Monthly Archives: February 2015

Recent news

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  • The Kansas Supreme Court suspended a judge without pay for 90 days for (1) making offensive and demeaning comments of a sexual nature to female attorneys and staff members; (2) sending an ex parte email to an attorney’s client that expressed bias or prejudice toward the attorney, in part based on the judge’s apparent disagreement with the attorney’s moral beliefs; and (3) trying to broker an employment opportunity for his wife.
  • Granting 2 unrelated petitions to accept stipulations, the New Mexico Supreme Court ordered the permanent resignation of 1 judge and the permanent retirement of another.
  • The New York State Commission on Judicial Conduct censured a judge for (1) being discourteous to 2 defendants and committing them to jail for summary contempt without following the procedures required by law and (2) making injudicious statements to and about attorneys. Based on stipulations of facts and stipulated violations, the Ohio Supreme Court suspended a magistrate for 2 years for exhibiting a demeaning attitude toward counsel and litigants in 2 matters; the Court stayed the suspension conditioned on his committing no further misconduct and complying with a contract with the Ohio Lawyers Assistance Program.
  • The Committee on Judicial Conduct and Disability of the U.S. Judicial Conference denied a petition for review of an order dismissing a complaint that a judge on the U.S. Court of Appeals for the 5th Circuit made statements during a public lecture on the death penalty that exhibited bias toward certain classes of judicial claimants and claims or that were related to the merits of pending cases.

 

 

Same-sex ethics

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In an opinion, the Arizona Judicial Ethics Advisory Committee has advised that a judge cannot refuse to perform same-sex marriages if the judge is willing to perform opposite-sex marriages although a judge may choose not to conduct any marriages at all because performing marriages is a discretionary, not mandatory, function.

This is the first public, formal judicial ethics advisory opinion on the issue.  Others materials are discussed at this previous post.

 

Déjà vu

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Beginning with the Yogi Berra quote, “’Déjà vu all over again,’” the Iowa Supreme Court recently explained that it expected “lawyers and judges to learn from their mistakes.  When a judicial officer repeats violations of the same ethical rules, sanctions can escalate.”  Thus, it publicly reprimanded a part-time judge for a “second warrant related transgression,” instead of the private admonition the judge had received seven years ago.  In the earlier case, the judge had signed a search warrant for the home of a woman he had sued on behalf of a client he represented in a custody dispute; the subsequent conviction had had to be overturned because his conflict invalidated the warrant.  In the second case, the judge had signed a search warrant for the home of a client (the suspect was her son) whom he represented in a custody dispute.  Rejecting the judge’s argument, the Court concluded that he should have learned from the first case “to recuse himself from any search warrant application targeting someone who is a party in a case in which he is counsel of record.”

The Washington State Commission on Judicial Conduct recently publicly reprimanded a judge for telling a defendant his fedora would be removed if he did not provide support for his statement that wearing the fedora was part of his Jewish faith, an escalation from its 2006 public admonishment of the same judge for requiring a woman, who was attending court in support of a relative, to remove the head scarf she wore for religious reasons or leave his courtroom.

In three cases in 2014, that a judge had received a previous sanction – proximate in time and/or related in subject to the subsequent misconduct — was a significant aggravating factor in the judge’s removal (although not the only one).

In In re McCree, 845 N.W.2d 458 (Michigan 2014), the Michigan Supreme Court emphasized in removing a judge that his willingness to engage in a sexual relationship with a complaining witness in a case pending before him while the Judicial Tenure Commission was investigating other allegations “demonstrates the extent of his disregard for the rules of judicial conduct.”

In April 2012, the judge had told a reporter, “There is no shame in my game” about a picture of himself shirtless he had sent to his bailiff via cell phone.  The Commission began investigating and eventually the Court censured the judge (with his consent) for bringing “shame and obloquy” to the judiciary by his flippant manner in the interview.  In re McCree, 821 N.W.2d 674 (Michigan 2012).

In May 2012, the judge began a sexual relationship with the complaining witness in a case in which the defendant was charged with failure to pay her child support.  The judge did not transfer the case to another judge until September.

The New York Court of Appeals removed a judge for presiding over matters involving (1) a lawyer who was her close friend and personal attorney (Lawyer A); (2) a lawyer who was her former attorney (Lawyer B); and (3) a lawyer who was or had been her campaign manager.  In the Matter of Doyle, 17 N.E.3d 1127 (New York 2014).  The Court emphasized the 2007 censure the judge had received from the State Commission on Judicial Conduct for her misleading and evasive testimony in its investigation of her role in a fund established to help pay for legal expenses of Lawyer A – an investigation in which she was represented by Lawyer B.  The Court concluded:

Without question, a heightened awareness of and sensitivity to any and all ethical obligations would be expected of any judge after receiving a public censure.  Petitioner’s failure to exercise that vigilance within just a year of her prior discipline is persuasive evidence that she lacks the judgment necessary to her position.

The Mississippi Supreme Court removed a former judge and fined her $1,000 for wrongfully incarcerating eight parents and three minors without affording them basic due process rights.  Commission on Judicial Performance v. Darby, 143 So. 3d 564 (Mississippi 2014).  The Court noted that in 2011 it had publicly reprimanded the judge and fined her $500 for depriving a parent of her constitutional right of due process.

 

Belated remorse

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In determining the appropriate sanction in discipline proceedings, whether a judge is repentant is treated as a predictor of whether the judge is likely to re-offend. There are cases in which a judge’s prompt acknowledgement of responsibility has made the difference between removal from and remaining on the bench. In 2014, however, remorse was too little, too late to prevent the removal of two judges.

The Indiana Supreme Court removed a judge for substantial administrative failures, inappropriate demeanor toward attorneys and court employees, and retaliating when she thought court staff had complained to or cooperated with the Commission on Judicial Qualifications. In the Matter of Brown, 4 N.E.3d 619 (Indiana 2014). The Court found “particularly egregious” that 10 defendants were not released from jail until three to 22 days after they should have been as a result of the judge’s failure to complete necessary paperwork and to adequately train and supervise court staff.

The Court stated that the judge’s post-hearing apology was “entitled to little mitigating weight” because she made it after putting “the Commission to its burden of proof at a lengthy hearing” and after failing to cooperate in the Commission investigation, including refusing to take an oath at her deposition. Also in aggravation, the Court noted that the judge “was not a novice” and others in the court system had attempted to assist her. “Regrettably,” the Court concluded, the judge’s “pattern of neglect, hostility, retaliation, and recalcitrance toward investigating officials indicates an unwillingness or inability on her part to remedy deficiencies, alone or with others’ assistance.”

The Florida Supreme Court removed a judge for operating a for-profit business from her chambers on official time and using judicial resources and her judicial assistant; offering to sell the business’s products (books) in the courthouse to lawyers who appeared before her and courthouse employees; promoting the sale of the books on a web-site that included photographs of her in her robes; failing to pay state sales tax on the book sales and to register the name of her business under the fictitious name law; and a lack of candor during the investigation. Inquiry Concerning Hawkins, 151 So. 3d 1200 (Florida 2014).

The Court noted that the judge had not accepted responsibility for her actions or acknowledged their impropriety until her response to the Court’s second order to show cause why she should not be removed. The Court concluded that her belated apology when faced with removal “fails to overcome the grievous nature of her conduct during this proceeding, which was ‘fundamentally inconsistent with the responsibilities of judicial office’ and which ‘struck at the heart of judicial integrity.’” Thus, it concluded, her “prior record of service and good intentions” did not outweigh her misconduct.

Recent news

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Based on the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for assuming the role of the prosecutor by directly negotiating deferral agreements with defendants (or allowing her clerk to do so), rather than allowing the prosecutor to offer these agreements, and permitting deferral payments to be sent directly to the court, rather than to the prosecutor’s office.

Based on an agreement and the judge’s resignation, the Indiana Supreme Court ordered a judge permanently banned from serving in any judicial capacity for misusing her judicial authority; failing to follow proper legal procedures in guilty plea and sentencing hearings; injudicious behavior outside of the courtroom (including a comment on the Facebook page of her children’s father); and failing to cooperate with the Commission on Judicial Qualifications.

The Florida Supreme Court dismissed a case after the judge resigned following the Judicial Qualifications Commission recommendation that she be removed for twice taking the bench in drug court while impaired and being involved in a motor vehicle accident after walking away from a substance abuse program.

The Michigan Judicial Tenure Commission released its 2014 annual report, which includes statistics about complaints received, investigated, and disposed of and summaries of eight public proceedings and eight non-public proceedings (four letters of admonishment and four letters of caution)

The Arizona Commission on Judicial Conduct released its annual report for 2014, which includes statistics about complaints received, investigated, and disposed of and summaries of three public sanctions and five advisory letters and five warnings.

The Illinois Supreme Court added a comment to Canon 4 of the state’s code of judicial conduct that states “a judge may serve on a committee that includes other judges, attorneys and members of the community for the purpose of developing programs or initiatives aimed at improving the outcomes for juveniles involved in the juvenile court system, or adults in the criminal court system.  Such programs may include diversion, restorative justice and problem-solving court programs, among others.”

 

 

NCSC seeking expert for Justice Project in Bosnia and Herzegovina

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The International Programs Division of the National Center for State Courts is seeking to hire on a short-term basis a qualified expert in judicial or attorney bar regulation to perform a three-week assignment in April/May 2015 in Sarajevo, Bosnia and Herzegovina (BiH).  Interested persons are encouraged to send an expression of interest and a resume to Timothy Hughes at thughes@ncsc.org.

In collaboration with Project staff, the expert will assist with the following activities:  (1) review disciplinary actions by Office of Disciplinary Counsel (ODC) and decisions made by High Judicial and Prosecutorial Council (HJPC) in disciplinary matters, including sanctions, (2) develop guidelines for determining and issuing appropriate disciplinary sanctions, and (3) develop an outline of contents of a benchbook for use by HJPC disciplinary committees and a handbook for ODC disciplinary counsel in processing disciplinary matters.  With Project staff assistance, the expert will review BiH regulations governing the disciplinary process and analyze disciplinary cases.  As a main deliverable, the expert will assist in developing sanctioning guidelines for use by the HJPC and ODC in the disposition of disciplinary matters.  As a secondary deliverable, the expert will assist in developing outlines of the benchbook and handbook.  The Project will provide technical support and translation assistance.  The expert should have 10 years of relevant experience in the professional regulation of judges/lawyers and in processing disciplinary cases.  Experience working abroad on international rule of law assignment is preferred, especially in BiH or similar country setting.

NCSC is implementing a five-year Justice Project in BiH, funded by the United States Agency for International Development in association with Government of BiH.  An overarching purpose of the Project is to help BiH justice sector institutions better ensure the integrity of public institutions.  The HJPC and ODC are mandated by law to oversee the professional regulation of judges and prosecutors.  The Project collaborates closely with the HJPC and ODC to strengthen the disciplinary process for judges and prosecutors with the aim of ensuring fairness and transparency, deterring misconduct through disciplinary measures, and promoting preventive educational training on ethics.

 

Reminders

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A recent judicial discipline case is a reminder of the importance of the prohibition on ex parte communications.

In the case, the North Carolina Supreme Court publicly reprimanded a judge who had entered a default judgment against the defendant in a civil complaint for child custody, child support, alimony, etc. without first appointing counsel for him — despite knowing that he was a soldier stationed in Korea and contrary to the Servicemember’s Civil Relief Act of 2003. The Act provides “in plain language,” the Court explained, that, if it appears that a defendant is in military service, a court may not enter a default judgment until it appoints an attorney to represent the defendant. The soldier and his commanding officer had informed the judge in letters that he could not participate in proceedings before he returned.

The judge entered the default judgment when the defendant did not comply with an order entered after a hearing on the plaintiff’s request for additional information concerning the soldier’s status and future availability. The soldier had not been served with the motion, had no notice of objections to a stay, and was not present or represented at the hearing. At the hearing, plaintiff’s attorney provided the judge with Crossing the Military Minefield: A Judge’s Guide to Military Divorce in North Carolina. The publication details ways that a judge could deny a stay by finding that a servicemember did not show “good faith and diligence” when responding to a court action. The Judicial Standards Commission found that the judge “imprudently” relied on plaintiff’s counsel and failed to “sufficiently perform[] her own independent inquiry and research.” The judge had consented to the reprimand.

The case is also a reminder of the unfortunate action taken by the North Carolina legislature in 2013 eliminating the Commission’s ability to publicly reprimand judges with their consent and without a formal proceeding and eliminating public judicial discipline proceedings, keeping the charges, hearing, and recommendation confidential unless and until the Court decides a judge should be publicly sanctioned. The 2013 bill placed North Carolina in the minority within a minority, joining only 16 other jurisdictions with closed formal hearings and only three jurisdictions (Delaware, Hawaii, and D.C.) in which recommendations are also confidential and proceedings become public only if a court decides on public discipline.

This is the first public discipline in North Carolina since the change was made. (There had been one public sanction in 2013, four in 2012, three in 2011, three in 2010, and three in 2009.) Because of the unjustified extra secrecy imposed in 2013, it is impossible to tell how many recommendations are currently pending before the Court, how many may have been rejected, and why. Therefore, the public cannot evaluate whether the Commission and the Court are diligently protecting the integrity of the judiciary. It is reasonable of the public not to have much confidence in a process that hides so much from its view, particularly when the information used to be available.

Judges and onlookers

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In a twist on the recurring issue of the ethics of judges’ social lives, the New Jersey Supreme Court held that two judges violated the code of judicial conduct by socializing in public with a defendant who was awaiting trial on criminal charges but did not impose a sanction because it modified the applicable standard.

Since 2000, the two judges and a group of friends dined at a restaurant on Thursday evenings and attended mass together afterward. The judges continued to meet with the group even after one of the members, a former public official, was indicted for official misconduct. A guest at a meeting of a local Republican organization held at the same restaurant observed the two judges dining with the indicted individual and complained to the Lieutenant Governor, who referred the matter to the Division of Criminal Justice, which referred it to the Advisory Committee on Judicial Conduct.

The judges voluntarily stopped dining with the group as soon as they learned about the grievance from the Committee. Both judges fully cooperated with the investigation and admitted the facts but argued that they had not violated the code of judicial conduct.

The Court noted that the standard for appearance of impropriety in New Jersey is whether there is “a fair possibility that some portion of the public might [be] concerned” about the conduct regardless whether the concern was reasonable. That has been the standard since 1991 when the Court publicly reprimanded a judge who had attended a widely publicized picnic hosted by a convicted felon, the judge’s friend for 18 years, held two days before his sentence was to have begun and attended by 150 to 200 people. In the Matter of Blackman, 591 A.2d 1339 (New Jersey 1991).

Noting that a majority of states rely on an objective standard, the Court modified its standard to add an objective element: “Would an individual who observes the judge’s personal conduct have a reasonable basis to doubt the judge’s integrity and impartiality?” The Court explained:

Ethical principles that are meant to guide judges cannot depend on unreasonable judgments reached by a few, even if such inferences are possible. And discipline should not be imposed on the basis of questionable deductions that one or more members of the public draw. In any event, appropriate measures of conduct should provide clear guidance in advance.

That approach appropriately protects the reputation of the Judiciary and, by extension, the public. It still requires that judges tailor their personal behavior to avoid the appearance of impropriety. And when there is a reasonable basis to doubt a judge’s behavior, the questioned conduct would be forbidden and could subject the jurist to discipline.

Applying that standard, the Court concluded “socializing in public with a defendant who awaited trial on criminal charges” could cause a reasonable observer to question the judges’ impartiality and weaken the public’s confidence in the judicial system and, therefore, the judges had violated the code.

Curiously however, although the judges’ conduct was wrong under both the old and new standards, the Court declined to impose any sanction because it had changed the test. The Court did warn it would do so in the future under similar circumstances. Noting this was not “a random encounter in a public place that led to a brief, courteous exchange,” the Court stated that it was not requiring judges “to shun dear, lifelong friends or family members who face criminal charges” but was advising that “planned social interactions . . . are best held in private without a group of onlookers.” The Court appealed “to judges’ good common sense” and noted judges may seek advance guidance from the state’s advisory committee.

Speaking of family members facing criminal charges, the New York Advisory Committee on Judicial Ethics issued two opinions in 2014 on disqualification when prosecutors and defense attorneys in a case before a judge are also involved in a criminal case against a relative of the judge. The opinions are here and here.