Up-date to death penalty controversy in Arkansas

A 2017 controversy about the death penalty in Arkansas was one of the top judicial ethics stories in 2018, resulting in cross judicial discipline complaints by a circuit court judge and the supreme court justices and other legal proceedings. In 2018, some of those cases were resolved but some remained pending at the end of the year. On June 14, 2019, the discipline complaint against the circuit court judge was dismissed for want of prosecution.  A timeline of the events first posted in February has been up-dated.

Self-represented litigants and the code of judicial conduct

Based on a proposal by its Coalition for Court Access “to improve the availability and quality of access to civil legal services for persons of limited means,” the Indiana Supreme Court recently amended the state’s code of judicial conduct to provide in the text of Rule 2.2:  “A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.”  A new comment 5 explains:

A judge’s responsibility to promote access to justice, especially in cases involving self-represented litigants, may warrant the exercise of discretion by using techniques that enhance the process of reaching a fair determination in the case.  Although the appropriate scope of such discretion and how it is exercised will vary with the circumstances of each case, a judge’s exercise of such discretion will not generally raise a reasonable question about the judge’s impartiality.  Reasonable steps that a judge may take, but in no way is required to take, include:

(a) Construe pleadings to facilitate consideration of the issues raised.
(b) Provide information or explanation about the proceedings.
(c) Explain legal concepts in everyday language.
(d) Ask neutral questions to elicit or clarify information.
(e) Modify the traditional order of taking evidence.
(f) Permit narrative testimony.
(g) Refer litigants to any resources available to assist in the preparation of the case or enforcement and compliance with any order.
(h) Inform litigants what will be happening next in the case and what is expected of them.

Indiana is the 8th state to add language to the text of Rule 2.2 proposed by the Conference of Chief Justices and the Conference of State Court Administrators in a 2012 resolution.  Those states have also, as the resolution suggested, modified the comments “to reflect local rules and practices regarding specific actions judges can take to exercise their discretion in cases involving self-represented litigants.”  All, for example, allow judges to make referrals to resources available to assist pro se litigants prepare their case and to provide information or explanation about the proceedings, and most permit judges to make legal concepts understandable, modify the traditional order of taking evidence, and ask neutral questions to elicit or clarify information.

In addition, 24 states have added a comment to Rule 2.2 from the 2007 American Bar Association Model Code of judicial Conduct:  “It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard,” with 8 of those adding caveats or comments not in the model.  3 states have adopted other comments regarding judges’ treatment of self-represented litigants

For more information, see the document “self-represented litigants and the code of judicial conduct” in the most requested resources on the Center for Judicial Ethics web-site.

Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly censured a former judge and barred him from receiving assignments, appointments, or references of work from any California state court for actions beginning with his arrest for driving under the influence of alcohol and culminating 5 months later with his arrest for riding a bicycle under the influence of alcohol, and included additional arrests for driving while intoxicated, appearing intoxicated at the courthouse, violating an emergency protective order his estranged wife had obtained, and being unavailable for work on 6 days in 4 months. Inquiry Concerning Bradley, Decision and Order (California Commission on Judicial Conduct June 3, 1999).
  • Approving an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for (1) identifying herself as a judge when stopped by a police officer and (2) presiding multiple times in court while under the influence of alcohol. In the Matter of Knott, Determination (New York State Commission on Judicial Conduct June 11, 1999).
  • Adopting the findings and conclusions of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a judge from the practice of law for 18 months (with the final 12 months stayed) and from his position as a judge for 6 months without pay for making derogatory remarks about court officers. Office of Disciplinary Counsel v. Ferreri, 710 N.E.2d 1107 (Ohio 1999).
  • Pursuant to a former judge’s consent, the South Carolina Supreme Court publicly reprimanded the former judge for several abuses of power and lying to investigators and banned him from seeking appointing to judicial office in the state without authorization. In the Matter of Wilder, 516 S.E.2d 927 (South Carolina 1999).
  • Accepting an agreement, the South Carolina Supreme Court publicly reprimanded a judge for allowing court assistants to sign their names to tickets and other orders. In the Matter of Sons, 517 S.E.2d 214 (South Carolina 1999).
  • Pursuant to the judge’s consent, the Utah Supreme Court publicly reprimanded a judge for his treatment of a traffic violation defendant and for ordering another defendant to take his stalking victim to dinner. Re Allredge, Order (Utah Supreme Court June 22, 1999).
  • Pursuant to an agreement, the Washington State Commission on Judicial Conduct publicly admonished a court commissioner for comments to a female employee. In re Aronow, Stipulation, agreement and order of admonishment (Washington State Commission on Judicial Conduct June 4, 1999).
  • Pursuant to an agreement, the Washington Commission on Judicial Conduct publicly censured a judge for entering incorrect information in support of an order granting the court’s own motion to waive fees to facilitate the prompt service of an anti-harassment order she had entered. In re DuBois, Approval of stipulation agreement and order of censure (Washington Commission on Judicial Conduct June 4, 1999).


Recent cases

  • Based on a stipulation, the California Commission on Judicial Performance severely censured a judge for (1) failing to accept responsibility for a ticket for running a red light until instructed to do so by her presiding judge, knowingly participating in her husband’s request for a trial by written declaration, and seeking assistance with the ticket from a court clerk; (2) having an ex parte telephone conversation with a deputy district attorney about a question from a deliberating jury and responding to the question in writing without the knowledge of the defendant or his attorney; (3) saying to a defendant in a restraining order proceeding, “You can’t down a couple of 40s before you go pick [your children] up before a visit because that’s not good. Do you understand?”; and (4) in a jury trial, asking a self-represented plaintiff a question that reflected disbelief in her testimony, making a comment that conveyed to the jury that she had not seen any evidence to support a damages award, and referring to the “well-known quote” that the party who represents himself has a fool for a client.  In the Matter Concerning Symons, Decision and Order (California Commission on Judicial Performance May 20, 2019).
  • The California Commission on Judicial Performance publicly admonished a judge for failing to resentence a criminal defendant for over 3 years after remand by the court of appeal. In the Matter Concerning Sandoval, Decision and order (California Commission on Judicial Performance May 20, 2019).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former non-lawyer judge for, at a public meeting of the village board addressing public concerns about criminal activity in the village, had “made statements that conveyed disdain for certain laws and aspects of legal process, a predisposition to presume defendants guilty, and personal annoyance with lawyers who represent criminal defendants.” In the Matter of Stone, Decision and Order (New York State Commission on Judicial Conduct May 30, 2019).
  • Adopting the findings and recommendation of the Judicial Standards Commission based on a stipulation and agreement, the North Carolina Supreme Court publicly reprimanded a judge for attacking the personal integrity and fairness of the chief judge in complaints to other judges, court staff, local attorneys, the Administrative Office of the Courts, and the Commission and failing to diligently discharge her duties. In re Smith (North Carolina Supreme Court May 10, 2019).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for pulling traffic citations to have an assistant district attorney file a motion to dismiss and/or provide other preferential treatment; the Commission also ordered that he receive 20 hours of instruction with a mentor. Public Reprimand of Trejo and Order of Additional Education (Texas State Commission on Judicial Conduct April 26, 2019).
  • A Texas Special Court of Review issued 2 public reprimands to a former judge for (1) for ordering children removed from their mothers’ custody and given to their father in the absence of a verified pleading or affidavit and (2)(a) inappropriately touching another judge and 2 court clerks at a social function and sending the other judge an offensive text message and (b) making disparaging comments about the county district attorney’s office in court in 2 cases. In re Inquiry Concerning Williams, Opinion (Texas Special Court of Review May 17, 2019).
  • Based on the findings and recommendation of the Judicial Conduct Commission, the Utah Supreme Court suspended a judge for 6 months without pay for (1) “seemingly shirty and politically charged comments to a defendant in his courtroom;” (2) losing his temper with a member of the court’s staff and using his authority to seek her removal from the premises; and (3) a Facebook post that was critical of then-presidential candidate Donald Trump. In re Kwan (Utah Supreme Court May 22, 2019).
  • Accepting the recommendation of the Judicial Hearing Board, based on an agreement, which references the formal statement of charges, the West Virginia Supreme Court of Appeals censured and reprimanded a former supreme court justice for (1) not being candid when he told a reporter during an interview that he had “very little” input in the renovation and furnishing of his office; (2) having 2 new computers and a printer owned by the Court installed in his home that were used primarily for personal purposes by the justice, his wife, and/or his son; (3) using a Court-owned vehicle for at least 4 personal trips; and (4) his conviction by a federal jury of 10 felony counts, most related to his personal use of state vehicles; the Court also annulled his license to practice law in the state, permanently enjoined him from seeking public office by election or appointment in the state, fined him $3,000, and ordered that he pay costs of $5,871.12. In the Matter of Loughry, Order (West Virginia Supreme Court of Appeals May 16, 2019).
  • Based on the recommendation of a judicial conduct panel after the judge admitted the allegations in the complaint filed by the Judicial Commission, the Wisconsin Supreme Court suspended a judge for 5 days without pay for (1) initiating an ex parte communication with a prosecutor about plea negotiations in 1 case and (2) independently investigating a defendant on the internet prior to sentencing in a second case. Judicial Commission v. Piontek, Opinion (Wisconsin Supreme Court May 21, 2019).



Judicial Conduct Reporter

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

Judicial ethics and jurors

  • Discourteous treatment of jurors
  • Deliberating juries
  • Criticism and praise
  • Post-verdict meetings
  • Letters of appreciation
  • Feedback

A judge’s discretion to report criminal conduct
Recent judicial discipline cases

  • Ex parte e-mails (In re Filip (Michigan))
  • Inappropriate e-mail (In the Matter of Booras (Colorado))
  • Sleep deprivation (In the Matter of Hastings (Nevada))

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.

Throwback Thursday

25 years ago this month:

  • The Arizona Supreme Court suspended a non-lawyer justice of the peace for 90 days without pay for influencing another judge’s handling of traffic matters concerning a friend and a relative.  In re Lorona, 875 P.2d 795 (Arizona 1994).
  • Approving the recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for participating in card games for amounts exceeding $10 a hand in violation of a state statute.  Re McIver, 638 So. 2d 45 (Florida 1994).
  • Approving the findings and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for (1) admonishing, abusing, and berating an army recruiter for wearing his dress uniform to court and (2) arbitrarily and improperly finding 6 traffic defendants in contempt without due process because they drove away from the courthouse after he had suspended their licenses.  Inquiry Concerning Perry, 641 So. 2d 366 (Florida 1994).
  • Granting a joint motion for approval of a recommendation for discipline based on an agreed statement of facts, the Mississippi Supreme Court publicly reprimanded a judge and fined him $100 for receiving money from a defendant whom he had ordered to pay restitution and giving it to the person to whom the money was owed.  Commission on Judicial Performance v. Vess, 637 So. 2d 882 (Mississippi 1994).
  • Upholding a determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for (1) stating that he recalled a time when it was safe for young women to walk the streets “before the blacks and Puerto Ricans moved here;” (2) conveying the appearance that he granted a motion in retaliation against an attorney-town justice, whose law firm represented one of the litigants in the case; and (3) failing to maintain adequate records and dockets of dispositions of criminal cases, resulting in a failure to report and remit fines and surcharges to the state comptroller.  In the Matter of Schiff, 635 N.E.2d 286 (New York 1994).
  • Upholding the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for subscribing as a witness on his designating petition for re-election when he had not been present at the time the petition was signed, in violation of state election laws.  In the Matter of Heburn, 639 N.E.2d 11 (New York 1994).
  • The New York State Commission on Judicial Conduct publicly censured a judge for an angry and unseemly confrontation at the annual village street fair and violating the fundamental rights of a defendant in a criminal case.  In the Matter of Smith, Determination (New York State Commission on Judicial Conduct June 16, 1994)
  • Concurring in the findings and recommendations of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court permanently disbarred a former judge who had been convicted of several felony charges for conspiring to use his judicial position to unlawfully obtain property not due him; receiving in excess of $230,000 in illegal payments or kickbacks, including from court-appointed contractors; and grand theft and theft while in office.  Office of Disciplinary Counsel v. Mosely, 632 N.E.2d 1287 (Ohio 1994).
  • Based on a judge’s agreement to resign, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for (1) intemperate behavior toward another judge, consisting of written notes and verbal comments witnessed by other persons; (2) derogatory remarks about defendants within the hearing of court personnel and other persons; (3) verbal abuse of court personnel or derogatory comments about them to third persons; (4) comments of a sexual nature that were vulgar and unwelcome; (5) lack of impartiality in administrative duties regarding personnel; and (6) asking court employees to engage in activity in support of his re-election campaign during court time.  In re the Matter of Allan, Order of Reprimand and Closure (Washington State Commission on Judicial Conduct June 3, 1994).


26th National College on Judicial Conduct and Ethics

Registration is now open for the 26th National College on Judicial Conduct and Ethics.

If you have any questions, about registration, please contact Alisa Kim at akim@ncsc.org or 303-308-4340.

The College registration fee will be $425 through September 4, but $450 beginning September 5.  The College will be held Wednesday October 23 through Friday October 25, 2019, in Chicago at the Embassy Suites Downtown Magnificent Mile.  The sessions are described below.  The College will begin Wednesday afternoon with registration and a reception.  Thursday morning there will be a plenary session, followed by concurrent break-out sessions through Friday noon.  The College provides a forum for judicial conduct commission members and staff, judges, judicial ethics advisory committees, and others to discuss professional standards for judges and current issues in judicial discipline.

Room reservations must be made directly with the hotel.  National College room rates for a standard suite at the EMBASSY SUITES Chicago Downtown Magnificent Mile + 17.4% occupancy tax are: single rate $239; double rate $239; triple rate $269; quad rate $289. Rates include complimentary guestroom internet access and breakfast buffet for attendees staying at the hotel. Reservation cut-off is Friday, September 27, 2019, or when the College block is filled, whichever comes first. If available, rooms may be reserved at the College rates for two days prior and/or two days after the meeting event dates. To obtain the College rates, click here to reserve hotel roomsOr call 1-800-525-2509 and use the group code NSC.IC  The EMBASSY SUITES Chicago Downtown Magnificent Mile is located at 511 North Columbus Drive, Chicago, IL. For information on the hotel, visit http://www.embassymagmile.com. The hotel’s direct number is 312-836-5900.

Plenary session
An Art, Not a Science: Sanctions for Judicial Misconduct
Deciding on the appropriate sanction in a judicial discipline case presents special challenges of fairness, consistency, and accountability for supreme courts and conduct commissions.  This plenary session will analyze the factors often used to reach that decision and discuss issues such as distinguishing between a vigorous defense and failing to cooperate with the commission, unpaid suspensions, and when private sanctions are appropriate.  The session will look at the big picture and consider close cases from the past, leaving the discussion of recent cases to the “Determining the Appropriate Sanction” session, which will be later on the schedule.
Moderators:  Judge Louis Frank Dominguez, Surprise City Court; Chair, Arizona Commission on Judicial Conduct • Steven Scheckman, Schiff, Scheckman & White LLP • Cynthia Gray, Director, Center for Judicial Ethics, National Center for State Courts.

Judges as Citizens and Reformers
Must judges avoid all involvement in hot-button issues and contentious public policy debates?  Can judges join their family, neighbors, and friends in protests about climate change or abortion policies?  How can judges address the social issues that inevitably find their way into court?  What part can judges play in criminal justice reform?  Can judges appear before a legislative committee about a bill that would increase penalties for domestic violence?  Can judges, as private citizens, call their senators about an executive branch nominee?  These types of issues about the role of judges as citizens and reformers will be addressed in this session.
Moderators:  Raymond McKoski, Retired Judge, 19th Judicial Circuit Court; Member, Illinois Judicial Ethics Committee • Robert Tembeckjian, Administrator and Counsel, New York State Commission on Judicial Conduct.

How to Teach Judges about Sexual Harassment
This session will consider how to plan and present effective training about sexual harassment when the courthouse is the workplace and the students are judges.  It will not be the training itself, but a discussion among experienced educators with audience participation about the code of judicial conduct, responding to common questions asked by judges, and materials and techniques.  The session will also consider training about the responsibility judges have not only to avoid sexual harassment themselves but to take appropriate action to ensure a non-hostile workplace for everyone at the courthouse.
Moderators:  Ronald Adrine, Former Administrative and Presiding Judge, Cleveland Municipal Court, Ohio • Carolyn Dubay, Executive Director, North Carolina Judicial Standards Commission • Kimberly Riley, Montgomery Jonson, LLP, Ohio.

Investigating and Prosecuting Sexual Harassment Charges against Judges
Allegations of sexual harassment pose special challenges for judicial conduct commissions.  This session will consider some of those issues, for example, how to investigate hostile environment claims when a courthouse is the workplace, how to try he-said/she-said cases, how to address common defenses, and the relationship between the code of judicial conduct and statutory definitions of sexual harassment.
Moderators:  Howard Neff, Executive Director, Massachusetts Commission on Judicial Conduct • Eric Vinson, Executive Director, Texas State Commission on Judicial Conduct.

Why do Judicial Conduct Commissions Dismiss so Many Complaints?
Every year, all judicial conduct commissions dismiss most complaints — often over 90% — without any action.  Many are dismissed based on the so-called “legal error rule” or “appealable error rule” because the complaints are about a judge’s decision.  However, “something more” can transform legal error into judicial misconduct and subject a judge to discipline.  This session will review caselaw on the rule and its exceptions.  In addition, participants will discuss how commissions can effectively explain the limits of their authority to the public.
Moderators:  Kelly McNeil Legier, Commission Legal Counsel, Louisiana Judiciary Commission • Judge Erica Yew, Superior Court Judge, County Clara County; Member, California Supreme Court Committee on Judicial Ethics Opinions; Former member, California Commission on Judicial Performance.

Ethical Judges on Social Media
Everyone agrees that judges should be extremely cautious when using Facebook and other social media but so far only a dozen or so states have judicial ethics advisory opinions on the topic and most of those opinions have addressed only one or two issues without providing comprehensive advice.  This session will build on caselaw and advisory opinions to consider unresolved issues and ethical best practices for judges on social media.
Moderators:  Judge Dana Kuehn, Vice-Presiding Judge, Oklahoma Court of Criminal Appeals • Randall Roybal, Executive Director & General Counsel, New Mexico Judicial Standards Commission.

Determining the Appropriate Sanction
Examining recent judicial discipline cases, participants will “vote” on what sanctions they would have imposed in actual judicial discipline cases and then discuss what factors influenced their vote.
Moderators:  Judge John Erlick, King County Superior Court; Member, Washington State Commission on Judicial Conduct • David Sachar, Executive Director, Arkansas Judicial Discipline & Disability.

International and U.S. Regulation of Judges’ Use of Social Media
Fundamental to the judiciary are principles of independence, impartiality, integrity, transparency, accountability, and professionalism.  This is axiomatic to the Bangalore Principles of Judicial Conduct, the Charter of Fundamental Rights of the European Union, and the common law tradition common to the U.K. and Commonwealth countries and the United States.  Use of social media has a particular impact on judges.  On the one hand, it can lead to situations in which judges may be seen as biased or subject to outside influences; on the other hand, judges should not be isolated from society, should have an understanding of the communities they serve, and should strive to create an environment of transparency and doing justice both in fact and in appearance.  A variety of international organizations, including the U.N., have embarked on a study of judges’ use of social media and the ethical challenges presented thereby.  Likewise, regulation of such social media use by the judiciary has increasingly been the subject of judicial advisory opinions, disciplinary proceedings, and even court decisions providing guidance for State court judges and a comprehensive advisory opinion providing guidance for Federal judges.  This panel will review these developments, discuss the policy implications of social media use by judges, and identify different approaches to the topic internationally.
Moderators:  Keith R. Fisher, Principal Consultant & Senior Counsel for Domestic & International Court Initiatives, National Center for State Courts.  Panelists: Hon. Virginia M. Kendall, United States District Judge, Northern District of Illinois, Chicago, Illinois • Professor Lisa Taylor, LL.M., Undergraduate Program Director, Ryerson School of Journalism, Toronto, Ontario.

Best Practices for Judicial Conduct Commissions
In this “crowd-sourced” session, participants will share experiences and ideas about what policies and procedures judicial conduct commissions can adopt that will ensure an effective, fair discipline system and promote public confidence in the integrity of the judiciary.
ModeratorReiko Callner, Executive Director, Washington State Commission on Judicial Conduct.

Introduction to Judicial Ethics and Discipline for New Members of Judicial Conduct Commissions
This session will give new members of judicial conduct commissions an overview of the ethical standards they will be enforcing, focusing on the misconduct that results in the most judicial discipline cases and discussing the types of complaints that are frequently made but usually dismissed.
Moderators:  Judge George Foster, Maricopa County Superior Court, Member, Arizona Commission on Judicial Conduct • Adrienne Meiring, Counsel, Indiana Commission on Judicial Qualifications.

The Role of Public Members
Participants will share their experiences as public members of judicial conduct commissions and discuss what impact their perspective has on deliberations, training, and the perception of the commissions by the public and judges.
Moderators:  Rick Morales, Member, Florida Judicial Qualifications Commission • Lisa Steindel, Member, Pennsylvania Judicial Conduct Board.