Throwback Thursday

5 years ago this month:

  • In an agreed disposition, the Georgia Judicial Qualifications Commission publicly reprimanded a judge for confrontations with Georgia Bureau Investigation agents and prosecutors. In re Graham, Public reprimand (Georgia Judicial Qualifications Commission May 11, 2010).
  • Adopting the findings of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly admonished a judge for taking action in a case against a family member. In the Matter of Council (New Jersey Supreme Court May 3, 2010).  The judge was presiding over bail hearings when Celeste Jones appeared by video conference from the correctional center.  The judge recognized Jones as a relative and acknowledged on the record that the relationship required his recusal.  After the judge’s recusal, the assistant prosecutor advised the public defender, on the record and in the judge’s presence, that the matter had been downgraded to a disorderly persons offense.  The judge then recalled Jones and received the consent of the assistant prosecutor and the public defender to release Jones on her own recognizance.  The Committee noted it gave weight to the judge’s testimony that he released Jones to avert her unnecessary incarceration, questioning the court’s policy of not having back-up judges available to be called when a sitting judge has a conflict.  However, the Committee stated, “the fact remains that Respondent knowingly engaged in a conflict of interest.  While we acknowledge Respondent’s perception of his conduct as ministerial in nature given the Assistant Prosecutor’s decision to downgrade Ms. Jones’s offense to a disorderly persons, the nature of the judicial act as non-discretionary is of no consequence to our analysis. . . .”
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s order, based on a stipulation, reprimanding a judge for increasing the sentence of a defendant who stated he intended to request a trial de novo. In re Ridge (Utah Supreme Court May 12, 2010).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for comments to 2 female attorneys. In re Henry, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct May 14, 2010).  After an attorney casually told the judge that she did not enjoy camping, he replied, “Oh, if I got you stripped naked in the lake and soaped you down, you’d like it.”  Later that month, during the lunch hour, the judge took a different female attorney for a ride on his motorcycle, and during a break in the ride, asked if he could kiss her, which she declined.
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for delay in 2 cases. In re Sheldon, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct May 14, 2010).
  • Based on a stipulation, the Washington State Commission on Judicial Conduct censured a former judge following his conviction on 1 misdemeanor count of patronizing a prostitute and 1 count of felony harassment; the Commission also recommended that the Supreme Court disqualify the judge from future judicial office. The judge had resigned after being convicted of the criminal charges.  In re Hecht, Decision (Washington State Commission on Judicial Conduct May 14, 2010).

National embarrassment

The video of a June 2014 altercation between Judge John Murphy and Andrew Weinstock, an assistant public defender, went viral.  A hearing panel of the Florida Judicial Qualifications Commission found last week:

The altercation between Weinstock and Judge Murphy created a remarkable national embarrassment for not only the judiciary of the State of Florida, but for its citizens as well.  Statewide and national newspaper and television media reported the public and violent confrontation between a presiding Judge who actually left the bench after saying he would “beat your ass” in the midst of a judicial proceeding, and the Assistant Public Defender who had defied and disrespected the Judge.

Although it stated “there was no doubt that the two men engaged in a scuffle or a fight” while they were in the hallway, where there were no cameras or witnesses, the panel did find not find clear and convincing evidence that the judge had struck Weinstock, as the public defender claimed.  Nevertheless, the panel concluded:

The dispute in Judge Murphy’s courtroom and the hallway was more than inappropriate.  It was aggressive and appalling.  Mr. Weinstock’s behavior deserved to be disciplined, but Judge Murphy’s comments to Mr. Weinstock were reprehensible.  Judge Murphy said “if I had a rock I would throw it at you right now.  Stop pissing me off.”…  “Sit down.” …  “If you want to fight, let’s go out back and I’ll just beat your ass.”…  “Alright you, you want to fuck with me.”

The panel recommended that the judge be suspended for 120 days without pay, fined $50,000, and publicly reprimanded; the final decision will be made by the Florida Supreme Court.  The judge has expressed “profound remorse.”

An unusual aspect of the findings was the hearing panel’s announcement that it was “referring the entire transcript of these proceedings to The Florida Bar for an investigation and appropriate action.”  (The judge did not file a grievance against Weinstock at least before the hearing; the Bar had investigated the June 2014 incident, although it did not interview the judge, and given Weinstock a letter of advice.)  The panel noted that there had been substantial evidence admitted during its hearing that, in addition to the June 2014 incident, “Weinstock was generally rude, disrespectful, incompetent and a highly unlikeable lawyer.”  The panel emphasized that “it is significant that although Weinstock was generally held in disrepute among the judges and other people in the courthouse, no one chose to seek the intervention of or investigation by The Florida Bar.”  Another judge who testified had “candidly admitted . . . that even though Mr. Weinstock’s behavior had been consistently unprofessional before her and other judges in Brevard County, neither she nor any other judge in the courthouse had done anything to address it even as much as reporting their objections to his behavior to a supervisor in the Office of the Public Defender, or to the Florida Bar.”  It is interesting to speculate whether, if judges had taken some action in response to previous misbehavior by Weinstock, the “remarkable national embarrassment” for Florida could have been prevented.   The case should cause judges to consider whether there is a situation in their jurisdiction in which “a stitch in time could save nine.”

The day after the Florida panel’s findings (coincidentally, of course), the Mississippi Supreme Court urged a judge, an assistant public defender, and the county public defender “to ameliorate” their problems “so the judiciary may achieve the orderly administration of justice, the public may have confidence in the judicial process,” and defendants, victims, and their families “will not be deprived of fairness or justice due to personal issues.”  The judge, finding that the assistant public defender was incompetent and had engaged in sanctionable conduct, had appointed private counsel to represent the defendants in 55 cases instead, and the county public defender had filed a motion to recuse the judge.  The Court held that removing an assistant public defender from a case “is not a substitute for the bar complaint process,” noted that the judge had held no hearing, made not finding of contempt, and issued no sanctions, and concluded that the judge’s allegations of inappropriate conduct did not justify the extreme sanction of excluding the assistant public defender from all future cases before him.

Throwback Thursday

10 years ago this month:

  • Accepting the recommendation of the Judiciary Commission based on stipulated facts and the judge’s agreement, the Louisiana Supreme Court censured a judge who accepted campaign contributions and failed to use a committee to solicit and accept contributions and whose minute clerk solicited contributions and organized a campaign fund-raiser. In re Cannizzaro, 901 So. 2d 1035 (Louisiana 2005).
  • Acting on a complaint filed by the Judicial Conduct Board and stipulated facts, the Pennsylvania Court of Judicial Discipline publicly reprimanded a former judge for (1) working to have his wife appointed as his successor and (2) charitable fund-raising. In re Hartman, Opinion (February 11, 2005), Order (Pennsylvania Court of Judicial Discipline May 18, 2005).  The judge had personally requested political officials, a law enforcement official, an assistant public defender, and numerous county Republican officials to write a letter to the presiding judge, a state senator, or “To Whom It May Concern” urging support for the appointment of his wife.  The judge had also permitted his office and courtroom to be used for organizational meetings for the annual area Halloween Parade and personally collected money at the courthouse for T-shirts sold for fund-raising and for charitable activities, including the 50th Anniversary of the Lions Club, the Lions Club Community Steak Fry, and the Great Slatington Duck Race.
  • Acting on a complaint filed by the Judicial Conduct Board and stipulated facts, the Pennsylvania Court on Judicial Discipline banned a former magistrate judge from holding judicial office for 5 years for parking her car on several occasions at expired parking meters and placing on the windshield of her car parking tickets that had been issued to others. In re Harrington, Opinion (March 2, 2005), Order (Pennsylvania Court on Judicial Discipline May 18, 2005).  On February 24, 20014, for example, at 11:15 a.m., the judge’s red Subaru (with vanity plates “MOIRA”) was parked at an expired meter in downtown Pittsburgh until approximately 1:30 p.m.  There was a parking ticket on the windshield, but it had been issued to a black Nissan SUV the previous day at 8:41 a.m. at a different location.  When the judge came out of the YMCA, she took the parking ticket off the windshield, got into the vehicle, and drove away.  All of the occasions were recorded and telecast by a local TV station.  The Court stated, “no one would consider parking at an expired meter to be a heinous crime, but it is the very triviality of the offense which makes Respondent’s determination to defeat its application to her so unbecoming a judicial officer.”

Federal judicial discipline

According to news reports, an investigative committee of federal judges has held a hearing on misconduct allegations against Judge Mark Fuller, who sits on the U.S. District Court for the Middle District of Alabama.  (Although the proceedings are supposed to be confidential at this point, the judge’s attorney apparently has spoken to reporters.)  The investigation of Judge Fuller began last year after he was arrested following an altercation with his then-wife in an Atlanta hotel room; he claims self-defense.  The criminal charges against him have been dismissed following his compliance with the requirements of a pre-trial diversion program.  There have been many calls for his resignation.  The chair of the U.S. Senate Judiciary Committee has requested and received up-dates from the 11th Circuit about the investigation.

In anticipation of a possible public decision later this year, this post will describe federal judicial discipline procedures under the Judicial Conduct and Disability Act of 1980.  28 U.S.C.A. §§ 351-364.  The recently revamped U.S. Courts web-site has a great deal of information on the process, including links to the circuit web-sites and the Rules for Judicial-Conduct and Judicial-Disability Proceedings.  (In September 2014, a draft of proposed amendments to the Rules was released for public comment.)

Under the Act, any person may file with the clerk of the court of appeals for the circuit in which a judge sits a written complaint alleging that the judge has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts” or “is unable to discharge all duties of office by reason of mental or physical disability.”  The chief judge of the circuit reviews the complaints.  The chief judge may also “identify a complaint” against a judge in a written order stating reasons.

After reviewing a complaint (and engaging in a limited inquiry if necessary), the chief judge will dismiss the complaint; conclude the proceeding if corrective action has been taken or if an intervening event makes action unnecessary (such as the judge’s retirement, resignation, or death); or appoint a special committee to investigate.  Like most complaints against state judges, most complaints against federal judges are dismissed.  The most frequent grounds for dismissal are that the allegations are “directly related to the merits of a decision or procedural ruling” or lack sufficient evidence to raise an inference that misconduct has occurred.

If a complaint is not dismissed, to investigate the allegations, the chief judge appoints a special committee comprised of the chief judge and equal numbers of circuit and district judges from the circuit.  The committee may hold a hearing.  The special committee makes findings and recommendations that are filed with the circuit judicial council.

After considering the special committee’s report, the judicial council may order further investigation; dismiss the complaint; certify the disability of the judge; request that the judge voluntarily retire; order that no further cases be assigned to the judge temporarily; privately censure or reprimand the judge; publicly censure or reprimand the judge; or order other appropriate action.

If there might be grounds for impeachment, a judicial council may refer the special committee’s report to the U.S. Judicial Conference Committee.  District and circuit judges cannot be removed under the Act, but the U.S. Judicial Conference Committee can refer a complaint to the House of Representatives for consideration of impeachment.  (A judicial council can order a bankruptcy judge removed and can order a chief district court judge to initiate removal proceedings for a magistrate judge.)

There are several significant differences between state judicial discipline proceedings and the federal process.

  • The federal system does not have permanent, established agencies to review and dismiss or, when necessary, investigate and prosecute complaints like the 51 judicial conduct commissions in the states and D.C.
  • No non-judge has a role in the decision-making in federal judicial discipline proceedings. The states have lay people and (except in West Virginia) non-judge attorneys involved in the process.
  • If a complaint against a federal judge is dismissed, the chief judge’s order is public (without disclosure of the judge’s name), and many circuits (for example, the 1st, 2nd, 3rd, 7th, 9th, and D.C.) have begun publishing those orders on their web-sites. In all but a handful of states, dismissal orders are confidential.  In only a few, dismissal orders available for public inspection, and only the Arizona Commission on Judicial Conduct and the Vermont Judicial Conduct Board post the orders (without disclosing the judge’s name) on-line.
  • If a complaint against a state judge is dismissed, a complainant has no avenue for review or appeal although in some states the complainant can ask the commission to reconsider. In contrast, if a complaint against a federal judge is dismissed, the complainant can petition for review to the circuit judicial council, which can affirm or return the matter to the chief judge for further inquiry or appointment of a special committee.  Further, the complainant as well as the judge may petition the U.S. Judicial Conference Committee for review of the action taken by a judicial council based on a report of a special committee.

Recent actions by the U.S. Judicial Conference Committee:

In re Complaint of Judicial Misconduct (Cebull), 751 F.3d 611 (2014).  Granting a petition for review filed by a complainant, the U.S. Judicial Conference Committee adopted and published an order of the 9th Circuit Judicial Council publicly reprimanding a former judge for racist and political e-mails sent from his court e-mail account.

In re Complaint of Judicial Misconduct (Martin), 747 F.3d 869 (2014).  Denying a former judge’s petition, the U.S. Judicial Conference Committee ordered the publication of an order of the 2nd Circuit Judicial Council dismissing a complaint about the judge’s questionable travel expense requests but referring the complaint to the Public Integrity Section of the Department of Justice.

In re:  Complaint of Judicial Misconduct (Jones) (February 19, 2015).  Denying a petition for review filed by 13 individuals and public interest groups from an order of the Judicial Council of the D.C. Circuit, the U.S. Judicial Conference Committee adopted a special committee’s report dismissing complaints alleging that a judge exhibited bias toward certain classes of judicial claimants and claims or related to the merits of pending cases during a public lecture on the death penalty at the University of Pennsylvania Law School.

Throwback Thursday

20 years ago this month . . . .

  • The Louisiana Supreme Court publicly censured a judge who had (1) written a letter on personal judiciary stationery to a federal judge recommending leniency in the sentencing of a friend; (2) for 8 months after taking office, allowed his former law partner to use and/or share the court’s secretary/receptionist, telephone system, post office box, office supplies, and law library; (3) filed a candidate’s report that failed to list cash contributions of $2,300; and (4) hired a law clerk knowing that she was also working as an independent contractor for a private law firm and allowed her to do research for him in a case in which the firm had been counsel. In re Decuir, 654 So. 2d 549 (Louisiana 1995).
  • The Louisiana Supreme Court removed a judge who had pled guilty to one misdemeanor count of failing to file a federal income tax return and had been sentenced to 12 months in prison, one year of probation, and a $5,000 fine. In re Huckaby, 656 So. 2d 292 (Louisiana 1995).  Rejecting the Judiciary Commission’s argument, the Court stated that automatic removal of a judge sentenced to prison would surrender its constitutional duty for judicial discipline to the sentencing judge.  However, the Court held that, in this case, the judge’s “baneful and odious” conduct justified removal.  Three justices dissented from the removal.
  • The Michigan Supreme Court publicly censured a judge who, during a dispute over a parking space at a mall, accelerated his car and struck a security officer who had waved another driver into the parking space. In re Bradfield, 532 N.E.2d 711 (Michigan 1995).
  • The New York State Commission on Judicial Conduct determined that admonition was the appropriate sanction for a judge who, during required pre-trial, ex parte conferences, repeatedly asked traffic defendants who pled not guilty by mail to restate their pleas and sometimes asked them to explain why they were pleading not guilty. In the Matter of Cavotta, Determination (May 3, 1995) (http://www.cjc.ny.gov/Determinations/all_decisions.htm).  The Commission found that the defendants could have had little doubt that the judge wanted the matter concluded without a trial and that even if, as he contended, he did not intend to coerce pleas, the judge should have known that defendants charged with minor infractions with the likelihood of only small fines would often choose to plead guilty rather than go to the expense of hiring an attorney or the inconvenience of returning to court.
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for celebrating a fugitive’s apprehension in the courtroom with balloons, streamers, cake, and ice cream and inviting the media. Public Admonition of Johnson (April 29, 2005) (http://www.scjc.state.tx.us/pdf/actions/FY2005PUB-SANC.pdf).

Vexatious tactics

The ethical aspect of the problems that sovereign citizens can cause judges is illustrated by a series of opinions issued by the New York Advisory Committee on Judicial Ethics.  (According to the FBI, “sovereign citizens are anti-government extremists who believe that even though they physically reside in this country, they are separate or ‘sovereign’ from the United States.  As a result, they believe they don’t have to answer to any government authority, including courts, taxing entities, motor vehicle departments, or law enforcement.”)

One ethics inquiry arose when a pro se criminal litigant filed a multi-million dollar lien against a judge’s property based on the judge’s actions in the case.  The committee noted that, “unfortunately, this does not appear to be an entirely isolated incident but one of many instances in which individuals file numerous apparently frivolous complaints and/or incomprehensibly large liens against judges and court personnel, whether due to anarchic malice or disappointment with their litigation results.”  Thus, New York Advisory Opinion 2014-58 stated that the judge may take all lawful steps necessary to clear the title and pursue all lawful avenues to put an end to the vexatious lien filing and could use the court’s clerical and other resources in a pro se expungement proceeding.  A follow-up opinion (New York Advisory Opinion 14-119) added that the judge could use official court stationery in corresponding with the respondent, the court clerk, county clerk, and others in connection with the expungement.

Also in New York Advisory Opinion 2014-58, the committee addressed the issue whether the judge was disqualified from the underlying criminal case.  Noting the purpose of the lien “was ‘merely, to entangle the judge in the time-consuming and expensive legal process,” the committee emphasized that “such vexatious and abusive tactics must not be rewarded.”

They undermine the prompt and efficient operation of the judicial system and are inimical to the rule of law.  The Committee cannot overlook that, under the facts presented, the supposed “conflict” is entirely of the defendant’s own making.  That is, although the inquiry reveals no financial or economic relationship whatsoever between the judge and the defendant, the defendant nonetheless chose to file a lien against the judge as part of his/her litigation strategy.  If disqualification were automatically required here or if the judge were in any way constrained from taking all lawful steps necessary to clear his/her title and from pursuing all lawful avenues to put an end to a vexatious lien filing, it would only encourage and embolden imitators.

Thus, the committee concluded, “absent other factors, the determination whether a judge can be fair and impartial in a case after a party files a baseless multi-million dollar lien against the judge’s property is a matter confined solely to the conscience of the particular judge . . . .  In other words, under the facts presented, the inquiring judge may continue to preside over the criminal case, provided that the judge determines, in his/her sole discretion, that he/she can be fair and impartial.”  See also New York Advisory Opinion 2014-105 (a judge may continue to preside over the criminal case of a defendant who identifies himself as a member of the sovereign citizens group and has commenced a lawsuit against the judge and other public officials and agencies).

A subsequent opinion (New York Advisory Opinion 2014-121) advised that, even if a judge had disqualified herself from a case after a litigant who identified as a “sovereign citizen” filed a complaint about the judge, the judge may preside over new cases involving that litigant after the complaint has been dismissed as unfounded, provided the judge can be fair and impartial.

There is an article in the summer 2008 issue of the Judicial Conduct Reporter explaining that, “in general, a judge is not automatically required to recuse when a party or attorney files a complaint or lawsuit against the judge.”  All issues of the Judicial Conduct Reporter beginning from spring 1999 are available for download on the web-site of the Center for Judicial Ethics where there is also an index.

Throwback Thursday

20 years ago this month, the Maine Supreme Judicial Court disbarred a former judge who had been found liable for fraud while a judge.  In re Cox, 658 A.2d 1056 (Maine 1995).  The judge had obtained easements from a neighboring land owner by representing that the easements were for his personal use for utility lines and then sold the easements to a developer.  The investigation of the Committee on Judicial Responsibility and Disability had commenced while he was still an active judge, but he applied for disability retirement after the Committee had asked him to respond to the charges, and his application was approved.

The Court rejected the former judge’s argument that the proceeding was moot because he was no longer a judge.  Stating it designed sanctions to restore public confidence in the administration of justice and to announce publicly its condemnation of judicial misconduct, the Court held its authority to discipline the former judge was acquired when he qualified for his judicial position and continued after his retirement for any conduct that occurred while he was a judge.  The Court also concluded that, in light of the former’s judge’s avaricious and dishonest conduct, a mere fine or public condemnation could not adequately express its grave disapproval and would do little to restore the public’s confidence in the judiciary.