Recent cases

  • Based on a stipulated resolution, the Arizona Supreme Court censured a justice of the peace for failing to disclose that he jointly owned property with a litigant in 2 proceedings.  In 2012, a litigant who had appeared in the judge’s court, acquired a mining claim in his name and the judge’s name.  Although he initially placed the judge’s name on the claim without the judge’s knowledge, the litigant later disclosed this interest to the judge.  Subsequently, when the litigant appeared before the judge as a plaintiff in 2 separate protective order proceedings, the judge did not disclose their joint property ownership to the other party.
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission suspended a judge for 7 days without pay for raising a bond without providing notice and for abusing her contempt power.  The judge set a $25,000 bond for a defendant.  Later that day, after learning the defendant’s mother had arrived at the clerk’s office to pay the bond, the judge instructed the clerk’s office to increase it to $50,000, without notice or a hearing.  When the deputy clerk told her that the bond had increased, the mother called the judge a “bitch” outside the judge’s presence.  At the arraignment that afternoon, the judge asked the defendant’s mother to approach the bench and then asked if she had called the judge a “bitch” in the clerk’s office.  When the mother admitted making the statement, the judge found her in contempt and ordered her to serve 24 hours in jail, without notice, a hearing, or the opportunity to have legal counsel present.
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a non-lawyer judge for requesting leniency for his son from 2 law enforcement officers in 2 conversations.
  • Pursuant to the judge’s agreement, the Tennessee Board of Judicial Conduct reprimanded a judge for his practices regarding appointed counsel and other matters in criminal cases; an agreed cease and desist order was also entered.  The judge had required defendants to perform public service work to receive appointed counsel and sentenced them to jail for contempt if they did not complete the work; refused defendants’ requests for appointed counsel without holding an indigency hearing or considering their financial means; revoked defendants’ bonds if they requested appointed counsel; ordered cash-only bonds in violation of the law; allowed some defendants, as a requirement of probation or to obtain appointed counsel, to donate items to charities he specified; and required some defendants to waive their right to counsel and a jury trial to get a continuance.
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct censured a former judge for receiving a discounted carpool parking rate when he did not in fact carpool.  The judge also agreed that he will reimburse the city the difference between the discounted rate and the regular rate and will not seek or hold any judicial office or perform any judicial duties without approval from the Commission.
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for exchanging ex parte e-mails with a prosecutor and unnecessarily continuing a hearing in a case based on factors unrelated to the case.

Advisory opinions

A post on this blog last September reported on an advisory opinion from the North Carolina Judicial Standards Commission about an apparently new judicial ethics issue:  whether a judge can certify that a crime victim was helpful in a criminal prosecution in support of the victim’s application for a U-Visa.  North Carolina Advisory Opinion 2014-3 advised that a judge should not complete a I-918 certification because doing so would appear to put a judge on the prosecution team, providing character testimony and public comment on a pending case.

The Minnesota Board on Judicial Standards has now released the second opinion on the same issue but with different advice.  Minnesota Advisory Opinion 2015-2 states that, if a judge has an adequate factual basis, a judge may certify that a U-visa petitioner was helpful in the prosecution of criminal activity of which the petitioner was a victim after the case is completed.

The Minnesota opinion disagrees with the idea that an I-918 certification is character testimony.  The North Carolina opinion considered that an assessment of helpfulness is, “in essence, the endorsement of the victim’s honesty, reliability, potential for cooperation and other character traits.”  In the Minnesota Board’s opinion, however, “a certification does not vouch for an alien’s character.  Instead, the certification pertains to the alien’s helpfulness to the prosecution.  A helpful alien may or may not have good character.”

With respect to whether an I-918 certification would be an inappropriate comment, the Minnesota opinion concludes that “the applicable federal regulations indicate that the appropriate time for a judge to determine helpfulness is following a criminal conviction,” and, therefore, the case would no longer be pending.  According to the Minnesota opinion, the North Carolina opinion “directly analyzes only pre-conviction certification.”

Thus, there are significant limits on a judge’s ability to complete an I-918 certification for a U-visa certification even under the Minnesota opinion.  First, the case must no longer be pending; the defendant must have been convicted and sentenced or the case otherwise completed.  Second, as with references and recommendations, a judge must have personal knowledge of the facts he or she is certifying to, in the context, “sufficient factual basis to determine whether the alien was helpful.”

Speaking of North Carolina judicial ethics advisory opinions, the North Carolina Commission recently provided helpful advice for a judge in the process of adopting or fostering a child.  North Carolina Advisory Opinion 2015-1 states that, when applying to foster or adopt a child, a judge may disclose information about his employment and discuss his or her judicial office but should avoid statements that could be viewed as an attempt to use the judicial office to gain favorable treatment in the process.  The opinion also discusses disqualification issues if a department of social services is involved in the process.

And speaking of Minnesota judicial ethics advisory opinions, the Minnesota Board recently requested comments on a proposed formal opinion on participation in charitable, educational, or civic organizations and activities.  The Board is one of only 2 advisory committees (the other is the California Supreme Court Committee on Judicial Ethics Opinions) that asks for public comment on proposed formal opinions.  Minnesota and North Carolina are 2 of the 10 states in which the judicial conduct commission issues advisory opinions as well as investigates complaints against judges.  The Center has links to the states’ judicial ethics advisory committees here.

Throwback Thursday

5 years ago this month:

  • Based on an agreement for discipline by consent, the Maryland Court of Appeals suspended a judge for 5 work days without pay for deflating the tire of an automobile parked in the parking space reserved for him at the courthouse. In the Matter of Nalley, 999 A.2d 182 (Maryland 2010).  The Court’s order does not describe the judge’s conduct; the agreement and other pleadings are at mdcourts.gov/cjd/publicactions.html.
  • Accepting the recommendation of the Judicial Tenure Commission, to which the judge consented, the Michigan Supreme Court censured a judge for releasing a county commissioner on his own recognizance on a day the judge was not scheduled to do arraignments and following a series of calls from another county commissioner. In re Logan, 783 N.W.2d 705 (Michigan 2010).
  • Adopting the findings of the Judicial Tenure Commission, the Michigan Supreme Court suspended a judge for 14 days without pay and censured him for dismissing 30 family law cases as the time guidelines threshold approached to avoid those cases being identified as out of compliance, while continuing to work on the cases. In re Halloran, 783 N.W.2d 709 (Michigan 2010).
  • Based on the recommendation of the Commission on Judicial Qualifications, the Nebraska Supreme Court removed a judge from office for interfering in a criminal case against a softball coach and a juvenile case involving a softball player. In re Florom, 784 N.W.2d 897 (Nebraska 2010).
  • Agreeing with the recommendation of the Board of Commissioners on Grievances and Discipline based on the parties’ stipulations, the Ohio Supreme Court suspended a judge from the practice of law for 1 year for (1) improperly investigating a criminal matter pending in his court; (2) failing to act in a patient, dignified, and courteous manner; (3) using his position to pressure persons into action; (4) improperly handling proceedings to appoint counsel for indigent defendants; (5) comments that gave the impression that 3 defendants were remanded into custody due to a failure on the part of the county commissioners; (6) placing a defendant in a holding cell until he was ready to discuss her case; (7) creating the appearance that he was trying to force the mayor to execute a law director’s contract; (8) involving himself in the formulation of charges against a defendant; and (9) badgering 2 defendants about their eligibility for appointed counsel. The Court stayed 6 months of the suspension on the condition that the judge commit no further violations for 12 months.  Disciplinary Counsel v. Campbell, 931 N.E.2d 558 (Ohio 2010).
  • Accepting the recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a former judge from the practice of law for 1-year (with 6 months stayed) for (1) failing to maintain or provide complete records of the proceedings in his courtroom, (2) unreasonably delaying compliance with a mandate of the court of appeals on remand, (3) engaging in an improper ex parte communication with a prosecutor, (4) expressing an opinion on an issue of fact in the jury’s presence, berating defense counsel during closing argument, and refusing to grant a mistrial based upon his own prejudicial conduct, and (5) refusing to accept a guilty plea for a misdemeanor speeding violation based upon his mistaken belief that the prosecutor was statutorily required to charge the defendant with a greater offense. Disciplinary Counsel v. Plough, 931 N.E.2d 575 (Ohio 2010).
  • The Pennsylvania Court of Judicial Discipline ordered that a judge be suspended for 60 days without pay for “scary” conduct “akin to stalking” toward 4 female lawyers and a 17-year-old girl who had appeared in his court; the Court also placed him on probation until December 31, 2011. In re Alonge, Opinion, (Pennsylvania Court of Judicial Discipline June 18, 2010), Order (July 21, 2010) (www.cjdpa.org/decisions/jd09-04.html).
  • Based on an agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for hiring her daughter as her court officer, without competitive consideration of other qualified applicants, and authorizing her to be paid a salary commensurate with the position even though she had no experience or training. In re Dumas, Reprimand (Tennessee Court of the Judiciary July 16, 2010) (tsc.state.tn.us/geninfo/COJ/COJindex.htm#publicPleadings).

Adoption and adaption

With the recent additions of Maine and Georgia, approximately 30 jurisdictions have issued comprehensive new codes of judicial conduct since the American Bar Association revised the Model Code of Judicial Conduct in 2007.  Whether these jurisdictions “adopted” the 2007 model code depends on how many deviations from the model a code can have before it is more than a variation.  For example, although the Delaware Supreme Court and the U.S. Judicial Conference have adopted new codes, in substance, both codes are closer to the 1990 model code or even the 1972 model code (both use “should” rather than “shall” throughout, for example), and, therefore, cannot be considered to be based on the 2007 model.

In their new codes, most jurisdictions include most, but not all of the 2007 model code revisions, and each has adopted unique versions of some rules and added clarifying revisions, definitions, or comments.  For example, the new Maine code of judicial conduct (effective September 1, 2015) explains that its rule on participation in educational, religious, charitable, fraternal, or civic organizations and activities “tracks the language and purpose of the 2011 ABA Model Code through Rule 3.7(B), with the terms restated to indicate affirmatively within each subsection what a judge ‘may’ or ‘shall not’ do.”  Thus, where the model code states that a judge may participate in activities sponsored by non-profit organizations including “soliciting contributions for such an organization or entity, but only from members of the judge’s family, or from judges over whom the judge does not exercise supervisory or appellate authority,” the Maine code states that a “judge shall not personally participate in the solicitation of such funds or other fund-raising activities, except that a judge may . . . [s]olicit funds from members of the judge’s family or from other judges over whom the judge does not exercise supervisory or appellate authority.”

The Maine code has several other provisions that make explicit what is probably implicit in the model code.  For example:

  • “A judge’s donation to a not-for-profit organization that accepts donations for the purpose of distributing the money collected, after the payment of expenses, to not-for-profit entities providing legal services to low income or elderly persons does not disqualify the judge from presiding over matters in which legal services are provided by those entities.” Rule 3.7(C).
  • “A judge conducting a case management conference, a judicial settlement conference, or a dispositional conference is not acting as an arbitrator or mediator.” Rule 3.9.
  • “A judge, after leaving practice and becoming a judge, may continue to receive fees and payments entirely earned while engaged in the practice of law before becoming a judge, including fees for services rendered, payments from structured settlements and judgments to be paid over time, deferred compensation plans, retirement plans, payments to the judge for sale of his or her practice, payments to the judge for his or her equity upon leaving a firm, and any other fees or payments entirely earned while engaged in the practice of law before becoming a judge.” Rule 3.11(E).

The new Georgia code (effective January 1, 2016) includes several new definitions not in the model code.  For examples, judges are prohibited from belonging to organizations that practice invidious discrimination, and the Georgia code supplements the definition.

“Invidious discrimination” is any action by an organization that characterizes a person’s age, disability, ethnicity, gender or sex, marital status, national origin, race, religion, or sexual orientation as odious or as signifying inferiority, which therefore is used to justify arbitrary exclusion of persons possessing those traits from membership, position, or participation in the organization.

The Georgia code augments the rule prohibiting independent investigations by explaining that “the facts a judge shall not investigate include those derived from personal observations or media, including printed publications, computer retrievable electronic data, or internet and social network communications.”  Rule 2.9(C).

The Georgia code adds a new requirement, not found in the model code, that “a judge who is arrested for or has been charged by way of indictment, information, or complaint with a serious crime, shall inform the appropriate authority in writing within five days of being arrested or being charged.”  “Serious crime” is defined as “any felony; any lesser crime that reflects adversely on the judge’s honesty, trustworthiness, or fitness as a judge in other respects; crimes involving moral turpitude; driving under the influence of drugs and/or alcohol; unlawful possession of any controlled substance; or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or willful failure to file income tax returns, or an attempt, conspiracy, or solicitation of another to commit a serious crime.”  Rule 2.15(D).

There will be a session on the 2007 ABA Model Code of Judicial Conduct at the 24th National College on Judicial Conduct and Ethics, October 28-30, 2015, in Chicago.  The session will be led by Daniel Crothers, Justice of the North Dakota Supreme Court and chair of the ABA Center for Professional Responsibility, Policy Implementation Committee, and James Alfini, Professor of Law and Dean Emeritus, South Texas College of Law.  As background for the session, the Center for Judicial Ethics is surveying states about their experience with the 2007 model, particularly any provisions that have been problematic.  The problem could be that a change from the previous versions was controversial, that a revision was ambiguous, or that a rule, definition, or comment is missing.  There are different surveys depending on whether a jurisdiction has adopted a new code since 2007.  Please feel free to respond even if you are not attending the College.

  • If your state has adopted a revised code of judicial conduct after considering the 2007 ABA Model Code of Judicial Conduct, click on this link to take a short survey.
  • If your state has considered or is considering adopting a revised code based on the 2007 ABA Model Code of Judicial Conduct, click on this link to take a short survey.

The 24th National College on Judicial Conduct and Ethics will provide a forum for discussion of ethical standards for judges and current issues in judicial discipline.  Click here for more information.

Throwback Thursday

10 years ago this month:

  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct admonished a judge who had contacted another judge on behalf of a friend whose son had been arrested and was being held in jail. In the Matter of DeJoseph, Determination (New York State Commission on Judicial Conduct July 5, 2005) (http://www.cjc.ny.gov/).
  • Pursuant to the judge’s consent, the Massachusetts Commission on Judicial Conduct publicly reprimanded a judge for failing to follow complete plea colloquy procedures as required by law and signing an affidavit that inaccurately described his plea colloquy practice. Press release (McDonough) (Massachusetts Commission on Judicial Conduct July 1, 2005) (http://www.mass.gov/cjc/McDonough.pdf).
  • Based on a stipulation, the Florida Supreme Court publicly reprimanded a judge, suspended him without pay for 14 days, and fined him $15,000 for sending an anonymous e-mail message to another judge that could have been construed as an implied threat of organized group retaliation against the recipient judge and for sending a similar message to the local ethnic bar association. The Court also ordered the judge to publicly apologize to the other judge and the president of the ethnic bar association.  Inquiry Concerning Diaz, 908 So. 2d 334 (Florida 2005).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a judge who had presided over a case notwithstanding that he had a close social relationship with the defendants’ attorney. In the Matter of Huttner, Determination (New York State Commission on Judicial Conduct July 5, 2005) (http://www.cjc.ny.gov/).
  • 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).

What they said that got them in trouble in 2015 – So far

  • “You’re held in contempt at this time. All cases are dismissed.”  Judge to assistant city prosecutor who refused to meet with her outside the courtroom prior to the criminal docket.  In re Sims, 159 So. 3d 1040 (Louisiana 2015) (http://www.lasc.org/opinions/2015/14O2515.opn.pdf).
  • “This is so goddamn simple. If you give the discovery and don’t do all this bullshit, I don’t have to sit here for hours and listen to this crap.  So everybody’s excused.”  Judge to attorneys in divorce matter.  Disciplinary Counsel v. Weithman (Ohio Supreme Court February 12, 2015) (http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-482.pdf).
  • “If I determine that’s not a valid religious belief I could require you to remove the hat.” Judge to a defendant wearing a fedora in the courtroom as part of his Jewish faith.  In re Ladenburg, Stipulation, agreement, and reprimand (Washington State Commission on Judicial Conduct February 20, 2015) (http://www.cjc.state.wa.us/Case%20Material/2015/7599_Ladenburg_Stip_Final.pdf).
  • “You look like a Muslim, and I wouldn’t hire you with it,” or words to that effect. Judge to bearded assistant district attorney in courtroom at the conclusion of the criminal docket.  Public Admonition of Schildknecht and Order of Additional Education (Texas State Commission on Judicial Conduct May 11, 2015) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “New York Jew.” Judge referring to district attorney during a private conversation with the district attorney’s secretary in the judge’s office.  Public Admonition of Schildknecht and Order of Additional Education (Texas State Commission on Judicial Conduct May 11, 2015) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “After we finished Day 1 of the case called the ‘Boy in the Box’ case, trustees from the jail came in and assembled the actual 6”x8’ ‘box’ inside the courtroom!” Judge on Facebook page about high profile criminal case.  Public Admonition of Slaughter and Order of Additional Education (Texas State Commission on Judicial Conduct April 20, 2015) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “I wondered what was taking the jury so long, but a lot of times they want to just make it look official, so they’ll spend 30, 40 minutes back there. . . .” Judge during a presentation about sex offenders before the Texas Patriots PAC.   Public Reprimand of Seiler and Order of Additional Education (Texas State Commission on Judicial Conduct April 24, 2015) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “Must be nice to take such an expensive trip but not pay your bills. Just sayin’.”  Judge on Facebook in response to a photo of the father of her twin babies and his girlfriend.  In the Matter of Bennington, 24 N.E.3d 958 (Indiana 2015) (http://www.in.gov/judiciary/opinions/pdf/02101501per.pdf).

Throwback Thursday

20 years ago this month

  • Upholding the recommendation of the Commission on Judicial Performance, the California Supreme Court removed a judge who had (1) engaged in several business transactions with and accepted a gift from a litigant to whom he had awarded a substantial verdict, (2) advised members of a law firm on cases pending before other judges, (3) received gifts from attorneys whose interests had or were likely to come before him, (4) failed to disqualify himself or make full disclosure of his relationship with those attorneys or their firms when they appeared before him, and (5) made material misrepresentations and omissions to the Commission during its investigation. Adams v. Commission on Judicial Performance, 897 P.2d 544 (California 1995).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a judge who had (1) repeatedly issued dispositive orders without making findings of fact or setting forth his reasoning, contrary to law and despite criticism by the appellate court in 10 cases; (2) repeatedly refused to accept reply papers on the day of oral argument for contested motions, even though the papers were served within the permissible period, despite appellate court decisions reversing his rulings on those grounds; (3) a heated verbal confrontation with a neighbor that resulted in the police questioning him; and (4) failed to disclose on his 1992 financial disclosure statement that he was co-mortgagor of another individual’s property on which his own property was collateral and to disclose income from rental property. In the Matter of Dier, Determination (New York State Commission on Judicial Conduct July 14, 1995) (www.cjc.ny.gov/).
  • The New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a part-time judge who, to retaliate for her firing from her other employment, had imposed on her former supervisor a fine that was twice as high as any fine she had imposed before. In the Matter of Lindell-Cloud, Determination (New York State Commission on Judicial Conduct July 14, 1995) (www.cjc.ny.gov/).
  • The North Dakota Supreme Court censured a former judge who had served as a member of a municipal airport authority and drafted lease agreements for the authority. In the Matter of Grenz, 534 N.W.2d 816 (North Dakota 1995).