Fall issue of Judicial Conduct Reporter published

The fall issue of the Judicial Conduct Reporter has been published and is available on-line.  It has articles on:

  • Consensual sexual relationships between judges and court staff
  • Pornography at the courthouse
  • California Commission mentorship program
  • Vouching for pardon, parole, or clemency
  • Recent cases
  • Neighbor dispute (In re Calvert, Wisconsin)
  • Soliciting speaking engagements (In re Steigman, Illinois)
  • Project promotion (In re Roach, Texas)
  • Friendship and favors (In the Matter of Johanningsmeier, Indiana)
  • Another Facebook fail (In re Matter Concerning Gianquinto, California)

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

10 years ago this month:

  • The Arkansas Discipline & Disability Commission publicly reprimanded a judge for failing to promptly enter an order and to accurately calculate the time that the case had been ready for adjudication. Letter of Reprimand (Simes) (Arkansas Discipline & Disability Commission November 21, 2008).
  • The Arkansas Discipline and Disability Commission publicly reprimanded a judge for failing to promptly decide several matters and to accurately reflect the time the matters had been ready for adjudication, failing to report 7 cases that had been pending for more than 90 days as required by an administrative order, and several lapses of demeanor while on the bench. Letter of Reprimand (McGowan) (Arkansas Discipline and Disability Commission November 21, 2008).
  • Pursuant to a stipulation, the California Commission on Judicial Performance publicly admonished a former judge for (1) failing to be patient, dignified, and courteous with the parties and lawyers and becoming embroiled in a matter and (2) presiding over a bench trial in consolidated unlawful detainer cases while he was a defendant in a lawsuit in which tenants of apartment units he owned raised a similar issue. In the Matter Concerning Watson, Decision and Order (California Commission on Judicial Performance November 6, 2008).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) improperly advancing a trial date without notice to, or the consent of, the attorney assigned to the case; (2) improperly relieving the public defender and appointing new counsel for the defendants in several cases; and (3) making discourteous and disparaging remarks to attorneys in 3 cases. In the Matter Concerning McBride, Decision and Order (California Commission on Judicial Performance November 18, 2008).
  • Accepting a statement of circumstances and agreement for discipline, the Indiana Supreme Court suspended a judge for 3 days without pay for disrupting a sentencing hearing before another judge and confronting the defendant’s family. In the Matter of Scheibenberger, 899 N.E.2d 649 (Indiana 2008).
  • Based on a judge’s admission of some of the allegations in a formal statement of charges and his statement that he would not contest other allegations, the Nevada Commission on Judicial Discipline removed the judge for (1) a sexual affair with a court employee, ensuring the employee was paid when she was absent from work attending their sexual trysts, allowing her to work “flex” hours even though the chief district judge had prohibited such an arrangement, retaliating after she ended the affair, attempting to entice her to return to work for him in exchange for not pursuing her office of diversity complaint, violating instructions not to contact her, and destroying pictures that he should have known would be important after being contacted by the Commission; (2) sexual comments about or to court employees, his ex-wife, a fellow judge, and a female attorney; (3) inappropriate references to the race and ethnicity of employees; and (4) insulting his former law clerk. In the Matter of Del Vecchio, Findings of Fact, Conclusions of Law, and Imposition of Discipline (Nevada Commission on Judicial Discipline November 6, 2008).
  • Based on an agreed statement of facts and argument on the issue of sanction, the New York State Commission on Judicial Conduct publicly censured a judge for (1) permitting her co-judge’s law partners and associates to appear before her and (2) failing to disqualify from cases in which her personal attorney appeared. In the Matter of Lehmann, Determination (New York State Commission on Judicial Conduct November 10, 2008).
  • Based upon the agreed facts and argument on the issue of sanction, the New York State Commission on Judicial Conduct publicly admonished a judge for permitting his co-judge’s law partners to appear before him. In the Matter of Pelella, Determination (New York State Commission on Judicial Conduct November 10, 2008).

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to de-escalate a contentious hearing in an eviction case, raising his own voice toward the landlord, and presiding over a request for a harassment injunction against the landlord by one of the tenants. Delaney, Order (Arizona Commission on Judicial Conduct September 18, 2018).
  • The California Commission on Judicial Performance publicly admonished a judge for his practice of delegating his responsibility to conduct case management conferences to his court clerk. Public Admonishment Public Admonishment of Hiroshige (California Commission on Judicial Performance October 24, 2018).
  • As recommended by the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for campaign statements posted on her Facebook page and in an e-mail implying that her opponent was unfit for judicial office because he was a criminal defense attorney. Inquiry Concerning Santino (Florida Supreme Court October 19, 2018).
  • The Nevada Commission on Judicial Discipline publicly reprimanded a former judge for her campaign’s posting of a photoshopped picture of herself and an actor on her campaign Facebook page, misleading the public into believing that Dwayne “the Rock” Johnson had endorsed her re-election, and for commenting on the post. In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018).
  • Granting the Judicial Standards Commission’s petition to accept a stipulation, the New Mexico Supreme Court ordered the permanent resignation of a judge; the Commission had filed a notice of formal proceedings alleging that the judge had driven his personal vehicle after consuming alcoholic beverages at a Super Bowl party in February 2018, had told a state police officer he was a municipal judge while the officer was administering field sobriety tests, and had asked a municipal police officer, whom he also knew was a municipal judge, to help him as the state police officer was escorting him to his vehicle. In the Matter of Dominguez, Order (New Mexico Supreme Court October 29, 2018).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) her conviction for driving while intoxicated; (2) being discourteous and seeking preferred treatment from the arresting officers; (3) violating the terms of her conditional discharge by ignoring orders of the court and leaving the country for an extended vacation without notice to the court or her lawyer, resulting in the revocation of her conditional discharge; (4) failing to disqualify herself from the arraignment of a former client and attempting to have his case transferred in a manner that she thought might benefit him; and (5) making discourteous, insensitive, and undignified comments before counsel and litigants in court. In the Matter of Astacio, Opinion (New York Court of Appeals October 16, 2018).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) on numerous occasions, acting impatiently, raising his voice, and making demeaning and insulting remarks, often in open court; (2) twice striking witness testimony and dismissing petitions for insufficient proof as a result of counsel’s reflexive use of the word “okay;” (3) awarding counsel fees without providing an opportunity to be heard; and (4) failing to cooperate with the Commission. In the Matter of O’Connor, Opinion (New York Court of Appeals October 16, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a matter involving a former non-lawyer judge who had resigned after the Commission apprised her that it was investigating a complaint that she had interjected herself into a pending custody proceeding by criticizing one of the parties in an e-mail to the court, identifying herself as a judge, and lending the prestige of judicial office to advance a private interest. In the Matter of Crofoot, Decision and order (New York State Commission on Judicial Conduct October 26, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a matter involving a former non-lawyer judge who had resigned after the Commission had apprised him that it was investigating a complaint that, in a landlord-tenant matter, he had ordered the eviction of the tenants without conducting a hearing or affording them a full opportunity to be heard. In the Matter of Lustyik, Decision and order (New York State Commission on Judicial Conduct October 26, 2018).
  • Adopting the recommendation of the Judicial Standards Commission based on stipulations, the North Carolina Supreme Court suspended a judge without pay for 30 days for failing for more than 5 years to rule on a motion for permanent child support. In re Chapman (North Carolina Supreme Court October 26, 2018).
  • Based on stipulations of fact, misconduct, and aggravating and mitigating factors and a joint recommendation, the Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months for failing to accurately report his work hours and leave on his time card; the suspension was stayed on the condition that he engage in no further misconduct. Disciplinary Counsel v. Dunn (Ohio Supreme Court October 24, 2018).

 

Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly censured a judge for failing to enter a decision in a case for over 3 years and failing to cooperate with the Commission. In the Matter of McKimm, Final Decision and Order (Arkansas Judicial Discipline & Disability Commission November 24, 1998).

 

More campaign Facebook fails

The Nevada Commission on Judicial Discipline recently reminded judicial candidates that “campaign-related social media platforms, such as Facebook, maintained by a campaign committee or others, do not insulate them from the strictures of the Code.”  In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018).  In that case, the Commission publicly reprimanded a former judge for an image that her campaign manager had posted on Facebook that showed the judge in her judicial robe photoshopped next to the actor Dwayne Johnson, known as the Rock.  The caption read, “It just makes sense:  Re-Elect Judge Heidi Almase.”  Later that evening, the judge commented on the Rock post:  “I’m ‘almost’ taller than him.  Almost.”

The campaign did not have permission to use the Rock’s image.  The judge lost the election.

The Commission found that the post improperly misled the public into believing that the Rock had endorsed the judge’s campaign and that the judge’s comment was “an improper confirmation and ratification of the earlier false Rock Post, thereby further misleading the public.”

The Commission also found that the judge had not taken reasonable measures to ensure that her campaign representatives complied with the code of the judicial conduct, providing her campaign manager and her graphic artist, “in essence, carte blanche and unsupervised access to her campaign Facebook page.”  The Commission noted that the campaign management contract did not contain any restrictions on the posting of social media materials, such as obtaining prior approval from the judge and that the judge did not discuss with her campaign representatives the constraints and prohibitions of the code.

 * * *
Similarly, the Florida Supreme Court recently removed a judge from office for false and misleading statements about her opponent her campaign made in an e-mail and on a Facebook page created by an electioneering communications organization formed and administered by her campaign manager.  Inquiry Concerning Santino (Florida Supreme Court October 19, 2018).

In the 2016 election, Santino was a candidate for an open judicial seat; Gregg Lerman was her opponent.  Santino hired Richard Giorgio of Patriot Games, Inc. as her campaign manager.

In September 2016, a Facebook page titled, “The Truth About Gregg Lerman” was created by Taxpayers for Public Integrity, an electioneering communications organization formed and administered by Patriot Games, Inc.  The header of the Facebook page stated:  “Attorney Gregg Lerman has made a lot of money trying to free Palm Beach County’s worst criminals.  Now he’s running for judge!”  Below that was a photograph of Lerman surrounded by the words, “CHILD PORNOGRAPHY,” “DRUG TRAFFICKING,” “MURDER,” “Identity Theft,” “RAPE,” “Sexual Assault,” “Internet Solicitation of Minors,” and “PEDOPHILES.”  The page also highlighted 4 high profile cases in which, it stated, Lerman “chose” to represent the defendants.  For example, the page stated:  “Instead of representing victims of crime, Gregg Lerman chose to represent convicted serial killer Ronald Knight who targeted gay men and brutally murdered them.  Now, he’s running for Judge!”

Santino’s campaign also sent an e-mail that described Lerman’s legal practice as “limited to criminal defense—representing murderers, rapists, child molesters and other criminals.”

The Court emphasized that the code did not permit the candidate to delegate to her campaign manager the responsibility for written materials created or distributed by the campaign.  The Court held that the judge’s actions “individually and through her campaign, for which she was ultimately responsible—unquestionably eroded public confidence in the judiciary.”  The Court found that the campaign had “expressly stated or implied that Lerman could not be trusted ‘for laboring in an occupation that serves to breathe life and meaning into the Sixth Amendment’” and “falsely communicated to the reader that Lerman was unfit for judicial office because of the type of law he practiced, and the type of clients he represented.”  The Court also concluded that the judge’s campaign statements “evidenced a bias against criminal defendants, toward whom she imputed guilt; against criminal defense attorneys, whom she implied had some character fault because they ‘choose’ to represent criminal defendants; and in favor of victims, whom she boasted that she worked to protect during her legal career.”

Noting that it has previously warned judicial candidates that serious campaign violations could warrant removal, the Court concluded:

Simply stated, Santino’s conduct does not evidence a present fitness to hold judicial office.  It is “difficult to allow one guilty of such egregious conduct to retain the benefits of those violations and remain in office.” . . .  We refuse to endorse a “win-at-all-costs-and-pay-the-fine-later” strategy, especially in light of our past warnings and stated intolerance for the kinds of campaign violations at issue here.

The Court explained that any sanction other than removal would send a message to judicial candidates that they may commit “egregious violations” during their campaigns and “if they win, a suspension or a fine or both will be the only result.  They will be allowed to reap the benefits of their misconduct by continuing to serve the citizens of this state.  This we cannot condone.”

* * *
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 Reporter Part 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 here.

 

Throwback Thursday  

25 years ago this month:

  • The Connecticut Supreme Court suspended a judge without pay for 15 days for failing to disqualify himself from the criminal case against a member of a family that had a history of contentious relations and litigation with a partnership in which the judge was a partner and counsel before becoming a judge and for signing an arrest warrant for that same person in an unrelated matter in 1990. In re Zoarski, 632 A.2d 1114 (Connecticut 1993).
  • Adopting the findings, conclusions, and recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge who twice made hostile and unprovoked comments that could reasonably be interpreted as threats of professional reprisal against individuals for what the judge perceived to be their disloyalty to and betrayal of him in connection with his divorce case. In re Hair, 436 S.E.2d 128 (North Carolina 1993).

 

The difference between censure and removal

Accepting determinations of the State Commission on Judicial Conduct, the New York Court of Appeals recently removed 2 judges from office for a variety of misconduct.  Both judges had admitted to at least some of the misconduct charged, but both had argued that censure, rather than removal, was the appropriate sanction.  The Court rejected their arguments, considering the “full spectrum” and “entirety” of their behavior to find their misconduct “truly egregious,” justifying removal.  (Suspension without pay is not available as a sanction in New York judicial discipline cases.)

The Court removed 1 judge for (1) her conviction for a misdemeanor offense of driving while intoxicated; being discourteous and seeking preferred treatment from the arresting officers; violating the terms of her conditional discharge by ignoring court orders to abstain from alcohol; and going to Thailand for an extended vacation without notice to the court or her lawyer, resulting in the revocation of her conditional discharge; (2) failing to disqualify herself from the arraignment of a former client and attempting to have his case transferred in a manner that she thought might benefit him; and (3) making discourteous, insensitive, and undignified comments before counsel and litigants in court.  In the Matter of Astacio, Opinion (New York Court of Appeals October 16, 2018).  The Commission decision is In the Matter of Astacio, Determination (New York State Commission on Judicial Conduct April 23, 2018).

Acknowledging that the judge had “expressed some contrition,” the Court was “unpersuaded” that she had “genuinely accepted personal responsibility” because she continued “to point to external factors and justifications as excuses for her behavior.”  The Court explained:

Although we do not expect petitioner to “adopt a posture of obeisance,” we do require that she adequately “recognize wrongdoing in order to forestall the inevitable, unfortunate conclusion that, absent a harsher sanction, more of the same will ensue” . . . .  Here, petitioner’s justifications for her conduct indicate she does not truly recognize the essential role her own decisions played in bringing about her current predicament.

Emphasizing that the judge’s actions cannot be viewed “through a limited prism” but “the full spectrum of her behavior and its impact on public perception of the judiciary” must be considered, the Court concluded that, given her “apparent lack of insight into the gravity and impact of her behavior on both public perception of her fitness to perform her duties and on the judiciary overall, . . . any rupture in the public’s confidence cannot be repaired.”

* * *
The Court removed the second judge for (1) on numerous occasions, acting impatiently, raising his voice, and making demeaning and insulting remarks, often in open court; (2) twice striking witness testimony and dismissing petitions for insufficient proof because counsel reflexively kept saying “okay;” (3) awarding counsel fees without providing the party ordered to pay an opportunity to be heard, contrary to applicable rules; and (4) failing to cooperate with the Commission.  In the Matter of O’Connor, Opinion (New York Court of Appeals October 16, 2018).  The Commission decision is In the Matter of  O’Connor, Determination (New York State Commission on Judicial Conduct March 30, 2018).

The judge argued that his courtroom demeanor “was justified by the circumstances, including the ‘rough and tumble’ nature of landlord-tenant litigation.”  Disagreeing, the Court explained:

To be sure, judges must insist upon order and decorum in the courtroom . . . .  Nevertheless, the need to maintain order must be counterbalanced against a judge’s obligations to remain patient and to treat those appearing before the court with dignity and courtesy . . . .  As we have explained, “respect for the judiciary is better fostered by temperate conduct, not hot-headed reactions” . . . .

The Court also emphasized that the judge’s “failure to observe and follow the law resulted in substantial and unjustifiable adverse consequences for the parties that went uncorrected—namely the dismissal of their petitions and the imposition of fee awards.”  Thus, the Court rejected that the judge’s argument that, at most, he had committed “harmless” legal errors that should not serve as grounds for findings of misconduct.  The Court stated that the judge’s “sustained pattern of inappropriate behavior evinced a lack of understanding of his role as a judge—most notably by disregarding the law and impinging on the fundamental right to be heard—thus eroding the public’s trust and confidence in the integrity of the judiciary.”

The judge did not challenge the Commission’s finding that he had engaged in a “consistent pattern of efforts to withhold cooperation and to delay or thwart the investigation.”  For example, he had not appeared at the hearing before the referee, at a proceeding scheduled to address the issue of notice, at an opportunity to reopen the hearing, or at oral argument before the Commission members.

On appeal, the Court rejected the judge’s argument that, because his underlying conduct, standing alone, would not result in more than a censure, “his failure to cooperate fully with the Commission’s investigation should not elevate the sanction to removal.”  It explained that it would “not overlook the entirety of a judge’s behavior and the extent to which it ‘qualif[ies] in the aggregate to the level and quality of egregiousness that merit[s] the ultimate discipline of removal.’”  The Court concluded:

If the public trust in the judiciary is to be maintained, as it must, those who don the robe and assume the role of arbiter of what is fair and just must do so with an acute appreciation both of their judicial obligations and of the Commission’s constitutional and statutory duties to investigate allegations of misconduct . . . .  In short, willingness to cooperate with the Commission’s investigations and proceedings is not only required—it is essential.