Throwback Thursday

25 years ago this month:

  • Adopting the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for writing a character reference letter on his official court stationery for a personal friend who was awaiting sentencing in federal court.  Inquiry Concerning Fogan, 646 So. 2d 191 (Florida 1994).
  • Adopting the recommendations of the Commission on Judicial Performance, based on an agreed statement of fact, the Mississippi Supreme Court publicly reprimanded a part-time judge for attempting as an attorney to reduce bail that he had set while acting as a judge.  Commission on Judicial Performance v. Atkinson, 645 So. 2d 1331 (Mississippi 1994).
  • Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge for (1) notarizing a signature and stating that the signatory had appeared before him even though the signatory had not done so; (2) directing that a prisoner held outside the county be returned to the county for a hearing when no case involving the prisoner was pending, no petition had been filed, and he had conducted no hearing; and (3) executing an instrument styled “authorization to remove personal property” when there was no related case pending before the court.  Commission on Judicial Performance v. Hartzog, 646 So. 2d 1319 (Mississippi 1994).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for failing to deposit court funds in his official account within 72 hours of receipt as required by statute and failing to properly supervise his court staff or take necessary steps to ensure that his staff timely deposited court funds.  In the Matter of Burton, Determination (New York State Commission on Judicial Conduct December 1, 1994).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for recommending 6 persons, including his wife and daughter, to attorneys to be used as process servers in civil actions in his court.  In the Matter of Ellis, Determination (New York State Commission on Judicial Conduct December 1, 1994).
  • Agreeing with the findings and recommendations of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court publicly reprimanded a former judge for touching a client while a lawyer and touching a clerk while a judge.  Office of Disciplinary Counsel v. Talbert, 644 N.E.2d 310 (Ohio 1994).
  • Based on the report and recommendations of the Commission on Judicial Tenure and Discipline, which the judge had accepted, the Rhode Island Supreme Court publicly censured a family court judge for making inappropriate comments in 5 cases; the Court also directed the chief judge of the family court to monitor the judge’s work load and the demeanor.  In re O’Brien, 650 A.2d 134 (Rhode Island 1994).

Necessary professional distance

Adopting the findings of 3 masters, the California Commission on Judicial Performance removed a judge from office for (1) engaging in a pattern of conduct toward a deputy public defender that was unwelcome, undignified, discourteous, and offensive; (2) making unwelcome, undignified, discourteous, and offensive comments to other female attorneys, his court reporter, and female defendants; (3) remanding a defendant into custody without resetting bail in open court and engaging in an ex parte communication with the deputy district attorney about the case; (4) revoking a criminal defendant’s own recognizance release in the defendant’s absence without notice and an opportunity to be heard and creating the appearance that he was retaliating for a peremptory challenge; and (5) failing to always disclose his son’s employment in the district attorney’s office.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019).

For example:

  • The judge told a deputy public defender words to the effect of, “Sometimes having you in here is like having a teenage daughter—you constantly argue with me and you just keep talk, talk, talking until you get what you want,” and, “It’s a compliment. Take a compliment.”
  • The judge winked at the deputy public defender during a hearing and called her to the bench to ask her if she saw him winking at her.
  • During a conversation with her in his chambers, the judge called the deputy public defender a “hard one” and told her, “Your parents hadn’t spanked you enough.”
  • The judge called the deputy public defender to the bench to ask if she was mad at him 10 to 15 times in 2016 and 2017.
  • Between 2014 and 2017, the judge told a second deputy public defender that she looked like an actress on the television show “Doc Martin” 12 to 20 times during her weekly appearances, often saying, “I saw you on TV last night.”
  • On 5 or 6 occasions, in the presence of grand jurors, the judge referred to a deputy district attorney as “beautiful” or “lovely” and one of his “favorite” attorneys.
  • The judge asked a second deputy district attorney personal questions, including about her ethnicity, her childhood, and her relationship with her father, asking her once “what kind of Asian” she was.
  • The judge told his court reporter, “You’re so pretty. I don’t know how you do it,” and “you are hot” on different occasions.
  • The judge occasionally commented to prospective jurors that his court reporter was “quite tall” and “very pretty,” and that they would “enjoy looking at her.”
  • The judge made comments about the physical appearance of female defendants, including telling some that they were “pretty” and should avoid drinking and driving and tattoos.

The Commission concluded:

Much of Judge Laettner’s misconduct reflects a pattern of engaging with attorneys appearing before him in a manner that is governed by his emotions, rather than by the California Code of Judicial Ethics.  His desire to have certain attorneys like him and not be upset or “mad at him” about his rulings, and action he has taken when he was angry or upset with them, has, at times, overridden his compliance with the canons of judicial ethics.  The factual findings of the special masters suggest that Judge Laettner failed to maintain the necessary professional distance between himself and attorneys appearing before him, or that he became embroiled. . . .

The Commission repeated the masters’ explanation for why it is inappropriate for a judge to compliment an attorney’s appearance.

Saying that a female attorney is beautiful or otherwise commenting upon her looks lifts Lady Justice’s blindfold by suggesting that one of a person’s immutable characteristics, her appearance, matters to the judge; suggesting that the judge is partial to the woman he has declared to be beautiful.  Even though the judge may have meant the comment to be an innocent courteous compliment, intended to create and maintain a “friendly” and “collegial atmosphere,” does not excuse such a statement.  Whether the recipient of the comment was offended or made uncomfortable . . . or not . . . is not the issue upon which the propriety of the statement turns.  The reason a judge’s declaration that someone is beautiful or attractive is misconduct is due not only to its effect on the person to whom the comment was directed, but also because of the potential impact the statement has upon those who may not perceive themselves as attractive or beautiful.  If two attorneys appear before a judge, and one attorney perceives herself to be unattractive, and the judge says to the other attorney, “Here is the beautiful Ms. Bell,” it is reasonable for the other attorney to question the fairness and impartiality of the judge.

The judge argued that he had not known that comments about the physical appearance of women were improper, but the Commission found that he “should have been on notice,” noting the ethics training judges receive and the information in the California Judicial Conduct Handbook.

Acknowledging substantial evidence that the judge had had “an exemplary work ethic” and “been a responsible, conscientious judge, and an asset to his court” during his 13 years on the bench, the Commission stated  that it would have censured, not removed him, based only on his misconduct.  However, the masters had also found that the judge was “not credible” in 6 instances and that his testimony was “impeached” in another and rejected much of his testimony in favor of that of other witnesses.  The Commission also emphasized that the judge had not fully accepted responsibility for his behavior, noting that, although he acknowledged generally the impropriety of his comments, he continued to deny responsibility for significant acts of misconduct and to blame others, particularly the public defender’s office.

Thus, the Commission concluded that the judge’s lack of candor and “his selective and limited acknowledgment of his misconduct” made removal the appropriate discipline.

 

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for making false and/or misleading statements during her election campaign.  Segal (Arizona Commission on Judicial Conduct November 12, 2014).
  • Pursuant to an agreement, the Arkansas Judicial Discipline & Disability Commission publicly censured a judge for prejudicial and harassing statements against his opponent and his opponent’s supporters during his campaign for a different judicial office.  Letter of censure (Martin) (Arkansas Judicial Discipline & Disability Commission November 21, 2014).
  • The California Commission on Judicial Performance publicly admonished a judge for making denigrating and undignified comments to family law litigants, most of whom were unrepresented, in 6 cases and, in 1 of the cases, attempting to influence another judicial officer’s handling of an arrest warrant.  In the Matter of Healy, Decision and order (California Commission on Judicial Performance November 5, 2014).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for an “inappropriate relationship” with her bailiff, over whom she exercised supervisory authority.  Inquiry Concerning Flood, 150 So. 3d 1097 (Florida 2014).
  • Granting the recommendation of the Judicial Tenure Commission, to which the judge consented, the Michigan Supreme Court suspended a judge for 90 days without pay and publicly censured him for operating a vehicle under the influence of alcohol.  In re Tabbey, 856 N.W.2d 29 (Michigan 2014).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge for 1 month without pay for soliciting an attorney for legal counsel in a personal matter even though she knew the attorney was counsel of record in 2 matrimonial matters over which she was presiding, failing to immediately recuse from those matters, and aiding or passively complying with the attorney’s concealment of the conflict.  In the Matter of Appleby, Order (New Jersey Supreme Court November 5, 2014).
  • The Ohio Supreme Court suspended a former judge from the practice of law for 6 months for dismissing with a false journal entry a ticket received by an attorney who was representing him in lawsuits and trying to cover up his misconduct.  Disciplinary Council v. Hale, 26 N.E.3d 785 (Ohio 2014).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) using his title and court resources to advance his church’s toy drive and (2) routinely dismissing traffic citations without a motion from the state in exchange for a $20 dismissal fee.  Public Reprimand of Nicholds and Order of Additional Education (Texas State Commission on Judicial Conduct November 18, 2014).

Intoxicated altercation

Based on agreements, the Indiana Supreme Court suspended 3 judges for injudicious conduct that culminated in a verbal altercation, a physical altercation, and gunfire outside a White Castle restaurant.  In the Matter of Adams, Jacobs, and Bell (Indiana Supreme Court November 12, 2019).

On the evening of April 30, 2019, Judge Andrew Adams, Judge Bradley Jacobs, and Judge Sabrina Bell traveled to Indianapolis to attend the Spring Judicial College the next day.  After checking into their hotel rooms, they spent the evening socializing with other judicial officers and drinking alcoholic beverages.

Around 12:30 a.m. on May 1, the judges and a magistrate met at a bar, where they continued to drink.  Around 3:00 a.m., the group walked to a strip club and tried to enter, but found that it was closed.

The group then walked to a White Castle.  While the magistrate went inside, the judges stood outside.  Around 3:17 a.m., Alfredo Vazquez and Brandon Kaiser drove past and shouted something out the window.  Judge Bell extended her middle finger to Vazquez and Kaiser.

Vazquez and Kaiser pulled into the White Castle parking lot and exited the vehicle.  There was a “heated verbal altercation . . . , with all participants yelling, using profanity, and making dismissive, mocking, or insolent gestures toward the other group.”  The judges did not “de-escalate the conflict” or avoid a confrontation by moving to another location in the parking lot,

After a verbal exchange between Judge Bell and Vazquez, there was a physical confrontation.  At one point, Judge Jacobs had Kaiser on the ground, raised his fist raised back, and said, “Okay, okay, we’re done, we’re done,” or “This is over.  Tell me this is over,” or words to that effect.  At another point, Judge Adams kicked Kaiser in the back.  Judge Bell made several attempts to stop the fighting, including seeking help by pounding on the door of the White Castle.  The confrontation ended when Kaiser pulled out a gun, shot Judge Adams once in the abdomen and shot Judge Jacobs twice in the chest.  Judge Bell immediately called 911.

Judge Adams and Judge Jacobs were transported to local hospitals.  Judge Adams had 2 emergency surgeries, including a colon re-sectioning.  Judge Jacobs had 2 emergency surgeries and was hospitalized for 14 days.

Upon admission to the hospital, Judge Adams’s serum blood alcohol level was 0.213 (or approximately 0.157 using whole blood), and Judge Jacobs’s was 0.177 (or approximately 0.13 using whole blood).  Judge Bell’s blood alcohol level was not tested, but she was intoxicated enough that she does not remember the incident.

In her statements at the police station, Judge Bell said that she does not remember what she said to Vazquez or Kaiser or what started the physical altercations.  After being informed that police had video of the incident, Judge Bell remarked that

  • “I’m afraid that I said something to them first, I don’t know.”
  • “[W]e’re all very good friends and they’re very protective of me. And I don’t know, and I’m afraid that I said something to those two strange men at first, and then they said something back to me.  And then I said something and then [Judge Adams and Judge Jacobs] went to defend me.”
  • “I’m not denying that I said something or egged it on … because I drink … I mean I fully acknowledge that I drink and get mouthy, and I’m fiery and I’m feisty, but if I would have ever thought for a second that they were gonna fight or that that guy had a gun on him, I would never, never …”

A grand jury indicted Judge Adams on 7 counts of battery and disorderly conduct.  The grand jury also investigated Judge Jacobs, but no criminal charges were filed against him.  The Court suspended Judge Adams from the bench.  On September 9, Judge Adams pleaded guilty to misdemeanor battery resulting in bodily injury.  All other charges were dismissed, and Judge Adams was sentenced to 365 days in jail, with 363 days suspended.

The Court held that the judges’ “actions were not merely embarrassing on a personal level; they discredited the entire Indiana judiciary.”  The Court concluded:

While in town to attend a statewide educational conference for judicial officers, 10 hours before the program convened, Respondents walked the streets of downtown Indianapolis in a heavily intoxicated state.  When Judge Bell extended her middle finger to a passing vehicle, neither Judge Adams nor Judge Jacobs discouraged the provocation or removed themselves from the situation.  Instead, all three Respondents joined in a profane verbal altercation that quickly turned into physical violence and ended in gunfire, and in doing so, gravely undermined public trust in the dignity and decency of Indiana’s judiciary.

The Court suspended Judge Adams for 60 days without pay and Judge Jacobs and Judge Bell for 30 days without pay.

Throwback Thursday

10 years ago this month:

  • The Arkansas Supreme Court suspended a judge without pay until the end of his term for practicing law and serving as a fiduciary of an estate of someone other than a family member.  Judicial Discipline and Disability Commission v. Simes, 354 S.W.3d 72 (Arkansas 2009).
  • Approving the recommendation of the investigative panel of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for ordering that the victim in a domestic battery case be taken into custody.  Inquiry Concerning Bell, 23 So.3d 81 (Florida 2009).
  • Accepting a stipulation, the Florida Supreme Court publicly reprimanded a judge for forming a relationship with a former defendant in her court who was a convicted felon with substance abuse problems and using her position to assist him.  Inquiry Concerning Henderson, 22 So. 3d 58 (Florida 2009).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge and fined her $25,000 for a mailer distributed during her campaign that could be interpreted as an assertion that criminal defense attorneys were contributing to her opponent’s campaign to try to obtain her opponent’s favor and that, if re-elected, her opponent might favor such contributors and their clients on the bench.  Inquiry Concerning Baker (Florida Supreme Court November 5, 2009).
  • Adopting a stipulation and joint recommendation, the Illinois Courts Commission publicly reprimanded a judge for driving while under the influence of alcohol, which resulted in an accident that damaged the other vehicle.  In re McGinnis, Order (Illinois Courts Commission November 18, 2009).
  • Agreeing with the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge from office for failing to decide a case on the evidence and testimony presented at trial, allowing outside influences to dictate her decision, and failing to recuse despite her relationships with the plaintiff and his attorney and the ex parte attempts of another judge to influence her decision.  In re Benge, 24 So. 3d 822 (Louisiana 2009).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly censured a judge for using his judiciary e-mail account to communicate with his former law clerk about their romantic feelings even after the assignment judge advised him that it was inappropriate, making misleading statements to the Committee during its investigation, and making an unsolicited telephone call to the deputy public defender regarding his former law clerk’s interest in working for the office of law guardian.  In the Matter of DeBello, Order (New Jersey Supreme Court November 16, 2009).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for (1) serious administrative errors in 11 traffic cases and (2) transferring 2 cases from his court, disqualifying both himself and his co-judge, without his co-judge’s knowledge or consent.  In the Matter of Engle, Determination (New York State Commission on Judicial Conduct November 9, 2009).
  • The New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) using his judicial power to effect the arrest of a motorist and then taking action in the case; (2) imposing a lenient disposition without disclosing an ex parte communication with the defendant’s mothers; (3) granting an adjournment in contemplation of dismissal without notice to or the consent of the prosecution; and (4) presiding over cases filed by members of the police department without disclosing his close friendship with the assistant chief of police.  In the Matter of Feeder, Determination (New York State Commission on Judicial Conduct November 18, 2009).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) misrepresenting in campaign literature that she had been endorsed by the New York Times; (2) campaign literature that displayed a pro-tenant bias; and (3) personally soliciting contributions during her campaign for judicial office.  In the Matter of Chan, Determination (New York State Commission on Judicial Conduct November 17, 2009).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge for embezzling public funds.  In the Matter of Allen, 685 S.E.2d 612 (South Carolina 2009).
  • Based on a formal complaint filed by the Judicial Inquiry and Review Commission, the Virginia Supreme Court publicly censured a judge for thwarting circuit court review of her order that a juvenile be remanded to secure detention without bond, forcing the juvenile to remain in secure detention for 9 days before his writ of mandamus was granted.  Judicial Inquiry and Review Commission v. Taylor, 685 S.E.2d 51 (Virginia 2009).

A sampling of recent judicial ethics advisory opinions

  • A chief judge of a circuit, a criminal division administrative judge, or a criminal division judge may contact the elected state attorney, public defender, or their designated supervisory level attorneys to discuss the judge’s concerns about the conduct of attorneys in their offices that adversely impacts the administration of justice.  Florida Opinion 2019-23.
  • A judge is not required to automatically disqualify himself from cases involving an insurance company that amicably settled a claim made by the judge.  Florida Opinion 2019-24.
  • Judges need not disqualify themselves if a lawyer or party is an acquaintance or disclose an acquaintanceship to the other lawyers or parties.  Whether judges must disqualify themselves or disclose when a party or lawyer is a friend or has a close personal relationship with the judge depends on the circumstances.  ABA Formal Opinion 488 (2019).
  • A judge may discuss a court-based mental health diversion project on a video that will be used exclusively on a behavioral health entity’s web-site and social media platform to educate the community about the program if the judge does not promote the entity.  Florida Opinion 2019-26.
  • A chief judge may appear before volunteer bar associations to explain a service that refers military veterans to attorneys for pro bono representation and solicit attorneys to volunteer for the service.  Florida Opinion 2019-27.
  • A judge may apply for loan forgiveness under a U.S. Department of Education’s Public Service Loan Forgiveness Program and is not required to report any discharged debt.  Colorado Opinion 2019-3.
  • A judge must sell an interest in an out-of-state law firm upon election or appointment to the bench.  Florida Opinion 2019-28.
  • A judge may not own a limited liability company that provides mediation services.  South Carolina Opinion 12-2019.
  • A judge may participate in a continuing legal education seminar presented by a local bar association for which a fee is charged and that may result in a profit for the bar association.  Virginia Opinion 2019-3.
  • With conditions, a judicial official may serve on the board or committees of a community organization that provides research and funding to improve the lives of a specific gender.  Connecticut Informal Opinion 2019-1.
  • A judge may not accept an honorary membership in the National Black Prosecutors’ Association.  Florida Opinion 2019-29.
  • A judicial official may not receive a clergyperson of the year award at a gala event sponsored by a religious organization if there will be a silent auction to raise funds before the event even if there will be no fund-raising appeal at the event and the cost to attend only covers the cost of the food and other event expenses.  Connecticut Informal Opinion 2019-2.
  • A judge may not appear in an advertisement for a private elementary school.  Maryland Judicial Opinion Request 2019-31.
  • A judge may act as the treasurer for a non-profit high school legion baseball team.  Nebraska Opinion 2019-2.
  • A judge may publish a work of fiction using a pen name.  Florida Opinion 2019-30.
  • A judge may not publish an on-line review of a personal or professional vacation organized by a bar association or other professional organization even if the review is anonymous and does not refer to her judicial status.  New York Opinion 2019-87.
  • A judge may not write a letter in support of a clemency application at the request of the inmate or his attorney, but the inmate may list the judge as a reference.  New York Opinion 2019-95.
  • A judge may permit her election committee to send fund-raising communications to the local bar association by email.  Maryland Opinion Request 2019-28.
  • A judge may not permit a candidate for non-judicial office to use in campaign materials a photograph of the judge and the candidate taken before the judge assumed office.  New York Opinion 2019-83.

 

 

Throwback Thursday

20 year ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for ex parte communications with a defendant and an intemperate outburst in court.  Letter to Hall (Arkansas Judicial Discipline & Disability Commission November 22, 1999).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for advising local law enforcement personnel concerning the validity of out-of-county court orders and adopting a policy that law enforcement officials could not execute out-of-county orders without his approval.  Letter to Harkey (Arkansas Judicial Discipline & Disability Commission November 22, 1999).
  • The Arkansas Judicial Discipline & Disability Commission publicly reprimanded a judge who had paid for a car with a check for which his checking account did not have sufficient funds and who had pled nolo contendere to criminal charges relating to the check.  In the Matter of Steel, Final Decision and order (Arkansas Judicial Discipline and Disability Commission November 22, 1999).
  • Adopting a joint stipulation and recommendation, the Illinois Courts Commission publicly reprimanded a judge who had been charged with driving while intoxicated.  In re Gausselin, Order (Illinois Courts Commission November 18, 1999).
  • Adopting a joint stipulation and recommendation, the Illinois Courts Commission suspended a judge for 3 months without pay for (1) criticizing a member of a jury for a not guilty verdict; (2) saying “f**k you” in court to an attorney; (3) withholding a payment voucher to retaliate against a court reporter because she signed a petition regarding him; and (4) on at least 5 occasions, using profanity in referring to other members of the judiciary.  In re Goshgarian, Order (Illinois Courts Commission November 18, 1999).
  • The Minnesota Board on Judicial Standards publicly reprimanded a district court judge for making comments to a reporter for the Minneapolis Star Tribune about a probation revocation pending before the district court.  Press release (Porter) (Minnesota Board on Judicial Standards November 5, 1999).
  • The New York State Commission on Judicial Conduct publicly censured a judge who had engaged in offensive, undignified, and harassing conduct toward his personal secretary.  In the Matter of Shaw, Determination (New York State Commission on Judicial Conduct November 8, 1999).
  • The New York State Commission on Judicial Conduct removed a judge for (1) failing for over 3 years to file reports and remit court funds to the state comptroller by the tenth of the month following collection as required by statute; (2) failing to issue receipts for fines, complete dockets, or report cases and remit court funds to the comptroller for the matters that he had handled; and (3) in a small claims case, sending a summons to the defendant that stated that a warrant would be issued for his arrest if he did not appear in court in response to the claim.  In the Matter of Kosina, Determination (New York State Commission on Judicial Conduct November 9, 1999).