Throwback Thursday

25 years ago this month

  • The Mississippi Supreme Court privately reprimanded a justice court judge who had engaged in ticket-fixing. Judicial Performance Commission v. A Justice Court Judge, 580 So. 2d 1259 (Mississippi 1991).
  • The New Jersey Supreme Court censured a judge who had pled guilty to driving under the influence of intoxicating liquor, leaving the scene of an accident, and driving in a careless manner. In the Matter of Connor, 589 A.2d 1347 (New Jersey 1991).
  • Adopting the report and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court reprimanded a judge who had pled guilty to driving while under the influence of intoxicating liquor and failing to observe a traffic signal and who had been charged with using courtesy license plates on his automobile prior to receiving written authorization from the Division of Motor Vehicles. In the Matter of Lawson, 590 A.2d 1132 (New Jersey 1991).
  • Agreeing with the findings and recommendation of the Judicial Standards Commission, the North Carolina Supreme Court censured a judge who, during proceedings in open court in a criminal case, (1) had wrongfully ordered the detention of the defendant’s attorney (for 45 minutes) when the attorney refused in good faith, on ethical grounds, to give the judge a reason for his motion to withdraw or to make a recommendation concerning the defendant’s eligibility for a diversion program and (2) had informed the attorney that in the future he would accept no recommendations from him, would not grant him any continuances, would not appoint him to represent indigent defendants, and would require his clients to plead guilty or not guilty as charged. In re Bullock, 403 S.E.2d 264 (North Carolina 1991).
  • Agreeing with the findings and recommendation of the Judicial Standards Commission, the North Carolina Supreme Court censured a judge who (1) during proceedings in open court in an assault on a female case, told the 7-months pregnant victim that she would ruin her children’s lives if she did not reconcile with her estranged husband, referred to her support group as a one-sided, man-hating bunch of females and a pack of she-dogs, and polled the courtroom spectators as to how many had little spats during their marriages, and (2) routinely admitted in open court that he broke the law by driving 52 miles an hour in 45 mile-an-hour zones and 62 miles an hour in 55 mile-an-hour zones and counselled defendants that they should keep their speeding within those limits to avoid apprehension and conviction. In re Greene, 403 S.E.2d 257 (North Carolina 1991).
  • Accepting the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court removed a former judge who had pled guilty to 3 felony charges after being arrested for possessing marijuana, cocaine, and drug paraphernalia. In re Sherrill, 403 S.E.2d 255 (North Carolina 1991).
  • Agreeing with the recommendation of the State Commission on Judicial Conduct, a special court of review appointed by the Texas Supreme Court reprimanded a former judge who had had a shouting match with the owner of an appliance store and a store employee. In re Sheppard, 815 S.W.2d 917 (Texas Special Court of Review 1991).

Recent cases

  • Granting the application of the Commission on Judicial Qualifications, the Iowa Supreme Court reprimanded a magistrate for misusing expunged files in his private law practice. In the Matter of Sevcik (Iowa Supreme Court April 8, 2016).
  • Following a hearing, the Kentucky Judicial Conduct Commission reprimanded a judge for jailing a domestic violence complainant after she recanted her testimony. In re Collins, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission April 22, 2016).
  • The Mississippi Supreme Court suspended a chancellor without pay for 30 days, fined him $2,500, and reprimanded him for signing unsupported ex parte orders that contributed to the mismanagement of a ward’s estate. Commission on Judicial Performance v. Shoemake, Opinion (Mississippi Supreme Court April 14, 2016).
  • Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline reprimanded a judge for initiating, without authority to investigate or prosecute misdemeanors, without factual or legal basis, and after the statute of limitations had run, the prosecution of a trucking company and its owners for a violation of federal regulations regarding brake tubing and hose and engaging in ex parte communications regarding the case, including plea negotiations. In the Matter of Haviland, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline April 22, 2016).
  • Granting a petition to accept a stipulation agreement and consent to discipline, the New Mexico Supreme Court placed a judge on probation for 1 year for initiating an ex parte communication with another judge and abusing the prestige of judicial office to seek favored and/or expedited treatment for her son’s paternity case. In the Matter of Montano-Baco, Order (New Mexico Supreme Court April 6, 2016).
  • Granting a petition to accept a stipulation, the New Mexico Supreme Court ordered the permanent resignation of a judge against whom the Judicial Standards Commission had filed an amended notice of formal proceedings alleging a variety of misconduct including mishandling 3 traffic cases and failing to be patient, dignified, and courteous to court staff. In the Matter of Gallassini, Order (New Mexico Supreme Court March 30, 2016).
  • The New York State Commission on Judicial Conduct removed a judge for (1) threatening a student working in the court clerk’s office with contempt or arrest with no lawful basis and grabbing his arm “in an incident that escalated into a melee” in the clerk’s office; (2) with no lawful basis, repeatedly threatening court staff, his co-judge, village officials, and village employees with contempt or arrest over routine personnel or administrative issues; (3) repeatedly, over several years, bullying, harassing, threatening, and intimidating court staff, his co-judge, village officials, and village employees; (4) imposing monetary sanctions against a legal services agency without basis or authority and discourtesy to the agency’s attorneys; and (5) permitting a candidate for county executive to quote him in a campaign press release. In the Matter of Simon, Determination (New York State Commission on Judicial Conduct March 29, 2016).
  • Pursuant to an agreement, the investigative panel of the Tennessee Board of Judicial Conduct reprimanded a judge for an ex parte meeting and e-mail with members of the district attorney general’s office regarding the types of dispositions she would accept in domestic violence court. Reprimand of Walker (Tennessee Board of Judicial Conduct March 23, 2016).

 

When a judge’s relative is a political candidate

In the olden days (under the 1972 American Bar Association Model Code of Judicial Conduct), a judge was supposed to “encourage members of his family to adhere to the same standards of political conduct that apply to him,” which included discouraging family members from running for political office.  The 1990 revisions to the model code eliminated that duty to dissuade (except with respect to a judge or judicial candidate’s own campaign), reflecting “awareness that the families of judges and judicial candidates are composed of individuals with independent lives, interests and rights, and that any requirement that a judge or judicial candidate seek to influence or control the behavior of those individuals must be narrowly tailored.”  Milord, The Development of the [1990] ABA Judicial Code, at 49 (1992).

However, as a comment added to Rule 4.1 in the 2007 model code revisions explains:

Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no “family exception” to the prohibition . . . against a judge or candidate publicly endorsing candidates for public office.  A judge or judicial candidate must not become involved in, or publicly associated with, a family member’s political activity or campaign for public office.  To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that they endorse any family member’s candidacy or other political activity.

Thus, a judge cannot:

  • Solicit votes, funds, or support for a relative/candidate in person, in writing, through political appearances, by telephone, or through the media
  • Give speeches in support of a relative/candidate
  • Inform friends of the relative’s candidacy even without soliciting votes or support
  • Ask an individual why he is backing the relative’s opponent
  • Deliver and erect signs for a relative’s campaign or attach political disclaimers to the signs
  • Solicit persons to display campaign signs in their yards
  • Wear a relative’s campaign button in public or in chambers
  • Hand out a family member’s campaign literature or signs
  • Place a campaign bumper sticker on her car
  • Act or appear to act as a political advisor for the family member’s campaign

There is a split in judicial ethics opinions on whether a judge’s may provide behind-the-scenes support for a candidate/relative’s campaign although the majority advise that a judge should not perform manual labor such as compiling voter or contributor lists and stuffing envelopes

In most states, a judge may be included in a family picture in campaign materials for a family member and be identified by name and relationship to the candidate as long as the judge/relative is not identified as a judge, referred to by title, or pictured in robes or a courthouse setting.

Whether a judge can accompany a candidate/relative to political events varies from state to state, depending in part on whether the judge is prohibited from attending political events in general.  Similarly, whether a judge can make a financial contribution to the campaign of a spouse or other family member depends on each state’s rule regarding political contributions by judges in general.

The issues that arise for a judge when a family member is running for office are discussed in 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 relevant advisory opinions and discipline decisions issued since that paper was up-dated in 2010.

  • Family members of a judge or a judicial candidate may engage in their own political conduct and run for office, but a judge or candidate cannot become involved in a family member’s campaign and must take reasonable steps to avoid the suggestion or implication that he endorses the family member’s candidacy. Arkansas Advisory Opinion 2009-4
  • A judge whose son is running for an open judicial position may attend his son’s post-election gathering after all polls have closed. Florida Advisory Opinion 2014-16
  • A judge may provide behind-the-scenes assistance to the campaign of a relative/candidate, such as preparing envelopes for campaign materials to be mailed to potential voters or donors. A judge may be named or have her photograph in a family member’s campaign materials as long as there is no reference to her title or position, she is not pictured in her robe, and she appears simply as a member of the candidate’s family.  Indiana Advisory Opinion 2-2014.  
  • A judge whose son is a candidate in a contested primary to replace her after she retires may attend a political event at which her son is speaking or that he will attend but may not solicit signatures for a nominating petition for him or sign the petition, contribute money or time to her son’s campaign, place yard signs for his candidacy, go door-to-door, pass out campaign literature, or publicly support her son’s candidacy. Kansas Advisory Opinion 179 (2014).
  • A judge may not accompany her spouse, who is running for office, to fund-raisers, rallies, and other campaign events. Maryland Advisory Opinion Request 2015-47.  
  • A judge should not have angrily confronting a man who was putting up signs opposing his brother’s gubernatorial candidacy. Stephen, Reprimand (New Hampshire Judicial Conduct Committee August 25, 2011).
  • A judge may attend a reception in honor of her child’s election to a public office if she clearly is present only as a parent celebrating her child’s accomplishment and avoids any appearance that she is or was involved in partisan political activity connected with her child’s campaign.  New York Advisory Opinion 2012-169
  • A judge may be depicted in a family photograph on his child’s political campaign literature as long he does not wear a judicial robe and he is not identified as a judge. New York Advisory Opinion 2010-75.  
  • A master-in-equity may appear in a family photo used in her spouse’s political campaign and attend his election night party, debates, and speeches as long as she is not identified by title, attendance is on her own time, and her membership in the judiciary is not publicized or announced.  South Carolina Advisory Opinion 7-2012.  

Next week:  When a judge’s relative supports a political candidate
In 2 weeks:  Political activities at a judge’s home