Throwback Thursday

5 years ago this month:

  • Based on a stipulation of facts and waiver of hearing, the Maryland Commission on Judicial Disabilities released its private reprimand of a judge for marrying the victim and defendant in a domestic violence case and, after dismissing the case based on marital privilege, stating to the defendant, “I earlier today sentenced you to life — marriage to her.” The judge agreed to retire on or before December 18, 2011, and not to sit as a retired judge after his retirement.  In the Matter of Russell, Private Reprimand (Maryland Commission on Judicial Disabilities January 10, 2011).
  • Pursuant to the judge’s agreement and a stipulation of facts and waiver of hearing, the Maryland Commission on Judicial Disabilities made public the private reprimand of a judge for driving while intoxicated and being involved in an automobile accident; the judge also agreed to comply with the conditions of a deferred discipline agreement that required he attend at least 5 Alcoholic Anonymous meetings a week, abstain entirely from the consumption of alcohol, arrange and pay for daily breathalyser tests prior to his going on the bench, and work with a Commission-designated monitor judge. In the Matter of Boone, Private Reprimand (Maryland Commission on Judicial Disabilities January 17, 2011).
  • With 2 justices recusing, the Nevada Supreme Court affirmed the November 2008 decision of the Commission on Judicial Discipline removing a former judge from office for (1) sleeping during trials; (2) ex parte contacts with deliberating juries in 2 cases, improper public comments to the media while one of the cases was pending, and false statements to the media in a post-trial interview; (3) using obscene terms to refer to employees in the presence of her bailiff; giving the bailiff $20 and telling him to “go play with the other bailiffs;” and requiring him to massage her feet, neck, and shoulders; (4) yelling at employees and using foul language in the presence of her assistant; (5) allowing 2 unauthorized individuals to gain access to the Regional Justice Center to serve as her body guards or security officers; (6) making false statements to a news reporter; and (7) prohibiting the chief judge from communicating with her except through her attorney, refusing to communicate or cooperate with the court administrator when he attempted to retrieve a rolodex from her office, and telling the police that “unauthorized personnel” were attempting to access her chambers. In the Matter of Halverson, Order of affirmance (Nevada Supreme Court January 31, 2011).
  • Adopting the findings and recommendations of the Advisory Committee on Judicial Ethics, the New Jersey Supreme Court publicly reprimanded a former judge for failing to report his consensual, dating relationship with a bailiff he supervised, as required by court policy. In the Matter of Campbell, 10 A.3d 1201 (New Jersey 2011).
  • Based on an agreed statement of fact and joint recommendation, the New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a non-lawyer judge who intervened in an impending proceeding involving his son, engaged in an improper ex parte communication with the officer who was involved, and took judicial action in the matter. In the Matter of Allen, Determination (New York State Commission on Judicial Conduct January 4, 2011).
  • The New York State Commission on Judicial Conduct determined that removal was the appropriate sanction for a non-lawyer judge who failed to deposit and remit court funds in a timely manner, filed reports with the State Comptroller that falsely and/or inaccurately stated the amounts collected, and engaged in impropriety with respect to traffic violations with which she was charged. In the Matter of Halstead, Determination (New York State Commission on Judicial Conduct January 27, 2011)).
  • The Pennsylvania Supreme Court affirmed the 2008 decision of the Court of Judicial Discipline removing a judge for (1) being habitually and egregiously late for court and frequently absent from the courthouse; (2) being impatient, undignified, and discourteous to court staff and hindering and obstructing the administrative responsibilities of other judges and court officials; (3) repeatedly engaging in lengthy recitations of her displeasure with the president judge on the record; (4) causing a commotion outside of a courtroom and, in a letter to the president judge, falsely claiming that a deputy court administrator had caused the incident; (5) ignoring directives of the president judge to report her staff’s vacation and sick days, to provide copies of attendance reports for her employees, and to obtain approval for appointments of personnel; (6) consistently handling fewer cases and disposing of cases more slowly than other judges; (7) using a court employee to do personal work; and (8) instructing her law clerk to “cut [the plaintiff’s lawyer] a new asshole” in an opinion and, in a second case, to draft an opinion in favor of the plaintiffs because they had supported her politically and failing to disqualify from those cases. In re Lokuta, 11 A.3d 427 (Pennsylvania 2011).

2015 State judicial discipline sanctions

In 2015, as a result of disciplinary proceedings, 115 judges in 27 states were publicly found to have committed misconduct.

  • 9 judges were removed from office, including 1 former judge and 1 judge who was removed for a mental disability. A $3,500 fine was also imposed in one of the removal cases.
  • 2 judges were retired due to permanent disabilities.
  • 19 judges or former judges resigned or retired in lieu of discipline pursuant to public agreements with conduct commissions.
  • 85 additional judges (or former judges in approximately 10 cases) received other public sanctions. Approximately half of the sanctions were entered pursuant to agreement.
    • 15 judges were suspended without pay.
      • 1 suspension was for 180 days
      • 1 for 4 months plus a reprimand
      • 2 for 90 days
      • 1 for 60 days plus a censure
      • 1 for 30 days plus a reprimand and $10,000 fine
      • 1 for 30 days plus a reprimand and $1,000 fine
      • 1 for 30 days plus a censure
      • 4 for 30 days (or 1 month)
      • 1 for 15 days
      • 1 for 7 days
      • 1 for 2 years but stayed on condition the judge commit no further misconduct
    • 11 judges were publicly censured (1 censure was severe and 1 was based on the judge’s irrevocable resignation).
    • 31 judges were publicly reprimanded (1 reprimand also included a cease and desist order, 2 included orders of additional education).
    • 17 judges were publicly admonished (1 admonishment also included an order of additional education).
    • 3 judges received public warnings (2 warnings also included orders of additional education).
    • Civil penalties were imposed on 2 judges for failing to file their financial disclosure reports.
    • 1 judge was placed on supervised probation with other conditions, including a formal mentorship until the end of her term.
    • 1 private reprimand and 1 private letter of counsel were made public pursuant to the judges’ waivers.
    • 1 former judge’s law license was suspended for 1 year in attorney discipline proceedings for her conduct as a judge.
    • 2 judges were found to have violated the code of judicial conduct but no sanctions were imposed.

Throwback Thursday

10 years ago this month:

  • Approving a joint stipulation and the recommendation of the investigative panel of the Judicial Qualifications Commission, the Florida Supreme publicly reprimanded a judge for (1) suggesting to the husband of his election opponent that she reconsider her candidacy, that he had a lot of money for his campaign and had locations lined up for his campaign signs, and that losing the election would affect his retirement and grandchildren; (2) incorrectly asserting in campaign literature the number of jury trials over which he had presided; (3) frequently starting scheduled first appearance hearings late; (4) leaving an arraignment to conduct a campaign interview; (5) insisting that a hearing begin in the absence of one of the attorneys even though the judge had begun the call early; (6) issuing a bench warrant with a $100,000 bond when an expert witness in a small claims case failed to appear despite the disarray in the trial schedule caused by hurricanes; and (7) repeatedly exhibiting rudeness and impatience with counsel, witnesses, and parties. The Court also ordered the judge to complete suitable anger management counseling.  Inquiry Concerning Woodard, 919 So. 2d 389 (Florida 2006).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court censured a judge who, in 2 serious felony cases, ordered expungements without notice, without convening mandatory contradictory hearings, and without making a legal and factual inquiry as to whether expungement was authorized by law. In re Elloie, 921 So. 2d 882 (Louisiana 2006).
  • Based on the decision and recommendation for discipline by the Judicial Tenure Commission to which the judge consented, the Michigan Supreme Court censured a judge for raising questions regarding the moral fiber of a judicial candidate and her husband without any first-hand knowledge or independent verification of the truth or falsity of the representations. In the Matter of Fortinberry, 708 N.W.2d 96 (Michigan 2006).
  • Based on a stipulation and the recommendation of a panel of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court publicly reprimanded a judge for (1) his attempt to broker a “settlement” of allegations of prosecutorial misconduct in a felony prosecution, his discussions of the case with the media, and his dismissal of the case after the prosecution refused to pay costs of retrial, and (2) ruling on a former client’s motion to terminate his prison sentence. Disciplinary Counsel v. Runyan, 840 N.E.2d 623 (Ohio 2006).
  • Pursuant to an agreement for discipline by consent, the South Carolina Supreme Court reprimanded a former judge for (1) finding pro se defendants guilty solely on the basis of police incident reports; (2) signing a terminated court employee’s name to a time sheet and paying sick leave to the employee; (3) suggesting that a highway trooper “help” a court employee who had received a ticket; (4) authorizing a court employee to sign another magistrate’s name to dismiss a ticket; (5) directing that an arresting officer be found without making similar efforts to find a defendant when neither appeared in a case; (6) allowing profits from a vending machine to be used for office expenses rather than, as required by law, for expenditures authorized in an annual budget approved by the governing body of the jurisdiction; (7) issuing warrants charging violation of a statute when defendants failed to appear for traffic court and did not post bond; (8) suspending a fine for a friend in a traffic case even though the friend did not appear at trial; (9) releasing prisoners from the county detention center without any legal basis for doing so; (10) holding special bond hearings; and (11) negotiating a settlement with a defendant and his father. In the Matter of English, 625 S.E.2d 919 (South Carolina 2006).

 

Federal judges – Top judicial ethics stories of 2015

Misconduct by a federal judge – or an allegation of such misconduct – is always a high profile matter, and discipline proceedings involving several federal judges and the revision of the discipline process itself were among the top judicial ethics stories of 2015.

In September, the U.S. Judicial Conference sent to the speaker of the House of Representatives its certification that the impeachment of former District Judge Mark Fuller may be warranted, based on the report of a special committee adopted by the 11th Circuit Judicial Council.  Fuller, who sat in the Middle District of Alabama, had been arrested in August 2014 on misdemeanor battery charges for beating his wife.  The criminal charges were dismissed following his compliance with a pre-trial diversion program.  He resigned effective August 2015.

Noting that the judge’s resignation may have obviated the need for certification in a case “with less egregious and protracted conduct,” the Conference stated its action was also a public censure of the judge’s “reprehensible conduct.”  The Conference found that:

  • Judge Fuller physically abused Kelli Fuller at least eight times, both before and after they were married, which included and culminated in the assault that took place on August 9, 2014, in the Ritz-Carlton Hotel in downtown Atlanta, Georgia.
  • Judge Fuller made repeated statements under oath before the Special Committee that he never, at any time, hit, kicked, or punched Kelli Fuller, which were false and material under 18 U.S.C. § 1621 [the federal criminal perjury statute].
  • Judge Fuller made false statements to the Chief Judge of the Eleventh Circuit in late September 2010 in a way that caused a massive disruption in the District Court’s operation and loss of public confidence in the Court as an instrument of justice. These false statements, in combination with the actions outlined in (a) and (b), contributed to the overall determination that Judge Fuller’s conduct may constitute grounds for impeachment.
  • The conduct described in (a)-(c) has individually and collectively brought disrepute to the federal Judiciary.


* * *
In December, based on the report of a special committee, the 5th Circuit Judicial Council reprimanded District Judge Walter Smith for inappropriate and unwanted physical and non-physical sexual advances toward a court employee in 1998; the Council also directed that no new cases be assigned to the judge for 1 year.  In re Smith, Order and memorandum (December 4, 2015).  Judge Smith sits in the Western District of Texas.  The Council also found that the judge “does not understand the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts” and “allowed false factual assertions to be made in response to the complaint, which, together with the lateness of his admissions, contributed greatly to the duration and cost of the investigation.”  According to news reports, the complainant, an attorney, has asked that the decision to reprimand Judge Smith and not seek his impeachment be reviewed by the Committee on Judicial Conduct and Disability of the Judicial Conference.


* * *
In February, the Committee on Judicial Conduct and Disability of the Judicial Conference denied a petition for review filed by 13 individuals and public interest groups from the dismissal of their complaint alleging that Judge Edith Jones made statements during a public lecture on the death penalty that exhibited bias or related to the merits of pending cases.  In re:  Complaint of Judicial Misconduct (Jones) (February 19, 2015).  Judge Jones sits on the Court of Appeals for the 5th Circuit.  The speech was made at the University of Pennsylvania Law School on February 20, 2013.

The special counsel hired to investigate the complaint had found no recording of the lecture, and the special committee’s report, adopted by the Judicial Council of the D.C. Circuit, noted that, “although there is general agreement regarding the themes that Judge Jones discussed, the judge and the complainants sharply disagree about the wording and tone of many of her comments.”  The complaint alleged, for example, that the judge had stated that certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities.  The special committee agreed that such suggestions would constitute misconduct but concluded that, in the absence of a recording and in light of the witnesses’ conflicting recollections, it could not “find, by a preponderance of the evidence, that Judge Jones made those comments in her initial remarks” and that, whatever her initial remarks, she “used the question-and-answer period to clarify that she did not adhere to such views.”

On review, the U.S. Judicial Conference Committee found no error in the Judicial Council’s conclusions.

* * *
In September, the Judicial Conference amended the Rules for Judicial-Conduct and Judicial-Disability Proceedings for federal judges, with “dozens of clarifications and restyling and policy changes.”  The Conference emphasized:

  • A new “requirement that chief judge and circuit judicial council final orders disposing of a misconduct or disability complaint be published on a court’s public website. . . . Previously the JC&D Rules only required that final orders be made public at the office of the circuit clerk or on the court’s public website.”
  • 2 new grounds for “cognizable misconduct:” “retaliating against complainants, witnesses, or others for their participation in the complaint process” and “refusing without good cause shown, to cooperate in the investigation of a complaint under these rules.”
  • “An expansion of the meaning of ‘disability’ so it may include ‘impairment of cognitive abilities that renders the judge unable to function effectively.’”

Throwback Thursday

20 years ago this month:

  • The Florida Supreme Court publicly reprimanded a judge for colliding with a dock while operating a motor boat and leaving the scene without reporting the accident. Inquiry Concerning Fletcher, 666 So. 2d 137 (Florida 1996).
  • The Mississippi Supreme Court publicly reprimanded a judge who abused his judicial office to address rumors about his relationship with a litigant, for example, making statements in a hearing and questioning the parties regarding the alleged rumors. Commission on Judicial Performance v. Jenkins, 677 So. 2d 171 (Mississippi 1996).
  • The New York State Commission on Judicial Conduct removed a judge who, from December 1993 until May 1995 (with the exception of 1 month), was five to 158 days late in remitting money to the state comptroller as required by law, even though he handled an average of only 4 cases a month, and who failed to respond to the Commission’s inquiries. In the Matter of Miller, Determination (New York State Commission on Judicial Conduct January 19, 1996).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct admonished a judge who had refused to appoint an interpreter for a defendant who did not speak English and made remarks concerning the defendant and other Spanish-speaking farm workers that gave the appearance of ethnic bias. In the Matter of Carr, Determination (New York State Commission on Judicial Conduct January 22, 1996).

Judges and the Boy Scouts: Top stories of 2015

47 states, D.C., and the federal judiciary have provisions in their codes of judicial conduct prohibiting judges from being members of organizations that practice invidious or unlawful discrimination.  (The 3 states without any such provision are Alabama, Illinois, and Louisiana.)  In approximately 28 jurisdictions (27 states and D.C.), sexual orientation is specifically included in the list of grounds for discrimination to which the rule applies.  In other words, those jurisdictions have adopted a version of Rule 3.6A of the American Bar Association Model Code of Judicial Conduct:

A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (emphasis added).

Since 1996, California, one of those 28 jurisdictions, has had an exception for non-profit youth organizations to accommodate judges who were members of or active in the Boy Scouts of America, according to the California Supreme Court Advisory Committee on the Code of Judicial Ethics.  In January 2015, the California Supreme Court eliminated that exception effective January 1, 2016.  Thus, after January 1, California judges would no longer have been able to be members of the Boy Scouts – except the organization changed.

In July 2015, Boy Scouts of American amended its adult leadership policy to remove “the national restriction on openly gay adult leaders and employees” although local religious chartered organizations “may continue to use religious beliefs as criteria for selecting adult leaders, including matters of sexuality.”

Thus, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, even after elimination of the youth group exception, “judicial membership in a BSA-sponsored eagle scout alumni organization is not prohibited because, due to recent changes, current Boy Scouts of American policy precludes invidious discrimination on the basis of sexual orientation for non-unit-serving volunteers such as the eagle scout alumni members.”  California Oral Advice Summary 2015-13.

Similarly, as a result of that recent change in Boy Scout policy, the Connecticut Committee on Judicial Ethics recently advised that a judicial official may participate in the Boy Scouts by teaching ethics courses as a regional or high level volunteer (Connecticut Informal Advisory Opinion 2014-15Aand by serving as a board member of a regional council (Connecticut Informal Advisory Opinion 2014-15B).  Prior to the policy change, the Connecticut committee had issued an advisory opinion stating that a judicial officer may not hold adult volunteer leadership positions with the Boy Scouts that gay persons are barred from holding.  Connecticut Informal Advisory Opinion 2014-1.

Both the California and Connecticut codes, like the model code, contain exceptions for religious organizations, which, even after the Boy Scouts policy change, can still discriminate based on sexual orientation as a matter of religious belief.  Thus, the California committee said that a judge may be a scoutmaster for his church-sponsored Boy Scouts troop if he is satisfied that the troop does not exclude members based on sexual orientation or is dedicated to the preservation of religious values of legitimate common interest to the troop members.  California Oral Advice Summary 2015-14.  The Connecticut committee advised that a judge may, as the lawful exercise of his religious freedom, be a member of a Catholic archdiocese committee on Scouting.  Connecticut Informal Advisory Opinion 2014-15B.

These developments will be one of the topics discussed in the free webinar on the “Top Judicial Ethics Stories of 2015” 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.

 

Throwback Thursday

25 years ago this month:

  • The Michigan Supreme Court removed a judge who had (1) routinely solicited and accepted bribes in return for improperly disposing of matters (generally traffic citations), (2) routinely engaged in ex parte communications, (3) routinely accepted and failed to report improper gifts, favors, and loans from litigants, (4) personally retained a close friend as an attorney to prepare a writ of habeas corpus for an incarcerated person the judge believed to be the friend of another close friend and signed the writ releasing the individual without being fully informed of the facts, (5) intentionally misrepresented his residential address on an automobile insurance application to defraud the insurance company, and (6) solicited an individual to commit perjury in a federal investigation of the judge. In the Matter of Jenkins, 465 N.W.2d 317 (Michigan 1991).