Marching up-date

In a new opinion, the New York Advisory Committee on Judicial Ethics stated that judges may permit their law clerks to participate in peaceful Black Lives Matter protests away from the courthouse during non-working hours.  New York Opinion 2020-141.  However, the opinion advised the judges to instruct their clerks not to carry signs calling for the arrest or prosecution of police officers involved in a specific shooting and not to remain with any protestors engaging in vandalism or violence.  The advice applied only to law clerks personally appointed by the judges who do not have quasi-judicial titles or functions.

The Center for Judicial Ethics has compiled and posted on its website summaries of judicial ethics advisory opinions about judges and staff participating in marches, demonstrations, vigils, protests, rallies, and other issue-related community events.  Also, please watch the CJE’s inaugural CourtClass Ethics-in-Brief tutorial on judges and court employees participating in marches and demonstrations.

Truancy

In a recent advisory opinion, the North Carolina Judicial Standards Commission provided guidance about judges being involved in school-sponsored truancy intervention programs.  North Carolina Advisory Opinion 2020-1.

The opinion stated that judges should not “meet individually with parents, school counselors, prosecutors and others to evaluate the facts and develop strategies to address” a specific family’s truancy issues.  The opinion also advised that judges should not “’presid[e]’ over informal truancy dockets in schools or courtrooms or otherwise appear[] as a ‘judge’ when meeting with families outside of official court proceedings.”  The Commission explained that “such personal involvement with a particular case would require disqualification” if that case “eventually resulted in a juvenile, criminal or other proceeding involving those family members.”

The Commission also cautioned that “judges should not create the appearance that they are acting with official authority in participating in truancy intervention programs established in local school districts.”  That concern prohibited judges, the opinion stated, from “‘presiding’ over school-sponsored truancy meetings while wearing a judicial robe” and from “issuing a ‘summons’ or other notice on behalf of the program to direct families to appear at truancy mediations, hearings or meetings.”

Emphasizing that it was not suggesting that truancy intervention programs did not benefit the community, the opinion noted that judges could volunteer “to educate parents and students in group settings about court processes and procedures involved in truancy matters” and could serve as an advisor for such programs generally.

Similarly, the New Mexico Advisory Committee on the Code of Judicial Conduct stated that a judge could be an advisor to the school district about its truancy court and could “speak to groups at a location such as a school to provide general information about the compulsory school attendance laws and the manner in which the cases are addressed when they come before the court.”  New Mexico Advisory Opinion 2013-5. However, the opinion advised that a judge may not participate as a judge in a school district’s truancy court program, either in the courtroom in robes or outside the courthouse without a robe.  The opinion described the program at issue.

A group of students, their parents, and the school principals appear before a judge.  The judge advises the parents about the compulsory school attendance laws, including the potential for the school district to file a criminal complaint, and tells the students about the importance of education.  Then, each school principal comes forward with individual students and the student’s parents and reports to the judge the facts concerning the student’s truancy.  Based upon the principal’s recommendation, the judge will inform the student and parents whether the principal will continue to monitor the student’s attendance and whether the student and parents will need to return to the truancy court.

The committee noted that, although there would be no actual court filings, the courtroom setting and judicial robes were designed to establish the judge’s authority.  It emphasized that “actual behavior and consequences” were involved and the program was “not a mock trial or moot court proceeding conducted for educational purpose.”  Further, even if the program were held outside of courthouse and the judge did not appear in a robe, the committee considered the judge’s participation to be coercive given the judge’s position in the community.  Accord New Mexico Advisory Opinion 2018-5 (a judge may not participate in a school’s truancy intervention court in his courtroom even if the judge does not wear a robe and is not the only person making determinations).

See also New York Advisory Opinion 2012-18 (a family court judge may not, as an extra-judicial activity, request Department of Social Services case files for truant children, meet with caseworkers, educators, attorneys, and parents to advise them about rights and services that may be available, and collaborate with them on ways to improve the children’s school attendance even if the judge will not preside in any of the selected cases); New York Advisory Opinion 2013-13 (a judge may participate in a focus group of key leaders in the community convened by a school district’s consultant as part of an analysis of local truancy and possible solutions); Pennsylvania Informal Advisory Opinion 5/4b/10 (a judge cannot appear in a photograph as part of a truancy poster project); West Virginia Advisory Opinion 2018-19 (a judge may participate in a state agency video to explain the importance of successful truancy measures for juveniles and be identified as a judge and wear a robe during filming).

Throwback Thursday

5 years ago this month:

  • Based on an agreement, the Kentucky Judicial Conduct Commission suspended a judge for 180 days without pay for (1) presiding over a case for over 3 years even though he had an oil and gas lease agreement with one of the defendants and had a dispute with the company; (2) making numerous calls to the city police department; (3) numerous inappropriate interactions with elected officials and city employees; (4) numerous inappropriate communications with a TV channel manager complaining that programs were politically motivated; (5) leaving voicemail messages for an attorney who regularly practiced before him in which he referred to the attorney as a “coward” and “prick;” (6) inappropriate political activity; (7) 2 months after a case was voluntarily dismissed, engaging in an ex parte communication with an attorney in the case and then holding a status hearing during which he questioned another attorney about his motivation for bringing the lawsuit and accused him of engaging in unethical behavior by issuing improper subpoenas; (8) despite expressing interest in the outcome of a challenge to an election for city commission and criticizing the incumbent candidate, entering a final judgment disqualifying a candidate and naming the successful candidate; (9) numerous inappropriate communications with employees of a newspaper; and (10) presiding over 17 cases in which a company or one of its subsidiaries was a party even though he had a financial relationship with the company and testifying under oath in a temporary suspension hearing before the Commission that he had disclosed the relationship on the record even though there was no disclosure in the pleadings or recorded hearings.  In re Combs, Agreed order of suspension (Kentucky Judicial Conduct Commission October 1, 2015).
  • The Minnesota Supreme Court removed a judge for failing to reside within his judicial district and knowingly making a false statement regarding his residency in his affidavit of candidacy. Inquiry into Pendleton, 870 N.W.2d 367 (Minnesota 2015).
  • • Following a de novo proceeding, a Texas Special Court of Review publicly reprimanded a former judge for (1) a pattern of leaving the bench and failing to communicate with counsel and defendants about when or whether she would return; (2) refusing to allow an attorney to appear in her courtroom while he was attired in shorts due to a visible medical impairment; (3) ordering her bailiff to detain a prosecutor who was 8 months pregnant to prevent her from taking a break; (4) referring to an attorney as a “liar” in open court and ordering the bailiff to remove him; (5) filing a motion for reconsideration of her recusal and communicating with the presiding administrative judge about subsequent recusal; and (6) improperly requiring some defendants to pay a portion of fines or costs before she would accept their plea bargains. In re Mullin, Opinion (Special Court of Review Appointed by the Texas Supreme Court October 21, 2015).

More Facebook fails

Based on the judge’s consent, the Tennessee Board of Judicial Conduct suspended a judge for 30 days without pay and publicly reprimanded him for sending inappropriate messages to women on social media platforms.  Re Young (Tennessee Board of Judicial Conduct October 5, 2020).  The suspension was held in abeyance provided no meritorious complaints are filed against the judge for any type of misconduct during the remainder of his current term.  The judge also agreed not to use a picture of himself in his judicial robe as a profile picture on any social media platform on which he is not conducting court business; to complete a judicial ethics program on social media; to recuse himself from all cases involving specific attorneys identified separately; and to refrain from similar misconduct.

The judge was pictured in his judicial robes in his profile picture on several social media platforms.  On those platforms, the judge sent messages “ranging from flirtatious to overtly sexual” to multiple women and solicited pictures from them.  The women included a legal professional employed at a law firm that conducts business in his court and a litigant who formerly had a child custody matter before him. 

Attorneys who litigated before him, especially in domestic relations matters, had had to seek advice from the Board of Professional Responsibility about whether to disclose to clients what they knew about his activities.  In at least one instance, a party used knowledge of the judge’s conduct to strategic advantage in a case.  The judge had had to recuse himself from a case after a party learned of his social media activities and asked him to step aside.

The Board found that a judge having sexual conversations and soliciting pictures while in his judicial robe would appear to a reasonable person to be coercive and that the judge’s inappropriate use of social media had created ethical dilemmas for attorneys who litigated before him.  The Board also stated that sending inappropriate messages on social media may interfere with a judge’s ability to preside over cases and that “inappropriate messages sent by a sitting judge to anyone, much less to those who have ties to the court system, do not inspire” confidence in the integrity and impartiality of the judiciary.

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The Kentucky Court of Appeals remanded a medical malpractice case for the trial court judge to determine if her Facebook friendship with one of the defendants and that defendant’s connections to her judicial campaign were so extensive that her recusal was required.  Andress v. Lape (Kentucky Court of Appeals September 18, 2020).

Judge Kathleen Lape presided over a jury trial in a medical malpractice case brought against a hospital and several doctors.  The jury returned a verdict for the defendants.  The plaintiff filed a motion for a new trial that raised several recusal issues.  The judge denied the motion.

One of the recusal issues was the judge’s Facebook friendship with Dr. Donald Swikert, one of the defendants.  On appeal, the court of appeals explained:

The record is silent as to the extent of Judge Lape’s Facebook friendship with Dr. Swikert.  Are they simply Facebook friends who are only vaguely familiar with each other or are they neighbors who routinely socialize with one another?  While we doubt it is the latter, we do not have any information regarding the scope of the friendship.  Since we must look at the connections between Dr. Swikert and Judge Lape individually, as well as collectively, we cannot say for certain if Judge Lape should have disclosed this information or recused herself; therefore, we must reverse and remand for more information.

The plaintiffs had also argued that the judge should have disclosed that Dr. Swikert had contributed $200 to the judge’s election campaign and that the doctor and his wife had co-hosted a fundraiser for her campaign.  The court stated that, “taken individually, the $200 campaign contribution would not require Judge Lape to recuse herself” and “Dr. Swikert’s participation in the fundraiser, taken alone, would not require recusal,” noting that it was not clear that the doctor was  a co-host at all and that “there were over 70 other co-hosts.  This was clearly not an intimate affair.”  However, the court stated that, on remand, the judge should analyze the campaign issues “collectively” with the Facebook issue.

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A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

Throwback Thursday

10 years ago this month:

  • Based on a stipulated resolution and recommendation, the Arizona Supreme Court publicly censured a judge for repeatedly engaging in ex parte communications and conducting his own factual investigation in a case.  Inquiry Concerning Andress, Order (Arizona Supreme Court October 26, 2010).
  • The California Commission on Judicial Performance publicly admonished a judge for causing a collision while driving his vehicle under the influence of alcohol.  Public Admonishment of Doyle (California Commission on Judicial Performance October 21, 2010).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to decide 2 cases within 90 days as required by statute; 1 case was decided 119 days after submission; the second 138 days after submission.  Press release (Johnson) (Minnesota Board on Judicial Standards October 13, 2010).
  • The New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for failing to disqualify himself from cases involving his nephews, his employers’ sons, and his co-justice.  In the Matter of Menard, Determination (New York State Commission on Judicial Conduct October 13, 2010).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for telling the town board that, unless his salary was increased, he would not preside over the court dates scheduled by his retired co-justice and would dismiss the cases scheduled on the next such date.  In the Matter of Peters, Determination (New York State Commission on Judicial Conduct October 6, 2010).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge who operated a motor vehicle after consuming a significant quantity of alcohol and was convicted of driving while intoxicated.  In the Matter of Martineck, Determination (New York State Commission on Judicial Conduct October 12, 2010).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for (1) failing to appear for sentencing on a dog-running-at-large violation and failing for 7 months to pay the fine imposed; (2) serving simultaneously as judge and court clerk of the same court; and (3) participating in fund-raising on behalf of her and her son’s sports teams.  In the Matter of Post, Determination (New York State Commission on Judicial Conduct October 12, 2010).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Commission publicly admonished a non-lawyer judge for failing to disqualify himself from a harassment case when he was acquainted with the defendant and the alleged victim and had personal knowledge of the underlying facts.  In the Matter of Trickler, Determination (New York State Commission on Judicial Conduct October 7, 2010).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for intervening in an impending proceeding involving his business tenant and a long-time acquaintance and promoting a financial settlement rather than disqualify himself from the case.  In the Matter of Dugan, Determination (New York State Commission on Judicial Conduct October 6, 2010).
  • The New York State Commission on Judicial Conduct removed a former judge for (1) violating the due process rights of defendants in 6 support cases and 1 order of protection case by failing, inter alia, to advise them of the right to counsel and to afford an opportunity to be heard, notwithstanding a letter of dismissal and caution he had received and (2) making offensive remarks of a sexual nature to and about a litigant.  In the Matter of Abramson, Determination (New York State Commission on Judicial Conduct October 26, 2010).
  • The Ohio Supreme Court suspended a judge from the practice of law for 6 months for, in response to reports that an elderly witness could not be found, finding that the defendant had engaged in obstruction of justice and misusing the Amber Alert system to attract media attention; the Court stayed the suspension on the condition that the judge commit no misconduct for 6 months.  Disciplinary Counsel v. Gaul, 936 N.E.2d 28 (Ohio 2010).
  • Adopting the findings of fact and misconduct and the recommended of the Board of Commissioners on Grievance and Discipline based on the parties’ consent-to-discipline agreement, the Ohio Supreme Court publicly reprimanded a judge for using marijuana.  Disciplinary Counsel v. Bowling, 937 N.E.2d 95 (Ohio 2010).
  • The Texas State Commission on Judicial Conduct publicly warned a judge following his guilty plea to a charge of criminal mischief arising out of an incident in which he allegedly “keyed” his neighbor’s car.  Public Warning of Densen (Texas State Commission on Judicial Conduct October 14, 2010).

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for telling court staff that he left the priesthood because there was “no pan ocha [sic],” which he believed meant “brown sugar” but which is slang for the female anatomy.  Pollard, Order (Arizona Commission on Judicial Conduct September 15, 2020).
  • Based on an agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for intemperate conduct in 2 criminal cases on the same date.  In re Conley, Public reprimand (Kentucky Judicial Conduct Commission September 9, 2020).
  • Based on an agreement, the Kentucky Judicial Conduct Commission suspended a judge for 14 days without pay for failing to recuse herself from a case involving an attorney whom she accused of stealing from her husband, threatening that the attorney was “not going to be conflicted out forever,” and improperly pressuring the clerk and another judge to refuse to provide a video of the proceeding to the attorney.  In re Dutton, Agreed order of suspension (Kentucky Judicial Conduct Commission September 4, 2020).
  • Granting a joint motion for approval of a recommendation, the Mississippi Supreme Court suspended a judge for 30 days without pay, publicly reprimanded her, and fined her $1,000 for (1) initiating improper ex parte communications with a third party to investigate a pending civil matter, (2) failing to comply with the statutory limits on money judgments in justice court, and (3) retaliating against a court clerk for filing a complaint with the Commission.  Commission on Judicial Performance v. Bozeman (Mississippi Supreme Court September 24, 2020).
  • Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly admonished a judge for giving a “Gag Order, Esquire” patch to a female judge and 4 female staff members and stating during a meeting that the other judge had “erotic” or “risqué” coloring books in her chambers.  In the Matter of Potter, Stipulation and order of consent to public admonishment (Nevada Commission on Judicial Discipline September 30, 2020).
  • Accepting a stipulation based the judge’s resignation and his affirmation that he will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct terminated a proceeding against a judge; following a hearing on a formal complaint, a referee had found that the judge (1) had approximately 10 conversations with a court employee in and outside the workplace about his campaign for surrogate, repeatedly asking her to consider working on his campaign even after she declined; (2) kissed the employee twice in his chambers without her consent when her transfer was announced; (3) expressed interest in dating a second court employee several times and kissed her 3 times on the cheek without her consent after she told him that her father had been diagnosed with cancer; and (4) falsely denied in his deposition during the Commission investigation that he had expressed romantic interest in the second employee.  In the Matter of Hanuszczak, Decision and order (New York State Commission on Judicial Conduct September 17, 2020).
  • Accepting a stipulation based the judge’s resignation and his affirmation that he will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct terminated a proceeding against a judge; the Commission had notified the judge that it was investigating complaints that his demeanor toward and treatment of his court clerks caused 3 or 4 of them to resign and that he had warned residents of a youth home of the consequences of misbehavior at the home, including the possibility of jail time, in the absence of counsel for the youth, while presiding over their cases.  In the Matter of Madden, Determination (New York State Commission on Judicial Conduct September 21, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer for issuing a warrant of eviction against a tenant after an ex parte proceeding even though neither the judge nor the tenant had been presented with a notice of petition, a petition, or an affidavit of service as required by law; calling the tenant a “deadbeat;” and failing to record the proceeding.  In the Matter of Knopf, Determination (New York State Commission on Judicial Conduct September 23, 2020).
  • Adopting the findings and recommended sanction of the Board of Professional Conduct, based on stipulations, the Ohio Supreme Court suspended a judge for 6 months for interfering in a case assigned to another judge involving the incarcerated boyfriend of the daughter of his friends, engaging in ex parte communications with the boyfriend, and “orchestrating” his release on a recognizance bond 2 days before his scheduled arraignment; the Court stayed the suspension conditioned on the judge completing 2 hours of CLE on judicial ethics and engaging in no further misconduct.  Disciplinary Counsel v. Goulding (Ohio Supreme Court September 29, 2020).
  • Based on the judge’s consent, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for stating that, “the Grand Wizard of our Supreme Court said we have to wear these masks,” or words to that effect, to a courtroom audience of criminal defendants, some of whom were African-American.  Re Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020).
  • The Texas State Commission on Judicial Conduct publicly admonished a former judge for independently investigating allegations by 2 defense attorneys in a murder trial that another attorney had sent their client an anonymous letter, summoning the attorney to court without notice and questioning her, and holding a second proceeding about the allegations without the attorney present.  Public Admonition of Contreras (Texas State Commission on Judicial Conduct September 8, 2020), on appeal.
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for displaying a handgun during a public confrontation in a residential neighborhood, contrary to Texas law.  Public Reprimand of Williams (Texas State Commission on Judicial Conduct September 8, 2020).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for approaching a paralegal in the courtroom, grabbing her arm or elbow, and admonishing her for sitting in a section of the courtroom reserved for attorneys; the Commission also ordered the judge to complete 2 hours of instruction with a mentor.  Public Admonition of Wilson (Texas State Commission on Judicial Conduct September 8, 2020), on appeal.
  • Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue disciplinary proceedings against a former judge; the Commission had received a complaint alleging that the judge had denied an attorney access to his client prior to and at magistration and, during its investigation, learned that the judge had been serving as a full-time licensed police officer since July 2015.  Martinez, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct July 23, 2020).

Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a former judge for making himself available to 2 attorneys with whom he had a special friendship and granting their requests in 6 cases to release defendants on their own recognizance, reduce bail, or modify a defendant’s probation.  Inquiry Concerning Cardenas, Decision and Order Imposing Public Admonishment (California Commission on Judicial Performance October 3, 2000).
  • Agreeing with the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for performing accounting services for the parish sheriff’s office, failing to disclose his arrangement with the sheriff’s office, and misleading the Commission about the continuing financial relationship.  In re McInnis, 769 So. 2d 1186 (Louisiana 2000).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who, for over 7 years, failed to file his financial disclosure statements with the ethics commission for the unified court systems within the time required by the rules of the chief judge.  In the Matter of Russell, Determination (New York State Commission on Judicial Conduct October 31, 2000).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s publicly reprimand of a judge for conduct that could reasonably be perceived as an attempt to influence the outcome of a speeding ticket he had received.  In re Bylsma, Order (Utah Supreme Court October 20, 2000).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for (1) intentionally making false and misleading statements to Commission investigators during an interview; (2) presiding over a traffic infraction hearing involving a person with whom he had an intimate personal relationship and dismissing the citation based on the relationship; (3) presiding over matters involving a party and/or witness with whom he had an intimate personal relationship; and (4) presiding over a matter involving a defendant he had previously represented in a different matter and relying on knowledge gained from that relationship in granting leniency to the defendant.  In re Conroy, Stipulation, agreement and order (Washington State Commission on Judicial Conduct October 6, 2000).

Judicial rides

Recently, based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for giving a defendant a ride home after his arraignment and then presiding over his case, in addition to other misconduct.  In the Matter of Parker, Determination (New York State Commission on Judicial Conduct August 13, 2020). 

The judge released E.B. after arraigning him on grand larceny, a felony.  Mr. B. appeared without counsel, and no one from the district attorney’s office was present.  During the arraignment, Mr. B. told the judge that he was a professional musician.  After the arraignment, the judge engaged Mr. B. in a conversation about music and the musicians with whom Mr. B. had performed.  The judge then offered to give Mr. B. a ride home, which Mr. B. accepted.  The judge drove Mr. B. to his residence, and they talked throughout the car ride, which lasted approximately 15 minutes.

A week later, Mr. B. appeared without counsel before the judge.  At the prosecutor’s recommendation, the charge against Mr. B. was reduced, and the judge granted an adjournment in contemplation of dismissal.  The judge did not disclose to the prosecutor that he had given Mr. B. a ride home or offer to recuse himself from the case.

During the Commission’s investigation, Mr. B. stated that he and the judge did not discuss his case during the car ride although he could not recall what they did discuss.  In his sworn testimony, the judge averred that they only discussed music and did not discuss Mr. B.’s case.

The Commission found:

Respondent had an extreme lapse in judgment when he offered and then gave a defendant a ride home after conducting the defendant’s arraignment in the absence of a prosecutor and releasing him on his own recognizance.  Such extra-judicial conduct involving a defendant whose case is pending in respondent’s court is highly improper.

The Commission found that the judge’s misconduct was compounded when he disposed of Mr. B.’s case a week after giving him a ride, explaining that “a reasonable person might conclude that giving the defendant a ride home indicated that respondent could not be impartial when it came to adjudicating the defendant’s case.”

This was not the first time a New York judge had been sanctioned based on a car ride.  In In the Matter of Burke, Determination (New York State Commission on Judicial Conduct (April 21, 2014), the Commission publicly censured a judge for riding in a police car with a defendant after arraigning him, recommending that the defendant retain the judge’s business partner as his attorney, giving him legal advice, and presiding over his case, in addition to other misconduct.

The judge arraigned Michael Matus on driving while intoxicated charges, suspended his license, and released him on his own recognizance.  During the arraignment, the judge told Matus that he could apply to the court for a hardship driver’s license.

After the arraignment, the judge, who had left his vehicle at a service station, asked the police for a ride home.  The judge was driven home in the police car transporting Matus.  The judge sat in the front seat with an officer; Matus was in the back seat.  During the ride, the judge told Matus that he could no longer hear Matus’s case because he was riding in the police car with him.  Matus told the judge that the suspension of his license would cause extreme hardship because he had to drive his wife to New York City for cancer treatments.  The judge again told Matus that he could apply for a hardship license.  When Matus told the judge that he did not know any attorneys, the judge suggested Tina Piette with whom the judge owned 2 investment real estate properties.  Matus met with and retained Piette the next day.

A week later, the judge granted Matus’s application for a hardship license so that he could drive to his wife’s medical appointments and to his appointments for alcohol evaluation and therapy.  The judge did not preside over any subsequent proceedings in the case.

At the discipline hearing, the judge testified that he did not disqualify himself from Matus’s application for a hardship license because he considered it to be “administrative.”  The judge acknowledged that it was improper to ride in the police car with Matus, to speak ex parte with him during the ride, and to recommend Piette as a lawyer.

The Commission concluded that, as a result of his ex parte communications with Matus during the car ride, the judge’s impartiality could reasonably be questioned when Matus filed a hardship license application — “the very subject they had discussed ex parte in the police car” – and that disqualification or, at least, disclosure of the conversation, was required “even if the application seemed routine or ministerial.”  Further, the Commission rejected the judge’s assertion that the application was an “administrative matter” because “granting such an application necessarily involves the exercise of judicial discretion.”  Finding that the judge showed poor judgment, the Commission stated:

In sum, respondent’s handling of the Matus case was inconsistent with numerous fundamental ethical principles.  Viewed objectively, the totality of his conduct — chatting with a defendant about his case during a ride in a police car, recommending that the defendant retain a lawyer with whom the judge had a business relationship, and granting the relief requested by the defendant even after respondent had indicated he could not handle the case — breached the appropriate boundaries between a judge and a litigant and thereby created “a very public appearance of impropriety” . . . , which adversely affects public confidence in the judiciary as a whole.

Based on an agreed statement of facts and joint recommendation, the New York Commission publicly censured a judge for taking a treatment court participant on an ex parte, out-of-court excursion in his personal car and speaking privately with him about personal issues.  In the Matter of Tarantino, Determination (New York State Commission on Judicial Conduct March 28, 2011).

The judge was presiding over J.’s participation in the treatment court; J. was 18 years old.  During a meeting at the courthouse with a treatment court case manager, J. asked to speak to the judge.  The judge met briefly with J. in his courtroom before the lunch recess.  The case manager was not present.

During the lunch recess, the judge took J., alone, for a ride in his personal automobile to a state park approximately 16 miles from the courthouse.  The ride lasted approximately 20 minutes.  At the park, the judge and J. walked to a public wildlife observation deck, where they remained for approximately 10 minutes.  En route to, at, and after they left the deck, the judge spoke with J. about his continuing substance abuse, his mother’s death, and his need for grief counseling.  The judge then drove J. back to the courthouse.

The judge stated, under penalty of perjury, that he and J. never had any relationship other than as a judge and litigant, and that there was no untoward behavior at the park or anywhere else, at any time.  J. provided no evidence to the contrary.  The judge admitted that he made a serious error in judgment resulting from what he believed were exigent circumstances created by J.’s 2 drug overdoses within a month’s time.   The judge acknowledged that he has no training as a social worker or as a medical or mental health professional.

The Commission concluded that the judge’s “behavior, no matter how well-intentioned, was inappropriate and showed extremely poor judgment . . . .”  It explained that “the unique dynamics and relative informality of Treatment Court” did not excuse his “conduct, which overstepped the appropriate boundaries between a judge and a defendant in pending proceedings.”

Even in Treatment Court, a judge is not a social worker or therapist, but must maintain the role of a neutral and detached arbiter who at all times remains “cloaked figuratively with his black robe of office devolving upon him standards of conduct more stringent than those acceptable for others.”  Respondent’s behavior showed a serious misunderstanding of the role of a judge.

Having served as a Family Court judge for more than two years at the time, respondent should have realized that this extra-judicial meeting with the defendant — a vulnerable young man who had recently been charged with violating an order of protection for overdosing on drugs — not only would compromise respondent’s impartiality at a time when he wielded considerable power over this defendant, but would create a potential for suspicion and misunderstanding. 

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There are also cases involving inappropriate rides in other states,

Adopting the findings of fact, conclusions of law, and recommendation of the Board of Commissioners on Grievances and Discipline, based on stipulations, the Ohio Supreme Court publicly reprimanded a judge who had picked up a defendant at the police station and driven her home.  Office of Disciplinary Counsel v. Medley, 756 N.E.2d 104 (Ohio 2001).

After Tracy Grate was booked on a DUI charge, she contacted the judge by telephone.  Grate knew the judge because she had previously been a defendant in his court.  The judge picked up Grate at the police station and drove her home, but they did not discuss her case.

Shortly before Grate’s case was set for trial before the judge, Grate’s attorney and the city solicitor learned of the judge’s assistance to Grate and, believing that the judge would have to recuse, entered into plea negotiations.  Grate entered a guilty plea to reduced charges.  The judge accepted the plea agreement, sentenced Grate to 6 months in jail, suspended the jail sentence, and placed her on 5 years’ probation conditioned on attendance at a DUI school and completion of a GED program.

Stating that the fact that the judge and Grate did not discuss her case was immaterial, the Court concluded that the “sight or thought of a judge providing a ride home to a person who has just been detained for breaking the law surely gives the impression of bias on the judge’s part when it comes time to hear that case.  This act also gives an impression of impropriety. . . by making it appear that Grate would be subject to special treatment.”

The Mississippi Supreme Court suspended a judge for 90 days without pay and publicly reprimanded him for taking a criminal defendant for a ride in his car and reducing her fine at the ex parte request of a police officer.   Commission on Judicial Performance v. Boone, 60 So. 3d 172 (Mississippi 2011).

One morning, Assistant Police Chief Nolan Jones called the judge and requested his help with Christina Twaddle whom Jones was interested in cultivating as a confidential informant.  Later that morning, the judge presided over Twaddle’s trial on a charge of public drunkenness.  The judge found Twaddle guilty and imposed a $100 fine and $139 in costs.  The judge told Twaddle and her attorney that the sum must be paid no later than 5 p.m. that day.

Around noon, the judge saw Twaddle at a gasoline station and asked if she would ride with him to discuss payment of the fine.  Thinking she could work out payment arrangements, Twaddle agreed.  The judge drove Twaddle to a drugstore and asked that she meet him around 3 p.m. after he completed his afternoon docket.  They exchanged cell numbers, and the judge left.  According to phone records, the judge called Twaddle numerous times that afternoon to arrange the meeting.  Later that afternoon, the judge sua sponte reduced Twaddle’s fine by $100.

The Court stated:

Judge Boone’s actions exhibited a monumental lapse of sound judgment, because an undetermined number of Lincoln County citizens had the occasion to see one of their elected judges riding around town with a female litigant.  Certainly the citizenry of Brookhaven and Lincoln County, upon learning of the later fine reduction, at the very least, could infer that Twaddle had received favorable treatment from Judge Boone via the fine reduction as a result of this ex parte communication.

The Court took the “opportunity to remind all judges and law enforcement officials of the impropriety in having any ex parte communications with each other on the merits of pending litigation.”

The Commission had also found that, while they were in his vehicle, the judge inappropriately touched Twaddle and told her that he would “fix her fine” in exchange for sexual favors.  The judge denied those allegations.  Noting the “contradictory testimony” presented at the discipline hearing, the Court explained that it had been unable to reach a decision on whether the sexual allegations against the judge had been established by clear and convincing evidence.

Throwback Thursday

25 years ago this month:

  • Following the recommendation of the Commission on Judicial Performance, the California Supreme Court removed a judge from office for (1) being habitually tardy in starting court sessions; (2) failing to report several loans on her annual statement of economic interests; (3) failing to list at least 6 creditors on the voluntary petition of bankruptcy she filed with her husband; (4) becoming personally involved as an advocate for her former gardener in a felony case over which she was presiding; (5) presiding over misdemeanor cases against a woman from whom she had borrowed $4,500 and the woman’s nephews, making statements or taking action in those cases to ingratiate herself to the woman, and telling the woman she (the judge) could not repay the loan but would “work off” the debt by helping to prepare a petition for writ of habeas corpus on behalf of the woman’s husband, who had been convicted of federal felony narcotics trafficking offenses; and (6) asking the woman and her husband not to cooperate in the Commission’s investigation.  Doan v. Commission on Judicial Performance, 902 P.2d 272 (California 1995).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for issuing a bench warrant for the immediate arrest of a witness whom the judge should have known had not been properly served.  Inquiry Concerning Graziano, 661 So. 2d 819 (Florida 1995).
  • Following the recommendation of the Judicial Qualifications Commission, the Georgia Supreme Court removed a judge from office for (1) refusing to set appeal bonds for 2 misdemeanor defendants when the law clearly obligated her to do so, (2) issuing bench warrants for the arrests of 2 misdemeanor defendants when their attorney had been late even though the defendants had been in court, and (3) forcing a defendant to enter a plea of guilty in the absence of his counsel.  In the Matter of Vaughn, 462 S.E.2d 728 (Georgia 1995).
  • The Kansas Commission on Judicial Qualifications ordered a judge to cease and desist based on findings that the judge had asked witnesses in a criminal trial inappropriate questions, treated the defendant’s lawyers inappropriately, and injected her personal opinion.  Inquiry Concerning Watson, Cease and Desist Order (Kansas Commission on Judicial Qualifications October 10, 1995).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for comments from the bench in a number of proceedings that reflected a pattern of inappropriate, insensitive, and/or offensive comments.  In the Matter of Warren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct October 13, 1995).

Explanation of dismissals

When judicial conduct commissions dismiss complaints without filing formal charge or issuing a public sanction (in other words, most complaint dispositions), those dismissals are not disclosed to the public except as a statistic.  However, many states have an exception that allows a commission to release a statement of clarification and correction if allegations against a judge has become public despite the commission’s confidentiality rules.  That exception has been used 2 times so far in 2020.

In New Jersey, a rule provides:

On completion of its preliminary investigation, the [Advisory] Committee [on Judicial Conduct] may . . . if it finds that the allegations are without merit, dismiss them and so inform the person who brought the allegations before the Committee, as well as the judge if the Committee so desires, and if the matter has received public attention, the Committee may, at the request of the judge or on the Committee’s own motion, issue a short explanatory statement after reasonable notice to the Supreme Court . . . .

Applying that exception, in a public statement in June, the Committee explained that it was not initiating formal disciplinary proceedings against a judge based on her comments regarding a sexual assault charge against a juvenile.  The judge had denied the prosecution’s motion for referral of statutory rape charges against a juvenile that would have allowed the juvenile to be tried as an adult.  In her written opinion, the judge characterized the sexual assault as “not an especially heinous or cruel offense beyond the elements of the crimes that the waiver statute intends to target.”  The judge’s opinion had been issued under seal, but the Appellate Division quoted from the opinion when it reversed her decision, the media repeated those quotes, and the Committee received “a number of identical complaints.”

On completion of its preliminary investigation, the [Advisory] Committee [on Judicial Conduct] may . . . if it finds that the allegations are without merit, dismiss them and so inform the person who brought the allegations before the Committee, as well as the judge if the Committee so desires, and if the matter has received public attention, the Committee may, at the request of the judge or on the Committee’s own motion, issue a short explanatory statement after reasonable notice to the Supreme Court . . . .

According to the Committee’s statement, during an informal conference with the Committee, the judge “thoughtfully explained her reasoning and acknowledged that the language in her opinion was inappropriate.”  She told the Committee that she had written her opinion “solely for the parties, who ‘were intimately familiar with the facts of the case, not for the public[,]’” and that, if she had “ever imagined that it would be put out to the public,” she would have added that “every rape, including statutory rape of a 12-year-old, is heinous.’”

Despite that explanation, the Committee concluded that her comments were inappropriate.

However, the Committee also noted that it is difficult to express the concepts the judge was required to find in the waiver analysis, that is, whether the prosecutor had shown that “the sexual assault was particularly egregious beyond its inherent egregiousness” and that “the harm suffered by the victim was above, beyond and in addition to the inherent harm associated with the act itself.”  The Committee found that, in making those findings, the judge had “sacrificed sensitive and conciliatory language in favor of a more clinical, unemotional, perhaps even stoic legal evaluation of the statutory factors and the prosecutor’s burden.”

Nevertheless, the Committee emphasized, the judge had acknowledged “her inappropriate choice of words” and her comments “were an integral part of her statement of reasons for denying waiver rather than a gratuitously offensive comment unrelated to the judicial decision-making process.”  To explain its decision not to file formal charges, it stated:

The Committee is not an Appellate Court.  Its mission is to address wrongful conduct by judges that brings disrepute on the judiciary.  Every debatable opinion does not fall into that category.  Nor does every poor choice of words.  Indeed, the Supreme Court has recognized that the imposition of discipline based on a judge’s decision (even an incorrect one), or the reasons given for that decision, may pose a threat to judicial independence and therefore should be reserved for only the most extreme cases.

The Committee noted that it had decided to issue a public statement “in view of the extensive publicity the matter has received.”  See, e.g.,Judge opposes criminal prosecution in child rape case, NJ senators want her removed from bench,” The Trentonian (July 6, 2019).

In a dissenting statement, 4 members of the Committee wrote:

In our view, this type of case should be heard and resolved through a public hearing that includes testimony and cross-examination, not following a private, informal conference.  Regardless of the ultimate outcome, a more fulsome review and airing of the circumstances here would, we believe, promote the public’s confidence in the Judiciary and the system of judicial discipline . . . .

* * *
In a public statement issued at the judge’s request, the Washington State Commission on Judicial Conduct disclosed that, following an independent investigation, it had dismissed a complaint against Judge Edward McKenna.  The Commission’s rules permit such statements when a judge “is publicly accused or alleged to have engaged in misconduct . . . and the commission, after a preliminary investigation, has determined that no basis exists to warrant further proceedings.”

The Commission statement does not describe the basis for the complaint.  According to a radio station, the judge had filed a self-report after the Seattle City Attorney and County Director of Public Defense criticized him in a public letter for sentencing a defendant to 1 year in jail, contrary to a plea agreement that asked for his release with probation and drug and mental health treatment.