, provided that they do not personally solicit funds. New York Opinion 2021-75.
  • A judge who belongs to a national judicial association may vote on a resolution that would prohibit the association from holding conferences in jurisdictions where protections for lesbian, gay, bisexual, transgender, or queer individuals have been repealed or where discriminatory LGBTQ laws have been enacted and is not required to resign from the association if the resolution passes. New York Opinion 2021-81.
  • A judge may serve on a committee for a national judicial association’s local chapter that provides support and assistance to women in prison as they prepare for their transition back into the community. New York Opinion 2021-81.
  • A judge cannot nominate the elected prosecutor who is currently running for re-election for the West Virginia State Bar Citizen Soldier Awards. West Virginia Opinion 2020-6.
  • A judge who is a poet by avocation may share their poetry at free online creative arts panels organized by a not-for-profit museum and a state university and accept an honorarium that is offered to all participating poets and panelists. New York Opinion 2021-52.
  • A judge may not allow their likeness to be used to create a non-fungible token (NFT) that would be auctioned off by a for-profit organization that would donate part of the funds to legal aid societies and other organizations that promote greater access to justice. Tennessee Opinion 2021-1.
  • A judge-elect must immediately resign as a bail bondsman. West Virginia Opinion 2020-20.
  • A judge-elect may continue to serve as a member of the city council until they take the oath of office as a judge but not after. West Virginia Opinion 2020-21.
  • A magistrate cannot simultaneously serve as an EMT or fire fighter. West Virginia Opinion 2020-28.
  • A judge may provide limited law-related advice to a family member, similar to the kinds of information that a judge can provide a self-represented party in a hearing, including statements of law, explanations of court procedures and court rules, directions to community resources for finding a lawyer, information about the process for securing witnesses, and guidance about elements of proof or other legal requirements. A judge may provide a family member with advice relating to a matter in which the judge is also personally involved when the judge is acting in their own personal interest or in a representative capacity permitted under the code. California Formal Opinion 2021-17.
  • A judge may prepare a deed for a home that they are selling. West Virginia Opinion 2020-15.
  • A judge may not organize a virtual fashion show for judges that would showcase robes designed to suit the height, body shape, and style of women judges; would include a display by an artist who makes and sells bracelets in tribute to a trail-blazing female jurist; and would display pins and statement/bib necklaces from judges’ collections and advise where the items were bought or can be purchased. New York Opinion 2021-73.
  • A judge may host a make-up party for family members and close personal friends who are not likely to come before the judge and receive credit/percentage off the purchase of an item as a reward. West Virginia Opinion 2020-19.
  • A district court commissioner may not obtain and use medical marijuana. Maryland Opinion Request 2021-6.
  • A judge may reach out to individuals in their community to discuss the judge’s qualifications and interest in appointive judicial office but may not compensate those individuals for their time or assistance. New York Opinion 2021-64.
  • A judge whose spouse is running for governor may attend a fund-raiser on their behalf but only if it is held outside the marital home; cannot appear in a parade with the spouse; and cannot introduce them or speak about them at campaign events. The judge’s name and photograph may appear in their spouses’ campaign literature or other official campaign photographs if they are not identified as a judge. West Virginia Opinion 2019-22.
  • A judge may not sign a letter opposing the impeachment of the President of the United States. West Virginia Opinion 2020-5.
  • Subject to generally applicable limitations on campaign speech and conduct, a judicial candidate may permit their campaign committee to establish a Twitter account to keep voters and community leaders informed about events, to direct them to the campaign website, and to “follow” the candidate’s opponent and/or other candidates. New York Opinion 2021-40.
  • A judge must resign from judicial office if they authorize or knowingly permit their name to appear on a publicly circulated nominating petition as a candidate for a non-judicial office. New York Opinion 2021-50.

Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for numerous improper ex parte communications with the parties on 1 side of a case.  Jayne, Order (Arizona Commission on Judicial Conduct July 26, 2011).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for making derogatory statements toward a litigant, who was also a hearing officer, and toward another judge on his court.  Parker, Order (Arizona Commission on Judicial Conduct July 26, 2011).
  • Accepting the recommendation of the Judiciary Commission based on a stipulation, the Louisiana Supreme Court publicly censured a judge for failing to immediately self-recuse from a divorce case despite his long-standing, close friendship with both parties, continuing to socialize with the husband and having ex parte conversations with him when a custody dispute arose, and signing an ex parte order giving the husband interim physical custody of their child that was contrary to statutory requirements.  In re Badeaux, 65 So. 3d 1273 (Louisiana 2011).
  • Based on a stipulation in which the judge agreed never to serve as a judge against, the Nevada Commission on Judicial Discipline permanently prohibited a former judge from seeking or accepting judicial office in the state for repeatedly engaging in extremely inappropriate and offensive comments and actions with court staff even after being advised that his conduct was unacceptable and offensive.  In the Matter of EnEarl, Findings of Fact, Conclusions of Law, Consent Order Imposing Discipline (Nevada Commission on Judicial Discipline July 1, 2011).
  • The New Hampshire Judicial Conduct Committee publicly reprimanded a retired judge for his demeanor in 3 criminal cases.  Jones, Reprimand (New Hampshire Judicial Conduct Committee July 9, 2011).
  • Accepting an agreed statement of acts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for taking judicial action in 9 cases in which a client of the judge’s law firm represented a party.  In the Matter of Shults, Determination (New York State Commission on Judicial Conduct July 7, 2011).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for presiding at an arraignment when the defendant was his co-judge’s son and the complaining witness was his co-judge.  In the Matter of Ridsdale, Determination (New York State Commission on Judicial Conduct July 20, 2011).
  • The North Carolina Judicial Standards Commission publicly reprimanded a judge for asking another judge to remit costs and a fine in traffic case against the county register of deeds; the judge accepted the reprimand and agreed to send a formal letter of apology to the other judge.  Public Reprimand of Hayes (North Carolina Judicial Standards Commission July 26, 2011).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for, during the magistration of a college student charged with the alleged theft of an Aggie ring, displaying his own Aggie ring, advising the student that he should consider attending another school, and relying on information not in the probable cause affidavit to enhance the standard bond for a state jail felony from $5,000 to $50,000; the Commission also ordered the judge to obtain 10 hours of instruction with a mentor.  Public Reprimand and Order of Additional Education of Boyett (Texas State Commission on Judicial Conduct July 11, 2011).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for driving while intoxicated and hit and run.  In re Lyman, Stipulation, Agreement, and Order of Reprimand (Washington State Commission on Judicial Conduct July 8, 2011).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for summarily holding a domestic violence complainant in contempt after she recanted a statement she had given to the police; the judge also agreed to attend more training on domestic violence within 1 year.  In re Shelton, Stipulation, Agreement, and Order of Reprimand (Washington State Commission on Judicial Conduct July 8, 2011).

Recent cases

  • The Alabama Court of the Judiciary suspended a judge’s salary for 3 months and publicly censured him for, while on the bench and dressed in his judicial robe, threatening that he would take action against the defendant in a traffic ticket case if she sued his adult son, losing his temper, yelling profanity, and calling the defendant disparaging names; the Court also ordered the judge to complete 12 hours of judicial education, issue a formal written apology to the defendant, and pay costs.  In the Matter of Price, Final judgment (Alabama Court of the Judiciary June 15, 2021).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for repeatedly failing to abide by administrative orders regarding the use of face coverings in court facilities during the COVID-19 pandemic and for refusing to regularly review his court emails; the Commission also ordered the judge to review a podcast about pandemic-related issues and the duty to abide by administrative orders presented in August 2020 to justice court judges. Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for speaking sharply to court staff when she was disconnected from a Zoom hearing and yelling when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case in a separate incident; the Commission also ordered the judge to complete the courses “Leadership for Judges” and “Mindfulness for Judges” offered by the National Judicial College. Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to issue a timely ruling in 1 case and signing a payroll certification while knowing that the ruling was overdue. Jantzen, Order (Arizona Commission on Judicial Conduct June 11, 2021).
  • Accepting the findings and recommendation of the Judicial Discipline & Disability Commission based on an agreement, the Arkansas Supreme Court suspended a judge for 90 days without pay for asking a public defender if she was going to file another complaint against him if he did not accept a plea negotiation; the Court held 60 days of the suspension in abeyance for 1 year conditioned on the judge attending a class on mindfulness, patience, or civility, on the judge consulting with a counselor or life coach about how to treat the professionals appearing in his court, and on the Commission receiving no complaints that result in public charges or agreed discipline. Judicial Discipline & Disability Commission v. Sims (Arkansas Supreme Court June 3, 2021).
  • Accepting a motion for consent discipline based on a joint stipulation and memorandum, the Louisiana Supreme Court publicly censured a Supreme Court Justice for a meeting that interfered with and/or had the potential to interfere with the relationship between a candidate in a highly contested campaign for a different seat on the Court and a worker in the candidate’s campaign. In re Hughes (Louisiana Supreme Court June 30, 2021).
  • Adopting in part the recommendations, findings, and conclusions of the Judicial Tenure Commission, the Michigan Supreme Court imposed a 6-year suspension without pay on a former judge if he is elected or appointed to judicial office during the next 6 years for (1) while he was a prosecutor, depositing county funds into his and his family’s personal bank accounts and failing to keep any records related to those funds; (2) pleading no-contest to a crime and subsequently making false statements about the plea; (3) failing to disclose his relationships with 3 attorneys when he presided over cases in which they appeared or to disqualify himself from those cases; and (4) testifying falsely before the Commission. In re Konschuh, Order (Michigan Supreme Court June 11, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded an investigation of allegations that a non-lawyer judge had conveyed the impression of bias against LGBTQ individuals and publicly posted on his personal Facebook page anti-LGBTQ content, expressions of anti-Muslim bias, partisan political content, expressions of bias in favor of law enforcement and against criminal defendants, and commentary on pending cases, including the murder trial of former Minneapolis Police Officer Derek Chauvin. In the Matter of Knutsen, Decision and order (New York State Commission on Judicial Conduct June 10, 2021).
  • Accepting a stipulation based on the judge’s affirmation that she has vacated her office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded an investigation of allegations that the judge had (1) pushed a county assistant district attorney outside her courtroom one evening when court was in session and the courtroom was full of lawyers, litigants, and others; (2) accused a different county assistant district attorney of being “anti-Semitic” when they would not offer a lenient plea to an associate of the judge’s husband in a traffic matter; (3) turned court audio recording equipment on and off in the middle of proceedings; (4) presided over and took pleas in traffic matters without an assistant district attorney present; (5) locked the court while she traveled to prevent the associate village court justice from presiding over matters in her absence; (6) exhibited inappropriate demeanor on the bench and in interactions with assistant district attorneys and other attorneys and litigants; and (7) a matter revealed in an audit of the court’s finances. In the Matter of Fishkin, Decision and order (New York State Commission on Judicial Conduct June 10, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a complaint alleging that a non-lawyer judge, who took office in January 2020, had (1) continued to work as town justice despite failing to attend the Office of Court Administration training program for town and village court judges, failing to pass the required examination, and failing to be certified as required by court rules and (2) failed to cooperate in the Commission investigation. In the Matter of Novak, Decision and order (New York State Commission on Judicial Conduct June 11, 2021).
  • Adopting the recommendation of the Judicial Standards Commission, which was based on stipulations, the North Carolina Supreme Court publicly censured a former judge for a pattern of inappropriate and sexual communications on Facebook with numerous women, many of whom were involved in matters pending in his district; engaging in these communications while on the bench in the courtroom; taking frequent breaks, frequently continuing cases, and frequently recusing himself to have conversations or physical encounters with the women he contacted on Facebook; making misrepresentations and misusing the prestige of office to solicit assistance from law enforcement during an investigation of an attempt to extort him by one of the women; and making material misrepresentations to the Commission. In re Pool (North Carolina Supreme Court June 11, 2021).
  • Based on its findings of misconduct, the Pennsylvania Court of Judicial Discipline suspended a judge for 6 months without pay for (1) failing to file opinions in 24 appeals within the fast track time limits established by court rule in dependency and termination of parental rights proceedings; (2) incarcerating parents for contempt without a legal basis in 3 cases; detaining parents in holding cells with the threat of longer incarceration without a legal basis in 2 cases; threatening to incarcerate parents in the absence of any evidence of contempt in 1 case; and improperly holding an attorney in civil contempt; (3) in numerous dependency and termination of parental rights proceedings, exhibiting an angry, arrogant, demeaning, rude, dismissive, condescending, callous, and impatient demeanor; (4) repeatedly failing to accord the right to be heard to parents and guardians, to lawyers representing parents and guardians, and to the Department of Human Services; deciding issues without hearing testimony or holding hearings; refusing to admit medical reports; repeatedly interrupting testimony; and rushing a non-placement review hearing; and (5) during several dependency hearings, applying the standard for permanency hearings. In re Younge, Opinion and order (Pennsylvania Court of Judicial Discipline June 2, 2021). The Court also placed the judge on probation until the end of her current term in January 2026; prohibited the judge from serving in the family court division during her probation; ordered the judge to consult with a mentor; and ordered her to write and deliver a letter of apology to each person she wronged.
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for setting “no bond” on a misdemeanor motion to revoke probation without addressing the statutory factors for setting bail and for engaging in impermissible ex parte communications with the probationer and others concerning the merits of the proceeding; the Commission also ordered that the judge receive 2 hours of additional education concerning judicial ethics and criminal procedure with a mentor. Public Admonition of Lilly and Order of Additional Education (Texas State Commission on Judicial Conduct June 18, 2021).

Throwback Thursday

20 years ago this month:

  • Granting the application by the Commission on Judicial Qualifications, the Iowa Supreme Court suspended a judge for 60 days without pay for (1) being dilatory in filing rulings and in making reports on unfinished rulings as required by a supreme court rule and (2) having an intimate relationship with an assistant county attorney who regularly appeared before him without recusing from or disclosing the relationship in cases in which she appeared.  In the Matter of Gerard, 631 N.W.2d 271 (Iowa 2001).
  • Modifying the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court suspended a judge for 6 months without pay for (1) inappropriately handling an arraignment; (2) attempting to induce a defendant to waive a jury to expedite a second case; and (3) constantly and repeatedly adjourning trials without good cause; repeated unnecessary and unexcused absences from judicial responsibilities during normal court hours; and overall lack of industry and proper management of her court docket; and an unwillingness to take corrective action or accept constructive suggestions or assistance to improve case management.  In re Hathaway, 630 N.W.2d 850 (Michigan 2001).
  • Pursuant to an agreed statement of facts and recommendation, the Mississippi Supreme Court publicly reprimanded a judge and fined him $765 for ex parte communications and dismissing speeding tickets without conducting any hearing or notifying the officers who issued the citations.  Commission on Judicial Performance v. Warren, 791 So. 2d 194 (Mississippi 2001).
  • Pursuant to the presentment of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge for 3 months without pay for publicly confronting a man with whom she had had a romantic relationship and his companion at a saloon, giving false and misleading information to police when she talked to them during the incident, and coming “dangerously close to impersonating a police officer” when she called the saloon.  In the Matter of Williams, 777 A.2d 323 (New Jersey 2001).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a part-time non-lawyer commissioner who had publicly endorsed both Republican and Democrat candidates for county commissioner and identified herself as a member of a political party in an advertisement for one of the candidates.  In re Walters, Stipulation, Agreement and Order (Washington State Commission on Judicial Conduct July 5, 2001).
  • Based on a complaint brought by the Judicial Commission, the Wisconsin Supreme Court suspended a judge for 75 days without pay for threatening to make public his allegations against the county’s chief judge, the chief judge’s daughter (an attorney in the county district attorney’s office), and the district court administrator unless the chief judge dropped his attempts to regulate the judge’s court hours.  In the Matter of Crawford, 629 N.W.2d 1 (Wisconsin 2001).

In contravention of protocols

Failing to comply with state court orders regarding proceedings during the coronavirus pandemic was the basis for recent confidential resolutions of complaints against 2 judges.

With the judge’s agreement, the Kentucky Judicial Conduct Commission privately reprimanded a judge for actively discouraging attorneys from electing to appear remotely during the pandemic and suggesting that clients may be directly prejudiced by an attorney’s decision to appear remotely.

In a June 2020 order during the first attempt to re-open the courts during the pandemic, the Kentucky Supreme Court required judges to permit those who were high risk or who had been exposed to COVID-19 to appear remotely.  “In contravention” of that directive, a judge “actively discouraged attorneys from appearing remotely.”  The judge, in open court, “freely voiced frustrations with remote court appearances to litigants and attorneys . . . .”  The judge also required attorneys who chose to appear remotely (1) to verify that they maintained malpractice insurance, which the judge did not require for attorneys appearing in-person, and (2) to sign an agreement that waived the right to request reconsideration of rulings based on technical difficulties or confusion, required attorneys to acknowledge that appearing remotely was solely that attorney’s choice, and warned that the choice to appear remotely may prejudice litigants.  These measures were intended to deter attorneys from appearing remotely and penalized high-risk and possibly exposed attorneys.

In mitigation, the Commission noted that the judge had “attempted to rectify the issue with remote appearances” before being contacted by the Commission and fully cooperated in the investigation.

* * *

The Arizona Commission on Judicial Conduct found that a judge had occasionally failed to wear a mask as required by COVID-19 safety protocols promulgated by the state supreme court and touched court papers after licking his fingers.  The Commission also found that, when he learned that a complaint had been filed with the human resources department regarding his conduct, the judge spoke tersely to his staff, advised them that he would no longer socialize with them, and temporarily excluded staff from assisting him with weddings.  Although it dismissed the complaint against the judge, in a warning letter, the Commission reminded the judge of his obligations to follow administrative orders and to be patient, dignified, and courteous with staff and that his “outburst . . . could be perceived as retaliation and have a chilling effect on staff’s right and duty to report misconduct.”

4 judges have been publicly sanctioned for conduct related to the COVID-19 pandemic.  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”); 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).

Throwback Thursday

25 years ago this month:

  • With the judge’s consent, the California Commission on Judicial Performance publicly admonished a judge for (1) denying a defendant his right to appointed counsel based on the ability of others to pay for counsel and on the possibility of future employment; (2) acting unjudicially in handling peremptory challenges; (3) appearing to exhibit animosity toward the public defender’s office and certain attorneys in that office, making improper, derogatory comments about them and writing to the public defender and accusing his office of taking a case for improper reasons; and (4) acting in excess of his authority in a matter involving the imposition of sanctions.  Public Admonishment of Drew (California Commission on Judicial Performance July 1996).
  • The Indiana Commission on Judicial Qualifications publicly admonished a judge for appearing to give preferential treatment to attorneys for collection agencies over individual litigants or their lawyers.  Admonition of Barnard (Indiana Commission on Judicial Qualifications July 10, 1996).
  • The Indiana Commission on Judicial Qualifications publicly admonished a judge for signing an inaccurate affidavit submitted to the court of appeals in an appeal from a case over which he had presided.  Public Admonition of Johnson (Indiana Commission on Judicial Qualifications July 11, 1996).
  • The Kansas Commission on Judicial Qualifications entered an order requiring a retired judge to cease and desist from violating state laws, including those relating to the consumption and use of alcoholic beverages, after the judge had been charged with driving a motor vehicle while under the influence and entered into a diversion agreement in which he agreed to the facts in the police report.  Inquiry Concerning Barbara, Order (Kansas Commission on Judicial Qualifications July 2, 1996).
  • Accepting the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for (1) becoming involved in a worthless check case in which the prosecuting witness was a personal friend and (2) entering improper orders in a child custody matter.  In re Ammons, 473 S.E.2d 326 (North Carolina 1996).
  • Accepting the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly reprimanded a family law master for attempting to get litigants in a case to agree to become sales representatives for Amway.  In the Matter of Phalen, 475 S.E.2d 327 (West Virginia 1996).

Alternative interpretation

A recent judicial ethics opinion from Virginia advised that a judge may not write an article analyzing a particular criminal law statute, asserting that the state supreme court has incorrectly interpreted that statute, and providing an alternative interpretation, even if the judge includes disclaimers stating that the article does not express an opinion on any case that may come before the judge and complies with the code of judicial conduct.  Virginia Advisory Opinion 2020-2.  The opinion was approved by the Virginia Supreme Court pursuant to a rule requiring that the Judicial Ethics Advisory Committee “submit any proposed advisory opinion to the Supreme Court of Virginia for approval prior to its release to the inquirer and the public.”

The inquiring judge proposed writing an article to be submitted to bar association publications.  The committee assumed that the judge would write the article “in a scholarly and respectful manner, with a tone that would not otherwise undermine public confidence in the integrity and impartiality of the judicial system” and without discussing cases that are not pending or impending before any court.  The committee advised that, if the article only analyzed the statute and the Court’s interpretation, its content “would likely be within the bounds” of the code of judicial conduct and “a permissible educational or scholarship exercise concerning the law, the legal system, and the administration of justice.”

The problem, the committee stated, was that the judge also intended “to assert that the Court has interpreted the statute ‘incorrectly’ and to provide an alternative interpretation,” that is, “to criticize a superior court’s decision in a public forum (as opposed to authoring a judicial opinion in the context of an active case being decided by the judge).”  The committee explained that readers of the judge’s alternative interpretation would likely infer that the author would rule according to the alternative interpretation if the issue were presented to them as a judge.  Although it acknowledged that “impartiality does not mean that judges have no prior opinions about legal issues that come before them,” the committee concluded that, “in terms of that natural tension between having developed opinions about certain areas or issues of law and being open-minded, the proposed content of the article appears to be the type of pre-judging or predisposition that would create in reasonable minds a perception that the judge is partial.”  “This,” the committee concluded, “is not permitted by the Canons.”

The committee also concluded that the disclaimers proposed by the judge were “not enough to render the proposed article permissible under the Canons.”  It explained:

The committee noted that it does not have the authority to address First Amendment issues.

Despite any disclaimer, should the issue arise in a case before the judge, litigants would be on notice of how the judge is predisposed to deciding the case, and would have to tailor their arguments accordingly.  More likely, a litigant with facts or arguments that conflict with the judge’s interpretation would request the judge’s recusal . . . , since the judge’s impartiality might reasonably be questioned.  Depending on the number of cases that arise involving that statute, continual recusals could potentially impact the workload in that judicial district.

1 committee member dissented from the opinion, arguing that “scholarly works on legal topics should be encouraged among judges – especially when an appellate court may have misapplied a rule of construction or applied faulty logic.  If, to borrow from Hans Christian Andersen’s folk tale, the emperor has no clothes, it’s up to the members of his court to respectfully point that out.”

The dissent noted that the inquiring judge did not plan to write “an article advocating nullification of a law . . . , or casting aspersions on the competence or integrity of members of the judiciary . . . , or suggesting a need for rebellion and defiance against the appellate court’s ruling . . . .”  Stating that “improving the law is best done in an environment of robust and honest dialogue,” the dissent argued that “we should not add to the Judicial Canons the motherly maxim, ‘if you don’t have something good to say, don’t say it at all!’ . . .  Barring publication of constructive and scholarly comments by a judge on issues relating to legal analysis would . . . silence those who would be most competent to speak to the issue, . . . inappropriately suggest that decisions of appellate judges are beyond criticism, and . . . inappropriately curtail activities designed to improve administration of justice.”  The dissent explained:

A judge who takes the time and effort to offer constructive comment about interpretation of a statute is demonstrating respect for the law.  Moreover, suggesting an alternate analysis to be applied by the Supreme Court is not the same as suggesting that the article’s author or anyone else should disregard the effect of precedent.  Publishing constructive criticism does not mean that a judge is going to disregard his or her duty to adhere to decisions of higher courts.  Moreover, a judiciary that bars constructive comment about the law implies that appellate courts are closed minded, not open to discussion and unfairly biased toward their own predisposition.

. . . The legal system would be greatly weakened by a rule foreclosing a judge’s suggestion that rules of construction support a different interpretation of an existing statute.  Such limitation on open dialogue would compromise the opportunity to achieve greater competence and thereby undermine faith in the law.

Throwback Thursday

5 years ago this month:

  • Agreeing with the recommendation of the Judiciary Commission based on stipulations, the Louisiana Supreme Court removed a judge for (1) in a collections case, rendering a judgment without giving the defendants a meaningful opportunity to be heard, without requiring the plaintiff to present any evidence or sworn testimony, and without giving the defendants written notice of the judgment against them; displaying bias or prejudice in favor of the creditor and/or against the defendants; (2) routinely notarizing power of attorney forms when the purported affiants did not appear before him, swear out an oath, or sign the forms in his presence; and (3) using a notary stamp that gave the incorrect impression he is an attorney.  In re Gremillion, 204 So. 3d 183 (Louisiana 2016).
  • Based on the findings of fact and recommendation of the Judiciary Commission, which the judge did not contest, the Louisiana Supreme Court suspended a judge for 15 days without pay for investigating a probationer’s background through ex parte communications, adjudicating the matter without the prosecuting agency, and making observations from the bench based on his acquaintance with the probationer through their involvement in the same church.  In re Best, 195 So. 3d 460 (Louisiana 2016).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court suspended a judge for 1 year without pay for (1) interrupting a private meeting between the family members of the victims and members of the district attorney’s office after a hearing in a criminal case before him and making an inappropriate comment; (2) abusing his contempt authority and failing to follow the proper procedures for the punishment of contempt in 2 cases; and (3) making inappropriate comments in 7 criminal cases and exhibiting a lack of proper decorum, demeanor, and temperament.  In re Free, 199 So. 3d 571 (Louisiana 2016).
  • Granting a joint motion for approval of a recommendation, the Mississippi Supreme Court publicly reprimanded a former judge for endorsing a political candidate on social media, irregularities in her operation of the drug court program, deceptive responses in a newspaper interview, and routinely starting court late and exhibiting poor courtroom demeanor.  Commission on Judicial Performance v. Clinkscales, 192 So. 3d 997 (Mississippi 2016).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Courtsuspended a judge for 1-month without pay for misusing his judicial office to access a confidential criminal history for personal reasons.  In the Matter of Batelli, Order (New Jersey Supreme CourtJune 16, 2016).

Another Facebook fail and code comments

Adopting the recommendation of the Judicial Standards Commission, which was based on stipulations, the North Carolina Supreme Court publicly censured a former judge for inappropriate and sexual communications on Facebook with numerous women; a pattern of failing to diligently discharge his judicial duties in order to engage in conversations or physical encounters with women; and related misconduct.  In re Pool (North Carolina Supreme Court June 11, 2021).

On his Facebook page, the judge identified himself as the Chief District Court Judge in Marion, North Carolina.  His Facebook page was public so anyone could see his posts and comments.  He had thousands of “friends” on Facebook and frequently posted his own photos or comments or commented on others’ posts.

From November 2018 to May 2019, the judge, who is married, engaged in conversations on Facebook that ranged from inappropriate and flirtatious to sexually explicit with at least 35 women, many of whom were litigants or witnesses in matters pending in his district and some of whom appeared or worked in his court in their professional capacities.  The judge had ex parte discussions through Facebook with some of the women about pending proceedings.  The judge often asked for photographs of the women or shared photographs of himself.  The judge and some of the women also had telephone conversations, exchanged texts, and met, sometimes for sexual encounters.  The judge used the prestige of his office to assist some of the women, including using his position as Chief Judge to direct an attorney to assist a litigant with whom the judge was having a sexual relationship. 

After the judge exchanged inappropriate electronic communications and nude photographs with Ms. T., she attempted to extort him.  During the investigation of her extortion attempt, the judge misused the prestige of his judicial office to solicit assistance from local law enforcement and made material misrepresentations to the State Bureau of Investigation.

A comparison of his Facebook records and official reports showed that, when the judge was posting, commenting, and private messaging women on Facebook, he was often on the bench, although during times when he was not actively presiding in a case and his direct attention was not required.  The judge routinely sought to arrange personal meetings with women through Facebook and frequently took breaks and continued cases to have conversations or physical encounters with them.  Court personnel observed that the judge was frequently on his cell phone while on the bench, would often “disappear” during recesses and lunch breaks, and would continue or recuse from many cases for “very tenuous” reasons.

The judge made material misrepresentations to the Commission during its investigation.

The judge retired in December 2019.  In early October 2020, the judge was diagnosed with early-stage Frontotemporal Dementia, which can manifest itself in a lack of control of sexual impulses.  The judge agreed that, based on his misconduct and that diagnosis, he will not seek a commission as an emergency judge or a retired recall judge or attend judicial conferences or continuing judicial education programs.

The Court agreed with the Commission that censure was appropriate because the judge is no longer a sitting judge, has agreed not to serve again, had 18 years of distinguished service, and has expressed remorse.

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In new Ethical Principles for Judges, the Canadian Judicial Council has included several comments regarding judges and social media.  For example, there are general warnings that “judges should exercise caution in their use of social media” and that “their social media activities should be undertaken in ways that avoid compromising public confidence in the judiciary.”  A comment reminds judges that:

Social media activities are subject to the overarching principles that guide judicial behaviour.  Judges should be aware of how their activities on social media may reflect on themselves and upon the judiciary and should be attentive to the potential implications for their ability to perform their judicial role.

The principles also suggest that a judge “may wish to inform family members of the ways in which their social media activities could reflect adversely on the judge.”

A comment states that “judges should avoid engaging in activities on social media that could reasonably reflect negatively on their commitment to equality.”  Noting that “judges’ communications and associations with others are commonly used as a basis for claims of lack of impartiality,” commentary directs judges who use social media to “exercise great caution in their communications and associations within these networks, including expressions of support or disapproval.”  Comments emphasize that social media communications are “more public and more permanent than many other forms of communication,” can “be re-transmitted beyond the originators’ control and without their consent,” and “can be shared, almost instantaneously, with a vast audience and may create an adverse reaction far beyond what one may have considered possible.”

Commentary also reminds judges that social media creates “greater opportunities” for others to try to communicate inappropriately with them and to try to influence them, requiring that judges “be cautious in their communications on social media relating to matters that could come before the court.”