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

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.