Let it go

A lack of impartiality is evident when a judge takes a party’s appeal personally or over-reacts to a motion to disqualify.  For example, the Nebraska Supreme Court sanctioned behavior that disclosed a judge’s “unhealthy and wholly improper concern with the protection of her own rulings from appellate reversal.”

When a judge becomes embroiled in a controversy, the line between the judge and the controversy before the court becomes blurred, and the judge’s impartiality or appearance of impartiality may become compromised. . . .  The responsibility of a judge is to decide matters that have been submitted to the court by the parties.  The judge may not, having decided a case, advocate for or . . . materially assist one party at the expense of the other.  Such advocacy creates the appearance, and perhaps the reality, of partiality on the part of the judge.  This, in turn, erodes public confidence in the fairness of the judiciary and undermines the faith in the judicial process that is a necessary component of republican democracy.

In re White, 651 N.W.2d 551 (Nebraska 2002) (120-day suspension without pay).  The judge had ex parte communications with prosecutors and attempted to have a special prosecutor appointed to pursue an appeal after the district court reversed a sentence the judge had imposed in a domestic violence case based on a finding that a reasonable person could question her impartiality.  See also In re Sperline, Stipulation, agreement and order (Washington State Commission on Judicial Conduct March 11, 2004) (http://www.cjc.state.wa.us/Case%20Material/2004/4126%20Stipulation%20and%20Admonishment.pdf) (admonishment for a judge who expressed dissatisfaction with the appellate court after it reversed him in 3 cases; in 1 case, he wrote a letter to the attorneys; in 2 of the cases, he wrote letters to the appellate judges).

Several recent judicial discipline cases illustrate this type of inappropriate embroilment.

The New York State Commission on Judicial Conduct admonished a village court judge for sending a letter to the county court judge hearing an appeal from a case in which the village court judge should have disclosed that a key prosecution witness was his court clerk’s daughter and from which she should have insulated the clerk.  In the Matter of Gumo, Determination (New York State Commission on Judicial Conduct December 30, 2014) (http://www.cjc.ny.gov/Determinations/G/Gumo.Richard.L.2014.12.30.DET.pdf).  After Judge Gumo had convicted the defendant of disorderly conduct case, the defendant requested that the county court stay the sentence pending a post-conviction motion and appeal.  During a hearing on the application, the county court judge stated:

I’m particularly troubled by this allegation that one of the prosecution’s witnesses was a daughter of the clerk…  Had that been known, that would have been a no-brainer for a change of venue…  Under the circumstances, I’ve got to stay this pending appeal, so the motion’s granted for the stay pending appeal . . . .

After learning of the stay and comments from newspaper articles, Judge Gumo mailed, faxed, and hand-delivered to the county court judge a 2-page letter with legal arguments and facts not in the record that pertained to the disqualification issue and the conviction and sentence.

The Commission found that the judge “showed insensitivity to his ethical obligations” by failing to disclose the relationship, failing to insulate the court clerk from the case, and, “most troubling,” sending an inappropriate letter to the county court judge.

In apparent chagrin that the defendant’s attorney had raised the disqualification issue and that the County Court Judge had stayed the sentence and extended the time to perfect the appeal, respondent mailed, faxed and hand delivered the letter to the County Court, underscoring his insistence to be heard on those issues.  Instead of allowing the attorneys to address the merits of those matters, respondent — at a time when his proper role in the case had concluded — abandoned his role as a neutral arbiter and became an advocate.  Advising the County Court Judge of numerous facts relating to the disqualification issue that the defendant’s attorney had “not provided” (and that respondent has admitted were outside the record) was impermissible advocacy before the court that would consider the matter.  Respondent’s argument that the appeal was “time barred” and that he knew of no “good cause” for extending the defendant’s time to perfect the appeal was also that of an advocate.  Such conduct is inconsistent with well-established ethical principles. . . .

See also Irwin, Order (Arizona Commission on Judicial Conduct March 26, 2015) (http://www.azcourts.gov/portals/137/reports/2014/14-400.pdf) (reprimand for ex parte e-mails demanding that the attorney general’s office correct a misstatement by the appellate court, which the attorney general’s office thought immaterial).

The Texas State Commission on Judicial Conduct admonished a former judge for, in addition to other misconduct, repeatedly attempting to intervene and assert her “rights” in recusal proceedings.  Public Admonition of Mullin (Texas State Commission on Judicial Conduct April 30, 2015) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).  In Texas, motions to disqualify are heard by other judges, and, on learning that another judge had recused her from a case, Judge Mullin filed a “Court’s Motion for Reconsideration of the Order of Recusal.”  The Court of Appeals granted mandamus relief, finding that the motion was “wholly improper and without authority.”

[T]his process contemplates the resolution of the motion through the exercise of the independent judgment of the assigned judge absent any outside pressure.  It would defeat the purpose of the “refer rule” to permit the challenged judge to insert herself in her official capacity as judge in order to exert pressure upon and influence the assigned judge’s judgment.  It is not just inappropriate but blatantly improper for a challenged judge to take action designed to influence the outcome of the matter at issue.  To hold otherwise would seriously compromise the independence of the assigned judge and undermine the integrity of the judicial recusal.

Although aware of the appellate decision, Judge Mullin testified before the Commission that she believed her due process rights had been violated when she was not given notice of the recusal hearing and, as a result, could not present witness testimony at the hearing.  The judge also testified that she had routinely provided the state with the names of potential witnesses who would testify on her behalf in recusal hearings.

The Commission concluded that the judge’s “repeated attempts to intervene and assert her ‘rights’ in pending recusal proceedings constituted a willful and/or persistent failure to follow the law and demonstrated incompetence in performing the duties of the office.”  See also In re Free, 158 So. 3d 771 (Louisiana 2014) (30-day suspension without pay for, in addition to other misconduct, an ex parte telephone conversation with counsel for a party in which he called the party’s disqualification motion a low move and a “cheap shot”).

One thought on “Let it go

  1. Pingback: Let it go 2 | Judicial ethics and discipline

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