Monthly Archives: April 2016

Throwback Thursday

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5 years ago this month:

  • The Mississippi Supreme Court suspended a judge for 90 days without pay and reprimanded him for ex parte communications with a police officer, taking a criminal defendant for a ride in his car, reducing the defendant’s fine at the officer’s request, and lying to the investigator for the Commission on Judicial Performance. Commission on Judicial Performance v. Boone, 60 So. 3d 172 (Mississippi 2011).
  • The Texas State Commission on Judicial Conduct warned a judge for issuing a summons for a citizen to appear in his court when no case was pending and no criminal charges had been filed against him. Public Warning of Perez (Texas State Commission on Judicial Conduct April 6, 2011).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s censure of a former judge based on his guilty plea to charges of exposing himself to a police officer in a public restroom. Inquiry Concerning Hare, Order (Utah Supreme Court April 6, 2011).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a former judge for expressing his support for a candidate for sheriff in a letter to the editor while still a judge. In the Matter of Votendahl, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct April 22, 2011).

The trouble with trust

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One of the many problems with ex parte communications is that judges are exposed to information or arguments that are by definition one-sided.  Judges rely on such communications at their peril – and to the detriment of the parties and the judicial process.

This inherent untrustworthiness was demonstrated in a recent judicial discipline case from Mississippi involving a chancellor (Chancellor Shoemake) who had signed ex parte orders that resulted in the dissipation of assets from a ward’s estate.  The orders were entered at the request of the conservator’s attorney (McNulty), who was also the chancery court’s law clerk and the guardian ad litem for the ward and who was appointed by Chancellor Walker.  Contrary to chancery court rules, the requests for relief were not sworn to by McNulty or signed by the conservator (the ward’s mother).  The orders benefited the contractor who was building a handicapped-accessible home for the ward; the contractor was Chancellor Walker’s nephew.

The Mississippi Supreme Court acknowledged that, “in ex parte chancery court proceedings, it is common, and usually legitimate, for attorneys to confer with chancellors concerning the routine management of the business of wards.”  However, noting that an attorney’s signature alone, without additional notarization, was insufficient support, the Court concluded that Chancellor Shoemake erred by granting “the relief requested without further investigation into the matters beyond what McNulty presented to him.”  Commission on Judicial Performance v. Shoemake, Opinion (Mississippi Supreme Court April 14, 2016).

For Shoemake to sign orders without further consideration of the facts at hand was a disservice to the ward and conservatorship.  That the conservatorship was originally assigned to Walker is beside the point.  When Shoemake signed the orders, he affected Victoria’s estate.  Had Shoemake made a basic inquiry into who was representing the ward’s interests, and not just the Conservator’s interests, he quickly would have discovered McNulty’s dual roles as both Victoria’s guardian ad litem and as the attorney for the conservator for the conservatorship.

The Court concluded that Chancellor “Shoemake contributed to the overall mismanagement of Victoria’s conservatorship and was directly responsible for the unchecked dissipation of $23,000 from her accounts.  Because chancellors serve as the ultimate guardians of their wards’ estates, his negligent management of the petitions and orders has eroded the confidence the public should hold in the judiciary.”

On the question whether the chancellor’s conduct was willful, the Court included the Commission’s “excellent response” from its findings of fact.

Respondent testified that he was influenced by another judge to involve himself in the Newsome Conservatorship.  Respondent’s actions when signing the orders presented to him by McNulty may not have been intended to commit harm to the ward, but they did; and his actions were not performed with the degree of diligence required of a chancellor overseeing a ward’s estate.  Respondent testified that he trusted and had faith that lawyers presented him with documents that were truthful and in the best interest of their clients.  However, by relying on lawyers to be ethical and forthright, and failing to follow the Uniform Chancery Court Rules, and his responsibilities as a “superior guardian,” Respondent failed in one of his most important roles as a chancellor.

The Court suspended Chancellor Shoemake without pay for 30 days, fined him $2,500, and reprimanded him.  The Court removed Walker last year after he pled guilty to felony obstruction of justice for attempting to influence a witness before a federal grand jury investigating his handling of the conservatorship.  Commission on Judicial Performance v. Walker, 172 So. 3d 1165 (Mississippi 2015).

Throwback Thursday

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10 years ago this month:

  • Pursuant to an agreed disposition, the Massachusetts Commission on Judicial Conduct permanently closed with an expression of concern formal charges alleging that a judge abused the power of custody by ordering a court officer to take into custody a 19-year-old defendant when she was walking out of the courtroom, without giving her any warning or attempting to follow any of the procedures for a finding of summary contempt and even though she was not disrupting court business. In re Ruma, Agreed Disposition (Massachusetts Commission on Judicial Conduct April 13, 2006).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for impatient, undignified, and/or discourteous demeanor in 3 cases. (1) The judge used inappropriate humor, making light of a defendant’s personal circumstances during a hearing, and was overly critical of the same defendant for attempting to appeal her sentence in a subsequent hearing.  (2) The judge reprimanded a defendant’s mother (an alleged victim of domestic violence) in an unreasonably abrupt, loud, and harsh manner for interrupting a proceeding.  (3) The judge made comments that were mocking and dismissive of concerns expressed by a defendant’s mother and girlfriend.  In re Moore, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct April 7, 2006).

Fines in judicial discipline cases

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The $50,000 fine the Pennsylvania Court of Judicial Discipline imposed last month on a former supreme court justice for exchanging “sordid and offensive” e-mails with friends and professional acquaintances (see this earlier post for more information) matches the highest fines previously imposed in judicial discipline cases.

  • In 2003, the Florida Supreme Court reprimanded a judge and fined her $50,000 for pro-prosecutorial statements and misrepresentations during her election campaign. Inquiry Concerning Kinsey, 842 So. 2d 77 (Florida 2003).
  • In 2005, as part of an agreed disposition, the Massachusetts Judicial Conduct Commission suspended a judge for 1-year without pay and imposed a $50,000 fine for inappropriate conduct toward 2 female court employees. Press Release (Murray) (Massachusetts Judicial Conduct Commission November 28, 2005).

The Pennsylvania Court stated that, in light of the justice’s retirement, the $50,000 fine was “tantamount” to a 6-month suspension without pay.  Similarly, in Kinsey, the Court noted that the $50,000 fine represented approximately 50% of the judge’s yearly salary or a 6-month suspension without pay, which was the other option that the Judicial Qualifications Commission hearing panel had considered.

In In re Rodriquez, 828 So. 2d 1060 (Florida 2002), the Florida Supreme Court imposed a $40,000 fine, publicly reprimanded a judge, and suspended her for 4 months without pay for misleading statements made in campaign finance reports and violating state campaign laws.  The $40,000 represented approximately half of the salary she had received during an 8-month suspension with pay she had voluntarily taken while she was under investigation for possible criminal violations of the election laws.  (No criminal charges were filed.)  Noting that, when a judge is suspended or on leave, the salary for the senior judge appointed in her place is paid out of a special fund, the Court stated that the fine and the unpaid 4-month suspension would not necessarily make the state whole and instructed the Commission in the future to “also take into consideration, when determining the amount of any fine, the potential financial burden a given circuit incurs when it has to appoint a senior judge in the event of a suspension.”

In its recent case, the Pennsylvania Court of Judicial Discipline imposed the fine even though its constitutional authority does not expressly include “fine” in the list of available sanctions.  The Court concluded its authority to order “removal from office, suspension, censure, or other discipline” (emphasis added) provided it “wide latitude” to fashion “a sanction to address the unique circumstances of judicial discipline concerns,” including restoring public confidence in the impartiality of the judiciary.  The Court noted it commonly imposes sanctions other than those listed, such as reprimand and judicial probation.

Judicial conduct commissions in 9 states do have express authority to impose fines:  Florida, Indiana, Maine, Massachusetts, Minnesota (called a civil penalty), Mississippi, Nevada, New Mexico, and West Virginia.  (In West Virginia, the fine cannot exceed $5,000.)

Other states have imposed other kinds of monetary penalties.

For example, the Rhode Island Supreme Court removed a former judge from office and ordered him to reimburse the state the portion of his salary that reflected the times he left court to go to a casino and gamble while the court remained open for judicial business.  In re Lallo, 768 A.2d 921 (Rhode Island 2001).  Rejecting his argument that the Court did not have the authority to impose a civil sanction in a disciplinary action, the Court concluded that restitution was consistent with its “authority to recommend remedial measures necessary to effectuate the statute.”

In In re James, 821 N.W.2d 144 (Michigan 2012), the Michigan Supreme Court removed a judge from office for, in addition to other misconduct, misappropriating public funds.  Directing the Judicial Tenure Commission to submit a bill of costs, the Court stated that it could include the amount that the judge had misappropriated that should have been allotted to victim restitution.

Pursuant to a stipulation, a former judge agreed to make restitution to a public university for the amount he received as compensation for teaching a class despite an advisory opinion stating that such employment was inconsistent with the state constitutional provision making full-time judges ineligible for other public employment; the Washington State Commission on Judicial Conduct also publicly admonished him for the teaching and for discussing legal representation with persons while a judge but after announcing his resignation.  In re Moberg, Stipulation and Agreement (Washington State Commission on Judicial Conduct August 6, 1993).

In addition to suspending a judge without pay for 3 months, the Pennsylvania Court of Judicial Discipline ordered him to pay restitution to a defendant for the legal expenses he incurred when the judge issued a result of a “stay-away” order against him at the request of acquaintance without conducting an evidentiary hearing or providing notice.  In re DeLeon, 967 A.2d 460 (2008), 2009 Pa. Jud. Disc. LEXIS 2 (Pennsylvania Court of Judicial Discipline 2009).

Recently, however, the Mississippi Supreme Court refused to order a judge to “make whole” an incapacitated ward who had been deprived of at least $23,000 in part because the judge, without holding a hearing or requiring testimony from a representative of the ward’s interests, had signed an order authorizing a payment to the contractor who was building an accessible home for her without evidence that the estate was at fault for the alleged loss of $23,000 worth of tools.  Commission on Judicial Performance v. Shoemake, Opinion (Mississippi Supreme Court April 14, 2016).  The Court did suspend the judge for 30 days, reprimand him, and fine him $2,500.  In an opinion dissenting in part, 2 justices argued that those sanctions did not account for the fact that the judge’s negligence and inattention had cost the ward at least $23,000 that she was unable to recuperate.  In response, the majority reiterated “that the Court issues sanctions to maintain the dignity of the judiciary and to guard against future excesses, not to punish individual judges” and cited a 1982 decision in which it had rejected a Commission recommendation of “a restitutionary payment” because restitution is not one of the sanctions permitted by the constitution.  The dissent responded that the earlier case had not addressed “restitution from the standpoint of protection of the public” and that the Commission then had “recommended that a justice court judge be assessed civil costs for the procedure he used in collecting bad checks, an issue much different from the one presently before us.”

 

Throwback Thursday

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20 years ago this month:

  • The New Mexico Supreme Court suspended for 1 year and censured a judge who had contumaciously refused to honor the Court’s order that he hear a case that had been re-assigned to him following the peremptory challenge of another judge. In the Matter of Eastburn, 914 P.2d 1028 (New Mexico 1996).

Disturbing picture

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A judge’s misconduct, the New York State Commission on Judicial Conduct recently concluded, presented “a disturbing picture of . . . [his] ‘intolerant, near-obsessive reaction’ to numerous individuals with whom he had a contentious relationship and his complete disregard of his ethical obligations.”  In the Matter of Simon, Determination (March 29, 2016).  The Commission found that the judge repeatedly, over several years, bullied, harassed, and intimidated court staff, his co-judge, village officials, and village employees and threatened them with contempt or arrest over routine personnel or administrative issues and in response to perceived disrespect or shortcomings in their performance.  His conduct included insults, angry diatribes, and “an incident that escalated into a melee” in the clerk’s office after he grabbed an intern’s arm.  During these incidents, the judge was variously described as angry, cursing, agitated, enraged, very aggressive, visibly upset, red in the face, flailing his arms, yelling at the top of his lungs, screaming, and speaking in a loud, threatening, and intimidating tone.  For example, the judge told his co-judge to “have a stroke and die;” screamed at the mayor that he would hold her in contempt unless he got his own office; repeatedly told a court officer to arrest the mayor, the police chief, and the village attorney; threatened to have his co-judge arrested for trespass for walking through his office to use a staff restroom; and told the chief court clerk that if she failed to assign only certain court officers to the courtroom he would “consider it contemptuous and act and punish accordingly.”  At the discipline hearing, the judge maintained that his statements to the clerk, for example, were not degrading, but that she should have felt “empowered,” stating, “if she has any other feeling, I honestly don’t understand it.”

The Commission explained:

It is no defense that respondent — according to his testimony – never intended to follow through on his threats, never held anyone in contempt in his judicial career, and only made such threats in an effort to “motivate people to do what I thought was the right and proper thing.”  Using his judicial position to make baseless threats of contempt in order to intimidate and browbeat, even if the threats were never carried out, is improper since it is inconsistent with the standards of dignity and courtesy required of a judge . . .  Moreover, the recipients of such threats, which were usually delivered with explosive anger, could only assume that respondent, who had the power to act on them, intended to do so . . . .

Compounding these multiple instances of impropriety is respondent’s continued insistence at the hearing that his actions were appropriate under the circumstances and consistent with the required standards of judicial behavior.  With the exception of one or two grudging concessions that “maybe I could’ve done better,” he repeatedly insisted that his actions were justified by his righteous motives and by the misbehavior of others, showing little or no insight into the effects of his own behavior “upon public confidence in his character and judicial temperament” and in the judiciary as a whole . . . .  His “fail[ure] to recognize the inappropriateness of his actions or attitudes,” as evidenced by his testimony over two days at the hearing, provides scant assurance that similar impropriety will not be repeated in the future . . . .

The Commission removed the judge from office, which is final unless he asks for review.

Throwback Thursday

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25 years ago this month:

  • Approving the recommendation of the Judicial Qualifications Commission, which the judge had not contested, the Florida Supreme Court reprimanded a judge who (1) on numerous occasions, exhibited improper behavior, including outbursts and tirades while court was in session, throwing files and cursing at attorneys, defendants, and others, being rude and overbearing to defendants, attempting to physically and verbally intimidate other judges, and verbally abusing and intimidating courthouse personnel; (2) altered or controlled the judicial record, ordering court reporters to go off the record when he made certain comments and confiscating tapes if they did not; (3) as a general practice, ordered all persons except the jury to leave the courtroom upon conclusion of a trial, ordered that the courtroom door be locked, and had ex parte communications with the jury; (4) criticized a jury’s not guilty verdict; (5) ordered a defendant charged with unemployment fraud held without bond although the defendant had no felony convictions, had been a resident in the county for 40 years, and was married with a family residing in the county; (6) directed the clerk to assign a particular probate case to him and then appointed as executrix a person with whom he and his wife had a personal and business relationship; (7) requested another judge to change a guilty verdict to adjudication withheld; and (8) requested the head of the probation department to pay the salary of a person whose position had been eliminated with funds set aside for a new probation officer. In re Trettis, 577 So. 2d 1312 (Florida 1991).

 

Same-sex marriage

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The Nebraska Judicial Ethics Committee has issued an opinion advising that a judge may not disqualify himself or herself from cases involving the adoption of children by a same-sex married couple based on strongly held religious beliefs with regard to the couple’s sexual orientation.  Nebraska Advisory Opinion 2016-2.

The committee emphasized that the code of judicial conduct requires a judge to perform the duties of judicial office without bias or prejudice, expressly including bias or prejudice based on sexual orientation.  The opinion explained:

Presiding over adoption proceedings is a duty of judicial office.  If a judge is willing to preside over the adoption proceedings of a child of a non-same-sex married couple but not a proceeding involving a same-sex married couple, this would be a manifestation of bias or prejudice based on sexual orientation even if the judge states that the reason is based on sincerely held religious beliefs or upon a personal belief.  [The code] acknowledges that while each judge comes to the bench with a unique background and personal philosophy, “a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.”  Thus, a refusal to preside over or a disqualification from presiding over such a proceeding, based on the married couple’s sexual orientation, manifests bias or prejudice, and violates the Code.

The committee had received an inquiry from a judge asking if he may disqualify himself from adoption cases involving same-sex couples if he “is an openly professing and practicing evangelical Christian, that openly and publicly professes his faith in Jesus Christ as his Lord and Savior;” “prays to God, reads the Bible, gives financially to the church and Christian ministries, and attends a Bible teaching church;” “openly professes and believes the Bible is the inerrant Word of God that should be obeyed;” “believes the Bible teaches God has ordained marriage to be between one man and one woman;” “believes God has ordained and designed the family to be made up of a husband, a wife, and children;” and “believes God has also made His design for the family clearly evident in nature because human physiology and the human reproductive process (as created by God) requires one male and one female in order to produce a child.”

The Nebraska committee is one of the judicial ethics advisory committees that, shortly after the U.S. Supreme Court same-sex marriage decision in June 2015, issued an opinion stating that a judge may not refuse to perform same-sex marriages unless the judge refuses to conduct all marriages.  See previous post analyzing the same-sex marriage advice.