Monthly Archives: January 2017

2016 Facebook fails:  Top judicial ethics and discipline stories of 2016

Posted on by

Judges got in trouble for injudicious, off-the-bench comments before recent revolutions in on-line communications, but the greater temptation to vent posed by the new-fangled social media and the greater potential for venting to “go viral” were illustrated in several cases in 2016.

Dropping his First Amendment defense to charges brought by the Kentucky Judicial Conduct Commission, a judge agreed to a 90-day suspension without pay for, in addition to other misconduct, publishing comments on Facebook that accused the county commonwealth’s attorney of advocating for all-white jury panels, that criticized the public defender and criminal defense attorneys for not publicly supporting him in his dispute with the commonwealth’s attorney, and that discussed the motion to certify the law filed on behalf of the commonwealth’s attorney while the case was pending before the Kentucky Supreme Court.  In re Stevens, Agreed order of suspension (Kentucky Judicial Conduct Commission August 8, 2016).  For example, the judge had posted, “History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming he is entitled to an all-white jury panel.  No matter the outcome, he will live in infamy.”  The judge also made numerous similar comments during a presentation to the Louisville Bar Association.  For a longer summary of the case, see the previous post here.  Later in 2016, reviewing Judge Stevens’s decision, the Kentucky Supreme Court held that he did not have the discretion to dismiss a randomly selected jury panel that, despite its unrepresentative appearance, was drawn from a jury pool that reflected a fair cross section of the community.

* * *
Accepting a stipulation and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for making improper public comments on her Facebook account about a matter pending in another court and failing to delete related public comments by her court clerk.  In the Matter of Whitmarsh, Determination (New York State Commission on Judicial Conduct December 28, 2016).

The judge sits on the Morristown Town Court.  On March 3, 2016, a felony complaint was filed in the Canton Town Court alleging David VanArnam, who was running for the Morristown town council, had filed nominating petitions in which he falsely swore that he personally witnessed the signatures on the petitions.  On March 13, in a post on her Facebook account, the judge commented that she felt “disgust for a select few,” that VanArnam had been charged with a felony rather than a misdemeanor because of a “personal vendetta,” that the investigation was the product of “CORRUPTION” caused by “personal friends calling in personal favors,” and that VanArnam had “[a]bsolutely” no criminal intent.  The judge also stated, “When the town board attempted to remove a Judge position – I stood up for my Co-Judge.  When there is a charge, I feel is an abuse of the Penal Law – I WILL stand up for DAVID VANARNAM” [sic] [emphasis in original].  The judge also posted a web-site link to a news article reporting when the charge against VanArnam had been dismissed.

The judge had intended her post to be seen only by her 352 Facebook “friends.”  However, a few years earlier, she had set her Facebook privacy settings to “public” for an unrelated reason, and, at the time of her posting about the VanArnam case, her privacy settings were still set to public although she did not realize that.  The judge’s post about the VanArnam case was shared at least 90 times by other Facebook users.  A local news outlet posted an article on its web-site reporting on the judge’s Facebook comments and re-printed her post.

The Morristown Town Court Clerk posted on the judge’s Facebook page, “Thank you Judge Lisa!  You hit the nail on the head.”  The judge did not delete the court clerk’s comment, which was viewable by the public.

In 2 comments posted on the judge’s Facebook page, the judge’s husband questioned whether the complainant in the VanArnam case had a “close personal relationship” with “our prosecutor” and called the matter a “real ‘Rain Wreck’” referring to Mary Rain, the county District Attorney.  The judge clicked the “like” button next to some of the comments to her post, including a comment stating that the charges against VanArnam were “an abuse of our legal system” and “uncalled for;” a comment criticizing the district attorney; and another comment by her husband, stating, “This is what’s wrong with our justice system.”

On March 28, the judge removed all posts concerning the VanArnam matter from her Facebook page after receiving a letter from District Attorney Rain questioning the propriety of her comments and requesting her recusal from all matters involving the District Attorney’s office.  Soon after receiving that letter, the judge granted that request.

The Commission stated:

Comments posted on Facebook are clearly public, regardless of whether they are intended to be viewable by anyone with an internet connection or by a more limited audience of the user’s Face book “friends.”  Even such a “limited” audience, we note, can be substantial, and to the extent that such postings can be captured or shared by others who have the ability to see them, they cannot be viewed as private in any meaningful sense. . . .

Regardless of respondent’s intent, her comments — and her “likes” of comments criticizing the District Attorney that were posted in response to her message — conveyed not only respondent’s personal view that the prosecution was unjust, but the appearance that she was impugning the integrity of the prosecution and endorsing others’ criticism of the District Attorney’s office and the District Attorney personally.  Her statements, which were viewable online for 15 days and were reported by the media, were inconsistent with her duty to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” . . . and resulted in her recusal from all matters involving the District Attorney’s office.  Moreover, by referring to her judicial position in the same post (stating that she had once “stood up for my Co-Judge”), respondent lent her judicial prestige to her comments, which violated the prohibition against using the prestige of judicial office to advance private interests . . . .

Noting that a judge is required to “‘require similar abstention [from public comment about pending proceedings] on the part of court personnel subject to the judge’s direction and control,” the Commission stated that the “comments posted by respondent’s court clerk on respondent’s Facebook page were also objectionable.”

The Commission took the “opportunity to remind judges that the Rules Governing Judicial Conduct apply in cyberspace as well as to more traditional forms of communications and that in using technology, every judge must consider how such activity may impact the judge’s ethical responsibilities. . . .  While the ease of electronic communication may encourage informality, it can also, as we are frequently reminded, foster an illusory sense of privacy and enable too-hasty communications that, once posted, are surprisingly permanent.”  The Commission noted that the Advisory Committee on Judicial Ethics has cautioned judges about the public nature and potential perils of social networks, advised that judges who use such forums must exercise “an appropriate level of prudence, discretion and decorum” to ensure that their conduct is consistent with their ethical responsibilities, and said it is essential that judges who use such forums “stay abreast of new features of and changes to any social networks they use.”  The Commission noted “these are excellent guidelines for any judge who joins and uses an online social network.  At a minimum, judges who do so must exercise caution and common sense in order to avoid ethical missteps.”

* * *
Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 6 months without pay for his Facebook posts about a case, political matters, and a fund-raiser for a local church.  In the Matter of Johns, 793 S.E.2d 296 (South Carolina 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 had filed a wrongful death suit on behalf of his estate against the police department.  The case was settled for $2,150,000.  The settlement received extensive press coverage.

While the matter was before the probate court for administration of the estate, the judge expressed his opinion about the settlement on Facebook, posting:  “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 also made extensive political posts on Facebook, including ones in which he appeared to endorse a presidential candidate.  He also engaged in fund-raising for a local church in a post.

See also In the Matter of Archer, Final judgment (Alabama Court of the Judiciary August 8, 2016) (6-month suspension for sexually explicit Facebook relationship with a woman the judge met in his official capacity); Commission on Judicial Performance v. Clinkscales, 191 So. 3d 1211 (Mississippi 2016) (public reprimand of a former judge for endorsing a political candidate on social media, in addition to other misconduct); Public Reprimand of Uresti and Order of Additional Education (Texas State Commission on Judicial Conduct October 11, 2016) (public reprimand for Facebook posts that promoted the financial interests of a relative and a former judge, in addition to other misconduct).

See “social media and judicial ethics” in the most-requested Center resources section of the Center web-site for a comprehensive list of discipline cases, advisory opinions, and other judicial ethics and discipline materials.

Other posts on the top judicial ethics and discipline stories of 2016

Throwback Thursday

Posted on by

5 years ago this month:

  • The Alabama Supreme Court affirmed the decision of the Court of the Judiciary to publicly censure a former judge and bar him from office for his treatment of litigants and practice of early in the docket sentencing to jail defendants who pleaded not guilty to discourage other defendants from seeking a trial. Steensland v. Judicial Inquiry Commission, 87 So. 3d 535 (Alabama 2012).
  • Based on a joint motion, the Alabama Court of the Judiciary prohibited a former judge from serving as a judge or exercising any judicial authority in any case in any court in Alabama; the judge had stipulated that the Commission could prove by clear and convincing evidence that she failed to recuse herself from a child custody dispute after the Commission served her with a complaint filed against her by the mother. In the Matter of Warner, Final Judgment (Alabama Court of the Judiciary January 27, 2012).
  • The California Commission on Judicial Performance removed a judge for diverting to his own court and acting on traffic tickets issued to his son-in-law, friends, and the pastor of his church, improperly waiving or suspending all or practically all fines and fees or granting a continuance. Inquiry Concerning Stanford, Decision and Order (California Commission on Judicial Performance January 11, 2012).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a non-lawyer judge for notarizing a document purporting to transfer property to his son and daughter-in-law without witnessing the donor execute the document and without the legal authority to notarize the document. In re Williams, 85 So. 3d 5 (Louisiana 2012).
  • Adopting the recommendation of the Judiciary Commission based on a stipulation, the Louisiana Supreme Court publicly censured a judge for contacting another judge and an assistant district attorney for help getting an order of protection for his niece and giving incomplete and misleading responses in the Commission investigation. In re Burgess, 85 So. 3d 604 (Louisiana 2012).
  • Adopting the findings of fact and recommendation of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge from office for (1) dismissing cases and inappropriately disposing of cases without holding hearings and without notice to or the authorization of the prosecuting attorney, including fixing traffic citations issued to himself, his spouse, and his staff; (2) preventing the transmission of or altering court information that was legally required to be transmitted to the Secretary of State; (3) ex parte communications; (4) failing to follow plea agreements; (5) failing to promptly dispose of the business of the court; (6) interfering with a landlord/tenant case assigned to another judge; and (7) making false statements under oath during the Commission investigation. In re Justin, 809 N.W.2d 126 (Michigan 2012).
  • Based on an agreed statement of facts and joint recommendation, the Mississippi Supreme Court suspended a judge for 30 days without pay, publicly reprimanded him, and fined him $2,000 for interfering in cases not pending before him, ex parte communications, and dismissing citations for no proof of liability insurance when the proof the defendants supplied had been obtained after the citations. Commission on Judicial Performance v. Thompson, 80 So. 3d 86 (Mississippi 2012).
  • The New York State Commission on Judicial Conduct removed a non-lawyer judge for (1) accepting a plea from an unrepresented defendant whose ability to understand the proceedings was impaired by alcohol and (2) holding 4 defendants in summary contempt without complying with procedures required by law. In the Matter of Feeder, Determination (New York State Commission on Judicial Conduct January 31, 2012).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for driving while intoxicated. In the Matter of Apple, Determination (New York State Commission on Judicial Conduct January 31, 2012).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for unlawfully issuing orders of protection in a neighborhood dispute based on ex parte communications and even though there was no pending criminal action. In the Matter of Curtis, Determination (New York State Commission on Judicial Conduct January 31, 2012).
  • Pursuant to an agreement for discipline by consent, the North Dakota Supreme Court censured a judge for a pattern of delay. Disciplinary Action against Hagar, 810 N.W.2d 338 (North Dakota 2012).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for (1) threatening to handcuff and arrest a victim/witness; (2) sentencing a defendant for an uncharged offense without formally appointing counsel; and (3) revoking probation for 3 individuals without a hearing or appointing counsel. Letter to Moon (Tennessee Court of the Judiciary January 3, 2012).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for twice abusing the contempt power. Jackson, Letter of Reprimand (Tennessee Court of the Judiciary January 27, 2012).

State judicial discipline sanctions:  Top judicial ethics and discipline stories of 2016

Posted on by

In 2016, as a result of disciplinary proceedings, 131 judges, former judges, or judicial candidates in 32 states and D.C. were found to have violated the code of judicial conduct in public decisions.

  • 11 judges (or former judges in 5 cases) were removed from office (a $1000 fine was also imposed in one of the removal cases).
  • 1 judge was ordered to retire immediately due to misconduct and never to run for judicial office again.
  • 1 judge was retired due to permanent disabilities.
  • 2 former judges were permanently barred from serving in judicial office (1 of those former judges was also publicly reprimanded).
  • 13 judges or former judges resigned or retired in lieu of discipline pursuant to public agreements with conduct commissions.
  • 103 additional judges (or former judges in approximately 13 cases or former judicial candidates in 5 cases) received other public sanctions.
    • 15 suspensions without pay, ranging from 1 year to 7 days. One 1-year suspension was stayed on the condition the judge commit no further misconduct; one 30-day suspension included a $2500 fine and reprimand; 2 suspensions [1 of 30 days, 1 of 120 days] also included censures; one 3-month suspension included an order that the judge not run for re-election.  There were 3 suspensions for 6 months (or 180 days in 1 case); the other suspensions were for 4 months, 90 days, 1 month, 15 days, and 14 days.
    • 11 public censures.
    • 37 public reprimands (8 of the reprimands included conditions such as mentoring, a letter of apology, counseling, anger management, or training).
    • 21 public admonishments (2 of the admonishments also included orders of additional education).
    • 3 public warnings (2 of the warnings included orders of additional education).
    • 1 informal adjustment.
    • 1 fine of $50,000.
    • 1 judge was placed on supervised probation for 1 year with a mentorship for 6 months.
    • 1 private reprimand was made public pursuant to the judge’s waiver.
    • 5 former judges were disbarred or had their law licenses suspended for misconduct that occurred while they were judges.
    • 2 findings of violations of the code of judicial conduct were made without a sanction imposed.
    • 4 former judicial candidates were sanctioned for their conduct during their judicial election campaigns (the dispositions were an informal adjustment; an admonishment; a censure; and a 1-year suspension of the former candidate’s law license, with 6-months stayed conditioned on his committing no additional misconduct).
    • 1 judicial candidate was removed from the ballot as ineligible because he had been convicted of a misdemeanor involving moral turpitude.

Approximately 60% of the sanctions were entered pursuant to an agreement.  This count does not include pending recommendations or decisions pending on appeal, and “judge” refers generically to judicial officers, including justices, magistrates, commissioners, and hearing officers.

To see the 2015 statistics, click here.

Previous posts on the “Top judicial ethics and discipline stories of 2016”

Throwback Thursday

Posted on by

10 years ago this month:

  • Based on the recommendation of the Judicial Conduct Commission and an agreement for discipline by consent, the Arizona Supreme Court publicly censured a non-lawyer judge for having several substantive ex parte conversations with a defendant in a civil case and her daughter, providing legal advice to the defendant, and failing to disqualify himself. Inquiry Concerning Morales, Order (Arizona Supreme Court January 22, 2007).
  • Denying a request to issue a writ of certiorari and quash a decision of the Judicial Discipline and Disability Commission, the Arkansas Supreme Court upheld the public admonishment of a judge for personally soliciting campaign funds from attorneys and held that the restriction was constitutional. Simes v. Judicial Discipline and Disability Commission, 247 S.W.3d 876 (Arkansas 2007).
  • The California Commission on Judicial Performance publicly admonished a former judge for failing to disclose his personal relationship with an attorney representing the plaintiff in a case before him, taking the attorney’s secretary to a party while the trial was underway, and failing to disclose his past employment with the city attorney’s office in a case in which the defendant was the city. Public Admonishment of Difiglia (California Commission on Judicial Performance January 9, 2007).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge from office for having an adulterous affair with his secretary and having sexual intercourse with her at the courthouse, failing to comply with a federal court order prohibiting him from contacting her, inappropriate comments to the media about pending cases, writing a letter of recommendation on court stationery, and failing to comply with court policies on travel expenditures. In re Miller, 949 So. 2d 379 (Louisiana 2007).
  • Adopting the presentment of the Advisory Committee on Judicial Conduct to which the judge consented, the New Jersey Supreme Court publicly censured a former judge for domestic violence and causing a motor vehicle accident while driving in an intoxicated condition. In the Matter of Paragano, Order (New Jersey Supreme Court January 30, 2007).
  • Adopting the findings and recommendation of the Commission on Judicial Conduct and Ethics, to which the judge was deemed to have consented by failing to file a petition to modify or reject, the Wyoming Supreme Court publicly censured a former judge for his failure to oversee the workplace conduct of his wife who was the chief clerk of his court. In the Matter of Crow, 151 P.3d 270 (Wyoming 2007).

Recent cases

Posted on by
  • Adopting a resolution jointly proposed by the Judicial Inquiry Commission and the judge based on an agreement and stipulation, the Alabama Court of the Judiciary suspended a judge for 11 months without pay for incarcerating offenders for non-payment of fines and costs without inquiring into their reasons for the non-payment in clear violation of state law, incarcerating offenders for months without a written order, and delegating judicial authority to a private probation company. In the Matter of Hayes, Final judgment (Alabama Court of the Judiciary January 6, 2017).
  • Based on the judge’s resignation and agreement, the Arkansas Judicial Discipline and Disabilities Commission removed a judge from office for performing probable cause determinations for cases involving friends or former clients following ex parte communications, lowering their bail, and releasing them on their own recognizance. Parker, Letter of removal from office (Arkansas Judicial Discipline and Disabilities Commission December 31, 2016).
  • Pursuant to the judge’s agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for telling 2 young girls she would send them to foster care if they did not go on vacation with their father and making other threats after an ex parte discussion with the father’s attorney. In re Matter of Embry (Kentucky Judicial Conduct Commission December 27, 2016).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for (1) requiring couples with children to participate in special hearings to determine whether their marriage was irretrievably broken but not requiring such hearings for couples who do not have children and (2) providing third parties with facts about cases that were not part of the public record to assist the third parties with their independent research and teaching duties. In re Philpot, Public reprimand (Kentucky Judicial Conduct Commission January 6, 2017).
  • Based on the findings and recommendation of the Commission on Retirement, Removal and Discipline, the Missouri Supreme Court suspended a judge for 6 months without pay for deliberately postponing the appointment of counsel for indigent defendants in probation violation cases until after the time limit for disqualification to prevent the public defender from disqualifying her and threatening to bring bar complaints against any public defender who entered an appearance before an appointment. In re Mennemeyer (Missouri Supreme Court January 3, 2017).
  • Accepting a stipulation and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for making improper public comments on her Facebook account about a matter pending in another court and failing to delete public comments about the matter made by her court clerk. In the Matter of Whitmarsh, Determination (New York State Commission on Judicial Conduct December 28, 2016).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct admonished a non-lawyer judge for circulating a designating petition for another candidate for elective office and improperly attesting to the signatures on 2 other designating petitions. In the Matter of Rumenapp, Determination (New York State Commission on Judicial Conduct December 30, 2016).
  • Accepting the recommendation of the Judicial Standards Commission based on stipulations, the North Carolina Supreme Court publicly reprimanded a judge for (1) failing to report income from extra-judicial sources and (2) presiding over a court session in which criminal charges for which he was the complaining witness were on the calendar and agreeing to dismiss the charges after the defendant paid him $3,000 cash in his chambers as restitution. In re Mack (North Carolina Supreme Court December 20, 2016).
  • Accepting the sanction recommended by the Board of Professional Conduct based on stipulations of fact and misconduct, the Ohio Supreme Court suspended a judge for 1 year for contacting a landlord on behalf of a tenant; the Court stayed the suspension on the condition that the judge commit no further misconduct. Disciplinary Counsel v. Elum (Ohio Supreme Court December 21, 2016).
  • The Utah Supreme Court approved implementation of the Judicial Conduct Commission’s order of reprimand, based on a stipulation, of a judge for serving as president of the OCA-Asian Pacific American Advocates. In re Kwan, Order (Utah Supreme Court November 4, 2016) .

Inappropriate e-mails in Pennsylvania:  Top judicial ethics and discipline stories of 2016

Posted on by

In November 2016, the Pennsylvania Attorney General released a report on an investigation of e-mails exchanged among prosecutors, judges, and others involved in the criminal justice system from 2008 to 2015.  Investigators used a computer program and a list of terms related to race, religion, sex, profanity, and other content to search more than 6.4 million documents found on the attorney general’s servers.  Although, as the Attorney General stated, nothing in the e-mails suggested there were “ex parte communications between members of the judiciary and OAG employees about cases or matters affecting the administration of justice,” investigators did find 11,930 inappropriate e-mails and classified 38 individuals as high-volume senders of inappropriate e-mails, including 8 senior government officials, 2 supreme court justices, and 3 judges.  Those 5 judicial officials are not identified by name in the report, but the Attorney General stated that it had referred them to the Judicial Conduct Board.

When the report was released, Justice Michael Eakin had already resigned after the Board filed a complaint alleging that he sent offensive e-mails to and received offensive e-mails from other Pennsylvania judges and attorneys, particularly defense attorneys and employees of the office of attorney general.  Based on stipulations of fact in lieu of trial, in March, the Pennsylvania Court of Judicial Discipline fined the now-former justice $50,000 for participating in the exchange of e-mails “with their imagery of sexism, racism, and bigotry” that displayed “arrogance and the belief that an individual is better than his or her peers,” which was “antithetical to the privilege of holding public office, where the charge is to serve, not demean, our citizens.”  In re Eakin, Opinion (Pennsylvania Court of Judicial Discipline March 24, 2016).  For previous posts on the case, see here and here.   In late 2014, Supreme Justice Seamus McCaffery had retired while the Board was investigating allegations against him, including allegations he had exchanged hundreds of sexually explicit e-mails with a member or members of the Office of Attorney General.

In a press release in response to the Attorney General’s report, the Board stated that, “Consistent with its obligations under the Pennsylvania Constitution, including its obligations of confidentiality, the Board will conduct an independent examination” of the e-mails sent by members of the Pennsylvania judiciary found on the servers of the Office of Attorney General, “in conformity with its recently announced ‘Statement of Policy Regarding Electronic Communications’ and will take any and all steps necessary to preserve the integrity of the judiciary.”  The Board had adopted the statement of policy earlier in November, noting it had received questions from “many judicial officers at all levels of Pennsylvania’s judiciary . . . relating to the Board’s investigation of alleged judicial misconduct related to the use of electronic communications.”

The policy defines, among other terms, “electronic communications,” “inappropriate,” and “misconduct perpetuated by electronic communications.”  For example, “inappropriate” is defined as:

Material that is offensive to a viewer of ordinary and reasonable sensibilities.  The term includes, but is not limited to, material that constitutes:  legal pornography, sexually-suggestive content, including suggestive depictions of nudity short of pornography; stereotypical depictions of gender, including misogynistic material and material that relates to domestic violence, gender identity or expression, religion, sexual orientation, socioeconomic status, race or ethnicity.

The Board explained that it will consider “the degree of the judge’s knowledge of and participation in electronic communications containing inappropriate or illegal content or misconduct perpetrated by electronic communications, and the judge’s response,” the frequency of the communications, the “degree of offensiveness of the electronic communications to a viewer of ordinary and reasonable sensibilities,” the “nature of the illegality of any electronic communications,” the “nature of any misconduct perpetrated by electronic communication,” and the potential effects on the independence, integrity, and impartiality of the judiciary, and the public’s confidence in the judiciary.  With respect to the judge’s involvement in the communications, the Board will consider:

  1. Whether the judge was a sender, forwarder, or had exchanged, i.e., sent and received, and/or forwarded, illegal or inappropriate electronic communications, or misconduct perpetrated by electronic communications;
  2. Whether the judge was only a recipient of illegal or inappropriate electronic communications, or misconduct perpetrated by electronic communications;
  3. Giving weight to the relevant facts and circumstances in a particular case, whether the judge took any reasonable steps in response to receiving inappropriate or illegal electronic communications or misconduct perpetrated by electronic communications or misconduct perpetrated by electronic communications; and
  4. If necessary, whether the judge reported inappropriate or illegal electronic communications or misconduct perpetrated by electronic communication to any appropriate criminal, investigatory, or administrative authority.

The Board explained that the policy only provided guidance, did “not have the force and effect of law,” and was not binding on members of the judiciary or the Board.

Previous posts on the Top judicial ethics and discipline stories of 2016

Corruption and cooperation in Arkansas
Top judicial ethics and discipline stories of 2016

Throwback Thursday

Posted on by

20 years ago this month:

  • The Arkansas Judicial Discipline and Disability Commission publicly admonished a judge who had presided in a disbarment case without disclosing that he had represented the attorney in a federal criminal trial 10 years earlier and had argued on the attorney’s behalf 2 years later before a federal judge. Letter to Neal (Arkansas Judicial Discipline and Disability Commission January 27, 1997).
  • The Arkansas Judicial Discipline and Disability Commission publicly admonished a part-time judge who, after authorizing an arrest based on an affidavit filed by a man charging battery, began to represent the man in his claim for damages against the defendant and, after beginning to represent the man, accepted the defendant’s plea of guilty and ordered the defendant to appear and show cause why he should not be held in contempt for his failure to appear in court. Letter to Patterson (Arkansas Judicial Discipline and Disability Commission January 27, 1997).
  • The California Commission on Judicial Performance publicly admonished a judge who took no action in a case for over 14 months after receiving a proposed judgement and objections and did not issue a final decision for over 10 months after a hearing. Public Admonishment of Chapin (California Commission on Judicial Performance January 22, 1997).
  • The California Commission on Judicial Performance publicly admonished a judge who used profanity, made a vulgar gesture, and threatened retaliation toward counsel in a case. Public Admonishment of Williams (California Commission on Judicial Performance January 22, 1997).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court censured a former part-time judge for presiding in 20 criminal cases in which attorneys with whom he was associated in the practice of law represented the defendant and for frequently engaging in financial and business dealings with lawyers likely to come before him. In re Lemoine, 686 So. 2d 837 (Louisiana 1997).
  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge who had stopped a vehicle at gunpoint on his neighbor’s property, ordered the occupants to get out and lie on the ground, detained them, and made threats of serious bodily harm and possible death. Commission on Judicial Performance v. Whitten, 687 So. 2d 744 (Mississippi 1997).
  • Adopting the findings of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court privately reprimanded a judge for hugging and kissing a subordinate employee, but dismissed charges of sexual harassment made by that employee and 2 others; the Court announced the private reprimand publicly because of the public interest in the matter reflected by media coverage. In the Matter of Brenner, 687 A.2d 725 (New Jersey 1997).
  • The New York State Commission on Judicial Conduct publicly admonished a judge who had exhibited improper demeanor and refused to permit attorneys to participate in small claims proceedings. In the Matter of Rice, Determination (New York State Commission on Judicial Conduct January 31, 1997).
  • The Arizona Supreme Court censured a former judge who had acted as a consultant and negotiator representing a company owned by a professional tennis player in contract negotiations with Nike. In the Matter of Fleischman, 933 P.2d 563 (Arizona 1997).
  • The South Carolina Supreme Court publicly reprimanded a former judge who had been charged with indecent exposure after regularly engaging in sexual activity with a woman in a parking lot in his car, which had the license plate “Summary Court 8N.” In the Matter of Fournier, 480 S.E.2d 738 (South Carolina 1997).

Corruption and cooperation in Arkansas:  Top judicial ethics and discipline stories of 2016

Posted on by

By the time a federal grand jury indicted Joseph Boeckmann in October, he had been off the bench for almost a year and out of office for over 6 months as a result of proceedings by the Arkansas Judicial Discipline and Disability Commission.

In a statement of allegations filed in November 2015, the Commission had alleged that, in addition to other misconduct, Boeckmann had used his judicial status and influence “to insinuate compliance” from young Caucasian male litigants with “his personal and sexual desires.”  (Boeckmann agreed not to sit while the allegations were pending, and the Arkansas Supreme Court appointed a judge to handle his docket.)  According to the statement, Boeckmann offered certain defendants in traffic or criminal citation cases community service or “substitutionary sentences;” he would instruct the men to pick up cans along roads or at his home and photograph them as they were bending over, keeping “these photographs of male litigants’ buttocks in his home for his own personal use.”  In addition, the statement alleged that, when some of the defendants went to his home or office as directed to perform community service, he solicited sexual relations with them in exchange for reductions of or dismissals of their court fines and costs.  In his answer, the judge denied the allegations.

More victims came forward after the Commission’s allegations were reported in the news media, and the Commission added more examples of the judge appearing “to act as employer, financer, and, on occasion, intimate partner of some defendants appearing before him” in an amended statement filed in January 2016.  Some of the allegations related to payments by Boeckmann to defendants who appeared before him and telephone communications by him to witnesses during the Commission investigation.  Boeckmann also denied the allegations in the amended statement.

In early May, the Commission notified Boeckmann’s attorney that it might file a second amended statement of allegations based on additional evidence, including thousands of photographs and additional witnesses who had provided statements regarding sexual misconduct by Boeckmann when he was a private attorney and a deputy prosecuting attorney.  On May 9, the Commission announced Boeckmann’s resignation and permanent removal and concluded its case against him.  In its press release, the Commission thanked several state agencies that had assisted in its investigation, including the cyber-crimes unit of the Arkansas Attorney General and the state police.

In its October press release announcing the indictment of Boeckmann, the U.S. Department of Justice noted that the Commission and the state police had assisted the FBI in its investigation.  The indictment charges that Boeckmann used his official position “to obtain personal services, sexual contact, and the opportunity to view and to photograph in compromising positions persons who appeared before him in traffic and misdemeanor criminal cases in exchange for dismissing the cases.”  The indictment is based on the testimony of 9 men who were 16 to 22 at the time they appeared before Boeckmann from 2009 to 2015.  There are 8 counts of wire fraud, 2 counts of witness tampering, 1 count of federal program bribery, and 10 counts of violating the Travel Act.

In its “Best and Worst of 2016” issue, the Arkansas Times named Boeckmann as “Best disgraced” and named Commission Deputy Executive Director Emily White as “Best hero” for her “dogged, months-long investigation into the Boeckmann case [that] put an end to what Boeckmann’s alleged victims say was decades of the powerful former judge and prosecutor preying on vulnerable victims.”

At the request of the Commission, the Arkansas Governor proclaimed December 9, 2016 Arkansas Anti-Corruption Day.  In a press release, the Commission explained that it had requested the proclamation “to remind our citizens that they have watchdog agencies they can turn to and that each one of us can play a role in making sure that our state and local government is free from corruption.”

 The Commission thanked other agencies again on the first day of business in 2017 when it announced the removal of Judge Timothy Parker based on his resignation on the last day of 2016.  The press release cited the county sheriff, the police chief, the state attorney general for the cyber-crimes unit, the prosecutor coordinator’s office, the special prosecuting attorney, and many court staff, public officials, legal professionals, and witnesses.  The judge admitted allegations that he performed probable cause determinations in cases involving friends or former clients and released them on their own recognizance.  However, the judge contested other allegations on which he would have faced disciplinary charges if his resignation had not rendered them moot.  The other allegations included that he set bond for women or their family members or friends in exchange for sexual favors and traded cash and prescription pills for sexual favors or money.

Top judicial ethics and discipline stories of 2016

Posted on by

This post begins a series on the top judicial ethics and discipline stories of 2016, following up on a preliminary list published mid-year

One of the top stories, already described in the mid-year list, was the U.S. Supreme Court decision on disqualification of a state supreme court justice who had served as district attorney in a death penalty case and then participated in a review of a post-conviction decision years later.  Click here for a previous post on the case.

The top stories series will include up-dates on other stories identified in the mid-year list such as the resignation of an Arkansas judge charged with sexual misconduct, the Pennsylvania e-mail scandal, and federal court decisions about restrictions on judicial campaign conduct.  A high profile case was resolved several weeks ago when the California Commission on Judicial Performance closed its investigation of a judge for the sentence he gave a student athlete in a sexual assault case that prompted thousands of complaints.  Click here for the recent post on that case.  High profile stories that developed in the second half of 2016 and will be discussed in subsequent posts include the Kentucky judge who criticized the district attorney on Facebook and elsewhere and the Georgia constitutional amendment eliminating the Judicial Qualifications Commission in its current form and delegating the formation of a new Commission to the state legislature.  There will also be a post on “what they said that got them in trouble” in the second half of 2016, up-dating a previous post for the first half of the year.  The last post in the series will be a count of the public judicial discipline cases in 2016.

One of the continuing “hot button” topics in judicial ethics and discipline is same-sex marriage.  There are 3 cases still pending on that issue at the end of the year:

  • The Wyoming Supreme Court heard oral argument in April on a recommendation by the Commission on Judicial Conduct and Ethics that a judge be removed from office for stating that she is unwilling to perform same-sex marriages.
  • The Oregon Supreme Court will hear oral argument in June on the recommendation of the Commission on Judicial Fitness and Disability that a judge be removed from office on numerous grounds including that he instructed his staff to lie to same-sex couples and say he was not available to perform their wedding ceremonies. One of the other grounds is that the judge had unsolicited, often unwanted, personal, and completely inappropriate out-of-court contacts with a former Navy SEAL under supervision in the judge’s veterans court because the judge was “enamored with” his notoriety and military accomplishments, and the judge facilitated the handling of a firearm by the former Navy SEAL, who was a convicted felon.  State criminal charges have now also been filed against the judge for the firearms offense.  The other grounds for the removal recommendation in the judicial discipline case include:  (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) 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) 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; (3) the judge made public statements to create the impression that the Commission proceeding was solely regarding his refusal to conduct same-sex marriages to deflect attention away from his other misconduct; and (4) the judge engaged in a pattern of untruthfulness during the Commission proceedings.
  • Chief Justice Roy Moore has filed a notice of appeal from the decision of the Court of the Judiciary that he be suspended without pay until the end of his term for directing or appearing to direct all Alabama probate judges to follow Alabama’s same-sex marriage ban in complete disregard of a federal court injunction. Click here for a previous post.  The other members of the Court recused themselves from the appeal, and a panel of 7 retired district or circuit court judges chosen at random will sit as a substitute Alabama Supreme Court.