Throwback Thursday

20 years ago this month:

  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for (1) ordering “instanter trials” in 18 criminal neglect of family cases immediately after the defendants pleaded not guilty and (2) violating the Commission’s confidentiality rules by asking if a litigant wanted him to recuse based on the complaint the litigant had filed against him. In re Aucoin, 767 So. 2d 30 (Louisiana 2000).
  • The New York State Commission on Judicial Conduct removed a part-time judge who had been convicted of 2 misdemeanors for physically abusing a mentally incompetent patient in a nursing home where she was employed as a licensed practical nurse. In the Matter of Stiggins, Determination (New York State Commission on Judicial Conduct August 18, 2000).
  • Adopting the recommendation of the panel of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court ordered a 6-month stayed suspension for a judge for, while a candidate, failing to closely supervise campaign activities; failing to report a township’s contributions of the use of a township garage for producing campaign signs and the value of labor of inmates and welfare workers; and exaggerating his endorsements. Office of Disciplinary Counsel v. Evans, 733 N.E.2d 609 (Ohio 2000).
  • Based on stipulations of fact, the Pennsylvania Court of Judicial Discipline severely reprimanded a senior district justice, and ordered him ineligible to accept any assignments for contacting another district justice seeking favorable treatment for a friend in connection with a traffic violation. In re Kelly, 757 A.2d 456 (Pennsylvania Court of Judicial Discipline 2000).
  • Pursuant to a stipulation and agreement, the State Commission on Judicial Conduct publicly censured a judge and the Washington Supreme Court suspended him without pay for 5 months for (1) engaging in abusive and intemperate language and behavior toward court staff and colleagues, (2) improperly entering ex parte orders without a hearing or notice to parties, and (3) engaging in numerous ex parte contacts in a child custody dispute, including undertaking an ex parte investigation outside the courtroom. In re Tollefson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct August 21, 2000). approved (Washington Supreme Court August 30, 2000).

 

 

What they said that got them in trouble so far in 2020: Part 1

To or about litigants

  • “And good luck to [the child], because it ain’t going to turn out well for her;” and “she’s going to get divorced. And your grandkid is going to go through the same things she’s going through because this is all she knows.”  Judge to parents in a family law case.  In the Matter Concerning Gary, Decision and order (California Commission on Judicial Performance May 14, 2020) (admonition for this and related comments).
  • “This is a self-created, self-inflicted wound that I’m ready to give up on. You can bleed out.  It’s not my responsibility anymore.”  Judge to parents in a family law case.  In the Matter Concerning Gary, Decision and order (California Commission on Judicial Performance May 14, 2020) (admonition for this and related comments).
  • “Death is part of life. In fact, it’s one of the certainties of life.  And the reason I raised religion is not to get into a deep philosophical religious discussion, but to address this witness’s concern with these two parents that a child not understanding the permanence of death, that is true, but parents or adults also struggle with the permanence of death.  And one of the ways they cope with the permanence of death is through religion, through the promise of when you die, somehow you will live again.  The Christian religion — I know dad goes to church, or at least I’ve heard testimony.  The Christian religion, you will have everlasting life, John 3:16.  If you go through that, what is the purpose for that for adults?”  Judge to retired licensed clinical social worker testifying in family law case.  In the Matter Concerning Gary, Decision and order (California Commission on Judicial Performance May 14, 2020) (admonition for this and related comments).
  • “The only person you should be sending naked pictures to [is] . .. Hugh Hefner.  He will pay you $100,000 for the use of them.”  Judge to plaintiff seeking the return of photographs taken of her for the benefit of her then-boyfriend.  In the Matter of Rivas, Order (New Jersey Supreme Court March 23, 2020), accepting (censure for this and related comments).
  • “[Fish] said he was a minister. What’s the story with that? * * *  A Christian minister even though he’s Jewish;” and “Do Jewish people have halos?  I think they have angels though, right? * * *  The Catholics got lots of angels or uh * * *  ‘Halos.”  Magistrate in ex parte conversation with one party after the other party left the courtroom following a hearing in a protection order case.  Disciplinary Counsel v. Porzio (Ohio Supreme Court April 23, 2020), adopting (stayed 6-month suspension without pay).
  • “[A]t the end of this, who looked like * * * an as—le and who looked like a good guy?’” Magistrate in ex parte conversation with one party after the other party left the courtroom following a hearing in a protection order case.  Disciplinary Counsel v. Porzio (Ohio Supreme Court April 23, 2020), adopting (stayed 6-month suspension without pay).
  • “He is a most obnoxious mean man.” Judge in email to law clerk about a party in a case.  Public Reprimand of Leahy (Minnesota Board on Judicial Standards March 19, 2020).
  • “You know, sounds like she was using meth and she’s a meth head.” Judge referring to the victim in a domestic violence case.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “[Stop] shucking and jiving.” Judge to African-American defendant who gave what the judge believed to be evasive answers to his question.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “Stop, now, just stop with that! Jesus . . . .  Come on.  That’s getting old, that’s getting really old;” and “Why can’t you just be quiet when other people are talking?” Judge to pro se litigant in small claims case in which a close friend was representing the other party.  In the Matter of Gorski, 937 N.W.2d 609 (Wisconsin 2020) (reprimand for this and related misconduct).
  • “Close your legs? Call the police?  Did you do any of those things?”  Judge asking domestic violence victim about a sexual assault.  In the Matter of Russo (New Jersey Supreme Court May 26, 2020) (removal for this and other misconduct).
  • “For the record I’ve known Al Carbonetto and his wife since high school. Tina Bizzucci at that point.”  Judge before reducing the amount of spousal support a husband had been ordered to pay by another judge.  In the Matter of Russo (New Jersey Supreme Court May 26, 2020) (removal for this and other misconduct).
  • “If he’s not using the illicit drugs, then what is he transporting them up his backside for?” Judge in the courtroom about a case pending in a different court.  In the Matter of Pebler, Determination (New York State Commission on Judicial Conduct June 17, 2020) (censure for this and related misconduct).
  • “I am going to look at those [sic] traffic stuff and see what we can do. Your [sic] really trying and I hate to see u [sic] buried in fines.  I would do that for anyone who’s trying;” and “Message me first thing in the morning and I will call.  Make sure you don’t tell anyone ur [sic] talking to me for lots of reasons.”  Judge on Facebook Messenger to woman about cases pending before other judges.  Letter of resignation and prohibition from office (Throesch) (Arkansas Judicial Discipline & Disability Commission May 1, 2020)  (resignation and permanent bar for this and other misconduct).

To or about attorneys

  • “I don’t care what anybody wears, Ms. McKeegan, if you wear yoga pants to court, it’s okay with me;” and “Oh, I should not have said that. Are there cameras in here?”  Judge to assistant district attorney.  In the Matter of Gerber, Determination (New York State Commission on Judicial Conduct June 27, 2020) (admonition for this and other misconduct).
  • “[Do you] want a room?” and “[Should I] turn off the lights?” Judge to an assistant district attorney and her friend as he was leaving the courtroom.  In the Matter of Gerber, Determination (New York State Commission on Judicial Conduct June 27, 2020) (admonition for this and other misconduct).
  • “I will let your client withdraw his plea. However, no matter what happens, I am putting him in jail for 10 days for wasting the court’s time.  Unless he gets a not guilty, he should expect to go to jail for 10 days.  If the jury gives him 30 days, I will give him forty.  If he pleads, he’s going in for at least 10 days as a condition.”  Judge after defendant rejected a plea agreement.  Public Warning of Gray (Texas State Commission on Judicial Conduct February 7, 2020) (warning for this and other misconduct).
  • “I’m not sure I want to shake your hand;” and “Do you know how much trouble you have caused me? Do you know how much money I have had to pay lawyers because of you?”  Judge to attorney he believed had complained about him to the Commission.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “I have the biggest balls in the courthouse.” Judge in hallway to 2 female assistant district attorneys.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “You should see their faces. They start to roll up their sleeves, and I just drop ‘trou’ and take my shot in the a**,” or words to that effect.  Judge about getting flu shot at employee health center in conversation in chambers with 2 female attorneys.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “And, I don’t need a cheering section okay? So, if I need something from you, I’ll ask you, all right.”  Judge after attorney said, “That’s correct, Your Honor.”  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “You can tell [Attorney General Xavier] Becerra that’s what he gets for going against my president;” and “It’s my job to give the government a bad time,” or words to that effect. Judge after excluding most of the prosecution’s evidence in a case.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “Tell [DDA Brent] Nibecker he’s an idiot. I’ve told him to his face, I don’t care.”  Judge to deputy district attorney.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020)  (censure for this and other misconduct).
  • “You don’t have to act like a scared little girl in my courtroom,” or words to that effect. Judge in ex parte communication with deputy district attorney after a hearing.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “He is an awful attorney;” “Kill me;” “Deep sigh;” and “the [S]tate will ask a million dumb questions about burden of proof, etc.”  Judge in emails to law clerk about proceedings.  Public Reprimand of Leahy (Minnesota Board on Judicial Standards March 19, 2020).

Throwback Thursday

25 years ago this month:

  • Granting a joint motion, the Mississippi Supreme Court publicly reprimanded a judge and fined him $1,450 for dismissing 18 speeding tickets involving 18 defendants after ex parte communications with the defendants and dismissing 13 other traffic tickets involving 12 defendants. Commission on Judicial Performance v. Bowen, 662 So. 2d 551 (Mississippi 1995).
  • The California Commission on Judicial Performance publicly admonished a judge for attending the premiere of a movie that was the subject of a lawsuit over which she had presided and making a public comment about the suit while it was pending on appeal. Public Admonishment of Chirlin (California Commission on Judicial Performance August 28, 1995).

 

“An extra ‘remember me:’”  Serious risk of actual bias on Facebook

Finding that “the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation,” the Wisconsin Supreme Court held that a serious risk of actual bias had been created in a child custody dispute when, while his decision was pending following a contested hearing, the trial judge accepted a Facebook “friend request” from the mother; she interacted with him, including “liking,” “loving,” or commenting on at least 20 of his Facebook posts; and she “shared” and “liked” several third-party posts about domestic violence, which was an issue in the case.  In re Paternity of B.J.M., 944 N.W.2d 542 (Wisconsin 2020).  The Court affirmed the decision of the court of appeals reversing the trial judge’s denial of a motion for reconsideration of his decision in the mother’s favor and remanding the case with directions that it proceed before a different judge.

5 years after Timothy Miller and Angela Carroll stipulated to joint legal custody and shared physical placement of their minor son, Carroll filed a motion seeking sole legal custody, primary physical placement, child support payments, and a change in residence.  She alleged that Miller engaged in domestic violence against her and failed to adequately parent and discipline their son.  Miller opposed the motion and disputed the allegations of domestic violence.

On June 7-8, 2017, Judge Michael Bitney presided over a highly contested evidentiary hearing that included 15 witnesses.  On June 16, the parties filed briefs.

3 days after the briefs were filed, Carroll sent the judge a “friend request” on Facebook.  The judge “accepted” Carroll’s request.

On July 14, the judge issued a written decision in favor of Carroll.

During the 25 days between the judge’s acceptance of Carroll’s friend request and his decision, Carroll “engaged with and ‘reacted to’ at least 20” of the judge’s Facebook posts.  16 of her reactions were “likes” to prayers and Bible verses that he posted.  She “loved” one of his posts reciting a Bible verse and a second regarding “advice” to children and grandchildren.  In response to 2 of his posts about his knee surgery, she posted:  “Prayers on a healthy recovery Judge!!” and “Hope u get some rest and feel better as the days go on.”

In addition, Carroll posted on her Facebook page about domestic violence.  She posted that she was “interested in” attending a “Stop the Silence Domestic violence awareness bike/car Run.”  She “liked” a third-party post related to domestic violence and reacted “angry” to a third-party post entitled, “Woman dies two years after being set on fire by ex-boyfriend.”  She “shared” a third-party post related to domestic violence.

The same day as the judge’s decision, Carroll posted on her Facebook page:

My boys and a [sic] I have been given a chance at greatness, peace, and safety.

The Honorable Judge has granted everything we requested.  I’m overwhelmed with emotions and as bitter sweet as this is, we will have better from here on out. . . .

Viewing that post, the guardian ad litem appointed to the case discovered that Carroll and the judge were Facebook friends and immediately told Miller’s counsel.

Miller filed a motion for reconsideration of the judge’s decision in favor of Carroll.  The judge confirmed his Facebook friendship with Carroll, but denied the motion, asserting that he had no bias and that no “reasonable person in the circumstances of Mr. Miller or others . . . would seriously call into question the Court’s objectivity or impartiality.”  The judge emphasized that he “did not like any posts, respond to any posts, or conduct any communication ex parte or otherwise with Ms. Carroll, other than simply accepting the Facebook friendship request.”  He also claimed that when he accepted Carroll’s friend request he had already “decided how [he] was going to rule, even though it hadn’t been reduced to writing.”  The judge did not deny seeing Carroll’s reactions, comments, or posts on Facebook.

Although noting that it presumed that the judge acted fairly, impartially, and without prejudice, the Court concluded that the father had “rebutted this presumption by showing ‘a serious risk of actual bias.’”  The Court considered:  “(1) the timing of the Facebook friend request and Judge Bitney’s affirmative acceptance; (2) the volume of Carroll’s Facebook activity and likelihood Judge Bitney viewed her posts and comments; (3) the content of the Facebook activity as it related to the context and nature of the pending proceeding; and (4) Judge Bitney’s lack of disclosure.”

With respect to the timing of the Facebook friendship, the Court explained:

Although Judge Bitney had “thousands” of Facebook friends, Carroll was not an established “friend.”  Instead, she was a current litigant who requested to be Judge Bitney’s friend only after she testified at a contested evidentiary hearing in which he was the sole decision-maker.  Judge Bitney had presided over the case since August of 2016; yet, Carroll friended him after he heard the evidence and the final briefs were submitted, but before he rendered a decision.  The timing of the friend request implied that Carroll wanted to influence Judge Bitney’s decision on her motion to modify legal custody, physical placement, and child support.

The Court emphasized that the judge had taken “the affirmative step of accepting Carroll’s ‘friend request’ prior to issuing a written decision on her motion” and that, by accepting the request, the judge “accepted access to off-the-record facts that were relevant to the dispute, namely information regarding Carroll’s character and parental fitness.”  The Court noted that, “in an affidavit filed with the motion for reconsideration, Miller’s sister asserted that Carroll made a ‘purposeful switch in [her] Facebook persona to support her position in the custody dispute,’ including changing her pictures and posts ‘from party type pictures and posts to family pictures and posts about children and family.’”  The Court concluded that “Carroll’s request, and Judge Bitney’s acceptance, put Carroll in a different position than Miller and caused an improper asymmetry of access.”

With respect to the likelihood that the judge would have seen Carroll’s Facebook activity, the Court noted that Carroll had engaged with and “reacted to” a significant number of the judge’s Facebook posts and that the judge would have received a Facebook notification for each of Carroll’s reactions and comments.  It also noted that the judge could have but did not deny seeing Carroll’s reactions, comments, shares, and reactions.  The Court recognized that the record did not include conclusive evidence that the judge read any of Carroll’s posts, but emphasized that “evidence to the contrary is notably absent.”

With respect to the social media contacts in the context of the litigation, the Court noted that Carroll and Miller had the same opportunity to portray themselves in the best light at the hearing but that “Carroll was provided with additional opportunities to do this for 25 days through her access to Judge Bitney via Facebook.”  It explained

The Facebook activity, including 18 “reactions” and two comments, was relevant to the decision-making process in a proceeding like this one, where Carroll’s character, fitness, and credibility were paramount.  Carroll was allowed the opportunity to give Judge Bitney additional information about herself and an extra “remember me” almost 25 different times during the time period when the matter was under advisement, all unbeknownst to Miller.  By reacting to and engaging with Judge Bitney’s posts, Carroll was effectively signaling to Judge Bitney that they were like-minded and, for that reason, she was trustworthy.  She was conveying to him off-the-record information about her values, character, and parental fitness — additional evidence Miller did not have the opportunity to rebut.  Under a “realistic appraisal of psychological tendencies and human weaknesses,” this off-the-record information about Carroll, created a serious risk of actual bias. . . .

The Court also stated that “a portion of Carroll’s Facebook activity was related to her main allegation against Miller at the contested hearing:  domestic violence” but that, “unlike the information presented at the hearing, Miller was unaware that Judge Bitney had access to this off-the-record information.  Had Carroll sent Judge Bitney a letter containing a domestic violence article, which he then read, he undoubtedly would have had to disclose that information to the parties.”

Finally, the Court emphasized the judge’s failure to disclose “at any point, in any way or form.”

Judge Bitney could have initially ignored or denied Carroll’s friend request and disclosed the request to the parties.  He could have also disclosed the Facebook friendship when he received notification of Carroll’s reactions to his posts, unfriended Carroll on Facebook, or changed his security settings to hide her posts from appearing on his News Feed.  Instead, Judge Bitney failed to disclose the friendship or other Facebook activity, and the friendship was discovered only after Judge Bitney issued his decision.  Because of Judge Bitney’s lack of any means of disclosure, Miller was unable to review the interactions between Judge Bitney and Carroll and have an opportunity to refute what Judge Bitney might have seen Carroll post or share.

Thus, the Court held:  “The totality of the circumstances and the extreme facts of this case, viewed objectively, rise to the level of a serious risk of actual bias, which rebuts the presumption of Judge Bitney’s impartiality.”  The Court also held that, “the serious risk of actual bias is a structural error” and, therefore, that the judge’s decision should be reversed and the matter assigned to a different judge on remand.

Although the Court applied the “serious risk of actual bias” that is the constitutional standard from Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), the factors identified by the Court are also relevant to an “appearance of impartiality” analysis under the code of judicial conduct; if the circumstances of a case are significant enough to require disqualification under the due process clause, they would also raise enough reasonable questions to require disqualification under the lower threshold of the code.

 

In response to recent events:  Judicial participation in demonstrations, protests, marches, and rallies

Tens of millions of people have participated in thousands of racial justice demonstrations across the county since May, and the protests continue.  So far, 6 judicial ethics advisory committees have issued opinions in response to inquiries about whether judges can join them.

The Connecticut Committee on Judicial Ethics issued an opinion about a judicial officer’s desire to participate in a specific way in a specific event.  Connecticut Informal Opinion 2020-3.  The organizers of “A Silent March of Black Female Attorneys of Connecticut” had invited the judicial official to meet the marchers at the steps of the Supreme Court and to speak at the event.  The judicial official wanted to read a section of the state constitution:  “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and they have at all times an undeniable and indefeasible right to alter their form of government in such manner as they may think expedient.”  The judicial officer would not be introduced, identify himself by name or title, wear a robe, permit his name or title to be used in advertising, elaborate on the constitutional provision, or speak with the media.

With respect to the march itself, at the steps of the Court, each female attorney go to “the podium, one at a time, to say “Attorney —-, and I am the Mother of a black man, or the Wife of a black man, or Sister…, or Aunt, or…..”  There would be no comments to the media other than:  “No comment, the evidence speaks for itself.”  The committee noted that supporters would be wearing “We Can’t Breathe” buttons directly referring to the George Floyd case and similar cases and would be encouraged to bring protest signs, although it was not known what the signs would say and whether they would refer to police brutality and/or other pending cases.

The Connecticut committee advised the judicial official not to participate.  It concluded:

  • Because the judicial official “may be called upon to rule in cases that involve claims of police brutality or police abuse, his participation . . . may appear to a reasonable person to undermine the judge’s independence and impartiality . . . .”
  • The judicial official’s “participation will insert him unnecessarily into public controversy . . . .”
  • People would likely figure out the judicial official’s identity.
  • A judicial official speaking in support of the event with the Supreme Court as the backdrop “could undermine the public’s confidence in the independence and impartiality of the judiciary . . . .”

Similarly, the New York Advisory Committee on Judicial Ethics stated that judges may not participate in a “walk for justice” organized by a bar association in which participants would “walk silently on the sidewalk past governmental buildings and ‘take a knee’ in front of a depiction of the U.S. Constitution, ‘as a way to both remember George Floyd” and to recognize judges and court personnel at every level ‘who strive every day to accomplish Dr. King’s goal of justice for everyone.’”  New York Advisory Opinions 2020-92/93.  According to the organizers, there would be no speeches, all members of the legal community could participate, and the walk would be entirely peaceful.

The committee noted its strong belief that “racial justice should not be controversial” but concluded:

In this instance, the controversy surrounds not just the broad principle of racial justice but many fact-specific controversies concerning the impact of race on the criminal justice system, police tactics in interactions with African-Americans and minority communities, the legal doctrine of qualified immunity, and the need for law enforcement accountability.  These and other such issues are already a part of many pending disputes in the Unified Court System.  Similar issues, involving competing legal principles and disputed facts, will surely come before New York’s judges at every level of the judiciary.  In the face of these controversies, judges must inspire confidence on all sides that they can be just and fair to all litigants in all proceedings.  Participation in a high-profile silent “walk for justice,” organized around an intensely emotional appeal concerning a man whose death in police custody has roiled the nation in ongoing protests, could “create an appearance of particular sympathy toward one side in court” and necessarily cast doubt on the judge’s ability to be impartial.

See also New York Advisory Opinion 2020-112 (because “multiple high-profile, racially-charged incidents of police violence have resulted in ongoing or reasonably foreseeable litigation and intense local and national controversy, a judge may not participate in an initiative designed to (a) promote trust and open dialogue between activists and police concerning those incidents and/or (b) recommend changes to current police force deployments, strategies, policies, procedures, and practices”).

* * *
The Colorado and Maryland judicial ethics committees advised in general that judges should not participate in demonstrations, protests, marches, or rallies supporting the Black Lives Matter movements.

The Colorado Judicial Ethics Advisory Board noted that, “in response to recent events concerning racial inequality, a growing number of state courts and judges have issued . . . statements opposing racism and calling for reformation of the legal system and the way in which courts administer justice.”  Colorado Advisory Opinion 2020-2.  The opinion explained that these statements are permissible “because they call on judges and others to recognize that police misconduct and racial bias are problems within the legal system” and “to reflect upon, reform, and improve the justice system.”  According to the committee, those statements were “not political and do not call into question the integrity or impartiality of the judiciary; rather, they instill public confidence in the judiciary and promote ethical conduct among judges and lawyers by promoting access to justice for all.”  (As the committee noted, the National Center for State Courts has collected the statements on racial justice by state courts and chief justices on its website).

In contrast to statements, the committee concluded, “marching in support of the Black Lives Matter movement or the Blue Lives Matter movement gives the appearance of impropriety and bias,” raises questions about a judge’s impartiality and independence, and constitutes an inappropriately “political or divisive” statement, regardless of the judge’s “non-partisan aspirations or . . . subjective belief that he or she is ‘doing the right thing,’ . . . .”  The committee also noted that a case involving the subject of the protest could come before the judge.

In addition, the Colorado committee warned judges not to use social media “to express support for or to protest current political issues,” noting that comments and images on social media “could be disseminated widely.”  The committee explained that this caution should apply not only to posts by the judge but reactions on social media that “validate, endorse, or ‘like’ a person, image, or statement made by another.”  The opinion added that “this concern exists even if a judge does not use his or her title.”

Finally, the committee advised that judges should inform staff under their direction and control to conform to the same constraints regarding marches and social media that apply to the judges.  The committee acknowledged that the code of judicial conduct does not apply to court staff but stated that “a law clerk’s actions may be imputed to his or her judge if the judge becomes aware of the staff member’s behavior and does nothing, or if the judge fails to require a staff member to act in a manner consistent with the judge’s obligations under the Code.”

* * *
The Maryland Judicial Ethics Committee advised that “participation in a march, rally, or protest associated with the Black Lives Matter movement presents a significant risk . . . that the judge will end up in a situation that could undermine the judge’s impartiality.”  Maryland Advisory Opinion Request 2020-13.  The committee noted that its opinion was based in part on its “knowledge of these events, from the news and personally viewing them.”  The committee stated that it was not addressing a specific event and could not give a definitive answer for all circumstances.

The committee expressed concern that the events were focused “on law enforcement and perceived shortcomings in the system of justice” and that a judge, “particularly in a large gathering,” would not be able to know about or control the signs displayed by other participants, which could include messages such as “Defund the Police” or “We Can’t Breathe.”  The committee concluded that “a depiction of a judge, on social media or otherwise, at an event with signs such as these, could lead a reasonable person to question the judge’s impartiality in cases involving the police.”

* * *
The Indiana and California judicial ethics committees approached the issue by listing factors a judge should consider when deciding whether to participate in an event in general, without approving or disapproving participation in any particular event or type of event.

The Indiana Judicial Qualifications Commission stated that a judge may participate in public events aimed at addressing social issues if the judge can do so without impinging on the independence, integrity, and impartiality of the judiciary.  Indiana Advisory Opinion 2020-1.  The Commission stressed that the determination was fact sensitive and encouraged judges to consult with its staff about specific events.

The Commission listed “guiding principles/factors that a judge should consider in his/her evaluation:”

  • The title of the event;
  • The purpose of the event;
  • The organizers and sponsors of the event;
  • The details of the event; and
  • The role of the judge at the event.

The Commission stated that a judge should not attend:

  • An event “with a “provocative or advocacy-oriented the title;”
  • An event that “primarily serves an advocacy or political purpose;”
  • A fund-raiser if the judge is a featured speaker;
  • An event that “touches upon a pending matter currently before the judge,” for example, an event aimed at raising awareness about police practices “if the judge currently has a civil lawsuit on his/her docket regarding the city’s response to excessive force incidents);”
  • An event primarily “sponsored or affiliated with a political party or candidate;”
  • An event primarily supporting or opposing a political party or candidate;
  • An event with the primary purpose of influencing the actions of a political candidate or party, even if it is sponsored by a non-partisan group;
  • An event held by an advocacy group or a frequent litigant in the judge’s court unless “it is for a nonadvocacy purpose and the judge can participate in a manner that will not raise public concern about the judge’s impartiality;”
  • An event “held in a time, place, or manner where participants likely will violate the law,” for example, by violating curfew or becoming violent; or
  • An event that has a history of violence.

If a judge is asked to be a featured speaker or guest of honor at an event, the committee advised, the judge should “carefully review all invitational materials to determine whether his/her featured presence may cause frequent disqualification or might subject the judge to concerns that the judge is improperly using the prestige of judicial office to further the organization’s goals.”  The committee stated that a “judge should not allow his/her legal title to be referenced during the event and should not wear any clothing identifying him/her with the judiciary” unless the matter specifically involves “the law, the legal system, or the administration of justice.”

If a judge decides to attend the event, the committee cautioned the judge:

  • To act temperately and judiciously at all times, and
  • To be prepared to leave immediately if circumstances change, for example, if “the majority of protesters are carrying signs supporting/opposing a political candidate).”

* * *
The California Supreme Court Committee on Judicial Ethics Opinions suggested that, to “make their views on a subject known,” judges might consider writing a letter or providing a written statement or opinion to the press to “avoid many of the risks inherent in participating in a public demonstration or rally” and to “maintain control over the tone and substance of the message they wish to convey.”  California Supreme Court Advisory Committee Formal Opinion 2020-14.

With respect to attending demonstrations or similar events, the committee warned judges to “always assume that their attendance will be known and that their conduct may be subject to comment and reporting in press coverage or on social media.”  In general, the committee stated:

Judges may not participate in a public demonstration or rally if:  (a) participation might undermine the public’s confidence in the judiciary; (b) the event relates or is likely to relate to a case pending before a court, relates to an issue that is likely to come before the courts, or is reasonably likely to give rise to litigation and the judge’s attendance might lead to disqualification; (c) participation would or is likely to cause a violation of the law . . . ; (d) participation would create the appearance of speaking on behalf of, or lending the prestige of office to, a political candidate or organization; or (e) participation would interfere with the proper performance of judicial duties.

Before deciding to attend a protest or similar event, the committee stated, judges should:

  • Examine the event’s official title, its stated mission, its sponsors, and its organizers;
  • Investigate the agenda, including the organizers’ objectives;
  • Evaluate the risk that organizers or supporters will express views that might reasonably be perceived to compromise the judge’s independence and impartiality;
  • “Take reasonable efforts to determine the messages that will be delivered by other participants;”
  • “Take reasonable efforts to determine . . . the risks that the demonstration or rally might depart from its original mission;”
  • Determine the meaning of any “unfamiliar terms, symbols or abbreviations” used in invitations or other promotional materials; and
  • Consider how the public will perceive of their participation.

The California committee stated that a judge should not attend:

  • An event that “is promoted using derogatory or disrespectful references to individuals, groups of people or communities;”
  • An event that is sponsored or organized by individuals or entities that regularly appear in state court proceedings;
  • An event that seems likely to “result in a confrontation between participants and others, including law enforcement;”
  • An event that seems likely to “lead to unlawful acts;”
  • An event that does not have proper permits;
  • An event that might “not conclude before a lawful curfew” unless the judge can leave early; or
  • An event that would require the judge to reschedule official duties to attend.

If, after engaging in that analysis, a judge decides to attend, the committee stressed that, at the event, the judge:

  • Should not engage in a “symbolic act,” carry a sign, wear clothing or buttons that might identify the judge as siding with a particular viewpoint;
  • Should be mindful “of any risks that the demonstration or rally might evolve in ways that could violate the judge’s ethical duties” and be prepared to leave;
  • Should leave if other participants carry signs or chant slogans “that are inflammatory, derogatory, and inconsistent with the judge’s own ethical duties;” and
  • Should not make a public statement on even permissible topics that would undermine the public’s confidence in the judiciary, lend the prestige of their office to further the personal interests of the individuals or entities organizing the event, commit the judge to a position on a topic likely to come before the courts, or comment about a pending or impending proceeding.

* * *
The Center for Judicial Ethics has compiled and posted on its website summaries of judicial ethics advisory opinions about participating in marches, demonstrations, vigils, protests, rallies, and other issue-related community events, including the ones issued in 2020 and those about participation in demonstrations after the 2016 election.  That document will be up-dated as additional opinions are issued.  Also, please watch our inaugural CourtClass Ethics-in-Brief tutorial on judges and court employees participating in marches and demonstrations at:  https://vimeo.com/442133613.

Throwback Thursday

5 years ago this month:

  • Based on an agreement, the Kentucky Judicial Conduct Commission suspended a judge for 7 days without pay for raising a bond without notice and abusing her contempt power by holding the defendant’s mother in contempt for calling her a “b***h” outside her presence without a notice, a hearing, or the opportunity to have counsel present. In re Prewitt (Kentucky Judicial Conduct Commission July 10, 2015).
  • Accepting in part the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge for a mental disability that prevented the performance of her judicial duties, failing to cooperate with the Commission in its investigation, and making intentional misrepresentations to the Commission, to her employer, and to courts in which she was involved in litigation. In re Sanders, 865 N.W.2d 30 (Michigan 2015).
  • Based on the judge’s agreement following a referee’s report, the New Hampshire Supreme Court suspended a judge for 60 days without pay and censured him for dismissing a petition for involuntary admission after becoming angry with the sheriff’s deputy for refusing to remove the respondent’s handcuffs and without giving the petitioner an opportunity to be heard and blaming the deputy in a subsequent order. In the Matter of Lyons, Order (New Hampshire Supreme Court July 10, 2015).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for requesting leniency for his son from 2 law enforcement officers. In the Matter of Sullivan, Determination (New York State Commission on Judicial Conduct July 14, 2015).
  • Pursuant to an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for requiring defendants to perform public service work in order to be granted appointed counsel; sentencing defendants to jail for contempt if they did not complete public service work required for the appointment of counsel; without regard for their personal financial means, denying appointed counsel or revoking individuals’ bonds if they requested appointed counsel; ordering cash-only bonds in violation of law; requiring the waiver of the constitutional right to counsel and a jury trial as a prerequisite for a continuance: allowing some defendants as a requirement of probation or to obtain appointed counsel to donate items to charities specified by the judge; and refusing defendants’ requests for appointed counsel without conducting an indigency hearing. In re Holley, Reprimand and agreed cease and desist order (Tennessee Board of Judicial Conduct July 6, 2015).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for exchanging ex parte emails with a prosecutor and continuing a hearing in a case. In re Kondo, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 17, 2015).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a former judge for receiving a discounted carpool parking rate when he did not carpool. In re Bonner, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 17, 2015).

 

A sampling of recent judicial ethics advisory opinions

  • A judge presiding over a proceeding being conducted in parallel to multi-district federal litigation on the east coast may not accept reimbursement from the parties or their attorneys for travel, lodging, meals, and other expenses incurred in connection with the matter but must seek reimbursement from the courts following the policies and procedures and using the reimbursement rates approved by the Judicial Council. California Oral Advice Summary 2020-33.
  • Judges may preside over the swearing-in ceremonies for new assistant state’s attorneys in courtrooms during court hours. Maryland Opinion 2020-2.
  • A town or village justice court must not promote or favor mail-in pleas and/or plea bargaining over other options even to mitigate the effects of the COVID-19 outbreak or “collaborate” with prosecutors to develop procedures to process pleas on paper and establish a mail-in plea bargaining process for defendants charged with vehicle and traffic law infractions. A court may invite defense bar representatives and the prosecution to discuss procedures for handling mail-in pleas on traffic infractions and distribute a court-prepared form impartially listing all options for a defendant motorist and including a link to the district attorney’s website and/or email address as a convenience to defendants.  New York Opinion 2020-99
  • A letter to the judges in a district from a coalition of agencies seeking to assist tenants in eviction cases during the COVID-19 pandemic is not an ex parte communication that requires disclosure to opposing parties. The judges or their designee may meet with attorneys from those agencies to discuss scheduling and public health risks, but the judges should encourage other attorneys or interested parties to participate in the meeting as well.  Judges may not refer litigants to specific attorneys or groups but may tell an unrepresented litigant that they have a right to seek the assistance of counsel and that there are organizations that may assist them on a reduced or a no-fee basis.  Judges may not have a blanket rule that all continuances will be granted or denied in any type of case as requested by the coalition.  Judges may not provide information about available legal services with eviction summonses, but information about the coalition’s activities may be posted in a highly visible place near courtrooms and in other locations throughout the courthouse.  Nebraska Opinion 2020-1.
  • A judge may discuss pending or impending matters with other judges and court clerks at a magistrate’s association meeting in a confidential setting with no others present. When a judicial association’s email contact list includes individuals who are not judges or court personnel, a judge cannot assume emailed discussions would be confidential or private and must comply with generally applicable limitations on judicial speech.  New York Opinion 2020-38
  • Subject to generally applicable limits on judicial speech and conduct, a judge may publicly identify the strengths and weaknesses in recent bail reform legislation and suggest that the legislature seek additional comments or testimony to improve the law. New York Opinion 2020-42
  • A judge may not be involved in efforts to encourage the state legislature to ratify the Equal Rights Amendment. Utah Informal Opinion 2020-2
  • A judicial officer may not participate in “A Silent March of Black Female Attorneys of Connecticut” by meeting marchers on the steps of the Supreme Court and reading part of the state constitution even if he is not introduced, does not identify himself by name or title, does not wear a robe, does not permit his name or title to be used in advertising, does not elaborate on the constitutional provision, and does not speak with the media. Connecticut Informal Opinion 2020-3.
  • A judge may participate in a museum’s documentary film commemorating the passage of an amendment to the U.S. Constitution if the film will not be used for fund-raising. New York Opinion 2019-166
  • A judge may teach a law school course based on a now-concluded homicide trial in her jurisdiction only if the time for appeals is exhausted and no related matters are pending or reasonably foreseeable. In teaching the class, the judge may only use materials from the public record.  New York Opinion 2020-31
  • A judge may speak at a free elder abuse awareness conference sponsored by a not-for-profit home health care agency if the program is primarily educational and preventative in nature. New York Opinion 2020-44
  • A judge may volunteer as a disc jockey for a not-for-profit college radio station. New York Opinion 2020-49
  • A judge may not play the role of a judge in a theatrical performance to raise funds for her house of worship. New York Opinion 2020-57
  • A judge may not serve as stewardship co-chair for her house of worship. New York Opinion 2020-62
  • A judge may serve on the board of directors of a regional chapter of the Polish American Congress. New York Opinion 2020-71
  • A judge may not, as a member of a political party and without disclosing her judicial position, write to state or federal representatives or senators expressing her personal positions; attend meetings, rallies, or events for candidates for office; volunteer for candidates in any capacity at their office or in contact with the general public; canvass in other states to support candidates for national office or candidates for office in those other states; or engage in any similar efforts to support candidates for any political office. New York Opinion 2020-51

 

Throwback Thursday

10 years ago this month:

  • Based on an agreement for discipline by consent, the Maryland Court of Appeals suspended a judge without pay for 5 work days for deflating a tire on an automobile parked in his reserved parking space at the courthouse. In the Matter of Nalley, 999 A.2d 182 (Maryland 2010).
  • Accepting the recommendation of the Judicial Tenure Commission, to which the judge consented, the Michigan Supreme Court publicly censured a judge for releasing a county commissioner on his own recognizance on a day he was not scheduled to do arraignments after calls from another county commissioner. In re Logan, 783 N.W.2d 705 (Michigan 2010).
  • Adopting the findings of the Judicial Tenure Commission, the Michigan Supreme Court suspended a judge for 14 days without pay and publicly censured him for dismissing 30 family law cases as the time guidelines threshold approached to avoid those cases being identified as out of compliance, but continuing to work on the cases. In re Halloran, 783 N.W.2d 709 (Michigan 2010).
  • Based on the recommendation of the Commission on Judicial Qualifications, the Nebraska Supreme Court removed a judge from office for interfering in a criminal case against a softball coach and a juvenile case involving a softball player. In re Florom, 784 N.W.2d 897 (Nebraska 2010).
  • Agreeing with the recommendation of the Board of Commissioners on Grievances and Discipline based on the parties’ stipulations, the Ohio Supreme Court suspended a judge from the practice of law for 1 year (with 6 months stayed with conditions) for (1) investigating a criminal matter pending in his court; (2) failing to be patient, dignified, and courteous; (3) using his position to pressure the city law director’s secretary to bring the law director’s file on a defendant to the court; (4) improperly handling proceedings to appoint counsel for indigent defendants; (5) comments that gave the impression that 3 defendants were remanded into custody due to a failure on the part of the county commissioners; (6) placing a defendant in a holding cell until he was ready to discuss her case; (7) creating the appearance that he was trying to force the mayor to execute a law director’s contract; (8) involving himself in the formulation of charges against a defendant; and (9) badgering 2 defendants about their eligibility for appointed counsel. Disciplinary Counsel v. Campbell, 931 N.E.2d 558 (Ohio 2010).
  • Accepting the recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a former judge from the practice of law for 1 year (with 6 months stayed with conditions) for (1) failing to maintain or provide complete records of the proceedings in his courtroom; (2) unreasonably delaying compliance with a mandate of the court of appeals on remand; (3) engaging in an improper ex parte communication with a prosecutor; (4) expressing an opinion on an issue of fact in the jury’s presence, berating defense counsel during closing argument, and refusing to grant a mistrial based upon his own prejudicial conduct; and (5) refusing to accept a guilty plea for a misdemeanor speeding violation based on his mistaken belief that the prosecutor was statutorily required to charge the defendant with a greater offense. Disciplinary Counsel v. Plough, 931 N.E.2d 575 (Ohio 2010).
  • The Pennsylvania Court of Judicial Discipline suspended a judge for 60 days without pay for “scary” conduct “akin to stalking” toward 4 female lawyers (2 of whom occasionally appeared before the judge and 1 of whom was another judge’s clerk) and toward a 17-year-old girl who had appeared in his court; the Court also placed him on probation. In re Alonge, 3 A.3d 771 (Pennsylvania Court of Judicial Discipline 2010).
  • Based on an agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for hiring her daughter as her court officer without considering other qualified applicants and authorizing a salary for her that was commensurate with the position even though she had no experience or training. In re Dumas, Reprimand (Tennessee Court of the Judiciary July 16, 2010).

 

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to issue a ruling in a dissolution case for almost 6 months and signing payroll certifications that did not reflect the matter as pending for more than 60 days. Astrowsky, Order (Arizona Commission on Judicial Conduct May 19, 2020).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to disqualify herself from cases involving an attorney against whom she appeared to be biased and prejudiced and failing to comply with disclosure and waiver requirements in cases involving the police department where her husband is a sergeant. Gregory, Order (Arizona Commission on Judicial Conduct May 19, 2020).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a part-time judge for using his judicial title/status in posts on the Facebook page for his campaign for sheriff. Barth, Order (Arizona Commission on Judicial Conduct June 10, 2020).
  • Based on the findings of 3 masters, the California Commission on Judicial Performance removed a justice on the court of appeal from office for (1) engaging in a pattern of unwelcome, undignified, discourteous, and offensive conduct toward a female appellate justice that would reasonably be perceived as sexual harassment, including multiple instances of unwanted touching; (2) making comments to a female highway patrol officer about her appearance and making comments to her that were unflattering about his wife; (3) engaging in unwelcome, undignified, and discourteous behavior toward 2 female research attorneys that would reasonably be perceived as sexual harassment; (4) engaging in inappropriate conduct toward 2 female judicial assistants, a female research attorney, and a female appellate justice; (5) displaying poor demeanor toward a female appellate justice, a female judicial assistant, a female research attorney, and a male research attorney; (6) engaging in a pattern of conduct toward 5 female attorneys who did not work for the court that demeaned the judicial office and lent the prestige of office to advance his personal interests; (7) appearing to be under the influence of alcohol on 7 occasions, 5 of which were at the courthouse late at night; and (8) using profanity to refer to 2 female justices when speaking to highway patrol officers. Inquiry Concerning Johnson, Decision and order (California Commission on Judicial Performance June 2, 2020).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a part-time judge from office for repeatedly using degrading, profane, vulgar, and sexist language in emails with 2 clients that insulted their daughter, opposing counsel, and the presiding court attorney referee, including using “an extremely crude gender-based slur to describe opposing counsel.” In the Matter of Senzer (New York Court of Appeals June 23, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for failing to render decisions in 6 small claims cases for between 5 and 47 months, long after the time required by statute. In the Matter of Corretore, Determination (New York State Commission on Judicial Conduct June 22, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for commenting about pending criminal charges and making disparaging comments about the defendant on 3 different dates in his courtroom, outside the presence of the defendant and his attorney. In the Matter of Pebler, Determination (New York State Commission on Judicial Conduct June 17, 2020).
  • Accepting an agreed statement and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for, on 3 occasions, making inappropriate comments to and about lawyers and others and failing to disqualify himself from a probation violation matter after expressing negative views regarding the Department of Probation, a probation department employee, and an employee of the Department of Health. In the Matter of Gerber, Determination (New York State Commission on Judicial Conduct June 27, 2020).
  • Adopting the findings and recommendation of the Board of Professional Conduct, which were based on a stipulation, the Ohio Supreme Court publicly reprimanded a judge for driving while under the influence of alcohol and making repeated non-responsive references to his judicial office after being stopped by a law enforcement officer. Disciplinary Counsel v. Gonzalez (Ohio Supreme Court June 11, 2020).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for expressing his opposition to a building permit in emails to city officials that were sent from his work email address and identified him as a judge in the signature block; the judge also agreed to complete 1 hour of training. In re Lucas, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 26, 2020).
  • Approving a resolution proposed by a special committee, 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 Eastern District of Wisconsin for the first 2 sentences of a law review article he wrote entitled, “The Roberts Court’s Assault on Democracy,” which was published in the Harvard Law Review. Resolution of Complaints Against Adelman (7th Circuit Judicial Council June 22, 2020).

Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for issuing a temporary restraining order in favor of Wal-Mart while the judge and his wife owned approximately $700,000 worth of Wal-Mart stock. Letter to Huffman (Arkansas Judicial Discipline & Disability Commission July 24, 2000).
  • Pursuant to the recommendation of the Commission on Judicial Qualifications, the Iowa Supreme Court removed a judge for (1) conducting initial appearances in her office, preventing others from being present; (2) violating clear procedural requirements when conducting arraignments and handling no-contact orders; and (3) frequent conflicts with almost all of the people with whom she came in contact.  In the Matter of Holien, 612 N.W.2d 789 (Iowa 2000).
  • Pursuant to an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court publicly reprimanded a judge and fined her $861.50 for dismissing approximately 11 tickets based on her ex parte communications with the defendants or other persons without notice to the officer or a hearing or trial. Commission on Judicial Performance v. Boykin, 763 So. 2d 872 (Mississippi 2000).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for playing the role of a judge in a commercial motion picture. In the Matter of Wolfgang, Determination (New York State Commission on Judicial Conduct July 5, 2000).