Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct informally reprimanded a judge for ruling on petitions filed by the probation department regarding a defendant whom he had represented in the underlying case. Williams, Order (Arizona Commission on Judicial Conduct March 15, 2012).
  • Based on an agreed statement of facts, stipulation, and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for ex parte communications about an impending sentencing with the defendant’s attorney and the police chief even though a year earlier he had been cautioned by the Commission to avoid ex parte communications. In the Matter of Lamson, Determination (New York State Commission on Judicial Conduct March 20, 2012).
  • Adopting the findings and conclusions of the Judicial Standards Commission, which were based on stipulated facts, the North Carolina Supreme Court suspended a judge for 75 days without pay for ticket-fixing. In re Hartsfield, 722 S.E.2d 496 (North Carolina 2012).
  • Adopting the findings of the Judicial Standards Commission, the North Carolina Supreme Court censured a judge for signing an order that contained false recitations without reading the order or giving the prosecution notice or an opportunity to make arguments. In re Totten, 722 S.E.2d 783 (North Carolina 2012).
  • Adopting the findings and recommendation of the Commission on Judicial Conduct, to which the judge agreed, the Wyoming Supreme Court publicly censured a judge for comments about towing charges he made at a city council meeting. In the Matter of Lopez, 274 P.3d 405 (Wyoming 2012).

Model Code Anniversary

10 years ago, the American Bar Association House of Delegates, at its February 2007 Midyear Meeting, adopted a revised Model Code of Judicial Conduct based on the recommendations of a joint commission.  The previous version of the model code had been adopted in 1990, modifying the original 1972 model, which replaced the 1924 canons of judicial ethics.  (A few minor amendments to the 2007 application section were made in 2010.)

The 2007 revisions reorganized the code, reducing the number of canons from 5 to 4 with numbered rules under each canon and numbered comments that provide guidance for interpreting the rules.  There were also substantive additions and changes to clarify and amplify the standards and to address developments in judicial ethics and comments from the extensive public review conducted by the joint commission.  However, the central precepts regarding judicial independence, integrity, and impartiality both on and off the bench were unchanged and the specific corollaries, regarding demeanor, disqualification, and ex parte communications, for example, remained essentially the same.  There had been a last-minute attempt to demote the “appearance of impropriety” from a rule to a suggestion but, as adopted, the new model code kept the “appearance of impropriety” both as an aspirational standard and as grounds for disciplinary enforcement, as the Conference of Chief Justices had urged.

Most states adopted the 1972 model code almost verbatim, but since then, when adopting new codes, states have adapted the model to reflect their own experience, case law, and advisory opinions while maintaining the general principals.  In other words, it can be difficult to definitively say whether a state has “adopted” the 2007 model.

With that caveat, 30 jurisdictions have adopted new codes of judicial conduct that include many, but not all of the 2007 model code revisions and adopt some changes unique to each state:

  • Arizona (effective September 1, 2009)
  • Arkansas (effective July 1, 2009)
  • Colorado (effective July 1, 2010)
  • Connecticut (effective January 1, 2011)
  • D.C. (effective January 1, 2012)
  • Georgia (effective January 1, 2016)
  • Hawaii (effective January 1, 2009)
  • Idaho (effective July 1, 2016)
  • Indiana (effective January 1, 2009)
  • Iowa (effective May 3, 2010)
  • Kansas (effective March 1, 2009)
  • Maine (effective September 1, 2015)
  • Maryland (effective July 1, 2010)
  • Massachusetts (effective January 1, 2016)
  • Minnesota (effective July 1, 2009)
  • Missouri (effective January 1, 2012)
  • Montana (effective January 1, 2009)
  • Nebraska (effective January 1, 2011)
  • Nevada (effective January 19, 2010)
  • New Hampshire (effective April 1, 2011)
  • New Mexico (effective January 1, 2012)
  • North Dakota (effective July 1, 2012)
  • Ohio (effective March 1, 2009)
  • Oklahoma (effective April 15, 2011)
  • Pennsylvania (effective July 1, 2014)
  • Tennessee (effective July 1, 2012)
  • Utah (effective April 1, 2010)
  • Washington (effective January 1, 2011)
  • West Virginia (effective December 1, 2015)
  • Wyoming (effective July 1, 2009)

(At least 4 jurisdictions (Delaware, New Jersey, Oregon, and the federal judiciary) have adopted new codes since 2007, without adopting enough of the 2007 revisions to be considered the 2007 model.  Several additional states have adopted a couple of the 2007 revisions without adopting completely revised codes.)

Some changes made by the states are minor, clarifying the model’s rules through additional comments, definitions, and exceptions.  Many of the variations are in the rules for political conduct, extra-judicial activity, or part-time or senior judges where the differences among the states in judicial selection methods and organization are manifest.  Some states have made a few major changes, drawing the line between prohibited and permitted conduct in a different – stricter or more lenient – place for the state than nationally.

To illustrate the deviations from the model, a few recently adopted by the supreme courts in Idaho, Georgia, and Massachusetts are summarized below.

Idaho added a reference to social media in the code of judicial conduct, the third state to do so (New Mexico and West Virginia are the others).  Idaho’s comment:

While judges are not prohibited from participating in online social networks, such as Facebook, Instagram, Snapchat, and the like, they should exercise restraint and caution in doing so.  A judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

The new Idaho code also adds an extended comment on the use of judicial letterhead.

A judge shall not use judicial letterhead to gain an advantage or potential deferential treatment in conducting his or her personal business, including but not limited to financial matters, private business dealings, discharging parental responsibility, private disputes, political activities or charitable solicitations or endeavors.  It is not an abuse of the prestige of the judicial office to write letters of appreciation, letters of recognition or other laudatory letters written in connection with law-related activities, community outreach activities, civic activities, or educational activities so long as there is no reasonable likelihood that the use of the letterhead would be perceived as any attempt to exert pressure by reason of the judicial office or to gain any personal advantage or potential deferential treatment for the judge or others.  Judges should be cautious in writing such letters for any person who regularly appears before the court, has a matter pending or impending before the court, political figures or other personnel such as law enforcement officers or attorneys who appear before the court.

Like the model code, the Georgia code of judicial conduct prohibits membership in organizations that practice invidious discrimination, but the Georgia code adds a definition of invidious discrimination:  “any action by an organization that characterizes a person’s age, disability, ethnicity, gender or sex, marital status, national origin, race, religion, or sexual orientation as odious or as signifying inferiority, which therefore is used to justify arbitrary exclusion of persons possessing those traits from membership, position, or participation in the organization.”

The new Georgia code has a requirement, not in the model, that “a judge who is arrested for or has been charged by way of indictment, information, or complaint with a serious crime, shall inform the appropriate authority in writing within five days of being arrested or being charged.”  (“Serious crime” is defined as “any felony; any lesser crime that reflects adversely on the judge’s honesty, trustworthiness, or fitness as a judge in other respects; crimes involving moral turpitude; driving under the influence of drugs and/or alcohol; unlawful possession of any controlled substance; or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or willful failure to file income tax returns, or an attempt, conspiracy, or solicitation of another to commit a serious crime.”)

In 2009, after a judge’s release of a defendant on personal recognizance became an issue in the 2007 Republican presidential nomination, the Massachusetts Supreme Judicial Court had amended the rule regarding public comment on a pending case and added guidance regarding the issuance of explanatory memoranda.  The new Massachusetts code that became effective in 2016 reflects that discussion.

Thus, where the model code states that “a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter,” the Massachusetts code states that “a judge may respond directly or through a third party to public criticisms of the judge’s behavior, but shall not respond to public criticisms of the substance of the judge’s rulings other than by statements” that explain the procedures of the court, general legal principles, or what

may be learned from the public record.  (A comment notes that “a judge is not required to respond to statements in the media or elsewhere.”)  The Massachusetts provision elaborates on the model exception for explaining court procedures to add in a comment that this “permits the dissemination of public information to educate and inform the public, while assuring the public that cases are tried only in the judicial forum devoted to that purpose.”  As examples, the comment states that a judge may explain “procedures and standards governing a ‘dangerousness hearing’” and refer “to matters that may be learned from pleadings, documentary evidence, and proceedings held in open court” in response to questions from a reporter or to correct a media report.

Another comment encourages judges “to explain on the record at the time decisions are made the basis for those decisions or rulings, including decisions concerning bail and sentencing.  By helping litigants to understand the basis for decisions in cases, the judge also promotes public understanding of judicial proceedings.”  The Massachusetts code states that a judge has the discretion to issue an explanatory memorandum, even if he or she had not indicated at the time of an underlying order that a written explanatory comment would be forthcoming, but before exercising that discretion, the judge should weigh, at a minimum:

  • the importance of avoiding or alleviating the parties’ or the public’s misunderstanding or confusion by supplementing the record to reflect in more detail the reasons in support of the judge’s earlier decision;
  • the amount of time that has elapsed since the order was issued and the extent to which the judge’s reasons for the decision remain fresh in the judge’s mind;
  • the risk that an explanatory memorandum may unfairly affect the rights of a party or appellate review of the underlying order; and
  • the danger that the issuance of an explanatory memorandum would suggest that judicial decisions are influenced by public opinion or criticism voiced by third parties, and would not promote confidence in the courts and in the independence, integrity, and impartiality of judges.

The ABA’s Center for Professional Responsibility web-site has comprehensive information about the model code, including the text, an explanation of the changes between 1990 and 2007 model codes, and information about implementation.

Throwback Thursday

10 years ago this month:

  • The Maine Supreme Judicial Court suspended a judge for 30 calendar days without pay and censured and reprimanded him for making a knowing misrepresentation about one of his opponents in the primary election; all but 7 days of the suspension were suspended provided the judge cooperated with the Maine Assistance Program and participated in a course on judicial ethics approved by the Committee on Judicial Responsibility and Disability. In the Matter of Nadeau, 914 A.2d 714 (Maine 2007).
  • Granting a recommendation of the Commission on Judicial Conduct based on a consent agreement, the Arizona Supreme Court suspended a judge for 60 days without pay for his relationship with a woman involved in a dispute in his court. In the Matter of Morales, Judgment and Order (Arizona Supreme Court March 13, 2007).
  • Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court suspended a judge for 30 days without pay, publicly reprimanded him, and fined him $1,500 for (1) prohibiting a defendant from defending himself in a trespassing charge filed by the defendant’s ex-wife and threatening the defendant with incarceration if he appeared before the judge again in the next 2 years; (2) sua sponte and in reaction to media coverage, issuing a warrant to re-arrest a criminal defendant who had posted a bond that the judge had previously set; (3) attempting sua sponte to revoke a defendant’s probation without any written petition or affidavit, refusing to recuse himself, and revoking the defendant’s probation over the objections of the defendant’s attorney; (4) ordering a defendant not to drive a vehicle in the county for 2 years after finding the defendant not guilty of DUI; (5) twice issuing arrest warrants to have attorneys jailed without just cause; (6) dismissing cases without notice, resulting in previously assessed fines and other assessments going uncollected; and (7) amending charges against a defendant without the affiant or the prosecutor being present. Commission on Judicial Performance v. Roberts, 952 So.2d 934 (Mississippi 2007).
  • Granting a petition filed by the Commission on Judicial Standards based on stipulated findings of fact, the New Mexico Supreme Court publicly reprimanded a judge for endorsing a mayor for re-election and authorizing the use of his name in an endorsement that was published in the local newspaper. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for failing to diligently discharge his administrative responsibilities and properly supervise his court clerks, with the result that court funds were not deposited within 72 hours of receipt or remitted to the state comptroller within the time limit required by law. In the Matter of Burin, Determination (New York State Commission on Judicial Conduct March 16, 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who personally participated in fund-raising on behalf of a civic organization by preparing flyers for fund-raising events, handing out the flyers to court employees and attorneys, and encouraging attendance at the fund-raisers. In the Matter of McNulty, Determination (New York State Commission on Judicial Conduct March 16, 2007).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge who (1) contacted the state police on behalf of the woman he was dating to report an alleged violation of an order of protection and gratuitously identified himself as a town justice and (2) after disqualifying himself from a criminal case in which the woman was the complainant, commented in open court, “I want that order of protection on the record.” In the Matter of Hurley, Determination (New York State Commission on Judicial Conduct March 16, 2007).
  • In attorney discipline proceedings, the Ohio Supreme Court indefinitely suspended a former judge from the practice of law for (1) improperly issuing a contempt order; (2) his conviction on a misdemeanor drug charge; and (3) grossly exceeding the bounds of professionalism during an argument with opposing counsel. Discipline Counsel v. Cox, 862 N.E.2d 514 (Ohio 2007).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 60 days without pay for issuing a subpoena to a college to try to get information for the benefit of his son-in-law in a child support dispute and misrepresenting to college officials that they were bound by the subpoena. In the Matter of Thomas, 642 S.E.2d 736 (South Carolina 2007).

Deeds, not faith

The Wyoming Supreme Court censured a judge who had announced her refusal to perform same-sex marriages and ordered that she either perform no marriage ceremonies or that she perform marriage ceremonies regardless of the couple’s sexual orientation.  Inquiry Concerning Neely (Wyoming Supreme Court March 7, 2017).  The Court emphasized:

This case is not about same-sex marriage or the reasonableness of religious beliefs. . . .  This case is also not about imposing a religious test on judges.  Rather, it is about maintaining the public’s faith in an independent and impartial judiciary that conducts its judicial functions according to the rule of law, independent of outside influences, including religion, and without regard to whether a law is popular or unpopular.

The judge has been a municipal court judge since 1994 and a part-time circuit court magistrate since 2001.  Her primary duty as a part-time magistrate was to perform marriage ceremonies.

It is undisputed that, as a devout Christian and member of the Lutheran Church, Missouri Synod, the judge sincerely believes that marriage is the union of one man and one woman.  After the U.S. District Court for the District of Wyoming enjoined the state from enforcing or applying any “state law, policy, or practice, as a basis to deny marriage to same-sex couples,” a reporter asked Judge Neely if she was “excited” to be able to perform same-sex marriages.  She responded, “I will not be able to do them….  We have at least one magistrate who will do same-sex marriages, but I will not be able to.”  She also stated, “When law and religion conflict, choices have to be made.  I have not yet been asked to perform a same-sex marriage.”  An article with those quotes appeared in the Pinedale Roundup, and another paper published the article on-line.

The Court held that the judge’s refusal to conduct marriages on the basis of a couple’s sexual orientation failed to promote “public confidence in the independence, integrity, and impartiality of the judiciary, and . . . avoid impropriety and the appearance of impropriety (in violation of Rule 1.2 of the code of judicial conduct); was not the fair and impartial performance of the duties of office “by any measure” (in violation of Rule 2.2); and could reasonably be perceived as biased (in violation of Rule 2.3).  Rejecting the judge’s arguments, the Court stated that she repeatedly “mischaracterizes her conduct” as “honestly conveying her religious beliefs” and emphasized its action “is a response to her deeds, not her faith.”  For example, it explained:

She is not subject to discipline merely because she has expressed her religious beliefs.  She has gone one or two critical steps farther than that to say that she will not impartially perform her judicial functions with respect to parties the United States Supreme Court has held have a constitutional right to be treated equally.

The Court concluded that “the problem of the public’s faith in judicial integrity remains” even if, as the judge argued, “others could perform marriages for same-sex couples, causing no disruption to their rights to marry.”

The Court also held that the U.S. Constitution permitted it to discipline the judge.  The Court distinguished cases relied on by the judge and amici in which the government had been required to allow free expression and accommodate religious beliefs.

  • Because “in Judge Neely’s case, public confidence in the judiciary is the central issue,” the Court distinguished a case holding that the post office was required to accommodate workers for whom processing draft registration forms was contrary to their religious beliefs where there was no issue of public confidence in the clerks’ neutrality.
  • Similarly, it distinguished a case requiring the IRS to allow an employee to disqualify himself from handling applications from groups with practices abhorrent to his religious beliefs because that accommodation would not impair taxpayer confidence in the tax system or the impartiality of the IRS.
  • The Court distinguished a case holding that Amish parents could not be forced to comply with the government’s requirement that they provide a social security number for their child to receive government benefits, which violated their sincerely held religious belief the number would rob their daughter’s spirit, because occasionally performing a same-sex marriage would not threaten the judge’s very “way of life.”
  • The Court distinguished cases holding that judicial candidates may express their views on disputed legal or political issues because the judge “does not merely believe that homosexuality is a sin; as a judge, she will manifest that belief by not treating homosexual persons the same way she treats heterosexual persons,” raising questions about her impartiality toward particular parties, rather than toward particular issues.

Instead, in its religious freedom analysis, the Court drew analogies to cases that refused to require government accommodations that would undermine the “fundamental function of the position” and that distinguished between the freedom to believe and the freedom to act.

  • It relied on cases upholding the termination of police officers who would not guard an abortion clinic or a casino because police officers “promise to enforce the law without favoritism—as judges take an oath to enforce all laws, without regard to their (or the litigants’) social, political, or religious beliefs.”
  • It relied on the removal of Chief Justice Roy Moore for his refusal to comply with a federal court order to remove a monument to the Ten Commandments from the Alabama Judicial Building because that court had concluded it was not about a public official’s right to acknowledge God, as he contended, but about a public official who took an oath to uphold the U.S. Constitution and then refused to obey a valid order.
  • It cited a case in which a judge was removed for maintaining multiple marriages as a religious practice although it agreed that a Mormon judge could not be excluded from judicial office because he believed in polygamy as long as he did not break the law against polygamy.

In a footnote, the Court explained:

The law recognizes no hierarchy of sincerely held religious beliefs. . . .  Yet if Judge Neely had taken the position that her religion prevented her from conducting interracial marriages, a right which our society now generally accepts, there would be little controversy regarding her discipline.  While we respect the religious views of those who deem same-sex marriage to be wrong, we cannot give those views greater weight in our constitutional analysis simply because they are more widely held. . . .  It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process.

Concluding that her misconduct warranted a public censure, the Court declined to remove the judge, as recommended by the Commission on Judicial Conduct and Ethics, to narrowly tailor the remedy.

2 justices dissented, stating “[c]ontrary to the position asserted by the majority opinion, this case is about religious beliefs and same sex marriage” and “whether there is a religious test for who may serve as a judge in Wyoming.”  The dissent emphasized that “Wyoming law does not require any judge or magistrate to perform any particular marriage, and couples seeking to be married have no right to insist on a particular official as the officiant of their wedding;” “that Judge Neely was never asked to perform a same sex marriage, and had never refused such a request;” “that there is no indication that any same sex couple is likely to be denied or delayed in obtaining a civil marriage because of Judge Neely’s statements or religious beliefs;” and that “if asked to perform such a marriage, Judge Neely would assist in finding an appropriate officiant, and that there is no shortage of such officiants.”

Throwback Thursday

20 years ago this month:

  • The Connecticut Supreme Court affirmed the decision of the Judicial Review Council censuring a former judge for engaging in a consensual sexual relationship with a married court reporter who had been regularly assigned to his courtroom during their relationship. In re Flanagan, 690 A.2d 865 (Connecticut 1997).
  • Accepting a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judicial candidate who had pledged in campaign materials to “stop suspending sentences” and to “stop putting criminals on probation.” In the Matter of Haan, 676 N.E.2d 740 (Indiana 1997).
  • The Pennsylvania Court of Judicial Discipline removed a judge who had violated the conditions of probation in a sobriety monitoring contract. In re Timbers, 692 A.2d 317 (Pennsylvania Court of Judicial Discipline 1997).
  • The South Carolina Supreme Court publicly reprimanded a judge who had conducted a bond hearing for a friend, released him from custody on a personal recognizance bond, asked the arresting office for as much help as “you can give me” with the case, and requested the South Carolina Law Enforcement Division to investigate the friend’s allegations that the arresting officer had used excessive force. In the Matter of Hancock, 483 S.E.2d 756 (South Carolina 1997).

 

 

Winter issue of the Judicial Conduct Reporter

The most recent issue of the Judicial Conduct Reporter is now available to be downloaded at no charge.

The winter issue reviews the top judicial ethics and discipline stories of 2016, has statistics on the judicial discipline sanctions for the year, summarizes all removal cases, and quotes “what they said that got them in trouble” in 2016.  The issue introduces format changes, including external and internal links, designed to make the Judicial Conduct Reporter easier to read on a screen while still very readable when printed out.  To provide feedback on these changes and help determine whether more changes are needed, please complete the survey at https://www.research.net/r/CRS2NT9 after you have had a chance to review the issue.

Free downloads of past issues of the Reporter and an index of Reporter articles are available on the Center for Judicial Ethics web-site.  You can sign up to receive notice when a new issue of the Reporter is available.

Same-sex marriage

The Wyoming Supreme Court has censured a judge for her refusal to perform same-sex marriages and ordered that she either perform no marriage ceremonies or that she perform marriage ceremonies regardless of the couple’s sexual orientation.  Inquiry Concerning Neely (Wyoming Supreme Court March 7, 2017).  In addition to finding that the judge’s expressed refusal to conduct same-sex marriages violated the code of judicial conduct, the Court addressed whether the provisions of the Wyoming code of judicial conduct alleged to have been violated by the judge were void for vagueness and whether the U.S. and Wyoming Constitutions permit the Court to discipline the judge for announcing that her religious beliefs prevent her from officiating same-sex marriages.  2 justices dissented.