Monthly Archives: February 2017

A sampling of recent judicial ethics advisory opinions

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  • In an order for protection proceeding, a judge may, without advance notice to the parties, access electronic court records to determine whether there are orders in other cases involving the petitioner or respondent that could affect the decision, but, after issuing the ex parte order, the judge should give the parties an opportunity to be heard on the propriety of taking judicial notice of a previous order. Minnesota Advisory Opinion 2016-2.
  • If only pro se parties are involved, a judge may question a witness regarding the statutory factors in an uncontested divorce or question a witness in a child custody matter regarding the factors necessary to the determination of the best interests of the child. North Carolina Advisory Opinion 2016-1.
  • A supreme court justice is not disqualified from an appeal of a district court decision because a relative within the third degree presided over an interim review by the court of appeals, but disclosure of the relationship on the record is prudent and appropriate. Nevada Advisory Opinion JE2016-4.
  • Except when a user transmits video or audio or a link to videotaped testimony, the use of Twitter, microblogging, or other electronic means of instant communication is not broadcasting for purposes of the rule regarding broadcasting from the courtroom, but a judge may impose reasonable restrictions on how and when electronic communication tools may be used during courtroom proceedings. Indiana Advisory Opinion 1-2017.
  • A court should not place artwork for sale in the courthouse or post advertisements for local restaurants or other vendors. South Carolina Advisory Opinion 2-2017.
  • A judge may not attend a free training seminar on landlord/tenant law that is sponsored and taught by attorneys who almost exclusively represent landlords in eviction cases and that is designed for judges who regularly hear eviction cases. Arizona Advisory Opinion 2016-4.
  • A judge who sometimes presides in criminal cases involving Native American defendants may not attend a seminar on “Human Trafficking in Indian Country” co-sponsored by the Department of Justice and the FBI that will focus on effective prosecution. New York Advisory Opinion 2017-4.
  • A judge may apply to the governor for a seat on the constitution revision commission and, if appointed, serve as a gubernatorial appointee. Florida Advisory Opinion 2016-19.
  • A judicial officer may administer the oath of office at a ceremony to swear in a public official, including a newly elected district attorney. California Oral Advice Summary 2016-18.
  • A judicial officer may serve on the board of a non-profit entity that is building an integrated network of services and advocating for policies that improve the lives of children and their families even if the organization monitors legislation and engages in child-related advocacy and legislative efforts. Colorado Advisory Opinion 2016-2.
  • A circuit court judge may not be a member of a domestic violence council that discusses and engages in legislative reform efforts related to the prevention, treatment, and punishment of domestic violence and stalking. Wyoming Advisory Opinion 2016-4.
  • A judge may publicly advocate for a change in the penal law that would create a new standard in a particular class of criminal cases and write to executive and legislative bodies and/or officials and other potentially interested parties; the judge need not inform local prosecutors or defense counsel of these activities. New York Advisory Opinion 2016-135.
  • A county magistrates’ association may, as requested by the bar association and the county executive, comment on the bar association’s proposed assigned counsel plan before it is implemented by the county. New York Advisory Opinion 2016-145.
  • A judge may circulate a petition to force a referendum on a proposed sale of a parcel of land owned by the local school district. New York Advisory Opinion 2016-169.
  • A judge may establish a mentoring program to promote diversity in the judiciary that will pair sitting or retired judges with attorneys who wish to seek judicial office. The mentor judge may comment on an attorney-protégé’s application to a judicial screening panel and may share her experience in the elective or appointive process.  The mentor judge may not contact political party leaders or others on the protégé’s behalf, must avoid any perception of involvement in impermissible political activity both before and after the protégé publicly declares his candidacy for election, and must not advise her protégé on campaign strategy, campaign literature, or other outreach to voters or political leaders.  New York Advisory Opinion 2016-151.
  • A judge may not serve on a bar association committee hosting a golf tournament that is raising funds for the Guardian Ad Litem Foundation, which is a litigant in every dependency case that comes before the judge, but may attend the event and assist with organizational, non-fund-raising tasks such as setting up sponsor signs and the silent auction, serving food and beverages, and taking pictures. Florida Advisory Opinion 2016-20.
  • A judge whose minor child is participating in a charitable fund-raiser may personally solicit funds from family members and fellow judges not subject to his supervision, provided he does not use or invoke his judicial title or status in doing so, but may not personally solicit funds from friends or neighbors. A judge may, in his capacity as a parent, accompany his minor child as the child solicits funds from friends or neighbors, but may not otherwise assist or participate in the solicitation.  New York Advisory Opinion 2016-153.
  • A judge may participate as a player in a “Casino Night” fund-raiser at her child’s pre-school if the event is lawful. New York Advisory Opinion 2016-158.
  • A judge may be a member of an all-female volunteer emergency medical technician service that responds to calls from women in a particular faith community and provides limited free health care services in the community but may not serve as director if that role requires her to personally engage in fund-raising and/or recruitment. New York Advisory Opinion 2016-179.
  • A judge may not testify as a character witness in a disbarred attorney’s reinstatement proceeding. Massachusetts Advisory Letter Opinion 2016-13.
  • A judge may teach a fitness class for a not-for-profit educational, charitable, or civic organization and accept the standard per-session compensation. New York Advisory Opinion 2016-117.
  • A judge may attend a free, non-partisan “meet the candidates” event, organized by a non-political community residents’ association when all candidates for a particular office will attend, speak, and answer questions. New York Advisory Opinion 2016-149.

 

Throwback Thursday

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5 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for cancelling the court reporter scheduled to take down proceedings before another judge. Public Admonishment of Edwards (California Commission on Judicial Performance February 7, 2012).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly reprimanded a judge for, in an ex parte communication, directing the prosecutor to ask certain questions of state witnesses concerning issues relevant to the state’s case and critical to the defense and for failing to disqualify himself from the case. In the Matter of McClosky, Order (New Jersey Supreme Court February 24, 2012).
  • The Tennessee Court of the Judiciary publicly reprimanded a judge for, while he was on military duty in Germany, allowing an individual not authorized by the Tennessee Supreme Court to sit as a substitute judge on several occasions and attempting to set bonds by e-mail. Letter to Bell (Tennessee Court of the Judiciary February 27, 2012).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for interceding with the prosecutor, another judge, and law enforcement officials on behalf of the daughter of the woman with whom he was living after she was indicted on burglary charges. Public Admonition of Nicholds (Texas State Commission on Judicial Conduct February 8, 2012).

Public outreach on the rule of law and judicial independence

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The Massachusetts Supreme Judicial Court Committee on Judicial Ethics issued a letter opinion on public outreach in support of the rule of law and judicial independence in response to an inquiry from a judge who wishes to speak to community groups under the auspices of a court-sponsored public outreach program.   Massachusetts Advisory Opinion 2017-1.  The judge had asked “(1) whether judges may reassure the public, including groups composed of immigrants or religious minorities, that the courts of Massachusetts are and will remain committed to the rule of law, including the protection of the rights of all persons to due process, equal protection of the laws, equal access to the courts, and fair and respectful treatment; and (2) whether judges may respond to statements made by public officials and others that appear to reflect misconceptions about the role of an independent judiciary in our system of government or manifest disrespect for the rule of law.”

The committee noted that the code “places parameters around judges’ remarks, even on permitted subjects such as defending the rule of law or speaking about the administration of justice” and that, “[i]n deciding whether it is appropriate to accept any particular speaking engagement, judges must consider the overall context in which the remarks would be made.”  The committee also emphasized that “[a]n underlying premise of the Code is that a judge’s fair and impartial decisions are the most important defense against threats to judicial independence and the rule of law.”

The committee advised that, subject to the parameters of the code:

[J]udges may reach out to individuals, and associations of individuals, who may feel vulnerable due to their race, religion, national origin, citizenship status, or other attribute(s), and remind them that the Massachusetts courts are and will remain committed to upholding the right of every person to obtain equal justice before an independent and impartial judge.

The opinion also stated that, “in prepared or extemporaneous remarks,” subject to the parameters of the code, judges may respond to comments by public officials or others that appear to reflect misconceptions about the role of an independent judiciary or manifest disrespect for the rule of law.  The committee explained:

It is proper for a judge to dispel misconceptions about the role of an independent judiciary and to emphasize the importance of respect for the rule of law, so long as the judge’s remarks preserve the dignity of judicial office, would not lead a reasonable person to question the judge’s ability to impartially administer the law, and avoid the implication the judge is influenced by, or appears to be influenced by, partisan or political interests.

 

More than mere mistakes

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Noting increasing attention “on how fines, fees and bail practices disproportionately impact economically disadvantaged communities,” the National Task Force on Fines, Fees and Bail Practices recently released resources to assist state courts address the issue.  (The Task Force was formed in early 2016 by the Conference of Chief Justices and the Conference of State Court Administrators.)  The resources include a bench card that judges can refer to in the courtroom to ensure no one is jailed for failing to pay court-ordered financial obligations unless the constitutionally-mandated findings regarding willfulness have been made and due process has been followed.  The card also lists alternative sanctions to imprisonment that courts should consider when someone is unable to pay.

Recently in Alabama, two judge were sanctioned for their conduct related to the collection of fines and fees.

Based on an agreement and stipulation, the Alabama Court of the Judiciary censured a judge who said from the bench one day:

For your consideration, there’s a blood drive outside and if you do not have any money and you don’t want to go to jail, as an option to pay it, you can give blood today.  If you do not have any money, go out there and give blood and bring in a receipt indicating that you gave blood.  Consider that as a discount rather than putting you in jail, if you do not have any money.  So, if you do not have any money and you don’t want to go to jail, consider giving blood today and bring your receipt back or the sheriff has enough handcuffs for those who do not have money.

In the Matter of Wiggins, Final judgment (Alabama Court of the Judiciary January 21, 2016).  The judge made the statement while presiding over a docket designed to recover court-ordered costs, fees, fines, and restitution that had previously been imposed.  Approximately 47 individuals donated blood that day at the mobile blood bank; 41 were defendants on the judge’s docket.

The second discipline case addressed a systemic pattern of unlawful incarcerations.

Adopting a disposition based on an agreement and stipulation, the Alabama Court of the Judiciary suspended a judge for 11 months without pay for jailing offenders for non-payment of fines and costs without inquiring into the reasons for non-payment as clearly required by 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).  Stating that it found the allegations “deeply troubling,” the Court noted the judge’s acceptance of responsibility; his apparent efforts, beginning in 2014, to remedy problems that gave rise to the proceeding; his cooperation in resolving the complaint; and the expiration of his current term as presiding judge approximately 4 months after he completes his suspension.

The judge has been presiding judge of the municipal court of the City of Montgomery since 2002.  Montgomery was sued in 3 federal lawsuits alleging that the city essentially operated a “debtors’ prison” that incarcerated people too poor to pay financial obligations without providing them due process.  The suits, with the municipal court judges as defendants in their official capacity, were settled in late 2014 in a joint agreement in which the city agreed to broad protections for defendants and to specific procedures the judges were required to follow.

To exemplify the court’s pattern and practice, the Judicial Inquiry Commission’s complaint in the discipline case included detailed descriptions of the cases of 12 individuals, their struggles to pay the court-imposed obligations, and the lost jobs and other hardships they suffered when they were unlawfully incarcerated by the judge.  The judge and the Commission stipulated that, on many occasions prior to 2014, the judge had incarcerated traffic offenders for failure to pay fines and costs without making a sufficient inquiry into the offender’s financial, employment, and family standing to determine if the offender was able to pay, without determining the reason an offender failed to pay, and/or without considering alternatives as required by the Alabama Rules of Criminal Procedure.  On numerous occasions, the judge also failed to allow an offender to fully explain the reason for his or her failure or inability to pay.

The Alabama Commission’s complaint described how the judge’s conduct implicated “far more than mere mistakes of judgment honestly arrived at or the mere erroneous exercise of discretionary power.”

Though a well-experienced judge, his erroneous legal rulings were consistently repeated.  He consistently ruled without first undergoing a full and fair hearing; he consistently made findings without sufficient evidentiary support; he consistently ruled without ensuring that important procedural requirements were in place to protect fundamental constitutional rights; and he consistently made legal rulings without first making specific determinations and findings.  Judge Hayes is not guilty of mere legal error, as his conduct was contrary to clear and determined law about which there should be no confusion or question.  Furthermore, under the circumstances presented, Judge Hayes’s and the Court’s failure to maintain essential records represents more than poor record keeping or administrative neglect; it is indicative of bad faith.  That his practices and the municipal-court’s practices over which he presides evidence bad faith is underscored by the fact that Judge Hayes did not begin to review the Court’s official procedure and policy regarding incarceration for failure to pay until the federal preliminary injunction and the distinct threat of additional federal action.

Throwback Thursday

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10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a court commissioner for becoming angry with a party during a hearing, arguing with him from the bench in a condescending and accusatory manner, and raising her voice in a manner inconsistent with the obligation to be patient, dignified, and courteous. Parks, Order (Arizona Commission on Judicial Conduct February 20, 2007).
  • The Louisiana Supreme Court suspended a former judge from the practice of law for 1 year and 1 day for (1) while a judge, frequently issuing orders and directives, both verbal and written, instructing the sheriff’s office to perform actions when there were no cases pending, no motions filed, and no hearings set and (2) sending a letter on his official court stationery to the chief disciplinary counsel in support of a disbarred lawyer. In re Whitaker, 948 So.2d 1067 (Louisiana 2007).
  • The Nevada Commission on Judicial Discipline publicly reprimanded a judge for directing a non-litigant to accompany his bailiff to “the back” to contact a defendant to tell him she would go to jail if he did not “get his butt down here,” which led to the bailiff handcuffing the non-litigant based on the judge’s “normal” way of doing things. In the Matter of Assad, Findings of Fact, Conclusions of Law, Imposition of Discipline (Nevada Commission on Judicial Discipline February 8, 2007).
  • Adopting the presentment of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly censured a former judge for a pattern of improper conduct on 1 date that included pursuing a defendant who had fled from the courtroom, accusing a defendant of being a liar at a pre-trial conference, dismissing charges only after ascertaining that a defendant’s attorney had been paid, and making sarcastic remarks on the bench about a cell phone policy set by the chief judge. In the Matter of Maisto (New Jersey Supreme Court February 9, 2007).
  • Granting a petition filed by the Commission on Judicial Standards based on stipulated findings of fact, the New Mexico Supreme Court publicly reprimanded a judge for endorsing a mayor for re-election and authorizing the use of his name in an endorsement that was published in the local newspaper. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007).
  • Granting the petition of the Judicial Standards Commission, the New Mexico Supreme Court publicly reprimanded a judge and fined him $500 for improperly delegating his judicial duties to his secretary. Inquiry Concerning Griego, Order (New Mexico Supreme Court February 8, 2007).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge who made public statements to the town board that explicitly linked his discretionary ability to set fines to a proposed salary increase for himself, his co-justice, and court clerk. In the Matter of Tauscher, Determination (New York State Commission on Judicial Conduct February 5, 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge who, while running as a candidate for town justice, continued to serve as chair of the local Republican Party, participated in the political campaign of another judicial candidate, and publicly endorsed other candidates. In the Matter of King, Determination (New York State Commission on Judicial Conduct February 14, 2007).
  • The New York State Commission on Judicial Conduct publicly censured a judge who repeatedly made inconsistent, evasive, and misleading statements during the Commission’s investigation of her involvement in a defense fund established for a friend against whom the Commission had filed charges. In the Matter of Doyle, Determination (New York State Commission on Judicial Conduct February 26, 2007).
  • Approving a consent to censure based on stipulated facts, the Oregon Supreme Court publicly censured a judge for sitting on a case involving a defendant charged with spitting on a guard at a prison where his brother is a guard and asking defense counsel not to disclose his brother’s employment to the defendant. Inquiry Concerning Mendiguren, 154 P.3d 720 (Oregon 2007).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former part-time judge for inappropriate comments to a defendant and calling another magistrate about the case. In the Matter of Bethune, 642 S.E.2d 575 (South Carolina 2007).
  • Adopting the findings and conclusions of law of a judicial conduct panel based on a stipulation, the Wisconsin Supreme Court publicly reprimanded a former judge for presiding over 2 cases in which a family member was a defendant, presiding over a case in which the defendant was a client he was representing in his private practice, and identifying himself as a municipal judge in an advertisement for his private law practice in the Yellow Pages. In the Matter of Laatsch, 727 N.W.2d 488 (Wisconsin 2007).

What they said that got them in trouble in the second half of 2016

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In the courthouse

  • “Has anything good ever come out of drinking other than sex with a pretty girl?” Judge during a criminal sentencing.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016) (censure for this and other statements in the courtroom).
  • “What you’ve done with this young girl, it’s a strange thing, routinely done in Afghanistan where they marry 6-year-old girls. In our society, and in the society of the local tribal communities, supposed to be totally forbidden.”  Judge during a criminal sentencing.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016) (censure for this and other statements in the courtroom).
  • “This was not someone who was, and I hate to use the phrase, ‘asking for it.’ There are girls out there that seem to be temptresses.  And this does not seem to be anything like that.”  Judge during a sentencing for sexual abuse of a 14-year-old girl.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016) (censure for this and other statements in the courtroom).
  • “Frankly, I was a little surprised that you still want him to plead to a sex crime when she is apparently not upset at the whole incident, from her testimony.” Judge to defendant charged with providing alcohol to a 14-year-old girl and then engaging in sexual intercourse and oral sexual conduct with her about possible plea disposition while jury was deliberating.  In the Matter of Hafner, Determination (New York State Commission on Judicial Conduct August 29, 2016) (admonishment).
  • “I’m sorry folks, but I can’t slap her around to make her talk louder.”  Judge during a domestic violence felony assault trial, off the record to the jury when inquiring whether they could hear the victim’s testimony.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016) (censure for this and other statements in the courtroom).
  • “You disobeyed a court order knowing that this was not going to turn out well for the State.” Judge in finding the victim in a domestic violence case in contempt for failing to respond to the prosecution’s subpoena to testify at trial.  Inquiry Concerning Collins, 195 So. 3d 1129 (Florida 2016) (public reprimand).
  • “I’m gonna enforce these oaths and they’re enforceable with a 2-year sentence for perjury. And I’d be the sentencing judge.  I also have a medieval Christianity that says if you violate an oath, you’re going to hell.  You all may not share that, but I’m planning to populate hell.”  Judge in a civil trial with unrepresented litigants.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016) (censure for this and other statements in the courtroom).
  • “If you get busted for this again, I’ll tell you how amusing you won’t find it. Unless you like those young boys at the jail.  I understand they can be very friendly to young boys like you.”  Judge to criminal defendant.  In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016) (reprimand of former judge).
  • “Brilliant, isn’t he? What he’s got doesn’t ever go away.”  Judge about a defendant.  In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016) (reprimand of former judge).
  • “You obviously don’t care about the child as much as we do. I want to protect this child.  You obviously don’t.”  Judge to a pregnant criminal defendant who was receiving methadone treatment.  In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016) (reprimand of former judge).
  • “You should be guilty as charged but [the prosecution is] willing to amend it. You can take it or leave it if you want to have a trial.  I don’t see how you can win it.”  Judge to defendant at an arraignment hearing.  In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016) (reprimand of former judge).
  • “You need counseling badly, because your kids are suffering.  Not because of him [the father].  Because of you.  Because of you.  Because you don’t see the truth in things. . . .  I don’t believe your children are afraid of their father.  I think they’re afraid of you.  If they’re afraid of anybody, it’s you.”  Judge to mother in family court case.  In the Matter of Stacey, Public Reprimand (Minnesota Board on Judicial Standards July 26, 2016) (reprimand for this and related misconduct).
  • “Children don’t dump on their parents. It’s elicited, especially with a nine-year-old.  [B.B.] and his mother are pumping this child for dirt on her mother.  You should be ashamed.  You should be truly ashamed, sir.”  Judge to father in family court case.  In the Matter of Stacey, Public Reprimand (Minnesota Board on Judicial Standards July 26, 2016) (reprimand for this and related misconduct).
  • “He’s exaggerating it. Yeah, terribly.  It’s deplorable.  Do you hear me?  ”  Judge to father in family court case after the father alleged that his ex-wife appeared to have alcohol problems.  In the Matter of Stacey, Public Reprimand (Minnesota Board on Judicial Standards July 26, 2016) (reprimand for this and related misconduct).
  • “Don’t give me any BS about you have no control over the police department …. You can certainly tell a detective or police officer investigating that on the orders of the DA’ s Office, no arrest is to be made until it is authorized by your office.”  Judge threatening to hold an assistant district attorney in contempt, to declare a mistrial with prejudice, and to impose sanctions if a defendant was arrested for threatening a witness before the trial concluded.  In the Matter of Gary, Determination (New York State Commission on Judicial Conduct October 3, 2016) (admonition).
  • “I remember you . . . I recuse myself from your cases . . . you are the gentleman who yelled at the lady who is now my wife.” Judge to attorney in court in an accusatory and aggressive tone.  Castillo, Order (Arizona Commission on Judicial Conduct February 5, 2016) (reprimand).
  • “[Appealing would make you look like an] idiot and a baby” and would be “pathetic,” “dumb,” “silly,” and a waste of court resources. Former hearing master to assistant district attorney during a hearing after refusing to issue a bench warrant for an errant parent.  In the Matter of Beller, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline August 23, 2016) (reprimand).
  • “And if a prosecutor, someone with the AG’s office, wants to put that person’s case on their disingenuous list of cases that are pending sentencing, that’s a lie from the pit of hell, and that is a fraud on the Fourth [District].” Judge in court about a list of cases that was the subject of a motion to disqualify.  Inquiry re Contini (Florida Supreme Court December 1, 2016) (reprimand for this and related misconduct).
  • “I’ll be right back. Just continue without me.”  And “I’ve never done that before.  It felt good.” Judge before walking out of the courtroom and then after returning.  In the Matter of Stacey, Public Reprimand (Minnesota Board on Judicial Standards July 26, 2016) (reprimand for this and related misconduct).
  • “Do whatever you want. This is nothing but a cat fight, slinging mud.  I am no longer participating in it.  Have at it.”  Judge to attorneys in family court case.  In the Matter of Stacey, Public Reprimand (Minnesota Board on Judicial Standards July 26, 2016) (reprimand for this and related misconduct).
  • “They don’t indict people.  They leave them sit in the jail forever.  For whatever reason, I don’t have any clue.”  Judge in angry tone, criticizing district attorney during case for failing to move cases expeditiously.  In the Matter of Hafner, Determination (New York State Commission on Judicial Conduct August 29, 2016) (admonishment).
  • “If I talk percentages, the answer would be no. We all know that.  She’s very rarely there.”   Judge when a defendant asked if the other judge was available.  In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016) (reprimand of former judge).
  • “Have a stroke and die.” Judge to co-judge who was trying to stop him from having an intern arrested for contempt.  In the Matter of Simon, 63 N.E.3d 1136 (New York 2016) (removal for this and other misconduct).

Abusing the prestige of office

  • “I am a judge in this county.”  Judge to police officer who stopped him for speeding and arrested him on suspicion of driving while intoxicated.  Public Admonition of Glicker and Order of Additional Education (Texas State Commission on Judicial Conduct July 12, 2016).
  • “It’s okay, I’m a judge.” Judge while attempting to enter a county-owned building in possession of a firearm, in violation of a local law.  In the Matter of Moskos, Determination (New York State Commission on Judicial Conduct October 3, 2016) (admonishment).
  • “Eddie Elum from the Massillon Court.” Judge in a phone call urging a landlady to accept a tenant’s late rent payment.  Disciplinary Counsel v. Elum (Ohio Supreme Court December 21, 2016) (1-year suspension, stayed).
  • “I personally echo the ringing endorsements contained within the many exhibits attached hereto and respectfully request that USF live up to its National Rating as the Second Most Veteran Friendly College in America.” Judge in letter urging that a defendant over whose case he was presiding in veteran’s court be re-admitted in the University of South Florida.  Inquiry Concerning Holder, 195 So. 3d 1133 (Florida 2016) (public reprimand).
  • “Will you just take me home and forget about the drinking and driving?” Judge to police officer who stopped him for operating while intoxicated.  In the Matter of Garrard, 56 N.E.3d 24 (Indiana 2016) (public reprimand).
  • “I am incidentally in possession of a hard copy of an email from [an attorney] of your firm to [York County Probate] Register Lovejoy in which [the attorney] snidely referred to me as ‘his eminence.’  If that was not meant to be pejorative or disrespectful of me as a jurist and an ethical violation, I request [the attorney’s] full explanation within 10 days from the date of this letter.”  Judge in a letter to counsel regarding a court proceeding in which he was a party.  In the Matter of Nadeau, 144 A.3d 1161 (Maine 2016) (30-day suspension without pay).

False statements

  • “I presently occupy, or intend to occupy, the subject property as my principal residence . . . .” Judge on a mortgage re-financial application even though she resided at a different property.  In re Santiago, Order (Illinois Courts Commission August 18, 2016) (public censure).
  • “Cannon doesn’t think teenage drinking is serious. What else does he think isn’t serious?”  Judicial candidate’s misleading ad criticizing his opponent’s concurring opinion in a court of appeals decision holding that police needed to obtain a warrant before entering a home and searching a party where there was underage drinking.    Disciplinary Counsel v. Tamburrino (Ohio Supreme Court December 7, 2016) (1-year suspension of law license with 6 months stayed).

What they said that got them in trouble in the first half of 2016

Throwback Thursday

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20 years ago this month:

  • Affirming the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge and fined him $1500 for releasing 4 prisoners after ex parte communications with individuals suggesting or requesting their release. Commission on Judicial Performance v. Russell, 691 So. 2d 929 (Mississippi 1997).
  • The New York State Commission on Judicial Conduct publicly censured a judge who had presided in court while under the influence of alcohol. In the Matter of Giles, Determination (New York State Commission on Judicial Conduct February 4, 1997).
  • Based on an agreed statement of facts and a joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge who had requested a lenient sentence for a defendant he knew personally. In the Matter of Engle, Determination (New York State Commission on Judicial Conduct February 4, 1997).

Changes in the Georgia Judicial Qualifications Commission:  Top judicial ethics and discipline stories of 2016

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In November 2016, Georgia voters approved a constitutional amendment that abolished the extant Judicial Qualifications Commission in favor of a commission with a composition, manner of appointment, and governance to be determined in future legislation by the General Assembly.  As widely reported, the bill to put the measure on the ballot was co-sponsored by a legislator who had been a judge until he resigned while under investigation by the Commission after a female attorney in a divorce case alleged in a motion to disqualify that he had sexually harassed her; the comments, recounted in a hearing on the motion, were too graphic to be repeated on air or in an on-line article, according to a TV station.  Legislators defended the measure, however, by pointing to complaints of unfair treatment by two of the hundreds of judges who have had complaints filed against them with the Commission.

Prior to the amendment, there were 7 members on the Commission:  2 judges appointed by the Georgia Supreme Court, 3 attorneys appointed by the State Bar, and 2 public members appointed by the Governor.  Under the implementing legislation, the Bar’s appointment authority was eliminated.  (According to news reports, the Speaker of the House has had a bar complaint pending against him for years and threatened to pursue legislation to eliminate mandatory Bar membership if the Bar campaigned against the constitutional amendment, which it decided not to do.)  On the newly constituted commission, there would be 3 attorney members, 1 each appointed by the Speaker of the House and the President of the Senate from lists of nominees by the Bar, and 1 appointed by the Governor to serve as chair.  The Supreme Court would appoint 2 judge members.  The Speaker and the President would appoint 1 citizen member.

That legislation also drastically increased the secrecy of the Commission, making proceedings confidential through the formal charges, hearing, and recommendation stages and informing the public only if the Georgia Supreme Court decided to issue a public reprimand or censure or to suspend, retire, or remove the judge.  Prior to the amendment, the Commission’s proceedings became public at the filing of formal charges, which is also the rule in 26 states with an additional 6 states opening up after the judge files an answer to the charges and an additional 2 making the hearing public.  The level of confidentiality adopted for the new Georgia commission seems inconsistent with the legislators’ claims that more accountability was the goal of the amendment; the less public a commission’s actions, the less likely any unfair treatment of judges or by judges will be disclosed.

However, in late January, new legislation was introduced called “The Judicial Qualifications Commission Improvement Act of 2017.”  Among the changes if it is enacted would be a reversion to the former confidentiality rule, with all pleadings and information in disciplinary matters subject to disclosure to the public and all hearings and proceedings open and available to the public after the filing and service of formal charges.

The new bill also proposes a 10-member commission, divided into a 7-member investigative panel and a 3-member hearing panel.  The 7 members of the investigative panel would be appointed by the Georgia Supreme Court (2 judges), the Speaker of the House (1 attorney and 1 citizen), the President of the Senate (1 attorney and 1 citizen), and the Governor (1 attorney who would be chair).  The hearing panel would consist of 1 citizen member appointed by the Governor and 1 attorney member and 1 citizen member appointed by the Court.  The investigative panel would be responsible for the commission’s investigative, prosecutorial, and administrative functions; the hearing panel would adjudicate formal charges filed by the investigative panel and make recommendations to the Supreme Court as to disciplinary and incapacity orders.

For more information on the composition and confidentiality of the state judicial conduct commissions, see the tables in the most requested Center resources section of the Center’s web-site.

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

Throwback Thursday

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25 years ago this month:

  • Adopting the findings of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge who had backed into a parked car as he was leaving the home of friends, did not stop to determine the damage to the vehicle or the identify of its owner, and lied to the police, telling them he had been a passenger, not the driver. Re Fowler, 602 So. 2d 510 (Florida 1992).
  • Following the recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge who stated during a hearing in his courtroom, “Now, you can throw your Italian temper around in the bars but you don’t throw them around in my courtroom. . . . I’m just as Irish as you are Dago.”  Re Carr, 593 So. 2d 1044 (Florida 1992).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who had, during an arraignment, asked a police officer whether the alleged assault was “just a Saturday night brawl where he smacks her around and she wants him back in the morning” and advised the defendant to “watch your back” because “women can set you up.” In the Matter of Bender, Determination (New York State Commission on Judicial Conduct February 7, 1992).
  • The Washington State Commission on Judicial Conduct publicly reprimanded a judge who had (1) had an ex parte meeting with a minor who was the subject of a proceeding over which the judge was presiding; (2) stated to an attorney in open court and in front of a female court reporter and female clerk that the attorney looked like he had been “jacking off a bobcat in a phone booth;” (3) during the armed conflict with Iraq, said “nuke the sand niggers” in the presence of others in the clerk’s office coffee room in the courthouse; (4) stated to 2 attorneys that a defendant in an old case “had gone crazy from sucking too many cocks;” and (5) during sentencing of an indigent defendant, stated that a lot of the clients at a food bank where his wife is president “were too stupid to cook what they are given but nobody is starving.” In re Velie, Commission decision (Washington State Commission on Judicial Conduct February 7, 1992).