Resignation of Arkansas judge

Late summer 2015:  News stories report that Judge Joseph Boeckmann was having defendants work on his family farm in lieu of paying fees or doing community service, and the Arkansas Commission on Judicial Disability and Discipline confirms that it is investigating the allegations.

November 2015:  The Arkansas Commission files a statement of allegations alleging Judge Boeckmann, in addition to other misconduct, “used his influence over [certain] male litigants, as a judge, to insinuate compliance by the litigants for his personal and sexual desires.”  The Commission alleges that the judge offered certain young Caucasian male defendants “substitutionary sentences,” which meant he would require them to pick up cans alongside city roads or at his home where he would photograph them as they were bending over and that he solicited sexual relations from them in exchange for reduction of or dismissal of their fines and costs.

The Arkansas Supreme Court appoints a special judge to handle Judge Boeckmann’s docket (he is a part-time judge).

December 2015:  The judge files an answer denying the allegations.

 January 2016:  In an amended statement, the Commission adds more examples of the judge appearing “to act as employer, financer, and, on occasion, intimate partner of some defendants appearing before him” and other allegations.  The Commission’s executive director tells reporters that, after the original allegations were filed and reported in the news media, more victims came forward.

May 2016:  The Arkansas Commission announces the resignation and permanent removal of Boeckmann and concludes its proceedings against him.  Prior to his resignation, the Commission had filed a notice of intent to introduce evidence of sexual misconduct by Boeckmann when he was a private attorney and a deputy prosecuting attorney.

Although there have been reports of criminal investigations by both federal and state law enforcement agencies, no criminal charges had been filed as of July 11.

Another Pennsylvania scandal

For the 3^rd time in 3 years, a justice of the Pennsylvania Supreme Court resigned or retired following conviction of a crime or during a judicial misconduct investigation.  (In early 2013, Justice Joan Orie Melvin resigned after she was convicted on state charges of using state employees in her judicial election campaigns.  In late 2014, Justice Seamus McCaffery retired while the Judicial Conduct Board was investigating allegations against him, including allegations he had exchanged hundreds of sexually explicit e-mails with members of the Office of Attorney General.)

October 2014:  The Judicial Conduct Board releases a statement confirming that Pennsylvania Supreme Court Justice Michal Eakin had self-reported that he received a number of e-mails in 2010 that may have violated the code of judicial conduct, that it had received other complaints about the same conduct, and that it was conducting an independent investigation.

December 2014:  The Board dismisses the complaints against Justice Eakin.

October 2015:  The Board confirms that it is conducting a new investigation after receiving additional materials from the Attorney General regarding e-mails involving Justice Eakin, noting that recent revelations demonstrate that the Board had not been “provided with all of the information on the Attorney General’s servers” during its 2014 inquiry.  (In September 2015, the Pennsylvania Supreme Court suspended the Attorney General’s law license after she was charged with perjury, obstruction of justice, and other offenses.)

December 2015:  The Board files a complaint alleging that Justice Eakin committed misconduct by sending e-mails to and receiving e-mails from other judges and attorneys, particularly defense attorneys and employees of the Office of Attorney General, that “someone of reasonable sensitivities would find offensive” and that were so extreme as to bring the judicial office into disrepute.

The Court of Judicial Discipline suspends Justice Eakin with pay pending proceedings on the complaint.

In his answer, the justice admits most of the factual allegations but denies that he committed misconduct, noting “these were Justice Eakin’s private, personal email messages (both sent and received, whether opened or unopened) and were never intended by him to be made public.”

February 2016:  The Board and Justice Eakin file a joint motion to submit a proposed stipulation to the Court of Judicial Discipline, which is denied.

March 2016:  The justice files a motion to present a mediated settlement, which is denied.

Justice Eakin resigns.

Based on stipulations of fact in lieu of trial, the Court of Judicial Discipline fines the now-former justice $50,000 for exchanging e-mails with friends and professional acquaintances that were insensitive and contained inappropriate references to gender, race, sexual orientation, and ethnicity, using his Commonwealth-issued computer equipment and a personal web-based e-mail address.  In re Eakin, Opinion (Pennsylvania Court of Judicial Discipline March 24, 2016).

The appearance and reality of impartial justice

The U.S. Supreme Court again affirmed the importance of “both the appearance and reality of impartial justice” in state courts 6 years after it had held that an objective test for impartiality applied under the federal due process clause in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).  In the most recent case, the Court vacated a 6-0 decision of the Pennsylvania Supreme Court denying post-conviction relief to a prisoner convicted of first-degree murder and sentenced to death; the 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 a structural error, not harmless error, that required vacating the decision even though his vote was not the deciding vote.  Williams v. Pennsylvania, 195 L. Ed. 2d 132 (2016).  See previous post here.

Judicial campaigns in federal courts

• A former judicial candidate has filed a petition for a writ of certiorari presenting the issues: “(1) Whether the endorsement clause is facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution or unconstitutional as applied to endorsements of candidates that will not appear in the court for which election is sought; and (2) Whether the campaigning prohibition is facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution or unconstitutional as applied to campaigning in support of ballot measures.”  The petition is from the en banc decision of the S. Court of Appeals for the 9^th Circuit upholding clauses in the Arizona code of judicial conduct prohibiting judicial candidates from personally soliciting or accepting campaign contributions other than through a campaign committee the personal solicitation clause, prohibiting judicial candidates from making speeches on behalf of a political organization or another candidate for public office, publicly endorsing or opposing another candidate, soliciting funds for or paying an assessment to a political organization or candidate, making contributions to any candidate or political organization in excess of the amounts permitted by law, and actively taking part in any political campaign other than his or her own.  Wolfson v. Concannon, 811 F.3d 1176 (9^th Circuit en banc 2016).
• On cross motions for summary judgement, a federal court permanently enjoined the Kentucky Judicial Conduct Commission from enforcing provisions in the code of judicial conduct (1) prohibiting a judicial candidate from making “pledges, promises or commitments” with respect to “issues;” (2) prohibiting a judicial candidate from making “misleading” statements; (3) prohibiting a judicial candidate from making speeches “for or against a political organization or candidate or publicly endors[ing] or oppos[ing] a candidate for public office;” (4) prohibiting a judicial candidate from paying an assessment or making a contribution to a political organization or candidate;” (5) prohibiting a judicial candidate from “campaign[ing] as a member of a political organization;” and (6) prohibiting a judge from engaging in “any other political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.” However, the court held that, at least on their face, prohibitions on a judicial candidate making false statements, acting as a leader or holding an office in a political organization, or endorsing candidates were not unconstitutional.  Winter v. Wolnitzek, Opinion (U.S. District Court for the Eastern District of Kentucky May 12, 2016).

Same-sex marriage

There have been no new advisory opinions on the issue of judges’ obligation to preform same-sex marriages since 5 were issued in 2015 shortly after the U.S. Supreme Court held that the U.S. Constitution does not permit states to bar same-sex couples from marriage; those 5 opinions stated that a judge cannot refuse to perform same-sex marriages if the judge performs opposite-sex marriages.  See this previous post.  See also Nebraska Advisory Opinion 2016-2 (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 about the couple’s sexual orientation); New York Advisory Opinion 2016-56 (unless a judge is required by law or rule to perform marriages, a judge may adopt a policy to decline to perform all weddings).

There are several pending judicial discipline cases involving same-sex marriages that may be resolved in 2016.

• A judge has filed a petition objecting to the recommendation of the Wyoming Commission on Judicial Conduct and Ethics that she be removed for stating that she is unwilling to perform same-sex marriages.
• That a judge instructed his staff to lie to same-sex couples and say he was not available to perform their wedding ceremonies is only one of the grounds on which the Oregon Commission on Judicial Fitness and Disability has recommended that the judge be removed. The other grounds are:  (1) at 2 community college soccer games for his son’s team, the judge tried to intimidate a referee by, for example, brandishing his judicial business card while threatening to complain to the referee’s employer; (2) the judge facilitated the handling of a firearm by BAS, a former Navy SEAL and convicted felon on active supervised probation in the veterans court over which the judge presided; (3) “enamored with BAS’s notoriety and his accomplishments in the military,” the judge had unsolicited, often unwanted, personal, and completely inappropriate out-of-court contacts with BAS; (4) either directly or under the guise of a non-profit organization, the judge obtained funds for a “Hall of Heroes” (military art hung in his courtroom and in the surrounding public areas, including a donated portrait of Hitler) in part by soliciting financial support from attorneys who appeared before him and collecting the money, often in the courthouse and once during a status conference in his chambers; (5) the judge made public statements in pre-hearing publicity to create the impression that the Commission proceeding was solely regarding his refusal to conduct same-sex marriages to deflect attention away from other misconduct; and (6) the judge engaged in a pattern of untruthfulness during the Commission proceedings.
• The Alabama Judicial Inquiry Commission has filed a complaint against Chief Justice Roy Moore based on his administrative order directing or giving the appearance of directing probate judges not to obey an injunction entered by a federal court that prohibited probate judges from following the state court’s order upholding the state’s same-sex marriage ban.