Before the bench

Agreeing with the recommendation of the hearing panel of the Judicial Qualifications Commission, the Florida Supreme Court recently removed a judge for her deceptive pre-bench conduct as an attorney toward her clients and co-counsel in the settlement of multi-party litigation.  Inquiry Concerning Watson (June 18, 2015).  Rejecting the judge’s “protestations to the contrary” and citing previous cases, the Court reiterated that it has jurisdiction over misconduct committed by an attorney who subsequently becomes a judge, “no matter how remote.”  Indeed, the Florida constitution states that the Commission “shall have jurisdiction over justices and judges regarding allegations that misconduct occurred before or during service as a justice or judge . . . .”

Other states have similar provisions.  For example, the rules of the Arkansas Commission on Judicial Discipline & Disability state that the Commission “shall have jurisdiction over allegations of misconduct occurring prior to or during service as a judge . . . .”  Rules provide that the Indiana Commission on Judicial Qualifications “shall have jurisdiction over conduct committed by a judicial officer, whether or not related to the judicial office and whether or not committed during the judicial officer’s term of office.”

The Nebraska Supreme Court suspended a judge for 6 months without pay for altering a copy of a police report in a criminal case while he was a county attorney 17 years earlier, providing the altered report to defense counsel, and asking the police officer who wrote the report to alter either his original report or his testimony to conform to the changes.  In re Krepela, 628 N.W.2d 262 (Nebraska 2001).  Previously, the Court had dismissed an action against the same judge, for the same conduct, bought by the Counsel for Discipline of the State Bar Association.  State of Nebraska ex rel. State Bar Association v. Krepela, 610 N.W.2d 1 (Nebraska 2000).  The Court explained that, if a judge were disbarred or suspended as a result of charges filed by the Bar, the judge would effectively be removed by a means other than that set forth in the constitution.  The Court also concluded that allowing Disciplinary Counsel to proceed against judges would compromise the independence of the judiciary.

In contrast, in In re Burrell, 6 S.W.3d 869 (Missouri 1999), the Missouri Supreme Court held that the Commission on Retirement, Removal and Discipline did not have jurisdiction over a new judge for conduct during his campaign for office.  The section in the state constitution that establishes the Commission provides that “the commission shall receive and investigate . . . all complaints concerning misconduct of all judges . . . .”  The Court concluded that section only addressed the misconduct of sitting judges and held that only attorney discipline authorities had jurisdiction to prosecute claims of pre-bench misconduct.

Some states have provisions giving attorney discipline authorities jurisdiction over pre-bench conduct by judges, although it is not always clear if this jurisdiction is exclusive or concurrent with that of the judicial conduct commission.  For example, rules in Alabama provide that “Incumbent judges are subject to the jurisdiction of the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar during their terms of office for misconduct occurring before they became judges.”  The rules of the Colorado Commission on Judicial Discipline state:

Conduct by a Judge or former Judge that involves grounds for disciplinary action . . . and/or may involve grounds for a violation of Colo. [Rules of Professional Conduct] may be referred by the Commission to Attorney Regulation.  Such referral shall not preclude the Commission from proceedings concerning conduct under its jurisdiction coincident with Attorney Regulation’s jurisdiction over violations of Colo. RPC.  Nothing in these Rules shall be construed to limit the jurisdiction of Attorney Regulation over an attorney with respect to conduct subject to Colo. RPC, which occurred before, during, or after the attorney’s service as a judge.

Not all states have provisions that expressly address the issue of disciplinary jurisdiction over pre-bench conduct.  (There will be a comprehensive article on this topic in the summer issue of the Judicial Conduct Reporter, which will be published in August.  To sign up to receive an e-mail notice when the issue comes out, click here.)

Throwback Thursday

Five years ago this month

  • Agreeing with the recommendation of the Judicial Qualifications Commission, the Georgia Supreme Court removed a non-lawyer judge for (1) routinely telling criminal defendants that they had the burden of proving their innocence; (2) allowing defendants to “buy out” the community service portions of their sentences, placing the proceeds into a bank account from which he would authorize the release of funds, and failing to disclose the bank account or turn over the money to the county; (3) abusing and insulting parties appearing in court; (4) ex parte communications; (5) disposing of criminal cases in which the defendants were charged with crimes beyond the jurisdiction of his court; (6) involving himself in a matter not properly before his court and using the prestige of his office to improperly influence a litigant; (7) issuing orders that prohibited the sheriff from awarding “good time” in accordance with a statute; and (8) allowing unqualified persons to serve as court interpreters. Inquiry Concerning Fowler, 696 S.E.2d 644 (Georgia 2010).  The Court also barred the judge from judicial office in the state.
  • The Mississippi Supreme Court suspended a judge for 30 days without pay, reprimanded him, and fined him $1,500 for inappropriately touching a court clerk and using a racially derogatory term to refer to an African-American department of corrections employee. Commission on Judicial Performance v. Brown, 37 So. 3d 14 (Mississippi 2010).

Examples illustrate statistics

The Massachusetts Commission on Judicial Conduct has released its annual report.  The report includes statistics on complaint disposition, and, like all commissions, the Massachusetts commission does not pursue a majority of complaints.  In 2014, for example, the Commission only docketed 56 of the 343 complaints it received.  (Only complaints that “allege specific facts which, if true, would constitute judicial misconduct or disability” are docketed.)

The Commission took action on 68 complaints (some filed in 2013), dismissing 11 after preliminary review, 43 after investigation, and 7 with expressions of concern and informally resolving 7.  The report includes examples that help explain to the public why so many complaints against judges are dismissed every year and also demonstrate how much work the Commission does even on the complaints it dismisses to ensure that meritorious complaints will be discovered and pursued when warranted.

The report summarizes 2 complaints dismissed without investigation after preliminary review.

  • The Commission voted there was no good cause to investigate a stale complaint about hearings that occurred approximately 11 years before the plaintiff filed the complaint. A represented plaintiff in a civil matter alleged that a judge had intentionally failed to follow the law, violated his constitutional rights, and improperly failed to recuse himself.  The Commission’s preliminary inquiry, which “consisted of reviewing the materials submitted by the plaintiff and asking the plaintiff for any additional evidence to support his allegations,” “yielded no evidence to support this complaint.”
  • The Commission dismissed as frivolous or unfounded a complaint by a self-represented plaintiff in a civil matter that alleged a judge was biased against him because he represented himself while the defendant had counsel and that the judge failed to grant him a full opportunity to be heard. The Commission reviewed the materials submitted by the plaintiff, asked the plaintiff for any additional evidence, and reviewed the docket sheet, but “the plaintiff was unable to provide any evidence, other than decisions within the legal discretion of the judge, to support his allegations.”

The report provides 3 examples of complaints dismissed after investigation.

  • A represented defendant in a criminal matter alleged that a judge threatened to send him to jail if he did not plead guilty. The investigation, which included reviewing the materials submitted by the defendant, asking the defendant for any additional evidence to support his allegations, listening to the audio record of the plea hearing, and reviewing court documents from the criminal matter, “revealed that the judge conducted a normal plea colloquy and did not coerce the defendant into pleading guilty.”
  • A self-represented criminal defendant alleged that a judge treated him discourteously, created an appearance of bias against him, and failed to grant him a full opportunity to be heard. The investigation, which included listening to the audio records, reviewing materials submitted by the complainant, reviewing the docket sheets, and communicating with the judge, “revealed that the judge’s treatment of the defendant was professional and appropriate, that the judge exhibited no bias, and that the defendant was given a full opportunity to be heard.”
  • A self-represented defendant in a housing matter alleged that a judge failed to grant him a full opportunity to be heard. The investigation, which included reviewing the materials submitted by the defendant, asking the defendant for any additional evidence, listening to the audio record of the hearing, and reviewing court documents, “revealed that the judge had given the defendant a full opportunity to be heard.”

The report summarizes 2 complaints the Commission dismissed with expressions of concern.

  • A represented defendant in a civil matter alleged that a judge treated him and his counsel discourteously and displayed bias against them. The investigation, which included reviewing the audio records of 8 hearings, reviewing the docket sheets, and interviewing the defendant and the judge, “revealed that the judge did raise his voice and address the defendant’s counsel with an irritated, impatient tone” but “did not reveal any evidence that the judge acted in a manner that would cause a reasonable person to believe he was biased.”  The Commission dismissed the “complaint while expressing its concern to the judge regarding the manner in which he addresses parties appearing before him.”
  • The Commission initiated a complaint alleging that a judge created an appearance of bias by questioning a party aggressively during a several day long civil trial in which all parties were represented by counsel. The investigation included reviewing the audio recordings of the entire trial, interviewing a witness, and interviewing the judge.  The Commission dismissed the complaint “while expressing its concern to the judge that, in the future, he consider whether the manner in which he chooses to question a witness could lead a reasonable person to believe that he has made a prejudgment or is biased.”

The report summarizes 2 informal adjustments/agreed dispositions.

  • The investigation of 3 complaints against a judge established that the judge had engaged in a pattern of treating parties appearing before him discourteously. The judge agreed to retire.
  • The investigation of 2 complaints relating to 2 separate criminal matters established that the judge had, in 1 of the matters, treated the defendant discourteously and had failed to be faithful to the law and, in the other matter, had failed to grant 1 of the parties a full opportunity to be heard and failed to be faithful to the law. Pursuant to an agreed disposition, the Commission privately admonished the judge, and the judge agreed to be monitored by the Commission and to meet regularly with a mentor judge for 1 year.  If the judge complies with the conditions, the complaint will be closed at the end of that period and remain confidential.

(A footnote notes that the summaries use only masculine pronouns to prevent identifying any of the participants.)

Most of the docketed complaints contained multiple allegations.The most frequent allegation was denial of a full opportunity to be heard, appearing in 64.3% of the complaints.  Bias or prejudice was the second most frequent allegation, appearing in 44.6% of complaints.  Of those, 20.0% alleged bias against criminal defendants and 16.0% alleged bias against self-represented litigants.  Of the complaints alleging bias, bias against a particular gender and against the elderly or disabled each appeared in 12.0% of the complaints.  Racial bias and socio-economic bias each appeared in 8.0% of complaints alleging bias.  Other types of bias were alleged in the remaining 44.0% of complaints alleging bias.  Disagreement with decisions and rulings appeared in 32.1% of the complaints (although that is not, standing alone, an allegation of misconduct).  Inappropriate demeanor was alleged in 44.6% of complaints.  Denial of constitutional rights appeared in 17.9% of complaints.  Failure to follow the law or incompetence was alleged in 10.5% of complaints.  Abuse of authority and bringing the judiciary into disrepute were each alleged in 7.1% of complaints.  Administrative problems and conspiracy were each alleged in 5.4% of complaints.  Coercion to settle or plead and lack of integrity were each alleged in 3.6% of complaints.  Improper ex parte communication and conflict of interest were each alleged in 1.8% of the complaints filed in 2014.

Throwback Thursday

Ten years ago this month

  • Approving the recommendation of the Judicial Qualifications Commission based on a stipulation and agreement, the Florida Supreme Court reprimanded a judge who, in violation of a state statute, had incurred campaign expenses that his campaign account did not have sufficient funds to cover, loaned substantial funds to his campaign, and deposited those funds into his campaign account after the deadline for doing so. Inquiry Concerning Gooding, 905 So. 2d 121 (Florida 2005).
  • Approving the findings and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for delays in rendering decision in 9 cases and for, in several cases, offering to finally rule if the parties waived the prejudice from the delays. Inquiry Concerning Allawas, 906 So. 2d 1052 (Florida 2005).
  • Adopting the recommendation of the Judiciary Commission based on stipulated facts, the Louisiana Supreme Court publicly censured a judge for retaining his girlfriend to summarize medical records for cases in his court, paying her with taxpayer funds, and using taxpayer money to enable her to become a certified legal nurse consultant. In re Granier, 906 So. 2d 417 (Louisiana 2005).
  • Based on the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court removed a judge for interfering with the prosecution of a domestic violence case against his son and threatening the victim when she complained to the Commission. Commission on Judicial Performance v. Brown, 918 So.2d 1247 (Mississippi 2005).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for his systematic failure to apply statutory requirements regarding the award of legal fees to the counsel for the public administrator and appointing a friend as counsel to the public administrator and then making unsubstantiated awards of several million dollars in fees to him. In the Matter of Feinberg, 833 N.E.2d 1204 (New York 2005).
  • Pursuant to the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court censured a judge for sexual harassment. In re Daisy, 614 S.E.2d 529 (North Carolina 2005).  The judge had hugged and touched a judicial assistant and a paralegal and engaged in physical contact with them that could reasonably be interpreted as, and that they considered to be, unwanted, uninvited, and inappropriate.  The judge had stipulated that his conduct violated the code of judicial conduct and constituted conduct prejudicial to the administration of justice.
  • Based on stipulated facts and the judge’s agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for (1) appearing to personally solicit campaign contributions in 3 e-mails from his campaign committee, (2) asking an attorney to explain why a campaign sign endorsing his opponent was displayed in front of the attorney’s office building, and (3) contributing $75 to a congressional campaign. In re Krouse, Stipulation, Agreement, and Order of Reprimand (Washington State Commission on Judicial Conduct June 1, 2005) (http://www.cjc.state.wa.us/CJC_Activity/public_actions.htm).

Not just a slap on the wrist

Before oral arguments on June 3, Florida Supreme Court Chief Justice Jorge Labarga called Judge Jessica Recksiedler to the podium and, on behalf of the Court, publicly reprimanded her for giving incomplete and inaccurate answers in interviews with a judicial nominating commission.  The reprimand was in accordance with a previous order approving a stipulation, findings of fact, and recommended discipline.  Inquiry Concerning Recksiedler, 161 So. 3d 398 (Florida 2015).

The Chief Justice began by remarking to the judge about “how sad a day this is for you, for us, and for the entire judicial system.”  Noting that the reprimand “is being broadcast throughout the state,” he explained, “it is one way we can assure the public that we take ethical misconduct by a judge very seriously and that we will not hesitate to punish errant judges in a most public way.”  He then described the judge’s misconduct and the conclusions of the Judicial Qualifications Commission and the Court.  Encouraging the judge to review the Court’s prior judicial discipline decisions, the Chief Justice noted that a number involved a single violation with no subsequent misconduct and expressed the Court’s hope that “this will also be the case with you.”  He concluded by emphasizing that the Court’s decisions indicate that “a second ethical breach will be viewed much more harshly.”

The reprimand lasted for over 5 minutes and can be viewed here.  (Since 1997, the Court’s oral argument proceedings have been televised, recorded, and archived by WFSU-TV.)

The Florida Court’s practice of ordering judges to appear before it for a reprimand has been in place since at least 2000.  In Inquiry Concerning Frank, 753 So. 2d 1228 (Florida 2000), the Court explained that it had “come to conclude that when the conduct of a jurist is so egregious as to require a public reprimand, such reprimand should be issued in person with the defaulting jurist appearing before this Court.”

The practice is not widespread in judicial discipline proceedings, but Florida is not unique.  For example, last July, Chief Justice Mike McGrath called Judge Todd Baugh to the rostrum in the Montana Supreme Court courtroom and delivered the Court’s public censure, in accordance with its previous opinion, for his comments in sentencing a teacher for sexual intercourse without consent with a 14-year-old student, imposing an unlawful sentence, attempting to retract his sentence, and making inappropriate public statements attempting to justify his actions.  He was also suspended for 31 days without pay.  Inquiry Concerning Baugh, 334 P.3d 352 (Montana 2014).  A video of the reprimand proceedings was published by the Billings Gazette here.

In some states, an in-person public reprimand is administered locally.  For example, the Chief Judge of the Appalachian Judicial Circuit recently administered a public reprimand to County Probate Judge Pamela Wooley in open court at the Habersham County Courthouse.  Pursuant to the judge’s agreement, the reprimand and a 4-month suspension without pay had been ordered by the Georgia Judicial Qualifications Commission for failing to complete a mandatory mentoring program but certifying that she had.  The Commission’s rules define a public reprimand as “a public communication administered by a judicial officer which declares a judge’s conduct unacceptable under one of the grounds for judicial discipline but not so serious as to warrant a censure” (emphasis added).

The Mississippi Supreme Court’s judicial discipline decisions also reflect a policy requiring the in-person administration of a public reprimand.  For example, when it ordered Judge Neil Harris reprimanded and fined him $2,500 for abusing his contempt powers, based on an agreed statement of facts and joint recommendation, the Court ordered that “the public reprimand shall be read in open court by the presiding judge of the Jackson County Circuit Court on the first day of the next term of that court in which a jury is present after the issuance of this court’s mandate, with Judge Harris in attendance.”  Commission on Judicial Performance v. Harris, 131 So. 3d 1137 (Mississippi 2013).

Rule 6e of the Washington State Commission on Judicial Conduct provides that a “judge shall personally appear before the commission to receive an order imposing a reprimand or a censure.”

All states (except Oklahoma) have a sanction option such as reprimand, admonition, or censure (or sometimes a combination), although in most states the reproof is administered in writing, published on a web-site or in an official report.  A recently up-dated list of judicial discipline sanctions available in the states is now on the Center for Judicial Ethics web-site here.  “Determining the Appropriate Sanction” will be one of the topics at the 24th National College on Judicial Conduct and Ethics, October 28-30, 2015 in Chicago.  Examining recent judicial discipline cases, the session will review the criteria for imposing sanctions and discuss issues such as the relevance of a judge’s failure to express remorse and when removal is appropriate.  Participants will “vote” on what sanctions they would have imposed in actual judicial discipline cases.  Registration is now available.

Throwback Thursday

20 years ago this month:

  • Adopting the findings of the Judicial Tenure Commission, the Michigan Supreme Court censured a judge who, after the chief judge had hung up on him, entered the chief judge’s courtroom and created a disturbance while court was in session. In re Moore, 535 N.W.2d 790 (Michigan 1995).  The judge had stipulated to the findings and consented to a public censure.
  • Concurring in the determination of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a part-time judge for permitting a fax transmission to be sent from his law office to another judge about a pending matter. In the Matter of Carton, 658 A.2d 1211 (New Jersey 1995).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a part-time judge who delayed for approximately 13 months in deciding a small claims case and misplaced the file in his law offices. In re the Matter of Linde, Stipulation and Agreement and Order (Washington State Commission on Judicial Conduct June 1, 1995) (http://www.cjc.state.wa.us/CJC_Activity/public_actions.htm).

Judicial Conduct Reporter

The spring issue of the Judicial Conduct Reporter has been published.  It has articles on the interpretation of the phrase “the law, the legal system and the administration of justice” and the recent U.S. Supreme Court decision in Williams-Yulee v. The Florida Bar, and summaries of recent advisory opinions and recent decisions.  The issue and past issues are available for download at no charge on the Center web-site.  You can sign up to be notified when a new issue is published (and for other NCSC e-newsletters) here.