Problem-causing judges

Last month, the Mississippi Supreme Court removed a judge from office and fined him $3,500 for failing to follow the law in drug court and other misconduct.  Commission on Judicial Performance v. Thompson (Mississippi Supreme Court May 5, 2015).  (He has asked for re-consideration.)  Contrary to statute, participants in the judge’s drug court had been routinely kept in the program for more than 2 years, and the judge had enrolled participants from other jurisdictions that did not have drug courts even after receiving an opinion from the attorney general advising him not to do so.  In addition, without adequate notice or hearings, participants were arrested and jailed for “contempt of orders of the drug court” that were discussed at “staffing meetings” at which they were not present and even though they were in the program for offenses that were not punishable with jail time.  The Court noted that the judge’s “apparent defense . . .was that, because it was drug court in which incarceration was a ‘sanction,’ he did not have to use contempt-of-court procedures because ‘drug court is different from regular court.’”

Unfortunately, Judge Thompson is not the only drug court judge who apparently exaggerated the differences between problem-solving courts and traditional courts.  In March, based on his agreement not to serve in judicial office again, the Indiana Commission on Judicial Qualifications concluded its investigation of a former judge’s conduct and supervision of a county drug court program.  In the Matter of Jacobi, Stipulation and agreement (Indiana Commission on Judicial Qualifications March 13, 2015).  The Commission was investigating allegations that the judge had failed to advise participants that they had the right to an attorney before admitting to the violation of a drug court rule that could result in deprivation of liberty; that some drug court participants had spent unnecessary time in jail or were unlawfully detained because the judge had failed to supervise or train court staff; and that the judge had permitted a practice in which initial hearings on alleged drug court rule violations, work release violations, or crimes were not immediately scheduled after participants were arrested.

Last week, according to news reports, a state grand jury indicted now former judge Amanda Williams for making false statements and violating her oath of office by falsely stating during a hearing before the Georgia Judicial Qualifications Commission that she had not given directions to the sheriff’s office regarding the incarceration of a drug court participant.

In March 2011, the National Public Radio program “This American Life” broadcast an episode that concluded the way then-judge Williams ran her drug court violated “the basic philosophy of all drug courts.”  In November 2011, the Commission filed a notice of formal proceedings that alleged Judge Williams, in addition to other misconduct, had a practice of holding drug court participants indefinitely without a hearing and a policy of delaying their placement into treatment; showed favoritism to certain participants; engaged in a pattern of improper ex parte communications with regard to who would be admitted to drug court and acted as a “gatekeeper” for the drug court; expressed bias in criminal matters in the drug court; failed to be patient, dignified, and courteous; and made false representation to the Commission.  For example, the notice alleged that the judge had ordered Lindsey Dills confined “until further order of the court” for violating her drug court contract and directed that she was “not to have any telephone privileges and no one is to contact or visit her except [the drug court counselor]!   Nobody!  Total restriction!”  Dills remained in custody for approximately 73 days and attempted suicide while in solitary confinement.  In December 2011, based on the judge’s resignation and agreement not to serve in judicial office again, the Commission dismissed the notice.  In re Williams, Consent Order (Georgia Judicial Qualifications Commission December 19, 2011).

What happens when a judge on a problem-solving court becomes a judicial discipline problem will be one of the topics discussed in a session on judicial ethics and problem-solving courts at the 24th National College on Judicial Conduct and Ethics, October 28-30, 2015, in Chicago.  Registration is now available.  The session will also consider ethical guidance for judges on problem-solving courts about issues such as ex parte communications, demeanor, fund-raising, and disqualification.

Recent cases

  • The Arkansas Commission on Judicial Discipline and Disability publicly reprimanded a judge for a 17-month delay in entering a decision in a divorce case following the final hearing.
  • The California Commission on Judicial Performance publicly admonished a judge for (1) being aggressive and heavy-handed when interacting with a member of court administration regarding the re-assignment of another judge’s courtroom clerk and (2) summoning an attorney to his chambers and suggesting that a declaration regarding the disqualification of the other judge should not be filed due to his concerns about the court’s reputation and the other judge’s family.
  • Based on a stipulation for discipline by consent and the judge’s irrevocable resignation, the California Commission on Judicial Performance censured a former judge and barred him holding judicial office for failing to include on financial disclosure forms $250,000 he received from the dissolution of a joint venture in a county contract for indigent defense and failing to disclose or disqualify when attorneys who had an interest in the contract appeared before him.
  • Agreeing with the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court removed a judge and fined him $3,500 for (1) failing to follow the law in drug court; (2) attending a meeting between a suspended bail bondsman and the sheriff; and (3) depriving a drug court participant of her right to counsel of her choice by threatening to hold her retained counsel in contempt if she did not sit down.
  • Based on a stipulation and agreement, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for abusing her contempt power and failing to be honest with the Commission.
  • Granting a stipulation agreement and consent to discipline, the New Mexico Supreme Court placed a judge on supervised probation with a formal mentorship until the end of her term and imposed numerous conditions.  The Commission on Judicial Standards had alleged a variety of misconduct, including administrative failures, ex parte communications, taking action in cases from which she was recused, and denying defendants due process.
  • The Texas State Commission on Judicial Conduct  reprimanded a judge for (1) treating attorneys from the State Counsel for Offenders office and one of their expert witnesses in a less than patient, dignified, and courteous manner and (2) statements he made during a presentation about sex offenders before the Texas Patriots PAC.
  • The Texas State Commission on Judicial Conduct admonished a judge for (1) holding a “marathon” court session that lasted until 4:00 a.m.; (2) describing the district attorney as a “New York Jew;” (3) expelling the district attorney from her courtroom; and (4) telling a prosecutor his beard made him look “like a Muslim.”
  • The Texas State Commission on Judicial Conduct admonished a former judge for failing to provide public documents and information to citizens regarding cases in her court; failing to timely execute the business of the court; failing to hold jury or bench trials; failing to reduce her rulings to final, written, appealable judgments; failing to maintain proper records; and failing to conduct proper fiscal management.
  • The Texas State Commission on Judicial Conduct admonished a former judge for failing to treat certain attorneys with patience, dignity, and courtesy and repeatedly attempting to intervene in recusal proceedings.
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct censured a former part-time judge for under-reporting income she received as a judge and thereby collecting unemployment benefits to which she was not entitled..

24th National College on Judicial Conduct and Ethics

Registration is available for the 24th National College on Judicial Conduct and Ethics, held by the Center for Judicial Ethics of the National Center for States Courts in Chicago, October 28-30, 2015.  The College will provide a forum for discussion of professional standards for judges and current issues in judicial discipline.  The College will begin Wednesday October 28 with registration starting at 2:00 and a reception from 5:30 to 7:00.  On Thursday, there will be a plenary session, followed by five 90-minute break-out sessions through Friday noon.  The topics for discussion are described below.  The registration fee is $375 through August 31, 2015, but $400 beginning September 1.  The registration is not refundable unless cancellation is received in writing prior to October 14, 2015

Hotel Information
Room reservations must be made directly with the hotel.  National College room rates at the EMBASSY SUITES by HILTON Chicago-Downtown/Lakefront (+16.4% occupancy tax) are: Single rate $219, Double rate $219, Triple rate $239, Quad rate $259.  Rates include complimentary guestroom internet access, cooked-to-order breakfast, and nightly manager’s reception for attendees staying at the hotel. Reservation cut-off is October 5, 2015, or when the College block is filled.  Upon availability, rooms may be reserved at the College rates for three days prior and/or three after the meeting event dates. To obtain the College rates, you must use/reference the group code “NCJ” when you make reservations at 800-HILTONS [800-445-8667] or click the hotel link on the College page.  The EMBASSY SUITES by HILTON Chicago-Downtown/ Lakefront is located at 511 North Columbus Drive, Chicago,

Sessions

Compare and Contrast: Judicial Discipline Systems  No two state judicial discipline systems are alike, differing by constitution, statute, rule, policy, and practice, but each system has the same goal — effectively and fairly preserving the integrity of and public confidence in the judicial system.  To help states learn from each other, this session will compare the variations on issues such as structure (for example, separating the investigative and adjudicative functions), the role of the supreme court, sanctions, forms, and confidentiality.  Moderators:  Victoria B. Henley, Director-Chief Counsel, California Commission on Judicial Performance • Michael Schneider, Executive Director and General Counsel, Florida Commission on Judicial Qualifications • Cynthia Gray, Director, National Center for State Courts Center for Judicial Ethics

The 2007 Model Code of Judicial Conduct: Eight Years Later  This session will review the adoption status of the 2007 American Bar Association Model Code of Judicial Conduct including additions, omissions, and revisions states have made to the model as they adopted it.  Participants will also consider any questions that have arisen in interpreting the model and any gaps that have been discovered in applying the model.  Moderators:  James J. Alfini, Professor of Law and Dean Emeritus, South Texas College of Law • Justice Daniel J. Crothers, North Dakota Supreme Court; Chair, American Bar Association Center for Professional Responsibility Policy Implementation Committee

The Constitutionality of Restrictions on Judges’ Political Conduct  The U.S. Supreme Court 2002 decision in Republican Party of Minnesota v. White spawned numerous challenges to restrictions on the campaign and political conduct of judges and judicial candidates.  In April, the Court weighed in again, upholding the prohibition on personal solicitation of campaign contributions in Williams-Yulee v. Florida Bar.  This session will review the post-White case-law in light of Williams-Yulee and discuss the future of the canons.  Moderators:  Leslie W. Abramson, Professor of Law, D. Louis Brandeis School of Law, University of Louisville • Matthew Menendez, Counsel, Brennan Center for Justice Democracy Program, New York University School of Law

Do you know who I am?” The Prestige of Judicial Office  From letters of recommendation, to traffic stops, to personal disputes, to helping out family and friends — judges are often tempted to mention their title and position.  This session will discuss the proper uses and inappropriate abuses of judicial prestige.  Moderators:  Raymond J. McKoski, Retired Judge, 19th Judicial Circuit Court; Member, Illinois Judicial Ethics Committee • Robert H. Tembeckjian, Administrator and Counsel, New York State Commission on Judicial Conduct

Ex Parte Communications  The prohibition on judges’ initiating, permitting, and considering ex parte communications is one of the core principles of due process as well as the code of judicial conduct and a frequent basis for complaints and discipline.  This session will examine current and recurring issues such as independent investigations, what to do after an inadvertent ex parte communication, and communications “authorized by law.”  Moderators:  Judge Wanda G. Bryant, North Carolina Court of Appeals; Chair, Judicial Standards Commission • Judge Edward C. Moss, 17th Judicial District, Brighton, Colorado

Problem-solving Courts and Judicial Ethics  Hundreds of special courts have been established to try a different approach to problems such as drug addiction, domestic violence, and mental illness.  This session will consider the ethical issues raised for judges who preside in these courts where their role differs significantly from the judge’s role in traditional courts. Among the topics to be covered: ex parte communications, demeanor, fund-raising, and disqualification. In addition, participants will discuss what happens when a problem-solving judge becomes a judicial discipline problem.  Moderators:  Judge Julie J. Bernard, First Justice, Brockton District Court; Member, Massachusetts Commission on Judicial Conduct • Judge Nanci J. Grant, Chief Judge, 6th Circuit Court; Member, Michigan Judicial Tenure Commission • Judge Leroy D. Kirby, Adams County Court Judge; Member, Colorado Commission on Judicial Discipline

Robe-itis: Causes and Cures  Court observers have postulated that some judges seem to come down with “black robe disease” or “robe-itis,” in which the power of the office makes them more arrogant and less congenial. Considering psychological and social science perspectives as well as judicial experience, this session will examine the possible explanations for the phenomena and the measures conduct commissions and others can take to prevent and remedy it.  Moderators: Jeremy Fogel, Director, Federal Judicial Center • Gerald T. Kaplan, M.A., L.P., Executive Director of Alpha Human Services and Alpha Service Industries; Member, Minnesota Board on Judicial Standards • Judge Joyce Williams Warren, 6th Judicial District, Little Rock; Member, Arkansas Commission on Judicial Discipline and Disability

Determining the Appropriate Sanction  Examining recent judicial discipline cases, this 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.  Moderators:  Steven Scheckman, Schiff, Scheckman & White LLP • Judge John P. Erlick, King County Superior Court; Member, Washington State Commission on Judicial Conduct

The Role of Public Members  Participants will share their experiences as public members of judicial conduct commissions and discuss what impact their perspective has on deliberations, training, and the perception of the commissions by the public and judges.  Moderators:  Joyce Jennings, Member, Kentucky Judicial Conduct Commission • Carol LeBlanc, Member, Louisiana Judiciary Commission • Lois Richins, Member, Utah Judicial Conduct Commission

Introduction to the Canons for New Members of Judicial Conduct Commissions  This session will give new members of judicial conduct commissions an overview of the ethical standards they will be enforcing and focus on those provisions that result in the most judicial discipline cases.  Moderators:  Judge Randall L. Cole, Presiding Circuit Judge for the 9th Judicial Circuit; Member, Alabama Judicial Inquiry Commission • Adrienne Meiring, Counsel, Indiana Commission on Judicial Qualifications

Encouraging pro bono service

In the fall 2004 issue of the Judicial Conduct Reporter, an article explained that, as a corollary to the prohibition on judges’ personally participating in the solicitation of funds for a charitable organization and a reflection of the adage that “time is money,” judicial ethics committees have advised that a judge may not solicit attorneys to provide pro bono legal services to individuals, including signing a letter distributed to the bar.

In 2007, the American Bar Association Model Code of Judicial Conduct was revised to provide, in Rule 3.7(B), that “a judge may encourage lawyers to provide pro bono publico legal services.”  Comment 5 explains:

In addition to appointing lawyers to serve as counsel for indigent parties in individual cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono publico legal services, if in doing so the judge does not employ coercion, or abuse the prestige of judicial office.  Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.

Recently, in a formal opinion, the ABA Standing Committee on Ethics and Professional Responsibility advised that a state supreme court justice may sign a letter on the justice’s stationery that is duplicated and mailed by the unified state bar association encouraging all lawyers in the state to provide pro bono legal services to persons in need and to contact the bar association for information about volunteer opportunities.  ABA Formal Advisory Opinion 470 (2015).  The committee noted that “signing a letter encouraging lawyers to perform pro bono services is not one of the specific activities listed as permissible in Comment [5]” but “is consistent with the encouragement listed in Comment [5].”

The committee explained that the proposed letter would not be soliciting a contribution but “encouraging lawyers to meet their professional responsibility to provide pro bono legal services pursuant to Model Rule of Professional Conduct 6.1,” stating “a contradictory reading [of the code] would be unreasonable.”  In approving judicial involvement, the committee emphasized that:

  • The proposed letter was encouraging lawyers to perform pro bono service in general without identifying a specific agency or program.
  • The proposed letter would not have a personal salutation and would be sent to every lawyer in the state.
  • Use of court resources would be incidental because the bar would duplicate and mail the letter so only one piece of the justice’s stationery would be used.
  • The justice will not know any lawyer’s response to the letter because the state bar, the supreme court, and the justice would not do any “follow-up monitoring.”

“Forsee[ing] facts under which a letter from a judge urging a lawyer to perform pro bono legal services could be viewed as coercive by a reasonable person,” the committee identified factors a judge should weigh before sending a letter, including the number of lawyers who will receive the letter, the number of judges in the jurisdiction, and the tone of the letter.  “A letter in which the justice speaks in aspirational and encouraging language will have a much different impact,” the committee advised, “than a letter that features dictatorial, condescending language.”

Accord Alabama Advisory Opinion 2004-847 (a judge may write a letter to members of a local bar association encouraging them to participate in the state bar’s volunteer lawyers program); Florida Advisory Opinion 2010-31 (a chief judge may send a letter soliciting lawyers’ participation in a Florida Bar campaign by donating pro bono legal services or making a monetary donation to a legal aid organization); Kentucky Advisory Opinion JE-107 (2005) (a judge may not write a personal letter urging members of the bar to donate time to a particular pro bono organization but may write a generic letter to the bar at large that does not refer to a specific organization); Texas Advisory Opinion 258 (2000) (a board of judges may send out a letter signed by all of the judges to all members of the local bar association asking them to consider donating time and services to a volunteer lawyer project’s pro bono legal clinic).

See also Alaska Advisory Opinion 2004-1 (a judge may make general appeals to participate in pro bono efforts, including referring to a list of available pro bono programs; may participate in a workshop or CLE seminar available at no cost to attorneys who undertake pro bono cases; may write articles for bar or general circulation media encouraging attorneys to participate in pro bono work; and may publicly acknowledge the pro bono activity of particular attorneys; a judge may not send letters of congratulation directly to attorneys or host a social event for attorneys who have participated in pro bono activity); Colorado Advisory Opinion 2006-2 (a judge may encourage attorneys to perform pro bono services and act as an advisor to the local legal service’s call-a-lawyer program); Florida Advisory Opinion 2012-26 (a judge may solicit attorneys to volunteer as pro bono attorneys ad litem for children in dependency cases at a local bar associations’ regular lunch meetings or request local bar associations to convene a special meeting for that purpose); Maryland Advisory Opinion Request 2013-29 (judges may solicit attorneys to represent indigent parties pro bono by writing to attorneys individually, by speaking publicly to bar gatherings, or by placing advertisements in bar publications.); Michigan Advisory Opinion J-7 (1998) (a judge may “write, speak, lecture, and otherwise participate in a wide range of activities designed to promote and encourage attorneys to engage in . . . pro bono representation”); New York Advisory Opinion 2009-68 (a judge who serves on a court pro bono committee may sign formal or handwritten letters of appreciation on behalf of the committee, using court or committee letterhead, to attorneys who serve as volunteer pro bono advocates before other judges).