Throwback Thursday

25 years ago this month:

  • Pursuant to the recommendation of the Commission on Judicial Performance, a special tribunal publicly censured a justice of the Mississippi Supreme Court who had entered a nolo contendere plea to the charge of DUI, been fined $800, and sentenced to 48 hours in jail with the jail time suspended.  Commission on Judicial Performance v. McRae, 700 So. 2d 1331 (Mississippi 1997).

Reviews, blurbs, and prefaces

Advisory opinions on the issue allow a judge to write a book review but prohibit a judge from allowing excerpts from a positive review to be used to promote the book and from writing a blurb solely for marketing purposes.

For example, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, when the primary purpose “is to engage in educational discourse related to the law, the legal system, or the administration of justice,” a judicial officer “may review, critique, or comment on legal education books in a legal publication” and include their title in the review.  California Supreme Court Committee Advisory Opinion 2022-48. The opinion noted that the code “generally permits and encourages judges to engage in educational activities, particularly those concerning the law, the legal system, and the administration of justice” but also prohibits using judicial prestige to advance others’ interests.  To “harmoniz[e]” those provisions, it explained:

Discussions regarding legal education books or writings in legal publications, such as legal periodicals or newsletters, have important educational value and contribute to the improvement of the law and legal system. . . .  While the committee agrees that judges may not promote others’ written works, review or critique of legal works is an educational exercise and consistent with the canons.  Although a positive review or discussion may incidentally lead to increased sales, the primary purpose of such discussions is educational rather than promotional.

The opinion cautioned that the substance of the review “must otherwise comply with the canons; for example, the judicial officer must not engage in improper political commentary or undermine the integrity or impartiality of the judiciary.”

Moreover, the committee advised that a judicial officer who has not contributed to a book may not provide a written endorsement that includes their title to be used on the book cover because the primary purpose of such an endorsement is to allow the publisher to “leverage” the judicial title to market the publication.  It explained:

Authors and publishers typically seek written endorsements from high-profile or prestigious individuals, sometimes called “book blurbs,” for the placement on a book cover to market and promote the book for sale.  An endorsement from a well-known judge, for example, might suggest to would-be readers that a law-related book is particularly interesting or useful, leading to increased sales.  When a judicial officer has not authored, co-authored, or contributed to the book, the primary purpose of such an endorsement is not to identify a contributor by judicial title or engage in an educational exercise, but rather to use the endorsing judicial officer’s title to promote sales.

Other opinions reflect a similar distinction.

  • A judge may write a review of a book about an historical event for a legal periodical as an academic exercise and not for commercial purposes but may not for marketing purposes write a testimonial regarding the value of a bar publication or write commentary to be included on a book jacket.  California Judges Association Advisory Opinion 65 (2012).
  • A judge may not write a testimonial/endorsement for a legal practice guide published by a non-profit, bar-related legal organization.  Connecticut Informal Advisory Opinion 2010-35.
  • A judge may not write comments about how an expert witness’s book would contribute to the legal profession from a judge’s perspective to be included in the book and potentially used in advertisements.  Florida Advisory Opinion 2021-17.
  • A judge may not write an appraisal intended to promote the sales of a book but may write a book review in a journal or newspaper intended “to inform the legal community or the general public of a new contribution to the legal or general literature,” even if the publisher uses excerpts from the review to promote sales and even if the newspaper or journal compensates the judge for the review.  Illinois Advisory Opinion 1994-15.
  • A judge may write book reviews for compensation for an out-of-state newspaper when they were asked because of their prior journalism experience, not because they are currently a judge, and they would not be identified as a judge in the reviews.  Kansas Advisory Opinion 186 (2020).
  • A judge may write a review of several books on methamphetamine addiction.  Nevada Advisory Opinion JE2008-8.
  • A judge may review a legal textbook and retain the reviewed book in their personal library.  New York Advisory Opinion 2021-117.
  • A judge may write and post a review of a friend’s novel online without mentioning their judicial position provided the purpose is not to promote the book’s sale and the judge does authorize use of the review on the book jacket or elsewhere to promote sales.  New York Advisory Opinion 2020-85.
  • A judge may not provide an endorsement of a friend’s non-fiction book that would appear on the cover and identify them as a New York judge even if their name is not used.  New York Advisory Opinion 2012-26.
  • A judge may not provide a quote to be included on the inside leaf of a book a friend has written about auditing fraud even if their title will not be mentioned and the only compensation is a complimentary copy of the book.  New York Advisory Opinion 2011-54.
  • A judge may submit to the New York Law Journal a review of a book authored by a clergy member at their house of worship but should not permit the author or publisher to use any portion of the review to promote the book’s sale.  New York Advisory Opinion 2006-114.
  • A judge may write a review of a novel for a local legal newspaper but should not permit the author or publisher to use part of the review to promote the book’s sale and should inform the newspaper, in writing, that the review is being provided on the understanding that no portion can be used for promotions.  New York Advisory Opinion 2005-28.
  • A judge may review a legal publication but should not prepare a testimonial that would be included in a marketing brochure or provide a quote about a book for the book jacket.  New York Advisory Opinion 1997-133.
  • A judge may not author a quote about a book involving legal issues solely for use on the book jacket but may write a book review for publication in the New York Law Journal or elsewhere.  New York Advisory Opinion 1993-14.
  • A judge may not write a review of a book on a legal subject when the publisher has stated that it will use some of the judge’s comments to promote sales.  Pennsylvania Informal Advisory Opinion 11/4/03.
  • A judge may write a letter on judicial letterhead at the request of a for-profit publisher to be included in a booklet about substance abuse as long as it cannot be interpreted as an endorsement of the booklet and does not impact the appearance of the judge’s impartiality in the trial of related matters.  Texas Advisory Opinion 192 (1996).
  • A judge may write book reviews that are “bona fide contributions addressing the substance” of the book and that do not “exploit or detract from the dignity of the office” but “should undertake reasonable efforts to guard against the subsequent use” of a review in promotional materials that may exploit the prestige of the office.  U.S. Advisory Opinion 114 (2014).

Prefaces

With some caveats, judicial ethics advisory committees allow judges to write forewords, prologues, or prefaces for books if they will not receive compensation.

In giving that permission, several committees remind judges to retain editorial control over the content of what they write and the right to review any biographical information used.  See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11. For example, the Maryland committee advised that a judge who is writing an introduction to a book should take reasonable steps to ensure that the publisher does not exploit the prestige of their judicial office in marketing of the book, explaining that, in the context of a book published by a non-profit entity such as a bar association, the judge should ask “the publisher to consult with the [judge] before mentioning [their] name or position in any marketing efforts.”  Maryland Advisory Opinion Request 1980-7.

Some of the opinions warn the judge that a foreword they write should not identify them as a judge.  See Florida Advisory Opinion 2020-11.  Some note that the judge did not plan to identify their judicial status in the foreword, suggesting the answer may be different if the preface refers to their office.  See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11.  Other opinions do not address the issue.

Some opinions remind the judge to review the entire book and determine whether authoring a foreword will cast doubt on their impartiality or reflect a predisposition regarding particular cases, issues, parties, or witnesses.  Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11See also Ohio Advisory Opinion 1987-8.  Similarly, the Massachusetts committee advised that a judge should be careful to ensure that nothing they write in the foreword or any way they associate themself with anything the author writes casts doubts on their capacity to make impartial decisions.  Massachusetts Advisory Opinion 1993-2.

The opinions state:

  • A judge may author a foreword to a book written by a police officer on child safety and the Internet but, if the author appears as a party or witness before the judge or the judge presides over a case about the subject of the book, the judge should disclose the connection and consider recusal at a party’s request based on “the nature of the proceeding or docket, whether reference to or reliance upon the book is foreseeable, whether the Judicial Official is the sole decision maker (i.e. whether the matter is to the court or a jury) and whether self-represented parties or lawyers are involved.”  Connecticut Advisory Opinion 2010-15.
  • A judge may write the foreword to a self-published memoir written by a family member.  Florida Advisory Opinion 2020-11.
  • A judge may write the preface to a book about the history of the county.  Florida Advisory Opinion 1977-5.
  • A judge may provide an introduction to a book on a specific area of state law published by the Maryland State Bar Association as part of its continuing legal education program, but different considerations may apply to works published by for-profit entities.  Maryland Advisory Opinion Request 2013-26.
  • A judge may write an introduction recommending a book about the prevention and treatment of alcoholism to judges and other professionals.  Maryland Advisory Opinion Request 1980-7.
  • A probate and family court judge may write a foreword for a book on divorce.  Massachusetts Advisory Opinion 1993-2.
  • A judge may write a foreword for a book on the bicentennial of the U.S. Constitution.  Ohio Advisory Opinion 1987–8.
  • A judge may write forewords for books that are “bona fide contributions addressing the substance of the book” but should make reasonable efforts to prohibit its use in promotional materials.  U.S. Advisory Opinion 114 (2014).

The only outlier is a New York advisory opinion stating that a judge should not write a foreword to a law book dealing with the court over which the judge presides when the book is a commercial publication intended to earn a profit for the publisher and author.  New York Advisory Opinion 1997-1.  The committee reasoned:

[T]here is a clear and overt nexus between the writing that is sought and the private interests of the publisher and author.  For, in writing such a Foreword, the judge could readily be perceived as endorsing the publication and providing it with a judicial stamp of approval.  Indeed, that perception of a judicial imprimatur is heightened considerably in this instance, since the subject matter of the book is the workings of the very court over which the judge presides and about which the judge has special knowledge and expertise.

Thus, it is not only the prestige of judicial office that is involved in this instance but the prestige of the particular judicial office held by the inquirer.

Throwback Thursday

5 years ago this month:

  • Based on a stipulation for discipline by consent and the judge’s agreement to tender his irrevocable resignation from office and not seek or hold judicial office in any court in the state, the California Commission on Judicial Performance publicly censured a judge for taking 2 business cardholders from a club.  Inquiry Concerning Williams, Decision and order (California Commission on Judicial Performance July 17, 2017).
  • Based on a settlement agreement and stipulations, the Michigan Supreme Court suspended a judge for 6 months without pay and publicly censured him for sexually harassing his judicial secretary.  In re Iddings, 897 N.W.2d 169 (Michigan 2017).
  • The Michigan Supreme Court suspended a judge for 9 months without pay for interfering with a police investigation at the scene of an accident involving his intern, interfering with the prosecution of the intern, and making an intentional misrepresentation to the Commission.  In re Simpson, 902 N.W.2d 383 (Michigan 2017).
  • The Michigan Supreme Court publicly censured a judge for directing insulting, demeaning, and humiliating comments and gestures to 3 children during a contempt proceeding.  In re Gorcyca, 902 N.W.2d 828 (Michigan 2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for delay issuing decisions in 3 cases.  In re Rawson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 5, 2017).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for signing an order that improperly allowed a law school graduate who was not licensed in the state to practice in his court.  In the Matter of O’Briant, Amended public admonishment (West Virginia Judicial Investigation Commission July 5, 2017).

A sampling of recent judicial ethics advisory opinions

  • A judge who has applied for and/or is negotiating for post-judicial employment must disqualify from any matter in which the prospective employer appears; that disqualification cannot be waived.  A judge should not negotiate with a potential employer if such negotiations would lead to frequent disqualification.  If a negotiation does not result in employment, the judge should continue to recuse for a reasonable period, the length of which will depend on whether the judge developed a personal bias or prejudice during the negotiations and on factors such as how long the negotiations took, the notoriety of the negotiations, and whether the break-off of the negotiations was amicable.  Arizona Opinion 2022-1.
  • A judge who previously served on a town’s zoning board is disqualified from all matters that were pending before the board during their tenure but may preside over other matters involving the board.  New York Opinion 2022-51.
  • A judge is not disqualified because an attorney in a matter is their neighbor and had, in that capacity, supported a non-controversial residential zoning variance sought by the judge.  New York Opinion 2022-42.
  • A presiding judge may participate in an informal task force that will look at issues of racial bias in their community if their involvement can be limited to matters regarding the court system and the administration of justice and if the task force initiatives will not involve judicial proceedings that would ordinarily come before the court.  A family law commissioner may participate in a domestic violence task force created by the court that includes the district attorney’s office, the public defender’s office, county counsel, probation, and local law enforcement agencies.  A judge may serve on the executive committee of a city task force about reducing youth and gang violence that has members from a large cross-section of the community, including community leaders, educators, health workers, law enforcement, and youth programs.  A judge may serve on a mayor’s gang task force that will allow all of the stakeholders in the criminal justice system, including law enforcement, prosecutors, members of the defense bar, the probation department and representatives from community-based gang intervention programs, to exchange ideas and offer suggestions.  A judge may not serve on a mayor’s gang task force if it is oriented to intervention, prevention, and enforcement and is made up of political representatives, representatives from the district attorney’s office, the police department, schools, and other community leaders but does not include members of the defense bar.  A judge who has a criminal law assignment may not join a state task force called the “Sober Driving Coalition” comprised of members of the highway patrol, local law enforcement, and probation.  California Judges Association Formal Opinion 80 (2022).
  • An administrative judge may not authorize a court-sponsored committee or commission to file an amicus curiae brief supporting the court system’s legislative agenda.  New York Opinion 2022-37.
  • In a letter on judicial stationery, a judge may ask the county clerk to authenticate any lien/judgment against the judge prior to recording it because a self-identified “sovereign citizen” is apparently retaliating against the judge.  New York Opinion 2022-46.
  • A judicial officer may review legal education books in a legal publication when the primary purpose is educational discourse related to the law, the legal system, or the administration of justice.  A judicial officer may not provide an endorsement referencing their title to be used on the cover of a book written by others because the primary purpose of such an endorsement is to market or promote the book.  California Opinion 2022-48.
  • A judicial official may write an occasional column for an online newspaper to educate the public on how the legal system works, how judges make decisions, and the law generally if the content will be apolitical and uncontroversial and the paper is not-for-profit and non-partisan.  Connecticut Informal Opinion 2022-04.
  • A judicial officer may be a member of a judicial organization that has resolved not to hold conferences and other activities in states that discriminate against members of the LGBTQ+ community and may remain a member of a national organization that does not discriminate against members of the LGBTQ+ community but that conducts conferences in states that have enacted laws that discriminate.  California Judges Association Formal Opinion 79 (2022).
  • A judge may serve as a trustee for a public community college if they volunteered or were appointed as a trustee, but they may not run for the office even if the position is apolitical or nonpartisan.  Colorado Opinion 2022-3.
  • A judge may chair the board of directors of a local YMCA, and their name and position may be listed with other board members on the organization’s website and fund-raising invitations, unless the formatting creates the impression that the directors, collectively and/or individually, are personally soliciting funds.  New York Opinion 2022-25.
  • A judge may serve as master of ceremonies at a retirement picnic for the minister of their house of worship if the event is not a fund-raiser even if the congregants organizing the event hope to defray the costs by, for example, asking for donations online and/or at the function and selling advertisements for a program that will be distributed at the picnic.  New York Opinion 2022-57.
  • A judge may not perform in a rock band’s annual benefit concert even if their name and judicial status will be omitted from advertisements and may not sell concert tickets to friends, but may sell to family members.  New York Opinion 2022-79.
  • Subject to generally applicable limitations on judicial speech and conduct, a judge may speak at a free community celebration of Pride month if the event is not a fund-raiser and may permit the organization to use the judge’s photo and title in social media promotions.  New York Opinion 2022-75.

Throwback Thursday

10 years ago this month:

  • Adopting the findings and conclusions of the Commission on Judicial Conduct and affirming the recommended sanction, the Arizona Supreme Court removed a justice of the peace from office for asking the court manager to move his vehicle to avoid a process server attempting to serve him with an order of protection, continuing to hear cases involving such orders, invoking his position repeatedly with law enforcement authorities, and sending threatening texts to his wife; the Court also ordered that the judge shall not hold judicial office or perform judicial functions in Arizona for at least 5 years.  In the Matter of Woolbright, Order (Arizona Supreme Court July 23, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge because he failed to resolve issues on his website about advertisements for weddings services despite receiving an informal sanction.  Jayne, Order (Arizona Commission on Judicial Conduct July 9, 2012).
  • Pursuant to a stipulation, the California Commission on Judicial Performance publicly censured a judge for seeking preferential treatment from a commissioner of his court for a traffic citation issued to his wife.  Inquiry Concerning Sarmiento, Decision and Order (California Commission on Judicial Performance July 5, 2012).
  • The California Commission on Judicial Performance publicly admonished a judge for ordering an attorney he had said was contemptuous to remain in the courtroom for over an hour and a half without adjudicating the alleged contempt and for ordering the attorney to “spend every waking moment” working on the case until the preliminary hearing to the exclusion of other cases and social activity.  Public Admonishment of Jacobson (California Commission on Judicial Performance July 11, 2012).
  • Approving the findings and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for driving under the influence and crashing the vehicle she was driving.  Inquiry Concerning Nelson, 95 So. 3d 122 (Florida 2012).
  • With the judge’s consent, in lieu of filing formal disciplinary proceedings, the Indiana Commission on Judicial Qualifications publicly admonished a judge for granting an ex parte motion for custody filed by a child’s maternal grandparents without prior notice to the non-custodial father or an opportunity for him to be heard.  Public Admonition of Johnston (Indiana Commission on Judicial Qualifications July 5, 2012).
  • The Kentucky Supreme Court affirmed the Judicial Conduct Commission’s removal of a judge for (1) advocating at a county meeting that $500,000 donated by criminal defendants under a plea agreement be used to fund a water park; (2) making misstatements in an order; (3) establishing a special grand jury to discredit the judge-executive; (4) viewing videotapes regarding the sheriff’s investigation of the judge-executive; (5) presiding over 2 criminal cases that he had urged the state police to investigate and the commonwealth’s attorney to pursue; (6) urging Kentucky Utilities to donate $12,500 for playground equipment at his children’s elementary school; (7) raising funds for playground equipment for his children’s school; and (8) removing an assistant public defender as counsel in cases without giving her an opportunity to be heard.  Alred v. Judicial Conduct Commission, 395 S.W.3d 417 (Kentucky 2012).
  • Affirming the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge from office for (1) inappropriate financial transactions and practices, including misappropriating public funds; (2) failing to ensure that a business-attire policy was properly enforced and did not deny people access to the court; (3) knowingly rehiring an unqualified magistrate, misrepresenting that he was qualified, and requiring him to sign bench warrants, contrary to statute; (4) hiring her niece; and (5) making misrepresentations during the investigation and hearing, including lying under oath.  In re James, 821 N.W.2d 144 (Michigan 2012).
  • Adopting the recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court suspended a judge for 4 months without pay for attending a holiday party hosted by the probation association and, while at the party, touching women and making sexually suggestive remarks to them; as a prerequisite to the resumption of his duties, the Court ordered the judge to participate in a rehabilitative program.  In the Matter of Jones, 47 A.3d 736 (New Jersey 2012).
  • The Pennsylvania Court of Judicial Discipline removed a former judge and barred him from serving in judicial office after finding that he had committed conduct prejudicial to the administration of justice and conduct that brought the judicial office into disrepute when he took sexual liberties with 2 women appearing in his courtroom.  In re Cioppa, 51 A.3d 923 (Pennsylvania Court of Judicial Discipline 2012).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for denying a motion to recuse in an order that recited facts that he should not have considered and that accused the moving attorneys of misconduct.  Re Gasaway (Tennessee Court of the Judiciary July 2, 2012).

Recent cases

  • Based on stipulated facts and legal conclusions and an agreement that included the justice’s retirement, the California Commission on Judicial Performance publicly admonished a former court of appeal justice for (1) a pattern of delay in deciding approximately 200 appellate matters over a 10-year period and (2) failing to properly exercise his administrative and supervisory authority as administrative presiding justice to prevent chronic delays in cases assigned to other justices on the court. In the Matter Concerning Raye, Decision and order (California Commission on Judicial Performance June 1, 2022).
  • Based on the judge’s retirement and agreement not to seek, request, or accept any judicial office in the future in the state, the Georgia Judicial Qualifications Commission resolved its investigation of a former part-time judge; the investigative panel had authorized a full investigation of conduct that indicated that he had been improperly involved as an attorney in several cases in his court; conduct that indicated that he had taken action on a few cases in his court in which he should have recused himself; and conduct that indicated that he had represented a party in personal litigation in another jurisdiction while the party regularly appeared before him in his judicial capacity. In re Zimmerman, Report of disposition (Georgia Judicial Qualifications Commission June 10, 2022).
  • Based on the report and recommendation of the hearing panel of the Judicial Qualifications Commission, to which the judge had not objected, the Georgia Supreme Court publicly reprimanded a judge for berating a bail bondsman who had criticized the judge on Facebook when a rape defendant whom the judge had released on his own recognizance after a mistrial failed to appear for his retrial. Inquiry Concerning Norris (Georgia Supreme Court June 22, 2022).
  • Accepting a joint petition for consent discipline, the Louisiana Supreme Court suspended a former judge from the practice of law for 1 year and 1 day based on an investigation of allegations that, while he was a judge, he engaged in unwelcome touching of several women and acting inappropriately in the courtroom. In re Williams (Louisiana Supreme Court June 28, 2022).
  • Accepting a stipulation based on the judge’s affirmation that she will not 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; in June 2021, the Commission had informed the judge that it was investigating a complaint about her failure to report to the State Comptroller moneys that she had received in connection with her duties as town justice. In the Matter of Inman, Decision and order (New York State Commission on Judicial Conduct June 16, 2022).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a non-lawyer magistrate for failing to allow the parties and their lawyers in cases involving the sheriff’s office time to consider the question of remittal outside his presence after disclosing that his wife was a captain in the sheriff’s office, failing to ensure that any agreements to waive disqualification were placed on the record, and failing to disclose when his wife had supervised the officers in a case. In the Matter of Barker (South Carolina Supreme Court June 15, 2022).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for refusing to accept a defendant’s guilty plea and, following her conviction, announcing his intention to appoint a new lawyer for a motion for new trial limited to punishment issues; the Commission also ordered that the judge receive 3 hours of instruction on criminal pleas with a mentor. Public Reprimand of Wilson and Order of Additional Education (Texas State Commission on Judicial Conduct June 8, 2022).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for operating a motor vehicle after consuming alcohol and causing a single car accident. Public Admonition of Moorehead (Texas State Commission on Judicial Conduct June 9, 2022).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for saying “kicked that motherf*er’s a,” believing he was no longer on the line after a telephonic hearing but while the attorneys were still on the line and the courtroom’s audio recording was still activated. In re Dixon, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for comments implying that a defendant might be raped in prison; the judge also agreed to participate in ethics training focused on appropriate courtroom demeanor. In re Amato, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for significant delays in issuing decisions after hearings in 3 small claims cases. In re Howson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022).

Throwback Thursday

20 years ago this month:

  • Pursuant to a stipulation for discipline by consent conditioned on the judge’s irrevocable retirement from judicial office, the California Commission on Judicial Performance publicly censured a judge for (1) his promotion of and participation in a dubious investment scheme, including keeping a payment of $20,000 from one of the principals even though he knew that the investors had not received any of the profits they had been promised and despite knowing that the principals had all been convicted at trial of or pled guilty to federal criminal offenses; (2) telling some investors that he believed their profits would be forthcoming and otherwise discouraging them from complaining to government authorities; (3) instructing court staff to put calls from the principals in the investment scheme through to him on the bench or in his chambers; (4) avoiding his financial obligations over a lengthy period by writing worthless checks, making false promises and misrepresentations to creditors, and otherwise engaging in delaying tactics; and (5) on numerous occasions, remanding defendants based on his “smell test” of the defendants’ hair and/or his examination of their eyes.  Inquiry Concerning Aaron (California Commission on Judicial Performance July 8, 2002) .
  • The New York Court of Appeals publicly admonished a judge a judge for referring to herself as a “graduate” of the judicial law courses that she took in her capacity as court clerk.  In the Matter of Shanley, 774 N.E.2d 735 (New York 2002).
  • Affirming a decision by the State Commission on Judicial Conduct, a Texas Special Court of Review publicly reprimanded a judge who had engaged in a personal vendetta to destroy the reputation of a young prosecutor; used profane, distasteful, and inappropriate language in a letter to the district attorney; and publicly attacked the district attorney’s office by sending the letter to the media.  In re Davis, 82 S.W.2d 140 (Texas Special Court of Review 2002).

What they said that got them in trouble so far in 2022

  • “You’re setting yourself up, sir, to be Bubba’s new best girlfriend at the state penitentiary.  I hope you realize that.  That may hopefully give you a graphic image to think about. . . .   And if you think I’m kidding, I’m not. . . .  The folks at the penitentiary have mothers and sisters and nieces and cousins that they do not want someone out there abusing.  And they will take that out on you, at the penitentiary.  So think about that because you’re racking up felonies at this point.”  Judge to defendant during arraignment on domestic violence charge.  In re Amato, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022) (admonishment).
  • “Kicked that motherf***er’s a**.”  Judge when he believed that he was no longer on the line after a telephonic hearing had adjourned but, in fact, when the attorneys could still hear him.  In re Dixon, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022) (admonishment).
  • “Well we’re going to proceed to a jury trial, so your plea has to be not guilty.”  Judge to defendant who wanted to plead guilty.  Public Reprimand of Wilson and Order of Additional Education (Texas State Commission on Judicial Conduct June 8, 2022).
  • “I’m pleading you guilty.”  Judge after questioning unrepresented defendant about the reasons he failed to appear at a prior court date and using his answers to coerce him to plead guilty.  Rummer, Order (Arizona Commission on Judicial Conduct May 24, 2022) (reprimand).
  • “I’ll tell you when I’m coming back.  It’s not going to be today.  You get your client under control or I am going to tear him up on the stand.  Do you understand me? . . .  He talks over me one more time, I am going to rule summarily against him.  Do you understand that?”  Judge, loudly to the point of yelling, to husband’ counsel in civil action, before leaving the courtroom and failing to the return to the bench to continue hearing the case.  In re Placey, Opinion and order (Pennsylvania Court of Judicial Discipline February 14, 2022) (reprimand of former judge for rude, loud outbursts towards counsel and witnesses in 6 cases).
  • “Playing games” and “being a consistent problem in court.”  Judge to defense counsel.  Public Reprimand of Mullin (Texas State Commission on Judicial Conduct March 4, 2022) (reprimand for this and other misconduct).
  • “The reality has – has come to me that I may not be suitable for this;’” and “[It would have been easier if you had] fussed [at me].  Then we could have rolled around on the floor and strangled each other . . . .”  Judge during ex parte conversation in chambers with the wife’s attorney during the trial in a divorce case.  Public Admonition of Wells (Texas State Commission on Judicial Conduct April 20, 2022) (admonition for this and other angry and frustrated outbursts during a trial).
  • “You start with all the information from the report, all the testimony crescendos to the cause and manner of death, which is the sex of the testimony;” and You want to tease the jury with the details of the examination;” and “You want to lead them to the climax of the manner and cause of death,” or words to that effect. Judge giving prosecutor feedback on her cross examination of the medical examiner in a homicide case. In re Morrow (Michigan Supreme Court January 13, 2022) (6-month suspension without pay for this and related misconduct).
  • “Well, I haven’t assessed your muscle mass yet.” Judge to prosecutor when she told him he had guessed her weight wrong. In re Morrow (Michigan Supreme Court January 13, 2022) (6-month suspension without pay for this and related misconduct).
  • “Frigid.” Judge to court clerks. Staggs, Order (Arizona Commission on Judicial Conduct January 26, 2022) () (reprimand for this and other misconduct).
  • “Sit down and listen to what I have to say.” Judge at the beginning of a 30-minute tirade in chambers to a bail bondsman he had summoned to his chambers after the bondsman criticized him on Facebook. Inquiry Concerning Norris (Georgia Supreme Court June 22, 2022) (reprimand).
  • “A**hole decision.” Magistrate in heated exchange during a meeting in response to a police captain’s criticism to a reporter of the bond the magistrate had set in a case. Public Admonishment of Gaujot (West Virginia Judicial Investigation Commission April 25, 2022) (admonishment for this and other misconduct).
  • “I have been a probate judge for six years now. And never in my time on the bench have I ever been as personally offended as I am with you right now.” Judge to litigant in 1-hour diatribe during a status conference he called after the litigant had criticized him at the county board of commissioners for not disqualifying himself when his daughter appeared as an attorney. Disciplinary Counsel v. O’Diam (Ohio Supreme Court April 28, 2022) (6-month suspension, stayed with conditions).
  • “It appears that both detectives conducted themselves appropriately in this case, and I find no fault with their investigation;” and “It distresses me greatly to think anyone considers me unfair or biased.” Judge in 2 letters to the police chief about police detectives who were being investigated for misconduct in a case over which she had presided. In the Matter Concerning Meyer, Decision and order (California Commission on Judicial Performance April 5, 2022) (admonishment).
  • “King” and “hang’em high prosecutors.” Judge referring to himself and assistant district attorneys after summoning several ADAs to his chambers to express “his displeasure with their failure to treat him with sufficient respect.” Public Admonition of Jordan and Order of Additional Education (Texas State Commission on Judicial Conduct May 13, 2022).
  • “I am so sorry for your continued pain. I don’t have the answer, but I am working on the entire situation. I assure you because I am not happy with the current exigencies as currently exist. Keep praying and I will do the same.” Judge via Facebook Messenger to grandmother in a child custody case. In re Denton (Louisiana Supreme Court March 25, 2022) (4-month suspension without pay for this and other ex parte communications with the grandmother for over a 6-month period and related misconduct).
  • “You going to be a good girl?” Judge to woman when he ordered her release 25 days after having arbitrarily ordering that she be imprisoned on a “dubious probation violation charge” out of anger and “on a personal whim” after she offended his law clerk in a disagreement in a convenience store. In re Toothman, Opinion and order (Pennsylvania Court of Judicial Discipline March 17, 2022) (removal for this and other misconduct).
  • “You think I’m going to retaliate? You’re damned right I’m going to retaliate!” Judge after being told the posting of an employee’s private grievance on a public bulletin board might constitute retaliation. In re Toothman, Opinion and order (Pennsylvania Court of Judicial Discipline March 17, 2022) (removal for this and other misconduct).
  • “You need to calm your a** down! I am a Magistrate;” “sh** bags;” and “started running her mouth because she’s a woman.” Judge during confrontation with neighbor when police responded to a neighborhood incident, referring to homeless people and his neighbor’s wife. Public Admonishment of Weiss (West Virginia Judicial Investigation Commission April 25, 2022).
  • “Muslims need to learn to be American;” “You’re not Special” because “white slaves were sold for centuries;” and “If we had equal rights … my southern heritage would be just as important as your black history.” Memes posted by judge on Facebook page. Public Warning of Black (Texas State Commission on Judicial Conduct April 7, 2022) (public warning for this and other misconduct).
  • When you vote, the right experience is what matters. While Sharon Marchman has spent her thirty-three year career protecting you, her opponent Jimbo Stephens’ law firm, Stephens and Stephens, was getting paid to defend Sonny James Caston, convicted of murdering a deputy sheriff. Then he reversed a jury’s conviction of a burglar with a twelve-page criminal history. When asked about a crime, Judge Jimbo Stephens stated, ‘It’s illegal to get caught.’ Vote for the right experience – Judge Sharon Marchman.” Judge in campaign ad about opponent. Public Admonishment of Marchman (Louisiana Judiciary Commission April 26, 2022).

Throwback Thursday

25 years ago this month:

  • The New York State Commission on Judicial Conduct publicly admonished a judge for routinely requiring out-of-town defendants in traffic cases to post $100 bail if they pled guilty by mail.  In the Matter of Kelsen, Determination (New York State Commission on Judicial Conduct July 17, 1997).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for telling a litigant that he was dismissing the litigant’s visitation petition until the litigant received a psychological evaluation “because it appears to me that you are more than a little nuts” and when the litigant objected to the remark, saying, “I understand what I have heard with my own ears and it appears to me that you are nuts.”  In the Matter of Going, Determination (New York State Commission on Judicial Conduct July 18, 1997).
  • The South Carolina Supreme Court publicly reprimanded a former judge for dismissing DUI charges against a friend.  In the Matter of Chiles, 490 S.E.2d 259 (South Carolina 1997).
  • Agreeing with the recommendation of the Judicial Conduct Commission, the Utah Supreme Court publicly reprimanded a judge for allowing a litigant to submit a sworn affidavit signed by the judge that gave her opinions and conclusions on the ultimate issue in a judicial proceeding pending before a district court judge.  In re McCully, 942 P.2d 327 (Utah 1997).
  • The Vermont Supreme Court suspended a judge for 1 year without pay and publicly reprimanded her for falsely denying, during hearings held by the Vermont Association of County Judges, that she had secretly taped meetings or conversations with another judge with whom she had conflicts.  In re Kroger, 702 A.2d 64 (Vermont 1997).
  • Adopting the recommendations of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly admonished a magistrate for contacting an arresting officer and prosecuting attorney concerning an action pending against his son-in-law.  In the Matter of Rice, 489 S.E.2d 783 (West Virginia 1997).
  • Pursuant to a stipulation, the Wisconsin Supreme Court publicly reprimanded a former judge for battering his wife and causing her bodily harm.  In the Matter of Crivello, 564 N.W.2d 785 (Wisconsin 1997).

Hot mic and disruptions

2 judges were recently disciplined for misconduct related to the COVID-19 pandemic.

On June 8, 2021, after a telephonic hearing in a civil case in which he had sanctioned one of the parties, a judge said that the hearing was adjourned.  Then, believing he was no longer on the line with the parties or on the record, the judge, who was alone in his chambers, said, “Kicked that motherf***er’s a**.”  In fact, he had not disconnected, the attorneys were still on the line, and the courtroom’s audio recording was still activated.  The attorney whose client had been sanctioned believed the comment was directed at him. 

Immediately after the hearing, the judge realized what had happened, called both attorneys to apologize, and called the Commission to self-report.  Later that week, he recused himself from the case.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished him.  In re Dixon, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022).

During the Commission investigation, the judge explained that he sometimes uses crude language in private and his comment had not been directed at a particular person or party but was an expression of relief at finishing the hearing, which he had not intended the attorneys to hear.  The Commission found that because the comment was made after a hearing in which one side was sanctioned, “the comment was reasonably interpreted to be directed at a particular attorney creating an appearance of bias or prejudice against that attorney.” The Commission noted that, after the incident, the judge had put reminders to use appropriate language by the equipment used for remote meetings.

The Commission stated:

[J]udges are the embodiment of the justice system, and they are directed by the Code to “aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, and integrity, and competence,” and regardless of his intention, the impact on the listeners was demeaning and upsetting.  It created the impression the judge was disrespectful and disdainful of counsel. . . .  Language that manifests bias or prejudice, or profanity, has no place in a court proceeding.  Discourteous and disrespectful behavior by a judge erodes confidence in the quality of justice administered by that judge, not only for the direct targets of such behavior, but also for all those who witness it.

* * *

A judge explained that the difficulty of maintaining court operations during the pandemic contributed to the significant delays in deciding 3 small claims cases for which she agreed to be was publicly admonished.  In re Howson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022).  She also noted that she had been covering the caseloads of judicial officers with health issues and had been displaced from her chambers while the courthouse was being repaired.  The delays were for approximately 722 days, 406 days, and 115 days between the trial of the case and entry of the judge’s decision.

The Commission stated that it was “mindful of the difficulty and stresses caused by the pandemic and other court disruptions” and noted that the judge “has a reputation as a very careful and thoughtful jurist.”  But the Commission emphasized:  “The nature of this type of misconduct – decisional delay – is inherently problematic because it deprives litigants of timely justice, which often cannot be remedied through the appellate process.  Issuing timely decisions is a core function for any judicial officer and the misconduct here was not isolated.” 

* * *

12 other prior public sanctions and 2 private sanctions have addressed misconduct related to the pandemic.

  • Judge failed to grant a continuance requested by an attorney who had COVID-19 symptoms or to make arrangements to allow the attorney to appear telephonically and then granted a default judgment against the attorney’s client, a defendant in a civil traffic case.  Sears, Order (Arizona Commission on Judicial Conduct January 26, 2022) (admonishment).
  • Judge spoke sharply to court staff when disconnected from a Zoom hearing and yelled at court staff when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case.  Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021) (reprimand).
  • Judge repeatedly failed to wear a face covering when interacting with the public and staff in court facilities as required by administrative orders, failed to require individuals in his courtroom to abide by administrative orders, and appeared “to publicly denigrate those orders.”  Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021) (reprimand).
  • Judge displayed improper demeanor toward 2 criminal defense attorneys appearing by phone for an arraignment on the first day after the stay-at-home order was in effectIn the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for this and other misconduct).
  • , in addition to other misconduct.  In the Matter of Guthrie, Order (New Mexico Supreme Court April 25, 2022) (permanent resignation).
  • Judge engaged in disruptive behavior during a meeting about the court’s COVID-19 safety plan, confronted another magistrate and the Chief Magistrate after the meeting, and made an inappropriate statement to a clerk about the Chief Magistrate’s complaint to Disciplinary Counsel.  In the Matter of Rivers, 862 S.E.2d 449 (South Carolina 2021) (6-month suspension without pay).
  • Judge stated in the courtroom:  “The Grand Wizard of our Supreme Court said we have to wear these masks.”  Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020).
  • Judge failed to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commented in the courtroom that he wished the chief justice “would win an award so that the COVID-19 mandates” would end.  Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand).
  • Judge stated in a post on the county’s Facebook page that he would release anyone brought before him charged with violating stay-at-home orders issued during the COVID-19 public health emergency.  Public Admonition of Black (Texas State Commission on Judicial Conduct February 28, 2022).
  • Judge, in addition to other misconduct, issued peace bond warrants for President Biden and Dr. Anthony Fauci, alleging that their immigration policies, COVID-19 health restrictions, and firearms policies constituted threats to commit offenses under Texas law against multiple anonymous complainants; the warrants were the subject of national news coverage, and the judge participated in media interviews concerning the warrants.  Public Warning of Black (Texas State Commission on Judicial Conduct April 7, 2022).
  • Judge declined to determine who was attempting to appear at the end of a calendar via Zoom.  In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021) (reprimand for this and other misconduct).
  • Judge criticized the prosecution of a case in comments that he thought could only be heard by the court employees in the courtroom but that were being broadcast through the court’s YouTube channel.  In re Antush, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 19, 2021) (admonishment).
  • Magistrate posted on Facebook that if a citizen were criminally cited for not wearing a mask and appeared before him, he would dismiss the citation because he thought it was unconstitutional.  Described in Public Admonishment of Weiss (West Virginia Judicial Investigation Commission April 25, 2022).