Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to rule for approximately 3 months on a contested order of protection and periodically filing certifications that he had no pending or undetermined cause for more than 60 days.  Guzman, Order (Arizona Commission on Judicial Conduct November 17, 2020).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for (1) stating that he would “keep” a defendant who had not appeared for trial after issuing a warrant for his arrest; (2) keeping campaign materials in his judicial office and distributing nail files that stated “Bruce Staggs – Justice of the Peace, Benson JP Court” during court hours; (3) in a minute order, stating, “The Mormon’s [sic] the Court are [sic] associated with are good people that live up to their responsibilities;” (4) discussing a social medial post that criticized him in a minute order; (5) referring to female employees with the generic term of “woman” and telling a female employee “you’re unzipped,” in reference to the zippers on the ankle/calf of her pants and then commenting that he “wondered if he would get the same reaction if he were unzipped.”  Staggs, Order (Arizona Commission on Judicial Conduct November 17, 2020).
  • Based on a stipulation and conditioned on the former judge’s agreement not to serve in a judicial capacity in the future, the California Commission on Judicial Performance severely admonished a former judge for his continuing failure to disclose his personal relationship with an attorney even after being publicly admonished for failing to do so in 2019; his lack of candor in 2 responses to the Commission; and his discourtesy to the district attorney in 1 case.  In the Matter Concerning Mason, Decision and order (California Commission on Judicial Performance December 9, 2020).
  • Agreeing with the recommendation of the Commission on Judicial Discipline based on a stipulation and agreement, the Colorado Supreme Court publicly censured a former judge based on his guilty plea to federal charges related to his disclosure of non-public, confidential information to his friends while serving as a magistrate and judge.  In the Matter of Kamada (Colorado Supreme Court December 7, 2020).
  • Based on his agreement not to seek judicial office in the future, the Georgia Judicial Qualifications Commission disposed of a complaint that a judge had engaged in behavior towards employees that constituted harassment based on gender and/or sex.  In re Jordan, Report of disposition (Georgia Judicial Qualifications Commission December 11, 2020).
  • Approving a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court permanently barred a former magistrate from judicial service based on his guilty plea to possession of methamphetamine and resisting arrest; the Court also suspended the former magistrate from the practice of law for 1 year with the first 90 days served as an active suspension and the balance stayed subject to his successful completion of at least 2 years of probation.  In the Matter of Greenaway (Indiana Supreme Court December 4, 2020).
  • Affirming the decision of the Judicial Conduct Commission, the Kentucky Supreme Court upheld the removal of a judge for (1) coercing members of her guardian ad litem panel to donate the maximum amount to her campaign and to use personal time to campaign on her behalf; using court staff to work on her campaign during work hours; and taking steps to conceal HER conduct; (2) retaliating against an attorney for failing to campaign on her behalf by removing him from the guardian ad litem panel following the election;(3) forcing her case manager to resign to create a job opening for Stephen Penrose because she and Penrose were engaged in a personal, sexual relationship, not on the basis of merit; engaging in inappropriate workplace behavior with Penrose during work hours; and improperly delegating judicial functions to Penrose; (4) approving timesheets for staff members that she knew did not accurately reflect the hours those employees worked; leaving the courthouse on numerous occasions with staff members during regular court hours; permitting Penrose to play his guitar and sing in his office during work hours; and permitting staff member to store and consume alcoholic beverages in court offices; (5) directing school liaison officers to file school dependency, neglect, and abuse cases only once a month and to file certain petitions as truancy cases rather than dependency, neglect, and abuse cases, and, when one of those officers followed her employer’s instructions regarding how to file such cases, retaliating against her, referring to her as a “b***h,” and refusing to recuse from her cases; (6) making inappropriate sexual advances toward an attorney, sending one of her guardian ad litem panel attorneys to speak with the attorney, refusing to recuse from cases in which the attorney represented a party, and engaging in Snapchat conversations with members of her guardian ad litem panel and Penrose, some of which were sexual in nature; (7) appointing personal friends who supported her campaign to represent individuals seeking de facto custodian status without requiring those individuals to come to court to receive appointments; (8) failing to be candid and honest with the Commission regarding the termination of her case manager, the removal of the attorney from the guardian ad litem panel, and her relationship with Penrose; and (9) filing a bar complaint against an attorney in retaliation for her cooperation with the Commission investigation.  Gentry v. Judicial Conduct Commission (Kentucky Supreme Court December 17, 2020).
  • Affirming the Judicial Conduct Commission’s finding of fact, conclusions of law, and final order, the Kentucky Supreme Court upheld the public reprimand of a former judge for intervening on behalf of her ex-husband after he was arrested and for sending an ex parte text to a Commission member just before her hearing.  Maze v. Judicial Conduct Commission (Kentucky Supreme Court December 17, 2020).
  • The Nevada Supreme Court affirmed the Commission on Judicial Discipline’s admonishment of a hearing master for ignoring an attorney’s objections to her questioning of a juvenile defendant, yelling repeatedly at the attorney, preventing the attorney from making a record, threatening to report the attorney, and attempting to pressure the minor into answering her questions directly; the Commission had also ordered the hearing master to complete additional education.  In the Matter of Henry (Nevada Supreme Court December 23, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for publicly supporting the teachers at her daughter’s school in litigation against the board of education by publicly commenting about issues and individuals involved in the litigation in person, by email, and on social media platforms in which she was publicly identified as a judge; providing legal information and advice to parents at the school; signing advocacy letters; speaking about the cases with members of the board of education; joining teacher union counsel outside the courtroom prior to a case conference; and executing an affidavit that was filed in the litigation.  In the Matter of Panepinto, Determination (New York State Commission on Judicial Conduct December 9, 2020)
  • Adopting the findings of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a court of appeals judge for contributing to, enabling, and ignoring the toxic work environment in his chambers created by his executive assistant/law clerk, who was his close personal friend, and displaying a reckless disregard for the truth and downplaying the seriousness of his friend’s misconduct to the Commission and the administrative office of the courts.  In re Inquiry Concerning Murphy (North Carolina Supreme Court December 18, 2020).
  • Adopting the findings and recommendation of the Judicial Standards Commission, which were based on a stipulation of facts, the North Carolina Supreme Court publicly reprimanded a judge for knowingly proceeding with a defendant’s probable cause hearing without the defendant’s counsel present to “make a point” about the lawyer’s failure to appear in court at the time the judge had directed.  In re Inquiry Concerning Clontz (North Carolina Supreme Court December 18, 2020).
  • Adopting the findings of the Board of Professional Conduct, which were based on stipulations and evidence presented at a hearing, the Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months for summarily holding a woman who screamed in the hallway outside his courtroom in contempt, and, when she protested, increasing her jail sentence to 10 days.  Disciplinary Counsel v. Bachman (Ohio Supreme Court December 18, 2020).
  • With the judge’s acceptance, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for “conducting judicial business outside the parameters of the COVID-19” plan for his judicial district as approved by the Tennessee Supreme Court and commenting to a court audience that he “wished Chief Justice Jeff Bivens would win an award so that the COVID-19 mandates” would end.  Hinson (Tennessee Board of Judicial Conduct December 15, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for allowing a PAC to use his name, title, and likeness in materials that supported the campaigns of other Democratic candidates for public office as well as his own.  Public Warning of Molberg (Texas State Commission on Judicial Conduct December 3, 2020), on appeal to special court of review.
  • The Texas State Commission on Judicial Conduct publicly admonished a former judge for (1) during a public meeting of the Travis County Commissioners Court, wearing a pink knitted beanie with cat ears referred to as a “pussy hat” and (2) during a panel at the Texas Tribune Festival, stating that Governor Abbott, who is paralyzed from the waist down, “hates trees because one fell on him.”  Public Admonition of Eckhard (Texas State Commission on Judicial Conduct December 4, 2020), on appeal to special court of review.
  • The Texas State Commission on Judicial Conduct publicly warned a judge for publicly endorsing a candidate for county tax assessor-collector.  Public Warning of Cox (Texas State Commission on Judicial Conduct December 4, 2020).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for using the English and Spanish slurs for undocumented immigrants from Mexico in a conversation with his court reporter; the Commission also ordered the judge to obtain 2 hours of additional instruction with a mentor.  Public Admonition of Luitjen (Texas State Commission on Judicial Conduct December 4, 2020).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for initiating and permitting ex parte communications with the district attorney’s office about the merits of a defendant’s motion for a new trial in a criminal case.  Public Admonition of Luitjen (Texas State Commission on Judicial Conduct December 4, 2020).
  • Based on stipulated facts and conclusions of law, the Vermont Judicial Conduct Board publicly reprimanded a judge for leveraging his position as a part-time probate judge to gain an advantage for a client with a matter pending in his court’s criminal division and attempting to do so for a second client.  In re Cobb, Stipulated public reprimand with order (Vermont Judicial Conduct Board December 24, 2020).

Throwback Thursday

20 years ago this month:

  • The Arizona Supreme Court removed a judge from office for falling asleep during court proceedings; making inappropriate comments and circulating inappropriate materials, some of which were racist, sexist, or obscene; ex parte communications; failing to recuse and otherwise creating an appearance of bias; inappropriate uses of his judicial position; failing to respect the rights of parties appearing before him; failing to adequately perform his judicial responsibilities; and misrepresenting facts to the Commission on Judicial Conduct.  In the Matter of Carpenter, 17 P.3d 91 (Arizona 2001).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge following his conviction for driving while intoxicated.  Letter of Admonition to Jennings (Arkansas Judicial Discipline & Disability Commission January 23, 2001).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for delay in ruling on a petition for post-trial review filed by an inmate and for failing to properly supervise staff.  Letter of Admonition to Davis (Arkansas Judicial Discipline & Disability Commission January 26, 2001).
  • Accepting the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court publicly censured a judge for engaging in self-dealing contrary to the interests of his clients when he was an attorney and failing to file a timely answer to the formal complaint.  In re Runco, 620 N.W.2d 844 (Michigan 2001).
  • Based on an agreement, the Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to maintain an impartial demeanor in a case, making undignified and discourteous public references to lawyers serving as public defenders and in other capacities in the case, and publicly commenting on the pending matter.  Public Reprimand of Wolf (Minnesota Board on Judicial Standards January 10, 2001).
  • The New Jersey Supreme Court removed a municipal court judge for (1) signing a letter “JMC” (meaning “judge municipal court”) in a personal dispute regarding payment of his sons’ tuition at a private school; (2) failing to recuse from a case arising from questionable domestic violence complaints filed by a councilman with whom the judge had a close relationship; and (3) filing false accusations against his son’s teacher and then arraigning the teacher.  In the Matter of Samay, 764 A.2d 398 (New Jersey 2001).

Crimes and schemes: Top stories of 2020

In 2020, criminal proceedings were followed by discipline proceedings for 9 former judicial officers based on acts committed while they were still on the bench and, in most cases, related to their judicial duties.

Bonding scheme
In West Virginia, 2 former magistrates were sanctioned for their scheme to ensure that bonds for defendants arraigned by one of the magistrates were posted by a bonding company owned by the wife of the other magistrate.  In the Matter of Clem, Order (West Virginia Supreme Court of Appeals January 30, 2020); In the Matter of Skinner, Order (West Virginia Supreme Court of Appeals January 30, 2020).  Based on their agreements and the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly censured them, barred them from serving in public office again, and fined them $1,000 each.

Before their resignations, Alton Skinner and Roger Clem were magistrates in adjoining counties.  The bonding company E-Z Out was operated by Skinner’s spouse and employed Skinner’s son as an authorized bonding agent.  Skinner was also involved in the operation of E-Z Out.

From March 2017 to March 2018, then-magistrate Clem did not present a list of authorized bail bonding companies to defendants at arraignments.  Instead, approximately 200 times, soon after an arraignment, he called E-Z Out, usually to Skinner’s cell phone, and Skinner would ensure that an E-Z Out agent was at the courthouse to post the bonds.

Both magistrates had been indicted for the same scheme by a federal grand jury on charges of wire fraud, mail fraud, and obstruction.  The charges were dismissed after the U.S. Attorney agreed not to prosecute conditioned on their resignations and admissions in the discipline proceedings.

Information disclosure
Agreeing with the recommendation of the Commission on Judicial Discipline based on a stipulation and agreement, the Colorado Supreme Court publicly censured a former judge based on his guilty plea to federal charges and “a pattern of disclosing nonpublic, confidential information to his friends” while serving as a magistrate and later as a district judge.  In the Matter of Kamada (Colorado Supreme Court December 7, 2020).  The Court explained that removal from office would have been the appropriate sanction if the judge had not resigned in August 2019.  The former judge has also been disbarred after conditionally admitting to misconduct as an attorney.

In June 2020, the judge pled guilty to obstructing the proceedings of a federal agency; his sentencing is scheduled for February 2021.  The charges are described in a press release from the U.S. Attorney announcing the judge’s guilty plea.

According to the stipulated facts contained in the plea agreement, beginning in or around October 2018, a federal task force was investigating a drug trafficking organization that was distributing large quantities of cocaine throughout northern Colorado.  One of the members of the organization was a drug trafficker who lived in Greeley, Colorado.  Kamada had known the drug trafficker since high school. . . .

While serving as the “on call” judge one evening in April 2019, Kamada received a phone call from a task force officer who was seeking a search warrant related to the investigation into the drug trafficker.  The task force officer pointed out to Kamada that he was associated with the drug trafficker on social media.  As a result, Kamada recused himself from the case.  But early the next morning, Kamada called his best friend, Geoffrey Chacon, who had also known the drug trafficker since childhood.  Kamada told Chacon that law enforcement was “watching” the drug trafficker’s house, car and phone, and instructed Chacon to “stay away” from the drug trafficker.  Chacon subsequently informed the drug trafficker about the warrant and modified Chacon’s own behavior in order to avoid law enforcement attention.

The information that Chacon provided to the drug trafficker also caused the drug trafficker to change his pattern of conduct and substantially interfered with the task force’s investigation.  After Chacon relayed the information that he received from the judge to the drug trafficker, Chacon destroyed records of his communications with the drug trafficker in order to impair efforts by law enforcement to tie Chacon to the drug trafficker.  In November 2019, Chacon pleaded guilty in federal court to one count of destruction of records with the intent to obstruct a federal investigation.

In its order, the Court describes several other times the judge inappropriately disclosed information to Chacon.

In January 2019, during his first month as a district court judge, in a text to Chacon and another friend, the judge declared that the wife in a divorce proceeding “would be ‘free game tomorrow night’ and that the husband was keeping the family’s Mercedes.”  “In another matter, he sent his friends a photo of a father and child involved in a parenting dispute, commenting ‘check out the dad in my trial today.’”

On one occasion, Chacon asked the judge to get him information about a person being taken into custody by the FBI.  The judge searched Colorado court records and, when he could not find the case, suggested to Chacon that it was likely a federal matter.

In January 2019, Chacon texted the judge that a mutual friend (the drug trafficker referred to in the criminal charges) had been in an altercation with another drug dealer, commenting that the other dealer was “high on coke.”  The judge replied that the friend needed to “grow up” if he wanted “to play big boy stuff.”

Phony and baseless
Based on the decision and recommendation of the Disciplinary Review Board, the New Jersey Supreme Court disbarred a former judge based on his guilty plea to 1 count of falsifying records.  In the Matter of Thompson, Order (New Jersey Supreme Court January 16, 2020).  In his plea allocution in state court, the former judge had admitted that, while serving as a municipal court judge in 9 jurisdictions, he had routinely suspended mandatory motor vehicle fines, which would have been divided between the towns and the county, and substituted “phony, baseless contempt of court charges” to ensure that 100% of the fines would go to the towns.  The judge admitted that “to conceal his wrongdoing, he typically falsified the contempt charges outside of the presence of the defendants and their counsel.”  The judge’s scheme was successful; according to the prosecution, it had diverted $600,000 to the towns from the county in approximately 4,000 cases between 2010 and 2015.  Finally, the judge admitted that he continued his scheme even after discussing his practice with his superiors; after the meeting, he began assessing smaller phony contempt fines, but he continued to steer funds to his preferred jurisdictions until he was suspended from the bench.

Kickback scheme
The Pennsylvania Court of Judicial Discipline removed a former judge from office and barred him from further judicial service based on his guilty plea to federal charges of conspiracy to commit money laundering and extortion under color of official right.  In re Waltman, Opinion and order (Pennsylvania Court of Judicial Discipline May 6, 2020).  In a press release, the U.S. Attorney described the judge’s crimes:

Together with his co-defendants . . . , Bernard Rafferty and Robert Hoopes, Waltman participated in a scheme to extort bribes and kickbacks from Bucks County businessmen.  They also conspired to launder money for individuals they believed were engaged in narcotics trafficking and health care fraud. 

For example, in November 2016, Waltman, Hoopes, and Rafferty accepted a bribe of $1,000, as well as the promise of other fees, in exchange for Waltman, Hoopes, and Rafferty to use their positions as public officials to “fix” a traffic case before Waltman in Bucks County Magisterial District Court.

In addition, from June 2015 to November 2016, Waltman, Hoopes, and Rafferty conspired to launder funds represented to be proceeds from health care fraud, illegal drug trafficking, and bank fraud.  From June 2016 to August 2016, Waltman, Hoopes, and Rafferty laundered $400,000 in cash, represented to be proceeds from health care fraud and illegal drug trafficking, and took money laundering fees totaling $80,000 in cash.

Scheme to defraud
Based on its findings of misconduct, the Pennsylvania Court of Judicial Discipline removed a former judge from office and banned him from serving in office again based on (1) his guilty plea to federal charges of mail fraud and filing a false personal income tax return and (2) his conviction on federal perjury charges.  In re Mulgrew (Pennsylvania Court of Judicial Discipline May 6, 2020).

(1) In August 2012, the judge was indicted on 33 federal counts of mail fraud, wire fraud, and tax-related crimes based on a scheme to misuse state grant funds awarded to non-profit groups.  In September 2013, he pled guilty to 1 count of mail fraud and 1 count of filing a false personal income tax return.  In August 2014, he was sentenced to 30 months of incarceration and 3 years of probation and ordered to pay $199,000 in restitution and $123,000 in back taxes.  The U.S. Attorney’s press release described his crimes:

Between 1996 and 2008, the [Pennsylvania Department of Community and Economic Development] awarded hundreds of thousands of dollars in grants to two community groups with which Mulgrew and [co-defendant Lorraine] Dispaldo were associated.  DCED awarded more than $450,000 in grants to the Friends of Dickinson Square (“FDS”) with the understanding that the grants were to be used to purchase equipment and materials for the maintenance of Dickinson Square Park at 4th & Tasker Streets, Philadelphia, and surrounding neighborhood revitalization.  Mulgrew, the Vice-President of FDS, signed the FDS grant contracts with DCED.  DCED also awarded approximately $397,000 in grants to the Community to Police Communications (“CPC”) with the understanding that the grants were to be used to purchase communications equipment for the police and to purchase materials to secure vacant lots and buildings for the protection of the police.  Dispaldo signed the CPC grant contracts with DCED.

The defendants misrepresented their intentions to DCED, and — contrary to their agreement to spend grant funds solely to purchase equipment and materials for neighborhood revitalization and improved communications with the police — the defendants used thousands of grant dollars to pay Mulgrew’s relatives and associates.  They represented that they were paying for work done on behalf of FDS and CPC.  After distributing grant funds to relatives and associates, the defendants supplied false and misleading information to DCED to conceal the actual amount of grant funds which they paid to the relatives and associates contrary to the express purposes of the grant.

Mulgrew conceded that he received almost $70,000 in grant funds for his own personal uses.  Mulgrew improperly reimbursed himself from FDS funds for thousands of dollars of expenditures which he claimed were incurred by FDS when they were not and for his expenditures for items not authorized under the terms of the FDS grants.  Mulgrew and Dispaldo supplied DCED with false documents to conceal their own use of grant funds and other improper uses of the funds. 

Mulgrew did not report the additional income from the fraud scheme on his tax return and claimed false business deductions which improperly reduced his tax liability.  

(2) In January 2013, Mulgrew was one of 9 judges indicted on wire fraud, mail fraud, and perjury charges related to ticket-fixing on the Philadelphia Traffic Court, described by the U.S. Attorney as “a widespread culture of giving breaks on traffic citations to friends, family, the politically-connected, and business associates.”  In July 2014, a jury convicted the judge of 1 count of perjury before the federal grand jury.  He appealed.  His conviction was affirmed in January 2019.  

Personal conduct
A former magistrate pled guilty to misdemeanor possession of methamphetamine and resisting arrest and was permanently barred from judicial service by the Indiana Supreme Court.  In the Matter of Greenaway (Indiana Supreme Court December 4, 2020).  The Court also suspended him from the practice of law for 1 year with the first 90 days as an active suspension and the balance stayed subject to at least 2 years of probation.  According to the Fort Wayne Journal Gazette, in March 2019, the judge was arrested as part of an Indiana State Police sting operation after he bought 2.5 grams of meth from an undercover informant in a parking lot.  During the arrest, he “put the bag of meth in his mouth and bit an officer’s hand as the officer tried to pry his mouth open, according to court documents.”  He was charged with possession of methamphetamine, resisting arrest, and obstruction of justice, all felonies.  He pled guilty in September 2020.

Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge who had pled guilty to state charges of attempted burglary in the second degree, a felony.  In the Matter of Cicale, Decision and order (New York State Commission on Judicial Conduct April 2, 2020).  According to Newsday, Cicale admitted entering the home of a 23-year-old former intern at the town attorney’s office where he used to work and taking articles of her clothing.  His attorney told the newspaper that the former judge “has dealt with his mental illness issues in a proactive manner and is a better person for doing so.”

Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York Commission concluded a proceeding against a former judge who had pled guilty to federal tax evasion charges.  In the Matter of Seedorf, Decision and order (New York State Commission on Judicial Conduct April 2, 2020).  According to the Journal News, Seedorf did not file income tax returns from 2005 to 2015 and owed more than $487,000, including interest and penalties.

Throwback Thursday

25 years ago this month:

  • Based on the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for colliding with a dock while operating a motorboat and leaving the scene without reporting the accident.  Inquiry Concerning Fletcher, 666 So. 2d 137 (Florida 1996).
  • The New York State Commission on Judicial Conduct removed a judge for failing to remit court funds to the state comptroller by the tenth day of the month following collection as required by state law and failing to cooperate in the Commission’s investigation.  In the Matter of Miller, Determination (New York State Commission on Judicial Conduct January 19, 1996).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for refusing to appoint an interpreter for a defendant who did not speak English as required by law and making remarks about the defendant and other Spanish-speaking farm workers that gave the appearance of ethnic bias.  In the Matter of Carr, Determination (New York State Commission on Judicial Conduct January 22, 1996).

Other available options

Accepting the findings and recommendation of the Judicial Qualifications Commission based on stipulations, the Florida Supreme Court publicly reprimanded a judge for yelling and waving his arms at people in the lobby outside his courtroom to get them be quiet and threatening one of them with contempt.  Inquiry Concerning Miller (Florida Supreme Court November 5, 2020).

On January 17, 2020, proceedings in a civil trial over which the judge was presiding were interrupted continuously by loud noise from the public lobby outside of the courtroom.  The noise “was a result of many people congregating and not promptly disbursing” after another judge’s investiture, which had taken place in the ceremonial courtroom on the same floor.

At Judge Miller’s request, the bailiff and then the clerk and bailiff tried to quiet the people in the lobby.  When those attempts were unsuccessful, the judge stepped down from the bench wearing his robe and went to the lobby accompanied by his bailiff.  Several witnesses, including judges and lawyers, observed the judge “’yelling,’ and waving his arms at the people in the lobby while trying to get them [to] be quiet. . . .”

The judge observed a woman shaking her head while looking at him.  Believing she was indicating that she would not cooperate with his attempt to quiet the crowd and “responding to what he believed was contemptuous behavior,” the judge approached the woman and shouted, “Do not shake your head at me” and twice threatened her with contempt, demanding to know, “Do you want to be held in contempt?”  The judge asked her name and whether she was employed in the courthouse.  He then went back into his courtroom.

The woman, who is an assistant general counsel for the court, did not yell, say anything disrespectful, or act contemptuously in any way, according to 2 judges who were talking with her at the time.  Judge Miller acknowledged that “with hindsight she could have been shaking her head in disbelief over his behavior.”

The Court noted that the Commission had recognized that “[j]udges are given tools for dealing with serious interruptions,” to court proceedings including, “the direct (or summary) contempt power . . . .”  But the Commission was “particularly disturbed by” the judge’s threat to use that contempt power against a woman merely “for shaking her head in disbelief over Judge Miller’s behavior.”  The Commission explained:  “Judge Miller had other options available for dealing with the disruption to his trial, such as taking a recess, or calling Court Administration to ask for assistance.  The method he ultimately chose to employ reflected poorly on himself, and the judiciary as a whole.”

The Court felt “constrained to observe that . . .  this case arose only because a loud crowd disrupted trial court proceedings and persisted in their noisemaking after extended efforts were made to bring quiet so that the trial could go on.”  The Court acknowledged that the interruption did not excuse the judge’s conduct but emphasized that “the lengthy disruption of that trial should never have occurred.  Investiture ceremonies are significant events in the life of our courts, but they should not occasion the disruption of judicial business.”  It noted that “the participation of judges or court staff in any such disruption . . . is a matter of serious concern” and directed that administrative measures “be taken to ensure that such problems do not recur.”

Social media direction and control

In a recent advisory opinion, the California Supreme Court Committee on Judicial Ethics Opinions stated that, when an appellate justice learns that a staff member has posted a comment on social media that violates the canons, the justice should immediately take steps to remedy the ethical violation.  California Oral Advice Summary 2020-37.  It explained that, “at a minimum, the justice should instruct the staff member to take all reasonable steps to delete or to have removed from public view any improper comment that violates the canons, and then follow up with the staff member to ensure that they have done so.”  Further, the committee stated that, if the justice learns that “an improper comment has already been viewed by the public, republished or otherwise disseminated, then depending on the circumstances, the justice may need to instruct the staff member to correct or repudiate the comment on social media, particularly if the comment is demeaning or offensive, or otherwise undermines the dignity of the court.”

The opinion noted that “appellate court staff can be expected to post their thoughts, comments and opinions online” like anyone in the general public who participates in social media to express themselves and stated that “staff are not prohibited from posting comments on social media about their employment or about the courts in general.”  However, the committee warned that “the canons constrain the content of any such comments and obligate justices to require staff compliance with the canons.”  The committee added that appropriate training would help court staff understand their “vital role” in maintaining public confidence in the integrity of the judicial system and “the importance of maintaining confidentiality and impartiality and of upholding the dignity of the court in their postings to social media.”

The inquiry to the California committee was from an appellate justice so the opinion addresses the obligations of appellate justices, but the code provisions it interpreted apply to “anyone who is an officer of the state judicial system.”  The committee based the obligation of justices to “exercise reasonable direction and control” over staff on several provisions in the California code of judicial ethics.

  • Canon 3B(9) states that judge shall require staff and court personnel, like judges themselves, “to abstain from “any public comment about a pending or impending proceeding in any court” and “any nonpublic comment that might substantially interfere with a fair trial or hearing.”
  • Canon 3C(3) states that judges shall require staff and court personnel to, like judges themselves,  “observe appropriate standards of conduct and to refrain from (a) manifesting bias, prejudice, or harassment based upon race, sex, gender, gender identity, gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, or (b) sexual harassment in the performance of their official duties.”

Rule 2.10(C) of the American Bar Association Model Code of Judicial Conduct is similar to California Canon 3B(9).  Rule 2.3(B) of the model code states that a judge “shall not permit” court staff, court officials, or others subject to the judge’s direction and control to, in the performance of their duties, “by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.”

See also New Mexico Advisory Opinion Concerning Social Media (2016) (“a judge’s supervisory duties include ensuring that court staff do not participate in social networking that would undermine the judge’s responsibilities.  Examples of such activity include engaging in social media exchanges that either involve ex parte communications or statements concerning pending or impending cases”).

Interpreting the codes of conduct for court staff adopted in their jurisdictions, the Arizona Supreme Court Judicial Ethics Advisory Committee and the U.S. Judicial Conference Committee on Code of Conduct have issued extensive advisory opinions on judicial employees’ use of social media.  See Arizona Advisory Opinion 2014-1; U.S. Advisory Opinion 112 (2014).

Throwback Thursday

5 years ago this month:

  • Adopting masters’ findings of fact, the California Commission on Judicial Performance removed a judge from office for authoring and showing to his courtroom clerk a “crude and vile” anonymous letter accusing her of infidelity; engaging in a course of conduct over 2 months to convince her to become involved in a closer personal relationship, including giving her money and other gifts; accusing her of extortion to ensure her silence; and providing legal advice to her son.  Inquiry Concerning Saucedo, Decision and order (California Commission on Judicial Performance December 1, 2015).
  • The Florida Supreme Court removed a judge from office for threatening to commit violence against an assistant public defender, engaging in a physical altercation with the public defender, and resuming his docket while defendants were without counsel.  Inquiry Concerning Murphy, 181 So. 3d 1169 (Florida 2015).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for his treatment of an investigator for the attorney general’s office during a hearing.  In re Easterling, Order (Kentucky Judicial Conduct Commission December 18, 2015).
  • With the judge’s consent, the Maryland Commission on Judicial Disabilities released a private reprimand that states that investigative counsel investigated allegations that the judge had received commissions as a real estate agent involving property included in estates being supervised by the orphans’ court over which she presided.  In the Matter of Phelps, Private reprimand (Maryland Commission on Judicial Disabilities November 6, 2015) .
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge without pay for 1 month for 2 incidents of inappropriate touching of a court employee that demeaned, belittled, and publicly humiliated her.  In the Matter of Council, Order (New Jersey Supreme Court December 3, 2015).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for creating the appearance that he was biased in favor of the town in a dangerous dog case by sua sponte sending hearing notices to witnesses whom he speculated would be needed to testify for the town, summarily ending the hearing at the conclusion of the prosecutor’s case, failing to allow the defendant or her witnesses to testify, and deciding in favor of the town without including statutorily-mandated conditions consistent with the ruling.  In the Matter of Heintz, Determination (New York State Commission on Judicial Conduct December 17, 2015).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge who, while arraigning 2 defendants charged with environmental conservation law violations, listened to a defendant’s “version of the story,” reviewed a map of the alleged trespass site, identified locations on the map, discussed with the defendants whether the locations were public or private, asked the defendants about the events, and listened to their explanations, and failed to set a court date for about 10 months.  In the Matter of Trickler, Determination (New York State Commission on Judicial Conduct December 17, 2015).
  • The New York State Commission on Judicial Conduct publicly censured a judge for driving while under the influence of alcohol and repeatedly asserting his judicial office in connection with his arrest.  In the Matter of Landicino, Determination (New York State Commission on Judicial Conduct December 28, 2015).
  • Pursuant to the judge’s agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a chancellor for an order dismissing a complaint for divorce and a counter complaint with language analyzing the U.S. Supreme Court decision on same-sex marriage in Obergerfell v. Holdges.  Re Atherton (Tennessee Board of Judicial Conduct December 18, 2015).

Outside the parameters

With the judge’s acceptance, the Tennessee Board of Judicial Conduct publicly reprimanded Judge Michael Hinson for “conducting judicial business outside the parameters of the COVID-19” plan for his judicial district as approved by the Tennessee Supreme Court and making a discourteous remark about the Chief Justice.  Hinson (Tennessee Board of Judicial Conduct December 15, 2020).

The judge failed to limit the number of persons in his courtroom and has not been enforcing social distancing requirements; at times, his courtroom “has been filled to capacity, even to the point of members of the public having to stand shoulder to shoulder along the walls because all the seats are taken.”  In addition, referring to the Court’s pandemic-related guidelines, the judge commented to a court audience that he “wished Chief Justice Jeff Bivens would win an award so that the COVID-19 mandates” would end.

The judge acknowledged that “failing to abide by the directives of a higher court is unacceptable and reflects poorly” on him as a judge and admitted that his comment was wrong, although he stated that he “intended no disrespect.”

The Board acknowledged that the judge’s courtroom was small and that he has been trying to avoid a backlog of cases, but it emphasized that the COVID-19 guidelines adopted by the Court “are not mere suggestions.  Conducting judicial business within those guidelines, which have been expressed in court orders, is not optional. . . .  By requiring all judicial districts to adopt measures designed to protect users and employees of the court system from the risks associated with COVID-19, the Supreme Court has recognized that the health and safety of litigants, witnesses, attorneys, court staff, and others is of utmost importance.  Thus, regardless of how logistically or administratively inconvenient, and no matter a judge’s personal views concerning the pandemic generally, all judges are obligated to comply with and enforce the pertinent guidelines.” 

The Board also stated that the judge’s comment regarding the Chief Justice was “neither dignified nor courteous” and did not inspire public confidence in the judiciary “even if off-the-cuff and with no intent to be offensive.”  It acknowledged that there was no evidence to doubt the judge’s assertion that he had not 5“to cast aspersions on any member of the Supreme Court,” but emphasized that those who heard the comment had no way of determining his “intent apart from the words used.  Once such comments are made, the damage is done.” 

See also In re Disqualification of Fleegle (Chief Justice Ohio Supreme Court December 10, 2020) (disqualification of judge from 2 criminal cases because he could not prove that he had taken steps to protect the safety of individuals in the courtroom and could not articulated “the necessity of proceeding with jury trials during a dangerous stage of a pandemic”).

Throwback Thursday

10 years ago this month:

  • Based on an agreement, the Arizona Supreme Court publicly censured a judge who, during a settlement conference, said “f*** you” to one of the attorneys while showing his middle finger and told the attorney it was “sh***y” of him to change his position.  Cornelio, Order (Arizona Supreme Court December 9, 2010).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to be present or immediately available to promptly attend to court business.  Williams, Amended order (Arizona Commission on Judicial Conduct December 9, 2010).
  • The California Commission on Judicial Performance publicly admonished a judge for inappropriate comments, for example, referring to a tall, thin female attorney with short hair as a “Q-tip.”  Public Admonishment of Gibson (California Commission on Judicial Performance December 14, 2010).
  • The California Commission on Judicial Performance publicly admonished a judge for driving under the influence of alcohol.  Public Admonishment of Widdifield (California Commission on Judicial Performance December 14, 2010).
  • Accepting the recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge and fined her $5,000 for identifying $125,000 on her campaign disclosure form as loans from herself that were, in fact, loans from her father.  Inquiry Concerning Colodny, 51 So.3d 430 (Florida 2010).
  • The New York State Commission on Judicial Conduct publicly censured a judge for operating a vehicle while under the influence of alcohol, resulting in his conviction for driving while ability impaired, and asserting his judicial office in connection with his arrest.  In the Matter of Maney, Determination (New York State Commission on Judicial Conduct December 20, 2010).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) serving as a fiduciary for a close, personal friend and the friend’s daughter and (2) dismissing a DWI case against the friend.  Public Admonition of Fitzgerald (Texas State Commission on Judicial Conduct December 16, 2010).
  • The Utah Supreme Court approved the implementation of a public reprimand based on a stipulation of a judge for failing to disqualify himself from 37 traffic citations issued by his son-in-law, the police chief.  In re Adams, Order (Utah Supreme Court December 20, 2010).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for failing to hold mitigation hearings when requested and reducing a person’s fine based solely on review of the citation and the person’s driving record.  In the Matter of Hille, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct December 3, 2010).

Recent cases

  • Accepting the findings and recommendation of the Judicial Qualifications Commission based on stipulations, the Florida Supreme Court publicly reprimanded a judge for yelling and waving his arms at people in the lobby outside his courtroom while trying to get them to be quiet and threatening one of them with contempt.  Inquiry Concerning Miller (Florida Supreme Court November 5, 2020).
  • Adopting the findings of the Judiciary Commission and agreeing with its findings, the Louisiana Supreme Court removed a justice of the peace from office for being unavailable and unresponsive to the constable and citizens in his jurisdiction, failing to take any action on an eviction filing and to refund the unearned filing fee, and failing to cooperate with the Commission.  In re King (Louisiana Supreme Court November 19, 2020).
  • Based on a stipulation of discipline by consent, the New Jersey Supreme Court publicly reprimanded a part-time judge for failing to recuse herself from cases in which the landlord for her law office appeared on behalf of clients.  In the Matter of Munoz (New Jersey Supreme Court November 23, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for (1) on his personal Facebook page during his campaign, posting memes that propounded conspiracy theories, making disrespectful and undignified comments about laws he would be sworn to uphold as a sitting judge, and endorsing a candidate for the town council and (2) while a judge, posting comments on his personal Facebook page about the release on bond of a defendant he had arraigned, linking to articles critical of bail decisions in other cases, and commenting on one of those cases.  In the Matter of Schmidt, Determination (New York State Commission on Judicial Conduct November 3, 2020).
  • The Pennsylvania Court of Judicial Discipline ordered that the pay withheld from a former judge since his suspension in August be permanently withheld and that his resignation and pledge not to serve be binding and irrevocable based on his stipulation to the facts in a complaint filed by the Judicial Conduct Board alleging he (1) in a post-trial conversation with the attorneys in a criminal case, referred to a juror as “Aunt Jemima” and said that she had a “baby daddy” at home “slinging heroin,” referred to a second juror as a “knucklehead,” and criticized the seating of a juror whose daughter was a public defender; (2) made insulting remarks to the parents in a custody case and affected a manner of speech referred to as “Ebonics;” and (3) made improper comments during sentencing in 2 cases.  In re Tranquilli, Order (Pennsylvania Court of Judicial Discipline November 19, 2020). 
  • The Texas State Commission on Judicial Conduct publicly warned a judge for (1) her Facebook activities in support of a friend’s campaign for city council and (2) a court clerk’s acceptance of a donation to her campaign at the courthouse; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Woodard and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for publicly disparaging another judge’s bond determination on Facebook and referring to the other judge’s family in doing so; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Crow and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for failing to timely set, hear, decide, and sign a judgement creditor’s post-judgment motions and to timely refer his motion to recuse; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Hall and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020), on appeal to special court of review.
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for failing to comply with the law before holding an attorney in contempt; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Admonition of Richter and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).
  • The Texas State Commission on Judicial Conduct publicly admonished a former judge for (1) removing a campaign sign from his neighbor’s property and his interview with the media about the incident; (2) instructing his staff not to accept applications for writs of possession after 3:30 p.m. or before 10:30 a.m.; (3) failing to forward a notice of appeal of the denial of a pauper’s affidavit to the county court and issuing a writ of possession after the appellant had timely perfected his appeal; and (4) failing to timely submit a response to staff’s letters of inquiry.  Public Admonition of Metzger (Texas State Commission on Judicial Conduct November 12, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for ordering the clerk’s office not to accept a plaintiffs’ motion to reopen a case; the Commission also ordered the judge to obtain 1 hour of instruction with a mentor.  Public Warning of Bosworth (Texas State Commission on Judicial Conduct November 12, 2020).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for “an intermittent pattern of intolerant and intemperate behavior” and using profanity, epithets, and slurs in the courtroom; the judge also agreed to participate in 2 hours of ethics training and to participate in behavioral coaching.  In re Wilson, Stipulation, agreement, and order (November 20, 2020).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for telling a defendant with “idiosyncratic beliefs about the court system” to leave the courtroom and then ordering his arrest for contempt for “constructively” failing to appear and disruptive behavior; the judge was also ordered to complete at least 2 hours of training.  In re Jurado, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 20, 2020).