Monthly Archives: October 2015

Throwback Thursday

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5 years ago this month:

  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who (1) failed to appear for sentencing on a dog-running-at-large violation and failed for 7 months to pay the fine imposed; (2) served simultaneously as judge and court clerk of the same court; and (3) participated in fund-raising on behalf of her and her son’s sports teams. In the Matter of Post, Determination (New York State Commission on Judicial Conduct October 12, 2010).

Prestige of judicial letterhead

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For the session on the use of the prestige of judicial office at this week’s 24th National College on Judicial Conduct and Ethics, a list was compiled of the 37 states that have code provisions or advisory opinions with guidance on the use of official judicial stationery for letters of recommendation.

  • 18 jurisdictions have adopted the comment to Rule 1.3 of the 2007 ABA Model Code of Judicial Conduct that a judge may use official letterhead to write a reference or recommendation “if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.”
  • 1 state code provides “when using court stationery for letters of reference an indication should be made that the opinion expressed is personal and not an opinion of the court.”
  • 2 states have advisory opinions stating that a judge should indicate that a letter of recommendation is “personal and official.”
  • 3 states have a code provision that allows the use of judicial stationery, without the model’s requirement that there be an indication that the reference is personal, but with the model’s caveat that “there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office,” or a similar statement.
  • 6 states have adopted codes that expressly allow the use of official stationery with no caveats, at least no express caveats.
  • 1 state, without expressly allowing the use of official stationery with no caveats, vaguely suggests it is permissible.
  • 1 state refers in advisory notes to the 2007 model comment, without indicating agreement or disagreement, and refers to an advisory opinion allowing use of official stationery only if the recommendation is based on the judge’s position in the court system, without expressly approving or disapproving of that opinion.
  • 1 state has a code provision allowing the use of official stationery only for recommendations for employment and education purposes.
  • 1 state has a code provision prohibiting the use of official stationery to write all letters of recommendation.
  • 3 states have advisory opinions prohibiting the use of official stationery to write all letters of recommendation.

After the list was compiled, Massachusetts became the 38th state with such guidance when, on Thursday, it adopted a new code of judicial conduct, effective January 1.  With respect to judicial recommendations, the new Massachusetts code has the following comment:

A judge may provide an educational or employment reference or recommendation for an individual based on the judge’s personal knowledge.  The judge may use official letterhead and sign the recommendation using the judicial title if the judge’s knowledge of the applicant’s qualifications arises from observations made in the judge’s judicial capacity.  The recommendation may not be accompanied by conduct that reasonably would be perceived as an attempt to exert pressure on the recipient to hire or admit the applicant.  Where a judge’s knowledge of the applicant’s qualifications does not arise from observations made in the judge’s judicial capacity, the judge may not use official letterhead, court email, or the judicial title, but the judge may send a private letter stating the judge’s personal recommendation.  The judge may refer to the judge’s current position and title in the body of the private letter only if it is relevant to some substantive aspect of the recommendation.

The comment also notes that “court hiring policies may impose additional restrictions on recommendations for employment in the judicial branch, and the law may impose additional restrictions on recommendations for employment in state government.”

Throwback Thursday

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10 years ago this month:

  • Accepting a recommendation of a hearing panel of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge who had practiced law while still a judge and advised a client to flee the country rather than face prosecution. Inquiry Concerning Henson, 913 So. 2d 579 (Florida 2005).
  • Pursuant to the recommendation of the Commission on Judicial Qualifications, the Kansas Supreme Court removed a judge for repeatedly, over an extended period, looking at adult web-sites on his office computer in violation of a judicial district’s administrative order. In the Matter of Robertson, 618 S.E.2d 897 (Kansas 2005).
  • Accepting the recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court publicly reprimanded a judge for his role in creating and airing television ads attacking his opponent. Disciplinary Counsel v. Spicer, 834 N.E.2d 332 (Ohio 2005).
  • Approving a stipulation, the Oregon Supreme Court publicly censured a former judge for making a statement to a caseworker about one of the parties in a termination of parental rights case and, during the investigation by the Commission on Judicial Fitness and Disability, denying any recollection of having said anything to the caseworker regarding the case. Inquiry Concerning Lemery, 120 P.3d 1221 (Oregon 2005).
  • Granting a petition of the Commission on Judicial Tenure & Discipline, the Rhode Island Supreme Court publicly censured a judge for (1) failing to adhere to the directives of the chief judge regarding attendance and the ability of litigants to pay fines of lieu of having to appear in cases; (2) engaging in an ex parte conversation with a litigant; and (3) engaging in misconduct at the police station following an arrest. In re Yashar, 885 A.2d 152 (Rhode Island 2005).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a judge for using his judicial office to evade the policies of the jurisdiction in which he had been arrested to obtain a non-scheduled bond hearing and early release from jail. In the Matter of Mendelsohn, 621 S.E.2d 661 (South Carolina 2005).
  • Accepting an agreement for discipline, the South Carolina Supreme Court publicly reprimanded a judge for (1) arranging for an early bond hearing for another judge and (2) a racial remark. In the Matter of Gosnell, 621 S.E.2d 659 (South Carolina 2005).

Flouting deterrence

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Deterring similar conduct has been cited as one of the purposes of judicial discipline.  See, e.g., In re Peck, 867 P.2d 853 (Arizona 1994); In re Cox, 658 A.2d 1056 (Maine 1995); In re Hathaway, 630 N.W.2d 850 (Michigan 2001); In re Miera, 426 N.W.2d 850 (Minnesota 1988); In re Krepela, 628 N.E.2d 262 (Nebraska 2001); In re O’Dea, 622 A.2d 507 (Vermont 1993); In the Matter of Turco, 970 P.2d 731 (Washington 1999).

Further, the lack of prior judicial precedent indicating particular conduct was unethical has been considered a mitigating factor in judicial discipline proceedings.  See Commission on Judicial Performance v. Dodds, 680 So. 2d 180, 200 (Mississippi 1996).

A recent removal case illustrates the first concept and applies the flip-side of the second.  The Minnesota Supreme Court removed a judge for failing to reside within his judicial district and making a knowingly false statement regarding his residency in his affidavit of candidacy.  Inquiry into the Conduct of Pendleton (October 14, 2015).

The Court noted that, in 2011, it had suspended a judge without pay for 6 months for failing to comply with the constitutional residency requirement and making an affirmative misrepresentation and material omissions to the Board on Judicial Standards.  Inquiry into Karasov, 805 N.W.2d 255 (Minnesota 2011).  The Court concluded that Judge Pendleton’s misconduct was substantially more serious than Judge Karasov’s misconduct.

When we suspended Judge Karasov, we expressed our “lack of tolerance for a judge’s failure to comply with her constitutional obligations” and for a judge’s failure to act honestly and candidly with the Board. . . .  Just 2 years after we gave this clear warning and despite being fully aware of our decision in Karasov, Judge Pendleton deliberately chose to reside outside of his judicial district for even longer than Judge Karasov did. . . .  Judge Pendleton consciously disregarded both his constitutional obligations and our decision in Karasov.

The Court emphasized:

The integrity of the judicial system is seriously undermined when a judge not only violates his or her constitutional obligations [regarding residency] but also flouts a discipline decision of our court. . . . .  The public’s trust and confidence in the Minnesota judiciary will be eroded if the disciplinary system is unable to deter similar acts of serious misconduct by other judges. . . .

The Court also stated that the context in which the judge made the knowingly false statement about his residency was “especially troubling,” concluding “the integrity of the judiciary is severely undermined if a judge deceives voters by falsely representing that he or she satisfies a constitutional requirement to hold office.”

From the totality of the circumstances, the Court held that removal was required.

Judge Pendleton committed two very serious violations.  Each of his violations severely undermines the public’s trust in their judicial system.  When we assess Judge Pendleton’s violations and the cumulative impact his misconduct has on the public’s faith in the integrity of the judicial system, we conclude that the sanction of removal from office is the only sanction adequate to ensure that the people of Minnesota can have continued faith in the integrity of their justice system.

Throwback Thursday

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20 years ago this month:

  • Following the recommendation of the Commission on Judicial Performance, the California Supreme Court removed a judge for, in addition to other misconduct, failing to report several loans on her annual statement of economic interests; failing, with her husband, to list at least 6 creditors on a voluntary petition of bankruptcy; being habitually tardy in commencing court sessions; and asking 2 material witnesses not to cooperate with the Commission’s agents during its investigation. Doan v. Commission on Judicial Performance, 902 P.2d 272 (California 1995).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for issuing a bench warrant for the immediate arrest of a witness who had not been properly served. Inquiry Concerning Graziano, 661 So. 2d 819 (Florida 1995).
  • Following the recommendation of the Judicial Qualifications Commission, the Georgia Supreme Court removed a judge who had (1) refused to set appeal bonds for 2 misdemeanor defendants when the law clearly obligated her to do so, (2) issued bench warrants for the arrest of 2 defendants when their attorney was late even though the defendants had been in court, and (3) forced a defendant to enter a plea of guilty in the absence of his counsel. In the Matter of Vaughn, 462 S.E.2d 728 (Georgia 1995).

Disqualification reprise

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This term, the U.S. Supreme Court will again decide whether a state supreme court justice should have disqualified himself from a case — just over 6 years after it defined the objective and reasonable standard for disqualification necessary to implement due process and noted the difficulty of judges’ inquiring into their own “subjective motives and purposes in the ordinary course of deciding a case.”  In Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), reversing a decision of the West Virginia Supreme Court of Appeals, the Court had held that, where campaign contributions from the principal of one of the parties “had a significant and disproportionate influence” on the election of one of the justices on the state court, the risk of actual bias was “sufficiently substantial” to require that justice’s disqualification under the Due Process Clause of the U.S. Constitution.

Campaign conduct is one of the grounds for the disqualification argument in the new case the Court will hear after granting a petition for writ of certiorari from a decision in a capital criminal case from the Pennsylvania Supreme Court in Williams v. Pennsylvania.  The pleadings before the Court are at http://www.scotusblog.com/case-files/cases/williams-v-pennsylvania/.

In 1986, Ronald Castille was the elected district attorney in Philadelphia where Williams was convicted of murder and robbery and sentenced to death.  In 2012, under the Post-Conviction Relief Act, a trial court granted Williams a stay of execution and awarded a new penalty hearing after finding the trial prosecutors from the district attorney’s office had withheld exculpatory evidence.  The state appealed to the Pennsylvania Supreme Court where Castille was now Chief Justice; he denied Williams’s motion to recuse the same day it was filed and also denied his request that the motion be heard by the full court.  Thus, then-Chief Justice Castille (he retired in 2014) participated in the decision of a unanimous court that vacated the order for a new trial and reinstated the death penalty, finding that the petition for post-conviction relief had been untimely and did not meet the “governmental interference” exception to the timeliness requirement.  Williams v. Commonwealth, 105 A.3d 1234 (Pennsylvania 2014).

In his petition to the U.S. Supreme Court, Williams argued that the Eighth and Fourteenth Amendments are violated when a state supreme court justice declines to recuse himself from a capital case in which he had personally approved the decision to pursue capital punishment in his prior capacity as elected district attorney and even though he had been district attorney through the trial and initial appeal.  In addition, the petition argued, the Chief Justice’s disqualification was required because, during his campaign for the state supreme court, he had “expressed strong support for capital punishment, with reference to the number of defendants he had ‘sent’ to death row,” including Williams.

The Court also agreed to take a second question presented by the petition:  “Are the Eighth and Fourteenth Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive?”

In a completely unrelated development coincidentally involving a member of the same court, the Pennsylvania Judicial Conduct Board confirmed that “it has recently received materials from the Attorney General regarding emails involving Justice [Michael] Eakin and that it has commenced a new investigation in those matters.”  The e-mails, sent or received between Justice Eakin’s Yahoo account and attorneys in the Attorney General’s office, contain, “racial, misogynistic pornography” and a joke about a woman who was beaten by her husband, according to the Attorney General.  The Board’s press release notes that it had already conducted an investigation in 2014 “into allegations regarding inappropriate emails self-reported” by Justice Eakin and that previous complaint had been dismissed “based on information then available to the Board.”

Throwback Thursday

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25 years ago this month:

  • Accepting a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for (1) obtaining an ex parte order granting him temporary custody of his son and (2) making off-color and outrageous comments implying that he would retaliate against his wife’s attorney. In the Matter of Sauce, 561 N.E.2d 751 (Indiana 1990).
  • Accepting an agreed statement and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who neglected more than 200 motor vehicle cases over 7 years and, in 1 case, despite continual prompting by the defendant’s attorney, failed to notify the defendant of the fine, delayed depositing the fine when paid, and failed to return the defendant’s driver’s license record. In the Matter of Ware, Determination (New York State Commission on Judicial Conduct October 25, 1990).
  • Adopting the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly admonished a magistrate for receiving campaign contributions without forming a committee. In the Matter Suder, 398 S.E.2d 162 (West Virginia 1990).

Still a Facebook fail

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A previous post — “Another Facebook fail” — described the admonition of a judge by the Texas State Commission on Judicial Conduct for her comments about pending cases on Facebook.  Following a de novo trial, a Special Court of Review has now dismissed those charges.  In re Slaughter, Opinion (Texas Special Court of Review September 30, 2015).  (Because it dismissed the charges, the court did not reach the First Amendment challenge raised by the judge.)

A couple of days before a high profile criminal trial was set to begin in her court, the judge posted on her Facebook page:  “We have a big criminal trial starting Monday!  Jury selection Monday and opening statements Tues. morning.”  The defendant was charged with unlawful restraint of a child for allegedly keeping a 9-year-old boy in a 6-foot-by-8-foot wooden enclosure inside the family home.

Subsequently, the judge posted several additional comments on her Facebook page:

Opening statements this morning at 9:30 am in the trial called by the press “the boy in a box” case.

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!

This is the case currently in the 405th!,” with a link to a Reuters article entitled “Texas father on trial for putting son in box as punishment.”

Defense counsel filed a motion to recuse the judge and a motion for mistrial based on the judge’s Facebook posts.  A visiting judge removed the judge from the case, and the transferee judge granted the defendant’s motion for mistrial.  At least 2 attorneys involved in the case complained about the judge’s comments.

The Texas code of judicial conduct provides:  “A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge’s court in a manner which suggests to a reasonable person the judge’s probable decision on any particular case.”  (To compare, the 2007 American Bar Association Model Code of Judicial Conduct rule provides:  “A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court . . . .”)

The judge presented testimony from a law professor; a lawyer and published authority regarding the legal and judicial ethics surrounding the use of social media; and 2 Texas district court judges.  Expert testimony on the law is out of place in judicial discipline proceedings (or any legal proceeding for that matter) so it is troubling that the review court (comprised of 3 appellate court judges) seemed to delegate the decision on whether the judge violated the code of judicial conduct to the judge’s experts rather than fulfilling that responsibility itself based on the factual evidence and legal arguments presented.  See “The Judicial Ethics Expert,” Judicial Conduct Reporter (spring 2011).  The review court relied on the experts’ testimony that the judge’s Facebook comments did not violate the code of judicial conduct, did not amount to willful or persistent conduct clearly inconsistent with the proper performance of the judge’s duties, and did not cast public discredit upon the judiciary or administration of justice.

Regardless whether the judge’s posts violated the code, the way she used Facebook showed poor judgement (as even the review court suggested) and should not be viewed as laudable public outreach.  Instead of using her Facebook page as an educational antidote to media sensationalism, she seemed to adopt the news media’s judgement of which cases should be highlighted and what attitude to take.  To the litigants, all cases are big, and none deserve a catchy nickname.  Tabloids may use exclamation marks when commenting on legal proceedings; a judge should be less excited and more dignified.  The judge’s posts added nothing to the public’s understanding of the courts but merely reinforced its fascination with the crime.

Recent news

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  • Based on the findings and recommendation of the hearing panel of the Commission on Judicial Conduct, the Arizona Supreme Court suspended a judge for 90 days for (1) using his official court e-mail account for campaign-related communications, including obtaining a campaign endorsement from an individual who was providing services to his court and using unprofessional and undignified language in the communications; (2) using improper campaign photographs; (3) handing out flyers at 2 official court events where he was acting in his judicial capacity; (4) posting campaign materials at a U.S. Post Office in contravention of federal law; (5) retaliating against his campaign opponent; (6) confronting a clerk about her support for his opponent; and (7) failing to disclose the incident involving the clerk to the Commission. In the Matter of Grodman, 2015 Ariz. LEXIS 319 (September 23, 2015).
  • The California Commission on Judicial Performance publicly admonished a judge for failing to timely act on over 20 matters, signing and submitting 7 false salary affidavits, receiving his salary in violation of the law on 13 occasions, and failing to prepare a progression plan in a case he had exempted from time goals. Public Admonishment of Reinholtzen (September 3, 2015).
  • Accepting a revised consent judgement, the Florida Supreme Court suspended a judge for 30 days without pay, fined her $10,000, and ordered her to appear before it to be publicly reprimanded for (1) a rude and intemperate interaction with a store owner during her judicial election campaign and (2) removing court documents from a case file. The Court also ordered that she write a letter of apology to the store owner.  Inquiry Concerning Schwartz (2015).
  • Agreeing with the recommendation of the Commission on Judicial Performance based on the judge’s agreement, the Mississippi Supreme Court removed a former chancery court judge based on his guilty plea in federal court to obstruction of justice, a felony, for his conduct related to a conservatorship matter pending before him. Commission on Judicial Performance v. Walker (September 3, 2015).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) allowing his name and judicial title to be used to promote the private interests of a bank and his family and continuing to serve as a director of the bank after he assumed the bench; (2) making public comments about 2 cases; (3) independently investigating alleged probation violations and becoming too involved in the state’s motion to revoke a defendant’s probation; (4) improper ex parte communications with a prosecutor in 1 case and a criminal defendant in another; (5) failing to comply with the Texas Fair Defense Act and the county indigent defense plan; (6) using official judicial letterhead to demand that a neighbor reimburse him for veterinary expenses; and (7) threatening to report a police officer to the probation department concerning a dispute between the officer’s children and relatives of the judge’s court reporter. Public Reprimand of Clifford (September 5, 2015).
  • In a letter to the speaker of the U.S. House of Representatives, based on the evidence in a report by a special committee unanimously adopted by the Judicial Council of the 11th Circuit, the U.S. Judicial Conference determined that the impeachment of former judge Mark Fuller may be warranted for physically abusing his then-wife at least 8 times; making repeated false, material statements under oath before the investigative committee that he never hit, kicked, or punched his then-wife; and making false statements to the Chief Judge of the Eleventh Circuit in 2010 that caused “a massive disruption in the District Court’s operation and loss of public confidence in the Court as an instrument of justice.”