Throwback Thursday

10 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for abusing his contempt power in response to a report that a member of the public was using her cell phone to take pictures or videos of people in the courthouse lobby involved in dependency court proceedings.  In the Matter Concerning Wagoner, Decision and Order (California Commission on Judicial Performance September 13, 2011).
  • Agreeing with the recommendation of the Judicial Qualifications Commission, the Georgia Supreme Court removed a judge from office for (1) obtaining and consuming marijuana at least once a week from March to May of 2010; (2) showing up at the house of his sister-in-law’s estranged husband, identifying himself as a magistrate judge, and then kicking in 2 interior doors at the man’s home; (3) in the courthouse, pointing a firearm at himself and stating to another magistrate judge, “I am not scared.  Are you all scared?”; (4) while on a local cable television show called “Night Talk,” (a) making derogatory remarks about the Chief Magistrate Judge and calling him “spineless,” (b) publicly disclosing that he had filed a complaint with the Commission against the Chief Magistrate Judge, and (c) exposing the identity of a confidential informant and displaying a photograph of the informant; (5) making a phone call to “Night Talk,” and, after initially trying to disguise his voice with multiple foreign accents, told the sheriff (who was being interviewed on the show) that he had “crapped himself’ and was a “spineless jelly spine;” and (6) refusing to work hours that had been assigned to him by the Chief Magistrate Judge.  Inquiry Concerning Peters, 715 S.E.2d 56 (Georgia 2011).
  • Based on agreed findings of facts, the Mississippi Supreme Court suspended a part-time judge for 30-days without pay, publicly reprimanded her, and fined her $500 for executing a felony arrest warrant for a client’s ex-husband based upon an affidavit submitted by her client.  Commission on Judicial Performance v. Bustin, 71 So. 3d 598 (Mississippi 2011).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for discussing a citation with the game warden who had issued it and unilaterally dismissing the case based on ex parte communications with the defendant and the fear of a potential lawsuit against the county.  Public Admonition of Cox (Texas State Commission on Judicial Conduct September 8, 2011).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for delegating to his law clerk responsibility for presiding over 2 hearings on name change petitions.  In the Matter of Yoder, Public Admonishment (West Virginia Judicial Investigation Commission September 2011).

Virtual National College on Judicial Conduct and Ethics

Registration is now open for the virtual National College on Judicial Conduct and Ethics on Thursday and Friday, October 28 and 29, 2021, from 12 to 3:30 EDT/11 to 2:30 CDT/10 to 1:30 MDT/9 to 12:30 PDT & MST.  Held by the Center for Judicial Ethics of the National Center for State Courts, the College will have three one-hour sessions each day presented via Zoom, with 15-minute breaks in between. The topics to be covered:

  • Determining the appropriate sanction in judicial discipline cases
  • Crossing the line and training to prevent it:  #CourtsToo
  • Abuse of the criminal contempt power and judicial discipline
  • When judges speak up
  • Lessons learned:  A decade plus of judges on social media

The schedule is below. 

  • The registration fee is $95 total for both dates, all sessions.  The fee is non-fundable.
  • If you cannot be present for all or part of the College, you can still register to gain access to a recording of the sessions after the College is over.  Only those who pre-register will have access to the recording.
  • If you are registering multiple people, you must register each attendee individually under their name and email address.
  • Attendees will receive two links, one for each day.  Each attendee’s Zoom links will be unique to them.  Please do not share your links with others.
  • You may not receive the email confirming your registration for up to 24 hours.  The email will come from akim@ncsc.org.  Please check your junk or spam folders.  If you have not received it in after 24 hours, please contact akim@ncsc.org.
  • Attendees will need to apply for continuing legal education certification in their state.

An abridged, remote version of the biennial College, the virtual College will provide a forum for judicial conduct commission members and staff, judges, judicial ethics advisory committees, and others to learn about professional standards for judges and current issues in judicial discipline.

Schedule

Thursday October 28
Determining the appropriate sanction in judicial discipline cases
12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
Examining recent cases, participants will “vote” on what sanctions they would have imposed in actual judicial discipline cases and then discuss what factors influenced their vote.  Moderators John Erlick, Former Superior Court Judge, King County, Washington; Former Member, Washington State Commission on Judicial Conduct • David Sachar, Executive Director, Arkansas Judicial Discipline & Disability.

Crossing the line and training to prevent it:  #CourtsToo
2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
When does a joke in the courthouse cross the line into a violation of the code of judicial conduct?  When is a judge responsible for a hostile work environment?  This session will answer these questions and more.  The first part will examine real life examples of sexual harassment by judges, including how humor can be offensive and perceived as unwelcome advances, discrimination, and/or harassment.  Relevant canons will also be discussed.  The second part will address preventative measures and sexual harassment training tailored to judges and court staff.  ModeratorsKimberly Vanover Riley, Partner, Montgomery Jonson LLP, Cincinnati, Ohio  •  Judge Erica Yew, Judge, Superior Court of California; Member, California Supreme Court Committee on Judicial Ethics Opinions  •  Konstantina Vagenas, Director/Chief Counsel, Access to Justice Initiatives, National Center for State Courts.

Friday October 29

Abuse of the criminal contempt power and judicial discipline
12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
Although courts and judicial conduct commissions are generally reluctant to second-guess a judge’s decision to control the courtroom through use of their criminal contempt power, given the liberty interests at stake, judges have been disciplined for over-reacting and for ignoring the procedures designed to ensure that citizens are not thrown in jail precipitously.  This session will consider when an appealable abuse of the contempt power may also constitute sanctionable judicial misconduct.  Participants will also discuss how judges can control the courtroom without using the contempt power.  Moderators:  Michelle Beaty, Special Counsel, Louisiana Judiciary Commission  •  Judge Louis Frank Dominguez, Presiding Judge, Surprise City Court; Chair, Arizona Commission on Judicial Conduct.

When judges speak up
1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
This session will strive to illuminate the gray area where off-the-bench judicial speech, the code of judicial conduct, and the First Amendment overlap when judges want to criticize court decisions, urge changes in the law, publicly comment on cases, or express their personal views on controversial issues in extra-judicial settings such as social media, law review articles, op-eds, bar association speeches, yard signs, bumper stickers, or t-shirts.  (Campaign speech will not be covered.)  ModeratorsRaymond McKoski, Retired Judge, 19th Judicial Circuit Court; Member, Illinois Judicial Ethics Committee • Robert Tembeckjian, Administrator and Counsel, New York State Commission on Judicial Conduct.

Lessons learned:  A decade plus of judges on social media
2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
The first judicial discipline case involving Facebook was in 2009.  The numerous cases since demonstrate that judges need more guidance on how the code of judicial conduct applies on-line.  This session will consider the ethical best practices for judges using social media.  ModeratorsJacqueline Habersham, Executive Director, Texas State Commission on Judicial Conduct  •  Cynthia Gray, Director, Center for Judicial Ethics, National Center for State Courts.

More Facebook fails

Based on the report of the Board of Professional Conduct, the Ohio Supreme Court suspended a judge for 6 months without pay for communicating about 4 cases pending before him with a litigant on Facebook Messenger and on the phone.  Disciplinary Counsel v. Winters (Ohio Supreme Court August 18, 2021).  The Court stayed the suspension conditioned on the judge completing at least 3 hours of continuing judicial education on ex parte communications or use of social media by judicial officers, refraining from further misconduct, and paying the costs of the proceedings.

In the 1980’s, the judge had been Keith Blumensaadt’s probation officer.  In 2017, the judge presided as a judge over Keith’s criminal case with the agreement of counsel following his disclosure that he knew Keith.  On June 27, based on a plea agreement, Keith pleaded guilty to a felony count of unlawful possession of dangerous ordnance, a felony count of attempted possession of weapons under disability, and a misdemeanor count of attempted unlawful possession of dangerous ordnance.  The judge sentenced him to time served on the 2 felony counts.  On the misdemeanor count, the judge sentenced him to 180 days in the county detention facility suspended on condition that he not enter Put-In-Bay Township for 1 year unless escorted by the county sheriff’s office to remove his personal belongings. 

Sometime after conclusion of the criminal case, the judge and Keith became “friends” on Facebook.

Between July 22 and December 19, 2019, the judge and Keith exchanged ex parte messages on Facebook messenger about 4 cases over which the judge was presiding:  a drug possession case against a defendant whom Keith claimed had sold heroin to his daughter; Keith’s custody case with his ex-wife; a case in which Keith’s father and brother had obtained protection orders against him; and a criminal case against the other driver in a car accident in which Keith had been injured.  During this time, they also discussed personal and professional matters in several phone conversations.  The judge did not disclose the ex parte communications in any of the cases.

(The Facebook messages had numerous grammatical, spelling, capitalization, and punctuation errors that are not corrected in the summary below.)

For example, in a message via Facebook Messenger, Keith told the judge that Alberto Mendez had sold heroin to Keith’s daughter and requested that the judge not give Mendez a “bond he can make.”  The judge arraigned Mendez and released him on a recognizance bond.  A few days later, Keith messaged the judge, “I see Al Mendez moved in are neighborhood on 14th street, I can’t wait to get out of here.”

On May 20, 2019, the judge finalized the divorce of Keith and Michelle Blumensaadt and granted custody of their minor son, Axel, to Michelle.  On August 30, in a message via Facebook Messenger, Keith advised the judge that Michelle had agreed to transfer custody of their son to Keith.  In a message to the judge on September 5, Keith stated:

I stopped to say hello today, and I have a funny story to tell you about my son Axel, anyway Axel keeps riding his bike down to the court house everyday and I said don’t be in the parking lot it’s a busy place, he said okay So yesterday I went looking for him and he was at the court house again, so I ask him why do you keep going to the court house, and he said to see the judge Bruce Winters so I can tell him I want to live with you, so I can go to school!  I said what?  He said well I heard you talking to mom and he is the judge that has to sign the paperwork so I can go to school Here, so I went to tell him I want to live with you so I can get in school next week, I just cried, because he’s so smart and determined to go to school and live with me.  Anyway I picked up indigent form today to file motion and will file it Monday.  So watch for a kid on a red bike who is tracking you.  I told him not to go down there but I think he’s not listening to that, and I explained that there is a procedure we have to do, to enroll him in school.  I thought you would get a laugh out[.]

The judge replied:  “Yes he is!  That’s funny.  I’ll look for him and for sure talk to him if I see him.  I like his attitude.😊”

Between September 6 and September 30, the judge and Keith exchanged several private messages that included information relevant to Keith’s pending pro se motion for change of parenting time over which the judge was presiding.

For example, on September 7, Keith sent the judge a copy of a criminal judgment entry against Michelle and stated, “Just had to send this to you, Michelle stabbed me with a pen in 2016 and was ordered to take her bipolar meds and was charged with domestic violence, but if you let her tell the story I’m the one who’s on meds.”  Later that same day, in a reply to Keith’s message, the judge stated, “Interesting!”

On September 9, in a message via Facebook Messenger, Keith invited the judge and his family to a private dinner hosted by his brother Bill where oysters, crab, lobster, and ribeye would be served, saying, “Your my guest if your interested.”  The judge replied, “I don’t know what my schedule is tomorrow I’ll be in touch.”  On September 10, the judge declined Keith’s offer, stating, “I guess I really shouldn’t since you have a case pending in my court.  Thanks for asking.  Let get this done. . . .  Before your personal injury case gets filed.😊”

On September 30, in a message via Facebook Messenger, Keith told the judge:

By the way Michelle got a little huffy yesterday about Axel, because he won’t go to her house with her, and I told her he’s scared she won’t bring him back,,, should I bring him to hearing he wants to come and tell magistrate he wants to live with me.  He starts throwing up when she tells him she’s coming to pick him up and has anxiety attracts, and says he’s not going.  I think she has caused axel to be in-fear of her taking him away ,, It’s not good there, but she doesn’t see it, because she believes her lies.

On the same day, Keith sent the judge another message:

It seems Michelle doesn’t want to go to hearing and had attorney send over a agreement to sign, I’m going to have it gone over and everything looks good, I just don’t trust her.  She knows what Axel is going to say in court and it’s not good, so she just wants to see things my way as I said she would, I new she would, she’s lied about everything.

On September 25, in a message via Facebook Messenger, Keith advised the judge that he and Michelle had reached an agreement that would be filed soon.  Keith’s message stated:

Axel is happy with it, because she [Michelle] had to visit him here in Port Clinton, he refuses to go to her house and I don’t blame him, thank you for everything, I don’t think she understand what she had done to Axel mindset on past actions,,.  I’m overlooking a lot of her actions for Axel, because at the end of the day she is his mother and I don’t want him to hate her and I don’t want to hurt her legally, she deserves it but it’s not who I am, its easy to life to be irresponsible, and vindictive but it’s harder to turn the other cheek and move on!

The judge replied to Keith:  “Glad you have it worked out.”

There were additional Facebook Messenger communications between the judge and Keith about the case.  The judge did not disclose any of the communications to Michelle or her attorney.

In 2016, Keith’s father and brother, Todd Sr. and Todd Jr., had obtained civil stalking protection orders that required Keith to stay at least 500 feet away from them.  The orders were in effect until May 2021.

On November, 2019, at 8:22 p.m., in a message via Facebook Messenger, Keith stated to the judge, “Hey I have a question about my mom, when she passes and that protective order, call me when you get a chance please!”  On the same day at 9:09 p.m., the judge called Keith and spoke to him for 44 minutes.  During this call, the judge advised Keith to file a motion requesting that the protection orders be temporarily modified to allow Keith to attend his mother’s funeral even though Todd Sr. and Todd Jr. would also be present.  Subsequently, the judge and Keith exchanged numerous messages via Facebook Messenger and spoke on the phone about the declining health and subsequent death of Keith’s mother and modification of the protection orders.  The judge did not disclose any of the communications to Todd Sr., Todd Jr., or any of the attorneys.

For example, on December 18, at 4:48 p.m., in a message via Facebook Messenger, Keith asked the judge, “Any word on what’s going to happen with funeral[?]”  At 9:25 p.m., the judge replied, “A deputy will accompany you.  No need for consent, no need for a hearing and the Sheriff is onboard.”  Keith immediately replied, “You sure[?]  Thank you Bruce.”

On July 27, Keith was injured in a car accident.  The driver of the other car was Daniel Fishburn.  On September 9, Fishburn was charged with operating while under the influence, failing to maintain space between moving vehicles, and aggravated vehicular assault.  The judge presided over Fishburn’s criminal case.

Between September 9 and January 25, 2020, Keith and the judge exchanged multiple messages concerning Keith’s injuries and Fishburn’s criminal case.  The judge never disclosed the ex parte communications in the criminal case.

For example, on October 17, in a message via Facebook Messenger, Keith told the judge:

Then this guy who hit me wants to plead no contest to ovi felony, not a chance, he doesn’t want to admit guilty so he can get out of liability, over my dead body, [the prosecutor] should no better, I’m waiting to hear what him and [Keith’s attorney] have figured out on that yet, he blows twice over legal limit and admitted to drinking, I don’t think he has a change at jury trial, he’s been offered 1 ovi felony and 1 unasheered clear distance misdemeanor and diversion program, he should be happy with no jail time, but no, he wants his cake and eat it to.

On December 17, the judge granted the joint request for Fishburn to be admitted to the county prosecutor’s pretrial diversion program.  The judge set the matter for a plea change and diversion hearing on January 15, 2020.

On January 15, before Fishburn’s plea and diversion hearing, Keith said to the judge:

Bruce good morning.  I want you know, that I understand being in your position as a judge in a small community is a very hard job, trying to make everyone’s needs just, being put between difficult situations, but at the end of the day I still respect you and don’t dislike you in any way.  I’ve been in a lot of hard situations, and at the end of the day I don’t hold any remorse!  I still think you are great guy and I hope my case doesn’t change anything between us,, it’s a hard spot and it bothers me personally everyday, because I consider you a Good person!  And friend!!  It’s definitely a awkward situation my case, but I still like you, I can tell you don’t have conversations with me anymore and I understand!!!  I don’t have it in me, to not love and respect a good guy as yourself!  I’ve said to much, this dam case of mine has caused such problems in my life and don’t want my appeal to cause hard feeling!!  Dame I hate this whole Pib thing.

* * *
The Texas State Commission on Judicial Conduct publicly warned a judge for posting on Facebook support for judicial candidates, opposition to candidates for other offices, a negative comment about Scientology, and a meme about border crossings.  Public Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).  The Commission also ordered the judge to obtain 2 hours of instruction on racial sensitivity with a mentor.

During the 2018 election cycle, when she was not running, the judge made several posts to her Facebook page lauding the experience and/or qualifications of certain candidates for judicial office, defending those candidates against political attacks from others, or opposing the candidates’ opponents.

The judge posted about the campaign of Judge James Munford, including defending him against accusations that he was a “gun grabber” and a “RINO” and had abused his first wife decades before.  The judge also made negative comments about Judge Munford’s opponent’s voting record and urged the public to ignore the political attacks against Munford and to vote for him because of his superior experience and qualifications.

The judge also posted about the campaign of Judge Cynthia Terry, including posting about attending a “Meet and Greet Luncheon” hosted by Judge Terry, “liking” a post about the event, and sharing screenshots of Judge Terry’s campaign flyers.

The judge also promoted the campaign of Judge Alex Kim on her Facebook page, including sharing Judge Kim’s campaign materials and insinuating in a lengthy post that she had unique knowledge that the Kim’s opponent was unsuited for the position because he left “a baby in danger.”

In addition, the judge posted to Facebook the comment, “Robert Francis O’Rourke.  #fakemexican” about then-candidate for U.S. Senate, Beto O’Rourke.  The judge also remarked “Finally Gone!!!” about the loss in the primaries of State Representative Jason Vallalba and later responded with 2 laughing emojis to the comment, “I’m sure [Vallalba] will find a job, there are lots of local opportunities in both the hotel and food service industry.” 

The judge shared a link on Facebook to an article titled “Scientologist’s Facilities Closed After Police Find People Held Prisoner Inside,” with her comment, “Scientology is not a church.  It is an evil scam.”

The judge posted to her Facebook page a meme with an image of the Looney Tune character Wile E. Coyote reading a book with the title, “How to carry kids across the border . . . ,” followed by an image of Dora the Explorer, a Hispanic cartoon character, tied to a rocket and Wile E. Coyote attempting to light the fuse.  The judge removed the meme from her Facebook page soon afterwards and posted a retraction.

During her appearance before the Commission, the judge acknowledged that posting these materials on her personal Facebook page was inappropriate and stated that she regretted doing so.  The judge represented to the Commission that she has deactivated her personal Facebook page and will no longer participate in social media although she still maintains a campaign Facebook page that is run by a political consultant.

* * *

A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

Throwback Thursday

20 years ago this month:

  • The Arkansas Commission on Judicial Discipline & Disability publicly admonished a judge who (1) stated to a young female defendant in a crowded courtroom “Your behavior is that of a common crack whore;” and (2) stated to another female defendant charged with prostitution, “How is business?  Is business good these days?” and “There is no reason to be ashamed.  You were not ashamed jumping in and out of trucks having sex with men.  The men in this courtroom do not want to have sex with you.” Letter of Admonishment of Rainey (Arkansas Commission on Judicial Discipline & Disability September 21, 2001).
  • Approving a joint recommendation based on a stipulation of facts, the Illinois Courts Commission publicly reprimanded a judge who had pled guilty of reckless driving and whose drivers license had been suspended for refusing to take a breathalyzer test.  In re Racculgla, Order (Illinois Courts Commission September 7, 2001).
  • Approving a settlement, the Indiana Supreme Court publicly reprimanded and admonished a judge for a television campaign ad that stated he had kept his promise, “to send more child molesters to jail . . . burglars to jail . . . drug dealers to jail . . . .”  In the Matter of Spencer, 759 N.E.2d 1064 (Indiana 2001).
  • Approving a joint statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court suspended a judge without pay for 15 days for (1) permitting the practice of the clerk or her employees of affixing the judge’s signature stamp to protective orders when petitions were filed and before the judge reviewed them, which led to the appearance that the judge granted his father a protective order; (2) granting several citizens emergency protective orders against a utility despite the property interests of family members in the area; (3) after granting an automatic change of judge in one case and disqualifying himself in several others, sua sponte issuing orders of clarification extending the effectiveness of the emergency protective orders against the utility; and (4) entering orders in another case involving the utility, after having disqualified himself.  In the Matter of Funke, 757 N.E.2d 1013 (Indiana 2001).
  • Granting a joint motion, the Mississippi Supreme Court publicly reprimanded a judge for finding a defendant guilty of disturbing the peace and simple assault based on affidavits without testimony and without giving the defendant an opportunity to defend herself.  Commission on Judicial Performance v. Wells, 794 So. 2d 1030 (Mississippi 2001).

Election meddling

In unrelated cases, 3 judicial officers were recently sanctioned for interfering in judicial elections in which they were not candidates.

In In re Hughes, 319 So. 3d 839 (Louisiana 2021), accepting a motion for consent discipline, the Louisiana Supreme Court publicly censured one of its members for a meeting with a campaign worker for a candidate for another seat on the Court that interfered with or could have interfered with the relationship between the candidate and the campaign worker.

In fall 2019, there was a run-off election between then-Judge William Crain and then-Judge Hans Liljeberg for Louisiana Supreme Court District 1.  Leading up to the election, Justice Hughes received several telephone calls about the amounts being paid to workers on the Crain campaign.  He reviewed finance reports filed by Crain’s campaign and recognized some of the names on the reports, including Johnny Blount, a former city councilman.

Although he had not seen Blount for several years, the justice went to Blount’s home to discuss the race and specifically the amount of money being paid to campaign workers for the Crain campaign.  During their conversation, the judge told Blount that he believed that Blount could receive more money for his services from the Liljeberg campaign.  The justice left his card with Blount.  Blount got the impression from their conversation that the justice was attempting to get him to change his support from Judge Crain to Judge Liljeberg.

In an affidavit after the meeting, Blount attested that the justice had offered him $5,000 to support the Liljeberg campaign.  In early November, several news articles described Blount’s affidavit and “reported negatively on respondent’s conversation with Mr. Blount and portrayed the judiciary in a negative light.”

Crain won the election.  Justice Crain and Justice Hughes recused themselves from the discipline case.

The Commission and the justice stipulated that his discussion with Blount interfered with “and/or had the potential to interfere with the working relationship between a judicial candidate and one of his campaign workers during a highly contested campaign for a seat on the same Court on which respondent serves.”  However, the parties’ joint submission stated that Blount’s allegation that the justice offered him $5,000 was “unsubstantiated.”

Although the parties stipulated that the justice had intended the conversation to be private, the Court concluded that, “given the unusual nature of the conversation,” the justice’s status as a member of the Court that was the subject of the election, and “the contentious nature of the campaign,” the justice should have foreseen that Blount might publicize their conversation.

The parties stipulated that the justice had failed to uphold the integrity and independence of the judiciary, to avoid impropriety and the appearance of impropriety, to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, to maintain the dignity appropriate to judicial office, and to refrain from unauthorized partisan political activity.

In mitigation, the Court noted that the justice was not acting in his official capacity, believed his conversation was private, expressed remorse, cooperated during the disciplinary proceedings, and accepted responsibility.  In aggravation, the Court emphasized the justice’s position as a member of the Court and his lengthy judicial experience.  The Court stressed “the unique nature of this case,” noting that the justice “is the second most senior justice on this Court, which is constitutionally charged with regulating the judiciary.”

* * *
As “persuasive authority” that a public censure was the appropriate sanction, the Louisiana Supreme Court cited the Florida Supreme Court’s public reprimand of a judge for attempting to dissuade a judicial candidate from running against an incumbent judge and to either run against a different incumbent judge or not to run at all.  Inquiry Concerning Howard, 317 So. 3d 1072 (Florida 2021).  The decision was based on a stipulation.

In early April 2019, the husband of a judicial candidate running against a recently appointed judge was told that he should contact Judge Howard so that Judge Howard could explain why his wife should run against a different judge in the same county who was also up for election in 2020.  The judge’s personal phone number was provided to the candidate’s husband.  When the candidate’s husband called the judge, the judge suggested meeting with the candidate and her husband at an event for the local Boy Scouts.  The candidate was unable to attend, but her husband did. 

At the event, the judge explained that the candidate’s current incumbent opponent enjoyed strong support and recommended that the candidate change races to target a second incumbent.  The judge said that he would like to meet and speak with the candidate herself.

On April 17, the judge met with the candidate and her campaign treasurer/law partner at their law office for 20 to 50 minutes.  The judge asked the candidate why she was running for judge, and, after she responded, he told her that her reasons were not good enough.  The judge repeatedly attempted to persuade the candidate not to run against the first incumbent, whom the judge thought was doing a good job and enjoyed the support of the community, and to switch her candidacy to run against the second incumbent, whom the judge perceived as weaker and more vulnerable.  Alternatively, the judge suggested that the candidate drop her candidacy completely and seek appointment to some future seat through the judicial nominating commission process.  When the candidate asked if the judge would be willing to provide a recommendation if the nominating commission contacted him about her, the judge stated that he does not do that.

The candidate did not relinquish her campaign against the first incumbent.

In mitigation, the Commission noted that the judge accepted full responsibility, cooperated throughout the investigation, and acknowledged that his actions were inappropriate and should not have occurred.  The Commission further noted that the judge has no prior discipline as a judge since his appointment in 2000 and no disciplinary history with The Florida Bar.

Although it approved the stipulation, the Court did not agree with the Commission’s conclusion that the judge’s conduct constituted a public endorsement or opposition to judicial candidates.  The Court did approve the Commission’s other findings that the judge’s conduct “failed to uphold the integrity and independence of the judiciary, “created the appearance of impropriety,” “failed to promote public confidence in the impartiality of the judiciary,” and “constituted an improper use of the prestige of his position in favor” of the private interest of the first incumbent.

* * *
Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for (1) contacting individuals to inform them that he was supporting the incumbent judge’s opponent in a judicial election and, in some instances, requesting that the community member support his favored candidate and (2) failing to officially designate a campaign account and treasurer with the Division of Elections before receiving campaign contributions or issuing any funds.  Inquiry Concerning Cupp, 316 So. 3d 675 (Florida 2021).

In the lead up to the 2020 election for Hendry County Court judge, the judge began contacting individuals he knew in the county to inform them that he was supporting the incumbent judge’s opponent because he had heard concerns about the incumbent.  The judge’s preference for the incumbent’s opponent eventually became widely known in the community.  The judge admits that his “unsolicited contact with many influential members of the community, during which he expressed his preference for a certain candidate in a judicial race, and in some instances requested that the community member support his favored candidate” was inappropriate, violated the code of judicial conduct, and “damaged the integrity of the judiciary, by creating the appearance that he was interceding in a judicial election.

Throwback Thursday

25 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a part-time judge and fined him $4,933 for failing to resign as a judge after qualifying to run for the board of supervisors.  Commission on Judicial Performance v. Haltom, 681 So. 2d 1332 (Mississippi 1996).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for failing to timely remit court funds to the state comptroller.  In the Matter of Erway, Determination (New York State Commission on Judicial Conduct September 17, 1996).
  • The New York State Commission on Judicial Conduct removed a judge for failing to remit court funds promptly to the state comptroller, failing to respond to 3 letters sent by staff counsel, and failing to give testimony although she was directed to do so by the letter sent certified mail by staff counsel.  In the Matter of Carney, Determination (New York State Commission on Judicial Conduct September 19, 1996).
  • The West Virginia Judicial Investigation Commission publicly admonished a magistrate for using a court copy machine to make copies of an announcement of a Democrat picnic.  In the Matter of Hull, Public Admonishment (West Virginia Judicial Investigation Commission September 3, 1996).
  • The West Virginia Judicial Investigation Commission publicly admonished a candidate for magistrate for attending a Democratic Executive Committee meeting and voting as proxy for another member of the committee.  In the Matter of Eplin, Public Admonishment (West Virginia Judicial Investigation Commission September 10, 1996).
  • The West Virginia Judicial Investigation Commission publicly admonished a justice of the Supreme Court of Appeals for a campaign letter on a facsimile of letterhead used by the justice in his judicial capacity.  In the Matter of Albright, Public Admonishment (West Virginia Judicial Investigation Commission September 23, 1996).

Summer Judicial Conduct Reporter

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

  • Judicial discipline for abuse of the contempt power
  • Remedy for an ex parte communication
  • Recent cases
    • Judicial touching
      • In the Matter of Cole (West Virginia Commission 2021)
      • In re Wilson (Texas Special Court of Review 2021)
    • “Salty”
      • In the Matter of Cullins, 481 P.3d 774 (Kansas 2021)

The Judicial Conduct Reporter is published electronically, and an index and current and past issues of the Reporter are available on-line. Anyone can sign up to receive notice when a new issue is available.

Throwback Thursday

5 years ago this month:

  • Based on an agreement, the Alabama Court of the Judiciary suspended a judge for 6 months without pay for beginning a Facebook relationship with a woman whom he had met in his official capacity and exchanging sexually explicit messages and photos with her, often during office hours and from the court’s offices.  In the Matter of Archer, Final judgment (Alabama Court of the Judiciary August 8, 2016).  
  • Based on an agreement and stipulation, the Alabama Court of the Judiciary ordered a judge to retire immediately and never serve in judicial office again for failing to disqualify herself from the probate of her father’s estate in which she and her siblings were heirs; engaging in ex parte communications about the case with others, including her siblings; obtaining waivers outside the court and outside the presence of all parties or their attorneys; in a personal letter to a 3rd party, misusing her title to give extra weight to a request about a debt owned by an heir’s estate; notarizing documents that she knew or should have known would be filed in a proceeding before her; directing the administratrix (her sister) about who should and should not be included as heirs; directing her attorney to request that a settlement check in a class action case that was an asset in the estate be sent to the probate court office; inserting her personal knowledge of facts and family history into the case; misusing her status as a judge to preempt tasks normally reserved for an estate’s personal representative; and co-mingling her status as party and judge.  In the Matter of Isaac, Final judgment (Alabama Court of the Judiciary August 8, 2016).
  • Accepting the recommendation and findings of the Commission on Judicial Conduct based on the judge’s admission of culpability, the Alaska Supreme Court publicly censured a judge for 5 statements he made in the courtroom.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016).
  • The Illinois Courts Commission publicly censured a judge for deceiving her mortgage lender by making several misrepresentations in her mortgage application that caused the lender to believe she occupied the property as her primary residence when, in fact, the judge resided at another property and had no intention of establishing residence at the property she was re-financing.  In re Santiago, Order (Illinois Courts Commission August 18, 2016).
  • Based on a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge who had been arrested and convicted for operating while intoxicated, endangering a person; had asked a police officer to “just take [him] home and forget about the drinking and driving;” and told the officer that he was a senior judge for the Court of Appeals.  In the Matter of Garrard, 56 N.E.3d 24 (Indiana 2016).
  • Based on an agreement, the Kentucky Judicial Conduct Commission suspended a judge for 90 days without pay for (1) criticizing the victims in a criminal case during a sentencing hearing and on Facebook while the defendant’s probation was still pending; (2) comments on Facebook and in a presentation to the Louisville Bar Association that criticized the county commonwealth attorney and accused him of advocating for all-white jury panels, that criticized the public defender and criminal defense attorneys for not publicly supporting him in his dispute with the commonwealth attorney, and that discussed the motion to certify the law filed on behalf of the commonwealth attorney; and (3) criticizing a court of appeals decision in a public statement.  In re Stevens, Agreed order of suspension (Kentucky Judicial Conduct Commission August 8, 2016).
  • Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for discussing his son’s criminal case with another judge; the judge also agreed to complete a course at the National Judicial College.  In the Matter of Kalleres, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline August 23, 2016).
  • Based on a stipulation and consent, the Nevada Commission on Judicial Discipline publicly reprimanded a former hearing master for unprofessional conduct in a hearing about a bench warrant.  In the Matter of Beller, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline August 23, 2016).
  • Based on a stipulation and consent to discipline, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for (1) informing the other judge on his court that he would not abide by an agreement for her to become chief judge based in part on his belief that the mayor wanted him to continue as chief judge; (2) taking positions or making decisions regarding the administration of the court based on his perception of what the mayor or city administration wanted, not on the best interests of the court (or allowing it to appear that he has done so); (3) failing to cooperate with the other judge regarding administrative matters and refusing to meet or speak with her or to respond to her correspondence; and (4) failing to report to the Commission the other judge’s treatment of court staff and deputies from the city attorney’s office and her improper dismissal of valid warrants.  In the Matter of Hoeffgen, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline August 23, 2016).
  • Based on a stipulation and consent to discipline, the Nevada Commission on Judicial Discipline suspended a judge for 3 months without pay and ordered that she not seek re-election for (1) her treatment of court staff; (2) her handling of cases, including amending or dismissing charges sua sponte; and (3) her improper interactions with and comments about deputies from the city attorney’s office; the judge also agreed to write apologies to 3 of the complainants and to submit to a fitness for duty exam.  In the Matter of Ramsey, Stipulation and consent to discipline (Nevada Commission on Judicial Discipline August 23, 2016).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) making condescending and inappropriate remarks about a teenage sexual assault victim; (2) becoming angry and making loud and derogatory statements to the district attorney in another case for suggesting that the judge place a case ahead of another case that had been pending longer and challenging the judge’s observation about moving cases expeditiously; and (3) making disparaging and provocative comments in a third case regarding the family relationship between the county district attorney and a potential witness.  In the Matter of Hafner, Determination (New York State Commission on Judicial Conduct August 29, 2016).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a magistrate for hearing matters involving the sheriff’s department even though her husband was the elected sheriff. In the Matter of Underwood, 790 S.E.2d 761 (South Carolina 2016).

COVID-19 concerns

3 more judges have been publicly sanctioned for their conduct related to the COVID-19 pandemic, bringing the total to 7.

Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a magistrate for 6 months for his disruptive behavior during a meeting about the court’s COVID-19 safety plan, his confrontations with another magistrate and the Chief Magistrate after the meeting, and his statement to a clerk about the Chief Magistrate’s complaint to Disciplinary Counsel.  In the Matter of Rivers (South Carolina Supreme Court August 11, 2021).  The magistrate recognized that “his concerns regarding Covid-19 do not excuse his behavior and that his disruptive behavior reflected poorly on his professional judgment and temperament.”  The Court also ordered that the magistrate complete at least 15 hours of anger management counseling and pay the costs of the investigation

On May 14, 2020, the Florence County magistrates and clerks met to discuss the COVID-19 safety plan for re-opening the magistrates’ courts to the public consistent with the Supreme Court’s order on evictions and foreclosures dated April 30, 2020.  During the meeting, Magistrate Rivers repeatedly asked questions, spoke in a loud voice, and challenged the Chief Magistrate’s plan for reopening.  As the meeting continued, the magistrate “became visibly agitated,” read aloud parts of the April 30 order, and challenged the Chief Magistrate’s implementation plan.  Another magistrate told him to follow the Chief Magistrate’s direction.

Because of the magistrate’s “continued disruptions, the Chief Magistrate apologized to the other meeting attendees and adjourned the meeting prematurely without completing the agenda.”

After the meeting, Magistrate Rivers left the room and confronted the magistrate who had suggested he follow the Chief Magistrate’s directions; he expressed his displeasure and told the other magistrate not to disrespect him again.  The magistrate then returned to the meeting room, startling the Chief Magistrate as she turned to leave the room.  Magistrate Rivers hit his hands together and loudly requested that the Chief Magistrate show him respect in the future.  The Chief Magistrate became concerned for her physical safety.  The next day, the Chief Magistrate reported the incident to the Office of Disciplinary Counsel.

Approximately a month later, Magistrate Rivers told a county clerk that the Chief Magistrate “does not know who she is dealing with and she will regret doing this,” referring to the complaint.

***

The Arizona Commission on Judicial Conduct publicly reprimanded a first judge for speaking sharply to court staff when she was disconnected from a Zoom hearing and yelling at court staff when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case; the Commission also ordered the judge to complete the courses “Leadership for Judges” and “Mindfulness for Judges” offered by the National Judicial College.  Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021).

On September 11, 2020, the judge was presiding over a dependency matter that was conducted remotely via Zoom.  During the hearing, the judge lost her connection to Zoom.  A court clerk, S.H., advised the attorneys and parties that the judge had been disconnected, and the hearing was paused while the judge attempted to get reconnected.  When she rejoined the hearing, the judge stated sharply, “I am incredibly unhappy because this is going to be a pain.  So, I do not understand why I was thrown off Zoom on my laptop, my iPad, and my phone.”  The attorneys and litigants heard her comments, and the clerk felt “embarrassed and belittled.”

On October 16, the judge became upset that parties and lawyers for a scheduled matter had been allowed into the courtroom prior to a designated time and yelled at the clerk, S.H.  After learning that it was another court employee who had allowed the parties to enter the courtroom, the judge went to speak to the elected clerk of the court, and, as she did, her office door slammed shut in front of other clerks and the public.  The judge denied deliberately slamming the door, but other court employees believed that she had slammed the door intentionally.  Court employees also overhead the judge yelling at the elected court clerk about the matter.

In interviews with the Commission’s investigator, 6 court employees confirmed these incidents and also confirmed a pattern of the judge “yelling or using an angry, rapid-fire tone with individuals during the time she has been on the bench” that made them feel disrespected and that created tension in the court.  However, the employees also “reported a recent improvement in the judge’s demeanor.”  The judge disagreed with some of the employees’ perceptions of her conduct but stated that she had “reevaluated my interactions with staff and other elected officials, as well as my overall demeanor with the goal of avoiding any further misunderstandings or hurt feelings.”

***

The Arizona Commission publicly reprimanded a second judge for judge repeatedly failing to wear a face covering when interacting with the public and staff in court facilities as required by administrative orders issued by the Arizona Supreme Court and the Maricopa County Superior Court in response to the COVID-19 pandemic, failing to require individuals in his courtroom to abide by administrative orders regarding the use of face coverings, and appearing “to publicly denigrate those orders.”  Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021).  The complaint had been filed by a presiding judge.

The Commission found that the judge’s failure “caused some court personnel to refuse to enter his courtroom and led to distress among court employees.”  He persisted, “despite counseling and admonitions by two presiding judges.”  The judge was ordered to work only in the courtroom or his office but also “violated that directive, resulting in an order banning him from the courthouse entirely, requiring judges pro tem to preside over matters that could not be handled remotely.”  The Commission found that the judge’s “conduct needlessly consumed judicial time and resources, including an internal investigation, witness interviews, and repeated interventions by two presiding judges,” rejecting his characterization of his conduct as “[s]poradic human omissions.”

The judge also refused to regularly review his court emails, explaining that he opens court emails “maybe once a month.”  The Commission noted that “important court business is conducted via email, particularly during the time period at issue here, when pandemic-related communications and orders were commonplace” and stated that his practice was inconsistent with the judge’s obligation to “cooperate with other judges and court officials in the administration of court business.”

***

4 other judges have previously been publicly sanctioned for conduct related to the COVID-19 pandemic.  In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for, in addition to other misconduct, displaying 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 effect); Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand for stating, “the Grand Wizard of our Supreme Court said we have to wear these masks”); Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand for failing to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commenting that he wished the chief justice “would win an award so that the COVID-19 mandates” would end); In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021) (reprimand for, in addition to other misconduct, declining to determine who was attempting to appear at the end of a calendar via Zoom).

Throwback Thursday

10 years ago this month:

  • Based on a stipulated resolution, the Arizona Supreme Court publicly censured a former judge for (1) hearing cases involving an attorney with whom he had an intimate relationship and (2) engaging in unwanted sexual conduct toward an assistant public defender and retaliating against her when she rejected his advances; the Court also permanently enjoined him from serving as a judicial officer in Arizona and suspended him from the practice of law in Arizona for 2 years.  In the Matter of Abrams, 257 P.3d 167 (Arizona 2011).
  • The California Commission on Judicial Performance publicly admonished a judge for revoking a criminal defendant’s pro per status, speaking harshly to the defendant, repeatedly stating that she did not believe him, grilling him on cases he had cited in his motion, and stating 3 times that he was lying.  Public Admonishment of Comparet-Cassani (California Commission on Judicial Performance August 16, 2011).
  • Based on an agreed statement of facts, the Mississippi Supreme Court suspended a judge for 270 days without pay and publicly reprimanded him for interfering with the prosecution of a defendant charged in a crime in which a relative of the judge was the victim and making statements in open court that encouraged others to engage in vigilante justice.  Commission on Judicial Performance v. McGee, 71 So. 3d 578 (Mississippi 2011).
  • Based on a stipulation, the New Hampshire Judicial Conduct Committee publicly reprimanded a part-time judge for angrily confronting a man who was putting up signs opposing his brother’s gubernatorial candidacy and contacting an attorney who was active in politics about the incident.  Stephen, Reprimand (New Hampshire Judicial Conduct Committee August 25, 2011).
  • Adopting in part the presentment of the Advisory Committee on Judicial Conduct, which the judge had accepted, the New Jersey Supreme Court publicly censured a retired judge for failing to recuse from a case based on his relationship with a central witness and then appearing twice in the back of another judge’s courtroom during the trial after recusing himself.  In re Perskie, 24 A.3d 277 (New Jersey 2011).
  • With the judge’s consent, the North Carolina Judicial Standards Commission publicly reprimanded a judge for entering orders striking 5 convictions at the ex parte request of an attorney who represented that the outgoing district attorney had approved the relief.  Public Reprimand of Ammons (North Carolina Judicial Standards Commission August 4, 2011).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 30 days without pay for receiving supplemental payments from the police department who prosecuted cases before her.  In the Matter of McKinney, 714 S.E.2d 284 (South Carolina 2011).