Monthly Archives: August 2014

Objective standards

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The significance of motive when the goal is promoting public confidence in the judiciary was illustrated in several recent judicial discipline cases. For example, in In re Morrow, the Michigan Supreme Court rejected the master’s findings that some of the judge’s actions were not misconduct because “his heart [was] in the right place” and instead agreed with the conclusion that judicial misconduct “must be reviewed under an objective, rather than subjective, standard” reached by the Judicial Tenure Commission.  The Court did, however, state that a judge’s subjective intent was relevant to the question of sanction.  The Court suspended the judge for 60 days without pay for misconduct in eight criminal cases.

Similarly, in In the Matter of Piraino, the New York State Commission on Judicial Conduct rejected the judge’s argument that, for a judge to be disciplined, a “‘vile, improper or impure’ motive must be charged and proved,” stating “misconduct has been found for behavior that was negligent . . . , or even when the judge’s motive was laudable . . . .” The Commission censured the judge for, in 941 cases, imposing fines and/or surcharges that exceeded the maximum amounts authorized by law or were below the minimum amounts required by law and failing to properly supervise his court clerks, which resulted in the improper fines in some of the cases.  The Commission noted that the referee had found that the judge’s “actions were not intentional or purposeful,” but concluded “such a pattern of repeated sentencing errors . . . is subject to discipline.”

See also Ohio Disciplinary Counsel v. Oldfield (holding that the standard for determining whether a judge abused the prestige of office is an objective one).

Self-reporting

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In a recent advisory opinion, the Colorado Judicial Ethics Advisory Opinion stated that, although the state has decriminalized the use and possession of medical and small amounts of recreational marijuana, a judge who engages in recreational or medical use of marijuana violates the code of judicial conduct because the possession and use of marijuana for any purpose is still a crime under federal law.  (The board did note that, because it was authorized only to provide opinions “concerning the compliance of intended, future conduct with the Colorado Code of Judicial Conduct, . . . we do not address whether a judge who uses marijuana consistent with Colorado law should be disciplined . . . .”)

As part of its analysis, the board looked at a provision in the Colorado code of judicial conduct (Rule 1.1(C)) that states:

Every judge subject to the Code of Judicial Conduct, upon being convicted of a crime, except misdemeanor traffic offenses or traffic ordinance violations not including the use of alcohol or drugs, shall notify the appropriate authority in writing of such conviction within ten days after the date of the conviction. In addition, the clerk of any court in this state in which the conviction was entered shall transmit to the appropriate authority within ten days after the date of the conviction a certificate thereof.

The American Bar Association Model Code of Judicial Conduct does not have a similar rule, nor do most other states. But at least two other states have also concluded that such reporting is a necessary component of a judge’s ethical obligations.

Canon 3D(3) of the California Code of Judicial Ethics is broader than the Colorado rule as it applies at charging, not conviction. It states:

A judge shall promptly report in writing to the Commission on Judicial Performance when he or she is charged in court by misdemeanor citation, prosecutorial complaint, information, or indictment, with any crime in the United States as specified below. Crimes that must be reported are: (1) all crimes, other 33 than those that would be considered misdemeanors not involving moral turpitude or infractions under California law; and (2) all misdemeanors involving violence (including assaults), the use or possession of controlled substances, the misuse of prescriptions, or the personal use or furnishing of alcohol. A judge also shall promptly report in writing upon conviction of such crimes.

New Jersey has an even broader provision, covering civil and criminal cases. It is in an administrative directive, not the code, and requires reporting to the administrative office of the courts, not the discipline authority. The directive states in part: “All judges must immediately report their involvement in any type of litigation in any court.” The directive came up in a recent discipline case when the New Jersey Supreme Court censured a part-time former judge and permanently barred him from serving in judicial office for, in addition to other misconduct, failing to report his involvement in 43 lawsuits filed against him when his real estate business failed, being consistently uncooperative with opposing counsel, fraudulently transferring real property, breaching his fiduciary duties to an investor, and having his judicial salary garnished.

Disqualification and campaign contributions

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The American Bar Association has adopted a resolution urging states and territories to adopt judicial disqualification and recusal procedures that “(1) take into account the fact that certain campaign expenditures and contributions, including independent expenditures, made during judicial elections raise concerns about possible effects on judicial impartiality and independence; (2) are transparent;
(3) provide for the timely resolution of disqualification and recusal motions; and (4) include a mechanism for the timely review of denials to disqualify or recuse that is independent of the subject judge.” The resolution also urges states “to provide guidance and training to judges in deciding disqualification/recusal motions.”

The Center for Judicial Ethics keeps have been keeping track of disqualification provisions related to campaign contributions in a document available on the “learn more about judicial ethics and discipline page” on the Center web-site.

No secret

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The recent “report not contested” the Arkansas Judicial Discipline and Disability Commission submitted to the Arkansas Supreme Court to resolve the discipline case against Judge MIchael Maggio has been much in the news, attracting attention because of the incongruity between the dignity of the office and the judge’s numerous vulgar, biased, and altogether inappropriate comments on a fan-site and the fact that some of the comments involved a famous actress.

The judge admitted that he was the author of the “geauxjudge” posts on the web-site http://www.tigerdroppings.com/, a Louisiana State University sports fan forum page.  The Commission found that the judge’s comments on the fan-site were not anonymous.

There were dozens, if not hundreds, of . . . posts identifying you as the poster through context and comments. Additionally, you made no secret that you were in fact a sitting judge and continually commented on your job and your role as a judge. Even your screen name indicated your official position.

There is some protection on [electronic social media] when you control the account. A person can shut down their own Facebook or Twitter account. They can also text individuals without broadcasting their comments to the world wide web without constraint. The site http://www.tigerdroppings.com/ did not require a person to be a member to look at all of your comments. What you actually did was use a pseudonym and identify yourself through context while broadcasting to the public the comments that would ultimately bring you to discipline.

The volume of your comments result in much more than a problem of taste, decorum or personal opinion. It adds up to someone who demonstrates that he is unfit for the bench. Your actions offended and, even worse, gave rise to legitimate concerns that bias would overcome fairness and due process for a large number of potential litigants and their attorneys. Even the cases that you decided based purely on the facts and the law are now suspect by parties who look at the kind of statement you made. Whether it is race, gender, sexual orientation or specific subject matter, your comments made it impossible for you to be taken seriously as a judge who would be fair and impartial. You essentially disqualified yourself from the bench.

The Commission recommended that the judge (1) be removed from office for, on the site, (a) posting comments regarding the closed adoption of a famous actress and (b) making inappropriate statements about official duties, pending cases, and independent investigations, and (2) be suspended with pay until the end of his term for (a) inappropriate gender, race, and sexually related statements on the fan-site, (b) spoliation of evidence, and (c) improper handling of a hot check case in which he was the victim.  The removal will be effective at the end of his term on December 31, 2014; the Commission noted removal has a legal effect because it is permanent and prohibits him from holding judicial office in Arkansas.

Award-winning advisory opinion

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Between the rules restricting judicial speech and the confidentiality rules for their proceedings, judicial conduct commissions are not usually seen as champions of free speech. But recently, the Georgia First Amendment Foundation gave its 2014 Charles L. Weltner Freedom of Information Award to the Georgia Judicial Qualifications Commission for its 2013 advisory opinion disapproving the systematic exclusion of the public from courtrooms. The staff and members of the Commission were honored at a dinner.

Following the U.S. Supreme Court’s reversal of a criminal conviction because the trial court had excluded the public from voir dire in Presley v. Georgia, the Commission had received requests from “judges for guidance as to how best to ensure compliance with the law regarding public access to judicial proceedings.” The Commission had also received complaints about court staff or sheriff’s deputies excluding the public from courtrooms, court personnel demanding that individuals state their business before being allowed to enter a courtroom, and signs on courtroom doors such as “no children,” “attorneys and defendants only,” or “no guests or family permitted.”

Concluding that those “practices are, generally, improper,” the advisory opinion disapproved the “systematic exclusion of the public by the court.” Georgia Advisory Opinion 239 (2013). (The Georgia Commission is one of 10 conduct commissions that issue advisory opinions to judges as well as investigate complaints against judges; in most states, the two roles are separate.) The Commission explained that “logistical concerns (i.e., too little space, too many cases on the calendar, etc.) . . . cannot be resolved by the blanket exclusion of the public, or a specified class or portion thereof, without violating both the law and the Code of Judicial Conduct.” Acknowledging that many courtrooms lack adequate space, the opinion urged judges “to consider options and alternatives . . . including, but not limited to, viewing rooms, additional seating, smaller calendars, or dividing the docket between morning and afternoon calendars.” (Here is an article about one such courtroom renovation.)

The Commission emphasized that its opinion did not apply to a judge’s decision to close a specific proceeding based on findings made on the record and consistent with the law.

In making the award, the president of the Foundation stated that, “By issuing the opinion, the JQC significantly, and almost immediately, improved public access to court proceedings in Georgia. The commission advanced the cause of government transparency to the benefit of all Georgia citizens.”