Monthly Archives: March 2015

Super-prosecutor

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Several recent judicial discipline cases should remind judges that the line between being a judge and being a prosecutor is bright and should never be blurred.

Based on an agreement, the Arkansas Commission on Judicial Discipline & Disability Commission censured a judge for issuing arrest warrants for 4 persons without probable cause presented by any law enforcement officer or the prosecuting attorney, as well as a pattern of rude, impatient, and undignified temperament.

For example, during an appearance on charges of driving on a suspended driver’s license and no proof of liability insurance, Andre Ford requested a continuance and the appointment of a public defender.  With no probable cause documentation presented by any law enforcement officer or the county prosecutor, the judge sua sponte issued a warrant for Ford’s arrest on charges of obstruction of governmental operations.  The judge appeared angry and agitated and verbally berated Ford from the bench.  At trial, the state moved to nolle prosequi the charges, but the judge refused and found Ford guilty of a charge the state offered no evidence to support.  (The public defender’s office appealed, and, ultimately, the charge was dismissed at the request of the state.)

The Commission found that the judge was unable to separate the authority of his “judicial office from that of the local prosecuting attorney or local law enforcement.”

Your conduct of acting as a “super-prosecutor” toward [the 4 defendants] could reasonably be perceived as reflecting bias against those appearing before you.  The concept of a “super-prosecutor” is not a role for the judiciary.  Judges should seek to avoid entering into situations where their actions could be viewed as such.  Acting in disregard of the law and the established limits of your judicial role to pursue a notion of the greater good for Union County violates Rules 1.1, 1.2 and 2.2 through 2.8.  Your role is different from the local prosecutor and the local law enforcement for a reason.  You shall at all times and to the best of your abilities, remain a neutral and detached magistrate.

Based on the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for contacting an attorney to offer a deferral agreement to the attorney’s client, who had received a speeding ticket and engaging in a process whereby she or her court clerk would directly negotiate deferral agreements with defendants, rather than allowing the prosecutor to offer these agreements.

In response to the Commission’s inquiry, the judge had indicated that her court, not the prosecutor, had been evaluating and offering traffic ticket deferrals to eligible defendants, using criteria provided by the prosecutor.  The proffered deferral agreements were entitled “Fremont Town Court, Honorable Judge Hagerty Deferral Agreement” and instructed litigants to remit payment directly to the court, rather than to the prosecutor’s office.  The judge acknowledged that, by communicating (or allowing her clerk to communicate) an offer to a defense attorney to resolve a client’s traffic infraction, she gave the impression that she stood in the role of prosecutor as well as judge.

Recent news

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The Louisiana Supreme Court suspended a judge for 30 days without pay for holding an assistant city prosecutor in contempt and then ordering the dismissal of the criminal cases on the docket that day.

The Massachusetts Supreme Judicial Court’s Committee to Study the Code of Judicial Conduct invited public comments on a proposed new code of judicial conduct.

Accepting a stipulation and based on the judge’s resignation and affirmation that he would not serve in judicial office again, the New York State Commission on Judicial Conduct discontinued proceedings on a formal complaint alleging that a non-lawyer judge did not cooperate in its investigation and engaged in ex parte communication in 9 cases, dismissed or reduced the charges in 7 of the cases without notice to or the consent of the prosecution, imposed sentences not authorized by statute in 2 of the cases, imposed fines in the absence of a guilty plea or a finding of guilt in 2 other cases, failed to record proceedings in 4 of the cases, and used undignified and discourteous language from the bench in 1 of the cases.

In a formal advisory opinion, the North Carolina State Bar stated that, with limitations, a lawyer may accept an invitation from a judge to be a “connection” on LinkedIn, may send an invitation to a judge, and may endorse a judge but may not accept an endorsement or a recommendation from a judge.

The Texas State Commission on Judicial Conduct publicly warned a former judge for (1) reimbursing himself from campaign funds for travel expenses that were not properly reported to the Texas Ethics Commission and (2) conduct that resulted in negative attention and criticism in the press.

The Texas State Commission on Judicial Conduct publicly admonished a court of appeals justice for, during a traffic stop, repeatedly identifying herself to police officers as a judge, offering to show the officers her judicial badge, being arrested for driving while intoxicated, and pleading no contest to a speeding charge.

Practicing law pursuant to military service

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At least 8 states have added a comment to their codes of judicial conduct that allows judges to practice law pursuant to military service as an exception to the prohibition on full-time judges practicing law.  (That exception is not in Rule 3.10 of the American Bar Association Model Code of Judicial Conduct, which does have exceptions for acting pro se or, without compensation, giving legal advice to and reviewing documents for family members.)  The 8 states are:  Delaware, Hawaii, Indiana, Iowa, Nebraska, Oklahoma, Tennessee, and Washington.

Advisory committees have also created that exception.  Alabama Advisory Opinion 2003-820 concluded that performing assigned legal duties when on active duty in the armed forces did not create a “significant risk that . . . would erode public confidence in the judiciary” or “any realistic prospect that the advice or advocacy efforts . . . would create a potential appearance of either undue advantage to the judge/advocate or of reciprocal favoritism.”  The opinion noted that “such work is unlikely to become the subject of any litigation, nor would an appearance be created that a judicial position was being exploited.”

Similarly, the Kentucky advisory committee stated that serving as a judge advocate officer in a National Guard or reserve unit does not constitute the practice of law within the meaning of the code because that service has a special nature and the judge is in effect on leave.  Kentucky Advisory Opinion JE-16 (October 1980).  The Illinois judicial ethics committee approved a judge on military reserve duty giving legal advice, serving on military courts, and helping prepare wills, leases, or other documents for military personnel.  Illinois Advisory Opinion 1997-8.  See also Nevada Advisory Opinion JE2007-7 (judge may serve in the Air Force Reserve as a judge advocate general).

Alaska Advisory Opinion 2007-1 distinguished between types of legal services.  The opinion advised that, while in military service, judges may provide legal services authorized for officers of the Judge Advocate General’s Corps but may not provide services that resemble those provided by civilian attorneys for members of the military, which remain within the prohibition.  Prior to adoption of the exception in the state’s code noted above, Washington Advisory Opinion 2004-8 had made a similar distinction.  See also Virginia Advisory Opinion 2003-4 (cautioning that providing legal assistance that resembles the services provided by civilian attorneys may give the impression that the judge is practicing law and violate the code of judicial conduct).

But see West Virginia Advisory Opinion 2014-18 (judge cannot serve as a JAG officer, citing state constitution and statute as well as code of judicial conduct).

More inappropriate fees

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As reported in a previous post and extensively in the media, the U.S. Department of Justice recently found that the municipal court in Ferguson, Missouri imposed fees “that are widely considered abusive and may be unlawful.”

Two recent settlements indicate that the problem is not confined to Ferguson.

The Southern Center for Human Rights announced that the U.S. District Court for the Middle District of Georgia has given preliminary approval to a settlement in a class action alleging the Grady County State Court collected unauthorized “administrative costs” from defendants.  Under the settlement, the defendants will refund administrative costs and pay $100 to the estimated 400 members of the plaintiff class.

The former Grady County State Court judge is a defendant in the case.  In March 2013, based on his consent, the Georgia Judicial Qualifications Commission sanctioned him for, without any legal authority, ordering the collection of administrative costs from criminal defendants, “in what appeared to be an effort to ‘maximize’ the collection of revenue,” in addition to other misconduct.  (The sanction was a 60-day suspension without pay, a reprimand, probation until the end of his term, and a bar from running for re-election.)

The ACLU of Georgia announced that, to settle an unrelated federal lawsuit, the Chief Judge of the DeKalb County Recorder’s Court “agreed to take measures to protect the rights of people who cannot afford to make fine and fee payments required as a condition of probation for traffic and other misdemeanor offenses.”  The measures include:

  • Adoption of a “bench card” that instructs judges “to avoid sending people to jail because they owe court fines and are unable to pay,” lists the alternatives to jail, outlines the procedure for determining ability to pay, and “instructs judges on how to protect people’s right to counsel in probation revocation proceedings.”
  • Training and guidance to court personnel on probationers’ right to counsel in revocation proceedings and to an indigency hearing before being jailed for failure to pay fines and fees.
  • Revision of forms to advise people charged with probation violations of their rights to court-appointed counsel and to request a waiver of any public defender fees they cannot afford.

The case had alleged that the constitutional rights of a black teenager, who was jailed because he could not afford to pay court fines and probation company fees stemming from a traffic ticket, were violated by the county, the for-profit probation company, and the chief judge of the court that sentenced him to jail.

Failure to follow

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In an article on top judicial ethics stories of 2014, the winter issue of the Judicial Conduct Reporter describes several cases in which judges were disciplined for inappropriate electronic communications (in those cases, e-mail and a university fan-site) and one in which a judge was disciplined for striking up an inappropriate relationship with a litigant on Facebook.  The Center for Judicial Ethics keeps track of decisions and  advisory opinions on judges and social media in a frequently up-dated on-line document.

So far in 2015, two more cases have been added to the list of judges who have gotten in trouble on social media.  These cases are a reminder to judges to follow the warnings of judicial ethics advisory committees that, although judges may participate on social media, they must proceed with extreme caution and resist the temptations.

A New Mexico judge admitted that he had endorsed candidates for public office on Facebook, after retiring but while designated a pro tempore judge, and continued to endorse candidates on Facebook and post their campaign materials on Facebook after telling the Judicial Standards Commission he would stop.  That a Facebook “like” is an inappropriate endorsement has been established by other discipline cases and advisory opinions.

In the second case, during a child support dispute with the father of her twins, an Indiana judge responded to a photo on his Facebook page with:  “Must be nice to take such an expensive trip but not pay your bills. Just sayin’.”  It is difficult to know if she would have been publicly disciplined if that were her only misconduct; however, she had also engaged in other injudicious, public off-bench conduct involving her children’s father and his girlfriend; had engaged in on-the-bench misconduct, including misusing her judicial authority and failing to follow proper legal procedures in guilty plea and sentencing hearings; and had failed to cooperate with the Judicial Qualifications Commission.  She resigned and consented to a permanent ban from judicial office.

There may be at least one additional social media case this year, although whether it will lead to a finding of misconduct and discipline remains to be seen.  An investigative panel of the Florida Judicial Qualifications Commission filed a notice of formal charges last year alleging that a judge demonstrated a pattern of behavior that “is inexplicable, appears to demonstrate instability, and is disruptive,” including failing to show professional competence and to effectively fulfill her judicial duties.  Two of the examples of alleged misconduct involved Facebook.  In one dissolution of marriage proceeding, the judge had made a “friend request” on Facebook to one of the parties; on advice of counsel, the party did not respond.  The judge entered a final judgment against that party, the party filed a motion for disqualification, and the judge denied the motion, but the court of appeals reversed.  The judge also commented “yep, justice comes swiftly” on the Facebook page of a party in a second dissolution case; the adverse party filed a motion to disqualify, which was granted.  The judge (in a motion to dismiss that has been denied) argued the Commission allegations were de minimus and amounted to alleging she failed “to understand how Facebook worked.”

 

 

Recent news

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  • The winter 2015 issue of the Judicial Conduct Reporter is now available for download as a PDF. It has articles on state judicial discipline in 2014 and the top judicial ethics stories of 2014.
  • Pursuant to a stipulation and agreement, the Indiana Commission on Judicial Qualifications concluded an investigation of a former judge’s conduct and supervision of a drug court program with his agreement not to serve in judicial office again.
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, that were based on stipulated facts and accepted by the judge, the New Jersey Supreme Court reprimanded a part-time judge for (1) using his judicial stationery to attempt to intercede in a juvenile matter on behalf of the daughter of a councilman and (2) representing a Garwood Borough councilman in a personal matter while serving as judge on Garwood municipal court..
  • The New Mexico Judicial Standards Commission released its annual report for 2015, summarizing public proceedings and 12 private cautionary letters, 3 remedial measures, and 3 confidential stipulations.
  • Adopting a consent-to-discipline agreement based on stipulations, the Ohio Supreme Court publicly reprimanded a judge for telling jurors in a criminal trial that they had reached the wrong verdict.
  • The Pennsylvania Judicial Conduct Board issued letter of counsel to a judge for leaving the scene of an accident.
  • Based on the judge’s agreement, the Tennessee Board of Judicial Conduct censured a judge for his conduct in several hearings in a juvenile case, which the Court of Appeals had determined was a “procedural train wreck.”

 

 

Two-tiered injustice

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The report released last week by the Civil Rights Division of the U.S. Department of Justice revealed many disturbing aspects about the municipal court in Ferguson, Missouri, with troubling implications for other municipal courts in St. Louis County and maybe even other states.  First, the report, prompted by the shooting death of Michael Brown by a police officer last August, found that Ferguson law enforcement efforts are focused on generating revenue and its practices violate the law and undermine community trust, especially among African Americans.

Then the report concluded that the focus on revenue generation has also fundamentally compromised the role of the municipal court — without any resistance by the court and even with its complicity.  The report stated:

The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct.  Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests.  This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements.  The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. . . .

[T]hese court practices exacerbate the harm of Ferguson’s unconstitutional police practices.  They impose a particular hardship upon Ferguson’s most vulnerable residents, especially upon those living in or near poverty.  Minor offenses can generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver’s license, employment, or housing.

(In 2012, the Conference of State Court Administrators produced a position paper entitled “Courts are Not Revenue Centers,” and the National Center for State Courts has developed “Principles of Judicial Administration” reflecting that policy).

On Monday, “to help restore public trust and confidence in the Ferguson municipal court division,” the Missouri Supreme Court transferred a court of appeals judge to the St. Louis County Circuit Court where he will be assigned to hear all of Ferguson’s pending and future municipal division cases.  He will also have “the authority to revise court policies and procedures to ensure the rights of defendants and to help restore the integrity of the system.”  In its press release, the Court stated it is also is examining what reforms are needed state-wide.

According to news reports, the judge mentioned in the DOJ report has resigned from his Ferguson position, but not from another municipal judgeship.

City officials blamed a pervasive lack of “personal responsibility” among “certain segments” of the community for the high numbers of violations, escalating fines, and jail time but condoned “a striking lack of personal responsibility among themselves and their friends,” the DOJ report notes.  The report found that city officials, including the judge and court clerk, routinely assisted friends, colleagues, acquaintances, and themselves in eliminating citations, fines, and fees in the Ferguson court and surrounding municipalities.  One local judge is quoted in news stories as saying ticket-fixing “goes on in every city, every state.  It just does.”

That is unfortunately true, but it does not have to be tolerated and is a sanctionable, even removable offense for judges with several cases each year.

For example, in 2012, the California Commission on Judicial Performance removed a judge for diverting to his own court and acting on traffic tickets issued to his son-in-law, friends, and the pastor of his church, improperly waiving or suspending all or practically all fines and fees or granting a continuance.  Emphasizing that, “in the public’s eye, ticket fixing is the quintessential bad act of a judge,” the Commission explained that the judge’s pattern of misconduct “created both the appearance and the reality of a two-track system of justice—one for his friends and family and another for all others.”

Also in 2012, the Michigan Supreme Court removed a judge for dismissing cases and inappropriately disposing of cases without holding hearings and without notice to or the authorization of the prosecuting attorney, including fixing traffic citations issued to himself, his spouse, and his staff, in addition to other misconduct.  The Court rejected the judge’s argument that he was just providing “optimum, convenient service.”  The Court noted that, “while some citizens received the ‘optimum, convenient service’ of having their tickets and charges summarily dismissed, other citizens were forced to endure the inconvenience and burden of countless adjournments and delays, requiring frequent court appearances.  It is unclear how this latter group fit into respondent’s theory of providing ‘optimum, convenient service.’”

In 2014, in response to a former judge’s defense to disciplinary charges that he had fixed tickets “out of fear of losing his job” and in response to “other political pressures,” the Texas State Commission on Judicial Conduct emphasized:

Given that the foundation of the justice system in a modern democratic society rests on the guarantee of an independent and impartial judiciary, a judge who disposes of cases out of fear that those in power will terminate him, or to satisfy the political or financial interests of an entirely separate branch of government, cannot be — nor can he be seen to be — independent.  By definition, a judge who is not independent cannot be impartial.

That explanation has particular significance following the DOJ report.

Same sex ethics

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The Arizona Judicial Ethics Advisory Committee has revised its opinion on the judicial obligation to perform same-sex marriages.  The revisions add that, “because performing a marriage is a discretionary function, a judge may, consistent with the Code, decline to perform any marriages whatsoever. . . ,” while still stating that “because performing a marriage is a judicial duty within the scope of Rule 2.3(B), a judge cannot refuse to perform same-sex marriages if the judge is willing to perform opposite-sex marriages.”

Preponderance

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All 14 of the judicial discipline cases so far in 2015 have been based on the judge’s consent or at least on a stipulation of facts with disagreement only about whether the facts constituted misconduct and/or what the appropriate sanction should be.  Despite that figure, difficulties of proof are sometimes involved in judicial discipline cases, as in any other type of legal proceedings, as illustrated by two recent cases in which charges were dismissed.

In censuring a judge for other misconduct, the New York State Commission on Judicial Conduct commented on its dismissal of a count alleging that, after a court session had ended, a judge had used a racial epithet in a conversation with an African-American lawyer.  The Commission emphasized that it considered “this accusation of the utmost gravity.  It would certainly be grounds for removal if credited, particularly in light of the other misconduct findings regarding respondent.”  It noted that two attorneys said they heard the remark, three others (including an attorney) allegedly in the courtroom at the time swore they did not, and the judge categorically denied using the term.  The complaint had not been filed with the Commission for two years, the judge had not been notified of the allegation for an additional year, and he had been “given shifting time frames and few specifics as to when it took place,” with “a possible range of six months.”  The Commission, which uses a preponderance of the evidence standard, explained it was “deeply reluctant . . . to remove a jurist on the basis of the ambiguous evidence presented in connection with this allegation.”

We do not intimate that we believe any particular account to be truthful, or any other to be false.  Indeed, those are not the only possibilities.  Even on a matter of this importance, witnesses can mishear or have mistaken or faded recollections, and after so many years uncertain memories can harden, while others can change.

In a widely publicized case, the Committee on Judicial Conduct and Disability of the U.S. Judicial Conference denied a petition for review from the dismissal of a complaint alleging that a judge on the 5th Circuit had, during a public lecture on the death penalty at the University of Pennsylvania Law School, made statements that exhibited bias toward certain classes of claimants and claims or related to the merits of pending cases.  The special counsel hired to investigate had discovered no recording of the lecture.  He interviewed 45 individuals, including most of the attendees and all of the non-student attendees, and concluded that “many of the attendees had differing recollections—or no recollection at all—of comments referenced in the Complaint.”  The Review Committee concluded that the Judicial Council had not ignored “evidence in complainants’ favor” and had sufficiently weighed the evidence before finding that a preponderance of the evidence did not support a finding of misconduct.