Recent cases

  • The Arkansas Commission on Judicial Disability and Discipline announced the resignation and permanent removal of a judge, concluding its cases against him; the Commission had filed a statement of allegations and an amended statement alleging the judge, in addition to other misconduct, used his judicial status to form sexual relationships with young Caucasian male defendants. Press release (Boeckmann) (Arkansas Commission on Judicial Disability and Discipline May 9, 2016).
  • The California Commission on Judicial Performance admonished a judge for abusing his authority and violating the due process rights of individuals appearing before him when he ordered a witness in a criminal case incarcerated for contempt, when he ordered the payment of monetary sanctions, attorney fees, and costs in a family case, and when he granted ex parte relief in a custody case. Public Admonishment of Román (California Commission on Judicial Performance May 16, 2016).
  • Granting the application of the Judicial Qualifications Commission, the Iowa Supreme Court admonished a judge for signing an ex parte order presented by an attorney who had recently represented the judge in a personal matter without charge. In the Matter of Howes (Iowa Supreme Court May 20, 2016).
  • Based on the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge for (1) failing to comply with the Court’s previous order to pay a civil penalty for violating the financial reporting requirements imposed by law and (2) not participating in the Commission proceedings. In re Myers (Louisiana Supreme Court May 3, 2016).
  • Based on the decision and recommendation of the Judicial Tenure Commission and a settlement agreement, the Michigan Supreme Court suspended a judge for 120 days without pay and censured her for (1) following ex parte communications, reducing charges, dismissing charges outright, or modifying sentences in at least 20 criminal cases and dismissing at least 32 ticket cases without holding a hearing and without explicit authority from the prosecutor to do so; (2) meeting with a defendant and his counsel in the holding cell prior to a bench trial without the presence of the prosecuting attorney; (3) sending 2 ex parte texts to the judge who had been assigned to several cases after she had disqualified herself; and (4) declining to appoint a translator for a defendant when she should have. In re Church (Michigan Supreme Court May 25, 2016).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge had accepted, the New Jersey Supreme Court reprimanded a judge for making a vulgar remark to 2 deputy attorneys general in chambers concerning a law guardian and communicating compliments to a state’s witness while she was testifying. In the Matter of Portelli, Order (New Jersey Supreme Court May 18, 2016).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court censured a judge for driving while intoxicated and identifying himself as a judge to the state trooper who stopped him. In the Matter of Baptista, Order (New Jersey Supreme Court May 19, 2016).
  • The New York State Commission on Judicial Conduct admonished a judge for (1) impermissibly delegating her judicial duties by failing to review or approve dispositions and sentences negotiated by the deputy town attorney with defendants in traffic cases and (2) altering court records requested by the Commission by placing her initials on case files, next to the prosecutor’s notation of plea agreements. In the Matter of Calano, Determination (New York State Commission on Judicial Conduct May 9, 2016).
  • Pursuant to the judge’s agreement, an investigative panel of the Tennessee Board of Judicial Conduct reprimanded a judge for her comments following a motion to transfer and for directing that a transcript of her comments be forwarded to the transferee court. Re Davenport (Tennessee Board of Judicial Conduct May 18, 2016).
  • Pursuant to an agreement, an investigative panel of the Tennessee Board of Judicial Conduct reprimanded a former judicial commissioner for failing to disqualify himself from a case in which one of the attorneys had, a month earlier, recommended him for a part-time prosecutor position or to disclose the relationship. Re Cross (Tennessee Board of Judicial Conduct May 18, 2016).

 

Throwback Thursday

5 years ago this month

  • The Arkansas Supreme Court reprimanded a judge for imposing sanctions on an attorney for a motion without establishing the allegations in the motion were false. Judicial Discipline and Disability Commission v. Simes, 381 S.W.3d 764 (Arkansas 2011).
  • In lieu of formal disciplinary proceedings and with the judge’s consent, the Indiana Commission on Judicial Qualifications admonished a judge for making inappropriate public comments to a television reporter after his son parked in a handicapped space in the court’s public lot without the appropriate placard. Public Admonition of Hunter (Indiana Commission on Judicial Qualifications May 5, 2011).
  • Based on a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court reprimanded a judge for driving while intoxicated. In the Matter of Hughes, 947 N.E.2d 418 (Indiana 2011).
  • The Louisiana Supreme Court suspended a non-lawyer justice of the peace for 1 year without pay for signing a divorce judgment without authority or jurisdiction. In re Adams, 63 So. 3d 948 (Louisiana 2011).
  • The New Mexico Supreme Court accepted a judge’s permanent resignation, ordered that he never hold judicial office, and formally reprimanded him for intentionally and without justification in law or fact convicting and jailing 32 courtroom spectators, some of whom had created a brief courtroom disturbance. In the Matter of Sanchez, Order (New Mexico Supreme Court May 17, 2011).
  • Granting a stipulation, the New Mexico Supreme Court barred a judge from serving as a judge and formally reprimanded him for driving while intoxicated. In the Matter of Robles, Order (New Mexico Supreme Court May 17, 2011), Formal reprimand (New Mexico Supreme Court May 31, 2011).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court reprimanded a former judge for, at a county bar reception, making an inappropriate comment to a law student and having an inappropriate image on his cell phone that was viewed by the law student and others. In the Matter of Hughes, 710 S.E.2d 75 (South Carolina 2011).
  • The South Dakota Supreme Court ordered the retirement of a judge for mistreating court employees, insulting lawyers, insensitive racial and sexist jokes, conducting himself on the bench “with unconscionable arrogance,” and referring to law enforcement from the bench as a “bunch of racists” with no evidentiary basis; the Court stayed the retirement if the judge consented to a 6-month suspension without pay and numerous conditions. In the Matter of Fuller, 798 N.W.2d 408 (South Dakota 2011).
  • The Tennessee Court of the Judiciary reprimanded a judge for signing ex parte orders of dismissal and expunging convictions. Letter to Hamilton (Tennessee Court of the Judiciary May 4, 2011).
  • The Texas State Commission on Judicial Conduct admonished a judge for (1) forcing a driver to appear before him so he could lecture her about her driving; (2) directing his court staff to accept payments from defendants on behalf of plaintiffs to discharge judgments and/or to comply with settlement agreements; and (3) directing his court staff to accept rental payments from tenants on behalf of landlords in eviction cases. Public Admonition of Corbin (Texas State Commission on Judicial Conduct May 9, 2011).

Compelling interests

A federal district court permanently enjoined enforcement of provisions in the Kentucky code of judicial conduct prohibiting a judge or judicial candidate from:

  • Making speeches for, paying an assessment or making a contribution to, or campaigning as a member of a political organization;
  • Making pledges, promises, or commitments with respect to issues; or
  • Making misleading statements.

Winter v. Wolnitzek, 2016 U.S. Dist. LEXIS 63412 (U.S. District Court for the Eastern District of Kentucky May 12, 2016).  It also held unconstitutional the prohibition on a judge engaging in “political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.”

Some of these provisions, the court found, were simply “closing the gate” after “the “horse has already escaped the paddock” – that is, they were indistinguishable from identifying as a member of a political party, which had previously been held to be protected political speech.  Other provisions it concluded were unconstitutionally vague, requiring a candidate “to perform an Olympic-caliber routine of mental gymnastics” to discern, for example, whether a statement was misleading or an issue or pledge involved improvement of the law.  (State judiciaries that want to maintain these restrictions should consider how to make them more definite and less ambiguous, perhaps by adding clarifying comments.)

However, the Court upheld prohibitions on a judge or judicial candidate:

  • Making false statements;
  • Acting as a leader or holding an office in a political organization; and
  • Endorsing candidates.

These provisions, the court found, were narrowly tailored to ensure “that the county judge is not also the county political boss” and to differentiate judges from other politicians because “[c]itizens assume that politicians will lie” but “the public is unlikely to view a lying judge as a fair judge.”

The court also persuasively refuted several arguments frequently made in constitutional challenges to the canons.

For example, the plaintiffs argued that, rather than adopting prohibitions on speech, Kentucky could have chosen the less restrictive alternative of appointing its judges.  “The problem with that argument,” the court stated, is the U.S. Supreme Court decision on the ban on judicial candidates’ personally soliciting campaign contributions in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015).  The Kentucky federal court explained:  “Replacing elections with an appointment system was surely an alternative in that case.  But the Supreme Court nevertheless found the challenged provision to be narrowly tailored, noting that ‘[a] state’s decision to elect judges does not compel it to compromise public confidence in their integrity.’”

As have plaintiffs in other cases, one of the plaintiffs in the Kentucky case argued that the canons were not narrowly tailored because they addressed only speech or conduct beginning the day after a non-judge candidate has filed his intention to run for judicial office.  The court stated it was “unclear what sort of alternative regulation [the plaintiff] has in mind.  A rule forbidding a lawyer to serve as a political leader if he is contemplating a judgeship in the future, perhaps?  [The plaintiff] does not say of course, but all of the alternatives that come to mind seem totally impractical if not downright Orwellian.”

 Further, one of the plaintiffs argued that the prohibition on acting as a leader in a political party was under-inclusive because it did not “prevent a judge from serving as an officer in the Federalist Society, the local FOP lodge, the local Freemason chapter, the local Right to Life chapter, or a host of other organizations.”  Rejecting that argument, the court approved the distinction drawn by the state.

The interest is not in preventing bias against parties; the interest is in preventing judges from being too involved in political machines.  And political parties control who goes on the ballot in most elections in the Commonwealth; the local Freemasons do not.  Thus, the state does not need to prevent a judge or candidate from leading the Freemasons.  It need only prevent him from leading a political party.

(Further, although the court did not note this, other parts of the code of judicial conduct may prevent a judge from serving as a leader in some non-political organizations as they prohibit a judge from any extra-judicial activity that would cast reasonable doubt on the judge’s capacity to act impartially as a judge.)

The decision in Winter v. Wolnitzek has been added to the summary of caselaw following Republican Party of Minnesota v. White on the Center for Judicial Ethics web-site.

Throwback Thursday

10 years ago this month

  • The Arkansas Judicial Discipline & Disability Commission admonished a judge for personally soliciting campaign contributions from 2 attorneys. Letter to Simes (Arkansas Judicial Discipline & Disability Commission May 23, 2006).
  • The California Commission on Judicial Performance admonished a judge for sanctioning an attorney without prior notice or an opportunity to be heard. Public Admonishment of Maciel (California Commission on Judicial Performance May 9, 2006).
  • Approving the findings, conclusions, and recommendation of the Judicial Qualifications Commission pursuant to the judge’s stipulation, the Florida Supreme Court reprimanded a judge for having a romantic relationship with an attorney who was practicing before him. Inquiry Concerning Adams, 932 So. 2d 1025 (Florida 2006).
  • The Florida Supreme Court removed a judge for (1) misrepresentations during his campaign and (2) violating campaign finance laws. Inquiry Concerning Renke, 933 So. 2d 482 (Florida 2006).
  • Granting a petition for discipline upon stipulation, the New Mexico Supreme Court ordered that a judge be reprimanded and fined $1,500 for (1) identifying himself as a judge to police detectives who were issuing citations to his son and his son’s friends and involving himself in the adjudication of the matters and (2) raising his voice toward a defense attorney, preventing her from fully objecting for the record, and admonishing her in front of her client. Inquiry Concerning Ramirez, 135 P.3d 230 (New Mexico 2006).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals agreed that censure was the appropriate sanction for a judge who had failed to properly exercise the summary contempt power. In the Matter of Hart, 849 N.E.2d 946 (New York 2006).
  • On its own motion pursuant to a stipulation, the New York State Commission on Judicial Conduct discontinued proceedings against a non-lawyer judge and closed the matter following the judge’s resignation and affirmation not to seek or accept judicial office at any time in the future. The Commission had filed a formal complaint against the judge alleging that he had failed to deposit court funds in a timely manner; failed to report and remit $685 in court funds to the state comptroller in 15 cases in the manner required by law; collected restitution and failed to distribute $1,842 to the appropriate recipients; failed to keep a cashbook as required by law; and failed to make dockets of small claims and civil matters as required.  In the Matter of Harris, Stipulation (New York State Commission on Judicial Conduct May 1, 2006).
  • On its own motion pursuant to a stipulation, the New York State Commission on Judicial Conduct discontinued proceedings against a non-lawyer judge and closed the matter following the judge’s resignation and affirmation not to seek or accept judicial office in the future. The Commission had filed a formal complaint alleging that the judge had (1) granted default judgments to plaintiffs in approximately 44 cases without the documentation required by law; (2) entered judgments on the basis of information elicited in ex parte communications with defendants in 14 cases; (3) failed to afford pro se defendants in 15 cases full and fair opportunity to be heard by entering judgments against them after an appearance without scheduling trials or requiring the plaintiffs to appear or file motions for summary judgment; (4) in 2 contested matters, failed to afford the defendants the opportunity to present evidence or cross-examine plaintiffs’ witnesses before entering judgment in favor of the plaintiffs; (5) in 2 matters, failed to disqualify himself or otherwise disclose to the parties his relationship to a witness who was related to him within the 6th degree; (6) failed to transfer a criminal matter to the proper court and granted a default judgment to the claimant in a small claims matter in which the attorney for the corporate respondent appeared, notwithstanding that the law provides that a corporate defendant may appear by counsel; and (7) for over 3 months, banned an attorney from appearing before him.  In the Matter of Hewlett, Stipulation (New York State Commission on Judicial Conduct May 1, 2006).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court removed a judge for sexual activity with 2 female court staff. In the Matter of Cash, 630 S.E.2d 283 (South Carolina 2006).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court reprimanded a judge for presiding over his uncle’s bond hearing and giving preferential treatment to his uncle and a second defendant. In the Matter of Davis, 630 S.E.2d 281 (South Carolina 2006).
  • The Texas State Commission on Judicial Conduct admonished a judge for imposing sentences that he knew or should have known were unenforceable and violated state law. Public Admonition of Peters (Texas State Commission on Judicial Conduct May 4, 2006).
  • The Texas State Commission on Judicial Conduct warned a judge for allowing his close relationship with the daughter of his court coordinator to influence his conduct and judgment in 2 cases in which she represented a party. Public Warning of Plunk (Texas State Commission on Judicial May 30, 2006).
  • The Texas State Commission on Judicial Conduct admonished a former municipal judge for failing to obtain the required judicial education for fiscal year 2003. Public Admonition of Supkis (Texas State Commission on Judicial Conduct May 25, 2006).

Family political activities at a judge’s home

Campaign signs

The Illinois judicial ethics committee advised that a judge’s spouse may display a campaign sign in support of a political candidate in the yard of the home they jointly own.  Illinois Advisory Opinion 2006-2.  The committee explained that “the likelihood of a sign being misinterpreted as the judge’s act is . . . reduced by the accepted view that married individuals remain individuals with separate property rights and beliefs,” noting the community is less likely today to automatically consider the joint residence the “judge’s house.”  Emphasizing that “a judge does not possess a superior right in joint property or a right to dictate permitted and non-permitted uses,” the committee noted that, if spouses cannot agree, “the judicial spouse cannot bar his or her spouse’s independent act by fiat or self-help.”  The committee concluded that, although “some people will misinterpret the campaign sign as a prohibited political endorsement by the judge,” that does “not justify curtailment of a spouse’s right to political expression.”

Other committees have also advised that, if a judge has “strongly urged” that a sign not be placed on their property, he or she is not required to take further action if that attempt fails.  New York Advisory Opinion 2007-169.  See also Florida Advisory Opinion 2006-11; Nevada Advisory Opinion JE2010-9.

Several committees accept that a sign may be placed at the home a judge shares but caution that it should not be displayed in a way that implies that the judge endorses a candidate.  California Judges Association Advisory Opinion 49 (2000); Oklahoma Advisory Opinion 2000-7.

Apparently more confident in judges’ ability to influence their spouses, some committees have advised that, because a yard or window sign implies an endorsement by both house-holders, a judge should not permit his or her spouse to place a sign endorsing a political candidate on their property.  Arkansas Advisory Opinion 2009-4; Maine Advisory Opinion 1994-3; South Carolina Advisory Opinion 33-2001.

Opinions are also split on whether a judge may allow a spouse to put up a yard sign that is in support of the spouse’s own campaign for office.  The Colorado advisory committee stated that a judge may not allow signs promoting a spouse’s candidacy on jointly owned real estateColorado Advisory Opinion 2005-5.  Noting that “as a practical matter, it is unclear how a judge would convey that a yard sign was placed at the behest of the judge’s spouse and not the judge,” the Indiana committee stated that “yard signs for a judicial spouse/candidate are best avoided.”  Indiana Advisory Opinion 2-2014.

In contrast, the New York committee stated that a judge whose spouse is running in a contested election for school board is not obligated “to discourage the spouse from displaying a campaign sign supporting the spouse’s election on the lawn of the marital residence.”  New York Advisory Opinion 2006-94.  Noting “the political rights of a candidate for public office who happens to be married to a judge cannot be ignored,” the committee concluded that the code of judicial conduct “should not and need not distort or ignore the realities of normal familial relations, and especially the public perception of those relationships.”  See also Ohio Advisory Opinion 2001-1Cf., Maryland Advisory Opinion Request 2015-47 (a spouse/candidate may post a campaign sign in the yard of their home even if the judge is the co-owner or co-tenant, but the judge may not allow the spouse/candidate to post signs on property owned solely by the judge).

Campaign events

A few advisory opinions direct a judge whose spouse is running for office to forbid any campaign activity in their home.  See Delaware Advisory Opinion 2008-1; Michigan Advisory Opinion JI-30 (1990) .  Similarly, some opinions require a judge to prohibit the judge’s spouse from holding campaign-related meetings in support of another candidate in their home.  Kansas Advisory Opinion JE-33 (1990); Texas Advisory Opinion 284 (2001).

Other opinions require a judge to try to dissuade a spouse against using their shared residence for campaign events but recognize that a spouse may decline the judge’s request.  See California Advisory Opinion 49 (2000) (“whenever a judge’s family member intends to use the family home for a non-judicial political fundraiser or meeting, the judge should review with the family member the judge’s ethical constraints,” and particularly should discourage an event in support of a candidate for an office closely associated with the courts, such as district attorney); Florida Advisory Opinion 2011-10 (a judge should “adamantly and genuinely encourage” her spouse to host a campaign event for a candidate somewhere other than their home); Indiana Advisory Opinion 2-2014 (although a blanket prohibition is not necessary, a judge whose family member is a candidate should consider whether the use of jointly-owned property for a campaign event would appear, to the average bystander, to be an impermissible abuse of the judge’s prestige, for example, if the property is heavily decorated with vestiges of the judge’s career).

Other opinions allow a judge’s spouse to use their home for campaign fund-raisers or strategy meetings for the spouse’s campaign or the campaign of someone the spouse supports.  New York Advisory Opinion 2006-147 (a judge’s spouse may use the marital residence to host planning meetings and/or fund-raising events to further his own political campaign); South Carolina Advisory Opinion 14-2006 (a judge’s spouse may host a party for a political candidate at their home); Washington Advisory Opinion 1986-8 (a judge’s spouse may use their home for campaign headquarters, fund-raisers, and other activities when the spouse is running for office); West Virginia Advisory Opinion (August 28, 1995) (a judge’s spouse may hold a political fund-raiser in their home).

However, these opinions also prohibit a judge’s public involvement in a campaign event hosted by his or her spouse in their home.  See also Maine Advisory Opinion 1994-3; Wisconsin Advisory Opinion 1997-2;  U.S. Advisory Opinion 53 (2009) To prevent any implication that the judge is endorsing the candidate, the judge:

  • should not permit his or her name to be not used on the invitations or other announcements;
  • should not attend the event;
  • should not serve as host by, for example, greeting or mingling with guests or serving drinks or food;
  • should be careful not to be seen by or have contact with those attending the event;
  • should only perform tasks such as cleaning or replenishing refreshments if those activities are not visible to those attending.

A judge is not required to leave during an event as long the layout of the house allows the judge to be somewhere he or she will not be seen.  Cf., California Advisory Opinion 49 (2000) (a judge may attend fund-raisers and other political events at the judge’s home in honor of a family member/candidate); Illinois Advisory Opinion 2001-9 (a judge may attend a political event in the judge’s home hosted by his or her spouse but should not act as a sponsor or lend his or her name or office to the event).

Last week:               When a judge’s relative supports a political candidate

2 weeks ago:           When a judge’s relative is a political candidate 

 

Throwback Thursday

20 years ago this month

  • Based on an agreed statement of facts, the California Commission on Judicial Performance censured a judge for misusing Department of Motor Vehicle records; using court staff, stationery, and equipment for his personal activities; making sexually related comments to female court employees; being absent from the courthouse without reporting the days as vacation time; and regularly leaving the courthouse when the Friday calendar was completed, sometimes as early as noon. Inquiry Concerning Hyde, Decision and order of public censure (California Commission on Judicial Performance May 10, 1996).
  • The New York State Commission on Judicial Conduct admonished a judge who had intervened in a child welfare investigation on behalf of a woman with whom he had an intimate relationship. In the Matter of Kaplan, Determination (New York State Commission on Judicial Conduct May 6, 1996).

 

When a judge’s relative supports a political candidate

Members of a judge’s family may support a candidate for elective public office publicly and actively — but independently from the judge.  For example, judicial family members may:

  • Circulate nominating petitions on behalf of a political candidate
  • Publicly endorse a candidate
  • Serve as a campaign manager or on a campaign committee
  • Volunteer for a campaign or work as a paid employee
  • Campaign door-to-door and hand out campaign materials
  • Solicit funds or host a fund-raiser for a candidate

The judge has the responsibility of ensuring that, when a family member is involved in a campaign, the judge’s name and title are not used and that involvement cannot reasonably be construed as appearing to signal the judge’s support for the candidate as well.

Members of a judge’s family may contribute to a political candidate, but the judge should not participate in the decision to contribute or use the family member to make a contribution the judge cannot.   Further, several states provide that a judge’s spouse should make financial contributions to a candidate for political office only from the spouse’s separate account and not from a joint account or using a check with the judge’s name on it.

The issues that arise for a judge when a family member is running for office are discussed with numerous citations in the paper Political Activities by Members of a Judge’s Family, which is available to be downloaded on the web-site of the Center for Judicial Ethics.  Below are summaries of advisory opinions and discipline decisions issued since that paper was up-dated in 2010.

  • A judge’s spouse may host a fund-raiser for a judicial candidate if the judge takes steps to ensure the appearance as well as the reality of the spouse’s independence and the judge’s impartiality. Alabama Advisory Opinion 12-914.
  • Based on the recommendation of the Commission on Judicial Conduct and a stipulated resolution, the Arizona Supreme Court censured a former judge for accompanying his niece while she collected nominating petition signatures for a candidate and for speaking at a political meeting. In the Matter of Pearce, 11-245, Order (Arizona Supreme Court November 26, 2012).
  • The spouse of a judge may endorse a political candidate. Arkansas Advisory Opinion 2009-4.
  • A judge’s spouse may make a campaign contribution from a bank account that does not include the judge’s name. A judge’s spouse may serve as a member of a district attorney candidate’s campaign, but the judge should request that the judge’s name and position not be used by the spouse, the candidate, or the campaign committee.  If the candidate supported by the judge’s spouse appears before the judge or is elected district attorney, disqualification may be required if a significant minority of the lay community would believe that the judge could not be fair and impartial.  Pennsylvania Informal Advisory Opinion 1/4/2011.
  • A judge may not accompany the judge’s spouse to a fund-raising event for a candidate to elective office. Pennsylvania Informal Advisory Opinion 8/24/2009.

Last weekWhen a judge’s relative is a political candidate
Next week:  Political activities at a judge’s home