Three removals

Thursday October 30 was a busy day in judicial discipline as, coincidentally, three decisions were handed down that either removed a judge from office, suspended a judge without pay until the end of her term, or affirmed a removal.

The Florida Supreme Court removed a judge for operating a for-profit business from her judicial chambers using official time and judicial resources plus related misconduct that included a lack of candor during the investigation, for example, deleting in the early morning hours before her deposition financial data had been subpoenaed and she had agreed to produce.

The West Virginia Supreme Court of Appeals suspended a judge without pay until the end of her term (the Court does not have the authority to remove judges) for having an affair with the director of the community corrections program while he and his subordinates routinely appeared in her courtroom without disclosing the relationship to any defendant plus related misconduct.

The Pennsylvania Supreme Court affirmed without opinion the decision of the Court of Judicial Discipline removing a judge for lying repeatedly about his qualifications and other facts on the questionnaires he submitted to the Philadelphia Bar Association Commission on Judicial Selection and Retention while running for judicial office and twice being held in contempt in a court case arising from a Philadelphia Board of Ethics complaint against a PAC he represented and, to avoid paying a court-ordered fine, dissipating the PAC’s funds and engaging in delay, obfuscation, and deceit.

In lieu of discipline

After several years of news reports about possible investigations that accelerated in the last few weeks, Pennsylvania Supreme Court Justice Seamus McCaffery has retired. Pursuant to a limited waiver of confidentiality, the Judicial Conduct Board announced that it will dismiss its investigations of Justice McCaffery based on his retirement and agreement not to seek senior judge status or future election to judicial office. The Board explained:

Pursuant to its constitutional mandate, the Judicial Conduct Board has been investigating allegations involving Justice McCaffery for several months, including some of very recent origin which have been disclosed in the media.

If the Board were to continue its investigations and institute proceedings against Justice McCaffery in the Court of Judicial Discipline, and if it were to sustain its heavy burden of proof on any charge, the most serious sanction that could be imposed is removal from office and a bar to holding judicial office in the future. Since Justice McCaffery has retired and has agreed not to seek senior judge status and not to again seek elective judicial office, the Board has concluded that it is in the best interest of the judiciary and the judicial system of the Commonwealth to dismiss its investigation into the matters specifically referred to in the Supreme Court’s now-vacated order of October 20, 2014.

On October 20, the Pennsylvania Supreme Court had relieved Justice McCaffery “on an interim basis of any and all judicial and administrative responsibilities” with pay based on circumstances that “have been the subject of intense media attention.” According to the order, the allegations included that the justice may have contacted a traffic-court official regarding a traffic citation issued to his wife, may have authorized his wife, who is also his administrative assistant, to accept hundreds of thousands of dollars in referral fees from plaintiffs’ law firms, may have attempted to exert influence over a judicial assignment on the Philadelphia common pleas bench, and may have exchanged hundreds of sexually explicit e-mails with members of the state office of attorney general.

Although the Board’s statement does not indicate whether it dismissed the investigations pursuant to an agreement with the justice conditioned on his retirement and agreement not to serve, such resolutions of judicial conduct complaints are not unusual. In each of the last six years, there have been at least 10 resignations or retirements in lieu of discipline pursuant to public agreements in which the conduct commissions agreed to dismiss pending complaints against judges. For example, in 2012, 24 judges—more judges than any other year—resigned or retired and agreed not to serve in judicial office in the future pursuant to such agreements, including eight in Georgia, five in New York, four in New Mexico, and three in Texas. As the Texas agreements note, the agreements are entered into because both the commission and the judge “are desirous of resolving these matters without the time and expense of further proceedings.

So far in 2014, there have been 10 such dispositions, including a high profile one in which the New York State Commission on Judicial Conduct, accepting a stipulation and based on the judge’s affirmations that he will relinquish his judicial position on December 1 and will not seek judicial office in the future, concluded a matter involving the administrative judge for the criminal courts of New York City, who waived confidentiality to the extent that the stipulation could become public. The stipulation stated that, in May, the Commission had authorized an investigation of allegations that the judge had advised, assisted, and participated in the then-district attorney’s 2013 re-election campaign (which he lost); engaged in improper ex parte communications with the district attorney and others regarding pending matters; and advised the district attorney about managing the district attorney’s office, including strategies on responding to criticism of prosecutions that purportedly resulted in wrongful convictions. Those allegations were part of a report on the former district attorney by the New York City Department of Investigation that found the judge had sent about 300 e-mails to the district attorney from his judicial account.

Same-sex ethics

As the legal question of same-sex marriage is being decided across the country, the question whether a judge may ethically decline to perform such marriages is beginning to be addressed.

Noting that same-sex marriages are now permitted and recognized in the state as a result of several federal court decisions, the general counsel for the North Carolina Administrative Office of the Courts advised in a memo last week that a magistrate who conducts other marriages may not — regardless of the reason — refuse to perform the ceremony for a same-sex couple for whom a marriage license has been issued by the register of deeds.  Emphasizing that “performing marriage ceremonies is a ministerial act authorized as an official ‘additional power’ of magistrates,” the memo concludes that, if a valid marriage license is presented, a magistrate has the statutory duty “to conduct the marriage between the persons named in the license in the same manner as the magistrate would conduct any other marriage.” The memo states that a failure to do so would violate the equal protection clause of the U.S. Constitution and the oath the magistrate swore upon taking office to uphold the constitution and laws of the U.S. and would constitute a failure to perform a duty of the office. The memo cites Canon 2A of the North Carolina code of judicial conduct (“a judge should respect and comply with the law and should conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”) and Canon 3 (“a judge should perform the duties of the judge’s office impartially and diligently”).

Citing the corresponding provisions in its state code, the Washington State Commission on Judicial Conduct admonished a judge for, after same-sex marriage was approved by voters, publicly stating that he would not perform same-sex marriages but continuing to perform opposite-sex marriages. The judge accepted “the Commission’s determination that, by announcing he would not solemnize same-sex marriage due to his philosophical and religious concerns while continuing to solemnize opposite-sex marriages, he appeared to express a discriminatory intent against a statutorily protected class of people thereby undermining public confidence in his impartiality . . . .” The Commission stated:

Respondent is not required as a judicial officer to solemnize marriages. Having chosen to make himself available to solemnize some weddings, however, he is bound by the Code of Judicial Conduct to do so in a way that does not discriminate or appear to discriminate against a statutorily protected class of people.

The Code of Judicial Conduct imposes on judicial officers a specific, enforceable obligation to avoid bias and the appearance of bias. These obligations go beyond those imposed on others who serve the general public, reflecting the unique and integral role judicial officers play in our constitutional scheme of justice honoring the rule of law. Judges must not only be impartial, but must also be perceived as impartial, in order to properly fulfill that role . . . .

By even temporarily acting in a discriminatory fashion toward gay men and lesbians, in stating that he would not solemnize their marriages when he continued to solemnize heterosexual marriages, and by commenting on that decision publicly, a reasonable person could objectively conclude that he might act in a discriminatory fashion toward gay or lesbian litigants, lawyers, or witnesses.

In contrast, the New York Advisory Committee on Judicial Ethics ducked the issue by stating whether a judge may adopt a policy that distinguishes between same-sex and opposite-sex couples was primarily a legal question, not a question of ethics.

Another “ice bucket” opinion

The number of advisory opinions on judges participating in the “ice bucket challenge” to raise funds for ALS is now up to two with Tuesday’s release of an opinion from the New York Advisory Committee on Judicial Ethics stating that a judge may not participate in the challenge because each participant is required to publicize her participation and publicly solicit other participants.  However, the committee stated a judge may contribute if she does so without personally soliciting funds or otherwise promoting the fund-raiser.

Viral fund-raising

In a post about charitable fund-raising several weeks ago, I stated, “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.” That changed recently with an opinion from the Maryland Judicial Ethics Committee advising that a judge may participate in the ice bucket challenge but only if it is clear that the judge is acting in a personal capacity.

Thus, the committee stated, when a friend specifically identifies the judge by title and the court on which he sits, a judge may not accept the challenge by dousing himself in ice and posting a recording on a social media web-site. However, the committee noted a judge may make a donation in response to the challenge and inform his challenger without using social media or publicly challenging others.

The committee also advised that a judge may respond to a challenge by a family member or friend that does not disclose her office if she exercises care not to disclose her judicial status or permit others to do so, refrains from inappropriate use of court premises or resources, and does not coerce others or take action that would reasonably be perceived as coercive.

Finally, the committee stated that, although a judge may solicit contributions from “judges over whom the judge does not exercise supervisory or appellate authority,” that exception does not include a public challenge issued via social media, which would be accessible not only to the judges’ on-line “contacts, but potentially, to thousands of people within the social network.”

Lobbyists & judges’ associations

I was asked recently about lobbyists for state judges’ associations and found three advisory opinions, summarized below.

  • A judge may be a member of the Colorado District Judges’ Association even though dues will be used to hire a lobbyist to advance the members’ interests. Colorado Advisory Opinion 2008-6.
  • An association of judges may engage a lobbyist to advocate legislation on matters such as terms of judicial office, retirement benefits, and other court system and personnel issues. New York Advisory Opinion 98-5.
  • A judges’ association may hire a lobbyist to represent its interests. South Carolina Advisory Opinion 12-2009.

Judges, politics, and family

The approaching elections raise the biennial issue for judges of balancing the ideal of judicial independence from politics (as far as possible) with a family member’s desire to run for office or participate in campaigns. The problem is particularly acute in the context of the home a judge shares or co-owns with a spouse or domestic partner.

The Indiana Judicial Qualifications Commission recently issued an advisory opinion providing guidance for the state’s judges on the issue. The question, the Commission explained, is whether a family member’s use of jointly-owned property for political activity would appear to the casual, average bystander to be an impermissible abuse of the prestige of the judicial office. The Commission stated, for example, that there is no blanket prohibition on a judge’s home being used for campaign events by a family member as long as the judge does not publicly assist in preparations for the event.

Although, as the Indiana Commission notes, various ethical bodies are divided, positions on judicial family involvement in politics have definitely evolved, echoing perhaps an evolution in the views on marriage of the average, casual bystander (in other words, the reasonable person). In 1976, the New Jersey Supreme Court lifted a ban on a judge’s spouse running for office. The Court explained that the “autonomy of the judge’s spouse should simply be accepted as an understood premise of modern life,” and the public should accept the political neutrality of a judge despite the political involvement of the judge’s spouse. Application of Gaulkin, 351 A.2d 740 (New Jersey 1976).

The Illinois Judicial Ethics Committee applied those principles to the issue of a judge’s spouse posting a campaign sign in their yard. The committee emphasized that today “the likelihood of a sign being misinterpreted as the judge’s act is . . . reduced by the accepted view that married individuals remain individuals with separate property rights and beliefs.” The committee stated that, if spouses cannot agree on how their joint property can and cannot be used in a campaign, “the judicial spouse cannot bar his or her spouse’s independent act by fiat or self-help.”  (There are opinions that prohibit such use, although none provide advice on how that conversation would go and how the judge would enforce that edict.) The committee concluded that the possibility that “some people will misinterpret the campaign sign as a prohibited political endorsement by the judge” does “not justify curtailment of a spouse’s right to political expression.”

Of course, the freedom for a judges’ family members does not eliminate the need for judge, as the Indiana opinion states, to “conduct themselves deliberately and take all reasonable
efforts to minimize any effect” family political activity may have on public confidence in the courts.