Judicial Conduct Reporter

The winter 2016 issue of the Judicial Conduct Reporter has been published.  The issue reviews the past year in judicial ethics and discipline with statistics on state sanctions and summaries of the 9 cases in which judges were removed from office.  There is also an article on the top judicial ethics stories of 2015:  the harsher penalties imposed by the Florida Supreme Court in several cases, including the judge who challenged a public defender to a fight that was caught on a video that went viral; discipline proceedings involving several federal judges and the revision of the discipline process itself; judges’ performance of same-sex marriages; judges’ involvement in the Boy Scouts; and personal solicitation of campaign contributions.  Finally, the issue includes “what they said that got them in trouble,” judicial quotes that led to judicial discipline.

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

 

Throwback Thursday

Twenty years ago this month:

  • Based on a stipulated disposition and agreed statement of facts, the California Commission on Judicial Performance severely and publicly censured a judge for a wide variety of misconduct, including remanding 3 people to custody for whispering in court and 1 person for appearing to fall asleep in court without following proper contempt procedures; being rude and insulting to a deputy public defender on 6 occasions; putting inordinate pressure on prosecutors to offer dispositions and on defendants to enter guilty pleas; and frequently and arbitrarily dismissing misdemeanor cases if the prosecution was unable to proceed on the day set for trial without the 10-day grace period allowed by the penal code. Inquiry Concerning Ormsby, Decision and Order of Public Censure (California Commission on Judicial Performance March 20, 1996).
  • The Indiana Supreme Court removed a judge who had participated in harassment directed toward a court employee and her family. In the Matter of McCLain, 662 N.E.2d 935 (Indiana 1996).
  • The Michigan Supreme Court suspended for 3 days without pay a judge who, during a hearing on a motion in a custody proceeding, instigated a confrontational exchange, predetermined that the motion was frivolous, made caustic comments in an abusive tone, and personally attacked the attorney who filed the motion, stating at one point, for example, “Ma’am, I don’t know what planet you’re from.”  In the Matter of Hocking, 546 N.W.2d 234 (Michigan 1996).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct admonished a judge who, for over 6 years, failed to advise defendants in traffic cases of a trial date upon receipt of pleas of not guilty as required by statute and met ex parte with prosecutors to discuss plea reductions they had negotiated with defendants. In the Matter of Bregman, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct admonished a part-time judge who had signed as complaining witness and filed with the other judge of his court 30 informations against individuals whom the judge had apprehended on the property of a private club for which he was superintendent and who had used judicial stationery in several letters to his fellow judge and to the district attorney in connection with the cases. In the Matter of Hoag, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • The New York State Commission on Judicial Conduct removed a judge who failed to remit court funds to the state comptroller by the tenth day of the month following collection as required by statute and failed to cooperate in the Commission investigation. In the Matter of Driscoll, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • Pursuant to an agreed statement of fact and joint recommendation, the New York State Commission on Judicial Conduct admonished a judge who stepped off a park roadway into some bushes, raised his shorts, and exposed his penis; informed the arresting officers that he was a judge even though they had not asked about his occupation; and, at the police station, stated to a lieutenant that his arrest would be devastating because of his judicial position. The judge had pled guilty to disorderly conduct.  In the Matter of D’Amico, Determination (New York State Commission on Judicial Conduct March 21, 1996).
  • Noting that a public reprimand was the most severe sanction it could impose when a judge no longer holds office, the South Carolina Supreme Court reprimanded a former judge who had had sexual intercourse with a litigant in a case before him. In the Matter of Gravely, 467 S.E.2d 924 (South Carolina 1996).

 

Recent cases

  • The California Commission on Judicial Performance admonished a judge for a pattern of failing to disclose the campaign contributions of attorneys who appeared before him after the election. In the Matter Concerning Walsh, Decision and order (California Commission on Judicial Performance February 10, 2016).
  • The California Commission on Judicial Performance admonished a judge for providing a deputy district attorney with ex parte feedback on her trial performance while sentencing was still pending, telling her they would be “discreet” and “this conversation never happened.” In the Matter of Scott, Decision and order (California Commission on Judicial Performance February 17, 2016).
  • Based on the judge’s stipulation and consent, the Nevada Commission on Judicial Discipline reprimanded a judge for initiating or participating in a telephone conversation with the deputy district attorney regarding the release of a defendant from jail on his own recognizance and regarding the judge’s disqualification, failing to disqualify himself, releasing the defendant on his own recognizance before receiving the deputy district attorney’s motion contesting the release, and then disqualifying himself without sufficient reason. In the Matter of Fletcher, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline February 12, 2016).  The judge also agreed to complete a course at the National Judicial College.
  • The Nevada Commission on Judicial Discipline permanently barred a former judge from serving in any elected or appointed judicial office in the state based on his federal plea agreement to charges related to a scheme to defraud that included use of his judicial position to increase the credibility of the scheme. In the Matter of Jones, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline March 1, 2016).
  • Based on the judge’s consent, the Nevada Commission on Judicial Discipline reprimanded a judge for independently investigating the father in a paternity case and then holding him in contempt without following procedures required by due process and failing to enter a visitation order in the case for over a year. In the Matter of Wanker, Stipulation and order of consent (Nevada Commission on Judicial Discipline March 3, 2016).  The judge also agreed to complete 2 courses at the National Judicial College.
  • Accepting a stipulation based on the judge’s agreement to resign and never seek or accept judicial office, the New York State Commission on Judicial Conduct discontinued a proceeding against a judge who had pled guilty to fourth degree grand larceny, admitting that she stole over $1,000 from bank accounts belonging to a pee wee association, for which she was treasurer, at the bank where she was employed. In the Matter of Powers, Decision and order (New York State Commission on Judicial Conduct February 8, 2016).
  • Adopting findings of fact and misconduct, which the parties had stipulated, the Ohio Supreme Court permanently disbarred a former judge who was convicted in federal court in 2011 on 1 count of conspiracy to commit mail fraud and 2 counts of honest-services mail fraud in connection with his judicial duties. Disciplinary Counsel v. Terry (Ohio Supreme Court February 25, 2016).
  • The Texas State Commission on Judicial Conduct admonished a judge who, after taking a case under advisement following a bench trial, entered a written judgment that was inconsistent with the amount of damages sought and presented at trial, failed to provide notice of the entry of the lower judgment to the parties, failed to afford the parties an opportunity to be heard on the legal issue that resulted in the lower judgment, and failed to announce the final judgment in open court as required by law. Public Admonition of Contreras (Texas State Commission on Judicial Conduct January 28, 2016).  The Commission also ordered the judge to obtain 2 hours of instruction with a mentor, in addition to his required judicial education.

 

Throwback Thursday

25 years ago this month:

  • The Massachusetts Supreme Judicial Court censured a judge for (1) making derogatory and obscene references about other judges to members of the bar; (2) a pattern of drinking to excess and urinating in public; (3) being less than candid and forthright before the Commission on Judicial Conduct; (4) setting unusually high bail for 4 black defendants after learning that a large number of black voters in Boston had voted for his brother’s opponent in the gubernatorial primary; and (5) maintaining a practice of confiscating, without adequate notice, the cash alternative bail funds of friends and relatives of non-defaulting defendants to satisfy their outstanding obligations. In the Matter of King, 568 N.E.2d 588 (Massachusetts 1991).
  • The New York State Commission on Judicial Conduct removed a judge for consistently failing to remit court funds promptly to the state comptroller and failing to cooperate with the Commission. In the Matter of Schwarting, Determination (New York State Commission on Judicial Conduct March 15, 1991).
  • Pursuant to an agreed statements of facts and joint recommendation, the New York State Commission on Judicial Conduct admonished a judge for showing hostility to the complaining witness in a criminal case and making rude, loud, and angry statements to a trooper and the prosecutor when they sought to protect her interests. In the Matter of Chase, Determination (New York State Commission on Judicial Conduct March 15, 1991).
  • Based on the judge’s agreement to resign and not seek or serve in any judicial office in the state without approval of the state supreme court, the Washington State Commission on Judicial Conduct dismissed a complaint; the judge stipulated that he committed misconduct by procedural irregularities in violation of state law requirements; failing to provide interpreters in all matters involving non-English speaking defendants; failing to complete the lay-judge examination or mandatory-training requirements; and discussing pending cases with police officers outside the presence of the individuals charged. In re Heaton, Stipulation and Agreement and Order of Dismissal (Washington State Commission on Judicial Conduct March 1, 1991).

Post Williams-Yulee

In its April 2015 decision upholding the prohibition on judicial candidates personally soliciting campaign contributions, the U.S. Supreme Court noted that “30 of the 39 States that elect trial or appellate judges have adopted restrictions similar to” Florida’s challenged provision, citing the amicus brief of the American Bar Association.  Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (U.S. 2015).  One of the 9 states without the personal solicitation clause was New Mexico; in 2015, the New Mexico code of judicial conduct stated in a comment “[c]andidates for judicial office may solicit contributions for their own campaigns, within the restrictions of this rule . . . .”

That changed, however, effective November 1, 2015, after the New Mexico Supreme Court amended the code.  The Court added a provision (Rule 21-402A(2)(c)) that states a judicial candidate shall not “solicit funds for a candidate or a political organization, or make a contribution to a candidate,” deleted the prior comment, and substituted a comment that explains, “candidates for judicial office shall not personally solicit or personally accept campaign contributions.”

* * *
Pursuant to the certification of a U.S. District Court, the Kentucky Supreme Court answered questions regarding 3 rules in the state’s code of judicial conduct that had been challenged in a federal lawsuit.  In re Winter (Kentucky Supreme Court February 18, 2016).  Noting that the federal court had expressed skepticism about the constitutionality of the provisions, the state court concluded that its interpretations fell well within the requirements of the First Amendment based on the analysis of the underinclusive and overbreadth arguments in Williams-Yulee.

The Kentucky Supreme Court held that the rule in the code prohibiting a judge or judicial candidate from campaigning “as a member of a political organization” (Kentucky judicial elections are, by constitution, non-partisan) “prohibits the dissemination of campaign materials and other public representations suggesting to the voters that the candidate is the endorsed judicial nominee of a political party,” while allowing the candidate (pursuant to a previous federal court decision) to simply identify herself as a member of a party.  The Court also stated that the prohibition on a judge or judicial candidate acting “as a leader” or holding “any office in a political organization” meant “occupying a formal position with a recognized title or performing a function within the established organizational structure of an association whose principal purpose is to further the election or appointment of candidates to political office” and “efforts to advance the political agenda of the party in a less formal way through proactive planning, organizing, directing, and controlling of party functions with the goal of achieving success for the political party,” including “acting formally or informally as a party spokesperson; organizing, managing, or recruiting new members; organizing or managing campaigns; fundraising; and performing other roles exerting influence or authority over the rank and file membership albeit without a formal title, including . . . hosting political events.”

Finally, the Court interpreted the prohibition on a judge or judicial candidate “knowingly, or with reckless disregard for the truth, misrepresent[ing] any candidate’s identity, qualifications, present position, or mak[ing] any other false or misleading statements” to include a statement “that is not factually true in the normal sense; that is, an untrue utterance,” but not “expressions of subjective opinions or innocuous campaign-trail ‘puffing’ . . . .”  The Court concluded that the rule prohibited a judge from requesting voters to “re-elect” her to a judicial office when, in fact, she held office by a gubernatorial appointment.

Click here for an analysis of the challenges to code of judicial conduct provisions since the U.S. Supreme Court’s 2002 decision, Republican Party of Minnesota v. White.