Lax practices

Ticket-fixing “is the quintessential bad act of a judge,” creating “both the appearance and the reality of a two-track system of justice—one for his friends and family and another for all others.”  Inquiry Concerning Stanford, Decision (California Commission on Judicial Performance January 11, 2012).  Despite numerous cases sanctioning judges for the practice (see Judicial Conduct Reporter articles here and here), ticket-fixing remains a persistent, sometimes even systemic problem.

For example, the federal government indicted almost the entire Philadelphia Traffic Court bench in 2013 for their participation in “a widespread culture of giving breaks on traffic citations to friends, family, the politically-connected, and business associates.”  The defendant-judges argued that providing “special consideration” for tickets did not constitute a federal crime because there were no allegations of bribery; the jury may have agreed as all of the defendants were acquitted on those charges (although some were convicted of perjury).  However, since those acquittals, judicial discipline proceedings have been brought against several of the former defendants.  For example, finding that giving “special consideration” to tickets was judicial misconduct, the Pennsylvania Court of Judicial Discipline recently removed one of the acquitted judges.  In re Sullivan, Amended opinion and order (Pennsylvania Court of Judicial Discipline May 12, 2016).  The Court emphasized that the judge’s misconduct went “to the sanctity of the judicial process — it involved deciding cases for reasons other than the evidence presented, and the conduct involved a pattern of manipulating cases.”  The Court rejected the judge’s defense that he had only perpetuated a system of favoritism that had been in place when he took office.

Recently, based on a settlement agreement, the Michigan Supreme Court suspended a judge for 120 days without pay and censured her for reducing charges, dismissing charges outright, or modifying sentences in at least 20 criminal cases and dismissing at least 32 ticket cases following ex parte communications and without a hearing or authorization from the prosecutor, in addition to other misconduct.  In re Church (Michigan Supreme Court May 25, 2016).  The Court noted it may have imposed a different sanction but that, in light of the judge’s “serious and debilitating medical condition” (which it did not identify) and her acceptance of responsibility, deference to the Commission recommendation was warranted.  (In a previous case, the Court had removed a judge for ticket-fixing and other misconduct.  In re Justin, 809 N.W.2d 126 (Michigan 2012).)

Whereas a judge who fixes tickets is exercising too much authority over dispositions, failing to exercise the “quintessential judicial functions” of reviewing negotiated pleas and then accepting or rejecting them recently led to the sanction of a New York judge.  In the Matter of Calano, Determination (New York State Commission on Judicial Conduct May 9, 2016).  The deputy town attorney and defendants in the majority of vehicle and traffic law cases reached agreements involving pleas to reduced charges, the imposition of fines and surcharges, and, in some instances, dismissal of charges.  As the judge knew, the deputy town attorney told defendants that the proposed dispositions would be reviewed by a judge and required a judge’s approval.  Most defendants paid their fines and/or surcharges immediately following the negotiations, however, and the court clerks entered the dispositions without the judge reviewing or approving them.  At the discipline hearing, the judge testified that, because the deputy town attorney was “an officer of the court,” she trusted that the dispositions were within the parameters they had discussed and she was confident that the matters were disposed of fairly and without favoritism.

The Commission found that, by failing to oversee and approve the dispositions, the judge effectively delegated her judicial duties to the deputy town attorney and permitted him to dispose of cases without judicial oversight.  The Commission concluded:

Only judges have authority and responsibility to accept or reject a negotiated plea; and dismissing and reducing charges, convicting defendants and imposing sentences are quintessential judicial functions requiring the exercise of judicial discretion.  Placing such responsibilities in the hands of the prosecutor, who is not a neutral arbiter but an advocate, is especially problematic.

The Commission stated that “the fact that these practices predated her tenure in office does not excuse respondent’s misconduct.”  (Her co-judge had resigned in 2014 and agreed not to serve in judicial office after the Commission had filed a formal complaint based on the same practice and other conduct.)

See also Public Warning of Jones and Order of Additional Education (Texas State Commission on Judicial Conduct February 29, 2016) (without reviewing plea agreements presented by the prosecutor, judge entered judgements that found defendants charged with crimes such as speeding, assault, driving with license suspended, or marijuana possession guilty of illegal parking and imposed fines that were over the amounts allowed by law for illegal parking).

 

Throwback Thursday

5 years ago this month:

  • Based on an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court reprimanded a judge for ordering that an attorney be incarcerated for criminal contempt after the attorney refused to recite the pledge of allegiance in open court. Commission on Judicial Performance v. Littlejohn, 62 So. 3d 968 (Mississippi 2011).
  • Based on an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court suspended a judge for 30 days without pay and reprimanded her for conditioning defendants’ release on bail on church attendance; ex parte communications; sua sponte reducing bonds and charges; presiding at her nephew’s initial appearance on domestic violence charges; and expressing her view on the sheriff’s handling of the county drug problem and inviting ex parte communications on the subject. Commission on Judicial Performance v. Dearman, 66 So. 3d 112 (Mississippi 2011).
  • The Mississippi Supreme Court suspended a judge for 30 days without pay, fined him $500, and reprimanded him for fixing 9 citations and intervening, or attempting to intervene, in 3 cases assigned to another judge. Commission on Judicial Performance v. McKenzie, 63 So.3d 1219 (Mississippi 2011).
  • Based on the presentment of the Advisory Committee on Judicial Conduct, which the judge had accepted, the New Jersey Supreme Court reprimanded a judge for, in a loud, hostile, angry, and antagonistic manner, making extreme and excessive remarks to a mother who questioned a visitation schedule. In the Matter of Baker, Order (New Jersey Supreme Court June 16, 2011) (judiciary.state.nj.us/pressrel/pr110616a.htm).
  • With the judge’s agreement, the North Carolina Judicial Standards Commission reprimanded a judge for escalating a personal disagreement with the public defender into an unauthorized, closed proceeding that did not comply with due process and embroiled court personnel and the sheriff’s department. Public Reprimand of Scarlett (North Carolina Judicial Standards Commission June 15, 2011) (aoc.state.nc.us/www/public/coa/jsc/publicreprimands/jsc10-209.pdf).
  • Accepting stipulations of fact in lieu of trial, the Pennsylvania Court of Judicial Discipline removed a former judge who had pled guilty to 2 federal felonies of corrupt receipt of reward for official action concerning programs receiving federal funds and filing a false individual tax return. In re Toole, Order and Opinion (Pennsylvania Court of Judicial Discipline June 24, 2011) (cjdpa.org/decisions/jd11-05.html).
  • The Tennessee Supreme Court affirmed the decision of the Court of the Judiciary suspending a judge for 90 days, without impairment of compensation, for a 9-month delay in deciding a case, failing to disqualify himself from a related case, and asking a party through an attorney to drop the judicial conduct complaint while the party had a case pending before him. In re Bell, 344 S.W.3d 304 (Tennessee 2011).
  • Based on the judge’s agreement, the Tennessee Court of the Judiciary reprimanded a judge for appearing before the county commission to gain approval for a “Citizens Heritage Display” for the courtroom lobby of the justice center and becoming involved in fund-raising for the display. In re Taylor, Agreed Order, Public Reprimand (Tennessee Court of the Judiciary June 6, 2011) (tsc.state.tn.us/boards-commissions/court-judiciary/disciplinary-actions/pleadings-public-cases/james-taylor).

 

New publication

Court Review, the journal of the American Judges Association, has published an article I wrote entitled “So You’re Going to Be a Judge:  Ethical Issues for New Judges” in the most recent issue.  Other articles in the issue include “The Emotional Dimension of Judging:  Issues, Evidence, and Insights” by Sharyn Roach Anleu, David Rottman, and Kathy Mack, and “Judicial Wisdom:  An Introductory Empirical Account,” by Jeremy Blumenthal and Daria Bakina.

 

Social media endorsements

The prohibition on judges’ publicly endorsing political candidates applies on social media just as it does on any other forum or in any other format.  See California Judges’ Association Advisory Opinion 66 (2010).  The Mississippi Supreme Court recently reprimanded a judge for endorsing a political candidate on social media, in addition to other misconduct.  Commission on Judicial Performance v. Clinkscales (Mississippi Supreme Court June 9, 2016).  The judge had posted:  “Cast your vote in the Senate District 16 Special Election.  I will be voting for Angela Turner Lairy! . . .  Let’s not lose this seat!”  See also Inquiry Concerning Krause, 166 So. 3d 176 (Florida 2015) (30-day suspension without pay for a judge who used social media to ask her friends to help her judicial candidate-husband correct perceived misstatements by his opponent); In the Matter of Romero (New Mexico Supreme Court February 13, 2015) (permanent retirement of a judge who had endorsed candidates for public office on Facebook and continued to endorse them and post their campaign materials there after telling the Judicial Standards Commission he would stop).

The act of “liking” a campaign on Facebook, becoming a fan or “friending,” or the equivalent indication of support or approval of a candidate on any social media also constitutes an endorsement and, therefore, is prohibited.  See Massachusetts Advisory Opinion 2016-1; New Mexico Advisory Opinion Concerning Social Media (2016); New York Advisory Opinion 2015-121U.S. Advisory Opinion 112 (2014); ABA Formal Opinion 462 (2013).  See also Kansas Commission on Judicial Qualifications 2012 Annual Report (private cease and desist order for judge who “liked” a comment on a candidate’s Facebook page); Order of private reprimand (Kentucky Judicial Conduct Commission December 5, 2014) (private reprimand of a judge who “liked” the Facebook pages of lawyers and a judicial candidate and posted offensive comments about a lawyer on Facebook); Order of private reprimand (Kentucky Judicial Conduct Commission April 2, 2015 (private reprimand of a judge who “liked” the Facebook pages of lawyers, law firms, and candidates).

The prohibition on endorsements applies to judicial candidates as well as judges.  Thus, the Kentucky Judicial Conduct Commission publicly reprimanded a judicial candidate for “liking” a Facebook post that publicly endorsed a candidate for public office and making a contribution to a candidate.  In the Matter of Cohen, Agreed order of public reprimand (Kentucky Judicial Conduct Commission July 21, 2014).

At least 2 judicial ethics advisory committees have distinguished between social media “friending” of elected officials or individuals who are candidates and “liking” an election-related Facebook page, permitting the former and prohibiting the latter.  Noting many judges are friends in the real world with individuals who are running for office, the Utah committee stated that a judge may also be “friends” in the virtual world of social media with those candidates without violating the prohibition on endorsements.  Utah Informal Advisory Opinion 2012-1.  However, the committee warned judges to be careful about making any statements on the social media page that might create the appearance of an endorsement.  Moreover, noting many individuals who are candidates “have a Facebook page specifically designed to promote the individual’s candidacy,” the Committee advised that judges “may not be a ‘friend’ on that type of webpage, as that may constitute endorsement.”

Similarly, the Arizona committee stated that, if a state representative, for example, is running for re-election, a judge “may not be a ‘friend’ of the campaign committee’s Facebook page or ‘like’ that page, as such associations would indicate that the judge supports and is endorsing that individual’s reelection.”  Arizona Advisory Opinion 2014-1.  The committee noted that, if a judge clicks “like” on a Facebook page, her Facebook profile will thereafter indicate that she “likes” that other page.  However, the committee concluded that friending an elected state representative’s official Facebook page is not a prohibited endorsement (although it could raise a disqualification issue in a case in which the representative is a litigant, lawyer, witness, or other participant).

Most states have the prohibition on endorsements by judges and judicial candidates in their codes of judicial conduct, although some states allow endorsements of at least some judicial candidates at least at certain times.  Rule 4.1(A)(3) of the ABA Model Code of Judicial Conduct, for example, provides that a judge or judicial candidate shall not “publicly endorse or oppose a candidate for any public office,” while Rule 4.2(B)(3) allows a judicial candidate, including an incumbent judge running for re-election, “to publicly endorse or oppose candidates for the same judicial office for which he or she is running.”  The endorsement clause has survived constitutional challenge, most recently in Wolfson v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016).

Throwback Thursday

 10 years ago this month:

  • The Arizona Commission on Judicial Conduct reprimanded a judge for becoming angry during a hearing with a litigant, arguing with him from the bench, raising his voice in a manner that was not patient, dignified, and courteous, and telling the litigant he would incur attorney’s fees when he lost the case. Williams, Order (Arizona Commission on Judicial Conduct June 14, 2006).
  • Pursuant to a stipulation, the California Commission on Judicial Performance censured a judge who had pled no contest to driving while under the influence and engaged in dishonest conduct and repeatedly invoked her judicial office and that of her husband (an appellate court justice) in an effort to avoid being arrested and to receive preferential treatment. Inquiry Concerning Rushing, Decision and Order (California Commission on Judicial Performance June 8, 2006).
  • Pursuant to a stipulation for discipline by consent, the California Commission on Judicial Performance censured a judge for driving while under the influence of alcohol and repeatedly attempting to avoid being arrested and incarcerated because of his status. Inquiry Concerning Schwartz, Decision and Order (California Commission on Judicial Performance June 9, 2006).
  • The California Commission on Judicial Performance publicly admonished a judge for using court stationery in a personal dispute with the city. In the Matter of DiLoreto, Decision and Order (California Commission on Judicial Performance June 13, 2006).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) a series of ex parte communications about a plea; (2) assuming the role of prosecutor while presiding over an arraignment, disposition, and plea conference; and (3) a pattern of conduct that was inconsistent with the duty to be patient, dignified, and courteous, including sarcastic, demeaning, and belittling comments to attorneys and litigants and referring to “malpractice” when admonishing attorneys while their clients were present. In the Matter Concerning Mills, Decision and Order (California Commission on Judicial Performance June 12, 2006).
  • Accepting an agreement and stipulation, the California Commission on Judicial Performance censured a former judge and barred him from receiving an assignment, appointment, or reference from any California court following his guilty plea to 4 felony charges of criminal possession of child pornography. Inquiry Concerning Kline, Decision and Order (California Commission on Judicial Performance June 15, 2006).
  • Adopting the recommendation of the Judiciary Commission based on stipulated facts, the Louisiana Supreme Court censured a judge who made public comments to a newspaper reporter about a hotly contested case while it was pending on appeal, including criticizing an attorney in the case and making comments about the general anti-state bias of the citizens of the parish, and posed for the photograph that accompanied the newspaper article based on the interview. In re Roe, 931 So. 2d 1076 (Louisiana 2006).
  • Based on an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court reprimanded a judge who had ordered that his grandson’s driver’s license be reinstated pending the disposition of DUI charges and contacted the county sheriff regarding the housing of his grandson in the county jail rather than a state facility. Commission on Judicial Performance v. Cole, 932 So. 2d 9 (Mississippi 2006).
  • Adopting the findings of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge for 60 days without pay for making an unwanted advance to his law clerk. In the Matter of Subryan, 900 A.2d 809 (New Jersey 2006).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for directing a court officer to escort a defendant out of her courtroom through a non-public, back stairway to elude a police detective who was waiting to effect a lawful arrest. In the Matter of Blackburne, 851 N.E.2d 1175 (New York 2006).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a judge who, after being told that a defendant had left a “nasty” message on the court answering machine but without listening to the message, telephoned the defendant and, while repeatedly referring to his judicial office, angrily berated him and threatened to send him to jail in a lengthy harangue. In the Matter of Wiater, Determination (New York State Commission on Judicial Conduct June 29, 2006).
  • The Pennsylvania Supreme Court affirmed the order of the Court of Judicial Discipline banning a former judge from holding judicial office for 5 years for parking her car at expired parking meters and placing parking tickets that had been issued to others on the windshield of her car. In re Harrington, 899 A.2d 1120 (Pennsylvania 2006).
  • The Texas State Commission on Judicial Conduct admonished a former appellate court judge who violated the federal conflict of interest statutes by approving trips for himself at federal government expense that included travel for personal purposes. Public Admonition of Andell (Texas State Commission on Judicial Conduct June 15, 2006).
  • The Texas State Commission on Judicial Conduct publicly admonished a part-time justice of the peace for authorizing his name to be used in an advertisement endorsing a candidate for public office. Public Admonition of Powers (Texas State Commission on Judicial Conduct June 9, 2006).
  • The Utah Supreme Court implemented an order of reprimand entered by the Judicial Conduct Commission for a judge who had met with a defendant outside of court 4 times during her probation period. In re Halliday, Order (Utah Supreme Court June 8, 2006).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct censured a former judge who admitted that his poor attempts at humor and failure to understand the potentially offensive nature of his use of the word “Chinaman” violated the code of judicial conduct and that the Commission would be able to prove other allegations by clear and convincing evidence, although he denied those allegations. In re Martin, Stipulation, Agreement, and Order of Censure (Washington State Commission on Judicial Conduct June 2, 2006).

Discernment difficulty

In a 5-3 vote vacating a decision of the Pennsylvania Supreme Court that denied post-conviction relief to a prisoner sentenced to death, the U.S. Supreme Court held that (1) the participation of a justice who had as the district attorney approved seeking the death penalty in the prisoner’s case violated the Due Process Clause of the Fourteenth Amendment and (2) the justice’s failure to recuse was not a harmless error even though his vote was not decisive in the state court’s 6-0 decision.  Williams v. Pennsylvania (U.S. Supreme Court June 9, 2016).

In 1986, Terrance Williams was convicted of first-degree murder and sentenced to death for the murder of Amos Norwood.  At the time, Ronald Castille was the district attorney of Philadelphia.  When the prosecutor had requested permission to seek the death penalty for Williams, Castille wrote at the bottom of the document:  “Approved to proceed on the death penalty.”

For the next 26 years, Williams’s conviction and sentence were upheld on direct appeal, state post-conviction review, and federal habeas review.  In 2012, Williams filed a successive petition pursuant to Pennsylvania’s Post Conviction Relief Act based on new information from a witness who had previously refused to speak with Williams’s attorneys.  The witness now disclosed that before trial he had informed the prosecutors that Norwood’s sexual relationship with Williams was the real motive for the murder but that the prosecutors had instructed him to falsely testify that Williams killed Norwood to rob him.  The witness also admitted that the trial prosecutor had promised in exchange for his testimony to write a letter to the state parole board on his behalf, which was not disclosed at trial.

The post-conviction relief court found that the trial prosecutor had suppressed material, exculpatory evidence and engaged in “prosecutorial gamesmanship.”  That court stayed Williams’s execution and ordered a new sentencing hearing.

The Pennsylvania Supreme Court vacated that order and reinstated the death sentence for Williams.  Chief Justice Castille joined the majority opinion and also authored a concurrence, stating that the post-conviction court had “lost sight of its role as a neutral judicial officer,” stayed Williams’s execution “for no valid reason,” and misapplied Brady and denouncing what he perceived as the “obstructionist anti-death penalty agenda” of Williams’s attorneys from the Federal Community Defender Office.

The U.S. Supreme Court held that “under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.”

Bias is easy to attribute to others and difficult to discern in oneself.  To establish an enforceable and workable framework, the Court’s precedents apply an objective standard that, in the usual case, avoids having to determine whether actual bias is present.  The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, “the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”

* * *

When a judge has served as an advocate for the State in the very case the court is now asked to adjudicate, a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome.  There is, furthermore, a risk that the judge “would be so psychologically wedded” to his or her previous position as a prosecutor that the judge “would consciously or unconsciously avoid the appearance of having erred or changed position.”  In addition, the judge’s “own personal knowledge and impression” of the case, acquired through his or her role in the prosecution, may carry far more weight with the judge than the parties’ arguments to the court.

[Citations are omitted throughout this post.]

Rejecting the state’s characterization of Chief Justice Castille’s prior involvement as a brief administrative act limited to “the time it takes to read a one-and-a-half-page memo,” the Court stated it would “not assume that then-District Attorney Castille treated so major a decision as a perfunctory task requiring little time, judgment, or reflection on his part.”  The Court also noted Chief Justice Castille’s own campaign “statement that he ‘sent 45 people to death rows’ as district attorney,” concluding his “willingness to take personal responsibility for the death sentences obtained during his tenure as district attorney indicate that, in his own view, he played a meaningful role in those sentencing decisions and considered his involvement to be an important duty of his office.”

In his dissent, which Justice Alito joined, Chief Justice Roberts concluded that the Due Process Clause did not require Chief Justice Castille’s recusal because “Williams does not allege that Chief Justice Castille had any previous knowledge of the contested facts at issue in the habeas petition, or that he had previously made any decision on the questions raised by that petition.”  However, the dissent added, the absence of a due process obligation did not mean that it was appropriate for him not to recuse.

In his dissent, Justice Thomas argued that the Due Process Clause did not require Chief Justice Castille’s disqualification because the “petition for state postconviction relief did not continue (or resurrect) . . . [the] already final criminal proceeding.”  Justice Thomas also stated that “[o]fficials in Pennsylvania are fully capable of deciding when their judges have ‘participated personally and substantially’ in a manner that would require disqualification without this Court’s intervention.”

The majority emphasized:

It is important to note that due process “demarks only the outer boundaries of judicial disqualifications.”  Most questions of recusal are addressed by more stringent and detailed ethical rules, which in many jurisdictions already require disqualification under the circumstances of this case.

Pennsylvania does have such a “stringent and detailed” rule; the Pennsylvania code of judicial conduct provides that a judge shall disqualify himself if he “served as a lawyer in the matter in controversy . . . .” and if he “served in governmental employment, and in such capacity participated personally and substantially as a lawyer . . . concerning the proceeding . . . .”  Williams had filed a motion for Chief Justice Castille to recuse himself or, if he declined to do so, to refer the recusal motion to the full court.  As the U.S Supreme Court noted, however, Chief Justice Castille denied the motion – “without explanation.”

Throwback Thursday

20 years ago this month:

  • Adopting the recommendation of the Commission on Judicial Performance, the California Supreme Court censured a judge who had on several occasions made sexually suggestive remarks to and asked sexually explicit questions of female staff members; used crude and demeaning names and descriptions and an ethnic slur when referring to staff members; referred to a fellow jurist’s physical attributes in a demeaning manner; and mailed sexually suggestive postcards to staff members. In re Gordon, 917 P.2d 627 (California 1996).
  • The California Commission on Judicial Performance admonished a judge who had (1) failed to disqualify himself in 4 cases in which the Walt Disney company was a litigant although he owned 1000 shares of Disney stock valued at approximately $45,000 and (2) written 2 letters on court letterhead to a collection service regarding a claim against a member of his family. Public Admonishment of Stoll (California Commission on Judicial Performance June 3, 1996).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for 2 incidents in which he improperly jailed individuals for their purported failure to pay fines and restitution obligations he had imposed. In the Matter of Hamel, 668 N.E.2d 390 (New York 1996).
  • Modifying the recommendation of the Commission on Judicial Tenure and Discipline, the Rhode Island Supreme Court censured a judge of the workers’ compensation court for improper charitable solicitations. In re Arrigan, 678 A.2d 446 (Rhode Island 1996).