National College on Judicial College and Ethics

The 25th National College on Judicial Conduct and Ethics will be held Wednesday October 4 through Friday October 6, 2017 in Austin, Texas at the Omni Austin Hotel Downtown.  The College will begin Wednesday afternoon with registration and a reception.  Thursday morning there will be a plenary session, followed by concurrent break-out sessions through Friday noon.  The room rate will be $219 for single or double occupancy, which includes breakfast.  The College registration fee will be $400 through August 31, but $425 beginning September 1.

The College provides a forum for judicial conduct commission members and staff, judges, judicial ethics advisory committees, and others to discuss professional standards for judges and current issues in judicial discipline.  There will be more details posted on the blog as they become available.  If you have any suggestions for topics, please e-mail cgray@ncsc.org.

 

More Facebook fails

Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 6 months without pay for Facebook posts about a case, political matters, and a fund-raiser for a local church.  In the Matter of Johns (South Carolina Supreme Court November 16, 2016).

The judge’s Facebook account identified him as the probate court judge for Oconee County, and the account and all of his posts were accessible to all members of Facebook.

Z.H.’s parents filed a wrongful death suit on behalf of his estate against the police department.  The case was settled for $2,150,000.  Due to the public nature of the case, the settlement received extensive press coverage.

While the matter was before the probate court, the judge posted on Facebook:  “In the end it’s all about the money.  Always.  Unfortunately, I see it EVERYDAY.”  The judge later added:  “Once ck is in hand, they’ll disappear.”

The judge expressed great regret for his conduct and was sorry for any distress that it may have caused Z.H.’s family.  He recognized that, while he did not mention the estate by name, it would have been clear in the community what he was referring to.

The judge also made extensive political posts on Facebook, including ones in which he appears to endorse a presidential candidate.  He also engaged in fund-raising for a local church in a post.  The judge recognized that it was inappropriate for him to make political posts and to post information about a fund-raiser for a local church.  He has now removed reference to himself as a judge on his Facebook page.

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The Texas State Commission on Judicial Conduct publicly reprimanded a justice of the peace for Facebook posts that promoted the financial interests of a relative and a former judge, in addition to other misconduct.  Public Reprimand of Uresti and Order of Additional Education (Texas State Commission on Judicial Conduct October 11, 2016).

The judge has a public Facebook page that identifies her as:  “Yolanda Acuna Uresti – Judge Elect for JP Pct. 4 Pl. 2.”  The page includes her photo and identifies her as a “politician.”  The judge has not used privacy settings that would prevent members of the public from viewing her Facebook page.

While she was a candidate for judicial office, the judge’s Facebook page included links, photos, and posts promoting the real estate business of the judge’s daughter-in-law and promoting a former judge’s business as a wedding officiate.

In her written responses to the Commission’s inquiry, the judge denied she was identified on her Facebook page as a “politician,” despite the fact that her Facebook page expressly included the description of her as a “politician.”  The judge also denied responsibility for the Facebook posts promoting the businesses of her daughter-in-law and the former judge, claiming the posts were “illegal,” “unauthorized,” and the result of someone “hack[ing]” her Facebook page.  When asked, the judge stated she had not reported the “hacking” to the appropriate authorities.  According to the judge, none of the posts promoting these businesses were ever accessible to the general public.  Although the judge claimed to have deleted her Facebook account, it remained accessible as of the date of this sanction.

The Commission notes that at the time of the original posts, the judge was a judicial candidate and not yet a judge and it does not have jurisdiction over the pre-bench conduct of a judicial candidate.  However, it stated, the judge’s failure to remove the posts after she assumed the bench and the fact that the posts continue to be viewable by the public 16 months into her term, even after the Commission brought its concerns to her attention, constitutes a continuing violation of the canons.

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct reprimanded a judge for advertising for his wedding services on his personal web-site. Jayne, Order (Arizona Commission on Judicial Conduct November 16, 2011).
  • The Arizona Commission on Judicial Conduct reprimanded a judge for several improper ex parte communications in a case. Jayne, Order (Arizona Commission on Judicial Conduct November 16, 2011).
  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline & Disability Commission reprimanded a judge for driving while intoxicated. Harper, Letter of reprimand (Arkansas Judicial Discipline & Disability Commission November 18, 2011).
  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline & Disability Commission censured a judge for presiding while intoxicated and other public incidents in which he was under the influence of alcohol. Harper, Letter of censure (Arkansas Judicial Discipline & Disability Commission November 18, 2011).
  • The California Commission on Judicial Performance admonished a former judge for (1) making comments in a case about the district attorney’s office that created an appearance of bias and were disparaging, undignified, and discourteous; (2) failing to disclose that he was actively considering running for district attorney in a case in which the conduct of the incumbent D.A. was an issue; (3) recommending that the deputy district attorneys’ association delay its endorsement decision; and (4) allowing his judicial title to be used to raise money to retire debt from his campaign for district attorney. In the Matter of Zellerbach, Decision and order (California Commission on Judicial Performance November 3, 2011).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for (1) attempting to force himself into a court employee’s personal and private life; (2) accepting a campaign contribution from his mother that far exceeded the $500 statutory limit; (3) filing a notice of appearance to represent his mother in foreclosure proceedings and communicating with counsel for the mortgagee on her behalf; and (4) offsetting a juvenile’s court costs in exchange for the juvenile’s earring. Inquiry Concerning Turner, 76 So. 3d 898 (Florida 2011).
  • The Illinois Courts Commission censured a judge for a conversation with another judge about a case involving a shop owner with whom the judge had discussed detailing his car. In re Simpson, Order (Illinois Courts Commission November 7, 2011).
  • The Indiana Commission on Judicial Qualifications admonished a judge for an invitation to a campaign fund-raiser that gave the appearance that specific contributions would result in particular rulings. Public Admonition of Pierson-Treacy (Indiana Commission on Judicial Qualifications November 29, 2011).
  • Agreeing with the findings and recommendation of a 3-member hearing panel, the Minnesota Supreme Court suspended a judge without pay for 6 months and censured her for failing to reside within her judicial district for 3 months and failing to cooperate and be candid and honest during the Judicial Standards Board’s investigation. Inquiry into Karasov, 805 N.W.2d 255 (Minnesota 2011).
  • The Mississippi Supreme Court suspended a judge without pay for 30 days and reprimanded her for attempting to influence a Florida judge in a matter involving a defendant who was a member of a family with whom the judge was friends. Commission on Judicial Performance v. Dearman, 73 So. 3d 1140 (Mississippi 2011).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct admonished a non-lawyer judge for regularly holding court in his chambers for approximately 7 years. In the Matter of Riordan, Determination (New York State Commission on Judicial Conduct November 9, 2011).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct censured a non-lawyer judge for intervening with a police officer about a friend’s traffic case that was returnable before his co-judge. In the Matter of Hunt, Determination (New York State Commission on Judicial Conduct November 9, 2011).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct admonished a judge who had used a palm card in her campaign that could be construed as representing she had been endorsed by the New York Times when she had not received that endorsement. In the Matter of Michels, Determination (New York State Commission on Judicial Conduct November 17, 2011).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a part-time judge who represented 4 clients in matters in his court in the 7 months following his appointment. In the Matter of Shanley, Determination (New York State Commission on Judicial Conduct November 14, 2011).

So you’re going to be a judge

In its findings in a recent judicial discipline case, the Florida Judicial Qualifications Commission noted that the respondent-judge was, at the time of his misconduct, a new judge “who underestimated the process of transitioning from a well-respected, professional lawyer to a judge, and made a series of significant missteps.”  Inquiry re Contini (Florida Supreme Court November 10, 2016).  (The judge was reprimanded for sending an ex parte e-mail to the public defenders’ office while attending new judges’ training; failing to seek a recusal or transfer when an appeal of his denial of a motion to recuse based on the e-mail effectively froze his division; and making impertinent and belittling remarks in open court about that appeal.)

To ensure a smoother transition, anyone who because a judge-elect following this month’s elections might want to refer to a recent article published in Court Review, the journal of the American Judges Association, and written by the author of this blog.  Entitled “So You’re Going to Be a Judge:  Ethical Issues for New Judges,”  the article begins by recommending that, “[a]fter being elected or appointed to the bench, a budding judge should immediately sit down and read the code of judicial conduct for her jurisdiction.”

Relying on judicial ethics advisory opinions, the article then lists the inquiries a soon-to-be judge should make about his community, financial, fiduciary, and political activities to evaluate what changes he should make even before taking the bench to be in conformance with the code after taking office.  It also considers what gifts a new judge may accept, including receptions, that are offered to mark the new position, and examines whether a judge-elect can practice law between the election and taking office.  The article discusses at length the winding up of a law practice, including duties to clients, payments for prior legal work, and disassociation from a firm.  For example, the article notes that, “with certain conditions, after taking office, a judge may receive payment of legal fees for prior work done as an attorney, including hourly fees, flat fees, and contingency fees, from former clients, former partners, former firms, successor lawyers, or successor firms,” and then elaborates on those conditions.

In addition, the fall 2010 issue of the Judicial Conduct Reporter has an article on “Disqualification Issues Faced by New Judges.”  The topics covered include whether a judge is disqualified when a former client appears before the judge, when a former law firm or partner appears, and when a case is related to a case or investigation that was pending in a government office when the judge worked there.  For example, the article describes the majority rule that a judge is disqualified from cases involving a former partner or firm as long as the judge is receiving payments for her former interest in the firm, identifies the states that have a bright line rule requiring a new judge to disqualify for a specific period from cases involving a firm, and lists the factors judicial ethics committees have advised judges to use in evaluating whether to recuse from cases in which a former partner or firm appears even after the financial relationship ends and in states with no set disqualification period.

Throwback Thursday

10 years ago this month:

  • The California Commission on Judicial Performance admonished a judge for (1) sarcastic, demeaning, and intimidating statements to litigants in a case and improperly threatening to impose sanctions of $10,000 against one of the litigants and (2) making statements that manifested bias against litigants from a Muslim country. Public Admonishment of Brooks (California Commission on Judicial Performance November 29, 2006).
  • The California Commission on Judicial Performance admonished a judge who, while a candidate, violated the state Political Reform Act. In the Matter Concerning Benson, Decision and order (California Commission on Judicial Performance November 15, 2006).
  • Considering the presentment of the Advisory Committee on Judicial Conduct based on stipulated, admitted, or uncontested facts, the New Jersey Supreme Court suspended a judge without pay for 30 days for (1) criticizing a jury for a not guilty verdict; (2) entering a jury room without counsel and off-the-record, making inappropriate comments to counsel, and commending the jury on its guilty verdict; (3) criticizing the appellate judges who overturned a verdict based on his jury instructions; and (4) a pattern of misconduct. In the Matter of Mathesius, 910 A.2d 594 (New Jersey 2006).
  • The New York State Commission on Judicial Conduct removed from office a part-time, non-lawyer judge who had failed to remit funds promptly to the state comptroller and failed to cooperate with the Commission. In the Matter of Lockwood, Determination (New York State Commission on Judicial Conduct November 7, 2006).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court reprimanded a former judge who had purchased cocaine on several occasions. In the Matter of White, 637 S.E.2d 563 (South Carolina 2006).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a part-time master-in-equity for 1-year without pay for (1) failing to supervise an employee, who embezzled over $600,000 from the court account and (2) charging a fee in cases and expending the funds without statutory authority. In the Matter of Evans, 638 S.E.2d 64 (South Carolina 2006).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a magistrate for 1-year without pay for (1) failing as chief magistrate to ensure that procedures for making deposits of funds paid to the court complied with an administrative order issued by the chief justice; (2) failing to review bank statements monthly, as required by the administrative order, allowing a court employee’s embezzlement to go undiscovered; and (3) attempting to influence one or more other magistrates to limit the scope of the questions they would answer during an investigation. In the Matter of Cantrell, 638 S.E.2d 51 (South Carolina 2006).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court reprimanded a former judge for converting money he received as payment of a fine to his personal use and giving inaccurate information under oath to the Office of Disciplinary Counsel. In the Matter of Harvin, 638 S.E.2d 49 (South Carolina 2006).

Disqualification based on campaign contributions

When it adopted a new code of judicial conduct in 2014, the Pennsylvania Supreme Court included a provision (Rule 2.11(A)(4)) requiring a judge to disqualify when:

The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer.  In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial.  There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement for transportation, lodging, hospitality or other expenses is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.

Noting that the “2017 judicial election cycle will be only the second time” that Rule 2.11(A)(4) will apply, the Pennsylvania Judicial Conduct Board recently issued a statement of policy regarding disqualification based on campaign contributions to address “a number of questions that have arisen since the rule was adopted.”  The Board explains that its policy provides guidance only, does “not have the force and effect of law,” and is not binding on members of the judiciary or the Board.

The executive summary of the policy states:

  • When faced with a question of recusal or disqualification under Rule 2.11(A)(4), the nature of the inquiry is an objective one involving the public perception of large contributions and their effect on the judge’s ability to be impartial. If the amount of a contribution to a judicial candidate’s campaign raises a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the contributor, disqualification is required.
  • The focus of any inquiry under Rule 2.1(A)(4) is the contributions received by the campaign of a judge whose ability to preside is questioned.
  • There is no amount specified in Rule 2.11(A)(4) over which disqualification is required.
  • Regardless of proportional relationship to other contributions or the total amount raised, large contributions will raise reasonable concerns about the judge’s fairness based on the size alone and will trigger the assessment required under Rule 2.11(A)(4) and the Board will look unfavorably upon a judge’s strained views of the public perception of such large contributions.
  • Disqualification under Rule 2.11(A)(4) is subject to informed waiver by the parties and their attorneys.
  • A contribution of several thousand dollars will almost always require an analysis of whether disqualification is warranted; but such analysis may be avoided if the contribution is disclosed and the parties and their attorneys waive disqualification.
  • Judges are not required to review their campaign finance reports to determine if they are disqualified, but that may be the prudent practice as judges may not remain purposely ignorant of campaign contributions in order to avoid compliance with Rule 2.11(A)(4).
  • While there is no specific look-back period in Rule 2.11(A)(4), the effect of contributions will generally dissipate over time. The larger the contribution, the longer it will take to dissipate.
  • Disqualification is not required under Rule 2.11(A)(4) simply because the amount of a contribution exceeds the amount that must be reported as a gift on the judge’s statement of financial interests.
  • Contributions from several lawyers from the same law firm must be aggregated when conducting the assessment required by Rule 2.11(A)(4).


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Comment 4A to Rule 2.11 of the Arkansas code of judicial conduct provides:

The fact that a lawyer in a proceeding, or a litigant, contributed to the judge’s campaign, or publicly supported the judge in his or her election does not of itself disqualify the judge.  However, the size of contributions, the degree of involvement in the campaign, the timing of the campaign and the proceeding, the issues involved in the proceeding, and other factors known to the judge may raise questions as to the judge’s impartiality under paragraph (A).

Interpreting that comment, an Arkansas Supreme Court Justice recently denied a motion to disqualify her based on contributions to her 2014 campaign for the Court in which she was unopposed.  Robinson Nursing and Rehabilitation Center v. Phillips (November 10, 2016).  The Court as a whole had referred the motion to the justice “consistent with the principle that the decision to recuse rests in the discretion of the individual judge and with how this court has historically treated similar requests.”

The motion was filed in an appeal in a wrongful death case against a nursing home.  The plaintiffs’ disqualification motion had alleged that Michael Morton, one of the defendants, and nursing homes or other companies that he owns had contributed $40,000 to the justice’s campaign committee in 20 checks of $2,000 each in November 2013 and early 2014, and that that amount constituted 30% of her campaign’s total contributions of $134,700.  The justice noted, however, that the campaign received, in fact, $154,900 total and, as reflected in a campaign financial report, had returned $20,000 to Morton and his companies.  Therefore, the justice stated, the “analysis is whether the $20,000 in contributions the campaign retained in 2014 creates an appearance of impropriety for a case that will be before the court in 2017.”

The justice listed the factors from the comment to the Arkansas code:

  1. the size of contributions;
  2. the degree of involvement in the campaign;
  3. the timing of the campaign and the proceeding;
  4. the issues involved in the proceeding; and
  5. other factors known to the judge.

She concluded, “under the first factor, the accepted contributions are insufficient to warrant disqualification in an unopposed race.”  She also stated, with respect to the second factor, that Morton and his companies had not played any other role in her campaign, such as hosting fund-raisers or coordinating activities with her campaign committee.

Applying factor three, the justice found that “the timing between the campaign and the current proceeding is a sufficient cooling-off period,” noting the committee had received the contributions between fall 2013 and early spring 2014, the matter was unlikely to be submitted to the Court before the spring of 2017, and the complaint had been filed in September 2015, “well after” she had taken the bench.  Under factor four, the justice noted that the plaintiffs did not contend that the issue on appeal (class certification) was an issue that should cause her to recuse.

Discussing factor five, the justice explained:

I note that I have recused from cases involving significant contributions following each of my campaigns over the past eight years until a sufficient cooling-off period passed.  I am treating this case and this contributor no differently.  Additionally, while Arkansas is a small state and there are occasions for judges to intersect with potential counsel and litigants, I assure appellees and their counsel that I do not have a social or business relationship with Michael Morton or any of the businesses the appellees list.

Finally, the justice concluded:

In all, considering these factors and the surrounding circumstances as well as my duty to sit, I find that it would not be proper to recuse from this case.  All judges have a duty to recuse when the situation warrants but we also have an equal duty to sit when the facts do not justify doing otherwise.  Injustice occurs when one makes the wrong decision either way, which is why I certainly did not make this decision lightly.  Injustice also would occur if litigants could manipulate the makeup of the court.

The justice notes that the Arkansas code states in a comment that to “reduce potential disqualification and to avoid the appearance of impropriety, judicial candidates should, as much as possible, not be aware of those who have contributed to the campaign” but that is not a mandatory rule.  Moreover, she explains, “by including campaign contribution specifics in the motion, the [plaintiffs] have made it impossible for me to attempt to abide by the suggested behavior.”

Click here for the Center for Judicial Ethics compilation of state disqualification rules regarding campaign disqualification.

Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission admonished a judge who had been involved in a brawl in a tavern. Letter from Arkansas Judicial Discipline & Disability Commission to Rogers (November 26, 1996).
  • The Arkansas Commission on Judicial Discipline and Disability suspended a judge for 6 months without pay for paying a prostitute $300 for her sexual services with him and with an attorney at a later time (the judge was giving the attorney a “Christmas present”); the Commission also ordered the judge to issue a public apology. In the Matter of Thomas, Decision and order (November 15, 1996).
  • The California Commission on Judicial Performance admonished a judge who had used the court’s computer to obtain confidential information from records of the Department of Motor Vehicles and disclosed them to a friend. Public Admonishment of Smith (California Commission on Judicial Performance November 25, 1996).
  • Agreeing with the recommendation of the Judiciary Commission, the Louisiana Supreme Court censured a successful judicial candidate who had used campaign materials referring to himself as “THE Qualified “JUDGE” even though he had only sat previously as an ad hoc judge. In re Cascio, 683 So. 2d 1202 (Louisiana 1996).
  • Adopting the recommendation of the Judiciary Commission, the Louisiana Supreme Court censured a judge for delays in 2 cases and for failure to report the cases. In re Tuck, 683 So. 2d 1214 (Louisiana 1996).
  • Adopting the recommendation of the Judiciary Commission based on a stipulation of uncontested facts, the Louisiana Supreme Court removed from office a judge who owned and operated a company that provided pay telephone service for the inmates of the local parish jail. In re Johnson, 683 So. 2d 1196 (Louisiana 1996).
  • Agreeing with the findings of the Board of Commissioners on Judicial Standards, the South Carolina Supreme Court removed from office a judge who had issued an arrest warrant at the request of his daughter and released the arrested man from jail after the man paid her $500. In the Matter of McKinney, 478 S.E.2d 51 (South Carolina 1996).