Monthly Archives: January 2015

Recent news

Posted on by

Minnesota Board of Judicial Standards issues formal advisory opinion on the activities of retired judges appointed to serve as senior judges.

California Supreme Court Committee on Judicial Ethics Opinions issues advisory opinion on disqualification due to a judge’s prior, brief appearance in a case as a deputy district attorney in a non-substantive matter.

New Jersey Administrative Office of the Courts issues administrative directive on limitations for judges and justices who wish to attend annual state of the state, city, or county addresses.

North Carolina Supreme Court publicly reprimands judge for failing to follow Servicemember’s Civil Relief Act in divorce proceedings.

 

 

2014 sanctions

Posted on by

In 2014, as a result of state disciplinary proceedings, 123 or former judges in 34 states were publicly sanctioned.

• 10 judges (or former judges in two cases) were removed from office
• One judge was suspended without pay until the end of her term and censured
• Two judges were retired due to disabilities
• One former judge was permanently barred from judicial office and censured
• 14 judges resigned or retired in lieu of discipline pursuant to public agreements with conduct commissions
• 95 additional judges (or former judges in approximately 17 cases) received other public sanctions. Approximately half of the sanctions were entered pursuant to the judge’s agreement

Of those 95 judges,

  • 16  were suspended without pay for from 30 days to one year
  • 15 were publicly censured
  • 39 were publicly reprimanded
  • 16 were publicly admonished
  • Five received other sanctions (a private reprimand made public pursuant to the judge’s waiver, a public warning, a private warning made public pursuant to a finding of discretionary disclosure, a letter of informal adjustment, and a one-year law license suspension for a judge whose judicial position does not require a license)
  • Four former judges were disciplined for their conduct as judges in lawyer discipline proceedings (one disbarment, one indefinite suspension of law license, one six-month suspension, one four-month suspension)

(There is one case included in the count for  which the time for review has not yet expired; if the judge asks for review, the number of admonishments will be reduced by one.)

National College on Judicial Conduct and Ethics

Posted on by

The Center for Judicial Ethics of the National Center for State Courts will hold the 24th National College on Judicial Conduct and Ethics on October 28-30, 2015, at the Embassy Suites Chicago – Downtown/Lakefront.

The College will begin Wednesday October 28 with registration (beginning at 2) and a reception (from 5:30 to 7). Thursday morning there will be a plenary session, followed by concurrent break-out sessions through Friday noon. The registration fee is $375 through August 23, but $400 beginning August 24. Room rates at the hotel begin at $219 a night, plus tax, single occupancy.

The College provides a forum for judicial conduct commission members and staff, judges, judicial ethics advisory committees, and anyone interested in judicial conduct to discuss professional standards for judges and current issues in judicial discipline. The specific topics to be covered in the sessions are still being planned.  More information will be posted on this blog as it becomes available.

Recent news

Posted on by

The California Supreme Court revised the prohibition on membership in organizations that practice invidious discrimination (Canon 2C) to eliminate the exceptions for official military organizations of the U.S. and non-profit youth organizations.

The New Jersey Supreme Court held that two judges violated the code of judicial conduct by socializing in public with a defendant who awaited trial on criminal charges, but the Court did not impose a sanction because it modified the appearance of impropriety standard in its decision to make it objective.

The transcript for the oral argument before the U.S. Supreme Court on the First Amendment challenge to the canon prohibiting personal solicitation of campaign contributions is on-line.

 

 

Confidentiality

Posted on by

Two recent decisions address the confidentiality of judicial discipline proceedings – one about what commissions can prohibit others from disclosing and one about what commissions can be required to disclose.

Forced silence

Granting a preliminary injunction, the U.S. District Court for the District of Montana enjoined the Judicial Standards Commission from prosecuting a complainant for publishing a complaint he had filed with the Commission and the letter he received dismissing that complaint. Cox v. McLean, 2014 U.S. Dist. LEXIS 139341 (September 30, 2014).

A rule adopted by the Commission provided that every witness will be sworn not to disclose “the existence of the proceeding or the identity of the judge until the proceedings are no longer confidential” – which for dismissed complaints is permanently – and that violation of that oath is punishable as contempt.

According to the court, the plaintiff “became aware of actions allegedly taken by a Montana state district court judge” and filed a complaint with the Commission in early June 2013. (According to news reports, the plaintiff filed a complaint accusing a judge of ethical violations in the plaintiff’s dispute with his ex-wife over visitation rights for their two children.) The Commission determined that no ethical violation had occurred, informed Cox of its dismissal by letter, and reminded Cox of the confidentiality requirements. In response to a letter from Cox’s attorney, the Commission stated it would appoint a district court judge to conduct a contempt hearing if Cox breached the confidentiality of the complaint.

In a federal lawsuit, Cox alleged that he intends to seek the recall of the judge named in the complaint and to oppose the judge if he seeks re-election, and, as part of these efforts, to publish the complaint and the Commission’s letter dismissing the complaint but that he will not do so while there is a threat of a contempt citation. The federal court concluded that the plaintiff “makes a colorable claim that his First Amendment rights have been infringed” because he “wishes to criticize government officials and a government body for political reasons, but he is restricted from doing so by threat of civil or criminal prosecution.”

The court also concluded that “besides their conclusory assertion, Defendants make no attempt to justify the perpetual ban on Cox from publishing his dismissed complaint and the letter the Commission sent to him over one year ago.” The court acknowledged that “the reputation of a Montana judge, and the confidentiality of Commission proceedings, serves a legitimate purpose during an ongoing investigation.” However, it emphasized that rationale did not apply after Cox’s complaint had been “summarily dismissed by the Commission over one year ago” and was undercut by the defendants’ “argument that the fact of filing should be confidential even while the substance of the complaint can be disclosed . . . .”

Forced disclosure

Affirming the dismissal of a reporter’s complaint, the West Virginia Supreme Court of Appeals held information about complaints against judges dismissed by the Judicial Investigation Commission were exempt from disclosure under the state Freedom of Information Act. Smith v. Tarr, 2015 W. Va. LEXIS 12 (January 12, 2015).

In September 2012, a freelance news reporter sent a West Virginia FOIA request to the Commission for “the total number of [judicial ethics] complaints filed by year” against 27 circuit and family court judges identified by name. Subsequently, the reporter submitted a request for the same information for seven additional judges. The Commission denied the request, and the reporter filed an action for declaratory and injunctive relief.

The Court held that the information sought by the reporter fell within an exception to disclosure under the West Virginia FOIA for “information specifically exempted from disclosure by statute” because Commission Rule 2.4 provides that, absent a finding of probable cause, “the details of complaints filed or investigations conducted by the Office of Disciplinary Counsel shall be confidential.”

The Court distinguished a case in which it had held that State Bar rules that provided “all proceedings” of lawyer disciplinary matters, including private reprimands, were confidential public discipline was recommended for public discipline were “overly broad restrictions upon public access” that violated the open courts clause of the state constitution. “Rule 2.4 places significantly fewer restrictions on the public’s access to records,” the Court emphasized, because, unlike the bar rules, the Rules of Judicial Disciplinary Procedure “do not provide for private reprimands” and provide for public admonishments and public hearings on formal charges if a judge is found to have committed any unethical behavior. The Court also concluded that judges “occupy a markedly different role” in the judicial system than lawyers.

Lawyers are representatives of the public’s business, employed by individuals or entities based upon an intelligent understanding of the lawyer’s abilities, and the reporting of a dismissed ethics complaint poses no real threat to a lawyer’s reputation. Lawyers can defend themselves against such meritless complaints. Judges, however, are not in the same position. Judges lack the freedom to defend themselves publicly against all meritless complaints and to choose the cases or parties before them. . . .

Clear lines

Posted on by

Preparing to give a talk to some trial judges on disqualification reminded me of how murky the standards are for economic interests.  The rule in the model code and most states provides that a judge is disqualified if the judge knows that she has an economic interest in a party to the proceeding or in the subject in controversy (or if a spouse, domestic partner, parent, child, or any member of the judge’s family residing in the judge’s household has one).  Then, you look up the definition for “economic interest,” and it is “more than a de minimis legal or equitable interest.”  Then, you look up “de minimis legal or equitable interest,” and it is “an insignificant interest that could not raise a reasonable question regarding the judge’s impartiality.”  In other words, a judge is disqualified if he owns a big enough interest in a party to raise a reasonable question regarding his impartiality.

That does not provide much more guidance than the catch-all “impartiality might reasonably be questioned” standard.  The rule does not explain whether the significance of the interest is determined by the absolute dollar amount or the size relative to the judge’s overall worth, or to the company’s overall worth, or to the community average household worth.  Such ambiguity could result in judges with similar size interests in similar size companies reaching different decisions on when to disqualify.  Cf., Arkansas Advisory Opinion 1994-8 (a judge is not disqualified from a case in which a subsidiary of AT&T is a party when an estate for which the judge is the executor and a beneficiary holds approximately 1,000 shares of an equity income fund about 18% of which is invested in AT&T); Connecticut Advisory Opinion 2011-7 (a judicial official is disqualified from a collection case brought by a bank in which the judge owns approximately $25,000 worth of stock or bonds “despite the fact that the Judicial Official’s investment represented a miniscule percentage of the stock issued”); Virginia Advisory Opinion 2000-5 (1% or less of the outstanding stock in a publicly held corporation is usually de minimis unless the stock is of significance to the judge; “judges should be conscious that the public might view stock ownership as a disqualifying interest”).  See also Huffman v. Judicial Discipline and Disability Commission, 2 S.W.2d 386 (Arkansas 2001) (upholding the admonishment of an judge who entered an ex parte TRO at the request of Wal-Mart while he and his wife owned $700,000 in Wal-Mart stock; a dissenting justice noted the canons regarding disqualification for a financial interest “are confusing”).

The de minimis standard replaced a rule requiring disqualification when a judge owned an economic interest “however small” because the standard was too broad, albeit crystal-clear and easy to apply.  (That is still the standard for federal judges and judges in some states including Delaware and New Jersey.)

There are alternatives to too broad other than too vague, however.  Some states have specified what amounts trigger disqualification rather than making each judge on her own try to calculate what is de minimus.  In California, a disqualifying financial interest is defined as more than 1% or a fair market value exceeding $1,000.  In Colorado, more than a 1% interest or a fair market value exceeding $5,000 is disqualifying.  In Maryland, disqualification is required if the judge owns “(1) an interest as the result of which the owner has received within the past three years, is currently receiving, or in the future is entitled to receive, more than $1,000 per year; (2) more than 3% of a business entity; or (3) a security of any kind that represents, or is convertible into, more than 3% of a business entity.”

Although the “impartiality might reasonably be questioned” standard is necessary and necessarily general to address the myriad of unforeseeable circumstances that might effect a judge’s neutrality, when possible, conflicts that can be anticipated, like economic interests, should be addressed with helpfully specific rules.

What a difference a year makes

Posted on by

In January 2014, Michael Maggio was a circuit court judge running for the Arkansas Court of Appeals.  In March, he was exposed as “geauxjudge,” the writer of posts on Tiger Droppings, an LSU fan-site; his posts included comments regarding the closed adoption of a famous actress; inappropriate statements about official duties, pending cases, and independent investigations; and inappropriate gender, race, and sexually related statements.  He dropped out of the race and was removed from office by the Arkansas Supreme Court on September 11, based on the posts and other misconduct.  Today, January 9, 2015, he pled guilty to taking bribes — in the form of campaign contributions — to reduce a $5.2 million jury verdict in favor of a nursing home.

 

Compelling interests

Posted on by

One of the top judicial ethics stories of 2015 will be the U.S. Supreme Court decision on the question, “Does a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violate the First Amendment?” That challenge to the personal solicitation clause comes in a bar discipline case in which the Florida Supreme Court reprimanded an unsuccessful judicial candidate who had signed a letter soliciting campaign contributions during her campaign. Florida Bar v. Williams-Yulee, 138 So. 3d 379 (Florida 2014). The state court rejected the constitutional challenge, concluding the prohibition is narrowly tailored to effectuate “the State’s compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary . . . .” The court noted that other state supreme courts have also upheld the prohibition while “federal courts that have considered this issue—whose judges have lifetime appointments and thus do not have to engage in fundraising—are split.” (For more information, see the Center for Judicial Ethics compilation on caselaw following White.)

The reprimanded attorney filed a petition for writ of certiorari, which the Florida Bar supported, and the U.S. Supreme Court granted review.

The last time the U.S. Supreme Court spoke on the constitutionality of a canon in the code of judicial conduct was in 2002, when it held unconstitutional a clause that prohibited judicial candidates from announcing their views on disputed legal and political issues. Republican Party of Minnesota v. White, 536 U.S. 765 (2002). That 5-4 decision left numerous questions unanswered – including the core question whether judicial elections can be different from other elections – and resulted in numerous other challenges. (In the interim, the Court decided, in 2009, that, when campaign contributions from the principal of one of the parties “had a significant and disproportionate influence” on the election of a justice, the risk of actual bias was “sufficiently substantial” to require disqualification under the Due Process Clause of the U.S. Constitution. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).)

23 states have the personal solicitation clause, which is also in the ABA Model Code of Judicial Conduct. (8 states have a narrower version of the prohibition; 11 states that have judicial elections do not prohibit personal solicitation of campaign contributions by judicial candidates; 8 states have no judicial elections.)

Numerous amicus briefs have been filed in the case.  The American Civil Liberties Union, several former judicial candidates who challenged the clause in other states, and the Thomas Jefferson Center for Free Expression have filed amicus briefs in opposition to the canon. Amicus briefs have been filed in support of the canon by  the Conference of Chief Justices, the attorney generals from 11 other states that have the prohibition, the American Bar Association, 3 former chief justices of the Florida Supreme Court and 9 active members of The Florida Bar, 4 former justices of the Texas and Alabama Supreme Courts (2 states that do not have the prohibition), the Brennan Center and Justice at Stake, and numerous other organizations and individuals.

Oral argument on the challenge to the personal solicitation clause is set for January 20.