Judges and social media

In a new code of judicial conduct effective December 1, 2015, the West Virginia Supreme Court of Appeals has included a comment 6 to Rule 3.1 that provides:

The same Rules of the Code of Judicial Conduct that govern a judicial officer’s ability to socialize and communicate in person, on paper, or over the telephone also apply to the Internet and social networking sites like Facebook.

This is the first code to include an express reference to social media.  Thus, a new section has been added to the document “Social media and judicial ethics,” kept up-dated on-line on the web-site of the Center for Judicial Ethics.  The sections are:  citations to judicial ethics advisory opinions on social media, code of conduct provisions referencing social media, judicial discipline cases involving social media, judicial campaigns and social media, and judicial disqualification cases involving social media.

Throwback Thursday

5 years ago this month

  • Based on an agreement, the Arizona Supreme Court censured a judge who, during a settlement conference, said “fuck you” to one of the attorneys while showing his middle finger and told the attorney it was “shitty” of him to change his position. Cornelio, Order (Arizona Supreme Court December 9, 2010).
  • The Arizona Commission on Judicial Conduct reprimanded a judge for failing to be present or immediately available to promptly attend to court business. Williams, Amended order (Arizona Commission on Judicial Conduct December 9, 2010).
  • The California Commission on Judicial Performance admonished a judge for inappropriate comments. Public Admonishment of Gibson (California Commission on Judicial Performance December 14, 2010).
  • The California Commission on Judicial Performance admonished a judge for driving under the influence of alcohol. Public Admonishment of Widdifield (California Commission on Judicial Performance December 14, 2010).
  • Accepting the recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court fined a judge $5,000 and ordered that she appear before it to be reprimanded for identifying $125,000 on her campaign disclosure form as loans from herself that were, in fact, loans from her father. Inquiry Concerning Colodny, 51 So.3d 430 (Florida 2010).
  • The New York State Commission on Judicial Conduct censured a judge for operating a vehicle while under the influence of alcohol, resulting in his conviction for driving while ability impaired, and asserting his judicial office in connection with his arrest. In the Matter of Maney, Determination (New York State Commission on Judicial Conduct December 20, 2010).
  • The Texas State Commission on Judicial Conduct admonished a judge for (1) serving as a fiduciary for a close, personal friend and the friend’s daughter and (2) dismissing a DWI case against the friend. Public Admonition of Fitzgerald (Texas State Commission on Judicial Conduct December 16, 2010).
  • Based on a stipulation, the Utah Supreme Court approved the implementation of a reprimand of a judge for failing to disqualify himself from 37 traffic citations issued by his son-in-law. In re Adams, Order (Utah Supreme Court December 20, 2010).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for failing to hold mitigation hearings when requested and reducing a person’s fine based solely on review of the citation and the person’s driving record. In the Matter of Hille, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 3, 2010).

Clear erosion of public confidence

Since the June 20014 videotape of Judge John Murphy threatening to commit violence against an assistant public defender went viral, the only question has been the appropriate sanction; the judge admitted the facts and was remorseful about his misconduct, which also included resuming his docket while defendants were without counsel.  The hearing panel of the Judicial Qualifications Commission recommended that he be suspended without pay for 120 days, publicly reprimanded, fined $50,000 plus costs, and required to continue to participate in a mental health therapy program and to complete judicial education courses.  The Florida Supreme Court disagreed, however, and last week removed him from office.  Inquiry Concerning Murphy (December 18, 2015).

On June 2, 2014, the judge had a verbal altercation with assistant public defender Andrew Weinstock after Weinstock refused to waive speedy trial for his client.  The judge stated, “You know if I had a rock, I would throw it at your [sic] right now.  Stop pissing me off.  Just sit down.”  When Weinstock refused to sit down, asserting his right to stand and represent his clients, the judge shouted, “I said sit down.  If you want to fight, let’s go out back and I’ll just beat your ass.”  The 2 men left the courtroom and met in the hall.

Although there is no video of the events in the hallway, the courtroom audio captured the judge remarking, “Alright you, you want to fuck with me?” and sounds of a scuffle.  A deputy separated them.  Weinstock requested that the judge be arrested for hitting him twice in the face, but no arrest was made.  There was no evidence, other than his testimony, that Weinstock had been hit.  The hearing panel found that there was no clear and convincing evidence that the judge struck Weinstock and could not determine which of them initiated physical contact.

The Court noted it examined judicial misconduct for present fitness to hold office “’from two perspectives:  its effect on the public’s trust and confidence in the judiciary as reflected in its impact on the judge’s standing in the community, and the degree to which past misconduct points to future misconduct fundamentally inconsistent with the responsibilities of judicial office.’”  It concluded:

Focusing first on the effects on the public’s trust in the judiciary, we must conclude that Judge Murphy is not presently fit to serve.  Judge Murphy used profanity in an open courtroom and threatened violence against an attorney appearing before him.  This is the sort of egregious conduct that erodes the public’s confidence.  It is without question that except for the June 2, 2014, incident, Judge Murphy has been a good judge.  Notwithstanding his prior judicial performance, Judge Murphy’s total lack of self-control became a national spectacle—an embarrassment not only to the judge himself but also to Florida’s judicial system.  Given the clear erosion of public confidence in the judiciary caused by his misconduct, removal is an appropriate sanction.

* * *

On June 2, 2014, Judge Murphy threatened an assistant public defender with violence in open court, challenged him to a physical fight, engaged in the threatened struggle in which the two men had to be physically separated by a deputy, and reassumed the bench to handle cases where the defendants were without the presence of their attorney.  Because of Judge Murphy’s appalling behavior, we conclude that there is clear and convincing evidence that Judge Murphy engaged in “conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office.” . . .  Judge Murphy’s conduct is fundamentally inconsistent with the responsibilities of judicial office and necessitates his removal.  “[T]hrough his own actions culminating in the misconduct in this case, Judge [Murphy] has lost the public’s confidence in his ability to perform his judicial duties in a fair, evenhanded, and even-tempered manner.”

The Murphy case will no doubt be one of the “Top Judicial Ethics Stories of 2015” discussed during a free webinar presented on Friday January 15, 2016, from 12:00 p.m. to 1:00 p.m. central time by the National Center for State Courts Center for Judicial Ethics.  The webinar will review the 2015 cases and developments in judicial ethics and discipline that grabbed the headlines and illuminated current and recurring issues in judicial conduct, including Facebook and e-mail, campaign fund-raising, gay marriage, and appropriate sanctions.  SpeakersColin Winchester, Executive Director, Utah Judicial Conduct Commission * Cynthia Gray, Director, Center for Judicial Ethics, National Center or State Courts.  The webinar is free, but you must sign up ahead of time.  Click this link to sign up: https://attendee.gotowebinar.com/register/1087418470610271489.  If you have any questions, contact Lauren Roberts at lroberts@ncsc.org.

 

Throwback Thursday

10 years ago this month

  • The California Commission on Judicial Performance admonished a judge for driving while intoxicated and failing to report his arrest to the Commission. In the Matter Concerning Alvarez, Decision and order (California Commission on Judicial Performance December 27, 2005).
  • Approving the findings and recommendation of the Judicial Qualifications Commission based on stipulated facts and an agreement, the Florida Supreme Court ordered a judge to appear before it to be reprimanded for ordering law enforcement officials to release from custody a DUI suspect whose father the judge had known for 15 years and who had been arrested while the judge’s son was a passenger in the car. Inquiry Concerning Maloney, 916 So. 2d 786 (Florida 2005).
  • The Indiana Supreme Court suspended a judge for 60 days without pay for discharging a magistrate in retaliation for testimony she provided during a previous disciplinary matter against the judge and knowingly providing fallacious excuses for the discharge to the Commission on Judicial Qualifications and under oath. In the Matter of Danikolas, 838 N.E.2d 422 (Indiana 2005).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a part-time judge who appeared in court as an attorney while under the influence of alcohol and, later that same day, took the bench although he was unable to continue to preside because he was impaired. In the Matter of Gilpatric, Determination (New York State Commission on Judicial Conduct December 14, 2005).
  • Based on a stipulation, the Ohio Supreme Court reprimanded a judge who took action in a case after the administrative judge had ordered her recusal. State Bar Association v. Goldie, 837 N.E.2d 782 (Ohio 2005).
  • Based on a stipulation and agreement, a panel of appellate court judges sitting as a temporary supreme court reprimanded a justice of the Ohio Supreme Court for driving while under the influence of alcohol. In re Complaint Against Resnick, 842 N.E.2d 31 (Ohio 2005).
  • Based on stipulated facts and an agreement, the Washington State Commission on Judicial Conduct censured a former pro tem judge who had pled guilty to federal felony charges of failing to file a currency transaction report. In re Vanderveen, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 9, 2005).
  • Adopting the recommendations of the Judicial Inquiry Board, the West Virginia Supreme Court of Appeals censured a judge and imposed 4 consecutive 1-year suspensions without pay and 4 fines of $5,000 for inappropriate sexual contact with 4 different women on 4 separate occasions while performing his official duties. In the Matter of Toler, 625 S.E.2d 731 (West Virginia 2005).

 

 

Free webinar

On Friday January 15, 2016, from 12:00 p.m. to 1:00 p.m. central time, the National Center for State Courts Center for Judicial Ethics is presenting a free webinar on the “Top Judicial Ethics Stories of 2015.”  The webinar will review the 2015 cases and developments in judicial ethics and discipline that grabbed the headlines and illuminated current and recurring issues in judicial conduct, including Facebook and e-mail, campaign fund-raising, gay marriage, and appropriate sanctions.  SpeakersColin Winchester, Executive Director, Utah Judicial Conduct Commission * Cynthia Gray, Director, Center for Judicial Ethics, National Center or State Courts.

The webinar is free, but you must sign up ahead of time.  Click this link to sign up: https://attendee.gotowebinar.com/register/1087418470610271489.  If you have any questions, contact Lauren Roberts at lroberts@ncsc.org.

 

Judicial Conduct Reporter

The fall 2015 issue of the Judicial Conduct Reporter has been published.  In addition to summaries of some recent advisory opinions and recent cases, it has the second part of the two-part article “Before and after the bench.”  Jurisdiction over a judge’s pre-bench misconduct as an attorney was covered in the first part, published in the summer issue.  Part 2 discusses jurisdiction over judicial misconduct after a judge has left the bench.  It has sections on:

  • Mooted sanctions – when a judge leaves the bench without being sanctioned but with an investigation pending
  • Consecutive sanctions – when a judge who has been removed from judicial office has subsequently been disbarred for the same misconduct
  • Concurrent sanctions – when states have procedures that provide for the handling of judicial and attorney sanctions in the same proceeding

With respect to consecutive sanctions, the article notes that dual discipline (removal and disbarment) has been held to be appropriate if the judicial misconduct also reflects on fitness to practice law.  The types of judicial misconduct identified as inappropriate for subsequent attorney misconduct include:

  • Errors in judgment
  • Inappropriate displays of temper
  • Lapses in adherence to necessary procedures
  • An abuse of power or other judicial misconduct resulting from an honorable motive
  • A lack of impartiality

The types of judicial misconduct identified as deserving of attorney discipline as well as judicial discipline include:

  • Overreaching and misuse of judicial office for personal advantage
  • Dishonesty, venality, or greed
  • Acts that undermine the integrity of the administration of justice
  • Breaching the public trust

Current and past issues of the Judicial Conduct Reporter are available on-line as a free download.  You can sign up to receive notice when a new issue is available

 

 

Throwback Thursday

20 years ago this month

  • Pursuant to a conditional agreement for discipline, the Indiana Supreme Court reprimanded a judge who had had a defendant’s attorney arrested for failing to appear at a hearing when the hearing had been rescheduled after an ex parte communication with the prosecutor, the attorney had informed the judge that he had a conflicting court date, and the judge had denied a motion for continuance. In the Matter of Johnson, 658 N.E.2d 589 (Indiana 1995).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge who, without a subpoena or official summons but under threat of subpoena, signed an affidavit that provided opinion evidence concerning the parenting skills of the parties in a pending matter, identifying himself as a judge and stating that his opinion was shared by other judges in the county. In re Poyfair, Stipulation and order (Washington State Commission on Judicial Conduct December 1, 1995).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct reprimanded a judge who had initiated or considered ex parte communications with police, another judge, a corrections officer, or defense counsel in 4 proceedings. In re Burchard, Stipulation and order (Washington State Commission on Judicial Conduct December 1, 1995).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for inappropriate statements in 3 domestic abuse cases, including, “you didn’t need to bite her. Maybe you needed to boot her in the rear end, but you didn’t need to bite her . . . ,” and “my opinion is that the police do 95% of the work when they separate the parties, so that takes care of 95% of the problem.  You know, all we’re doing is slapping someone after the police have remedied the situation.”  In re Turco, Stipulation and order (Washington State Commission on Judicial Conduct December 1, 1995).
  • The Washington State Commission on Judicial Conduct censured a judge for a pattern of inappropriate sexual behavior, for assaulting his then-wife, for improperly requiring a party to file an affidavit of prejudice against him after he had recused himself, for conducting a mitigation hearing on a traffic citation received by a woman he was dating, and for inappropriately touching a pregnant court employee and commenting, “I can’t get you pregnant, obviously.” In re Wilcox, Commission decision (Washington State Commission on Judicial Conduct December 1, 1995).