Monthly Archives: February 2016

Throwback Thursday

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5 years ago this month

  • Accepting a conditional agreement for discipline, the Indiana Supreme Court suspended a judge for 30 days without pay for (1) exhibiting impatience and frustration with a defendant and her attorney and making sarcastic remarks during a bench trial on traffic charges; (2) a practice of imposing substantially higher penalties on infraction litigants who exercised their trial rights; (3) routinely failing to consider the specific circumstances of the cases when imposing penalties in traffic cases; and (4) routinely giving general advisements to defendants that understated the state’s burden of proof and frequently speculating to indecisive defendants about what the state’s evidence might be. In the Matter of Young, 943 N.E.2d 1276 (Indiana 2011).
  • Granting a joint motion for approval of recommendations filed by the Commission on Judicial Performance, the Mississippi Supreme Court reprimanded a judge for issuing subpoenas to county commissioners without complying with the law. Commission on Judicial Performance v. Buffington, 55 So. 3d 167 (Mississippi 2011).
  • Based on findings by the Judicial Conduct Board, the Vermont Supreme Court reprimanded a judge for failing to resign as an assistant judge upon becoming a candidate for probate judge. In re Hodgdon, 19 A.3d 598 (Vermont 2011).

Unpleasant position

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A recent judicial discipline decision is a reminder that, in addition to rebuffing attempts by attorneys and parties to communicate privately, a judge must resist the temptation to initiate an ex parte communication.  The California Commission on Judicial Performance admonished a judge for instigating a conversation with a deputy district attorney about a case just after the trial but before sentencing.  In the Matter of Scott, Decision and order (February 17, 2016).  The Commission noted that the judge placed the deputy district attorney “in the unpleasant position of having to report the conversation to her supervisor.”

Shortly before noon on February 27, 2015, a jury found a defendant guilty in a case tried before the judge by Deputy District Attorney Kelly Meeker.  That afternoon, Meeker returned to the courtroom to pick up equipment she had left there; the judge was seated at the court reporter’s desk, chatting with the bailiff and a court clerk.  Meeker said hello to everyone and began to gather her things.  The judge stood to leave and asked Meeker to come speak to him when she had a second.  Meeker asked when he would like her to drop by.  The judge responded, “Right now.”  Meeker put down her equipment and walked to the judge’s chambers.  While standing in the doorway, she told the judge that she was really looking forward to getting his feedback on her performance in trial, but that several people in her office had told her that it was necessary to wait until after sentencing.  The judge told Meeker not to worry and that they would be “discreet,” or words to that effect.  The judge then closed his chambers door and told her to sit down.

Despite several hints by Meeker that she wanted to leave (for example, that she needed to attend conferences in another courtroom), the judge continued to talk to her, told her that she had done a great job in the trial, and gave her feedback on her trial technique, for example, suggesting that she make her direct examinations shorter and be aggressive on rebuttal.  The judge and Meeker also critiqued the deputy public defender’s performance.  Finally, they discussed what sentence might be imposed.

As Meeker left the judge’s chambers, he said, “This conversation never happened.”

Shortly afterward, Meeker reported the conversation to her supervisor.  A news article about the matter appeared in the San Jose Mercury News on March 17.  The judge sent a self-report to the Commission that it received on March 27.

The judge had urged the Commission to take into consideration that he was a new judge at the time of the misconduct having just taken the bench in January 2015.  However, the Commission noted that the judge’s statements demonstrated that he knew that his conversation was improper and that he was aware from his experience as an attorney that ex parte communications with judges are improper pursuant to the State Bar Rules of Professional Conduct.

Throwback Thursday

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10 years ago this month

  • The California Commission on Judicial Performance admonished a judge for, in one criminal case, denying a defendant full opportunity to be heard through counsel regarding sentencing, treating defense counsel rudely and impatiently, and holding the attorney in contempt and immediately incarcerating him. In the Matter Concerning Espinosa, Decision and Order Imposing Public Admonishment (California Commission on Judicial Performance February 9, 2006).
  • The California Commission on Judicial Performance admonished a judge for using court staff, resources, and facilities for his personal real estate business. Public Admonishment of Watson (California Commission on Judicial Performance February 21, 2006).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline censured a judge and suspended him from office for 30 working days without pay for (1) failing to disqualify himself from a criminal case in which his son’s girlfriend was charged with abuse/endangerment of a child; (2) having conversations with his son and his son’s girlfriend about their use of illegal drugs without telling the district attorney’s office; (3) telling an investigator for the state division of investigations that his son and his son’s girlfriend had argued and that one or both were using drugs; (4) failing to timely recuse himself in a case involving a defendant who had been taken into custody for a DUI offense while driving a car registered to the judge and his son; (5) purchasing from a bail bondsman a car the judge knew was collateral on a bond in a case pending before him; (6) directing a highway patrol trooper ex parte to perform additional investigation in a traffic case; (7) rescheduling a preliminary hearing in a child sexual assault case to try to prevent a reporter from attending; (8) acting disrespectfully toward an attorney representing a female applicant seeking a protective order, issuing a protective order against the applicant even though the adverse party had not requested such an order, and making comments to the attorney to the effect he did not hear domestic violence cases and that he would refuse to hear them; (9) fixing a ticket for the wife of a deputy sheriff; (10) having a deputy district attorney fix a ticket for a court employee; (11) soliciting additional information from a witnesses in the presence of the deputy district attorney when neither the defendant nor his lawyer were present; and (12) arranging for his son to obtain own recognizance release from custody on a felony charge without notifying the prosecutor or defense counsel. In the Matter of Ward, Findings of Fact, Conclusions of Law, and Imposition of Discipline (Nevada Commission on Judicial Discipline February 3, 2006).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 1 year without pay for claiming on a notarized CLE compliance report that he had attended all 3 days of a seminar when he had only attended 1 day and repeating the misrepresentation to Disciplinary Counsel during its investigation. In the Matter of Augustus, 626 S.E.2d 346 (South Carolina 2006).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court reprimanded a judge for failing to supervise an employee who had embezzled money from the court. In the Matter of Hensley, 627 S.E.2d 716 (South Carolina 2006).
  • Adopting the recommendation of the Judicial Conduct Commission, the Utah Supreme Court removed a justice court judge who had a plural marriage relationship with 3 women. In re Inquiry of Steed, 131 P.3d 231 (Utah 2006).

 

Permitting others to convey

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The Florida Judicial Ethics Advisory Committee recently stated that a judge “must adamantly and genuinely encourage” a law firm “not to publicly acknowledge, promote, or market” the fact that an attorney with the firm is the judge’s child.  Florida Advisory Opinion 2016-2.  The occasion for the advice was the desire of a law firm to identify an attorney with the firm as the child of a specific judge and explain that the attorney had decided to “follow in the judge’s footsteps” by practicing law in a particular area of Florida.  The firm intended to use the information in press releases regarding its hiring of the judge’s child and in the child’s law firm biography.

The judge’s approval of or acquiescence in that plan would obviously violate Canon 2B of the Florida code of judicial conduct:  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”  (The comparable rule in the ABA Model Code of Judicial Conduct is Rule 1.3.)  As the Florida committee explained:

The public may be inclined to use this particular law firm because of the specific advertisement of this familial relationship between the judge and attorney child.  Furthermore, it gives the public the impression that because the Inquiring Judge’s child is an attorney in the firm, that law firm has a special relationship with the Inquiring Judge or the Inquiring Judge’s colleagues

Recognizing that the law firm might reject the judge’s request not to promote or advertise the parent-child relationship, the committee stated that the judge “is not ethically responsible for the actions of the law firm or any third party once the Inquiring Judge has apprised the third party not to take this action.”

A similar issue has arisen when an attorney whose name has been part of a firm’s name becomes a judge.  Advisory committees agree that, as an essential step in the transition to the bench, a new judge must ensure that her name is deleted from her former firm’s name.  The name change is required not only by both the code of judicial conduct, but by the requirement of Rule 7.5(C) of the Model Rules of Professional Responsibility that the “name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.”  See Kentucky Advisory Opinion JE-41 (1982) (a new judge has a duty to see that his name is removed from a firm name, and the firm has a “like duty”); Louisiana Advisory Opinion 155 (1999) (a judge may not permit his former law firm to use his name in the firm name); Michigan Advisory Opinion JI-89 (1994) (a judge may not allow his name to remain in the name of his former law firm); New York Advisory Opinion 1989-136 (prior to assuming judicial office, a judge must remove his name from a firm’s masthead).  According to its recently released annual report, the Arizona Commission on Judicial Conduct  privately warned a justice of the peace in 2015 that he needed to ensure that his former law firm’s web-site did not give the appearance or leave the impression that he still practiced law with the firm, including, but not limited to, eliminating any reference to the judge as a member of the firm and removing his name from the firm name.

2 committees have addressed a new judge’s responsibility if a former firm refuses to stop using the judge’s name despite the firm’s duty and the judge’s requests.

The New York Advisory Committee on Judicial Ethics received an inquiry from a judge who had learned that his former law firm may still be using his name in some of its printed materials, including letterhead.  The judge had called the firm and “forwarded a ‘cease and desist’ letter” alerting it to the ethics issue and asking it to take all necessary measures to remove his “name from the building signage and from any and all printed or displayed materials that the firm may generate.”  The committee advised that the judge did not need to take further action, noting the judge cannot control what the firm does and the committee cannot “advise or direct” the firm to take any action.  New York Advisory Opinion 2015-19.

Similarly, the Massachusetts Supreme Court Committee on Judicial Ethics received an inquiry from a judge who, in the 2 years since she became a judge, had repeatedly requested her former firm to remove her name from the firm title.  Although the firm had removed her name from the listing of attorneys on its letterhead, it asserted that the firm’s name, which still included the judge’s surname, was the property of the legal corporation and that complying with her request would significantly reduce the “goodwill” associated with the firm’s trade name, to its financial detriment.

The committee noted that “it is difficult to envision what other affirmative steps” the judge could take “other than filing a formal complaint with the Board of Bar Overseers or initiating legal action.”  The committee concluded that, although it was within the judge’s discretion to file a complaint, she was not required to do so because, even if the firm’s continued use of her name violated the professional responsibility rules, “it would not appear to be the type of violation for which disbarment, or some other type of severe sanction, is likely to result . . . ,” and, therefore, did not trigger the duty to file a complaint.  The committee noted that the fact that the judge’s “surname is fairly common is of some relevance, as third parties might not automatically associate” her with the firm, alleviating, to some degree, the concern that the firm was using her name and title for financial gain.  Massachusetts Advisory Opinion 2003-9.

These opinions again illustrate the importance to judges (and particularly new judges) of an active judicial ethics advisory committee that can answer an individual judge’s questions and then post the advice on-line to provide easily available guidance for all judges.  See the list of committee on the Center for Judicial Ethics web-site here.

Throwback Thursday

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20 years ago this month

  • The Arkansas Judicial Discipline & Disability Commission admonished a judge who (1) called a juvenile to the bench while the juvenile was in an agitated state, grabbed his jacket, and pulled him forward; (2) met with the juvenile’s legal guardian without the guardian’s attorney being present and discussed matters concerning the juvenile and the judge’s recusal from the case; (3) had an ex parte communication with a second juvenile, in the absence of the juvenile’s attorney, about a charge against the juvenile after the juvenile had requested a trial and indicated a desire to plead not guilty; and (4) after a third juvenile had requested trial, had continued discussing with the juvenile the facts of the underlying incident and if he was pleading guilty. Letter to Brown (Arkansas Judicial Discipline & Disability Commission February 22, 1996).
  • Accepting the recommendation of the Committee on Judicial Conduct, the New Hampshire Supreme Court suspended for 6 months without pay a judge who had called a police officer he knew personally after the officer had ticketed the judge’s brother. In re Snow, 674 A.2d 573 (New Hampshire 1996).
  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct admonished a judge who had appeared on behalf of his sister-in-law at a motion hearing before a family law commissioner during regular court hours and at the same courthouse in which he performed his judicial duties. In re Chow, Stipulation and Order of Admonishment (Washington State Commission on Judicial Conduct February 2, 1996).

 

 

Recent cases

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  • Based on an agreement, the Alabama Court of the Judiciary suspended a judge for 180 days without pay for “an almost complete failure to operate or administer her small claims docket in accordance with the law, rules of court, and effective administrative procedures.” In the Matter of Pettway, Final judgment (Alabama Court of the Judiciary January 21, 2016).
  • Based on an agreement and stipulation, the Alabama Court of the Judiciary censured a judge for instructing criminal defendants who owed court-ordered financial assessments and who did not have any money to donate blood or go to jail.  In the Matter of Wiggins, Final judgment (Alabama Court of the Judiciary January 21, 2016).
  • The California Commission on Judicial Performance admonished a judge for signing and submitting on 8 occasions false salary affidavits that stated he had no submitted cases pending and undetermined over 90 days and for receiving his salary in violation of law on 6 occasions. Public Admonishment of Wilson (California Commission on Judicial Performance January 23, 2016).
  • The California Commission on Judicial Performance admonished a judge for, despite having been warned by the court about his behavior, treating certain women at court inappropriately. Public Admonishment of Bergeron (California Commission on Judicial Performance January 25, 2016).
  • Based on a stipulation for discipline by consent, the California Commission on Judicial Performance censured a judge for (1)(a) failing for nearly 2 years to make payments to his ex-wife from his Air Force pension that were required by the judgment entered in their marital dissolution and deliberately failing to inform her that he had retired and was receiving his pension; (b) making false statements to others about advice he had received from his ex-wife’s former attorney, now a court commissioner, that impugned the commissioner’s integrity; (c) directing which judge on his court would handle the stipulation and order settling the pension issue; (2)(a) sending a disparaging, undignified, and discourteous e-mail response to the assistant presiding judge’s inquiry about his availability to help cover the court’s calendar; (b) responding intemperately to the rotation of a particular court reporter to his courtroom; and (3) failing to disqualify himself when a close personal friend appeared as an attorney in a case and failing to disclose the relationship. Inquiry Concerning Trice (California Commission on Judicial Performance February 4, 2016).
  • With the judge’s consent, the D.C. Commission on Judicial Disabilities and Tenure released its determination that a judge’s modification of a defendant’s sentence outside the presence of the parties violated the code of judicial conduct. Re:  Williams, Determination and undertaking (D.C. Commission on Judicial Disabilities and Tenure January 20, 2016).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission reprimanded a judge for his treatment of an investigator for the attorney general’s office during a hearing. In re Easterling, Order (Kentucky Judicial Conduct Commission December 18, 2015).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, New Jersey Supreme Court reprimanded a part-time judge for representing a wife in a divorce proceeding after taking action in mutual harassment complaints filed by her and her husband and while those actions were pending in his court and failing to disqualify himself from the harassment complaints immediately after undertaking to represent the wife. In the Matter of Bowkley, Order (New Jersey Supreme Court February 3, 2006).
  • The New York State Commission on Judicial Conduct censured a judge for driving while under the influence of alcohol and repeatedly asserting his judicial office in connection with his arrest. In the Matter of Landicino, Determination (New York State Commission on Judicial Conduct December 28, 2015).
  • Based on stipulated facts, the Pennsylvania Court of Judicial Discipline removed a former judge and declared him ineligible to hold judicial office based on his guilty plea in federal court to 1 count of mail fraud and 1 count of honest services wire fraud, both felonies. In re Waters, Opinion and order (Pennsylvania Court of Judicial Discipline January 12, 2016).
  • Pursuant to the judge’s agreement, the Tennessee Board of Judicial Conduct reprimanded a judge for disposing of numerous criminal and juvenile cases in which the defendants were represented by his wife; the Board also entered a cease and desist order in which the judge agreed not to be involved in any cases in which his spouse represents a party. Re Grimes (Tennessee Board of Judicial Conduct January 11, 2016).

Webinar recording

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A recording of the webinar “Top Judicial Ethics Stories of 2015” has now been posted on the Center web-site.  Approximately an hour long, the free webinar was presented on Friday January 15, 2016, by the Center for Judicial Ethics of the National Center for State Courts.  It reviewed 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.  The speakers were Colin Winchester, Executive Director, Utah Judicial Conduct Commission, and Cynthia Gray, Director, Center for Judicial Ethics, National Center or State Courts.

 

Throwback Thursday

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25 years ago this month

  • The Arkansas Judicial Discipline & Disability Commission admonished a judge for an unreasonable delay of 19 months in deciding a case and a failure to promptly dispose of the business of the court. Letter to Adams (Arkansas Judicial Discipline & Disability Commission February 20, 1991).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a family court judge for (1) frequently addressing parties and attorneys in an intemperate manner, (2) indicating that he presumed unproven allegations to be true, (3) using racially charged language on 2 occasions, (4) neglecting to inform litigants of their rights, (5) exerting undue pressure on parties to make damning admissions, and (6) sentencing one person to 6 months in jail based solely on an ex parte letter. In the Matter of Esworthy, 568 N.E.2d 1195 (New York 1991).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a town court justice for physically forcing himself on an unwilling victim. In the Matter of Benjamin, 568 N.E.2d 1204 (New York 1991).
  • The South Carolina Supreme Court reprimanded a former probate judge who had been a candidate in the Democratic primary election and in the general election for the office of county supervisor while continuing to serve as probate judge. In the Matter of Peagler, 401 S.E.2d 416 (South Carolina 1991).

Williams-Yulee controls

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Last April, the U.S. Supreme Court, in Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), rejected a First Amendment challenge to the prohibition on judicial candidates personally soliciting campaign contributions.  (There is a longer, previous post summarizing the case on the blog here.)  Last week, in the first major application of that decision, the U.S. Court of Appeals for the 9th Circuit, sitting en banc, upheld the personal solicitation clause in the Arizona code of judicial conduct and other clauses prohibiting judicial candidates from, for example, making speeches on behalf of a political organization or another candidate for public office, publicly endorsing or opposing another candidate, soliciting funds for or paying an assessment to a political organization or candidate, making contributions to any candidate or political organization in excess of the amounts permitted by law, and actively taking part in any political campaign other than his or her own.  Wolfson v. Concannon (9th Circuit en banc January 27, 2016).

The plaintiff in Wolfson, a former judicial candidate in Arizona, attempted to distinguish Williams-Yulee because, he argued, Florida and Arizona advance different interests in their respective personal solicitation prohibitions.  According to the plaintiff, Florida’s interest was in “public confidence in the integrity and independence of judges.  The integrity and independence of judges depend in turn upon their acting without fear or favor,” quoting Florida’s Canon 1 and commentary.  Arizona’s interest, he argued, was in the public’s perception of “the judge’s honesty, impartiality, temperament, or fitness,” quoting that state’s Rule 1.2 and Comment 5.   “An interest in judicial ‘honesty, impartiality, temperament, or fitness,’” the plaintiff argued, is “different than a concern for ‘fear or favor.’”

However, the 9th Circuit concluded that “is a distinction without a material difference.”

Even if Arizona adopted slightly different language for its articulation of its interest, Arizona is similarly interested in upholding the judiciary’s credibility.  There are no magic words required for a state to invoke an interest in preserving public confidence in the integrity of the state’s sitting judges.

The 9th Circuit also concluded that all of the plaintiff’s arguments about the clauses being overbroad, underinclusive, or not the least restrictive means of advancing the state’s interest were foreclosed by the decision in Williams-Yulee.  For example, the 9th Circuit rejected the plaintiff’s argument that recusal would be the best way to handle impartiality or the appearance of impartiality.

[R]ecusal is no answer at all, and this unworkable alternative was flatly dismissed in Williams-Yulee.  A rule requiring judges to recuse themselves from every case where they endorsed or campaigned for one of the parties could “disable many jurisdictions” and cripple the judiciary. . . .  Four of Arizona’s counties have only one superior court judge and two other counties have only two superior court judges. . . .  Campaigning for frequent litigants would cause an insurmountable burden that other judges and other counties may not be able to bear.  Moreover, an extensive recusal record could cause the same erosion of public confidence in the judiciary that Arizona’s Endorsement Clauses and Campaign Prohibition are trying to prevent.

One judge wrote a concurring opinion to emphasize that the restrictions were supported by the societal interest in maintaining an independent judiciary by preventing judges from becoming political powerbrokers or political pawns.

The campaign and endorsement restrictions respond to a structural need — they restrict judges from engaging in nonjudicial campaigns, to prevent them from being entangled in the legislative and executive political process.  Judges must have the confidence to stand firm against nonjudicial elected officials.  That confidence could give way — or appear to give way — if judges behave just like those elected officials, by engaging in the usual, often contentious and fiercely partisan, political processes