Post Williams-Yulee

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

  • 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

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.