Monthly Archives: October 2016

Throwback Thursday  

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5 years ago this month:

  • Pursuant to the judge’s agreement and based on a stipulation of facts and a waiver of hearing, the Maryland Commission on Judicial Disabilities made public its private reprimand of a judge for misleading attorneys that a case would be tried in less than 24 hours and directing the clerk to create and post a false document setting the case for a jury trial. In the Matter of McDowell, Private reprimand (Maryland Commission on Judicial Disabilities October 24, 2011).
  • A 3-member panel appointed to hear a formal complaint filed by the Minnesota Judicial Standards Board reprimanded a former judge for (1) sending confidential information from a sealed court file to a state senator and (2) creating the appearance of impropriety by withdrawing from the campaign for his office after the deadline for other candidates had closed, leaving his clerk as the sole candidate for his seat. Inquiry Concerning Armstrong, Findings and recommendation (Panel appointed by Minnesota Supreme Court October 31, 2011).

Inaugural events

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A judge may attend the inauguration of elected public officials.  As the South Carolina advisory committee explained, swearing-in ceremonies are not political activities, but “governmental activities in which every citizen regardless of their official position should be allowed to participate.”

By attending the inauguration ceremonies … a judge simply participates as a spectator to a time honored tradition of government that symbolizes and celebrates the orderly and legal transition of elected officials.  Also, by attending as a spectator the judge is merely showing respect, in a dignified manner, for a branch of government other than his own, which thus avoids harming the integrity and impartiality of the judiciary and avoids any appearance of impropriety.

South Carolina Advisory Opinion 2-1995.  Accord Colorado Advisory Opinion 2006-10 (gubernatorial inauguration); Florida Advisory Opinion 1992-41 (presidential inauguration); New York Advisory Opinion 1997-145 (municipal induction ceremony).

A judge may attend an inaugural ball or similar event if any fee charged covers only the costs of the event or goes to a charity, but a judge may not attend if the event is a fund-raiser for a political candiate or party.  For example, the Colorado advisory committee stated that a judge may attend a dinner, concert, and whistle-stop tour following a gubernatorial inauguration when tickets may be purchased by any interested citizen for a nominal fee that covers the costs of the event only and no part of which will go to a political party.  Colorado Advisory Opinion 2006-10.  The committee cautioned that the judge may not engage in fund-raising to pay for attending the event and should not use his attendance as an opportunity to seek elevation to a higher bench, should attend as any member of the public without being seated on the dais or in any position that suggests a particular allegiance with the governor, and should be identified by name without reference to his judicial title to the extent possible.  See also Connecticut Advisory Opinion 2010-36 (a judge may, along with a guest, attend at no cost a gubernatorial inaugural ball and dinner that will raise funds to support and maintain an armory); Florida Advisory Opinion 1992-41 (a judge may attend a presidential inaugural ball provided no funds are paid to a political organization and attendance is not limited to members of one party); New York Advisory Opinion 1997-145 (a judge may not attend a ball following the swearing-in ceremony for local officials when the $250 ticket price will be used to pay campaign debts incurred by the one of the officials); New York Advisory Opinion 1998-12 (a judge may attend an inaugural ball for a mayor if any net proceeds will go to a charitable organization and the event is not a political gathering); New York Advisory Opinion 2008-213 (a judge may attend the presidential inauguration but not an inaugural ball hosted by a state political delegation, a political organization, or a political interest group unless the judge is currently a candidate); Pennsylvania Informal Advisory Opinion 12/17/01 (a judge may attend an elected official’s inaugural ball if it is a social event, not a partisan event or a fund-raiser); Pennsylvania Informal Advisory Opinion 1/5/04 (a judge may attend the inaugural ball for county commissioners but cannot attend the fund-raiser that precedes the ball); South Carolina Advisory Opinion 2-1995 (a judge may attend an inaugural ball if any fee covers only the cost and will not be retained by any political party).  Cf., Arkansas Advisory Opinion 1992-5 (a judge who holds an office filled by election may purchase tickets to and attend an inaugural ball for the President regardless whether the ball is considered a political gathering and regardless whether the admission charge is used to defray the costs of the event, is given to a charitable organization, or is used to support Democratic Party activities).

Throwback Thursday

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10 years ago this month:

  • The Arizona Commission on Judicial Conduct reprimanded a judge for continuing to complain about an administrative decision and withdrawing from a court committee, claiming that he had major philosophical differences with the presiding judge and indicating that he no longer respected her. Carroll, Order (Arizona Commission on Judicial Conduct October 3, 2006).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme suspended a judge for 30 days without pay for failing to act as a neutral arbiter and abusing his authority during a hearing on a motion to recuse another judge from a suit brought by oyster fishermen against the state and the Department of Natural Resources. In re Cresap, 940 So.2d 624 (Louisiana 2006).
  • Based on the recommendation of the Judiciary Commission, to which the judge had agreed, the Louisiana Supreme Court suspended a judge from office without pay until the end of his term for persistent and public abuse of alcohol that manifested itself while performing his judicial duties; the Court deferred all but 6 months of the suspension and placed the judge on probation until the end of his term with conditions, including that he refrain from drinking alcohol and be monitored by the Louisiana Lawyers Assistance Program. In re Krake, 942 So. 2d 18 (Louisiana 2006).
  • The Mississippi Supreme Court suspended a judge from office without pay for 30 days and reprimanded him for telling the sheriff he wanted an arresting officer to be late for court so that DUI charges could be dismissed. Commission on Judicial Performance v. Sanford, 941 So. 2d 209 (Mississippi 2006).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct reprimanded a judge for conducting a court proceeding and questioning a party in the absence of counsel although he knew that the party was represented. In re Jorgensen, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct October 3, 2006).
  • The Washington Supreme Court upheld the decision of the State Commission on Judicial Conduct to admonish a supreme court justice for, while visiting a facility for sexual predators, asking questions of inmates about issues currently pending before the supreme court. In the Matter of Sanders, 145 P.3d 1208 (Washington 2006).

New issue of the Judicial Conduct Reporter

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The summer issue of the Judicial Conduct Reporter is available for download at no charge.  In the issue:

  • An article on 3 cases (including 2 this year) in which judges were disciplined for jailing complaining witnesses in domestic violence cases
  • A comparison of cases upholding the prohibition on false statements in judicial election campaigns and cases overturning the prohibition on misleading statements on First Amendment grounds
  • Summaries of several recent cases about disqualification including a U.S. Supreme Court case about due process standards for disqualification when a justice served as a lawyer in the case and cases involving an attorney who had represented the judge without charge in a personal case (which includes a discussion of the rule of necessity), an attorney who is the judge’s close friend, and the judge’s own divorce, with brief summaries of 7 additional cases in which judges were sanctioned for failing to disqualify
  • Summaries of recent advisory opinions on judicial duties and on off-bench activities
  • Summaries of recent judicial discipline cases in which judges were sanctioned for revoking probation based on observations of the probationer at church; for creating the appearance of favoritism by meeting with a litigant’s father, a former judge, before a hearing; for researching the facts of a case on the internet; and for refusing to allow a defendant to testify when he would not, for religious reasons, raise his hand while affirming he would tell the truth

All past issues of the Reporter are also available on-line as free downloads on the Center for Judicial Ethics web-site.  Anyone can sign up to receive notice when a new issue is available.  There is an index of Reporter articles on the Center web-site.

 

 

Throwback Thursday

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20 years ago this month:

  • Adopting the recommendation of the Commission on Judicial Performance, the California Supreme Court censured a judge who had, as a matter of routine practice during the in-custody misdemeanor arraignment calendar, failed to consider release of defendants on their own recognizance or to consider probation or concurrent sentencing for defendants pleading guilty or no contest at arraignment; refused to appoint counsel to assist defendants; and failed to inform defendants pleading guilty or no contest of the negative consequences a conviction could have on a non-citizen with regard to immigration. In re Whitney, 922 P.2d 868 (California 1996).
  • Affirming an advisory opinion issued by the Advisory Committee on Extrajudicial Activities, the New Jersey Supreme Court held that a judge’s appearance on television to comment on cases pending in other jurisdictions violated the code of judicial conduct prohibition on judges’ commenting on pending cases, that the prohibition did not violate the First Amendment, and that the judge’s appearances lent the prestige of office to advance the private interests of others. In re Inquiry of Broadbelt, 683 A.2d 543 (New Jersey 1996).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge who had engaged in a vituperative campaign against a lawyer with whom he had a personal feud; publicly disseminated a list of “13 suggestions for confrontational or intentionally offensive criminal defense attorneys;” publicly criticized a defense being raised in a pending proceeding before his court; filed a false report to a police official; and gave testimony during the Commission’s investigation that was false, misleading, and lacking in candor. In the Matter of Mogil, 673 N.E.2d 896 (New York 1996).

Recent cases

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  • The Alabama Court of the Judiciary suspended the Chief Justice from office without pay for the remainder of his term for entering an administrative order that directed or appeared to direct all Alabama probate judges to follow Alabama’s marriage laws in disregard of a federal court injunction. In the Matter of Moore, Final judgment (Alabama Court of the Judiciary September 30, 2016).
  • The California Commission on Judicial Performance admonished a judge for making discourteous and undignified comments to 4 prospective jurors during jury selection and improperly ordering 1 of them to wait in the hall after she had been excused. Inquiry Concerning Clarke, Public admonishment (California Commission on Judicial Performance September 29, 2016).
  • The Illinois Courts Commission censured a judge for making misrepresentations in her mortgage application that caused the lender to believe she occupied the property as her primary residence when, in fact, she resided at another property and had no intention of establishing residence at the property she was re-financing. In re Santiago (Illinois Courts Commission August 18, 2016).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission suspended a judge for 14 days without pay for keeping a witness incarcerated for contempt of court for over 2 months without appointing an attorney to represent her, setting bond, or holding a hearing. In re Miniard, Agreed order of suspension (Kentucky Judicial Conduct Commission September 2, 2016).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission suspended a judge for 7 days without pay for granting a father’s ex parte motion for immediate custody of a child. In re Stein, Agreed order of suspension (Kentucky Judicial Conduct Commission September 12, 2016).
  • The Kentucky Judicial Conduct Commission privately reprimanded a judge for allowing cases to remain active, in some cases for several years, without ruling on pending motions or issuing final orders. Order of private reprimand (Kentucky Judicial Conduct Commission September 7, 2016).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct admonished a judge for (1) making condescending and inappropriate remarks about a teenage sexual assault victim during a plea discussion while the jury was deliberating; (2) becoming angry with the county district attorney in a second case and making loud and derogatory statements to the district attorney; and (3) making disparaging and provocative comments in a third case regarding the familial relationship between the district attorney and a potential witness. In the Matter of Hafner, Determination (New York State Commission on Judicial Conduct August 29, 2016).
  • Based on the judge’s acknowledgement of the basis for the complaint and her successful compliance with a judicial diversion program, the Pennsylvania Court of Judicial Discipline dismissed the Judicial Conduct Board’s complaint alleging the judge engaged “in unpleasant treatment both on and off the bench” of lawyers, litigants, her personal staff, and county employees and engaged in ex parte communications. In re Domitrovich, Order (Pennsylvania Court of Judicial Discipline August 31, 2016).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court reprimanded a magistrate for hearing matters involving the sheriff’s department after her husband became the sheriff. In the Matter of Underwood (South Carolina Supreme Court September 14, 2016).
  • Based on the judge’s resignation and his agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against the judge; the agreement notes that (1) the Commission had been investigating allegations that, in February, the judge exchanged sexually graphic messages, photos, and videos with a woman while attending a Commission meeting as vice chair and while attending an education conference in his official capacity; (2) during the investigation, the judge failed to timely produce requested records and evidence, deleted information from a social media account and from his cell phone before donating it to charity, failed to provide complete and candid testimony in response to Commission inquiries, and attempted to influence the testimony of a witness; and (3) in June, the judge was indicted on 3 counts of violating the Texas Open Meetings Act. Baker, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct September 22, 2016).

Throwback Thursday

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25 years ago this month:

  • Approving a stipulation and joint recommendation, the Florida Supreme Court reprimanded a judge who had (1) verbally abused and intimidated attorneys, witnesses, and parties, (2) engaged in improper ex parte communications, including one instance that necessitated a new trial, (3) made inappropriate comments on pending proceedings, and (4) failed to timely disqualify himself in proceedings in which his impartiality might reasonably be questioned. Inquiry Concerning Perry, 586 So. 2d 1054 (Florida 1991).
  • Approving a conditional agreement for discipline, the Indiana Supreme Court reprimanded a judge for knowingly making a contribution to a candidate for secretary of state; the judge had stated to the candidate’s campaign manager, “I want to give you $100, but I want you to put it in my wife’s name because I’m a sitting judge and I’m not supposed to be doing this” and then wrote “on behalf of [his wife’s name]” on the check even though he knew that he would also be identified as a contributor. In the Matter of Sallee, 579 N.E.2d 75 (Indiana 1991).

 

 

Not about same-sex marriage

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Based on a complaint by the Judicial Inquiry Commission, the Alabama Court of the Judiciary suspended Chief Justice Roy Moore from office without pay until the end of his term for an administrative order in which he directed or appeared to direct all Alabama probate judges to follow Alabama’s marriage bans for same-sex couples despite a federal court injunction.  In the Matter of Moore, Final judgment (Alabama Court of the Judiciary September 30, 2016).  The Court of the Judiciary emphasized that the case was only about “alleged violations of the Canons of Judicial Ethics,” “not about whether same-sex marriage should be permitted,” or reviewing or editorializing about the U.S. Supreme Court’s decision in Obergefell v. Hodges, “a decision that some members of this court did not personally agree with or think was well reasoned.”  The Chief Justice filed a notice of appeal the next business day. (A timeline of relevant events is at the end of this post.)

In June 2015, in Obergefell, the U.S. Supreme Court held that same-sex couples have a fundamental right to marry under the federal constitution.  In January 2016, the Alabama Supreme Court was still considering the effect of Obergefell on its previous decision upholding the state’s same-sex marriage bans.  On January 6, noting confusion among the state’s probate judges, who issue marriage licenses, the Chief Justice filed an administrative order that “ordered and directed” that “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act” until the Alabama Supreme Court ruled on issue.  The order did not mention the federal injunction that had enjoined all probate judges from refusing to issue licenses to same-sex couples.

Subsequently, the Alabama Supreme Court dismissed petitions filed by probate judges seeking a writ of mandamus directing that they not issue marriage licenses to same-sex couples.  Chief Justice Moore participated in the decision.

 The Judicial Inquiry Commission filed a complaint against Chief Justice Moore based on his January 6, 2016 administrative order.

The Court of the Judiciary rejected as “not credible” the Chief Justice’s argument that he filed the January 6 order “merely to provide a ‘status update’ to the State’s probate judges,” noting that “a judge does not issue a ‘status update’ that ‘orders and directs’ that a law remain in effect.”  The Court found that “a disinterested reasonable observer, fully informed of all the relevant facts, would conclude that the undeniable consequence of the January 6, 2016, order was to order and direct the probate judges to deny marriage licenses” and that the order “called for action – and that action would have been in defiance” of Obergefell and of the federal injunction.  Noting that only 20 of Alabama’s 68 probate judges are lawyers, the Court also stated that the Chief Justice’s use of legal authority in the January 6 order “was incomplete to the point that . . . it was intended to be misleading.”

The Court of the Judiciary concluded that the Chief Justice, by willfully issuing the January 6, 2016 order, completely disregarded a federal court injunction when he knew or should have known every Alabama probate judge was enjoined from using the Alabama marriage laws or any Alabama Supreme Court order to deny marriages licenses to same-sex couples.  It also held that he demonstrated an unwillingness to follow clear law, decided substantive legal issues while purporting to act in his administrative capacity, substituted his judgment for the judgment of the entire Alabama Supreme Court on a substantive legal issue in a case then pending in that court, and interfered with the legal process and remedies in the U.S. District Court and/or the Alabama Supreme Court to address the status of any proceeding in which Alabama’s probate judges were parties.  The Court found that the Chief Justice violated Canons 1, 2, 2A, 2B, and 3.  The Court also found that the Chief Justice’s order was a public comment about a pending proceeding that placed his impartiality into question, and, therefore, he should have disqualified himself from the subsequent decision by the Alabama Supreme Court on the effect of Obergefell.

The Court of the Judiciary concluded:

As this court stated in its 2003 order removing Chief Justice Moore from office:  “While this court respects Chief Justice Moore’s right to his personal opinion on the underlying issues . . . , the fact remains that Chief Justice Moore is the chief judicial officer of this State and is held to a higher standard than a member of the general public.”  The fact also remains that this is the second time Chief Justice Moore has caused himself to be brought before this court for taking actions grossly inconsistent with his duties as Chief Justice and in violation of the Canons of Judicial Ethics.  The result in both instances has been a lengthy, costly proceeding for this court, the JIC, and, most unfortunately, the taxpayers of this State.

 A majority of the Court agreed with the Commission that removal was the appropriate sanction; however, the Court’s rules provide that removal of a judge requires “the concurrence of all members sitting.”

Time line

2003-2013

November 2003:  Based on the complaint of the Judicial Inquiry Commission, the Alabama Court of the Judiciary removes Chief Justice Roy Moore from office for failing to comply with a federal court order that he remove a monument displaying the Ten Commandments from the rotunda of the State Judicial Building.

April 2004:  A special Alabama Supreme Court affirms the judgment of the Court of the Judiciary.  (After the other justices of the Court recused, a special court of 7 members was chosen in a random drawing from a pool of retired justices and judges.)

2006:   Moore loses to the incumbent in the Republican primary for governor.

2010:  Moore places 4th in the Republican primary for governor.

November 2012:  Moore is elected Chief Justice for a second time.

January 2013:  Chief Justice Moore takes office for a 6-year term.

2015

January:  In Searcy v. Strange, a federal district court holds that Alabama’s same-sex marriage bans (the Alabama Sanctity of Marriage Amendment and the Alabama Marriage Protection Act) are unconstitutional and enters a preliminary injunction enjoining enforcement by the state attorney general.

February:  The 11th Circuit refuses to stay the district court injunction.

In a letter and memorandum of law, Chief Justice Moore advises the state’s probate judges that they are “not required to defer to federal district and circuit court rulings” on constitutional issues regarding same-sex marriage.

Chief Justice Moore issues an administrative order advising the probate judges that they are not bound by the injunction in Searcy because they are not parties to the case.

In Strawser v. Strange, the federal district judge holds that Alabama’s same-sex marriage bans are unconstitutional and enters a preliminary injunction enjoining the 1 probate judge who is a defendant from refusing to issue a marriage license to the same-sex plaintiffs.

March:  In Ex parte State ex rel. Alabama Policy Institute, the Alabama Supreme Court holds that Alabama’s same-sex marriage bans are constitutional and orders all probate judges who are not parties to Strawser to enforce the bans.  Chief Justice Moore did not participate because of his letter, memorandum, and administrative order to the probate judges.

May:  In Strawser, granting the plaintiff’s motion, the federal district court certifies a defendant class of all Alabama probate judges and preliminarily enjoins all members of the defendant class from denying marriage licenses to same-sex couples, but stays its injunction pending an imminent U.S. Supreme Court decision.

June:  In Obergefell v. Holdges, a case arising from challenges to same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee, the U.S. Supreme Court holds that same-sex couples have a fundamental right to marry under the federal constitution and may exercise that right in all states.

The Alabama Supreme Court invites the parties in Alabama Policy Institute to address the effect of Obergefell on its decision upholding the bans.

July:  The federal district judge lifts the stay on the injunction in Strawser, noting it is binding on all Alabama probate judges.

September:  2 probate judges file petitions with the Alabama Supreme Court seeking a writ of mandamus directing probate judges not to issue marriage licenses to same-sex couples.

October:  The 11th Circuit summarily affirms the district court’s preliminary injunction.

2016

January:  Noting confusion among probate judges, the Chief Justice files an administrative order that “ordered and directed” that “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act” until the Alabama Supreme Court rules on the pending petitions.

March:  The Alabama Supreme Court dismisses the probate judges’ petitions seeking a writ of mandamus.  Chief Justice Moore participates in the decision and files a special concurrence.

May:  The Judicial Inquiry Commission files a complaint against Chief Justice Moore based on his administrative order.  By automatic action of a provision in the state constitution, he is suspended with pay.

Chief Justice Moore files a federal lawsuit challenging the automatic suspension provision.

June:  Chief Justice Moore files a motion to dismiss the complaint.

July:  The only current member of the Court of the Judiciary who was also on the Court when it removed the Chief Justice in 2003 (1 of 2 lawyer members appointed by the Alabama State Bar) recuses himself from the proceedings, and the first alternate provided by the Bar is appointed a member of the Court for the matter.

August 8:  The federal district court dismisses the Chief Justice’s lawsuit, finding federal abstention was required.

The Court of the Judiciary denies the Chief Justice’s motion to dismiss.

September 28:  A 1-day hearing is held before the Court of the Judiciary.  (The Court’s rules provide that “a failure to convict within ten days after the conclusion of the hearing shall constitute an acquittal.”)

September 30:  The Court of the Judiciary suspends Chief Justice Moore from office without pay for the remainder of his term.  His attorney says he will appeal.

October 3:  The Chief Justice files a notice of appeal.