U.S. Supreme Court decision on personal solicitation of campaign contributions

Rejecting a First Amendment challenge, the U.S. Supreme Court has affirmed the decision of the Florida Supreme Court reprimanding a former judicial candidate for signing a letter soliciting campaign contributions.  There will be longer summary of the case in a subsequent blog post.

Fundamental premise

The New York State Commission on Judicial Conduct has released the report on its activities in 2014.  The report contains extensive statistics (for example, the types of judges complained about) and comprehensive information about the Commission’s procedures and summarizes the its public cases (2 censures, 3 admonitions, and 7 stipulations to resign and never serve in judicial office) and private sanctions (23 private letters of dismissal and caution) issued in 2014.

As is its tradition, the New York Commission also includes “observations and recommendations” in its report, the only commission that does so.  The section discusses “topics of special note or interest that have come to [the Commission’s] attention in the course of considering complaints . . . for public education purposes, to advise the judiciary as to potential misconduct that may be avoided, and pursuant to its statutory authority to make administrative and legislative recommendations.”  The 2014 report discusses the Commission’s budget; fund-raising for charitable organizations (suggesting, for example, that judges should advise the leaders of a charitable organization “that they not use the judge’s name in fundraising appeals”); misleading judicial campaign advertisements (giving “fair notice” that “campaign materials phrased in a way to make it appear that a challenger already holds the particular office for which he or she is running” will “result in public discipline more readily than before”); and moving up the point at which disciplinary proceedings public.

The New York Commission is one of only 15 judicial discipline commissions that are required by law to keep confidential the formal complaints it may file after investigations and the fact-finding hearings it holds on those complaints.  The Commission has advocated more public access to its proceedings since 1978, and its arguments in favor of that reform, which it repeats in the 2014 annual report, are persuasive, not only for New York but for every jurisdiction.

The Commission emphasizes that confidential hearings are inconsistent with the “fundamental premise of the American system of justice, since the founding of the republic, that the rights of citizens are protected by conducting the business of the courts in public.”

Not only does the public have a right to know when formal charges have been [filed] by a prosecuting authority against a public official, but the prosecuting entity is more likely to exercise its power wisely if it is subject to public scrutiny.  A judge as to whom charges are eventually dismissed may feel his or her reputation has been damaged by the trial having been public.  Yet the historical presumption in favor of openness is so well established that criminal trials, where not only reputations but liberty are at stake, have been public since the adoption of the Constitution.

There are practical as well as philosophical considerations in making formal judicial disciplinary proceedings public.  The process of evaluating a complaint, conducting a comprehensive investigation, conducting formal disciplinary proceedings and making a final determination subject to review by the Court of Appeals takes considerable time.  The process is lengthy in significant part because the Commission painstakingly endeavors to render a determination that is fair and comports with due process.  If the charges and hearing portion of a Commission matter were open, the public would have a better understanding of the entire disciplinary process.  The very fact that charges had been served and a hearing scheduled would no longer be secret.

As it is, maintaining confidentiality is often beyond the Commission’s control.  For example, in any formal disciplinary proceeding, subpoenas are issued and witnesses are interviewed and prepared to testify, by both the Commission staff and the respondent-judge.  It is not unusual for word to spread around the courthouse, particularly as the hearing date approaches.  Respondent judges themselves often consult with judicial colleagues, staff and others, revealing the details of the charges against them and seeking advice.  As more “insiders” learn of the proceedings, the chances for “leaks” to the press increase, often resulting in published misinformation and suspicious accusations as to the source of the “leaks.”  In such situations, both confidentiality and confidence in the integrity of the disciplinary system suffer.

The judge as author

The spring 2013 issue of the Judicial Conduct Reporter had an article on “The judge as author,” discussing the general rule that judges may author or co-author fiction or non-fiction books on legal or non-legal topics for legal or general publications and describing the limits to that permission for both content and promotion.

Recently, in U.S. Advisory Opinion 114 (2014), the advisory committee for federal judges issued comprehensive guidance for judges promoting books they have written.  The opinion addressed advertising, book signings, and media interviews.

The committee stated that a judge may not use “his or her judicial position, length of service, and court” in advertising materials and that the title “judge” may not precede a judge’s name in advertisements.  However, that information may be included “in a book jacket or in other similar straightforward author summaries, provided that the identification is without embellishment and appears in the context of other biographical information.”

According to the opinion, as long as the events are free and do not interfere with the performance of official duties, a judge may sign or discuss the judge’s books at book stores and other public venues where the books are available for sale.  The marketing materials for the judge’s appearances must comply with the advertising guidelines and should not suggest that attendees must purchase books or may enjoy special influence over the judge.  The committee stated:

During the events, the judge may read from and discuss the work in a dignified manner that focuses on the substance of the work and not merely on the author’s status as a federal judge.  Discussing the contents of the book, or how it came to be written, would generally be acceptable.  Urging attendees to buy the book would not.

If those guidelines are met, the committee advised, a judge may sell a book to an individual who happens to be an attorney or sign a book at an attorney’s request, “particularly if the book has not been marketed to the particular legal constituency the person represents” and the judge is not aware that the attorney has a relationship to any cases before the judge’s court.

A judge may also discuss a book during an event sponsored by a general membership bar association at a neutral location.  However, the opinion cautioned that “a judge’s signing or discussing books during an event before a narrow legal constituency at a non-neutral location . . . may suggest the judge favors the organization and the interests it represents.”  The committee noted that “concerns of favoritism are reduced if the events are open to a variety of attendees and held at neutral locations, and if the judge is available to address opposing or contrasting constituencies.”

The opinion warned judges to be dignified in media interviews about their books and to ensure “that the discussions and any mentions of the judicial position do not appear to exploit or to detract from the office.”  The committee explained:

Judges should approach live interviews with particular caution, especially if they anticipate being questioned about subjects whose public discussion might lead (even if unintentionally) to an appearance of impropriety.  The duty of a judge to promote public confidence in the integrity and impartiality of the judiciary may be at risk when a judge voluntarily injects him or herself into the limelight of public controversy or discussions of sensitive matters, including confidential aspects of the judicial process.  Related commentary to the press may generate further disputes, lead to disqualification, or embroil the judge in personal and professional disputes.  Accordingly, judges should take care in their approach to press interactions, particularly live press interactions, although ultimately the judges themselves are in the best position to weigh the ethical considerations that apply to a particular situation and to choose the manner in which they respond.

On a somewhat related issue, a recent emergency staff opinion from the Connecticut Committee on Judicial Ethics advised that a judge may be a contestant on the TV reality show “The Amazing Race” but should tell the show that his or her title may not be used for promotional or commercial purposes.  The committee noted that the judge should retain the right to pre-approve any biographical information used in connection with the show.  As additional conditions, the committee warned that the judge must receive advance permission to take off the time, that taking the time off must not interfere with the performance of his or her judicial duties, and that the association with his or her teammate on the show must not create an appearance of impropriety, result in frequent disqualifications, or violate other provisions of the code.

Baseline responsibility

Maintaining consistency in sanctions between judicial discipline cases is always important but usually difficult because there is a wide range of misconduct, a variety of possible sanctions, and a small number of cases in each state.  Convictions for drunken driving, however, permit comparison, facilitating sanction parity.

At least 31 states have imposed public discipline on judges who have driven drunk.  Whether the other 19 states have not had a case involving drunken driving or have disposed of such cases privately cannot be determined.  Any state supreme court or conduct commission that does not impose public discipline for drunken driving risks the charge that it does not take that conduct seriously, an attitude that conflicts with the public policy for non-judges.  Rejecting an argument that a private reprimand was appropriate when the judge had shown contrition and pled guilty to first offense DWI, for example, the Mississippi Supreme Court held that “the position he enjoys as a sitting Judge requires that the resolution of this matter be known to the public.”  Commission on Judicial Performance v. Thomas, 722 So. 2d 629 (Mississippi 1998).

Similarly, the New Jersey Supreme Court explained in a judicial discipline case:  “We do not view offenses arising from the driving of an automobile while intoxicated with benign indulgence.  They are serious and deeply affect the safety and welfare of the public. . . .  They are not victimless offenses.”  In the Matter of Collester, 599 A.2d 1275 (New Jersey 1992).  Thus, the Court has several times publicly reprimanded judges who pled guilty to or were convicted of driving while intoxicated, but it has also censured judges whose conduct was aggravated because they left the scene of an accident or failed to cooperate with the police, and suspended a judge without pay for his second drunken driving offense.

In its 2012 annual report, the New York State Commission on Judicial Conduct emphasized that “DWI is a significant social problem” and described the evolution of its treatment of alcohol-related offenses.

Thirty years ago, a judge who committed such an offense, where there were no aggravating factors, may have received no more than a private caution or reprimand, even if the alcohol-fueled incident was a matter of public record. . . .

In recent years, the Commission has censured a number of judges who were guilty of driving while impaired or intoxicated, with the majority at times indicating that the more stringent sanction of suspension would be appropriate were the Commission authorized to impose it, and with some dissenters voting in favor of removal.

In the appropriate case, the Commission will not hesitate to impose the sanction of removal.

In most states, the baseline sanction for drunken driving is the lowest level of public sanction (usually a reprimand or admonition), but a more severe sanction is imposed if there are aggravating factors, such as an attempt to get out of the DWI charge by referring to the judicial office.  Michigan is an exception in that its standard sanction is harsher, a 90-day suspension without pay and censure, with the length of the suspension increased to 180 days if there are aggravating factors.  There were 9 public sanctions of judges for drunken driving in 2014.

Recent news

Approving a stipulation, findings of fact, and recommended discipline, the Florida Supreme Court ordered a judge to appear before it to be publicly reprimanded for giving incomplete and inaccurate answers in interviews with a judicial nominating commission.

Based on the judge’s agreement, the Georgia Commission on Judicial Qualifications suspended a probate judge for 4 months without pay and publicly reprimanded her for failing to complete a mandatory mentoring program but certifying that she had.

The Kentucky Judicial Conduct Commission privately reprimanded a judge for “liking” the Facebook pages of lawyers, law firms, and candidates.

The New Mexico Supreme Court requested public comment on proposed revisions to the state’s code of judicial conduct, including a new comment that would state that, “Judges and judicial candidates are . . . encouraged to pay extra attention to issues surrounding emerging technology, including those regarding social media, and are urged to exercise extreme caution in its use so as not to violate the Code.”

Accepting an agreed statements of facts and joint recommendation, the New York State Commission on Judicial Conduct admonished a judge for mishandling a $500 cash bail he received at an arraignment and failing to maintain records of the proceeding as required.

Adopting the findings of fact and conclusions of law, based on stipulations, the Ohio Supreme Court publicly reprimanded a judge for operating a motor vehicle under the influence of alcohol.

Educate and assist

Ten or so judicial conduct commissions summarize private actions in their annual reports, in addition to reporting statistics and describing public cases.  The California on Judicial Performance is one of those commissions, and it has released its annual report for 2014.  Like all commissions every year, it dismissed most complaints (1,131 out of 1,174) because they “alleged legal error not involving misconduct or expressed dissatisfaction with a judge’s decision” or an “investigation showed that the allegations were unfounded or unprovable, or the judge gave an adequate explanation of the situation.”  Two judges resigned or retired during investigations.  The Commission publicly admonished 3 judges and publicly censured 2 judges.

In addition, the Commission privately admonished 9 judges and sent advisory letters to 29.  Although the summaries of those 38 actions omit the judge’s name and other details, the Commission includes them in the annual report “to educate judges and the public, and to assist judges in avoiding inappropriate conduct.”  (Summaries of private discipline from prior years are available on the Commission’s web-site.)  The summaries of the 9 private admonishments for 2014 are:

  1. In pretrial and jury trial proceedings in a criminal case involving a pro per defendant, the judge made comments disparaging the defendant and the defendant’s defense, made a statement reflecting bias against pro per defendants, and sometimes appeared to assume a prosecutorial role in questioning the defendant. In another criminal case, the judge engaged in a pattern of discourteous treatment toward defense counsel, and asked a witness a question that created the appearance that the judge was not impartial and was biased against the defendant.
  2. After a prospective juror failed to return to court during jury selection, the judge held the juror in contempt without giving the juror an opportunity to explain or apologize. There were aggravating factors.
  3. A judge made a gratuitous disparaging remark about a defendant in a criminal matter. There were aggravating factors.
  4. In numerous cases, mostly involving pro per litigants, the judge injected the judge’s personal views or made remarks that were discourteous or created the appearance that the judge was acting as an advocate or lacked impartiality. There were mitigating factors, including corrective measures taken by the judge to change the judge’s behavior.
  5. A judge threatened to report an attorney to the State Bar without a valid basis. In another case, the judge failed to disclose information relevant to the issue of disqualification.  The judge also left court early on multiple occasions to play sports.
  6. A judge issued a restraining order in a confidential matter without jurisdiction over the restrained individual and without affording due process. The judge later engaged in an improper discussion of the matter with a non-party.  In another case, the judge made a comment that conveyed the impression that a defendant’s employer was in a position to influence the judge.  In other proceedings, the judge made discourteous remarks to litigants or to counsel.
  7. Without jurisdiction, a judge required an attorney to appear in the judge’s courtroom for an unauthorized proceeding, at which the judge failed to advise the attorney of the nature of the proceeding or of the attorney’s rights.
  8. A judge issued what was tantamount to a restraining order against an individual over whom the judge lacked jurisdiction, without providing the individual notice or an opportunity to be heard. At a later hearing at which the order was rescinded, the judge made a statement that created the appearance that the judge was requiring a party to accept responsibility for the restrained individual’s future conduct in exchange for rescinding the restraining order.  The judge also made a remark at the hearing reflecting gender bias.
  9. A judge’s handling of an administrative matter gave rise to an appearance of partiality.

The Commission explains that, “private admonishments are designed in part to correct problems at an early stage in the hope that the misconduct will not be repeated or escalate, thus serving the commission’s larger purpose of maintaining the integrity of the California judiciary.  The commission may consider private discipline in subsequent proceedings, particularly when the judge has repeated the conduct for which the judge was previously disciplined.”  The annual report also includes summaries of the 29 advisory letters, which are issued when the impropriety “is isolated or relatively minor,” “the judge has demonstrated an understanding of the problem and has taken steps to improve,” “there is an appearance of impropriety,” or “there is actionable misconduct offset by substantial mitigation.”

The other state commissions that summarize private dispositions in their annual reports are the Arizona Commission on Judicial Conduct, the Kansas Commission on Judicial Qualifications, the Massachusetts Commission on Judicial Conduct, the Minnesota Board on Judicial Standards, the New Mexico Judicial Standards Commission, the New York State Commission on Judicial Conduct, the Pennsylvania Judicial Conduct Board, the Texas State Commission on Judicial Conduct, and the Utah Judicial Conduct Commission.