Monthly Archives: September 2014

Judges and domestic violence

Posted on by

Several reporters have called the Center for Judicial Ethics to ask how many judges have been removed for domestic violence since the arrest of Judge Mark Fuller, U.S. District Court for the Middle District of Alabama, on battery charges for allegedly beating his wife in an Atlanta hotel room and his subsequent plea agreement to pre-trial diversion.

No federal judges have been removed or even impeached for domestic violence, although it is not clear whether that means it is not considered an impeachable defense or whether the question has not arisen because no other federal judge has been charged with domestic violence or any judges so charged have resigned or retired before impeachment could be considered.  The Federal Judicial Center has a list of impeachments.  There have been 15 impeachments of federal judges in the country’s 225 years; only eight led to conviction and removal; four of the other judges were acquitted, and three resigned so the articles of impeachment were dismissed.  The Center is not aware of any cases in which federal judges have been publicly disciplined for domestic violence.  The U.S. Court of Appeals for the 11th Circuit has ordered that all cases pending before Judge Fuller be immediately re-assigned to other judges and that no new legal matter be assigned to him.  According to news reports, Judge Fuller has been asked to explain his conduct to the Chief Judge, and a nine-judge committee has been appointed to handle the investigation, the first steps in the federal judicial discipline process.

There have been state judges or former judges publicly disciplined for domestic violence, although none have been removed, at least in the last 24 years.  A list of those cases is below.

The Georgia Judicial Qualifications Commission, with the consent of the judge, made public the fact that it had privately reprimanded a judge but not the content of the reprimand.  The report of disposition states that the Commission matter originated with media reports that the judge had been arrested based on allegations he engaged in a physical altercation with his wife.  Subsequently, the judge and the special prosecutor agreed that the charges would be dismissed based upon his pre-trial diversion agreement to attend marital and stress counseling.  In re Weaver, Report of Disposition (Georgia Judicial Qualifications Commission July 18, 2012) (www.gajqc.com/news.cfm).

Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly censured a former judge for committing domestic battery against his now ex-wife and having been convicted of the charge arising from the incident; the Commission also prohibited him from seeking and accepting judicial office in Nevada for four years.  He lost his re-election bid.  In the Matter of Abbatangelo, Findings of Fact, Conclusions of Law, Consent Order of Discipline (Nevada Commission on Judicial Discipline March 30, 2011) (http://judicial.state.nv.us/Finding%20of%20Fact–Abbatangelo%202011.pdf).

The Ohio Supreme Court suspended a judge’s license to practice for one year, but stayed the suspension with conditions, for two convictions of disorderly conduct because of physical altercations with his girlfriend.  Disciplinary Counsel v. Russo, 923 N.E.2d 144 (Ohio 2010).

Adopting the presentment of the Advisory Committee on Judicial Conduct to which the judge had consented, the New Jersey Supreme Court censured a former judge for domestic violence and causing a motor vehicle accident while driving in an intoxicated condition.  In the Matter of Paragano, Order (New Jersey Supreme Court January 30, 2007).

Approving a consent to censure based on stipulated facts, the Oregon Supreme Court publicly censured a judge who had pled guilty to assault for recklessly causing physical injury to his wife and entered into the domestic violence deferred sentencing program.  In re Moultrie, 139 P.3d 955 (Oregon 2006).

Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a part-time judge who had angrily confronted his wife, waved a knife close to her throat, and threatened to run her through.  In the Matter of Roepe, Determination (New York State Commission on Judicial Conduct June 27, 2001) (www.scjc.state.ny.us/).

The Washington Supreme Court censured a former judge and suspended him from office until the end of his term for intentionally striking or pushing his wife, causing her to fall.  The court also ordered that the judge complete a domestic violence program before he could serve in any future judicial capacity.  In the Matter of Turco, 970 P.2d 731 (Washington 1999).

Pursuant to a stipulation in which the judge admitted the allegations of the complaint filed by the Judicial Commission, acknowledged that he had no defense to those allegations, and agreed that the court might impose an appropriate sanction, the Wisconsin Supreme Court publicly reprimanded a former judge for battering his wife and causing her bodily harm.  The judge had run for re-election after the conduct had occurred and was defeated.  In the Matter of Crivello, 564 N.W.2d 785 (Wisconsin 1997).

In a stipulation and agreement between the Washington State Commission on Judicial Conduct and a judge who had twice intentionally struck and caused bodily harm to his then-spouse and entered a plea of guilty to two counts of assault, the judge agreed and stipulated to resign and terminate his judicial duties no later than December 1, 1993.  He also agreed not to seek or serve in any judicial office in Washington unless the Supreme Court granted a petition for reinstatement of eligibility.  In re Perkins, Stipulation and Agreement (Washington State Commission on Judicial Conduct October 21, 1993) (www.cjc.state.wa.us).

Mentorships

Posted on by

The Minnesota Board on Judicial Standards recently announced that it has initiated a mentorship program. The Board noted that, in the past, it rarely appointed mentors but that it has done so three times in 2014, in two matters that also included public reprimands and in one that involved a private admonition. It explained:

The Board’s focus is not to simply discipline a judge who has committed misconduct but also, if it appears the judge needs assistance in addressing the causes of the misconduct, to attempt to provide that assistance.

The current program involves the continuing participation of both a designated Board member and a mentor. The mentor is a judge or retired judge selected by the mentee judge and the Board. The mentor observes the mentee judge in court, meets with the judge, and offers guidance and support.

After the mentorships have been completed, the Board will ask both the mentors and the mentees for their reactions and suggestions. At this point, it appears that the mentorship program is working well.

In one of the two recent public cases noted by the Board, the judge was reprimanded for failing to follow the law in six cases, improper ex parte orders in four cases, chronic tardiness and related misconduct, and discourtesy to court staff. The Board required the judge to submit a plan to address the causes of his misconduct as well as to identify a mentor who will file reports on his progress with the Board.

In the second case, the Board publicly reprimanded a judge for failing to supervise his law clerk and approving inaccurate time sheets, refusing to allow a defendant to withdraw his plea, trying a defendant in absentia, and discourtesy to a psychologist. The Board required the judge to identify a mentor, complete an anger management program or therapy, and write a letter of apology to the psychologist.

Others commissions and courts also occasionally impose mentorships on judges in discipline proceedings, including two other examples so far in 2014.

When the Vermont Supreme Court publicly reprimanded a judge for a 14-month delay in scheduling a hearing on a grandfather’s motion to terminate a father’s parental rights, it approved conditions imposed by the Judicial Conduct Board, noting they were thoughtful and “tailored to avoid a recurrence of the failures that occurred in this case. . . .” The Board had required that the judge engage in a 12-month mentoring program with another probate judge and develop plans to ensure prompt scheduling and issuance of written decisions.

The Texas State Commission on Judicial Conduct ordered a judge to obtain four hours of instruction with a mentor judge, particularly in the area of receiverships, when it publicly admonished him for (1) granting non-delegable judicial powers to a receiver in a divorce case and (2) making a disproportionately high percentage of indigent court appointments to one attorney.  During the Commission proceedings, the judge had explained that the divorce case that was the subject of the complaint was the first case in which he had had to appoint a receiver and that was his only experience in that area of the law.

Mentorships may also be used in confidential dispositions of judicial conduct complaints. For example, in its most recent annual report, the New Mexico Judicial Standards Commission stated that, since its establishment in 1986, it has referred 83 judges for mentorships as part of informal dispositions.

Participating in charitable fund-raising

Posted on by

In the recently published summer issue of the Judicial Conduct Reporter, there is an article on participating in charitable fund-raising events (a follow-up to the article in the spring issue on “defining ‘charitable fund-raising event’”). The article reveals some consensus but also some splits among the state advisory committees and even over time on what types of participation are permissible and which are over-the-line for judges.

There may be a more lenient attitude developing toward judicial participation in fund-raising, particularly when a judge’s status as a judge is downplayed and his or her status as a member of the community is emphasized. Thus, a judge can solicit contributions from family members, since it is the family relationship, not the judicial office that is important there, and may under most circumstances be just one of the members of a band playing at an event or one of waiters at a dinner or one of the walkers in a walk-athon. But a judge cannot act as a celebrity waiter or run a 100-yard-dash in her robe or participate in a “dunk-the-judge” booth to raise funds.

So far no advisory committee has issued a formal, public opinion on whether judges may participate in the viral ice bucket challenge that has raised so much money for ALS research.  But the principles announced in previous opinions should be transferable.

More federal transparency

Posted on by

The U.S. Judicial Conference Committee on Judicial Conduct and Disability has released for public comment a draft of proposed amendments to the rules for judicial conduct and disability proceedings and has scheduled a public hearing for October 30 in D.C. The committee explained that the draft amendments “are designed to make the Act’s complaint process more effective and efficient, improve its transparency, clarify language in the JCD Rules, and fill procedural gaps. They deal with publication requirements, varieties of misconduct and disability, potential remedies, special-committee procedures, appeal rights, consultation options, and other matters.”

One of the proposed changes involves only switching one small word for another small word, but it could make a big improvement in transparency in some circuits. Where Rule 24b now states that final orders “must be made public by placing them in a publicly accessible file in the office of the circuit clerk or by placing the orders on the court’s public website,” under the proposed amendments, final orders “must be made public by placing them in a publicly accessible file in the office of the circuit clerk and by placing the orders on the court’s public website” (emphasis added). Commentary emphasizes that “Rule 24(b) makes clear that circuits must post on their external websites all orders required to be made public . . . .” (In the federal discipline process, unlike most states, all final orders are public although, if the complaint is dismissed or if a private censure or reprimand is issued, the judge’s name is not disclosed in the publicly available materials. For more about the federal judicial discipline process, visit the Center’s web-site.)

Many federal circuits already publish final orders on their web-sites, for example, the 1st, the 3rd, the 7th, the 9th, the 10th, and D.C.

New issue

Posted on by

One of functions of the 40+ judicial ethics committees across the county is to apply the canons of judicial conduct to newly-emerging issues. Recent examples include social media and problem-solving courts.

The latest issue arises from a recent initiative of the U.S. Citizenship and Immigration Services agency that asks judges to complete forms in connection with the petitions non-citizens for temporary immigration benefits that will enable them to remain in the country and available as witnesses in criminal prosecutions The petition must be accompanied by a “I-918B” form from a federal, state, or local official that certifies that the non-citizen is the victim of qualifying criminal activity (for example, rape, torture, or slave trade) and is, has been, or is likely to be helpful in the investigation or prosecution of that activity.

In a judicial ethics opinion, the North Carolina Judicial Standards Commission advised that judges should not execute I-918B forms or register as a “certifying official” authorized to sign the form on behalf of law enforcement agencies.  (The North Carolina 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 reasoned that certification by a judge as to the potential “helpfulness” of a witness to the prosecution of a criminal matter violates the code of judicial conduct prohibition on a judge providing voluntary character testimony. The Commission concluded that, “a judge should not make personal recommendations to a federal agency predicting how useful a victim or witness might or might not be to a future prosecution. Such assessments are, in essence, the endorsement of the victim’s honesty, reliability, potential for cooperation and other character traits.”

The Commission also found that “the form clearly solicits information more appropriately provided by law enforcement or prosecutors,” noting a judge “is responsible for the adjudication, not the prosecution, of criminal matters” and “is not a representative of the prosecutorial team and should not collude with law enforcement or prosecutors in evaluating the helpfulness of potential witnesses in a case.” The opinion also noted:

A judge’s determination as to the credibility of victims should be formed through the hearing and trial process, and not be determined prior to adjudication. Such active involvement in securing witnesses for the prosecution and predetermining their helpfulness puts the judge in an inappropriate role that could reasonably suggest bias, or the appearance of bias, on the part of the judge in potential violation of Canon 2A and Canon 3 which require a judge to act to promote public confidence in the impartiality of his or her office.