Monthly Archives: September 2015

Let it go 2

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A previous “let it go” post described judges’ improper responses to a party’s appeal or a motion to disqualify.  Several recent judicial discipline cases portray similar judicial over-reaction to an election challenge or public criticism.

The Arizona Supreme Court suspended for 90 days without pay a justice of the peace who, when he faced opposition for re-election, used the power, prestige, and resources of his office to retaliate against his opponent and to conduct his own campaign, rather than relying on fair campaigning and the political process.  For example, the judge caused his opponent’s work hours as a pro tem justice of the peace to be significantly reduced and eventually precluded him from serving on the justice court.  The judge also used his official court e-mail account for campaign-related communications, including using unprofessional and undignified language in the communications regarding his opponent.  He passed out flyers at 2 official court events and confronted a clerk during court hours at the courthouse about her Facebook support for his opponent.  In the Matter of Grodman, 2015 Ariz. LEXIS 319 (September 23, 2015).  See also Inquiry Concerning Schwartz (Florida September 10, 2015) (sanctions for, in addition to other misconduct, a rude and intemperate interaction with a store owner who refused to display her campaign sign).

The Texas State Commission on Judicial Conduct publicly warned a judge who gave an interview to a newspaper reporter to defend her decision in a sexual assault case.  Public Warning of Howard and Order of Additional Education (Texas State Commission on Judicial Conduct September 5, 2015).

The judge had issued a judgment of deferred adjudication and placed under community supervision a defendant who pleaded guilty to felony sexual assault.  At the time of the assault, the victim had been 14, and defendant had been 18.  As a condition of community supervision, the judge ordered the defendant to complete 250 community service hours at a rape crisis center.  Several media stories reported that the executive director of the rape crisis center objected to the defendant performing his community service hours at the center.  The judge changed the condition.  In responding to the Commission’s inquiry, the judge testified that she felt “under attack for giving probation in this sort of case, which happens all the time in Dallas County” and that she could not understand why her decision was “getting such flack.”

Therefore, she agreed to speak to a reporter from the Dallas Morning News to provide the public “a more truthful and complete story” regarding her decisions in the case.  As a result of their conversation, the newspaper published an article with the headline:  “Judge says sexually assaulted 14-year-old ‘wasn’t the victim she claimed to be.’”  According to the article, the judge asserted that the defendant was not a typical sex offender and that the victim was not a virgin and “wasn’t the victim she claimed to be” but had been sexually active and given birth to a baby before the sexual assault.  The article included a response from the victim’s mother, who was “livid” about the judge’s comments and denied that the victim had ever been pregnant.

The Commission concluded that the judge’s decision to speak to the reporter, “regardless of motivation, constituted willful conduct that was inconsistent with the judge’s performance of her duties.”

Judge Howard’s decision to publicly share unflattering information about a fourteen-year-old rape victim, at best, reflects poor judgment on the part of the judge.  The fact that some of the information disclosed by Judge Howard about the victim was not accurate serves as an unfortunate example of why it is important that judges avoid making public comments about pending cases.

The Commission found that the judge’s “reckless and inaccurate public statements about the sexual history” of the “victim not only re-victimized the victim in the Young case, but also potentially harmed other sexual assault victims by discouraging them from reporting these crimes or participating in their prosecution.”

The Commission emphasized that “an independent judge accepts that she may face criticism for her decisions, and does not succumb to the temptation to publicly defend an unpopular decision in the press.  A judge who is not independent cannot be impartial.”  The Commission concluded that the judge “undermined the public’s confidence in her impartiality and independence by defending her rulings in the press, giving rise to a legitimate concern that she would not be fair or impartial in other sexual assault cases.”

Throwback Thursday

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5 years ago this month:

  • The Alabama Court of the Judiciary suspended a judge without pay for 60 days and censured and reprimanded him for (1) setting aside the rape conviction of a man he had represented before becoming a judge without holding a hearing and (2) criticizing another judge in an order disqualifying himself from a case. In the Matter of King, Final Judgment (Alabama Court of the Judiciary September 30, 2010).
  • Adopting the findings of 3 special masters and based on its independent review of the record, the California Commission on Judicial Performance censured a judge for failing to comply with procedural requirements or to provide notice or an opportunity to be heard before ordering a small claims plaintiff to have no contact with 3 women and to stay away from a credit union. Inquiry Concerning O’Flaherty (California Commission on Judicial Performance September 23, 2010).
  • Adopting a stipulation and joint recommendation, the Illinois Courts Commission publicly reprimanded a judge for driving while under the influence of alcohol. In re Purham, Order (Illinois Courts Commission September 14, 2010).
  • Pursuant to an agreement, the Minnesota Board on Judicial Standards publicly reprimanded a judge for comments he made while presiding in a criminal case. Public Reprimand of Aldrich (Minnesota Board on Judicial Standards September 27, 2010).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for writing 3 letters on official court stationery to members of the Italian judicial system on behalf of a criminal defendant, using court staff to type those letters, and speaking publicly on several occasions in an attempt to influence the case. In the Matter of Heavey, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 24, 2010).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for threatening in a sidebar to physically harm a prosecutor. In the Matter of LaSalata, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 24, 2010).

Proceeding

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Although the code of judicial conduct uses the term “proceeding” repeatedly, it does not define the term, probably because the meaning seems straightforward and obvious.  However, in recent judicial discipline proceedings, a judge argued that his release of an acquaintance from jail at the request of an attorney/friend did not constitute a “proceeding” within the meaning of the disqualification requirement.  The California Commission on Judicial Performance rejected that argument, defining “proceeding” in the process.  Inquiry Concerning Petrucelli, Decision and order imposing public censure (California Commission on Judicial Performance August 18, 2015).

The judge and Jonathan Netzer, an attorney, had been close friends for several years, through their mutual patronage of a cigar shop, membership in a men’s group referred to as “HBC” (for Having Big Cigars) that congregated at the cigar shop, and international trips together.  Businessman Jay Ghazal and the judge met about 10 years ago and became socially acquainted through their mutual membership in HBC and social gatherings at the homes of HBC members.

Ghazal was arrested one Friday night on charges of felony spousal abuse.  At approximately 9:00 a.m. Saturday morning, Netzer texted the judge, “One of our HBC members was arrested last night on a domestic violence claim.  He’s asked that I bail him out this morning.  In 22 years of practice, th[is] is a first for me.  Do you have any suggestions for me before I head down to jail?  Thanks!”  The judge promptly called Netzer, and Netzer told him that Ghazal had been in custody for 12 hours without being booked and was scared.  The judge called the jail and told a supervisor there that he would like, or would be comfortable with, an own-recognizance release of Ghazal.  As a result, Ghazal was released on his own recognizance.

The Commission found that the judge violated several canons in the code of judicial conduct, including the requirement that a judge disqualify from any proceeding in which his impartiality might reasonably be questioned.  Although the judge did not dispute that he would have been disqualified from Ghazal’s criminal case or any matter in which Netzer represented a party, he maintained that a telephonic own-recognizance release from jail does not constitute a “proceeding” from which he was disqualified.  (He did admit that the release itself, apart from the question of his impartiality, was judicial misconduct.)

Because the canon refers only to “proceeding,” rather than “pending” or “impending” proceeding, the Commission addressed whether a proceeding “includes matters that are expected to occur in court in the near future or is limited to court proceedings.”  Noting that the terminology section of the California code uses “proceeding” and “matter” interchangeably, the Commission concluded that the words “are intended to have the same meaning” and that “the usual or ordinary meaning of proceeding, both in a common and legal context, encompasses judicial action in ordering an OR release from jail.”

The [California] Supreme Court has described the term “proceeding” as malleable, the meaning of which depends on the context and subject to which it relates. . . .   “’[P]roceeding’ in a legal context generally refers to the conduct of judicial business.”. . .  Judge Petrucelli does not dispute that he was taking judicial action when he ordered Ghazal’s release. . . .

To the extent there is ambiguity, we interpret “proceeding” in a manner that effectuates the intent or purpose of the canon.  The purpose of a canon requiring disqualification as required by law is to “assure the parties and the public of the integrity and fairness of the judicial process.”. . .  Thus, disqualification benefits not only the parties, but the public as a whole. . . .  If “proceeding” is limited to actions pending in court, a judge with a disqualifying interest would not be disqualified from making probable cause determinations and signing search and arrest warrants. . . .  A narrow interpretation of “proceeding” that excludes judicial action taken before a criminal case is filed would defeat the intent of canon 3E(1) — to assure the public that judicial action will be exercised impartially.  This purpose is best accomplished through an interpretation of “proceeding” that encompasses pre-filing judicial determinations.

Concluding the judge was disqualified from the question of Ghazal’s release, the Commission found that, although the judge described Ghazal as an “acquaintance,” their relationship was sufficiently close that a person aware of the facts might reasonably entertain a doubt about his impartiality.  The Commission noted that the judge made the determination to release Ghazal based on his personal knowledge and opinion of Ghazal and material information about Ghazal’s relationship with his wife he learned from others in their mutual social circle.

Post Williams-Yulee

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Affirming the judgment of the district court denying a motion for a preliminary injunction, the U.S. Court of Appeals for the 6th Circuit held that a judicial candidate’s campaign committee failed to demonstrate a likelihood of success on the merits of its claim that the temporal restrictions on solicitation and receipt of campaign contributions violated its First Amendment free speech rights and the Equal Protection Clause of the 14th Amendment.  O’Toole v. O’Connor (September 21, 2015).  The 6th Circuit relied on the U.S. Supreme Court’s April decision upholding the personal solicitation clause in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015).

Throwback Thursday

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10 years ago this month:

  • Based on a stipulation, the New Mexico Supreme Court publicly reprimanded a judge for (1) a pattern of hostile behavior towards court security officers and employees; (2) abusive behavior to court employees; (3) refusing to issue bench warrants during traffic arraignments when defendants failed to appear; (4) permitting his trial court administrative assistant to behave unprofessionally and condoning and assisting her in violating court policies; (5) making inappropriate comments manifesting gender bias during a domestic violence arraignment; (6) waiving a priori supervised probation costs for all criminal cases; (7) improperly disqualifying himself from at least 223 traffic cases; and (8) failing to adhere to almost all provisions of the Commission orders and directives. In the Matter of Barnhart, Order (New Mexico Supreme Court September 8, 2005).
  • The New York State Commission on Judicial Conduct removed a former non-lawyer village court justice who (1) made gratuitous comments about a defendant’s race and (2) brought a young, female defendant to his home after an arraignment. In the Matter of Pennington, Determination (New York State Commission on Judicial Conduct September 7, 2005).  The judge had resigned on the date the hearing on the formal charges was scheduled; neither the judge nor his counsel appeared at the hearing.
  • Based on an agreement for discipline, the South Carolina Supreme Court suspended a judge for 60 days without pay for (1) finding a defendant guilty based only on the law enforcement incident report and re-opening the case based on an ex parte communication with the defendant’s attorney; (2) allowing unrepresented defendants to plead guilty or be convicted solely on the basis of incident reports; (3) meeting with a public official to recommend a law enforcement officer for a promotion; (4) failing to schedule bond hearings twice a day; (5) conveying a message from his father-in-law, an attorney, to a highway trooper about a ticket received by a friend of the judge’s brother-in-law; and (6) omitting reference to relaying the message to the trooper from his response to Disciplinary Counsel. In the Matter of Beckham, 620 S.E.2d 69 (South Carolina 2005).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for demeanor toward litigants and/or counsel in 3 cases that could be perceived as intimidating, impatient, and/or harsh. In the Matter of Canada-Thurston, Stipulation, agreement, and order of admonishment (Washington State Commission on Judicial Conduct September 9, 2005).
  • Pursuant to a former part-time judge’s agreement not to seek or serve in any position performing judicial function without first securing the Commission’s approval, the Washington State Commission on Judicial Conduct closed an investigation of information that, while serving as a part-time judge, the judge permitted or failed to prevent posting of potentially undignified materials of himself and a family member on a site on the Internet that could be embarrassing to him and bring the judiciary into disrepute. In the Matter of Sowards, Stipulation, agreement, and order of closure (Washington State Commission on Judicial Conduct September 9, 2005).  The judge had resigned in June.

Judicial Conduct Reporter

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The summer issue of the Judicial Conduct Reporter has now been posted on-line for download.  You can sign up to receive e-mail notice when the Judicial Conduct Reporter is published and for other e-newsletters from the National Center for State Courts here.

The issue has summaries of recent advisory opinions and several recent cases in which judges were disciplined for receiving a discounted carpool parking rate even though he did not carpool, holding a marathon court session (in addition to other misconduct), improper practices regarding appointed counsel and other matters in criminal cases, or making offensive and demeaning comments to female attorneys and staff members (in addition to other misconduct).

The issue also has the first of a 2-part article entitled “Before and after the bench.”  The part in the summer issue addresses whether a judicial conduct commission has jurisdiction to investigate allegations that a judge committed misconduct before becoming a judge or whether the attorney regulatory agency retains disciplinary authority after an attorney becomes a judge, including a discussion of cases in which judges have been disciplined for pre-bench conduct.  The second part, to be published in the fall issue, will address whether a former judge can be disciplined as an attorney for misconduct while he or she was a judge.

Finally, an article entitled “Defining family” discusses the different levels of family relationships defined in the code of judicial conduct and the different ethical obligations for each group.

In researching the family article, a 1-letter typographical error was discovered in previous written and on-line versions of the American Bar Association Model Code of Judicial Conduct and some state codes.  As a result of that error, Rule 2.11(A)(3) stated that a judge is disqualified when the judge or one of the specified family members “has an economic interest in the subject matter in controversy or is a party to the proceeding” (emphasis added).  But it should have been “in,” rather than “is” and state “has an economic interest in the subject matter in controversy or in a party to the proceeding.”  “In a party” was the rule in the 1990 model code, and the “is a party” situation is already covered by Rule 2.11(A)(2)(a).  The error was corrected when the 2007 model code was up-dated and re-printed in 2011 and is now correct in the on-line version.  In the meantime, however, in adopting a new code after reviewing the 2007 model, a few states copied the error and adopted “is a party.”  States should double-check their codes to make sure Rule 2.11(A)(3) says what they meant.

Throwback Thursday

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20 years ago this month:

  • The New York State Commission on Judicial Conduct removed a judge who had converted $6,150 in court funds to his personal use. In the Matter of Sterling, Determination (New York State Commission on Judicial Conduct September 8, 1995).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct admonished a judge who had served as an officer and director of 2 for-profit corporations and failed to disclose his interest in the corporations on ethics forms. In the Matter of Bell, Determination (New York State Commission on Judicial Conduct September 22, 1995).
  • The New York State Commission on Judicial Conduct admonished a judge for improprieties in connection with a not-for-profit corporation connected to the court. In the Matter of Radigan, Determination (New York State Commission on Judicial Conduct September 22, 1995).

Post Williams-Yulee

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In April, the U.S. Supreme Court rejected a First Amendment challenge to the prohibition on judicial candidates personally soliciting campaign contributions and affirmed the public reprimand of a former judicial candidate for a letter asking for contributions that she had mailed and posted on her campaign web-site.  Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015).  In the first post-Williams-Yulee judicial discipline cases involving political conduct, the New York State Commission on Judicial Conduct recently publicly admonished 2 part-time judges for directly and indirectly making contributions to political organizations and candidates.

One of the judges made over 60 political contributions directly (mostly to presidential campaigns, candidates in other states, and national political organizations) and over 30 contributions to local candidates indirectly through his law firm.  The second judge’s law firm bought 71 ticket to politically sponsored dinners and made 37 contributions to political organizations and candidates, and the judge’s wife bought 2 tickets to political functions using their joint bank account.  The type or timing of the contributions, both by the judges and their law firms or spouse, violated the New York rules governing judicial conduct as interpreted in opinions by the Advisory Committee on Judicial Ethics.

The Commission noted that, after the U.S. Supreme Court’s 2002 decision in Republican Party of Minnesota v. White, “some commentators . . . believed that the Supreme Court had greatly expanded a judge’s right to engage in traditional forms of political activity . . . .”  The decision in Williams-Yulee suggested otherwise and “underscore[ed] that ‘judges are not politicians’ and that judicial elections may be regulated differently from political elections . . . .”  The Commission concluded that, although the judges’ conduct in the current cases was different from that in Williams-Yulee, “it is clearly prohibited by a rule in New York that has not been diminished or weakened by prior precedent.”  It emphasized:  “The Commission is not a court, and it is our role to interpret and apply the ethical rules, not to make broad constitutional pronouncements.”  (The Commission also relied on In the Matter of Raab, 793 N.E.2d 1287 (New York 2003), in which the New York Court of Appeals had rejected a judge’s constitutional challenge to the prohibition on judges’ contributing to political organizations or candidates.)

Although the 2 judges agreed to the sanctions, 2 members of the Commission dissented and argued that the admonishments violated the First Amendment, relying, like the majority, on William-Yulee.  (A third member dissented insofar as one of the sanctions was for contributions to candidates seeking elected office in federal elections.)  The dissent argued:

Rather than read Williams-Yulee as an endorsement of any and all restrictions on political activity by judges and judicial candidates that appear to be “desirable” as a matter of preferred policy, we should respect the Court’s clear message:  that judicial campaign speech and conduct are core First Amendment activity, that a compelling interest must be identified if a narrow rule is to be upheld, that personal solicitation of campaign contributions by judicial candidates is such an interest that cuts to the core of judicial integrity, that strict scrutiny requires analysis of the campaign activity at issue to determine whether the compelling governmental interest (appearance of corruption) legitimately requires restriction of that particular activity, and that the rule restricting judicial speech is the least restrictive available to support the compelling governmental interest at stake.

Particularly because the contributions at issue were to national candidates and political organizations, by a judge’s spouse, or by the law firm of a part-time judge, the dissent criticized the majority’s failure to analyze whether the contributions were inconsistent with and the ban justified by a compelling governmental interest.  For example, the dissent stated that, “[i]f the limitations on political activity by judges are intended to promote public confidence in the judiciary by distancing judges from local politics and avoiding the appearance of ‘buying’ a judgeship, a rule that would prohibit a town justice from contributing to a presidential campaign is clearly too broad . . . .”

Recent news

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  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for being terse with the litigants at the start of a judgment debtor’s examination, making mocking and demeaning comments to the judgment debtor, and continuing with the examination even after learning that the judgment debtor had filed for bankruptcy prior to the hearing date. Williams, Order (Arizona Commission on Judicial Conduct June 22, 2015).
  • The Arizona Commission on Judicial Conduct reprimanded a judge for having an ex parte conversation with a Department of Child Safety caseworker and, without allowing the parties an opportunity to be heard, issuing a ruling in a family law case that cited the information learned in the conversation as a basis for denying the relief the mother sought. Garcia, Order (Arizona Commission on Judicial Conduct May 12, 2015).  The Department confirmed that the information in the judge’s order was incorrect.  The judge admitted that contacting Department caseworkers off the record and outside the presence of the parties is her typical practice on her family law calendar.
  • Adopting the findings of 3 masters, the California Commission on Judicial Performance severely censured a judge for calling the county jail and ordering the own recognizance release of a person he knew socially.  Inquiry Concerning Petrucelli, Decision and order (August 18, 2015).
  • Based on the judge’s admission of the factual allegations, the Pennsylvania Court of Judicial Discipline removed a judge for not filing state and federal tax returns for 5 years, failing to remit approximately $130 in sales tax owed by a shoe store she owed, opening the store without a license, and pleading guilty to 3 misdemeanors (for dismissing her own parking tickets) and 1 summary offense (the business license violation). In re Ballentine, Opinion and order (Pennsylvania Court of Judicial Discipline August 4, 2015).  In 2013, the Court had placed her on probation for dismissing the parking tickets and ordered her to reimburse the Commonwealth for the compensation she had received while suspended with pay.
  • The Pennsylvania Court of Judicial Discipline removed a former supreme court justice based on her conviction of theft/diversion of service, criminal conspiracy, and misapplication of entrusted property, as reported in previous up-dates.  In re Orie Melvin, Opinion and order (August 14, 2015).  Her conviction became final in October when she discontinued her appeal of her sentence. The criminal charges arose from her use of her judicial staff and the legislative staff of her sister, at the time a state senator, in her 2003 and 2009 campaigns for the Pennsylvania Supreme Court.

Marathon

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The requirement in the code of judicial conduct that a judge be “patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others” can be violated in a wide variety of ways, from angry outbursts, to sarcasm, to frequent interruptions, to name calling, to body language, to racial slurs, to gender stereotypes, to threats, and more.  As several discipline cases illustrate, a “marathon” court session also demonstrates a lack of the judicial temperament crucial to public confidence in judicial decisions.

The Texas State Commission on Judicial Conduct publicly admonished a judge for holding a court session until 4:00 a.m.  Public Admonition of Schildknecht and Order of Additional Education (Texas State Commission on Judicial Conduct May 11, 2015).  (The admonishment was also for describing the district attorney as a “New York Jew,” expelling him from her courtroom on a separate occasion, and telling a prosecutor his beard made him look like a “Muslim.”)  On July 2, 2014, the judge began hearing probation revocation cases at 1:00 p.m.; the court session did not end until 4:00 a.m. on July 3.  The judge did not provide any formal breaks for litigants, attorneys, witnesses, or other court personnel to eat or use the restroom.  The defendant whose case was the final matter heard in the early morning of July 3rd appealed her conviction, arguing that “fair consideration could not have possibly been given at 4 a.m. after a 19 hour day.”  In her written responses to the Commission’s inquiry, the judge acknowledged holding court from 1:00 p.m. on July 2nd until 4:00 a.m. on July 3rd without providing formal breaks, explaining this was necessary to prevent jail over-crowding and that, in her opinion, there had been enough “downtime” for anyone to eat or use the restroom and return in time to conduct court business.  The Commission concluded that the judge “failed to treat litigants, attorneys and others with patience, dignity and courtesy . . . when she held a ‘marathon’ court session lasting until 4 a.m. the following morning without allowing formal breaks.”

Similarly, based on a stipulation, in 2013, the Nevada Commission on Judicial Discipline publicly reprimanded a judge who, to accommodate her personal schedule and other reasons, required the jury, the attorneys, and staff to conduct proceedings in a murder trial continuously from 1:12 p.m. on December 16, 2010, until the jury returned a verdict at 6:47 a.m. on December 17.  In the Matter of Vega, Findings of fact, conclusions of law, and order (Nevada Commission on Judicial Discipline August 29, 2013).  The judge had recessed court in the early afternoon on 6 days during the trial so that she could attend her daughter’s high school soccer games.