To hear and decide

Recently, the California Commission on Judicial Performance publicly admonished a judge for delegating his responsibility to conduct case management conferences to his court clerk.  Public Admonishment of Hiroshige (California Commission on Judicial Performance October 24, 2018).

Case management conferences are scheduled to address items such as what discovery issues are anticipated, whether discovery is complete, the nature of the injuries, the amount of damages, and any additional relief sought, as well as ministerial issues, such as the setting of a jury trial date.  Counsel for represented parties and each self-represented party must appear by telephone or personally and must be prepared to discuss and commit to the party’s position on the issues unless a judge issues a case management order based on the parties’ written submissions after determining that a conference is not necessary and notifying the parties.

In contrast, the judge’s practice was to review the parties’ written submissions and provide his notes to the court clerk for use during the conference at which the parties were still required to appear.  In 2010, the Commission privately admonished the judge for this practice.

The judge continued the practice despite the private admonishment.  In response to the Commission, the judge explained that, after the private admonishment, he posted a notice in his courtroom advising counsel and parties that he had reviewed all submitted case management conference statements and indicated to the clerk the range of dates that should be scheduled in each case, that “[t]he clerk will meet & confer with counsel/parties and attempt to schedule dates in court that are agreeable to all parties,” and that, if there is any disagreement, “please request to discuss the issue with the court.”

The Commission found that, as noted in the private admonishment, the judge’s practice violates the requirement that a judge “hear and decide all matters assigned to the judge except those in which he or she is disqualified.”  The Commission stated that the judge’s “[i]mproper delegation of judicial responsibilities to the court clerk constitutes misconduct” and “dereliction of duty.”

The Commission explained that the judge’s “practice of having his clerk meet with parties and counsel and convey his decisions in court gives the appearance that the clerk, rather than the judge, is running the court.”  Further, it stated, discussions between the judge and parties or counsel can effectively resolve issues that may not have been apparent from the written submissions, and, therefore, “an appearance before a judge at a case management conference can be more efficient and effective in terms of the disposition and management of a case than issuing an order without an appearance before a judge.”

The fall 2016 issue of the Judicial Conduct Reporter has an article analyzing previous discipline cases involving improper delegation of adjudicative responsibilities.

Throwback Thursday

20 years ago this month:

  • Adopting the recommendation of the Commission on Judicial Performance, the California Supreme Court removed a judge from office for (1) in a small claims case, entering a judgement against someone who had not been named as a party; (2) when an attorney was not present when her case was called, saying, “She shouldn’t be handling criminal cases. Here’s another example of a civil attorney who shouldn’t be handling criminal cases,” and, “she probably had something more important to do today, like go to a PTA meeting.  She has a whole bunch of kids.  She’s been having kids ever since I’ve known her;” (3) using in a campaign advertisement without permission, a group photo taken at the end of a court session of court staff and others who appeared before him; (4) telling a court employee she was in contempt when the employee stated she wanted to call her union representative; (5) engaging in ex parte communications with members of his family in a case in which the defendant was charged with cocaine possession, failing to disqualify himself, improperly delegating the question of diversion to the district attorney, directing alteration of a minute order to support his explanation after the Commission’s letter of inquiry, and submitting the minute order to the Commission without disclosing that he had had it altered; (6) having ex parte contact with a man with several family cases before him at the judge’s Bible study class and a men’s fellowship; (7) after several ex parte contacts, giving an unusually lenient sentence to a defendant whom the judge knew personally and who had pled guilty to drunk driving, second conviction; (8) granting a friend a chance to do community service and attend traffic school after the friend approached him at a restaurant and complained about a speeding violation; (9) counseling a probationer he had sentenced and failing to disqualify himself from a subsequent zoning case involving the man and his wife; (10) rejecting a plea bargain after telephoning the victim and the park ranger on the bench without putting them on speaker phone; (11) telephoning 25 to 30 defendant he knew to advise them to come to court after bench warrants had been issued for them; (12) stating that he had dealt with a witness “many, many times and his credibility is not too high” and that another witness would not have much more credibility because they are “both recovering alcoholics that are working hard to try to stay out of trouble;” (13) refusing to appoint a specific public defender after she expressed the desire to disqualify him; (14) his treatment of a defendant in a shoplifting case; (15) denying a dismissal motion because he thought “in the interest of justice” that a man with a drunk driving and 2 priors should go to trial and refusing to disqualify from the motion; and (16) failing to disqualify himself when a peremptory challenge was filed against him in a criminal case, setting a hearing to consider whether the defendant’s right to a speedy trial was being violated, ignoring a writ prohibiting him from presiding in the case, criticizing the district attorney, and urging the defense to seek a writ.  Fletcher v. Commission on Judicial Performance, 968 P.2d 958 (California 1998).
  • Adopting the recommendation of the Judiciary Commission in part, the Louisiana Supreme Court publicly censured a judge for inappropriate language and insensitive, discourteous, and impatient behavior towards those appearing in his courtroom. In re Bowers, 721 So. 2d 875 (Louisiana 1998).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for graphic and sensational campaign advertisements that lacked the dignity appropriate to judicial office and portrayed him as a judge who was biased against criminal defendants. In the Matter of Polito, Determination (New York State Commission on Judicial Conduct December 23, 1998).
  • Pursuant to agreed facts and a joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for, at his son’s home when a police officer was investigating a complaint by his son’s neighbor, angrily shouting that the neighbor was “crazy” and a “son of a b***h,” urging the officer to arrest the neighbor, accusing the neighbor of cutting tree limbs that were on his son’s property, and advising the police officer to charge the neighbor with criminal mischief. In the Matter of Stevens, Determination (New York State Commission on Judicial Conduct December 23, 1998).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for personally soliciting campaign contributions and improperly using the county mail system to distribute campaign materials. In re Paja, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 4, 1998).

Recent cases

  • Based on the judge’s agreement, the Arkansas Commission on Judicial Discipline & Disability publicly admonished a judge for having contacts with litigants and/or witnesses in cases pending in his court. Letter of Admonishment to Carruth (Arkansas Commission on Judicial Discipline & Disability November 16, 2018).
  • Based on the judge’s agreement, the Arkansas Commission Judicial Discipline & Disability publicly admonished a judge for an incident while he was a judge-elect in which a bag of methamphetamine was found in a hotel room he had shared with a woman. Letter of Admonishment to O’Hern (Arkansas Commission Judicial Discipline Disability November 16, 2018).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for holding a probation revocation hearing with the defendant present but without notice to the prosecution or the defendant’s attorney and revoking a second defendant’s probation without notice to the prosecution or the defendant’s attorney. Bluff, Order (Arizona Commission on Judicial Conduct September 18, 2018).
  • Approving the findings, conclusions, and recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for providing a character reference letter, on her official court stationery, on behalf of a criminal defendant awaiting sentencing in federal court. Inquiry Concerning White-Labora (Florida Supreme Court November 15, 2018).
  • Accepting an agreement, the Georgia Supreme Court publicly reprimanded a judge for her habitual tardiness in starting court and her excessive absenteeism. Inquiry Concerning Stokes (Georgia Supreme Court November 5, 2018).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly censured a judge for identifying himself as a judge to court personnel when disputing his own child support payments and discussing child emancipation. In the Matter of Palmer, Order (New Jersey Supreme Court November 8, 2018).  The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment.
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for failing to disqualify himself in 3 matters arising out of a boundary dispute involving his neighbor’s daughter that he had previously discussed ex parte with his neighbor. In the Matter of Porter, Determination (New York State Commission on Judicial Conduct November 13, 2018).
  • Adopting the findings and recommendation of the Board of Professional Conduct, which were based on stipulations of fact, misconduct, and aggravating and mitigating factors, the Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months for failing to accurately report his work hours and leave on his timecard; the suspension was stayed on the condition that he engage in no further misconduct. Disciplinary Counsel v. Wochna (Ohio Supreme Court November 8, 2018).

Throwback Thursday

25 years ago this month:

  • Adopting the recommendation of the Judicial Qualifi­cations Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for (1) in several cases in which the defendants did not appear, finding the missing defendant guilty and sentencing him or her to credit for time served and (2) in several driving under the influence cases in which a defendants failed to appear, convicting the defendant and ordering forfeiture of the bond without a plea or trial. Inquiry Concerning Colby, 629 So. 2d 120 (Florida 1993).
  • Affirming a joint motion for approval of recommendations based on an agreed statement of facts, the Mississippi Supreme Court publicly reprimanded a judge and fined him $250 for (1) printing up business cards that identified him on one side as a judge of the Pike County Justice Court and on the other side as “Certified Legal Technician (C.L.T.) Legal Consultation,” and making these cards available at the court office; (2) sending a letter on court stationery to local attorneys advising them that he was available for legal consultation work; (3) appointing as the attorney for indigent criminal defendants in 12 cases an attorney for whom he performed work as a legal consultant without advising the defendant of the relationship although the county attorney was aware of the relationship; (4) presiding over 8 cases in which that attorney represented a party in the proceedings without advising the defendant although the county attorney was aware of the relationship; and (5) his conduct as a certified legal technician in a divorce. Commission on Judicial Performance v. Felder, 629 So. 2d 618 (Mississippi 1993).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for mishandling court funds and failing to recuse himself or disclose the relevant facts in several cases involving an acquaintance from whom the judge had borrowed $500 several years earlier. Murphy v. Commission on Judicial Conduct, 626 N.E.2d 48 (New York 1993).
  • The New York State Commission on Judicial Conduct removed a judge for failing, as required by statute, to remit court funds and report cases to the state comptroller by the 10th day of the month following collection, to deposit court funds in her official account within 72 hours of receipt, and to maintain adequate records of the receipt of court funds; failing to remit to the state comptroller $550 that she collected; and failing to respond to 3 written inquiries from the Commission. In the Matter of Armbrust, Determination (New York State Commission on Judicial Conduct December 16, 1993).
  • The New York State Commission on Judicial Conduct removed a judge for falsely subscribing that the signature on the petitions to place him on the ballot as the Republican candidate for town justice had been executed in his presence. In the Matter of Heburn, Determination (New York State Commission on Judicial Conduct December 16, 1993).
  • The New York State Commission on Judicial Conduct censured a judge who, from January 1988 through December 1989, failed to deposit court funds in his official account within 72 hours of receipt as required by statute and who cashed 7 personal checks for his relatives and 20 personal checks for himself from cash that he had collected in court. In the Matter of Slomba, Determination (New York State Commission on Judicial Conduct December 16, 1993).
  • The North Carolina Supreme Court publicly censured a judge for giving legal advice and counsel to an employee of the county department of social services with regard to her discharge and intervening on her behalf in his official capacity. In re Cornelius, 436 S.E.2d 836 (North Carolina 1993).
  • The Ohio Supreme Court suspended the law license of a former judge for 1 year for 6 acts of unwelcome and offensive sexual remarks and/or physi­cal contact, 5 of which took place while he was either a judge or a judicial candidate. Office of Disciplinary Counsel v. Campbell, 623 N.E.2d 24 (Ohio 1993).
  • The West Virginia Supreme Court of Appeals publicly censured a magistrate who had been in­volved in his wife’s campaign for circuit judge and had sought disparaging information about her opponent, including contacting the granddaughter of the victim in a murder case handled by the opponent while a prosecuting attorney, facilitating the publishing of advertisements that contained disparaging information about his wife’s opponent, and misrepre­senting who paid for the ads, whose opinion was presented, and who signed them. In the Matter of Codispoti, 438 S.E.2d 549 (West Virginia 1993).

 

A sampling of recent judicial ethics advisory opinions

  • Justice court web-sites may not include extensive information promoting a district attorney’s traffic diversion program but may include a link to the DA’s web-site as a convenience to defendant motorists. New York Opinion 2018-101.
  • A court may create and distribute a list of attorneys on the assigned counsel panel who are willing to represent litigants on a sliding fee scale if the list includes a disclaimer that the court and its staff are not recommending any particular attorney. New York Opinion 2018-114.
  • A magistrate may not hire as constable the son of another magistrate from the same county. South Carolina Opinion 13-2018.
  • A judge whose spouse and the construction company he owns are represented by a large law firm is not disqualified from unrelated cases in which that law firm appears. Florida Opinion 2018-22.
  • A circuit court judge may date a non-lawyer employee of the solicitor’s office whose duties are primarily scheduling and computer management but should disclose the relationship in cases for which the employee is responsible and reassess the relationship if disclosure results in frequent disqualifications.  South Carolina Opinion 14-2018.
  • A judge may research, write, and appear in televised public service announcements that discuss issues surrounding family violence. Florida Opinion 2018-23.
  • A judge may not participate in a school’s truancy intervention court in his courtroom even if he does not wear a robe and is not the only person making determinations. New Mexico Opinion 2018-5.
  • Judge members of a supreme court committee may not solicit funds from the state bar, voluntary bar associations, private for-profit and not-for-profit corporations, law firms, lawyers, and others to defray the cost of hosting the annual conference of the National Consortium on Racial and Ethnic Fairness in the Courts. Florida Opinion 2018-25.
  • A judge may not speak about gun laws at a politically sponsored gun policy forum. New York Opinion 2018-72.
  • A judge may accept an invitation from the U.S. State Department, on behalf of an overseas embassy, to participate in a program to promote the integration of women in a certain religious group in the host country and to promote gender-equality and women’s rights. New York Opinion 2018-107.
  • A city court judge may attend the mayor’s free anti-violence event for youth as an audience member with no speaking role. New York Opinion 2018-110.
  • A judge may attend and participate in an out-of-state conference of tribal judges in connection with her performance of her official duties for the state court system and allow one of the tribal courts to underwrite her travel, lodging, and registration fees. New York Opinion 2018-127.
  • When a town judge’s caseload includes cases involving the casino in his town, the judge may accept routine perks from the casino, such as “free play and food comps,” that he knows are offered to all similarly situated patrons and the casino is not presently participating in a hearing or trial before him but must not accept the casino’s invitation to lavish, expensive, or exclusive events. New York Opinion 2018-65
  • A judge who developed a bar exam study aid and makes it available on an on-line app store may associate her name with the app; mention her judicial status in an on-line bio; speak with law school administrators and students about their interest in obtaining the app; and accept income from on-line sales of the app, subject to reporting requirements. New York Opinion 2018-93.
  • A judge who appoints CASA to provide information on pending cases may not serve as a member of CASA’s advisory board. New York Opinion 2018-100.
  • A judge may provide informal, uncompensated legal advice to adult relatives involved in pending or impending civil or criminal proceedings but may not participate in discussions or attend meetings with their retained counsel. New York Opinion 2018-120
  • A judge may provide an affidavit attesting to the bona fide good faith marriage of a friend to her immigrant spouse who is seeking permanent residency when the judge has personal knowledge of their marriage’s legitimacy, has known the friend for over 3 decades, attended their wedding, and has maintained the friendship since. New York Opinion 2018-128.
  • A judge may not at the request of a long-time friend charged with a federal crime or his counsel submit a character reference letter but may respond to an official request to provide a character reference if asked directly by the tribunal, hearing officer, or other governing body or official. New York Opinion 2018-135.
  • A judge may allow his property to be featured in a tour of homes that is a fund-raiser for the symphony guild provided that his title is not used in any materials publicizing the event. South Carolina Opinion 12-2018.
  • As long as federal law criminalizes marijuana use, judges who choose to use marijuana violate the code of judicial conduct. Alaska Opinion 2018-1.
  • A judicial candidate may accept support or endorsement from former judicial candidates the inquiring candidate defeated in the primary election and may advertise their endorsements. Florida Opinion 2018-24.

 

Throwback Thursday

5 years ago this month:

  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission informally adjusted a judge for delays in 3 cases. Smith, Letter of Informal Adjustment (Arkansas Judicial Discipline and Disability Commission November 15, 2013).
  • The Ohio Supreme Court suspended a judge for 1 year, stayed, for, instead of disqualifying himself from cases involving a public defender against whom he had a personal bias, removing the attorney as counsel in 64 cases and implying in his orders that the attorney was the subject of a disciplinary investigation. State Bar Association v. Evans, 999 N.E.2d 674 (Ohio 2013).
  • The Texas State Commission on Judicial Conduct publicly warned a former judge for ordering a father to turn over his child and issuing a writ of attachment for the child without notice to the father or his attorney, without conducting a hearing, and without supporting pleadings and/or affidavits being filed. Public Warning of Saldana (Texas State Commission on Judicial Conduct November 12, 2013).

Standing alone:  Facebook friendship and disqualification

In the first decision on the issue by any state supreme court, the Florida Supreme Court held that, standing alone, a judge’s Facebook “friendship” with an attorney appearing in a case did not disqualify the judge.  Law Offices of Herssein and Herssein v. United Services Automobile Association (Florida Supreme Court November 15, 2018).

The Court began with the “general principal” that a traditional friendship between a judge and an attorney, standing alone, did not require disqualification, noting that traditional friendship “varies in degree from greatest intimacy to casual acquaintance.”  Facebook friendship, the Court found, “exists on an even broader spectrum,” varying “in degree from greatest intimacy to ‘virtual stranger’ or ‘complete stranger.’”

Therefore, the Court held, disqualification was not required:  no reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on a judge’s Facebook friendship with an attorney that “in and of itself,” provided “no significant information about the nature” of their relationship, indicated only “a relationship of an indeterminate nature” without revealing “the degree or intensity of the relationship,” and did not “signal the existence of a traditional ‘friendship’” much less “a close or intimate relationship.”

The Court disagreed with the reasoning of Florida Advisory Opinion 2009-20, which stated that a judge may not be friends on Facebook with lawyers who may appear before the judge.  (The advisory opinion itself does not mention disqualification or the appearance of partiality.)  That opinion explained that, because a judge’s Facebook friends may see who the judge’s other Facebook friends are, the judge’s selection of some attorneys as friends on Facebook and rejection of others and communication of those choices conveys, or permits others to convey, the impression that they are in a special position to influence the judge, violating the code of judicial conduct.

Citing advisory opinions from other states and noting that the Florida committee’s position was clearly the minority position, the Court stated that focusing on the public nature of Facebook friendship was “unwarranted.”  The Court explained that even “traditional ‘friendship’ involves a ‘selection and communication process,’ albeit one less formalized than the Facebook process,” as people “traditionally ‘select’ their friends by choosing to associate with them to the exclusion of others” and “traditionally ‘communicate’ the existence of their friendships by choosing to spend time with their friends in public, introducing their friends to others, or interacting with them in other ways that have a public dimension.”

The Court did not discuss whether a judge should disclose a Facebook friendship with an attorney in a case under the comment to Canon 3B of the Florida code of judicial conduct that “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”  Cf., Comment 5, Rule 2.11 ABA Model Code of Judicial Conduct (2007) (“A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification”).

In a concurring opinion, 1 justice “strongly urge[d] judges not to participate in Facebook” and encouraged new judges who have existing Facebook accounts to deactivate them.  The concurring justice argued that “judges must avoid situations that could suggest or imply that a ruling is based upon anything” other than the facts and the law even if, as he agreed with the majority, “’friendship’ on Facebook, without more, does not create a legally sufficient basis for disqualification.”  Recognizing that Facebook may be the primary way some judges “stay in touch with family members, actual friends, or people with whom they have reconnected after many years,” the concurring justice suggested that, “at the very least,” judges should carefully “limit their ‘friendships’ to cover only such individuals.”

In a dissent, 1 justice argued that, when the differences between Facebook “friendships” and traditional friendships “are taken into account,” “it is clear that judges’ Facebook ‘friendships’ with attorneys who appear in their courtrooms can easily cause an appearance of impropriety.”  The dissenting justice explained that, contrary to the premise of the majority, “equating friendships in the real world with friendships in cyberspace is a false equivalency.”

The existence of a Facebook “friendship” may reveal far more information regarding the intimacy and the closeness of the relationship than the majority would assign it.  For example, as the majority explains, once a person becomes “friends” with another Facebook user, that person gains access to all of the personal information on the user’s profile page—including photographs, status updates, likes, dislikes, work information, school history, digital images, videos, content from other websites, and a host of other information—even when the user opts to make all of his or her information private to the general public. . . .  Additionally, the ease of access to the “friend’s” information allows Facebook “friends” to be privy to considerably more information, including potentially personal information, on an almost daily basis.

The dissenting justice emphasized that she was not attacking “the responsible use of social media.”  The dissent noted that the Court, The Florida Bar, and many other groups have public Facebook pages that “disseminate information and enhance the role of judges, lawyers, and the judiciary in the public domain” but only allow individuals to “follow” the pages, not become Facebook friends.  The dissent suggested that judges should adopt that model to eliminate the appearance of impropriety caused by the “self-selection” friending process.

Further, the dissent argued, the majority’s standard forced a litigant to engage in “impractical and potentially invasive” discovery “to determine with whom the judge has connected, with whom the judge has declined to connect, and what type of communication the judge engages in” on Facebook, LinkedIn, Instagram, and other sites to determine if there was something more than a mere Facebook “friendship” that could justify filing a motion for recusal.  The dissent urged the Court to “at least adopt parameters for judges to follow when engaging with social media.”  The dissent noted factors listed by a California advisory opinion for a judge to use in determining whether to friend an attorney:  the nature of the judge’s social networking site; the number of “friends” on the judge’s page; the judge’s practice in determining whom to include; and how regularly the attorney appears before the judge.  California Judges’ Association Advisory Opinion 66 (2010).

As the dissent suggests, when disqualification is not automatically required, as the majority held, a judge must still consider whether a Facebook friendship with an attorney — alone or in combination with other factors — raises a reasonable question about the judge’s impartiality whenever the friend appears in a case.  The relevant factors can be extrapolated from opinions regarding disqualification based on a traditional friendship and the list of factors in the California advisory opinion referenced by the dissent.  The list of factors for determining whether there is “something more” than a mere Facebook friendship that requires disqualification include:

  • The frequency of the judge’s social media contacts and communications with the attorney;
  • The substance of the judge’s social media contacts and communications with the attorney;
  • The scope of the social media friendship;
  • The nature of the judge’s social networking page (for example, whether it is more personal or professional);
  • The number of “friends” the judge has on the page;
  • The judge’s practice in deciding whom to “friend” (in other words, whether the judge is very exclusive or more inclusive when deciding whom to add); and
  • Whether the judge and the attorney have frequent, personal contacts in real life as well as on-line.

Thus, for example, a judge’s impartiality is more likely to be reasonably questioned and disqualification is more likely to be required when an attorney/Facebook friend appears in a case if the judge’s Facebook account primarily has posts about personal activities, or if his Facebook friends are mainly his family and close, personal friends, or if he is very selective when adding to his friend list, or if the judge and the attorney comment on each other’s posts, or if the judge and the attorney and their families also socialize in real life.  In contrast, a judge’s impartiality is not likely to be questioned and disqualification is not likely to be required when that friend appears in a case if the judge’s Facebook account is focused more on court business and the judge’s professional activities, if the judge has many friends on the page, if those friends are primarily professional acquaintances, if the judge allows everyone to follow him, and if the judge and the attorney only interact in court or at bar meetings.