Throwback Thursday

5 years ago this month:

  • Pursuant to a finding allowing for discretionary disclosure, the Arizona Commission on Judicial Conduct made public a letter privately warning a judge regarding his web-site and other self-promotional activity. Jayne, Order (Arizona Commission on Judicial Conduct August 22, 2014).
  • The Hawaii Supreme Court suspended a former judge from the practice of law for 120 days for altering 10 judicial determinations of probable cause documents. In the Matter of DesJardins (Hawaii Supreme Court August 21, 2014).
  • Based on an amended consent-to-discipline agreement, the Ohio Supreme Court publicly reprimanded a judge based on his arrest and no contest plea to charges of operating a motor vehicle under the influence of alcohol and impeding the roadway. Ohio State Bar Association v. Corrigan, 17 N.E.3d 553 (Ohio 2014).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge who had been convicted on charges that, in return for sexual contact, he gave 2 women money and/or other benefits for the handling and disposition of matters involving them. In the Matter of Ferguson, 762 S.E.2d 385 (South Carolina 2014).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) granting a receiver in a divorce case non-delegable judicial powers and (2) making a disproportionately high percentage of indigent court appointments to 1 attorney, contrary to the Texas Fair Defense Act and the county indigent defense plan; the Commission also ordered the judge to obtain 4 hours of instruction with a mentor judge. Public Admonition of Gonzalez (Texas State Commission on Judicial Conduct August 26, 2014).

 

Judicial Conduct Reporter

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

  • Continuing jurisdiction over former judges
  • Marijuana and judicial ethics
  • Fund-raising for problem-solving courts
  • Recent cases
    • Willful ignorance, unreasonable credulity, and misappropriation (In the Matter of Corradino (New Jersey); In the Matter of Freese (Indiana))
    • Ex parte communications and independent investigation (Judicial Commission v. Piontek (Wisconson)

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

 

 

Ex parte communications:  “Convenience, happenstance, and habit”

Based on a special committee report, the Judicial Council of the U.S. Court of Appeals for the 7th Circuit publicly admonished a judge of the U.S. District Court for the Central District of Illinois for his practice of exchanging ex parte communications with the U.S. Attorney’s Office.  In re Bruce, Memorandum (7th Circuit Judicial Council May 14, 2019).  The Council also ordered that the judge remain unassigned to any matters involving the Office until September 1, watch a Federal Judicial Center training video, and read excerpts of the Code of Conduct for U.S. Judges.

Before being appointed in 2013 to the U.S. District Court for the Central District of Illinois, the judge worked for 24 years in the U.S. Attorney’s Office in the Central District of Illinois and had “unsurprisingly” formed friendships with several people working in that office.  After being appointed, the judge remained friendly with many people in the office, including paralegal Lisa Hopps.

In December 2016, Hopps complained in an e-mail to the judge about his absence from a going-away party for U.S. Attorney Jim Lewis, and the judge responded that he had missed the party because he was presiding over the trial in U.S. v. Nixon.  The judge said one of the Assistant U.S. Attorneys in the case was “entirely inexperienced” and criticized that attorney for repeating “the bull***t” from the defendant’s testimony and turning a “slam-dunk” case into a “60-40” one for the defendant.  The judge mentioned his boredom and added that he “work[s] hard not to try” cases, which he testified referred to not acting as an advocate even when a case is being poorly tried.

In late 2017, Hopps shared these e-mails with Assistant U.S. Attorney Timothy Bass after the judge found that Bass had misled the court in a high profile criminal case in which the defendant was a former member of Congress.  Bass then notified other personnel in the U.S. Attorney’s Office about the e-mails, and the Office disclosed the e-mails to Nixon’s counsel.  Nixon filed a motion for a new trial based on the e-mails, which is still pending.

After a review, the U.S. Attorney’s Office discovered additional e-mails between the judge and members of the Office in other cases and disclosed the e-mails to the defense in those cases.  The Federal Defender in the Central District, whose office represented the defendants in many of the cases, filed a complaint.

In August 2018, the Illinois Times published an article titled, “Federal judge engaged in ex parte talk.”  Other news outlets also reported the story, and the “coverage and its aftermath prompted” the Chief Judge of the 7th Circuit to file a complaint and prompted the Central District’s Chief Judge to remove the judge from all cases involving the U.S. Attorney’s Office.

The special committee found that the judge frequently had ex parte communications with employees of the U.S. Attorney’s Office about requests for warrant approvals, draft plea agreements, jury instructions, docketing issues, scheduling matters, and criticisms of individual Assistant U.S. Attorneys.  The special committee also found that probation officers regularly contacted the judge directly and copied the Office but not defense counsel on those e-mails.  The committee also found that the judge occasionally had ex parte communications with the Office after he had entered judgment in a criminal case, for example, congratulating Assistant U.S. Attorneys when they prevailed on appeal in cases over which he had presided.  Most of the communications were by e-mail, but some were in person or over the phone.

Further, in addition to the Nixon-related e-mails, the committee found that the judge had communicated ex parte about a second pending trial with the U.S. Attorney’s Office.  After the judge and Assistant U.S. Attorney Elly Perison had a misunderstanding during a pretrial-conference about what documents had been filed in U.S. v. Gmoser, Peirson sent the judge a series of docket entries, copying his clerk and defense counsel.  In a private response, the judge stated, “My bad.  You’re doing fine.  Let’s get this thing done.”  During the hearing, the judge explained that his comment was only intended to comfort Peirson after the misunderstanding.  Disclosure of this e-mail  prompted a defense motion for a new trial, which remains pending.

The committee noted that there was no evidence that the judge’s ex parte communications with the U.S. Attorney’s Office “impacted any of his rulings or advantaged either party” or were on the merits of cases, with the exception of the Nixon-related and appeal-related e-mails.  The judge “admitted that some of his communications were flatly inappropriate and others were unwise.”  However, he initially claimed that the e-mails about scheduling and other ministerial matters were not objectionable, arguing that ex parte communications about minor matters were “‘permissible for the efficient operation of the court,’” were the “default,” and were part of the “culture” of the courthouse that went back at least to his predecessor as district judge.

However, although the code allows an ex parte communication for scheduling “when circumstances require it,” the special committee emphasized that, “’when circumstances require it’ is key.  As Judge Bruce now concedes, the majority of his ex parte communications did not ‘require’ the exclusion of defense counsel; they were often a matter of simple convenience, happenstance, and habit.”  The committee acknowledged that “certain circumstances will require ex parte communications, including genuine emergencies and emails relating to warrant applications,” but stated that no good reason had been provided why defense counsel should not have been included in “the routine scheduling and ministerial discussions” the judge had had with the Office and that the communications violated the code even if the practice was attributable to courthouse culture.

The special committee disagreed with the judge’s argument that his sanction should be private, concluding that a public response was required given the “public criticism of Judge Bruce’s ex parte communications, found in news reports and defense motions for new trials.”  The committee stated that “the public heeds the judiciary’s decisions on the belief that it operates independently and with integrity, and this case suggests that such belief in Judge Bruce’s work on cases involving the Office may have waned.”

However, the committee also emphasized that it was not condemning the judge’s “ongoing friendships with members of the Office.  Such relationships are normal, . . . and there is ample guidance on when recusal or disqualification based on friendship is appropriate . . . .  The bottom line is that a judge’s closeness to individuals having cases before him simply does not excuse ex parte communications prohibited by judicial norms and the Code of Conduct.”  Although the committee noted that “some interviewees expressed a concern that Judge Bruce remained too friendly with members of the Office,” it concluded that “no evidence suggested that Judge Bruce had an inappropriate relationship with anyone at the Office.”

 

Throwback Thursday

10 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a former judge for failing, while he was presiding judge, to take sufficient action to ensure that a court commissioner was deciding all of her cases in a timely manner and failing to promptly respond to complaints about the commissioner’s delays. In the Matter Concerning Schnider, Decision and Order (California Commission on Judicial Performance August 31, 2009).
  • Modifying the recommendation of the Commission on Judicial Qualifications based on the judge’s consent, the Nebraska Supreme Court suspended a judge for 4 months without pay for (1) improperly involving himself in a criminal case against his nephew by personally requesting the prosecutor to keep a plea agreement open, telephoning and meeting with the nephew’s attorney, and having an ex parte communication with another judge concerning the case; and (2) using expletives during a private conversation with a prosecutor concerning the scheduling of a case, stating that the defendant should have been “hammered” with other felony charges, and leaving a profane and threatening message on the prosecutor’s telephone. In re Complaint against Marcuzzo, 770 N.W.2d 591 (Nebraska 2009).
  • Based on the judge’s acceptance, the North Carolina Judicial Standards Commission publicly reprimanded a judge for ordering a woman to show cause why she should not be held in criminal contempt of court for distributing political flyers alleging the judge was corrupt. Public Reprimand of Bridges (North Carolina Judicial Standards Commission August 24, 2009).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for taking 8 months to decide a petition to restore custody of a child to the child’s mother. In re Rich (Tennessee Court of the Judiciary August 26, 2009).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for having an affair with a court employee. In the Matter of Mamiya, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct August 7, 2009).

 

Recent cases

  • The California Commission on Judicial Performance publicly admonished a judge for failing to timely act in 3 family law cases and signing 2 false salary affidavits.  In the Matter Concerning Lamb, Decision and order (California Commission on Judicial Performance July 2, 2019).
  • Based on stipulated facts, the Mississippi Supreme Court suspended a judge for 30 days without pay, publicly reprimanded him, and fined him $500 for contacting sheriff’s investigators in 2 cases and remanding the charge to file in 1 of the cases.  Commission on Judicial Performance v. Sutton (Mississippi Supreme Court July 19, 2019).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for ordering a landlord jailed for contempt without following the law; the judge also agreed to complete a course at the National Judicial College.  In the Matter of Jasperson, Stipulation and order of consent (Nevada Commission on Judicial Discipline July 23, 2019).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for failing for over 15 months to appoint a prosecutor pro tem for or recuse himself from a criminal matter against a justice of the peace who was his friend and with whom he had a business relationship.  Public Warning of Turcotte (Texas State Commission on Judicial Conduct July 16, 2019).\
  • The Texas State Commission on Judicial Conduct publicly warned a judge for failing to maintain her Texas law license in good standing 5 times from 1992 through 2018.  Public Warning of Guaderrama (Texas State Commission on Judicial Conduct July 16, 2019).
  • Based on the findings and recommendation of a judicial conduct panel, the Wisconsin Supreme Court suspended a former judge for 3 years from eligibility for appointment as a reserve municipal court judge for a “pattern of obsessive conduct about whether [the court manager] liked him as a friend” and actions that were meant to intimidate her or to retaliate against her for reporting his conduct.  Judicial Commission v. Kachinsky (Wisconsin Supreme Court July 9, 2019).
  • Based on a special committee report, the Judicial Council of the U.S. Court of Appeals for the 7th Circuit publicly admonished a judge for his practice of ex parte communications with the U.S. Attorney’s Office; the Council also ordered that the judge remain unassigned to any matters involving U.S. Attorney’s Office until September 1, watch a Federal Judicial Center training video, and read the excerpts of the Code of Conduct that are part of the training.  In re Bruce, Memorandum (7th Circuit Judicial Council May 14, 2019).

 

Throwback Thursday

20 years ago this month:

  • Pursuant to a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for granting a petition for habeas corpus that raised issues of law related to another court’s order even though he knew that the prosecutor had not been notified. In the Matter of Johnson, 715 N.E.2d 370 (Indiana 1999).
  • Affirming the recommendation of the Court of the Judiciary, the Tennessee Supreme Court suspended a part-time non-lawyer judge for (1) using an inmate from the county jail to work on a house being built for the judge’s son; (2) trying a felony offense when he knew or should have known that his court did not have jurisdiction over felony offenses; and (3) falsely answering interrogatories and testifying about his assets in a federal court proceeding in which a judgement had been entered against him. In re Williams, 987 S.W.2d 837 (Tennessee 1998).

 

Obsession, fixation, intimidation, and retaliation

Based on the findings of a judicial conduct panel, the Wisconsin Supreme Court suspended a former municipal court judge for 3 years from eligibility for appointment as a reserve judge for a “pattern of obsessive conduct about whether [the court manager] liked him as a friend” and trying to intimidate her or retaliate against her for reporting him.  Judicial Commission v. Kachinsky (Wisconsin Supreme Court July 9, 2019).

The judge was the part-time, elected judge for the Village of Fox Crossing Municipal Court, which holds sessions approximately 3 Thursday evenings a month for 90-120 minutes.  In the spring of 2016, the judge hired M.B. as the full-time court manager.  The judge and M.B. shared a small office in the municipal building.  Even before M.B. was hired, she and the judge had been “friends” on Facebook; each had hundreds of friends on Facebook, including a number of mutual friends.  At the beginning of M.B.’s employment, they had occasional conversations about their personal lives, developed a friendship, and engaged in occasional joint activities outside of work.

Beginning in March 2017, however, their relationship became strained after “a couple of incidents that M.B. found concerning.”  First, in a public comment to a post on M.B.’s Facebook page, the judge stated that M.B. was “on her second honeymoon” at “an undisclosed location.”  M.B. informed him that this was incorrect, and he apologized.  A few days later, the judge hid behind a counter at the court office, and, when M.B. walked in, he popped up and shouted “roar,” startling M.B.  During that visit, the judge’s “loud and boisterous” conduct disturbed village employees.  In an e-mail after the visit, the judge told M.B. that he hoped his visit had made her day and that it was something he was “more than happy to do for my best friends.”  M.B. told the judge in an e-mail that “it would help her focus on her job if they kept their relationship work-related.”  In an e-mail in response, the judge agreed to minimize discussion of non-business matters during business hours but indicated that he wanted to continue to discuss their everyday personal lives.

After the judge sent numerous other e-mails to her about personal matters, M.B. filed a complaint with the village’s human resources manager.  In a meeting the next day, the human resources manager explained to the judge the concerns about his behavior and developed guidelines, including that no personal information about colleagues would be shared on social media, that all phone and e-mail communications would relate to business matters, and that the judge would only visit the office once a week.

However, the panel found, the judge “was upset as a result of the meeting and was determined to express his displeasure to M.B. and to reject any limitation on communications to work-related matters.”  The judge sent M.B. several e-mails that included personal matters, insisted that he needed to have a personal friendship with her, and invited her to participate in a non-work activity.

On 3 occasions, the judge went to the municipal court office, sat close to M.B.’s desk, facing her, and did nothing except tap his pen and make “cat noises;” on 1 visit, the judge “continued this extremely odd behavior for 45 minutes.”  During one of the visits, the judge told M.B. a story about a dog being raped and then repeated the story.

In a telephone call, the village manager and the village attorney explained to the judge his potential violations of the village’s policy prohibiting harassment in the workplace, advised him to maintain professional decorum at work, and told him to stop communicating with M.B. about personal matters.

Over the following weekend, the judge told M.B. in an e-mail that he wanted to “hit the reset button,” claiming that it had not been clear to him that she wished to avoid after-hours activities with him but that he now understood.  However, he also chastised M.B. for not telling him directly and said:

My main concern is that a “work only” discussion policy should not preclude normal “water cooler” discussion of things like the Packers, Badgers, child graduations, children having children, recent vacation adventures, etc.  I need to know what you consider to be “over the line.” . . .  Walking on eggshells during what should be relaxed casual conversations is not good for productivity or mental health.  Your ideas on this are welcome.

The judge also complained that M.B. had “defriended” him on Facebook and encouraged her to reverse that decision.

After that e-mail, the village manager sent the judge a letter pointing out that he had violated the village’s direction not to discuss the personal relationship with M.B. and reminding him that he was not to engage in any communications with her beyond work matters.

Approximately 2 weeks later, the judge sent M.B. an e-mail that, he acknowledged, “violate[d] every principle we have talked about regarding office conduct the last few weeks” but continued, “Feel free to report me to HR.  I feel spunky this morning.”  The judge sent her other e-mails about having “a beer or wine summit” and ending “the strict restrictions on no nonwork related discussions and replace it with use of respect and common sense.”

In an e-mail to the human resources manager in June 2017, the judge claimed that the incidents about which M.B. had complained were “minor” and that her unwillingness to accept his view of how their relationship should work was detrimental to the municipal court office.  He stated that he preferred not to work with “such a person any longer than possible,” suggested that the human resources manager advise M.B. to “give a little bit on the work-only thing,” and explained that the alternative was for him to terminate her employment.  In a subsequent e-mail, the judge told the human resources manager that, although he had not made a final decision on whether to fire M.B., she had until 5:00 p.m. that day to decide if she accepted his “rules” for their professional and personal relationship.  Later that day, the village attorney informed the judge that his conduct violated the village’s policy against harassment and that his threats to terminate M.B. constituted retaliatory conduct that, if carried out, would violate the law.

After receiving the letter, the judge “elevated his conduct.”  He posted to his Facebook page that “[t]he sh— is not over.  I might have an employee termination today.  Not mine.”  The panel found that, although “the post did not explicitly name M.B., the only conclusion a reader could draw was that M.B. was about to be fired because she was the only employee he supervised either at the municipal court or in his private law practice.”

On July 17, while alone with M.B. in the municipal court office, the judge lunged over her desk, knocking some items off and whispering to her:  “Are you afraid of me now?”  The panel found that the judge was attempting “to intimidate M.B. into acquiescing in his fixation on a personal relationship with her.”

That evening, the judge ran into something on his way out of the courtroom, and his arm began to bleed.  He used his pay stub envelop to stop the bleeding then left the blood-stained envelope on his desk in the office where M.B. could observe it.  The panel found that this “was an attempt either to intimidate M.B. or to elicit sympathy from her . . . , an intentional non-verbal communication that had nothing to do with work.”

In an e-mail later that evening, the judge told M.B.:  “[I]f you want to restore a happy workplace, the first step is to stand up on your own and not use the Administration as a crutch. . . .  I can overlook what I consider poor judgment in handling a situation.  I cannot tolerate a weakling unwilling to have free and open discussions with the boss (or insubordination).”

On July 21, the Judicial Commission notified the judge that it was investigating allegations against him and advised him to “scrupulously avoid retaliatory conduct or witness intimidation.”

On July 26, the village manager held another meeting with the judge about keeping his relationship with M.B. work-related.  After that meeting, the judge dropped a white flag he had fashioned from office supplies on M.B.’s desk and said, “Here you go, I surrender, you win.”

However, the Court stated, the judge “was far from ending his campaign.”  For example, on October 27, the judge wrote a letter to M.B. reprimanding her for forwarding to the village manager e-mails that the judge had written to her.  On November 2, in the presence of M.B. and the human resources manager, the judge mentioned Harvey Weinstein and Bill O’Reilly and stated loudly, “I don’t do that crap and you should get that through your thick head.”

The next day, the judge sent a letter to M.B. that stated:  “By this time next week some things are going to happen that will cause a lot of fire and fury at the Municipal Building.  No, I am not resigning.  Just be psychologically prepared.  Have a good weekend.”  M.B. and villages officials were so disturbed by that e-mail that the village police were notified.  When the police chief interviewed him about the e-mail, the judge giggled more than once.

On Saturday, November 25, the judge sent an e-mail scolding M.B. for ignoring a previous e-mail in which he had wished her and her family a happy holiday.  The e-mail also stated:  “Will not spend the next 1.5 years or 5.5 years working with someone who actively despises me.  I have told you this many times.  We are approaching the end of the line on this.”  The e-mail concluded that, “There was an allegation missing from the additional letter from the [Judicial Commission]” and a picture of a kitchen sink was attached.

The next day, the judge dropped off a reprimand letter alleging that M.B. had falsely stated that he was stalking or tracking her in her complaint to the village 6 months earlier.

On Saturday, December 23, the judge wrote another letter of reprimand to M.B. based on her alleged refusal to return his Christmas greetings and her failure to respond positively to his efforts to improve workplace rapport.  On his Facebook page, the judge posted a sad face emoji with:  “Len Kachinsky was feeling sad.  Few things are sadder than a co-worker who refuses to return a Merry Christmas greeting out of spite.”

Following additional e-mails and meetings, M.B. sought and received a harassment injunction against the judge.

Less than 2 weeks later, the judge left on his desk where M.B. would see it a poster with a picture of the village manager’s face and the caption:  “I am from the government and I am here to help you.  WWRD #notmetoo.”  The judge also posted on his desk facing M.B.’s desk a copy of a page from the village personnel manual, entitled “Sexual Harassment,” with the word “sexual” highlighted 7 times in yellow marker.  M.B. believed that the poster and the copy of the sexual harassment policy violated the terms of the harassment injunction.  The police were contacted, and the judge was arrested.

On July 11, the state filed a criminal complaint charging the judge with 1 count of felony stalking and 2 misdemeanor counts of violating a harassment injunction.  Shortly before the trial, the district attorney’s office dropped the misdemeanor counts.  A jury found the judge not guilty on the felony charge.

The judge’s primary argument was that the village officials did not have the authority to regulate his “supervision of a resistant employee in an effort to ‘restore a level of personal rapport,’” which he believed was “a legitimate and laudable objective that is necessary for a workplace to perform effectively.”  The Court concluded, however, that, regardless whether “he was legally obligated to abide by the directives given by representatives of the village, he was obligated by the relevant provisions of the Code of Judicial Conduct to maintain high standards of personal conduct and to act in a manner that promotes the integrity of the judiciary.”  The Court explained:

We fail to see how staring at a court employee for 45 minutes while tapping a pencil and making cat noises constitutes the maintenance of high standards of personal conduct or promotes the integrity of the judiciary.  Indeed, it does just the opposite.  Serving the people as a judicial officer does not allow a judge to impose his/her every opinion about personal interactions on subordinate court personnel or to force those subordinates to be the judge’s personal friends.

Judges are entitled to ensure that their subordinate employees perform their work responsibilities in appropriate manners.  Judge Kachinsky’s pattern of obsessive conduct about whether M.B. liked him as a friend clearly passed well over the line and brought the municipal court he administered into public disrepute. . . .  The notoriety that resulted from his insistence that M.B. had to be not only his court clerk, but also his friend, certainly caused the residents of the Village of Fox Crossing who appeared in his court to question whether he had the temperament and stability to preside over their cases in a proper manner.

The Court stated that “M.B. was required to process case files and deal with the public as a manager of the municipal court, not to satisfy Judge Kachinsky’s personal opinion that employees must also be personal friends.”  The Court noted that his acquittal on the felony stalking charge did not mean that he was innocent of the ethical violations.

An article on “Professional boundaries in the courthouse” about other judicial discipline cases involving attempts by a judge to force a close personal relationship with a court staff member was published in the summer 2018 issue of the Judicial Conduct Reporter.