Monthly Archives: May 2017

Appropriate action

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The New York code of judicial conduct provides that a “judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of [these rules] shall take appropriate action.”  (There is an analogous provision for possible attorney misconduct.)  The New York Advisory Committee on Judicial Ethic has interpreted that rule in many opinions.  In most of those opinions, it provides guidelines but does not direct a judge to report a suspected violation, leaving it to the judge’s “discretion” based on the judge’s assessment of the relevant circumstances.

However, when conduct described in an inquiry clearly calls into question another judge’s fitness to continue in office, the committee has advised the inquiring judge that he or she has an affirmative duty to report the conduct.  In New York Advisory Opinion 2015-124, the inquiring judge had asked the committee if he was required to report the following circumstances.

The defendant in a criminal case before the inquiring judge arrived at the court with his/her parent, a part-time judge from a nearby jurisdiction.  The court clerk later advised the inquiring judge that a judge appeared with his/her accused child and asked to speak with the presiding judge.  The ADA also stated a judge participated in the pre-trial conference with his/her defendant child and “attempted to influence a disposition.”  When the case was called, the defendant’s parent said he/she is a judge and offered a Unified Court System identification card as proof.  When the inquiring judge asked the defendant’s parent if he/she “was aware of the ethics of what [he/she] was doing,” the parent repeated he/she was a judge, and clarified he/she was not the defendant’s attorney.

The committee concluded that the inquiring judge must report the other judge’s conduct to the State Commission on Judicial Conduct, noting the judge “has information, including his/her direct observations, indicating a substantial likelihood that another judge has tried to use the prestige of judicial office to advance his/her child’s interests and improperly influence a criminal proceeding on his/her child’s behalf . . . .  On these facts, the other judge’s actions, if proved, clearly call into question his/her fitness to continue in office.”

The committee, like the committees in most states, does not disclose the name of the inquiring judge, but that inquiry corresponds to the facts in a recent case in which the Commission removed a non-lawyer judge from office for (1) attempting to influence the disposition of a traffic ticket received by his daughter and (2) sending 8 letters to the county court in an appeal from his order in a case.  In the Matter of Ayres, Determination (New York State Commission on Judicial Conduct May 4, 2017).

After his 30-year-old daughter received a traffic ticket from a state trooper for using a cell phone while operating a motor vehicle, Judge Ayres made 2 “back-channel attempts” to have the case transferred from the assigned judge, Judge Coe.  Judge Ayres believed Judge Coe could not handle the case fairly because Judge Ayres had fired Judge Coe’s wife when she was his court clerk.  First, the judge asked a court clerk to transfer the ticket to the docket of Judge Weingartner.  Then he called Judge Weingartner and asked him to handle the matter in view of his history with Judge Coe’s wife; he also attempted to provide facts about the case, but Judge Weingartner cut him off and refused his request.  The Commission found that the judge’s “requests to the court clerk and Judge Weingartner, who both knew respondent was a judge, were implicitly supported by his judicial status . . . .”

After these attempts were unsuccessful, the judge attended the pre-trial conference with his daughter and the assistant district attorney, Laura Parker.  During the conference, the judge addressed Parker “in a condescending manner, questioned whether she knew the law and was familiar with the facts, and, at one point, ‘threw’ papers on the table in her direction to underscore his argument that the ticket should be dismissed.”  After his daughter said, “My father’s a judge,” the judge stated, “Well, I wasn’t going to bring that up, but since it’s been brought up, if this ticket was in my courtroom, I’d dismiss it.”  He added that he had spoken to “several other judges” about the ticket and that they “all agreed that this should be dismissed.”

After talking to her supervisor, Parker moved to dismiss the ticket.  Judge Coe, who was surprised by the motion, did not accept it and said that he was going to adjourn the case “to give it some more thought.”  Subsequently, Parker again moved to dismiss, and Judge Coe dismissed the charge in April 2015.

The Commission decision notes that, after the pre-trial conference, Judge Coe met with Judge Weingartner to discuss what had occurred.  Judge Weingartner told Judge Coe that Judge Ayres had called him earlier and asked him to handle the ticket.  Judge Coe’s clerk also told him that Judge Ayres had asked her to transfer the ticket to Judge Weingartner.  Judge Coe sent an inquiry to the advisory committee and, after receiving the committee’s response, sent a letter to the Commission about Judge Ayres’s conduct.

Throughout the Commission’s proceedings, Judge Ayres insisted that his actions were permissible because he was acting “as a parent,” not as a judge, and was only attempting to help his daughter obtain the result that she was entitled to by law.  The Commission emphasized that “paternal instincts,” although understandable, do not “justify a departure from the standards expected of the judiciary,” agreeing with the referee’s rejection of the judge’s argument “that he had ‘absolute immunity’ to intervene as a parent on behalf of his daughter in an ongoing judicial proceeding.”  Noting that the judge had ample opportunity to reflect upon the propriety of intervening, the Commission reached the “inescapable” conclusion “that he either ignored or misunderstood his ethical obligations and intervened in the case simply because he believed that he had a better chance of getting the ticket dismissed than his daughter had on her own.”

In the second case underlying the discipline proceeding, after a defendant’s attorney filed a notice of appeal from a restitution order he entered in a larceny and disorderly conduct case, the judge sent 8 letters, 5 of which were ex parte, to the county court judge who was hearing the appeal.  The judge’s letters advised the other judge that, for example, the appeal should “be dismissed as it has not been perfected as required,” his order was “within the parameters of the law,” and the defendant’s claims were “baseless” and inconsistent with the plea agreement.  The judge also described the defense attorney’s arguments in “highly disparaging terms” (for example, “ludicrous,” “defies logic,” and “totally beyond any rational thought process”).  The judge continued writing the letters even after the county court judge sent him a letter advising him of the proper procedures and admonishing him for his “troubling” statements about the merits of the appeal.

The Commission found that the judge “abandoned his role as a neutral arbiter and became an advocate . . . .”

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In another 2015 opinion, the New York advisory committee provided more guidance regarding reporting judicial or attorney misconduct.  New York Joint Advisory Opinion 2015-138/2015-144/2015-166.  The committee explained that the rule requires a 3-prong analysis:  (1) Whether there is a “substantial likelihood” of a violation; (2) Whether the likely violation is substantial; and (3) What action is appropriate.  According to the committee, a judge is not required to investigate possible misconduct but may discharge his disciplinary responsibilities based on facts he already knows.

The committee stated that whether a judge has information indicating a substantial likelihood of a violation depends on the judge’s evaluation of the reliability and credibility of the evidence, including whether the judge has first-hand knowledge or merely “second- or third-hand reports concerning conduct that did not arise in connection with a proceeding.”  The committee emphasized that, “mere rumor, gossip, innuendo, or other ‘third-hand’ information, does not trigger a judge’s disciplinary obligations.”  The committee stated that, “[i]f, after considering all relevant, known factors, the judge believes the information received is not sufficiently reliable or credible to warrant further consideration, the judge is not ethically required to take any further action.  (As always, the judge may still, in his/her sole discretion, take some action even though he/she is not ethically required to do so.)”

In determining whether a violation is “substantial,” the committee explained, the judge should consider a wide variety of factors, including “the experience level of the . . . judge, whether the violation appears to have been inadvertent or willful, whether it appears to be part of a larger pattern of improper behavior or an isolated incident, whether it reflects adversely on the individual’s honesty, trustworthiness, and fitness as a . . . judge, and whether the violation, if it occurred as described, is likely to undermine public confidence in . . . judges if not investigated and addressed.”  The committee concluded that, “[i]f the judge is not certain that the conduct violates the applicable ethics rules, or concludes that the conduct is at most an insubstantial or a mere technical violation, he/she again need not take any action, although the judge may nonetheless do so, in his/her discretion.”

If a judge determines that those 2 prongs are satisfied, the judge must take “‘appropriate action’ . . . , as indicated by all the surrounding circumstances known to the judge at the time.”  Among the relevant circumstances, according to the committee, are whether the other judge, if confronted, “shows genuine remorse, contrition, or ignorance of a rule” and whether the other judge has a “history of unprofessional or other conduct in violation of the Rules.”  The committee advised that reporting to the Commission is not mandatory unless the conduct seriously calls into question the “judge’s honesty, trustworthiness or professional fitness, thus warranting, at the very least, an inquiry . . . .”  In another opinion, the committee described possible appropriate action in response to possible judicial misconduct, for example, dealing with the matter administratively, discussing with the other judge the possibility of a treatment program and/or making a referral to a treatment program, and counseling the other judge on the ethics of the conduct and then deciding what if anything should be done depending on the other judge’s response.  New York Advisory Opinion 2016-46.

As interpreted by the advisory committee, the New York rule is in effect very similar to the current model code provision although the language is different.  Rule 2.15 of the 2007 American Bar Association Model Code of Judicial Conduct provides:

(A) A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge in other respects shall inform the appropriate authority.

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(C) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action.

There are analogous provisions for attorney misconduct.

Throwback Thursday

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5 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for (1) delays of 320 days, 237 days, and 110 days in 3 matters in less than a year, (2) submission of 11 false salary affidavits, (3) failure as presiding judge to circulate a list of cases under submission, and (4) failure to respond to e-mails inquiring about submitted matters. In the Matter Concerning Kirihara, Decision and Order (California Commission on Judicial Performance May 16, 2012).
  • Based on findings by a Board of Examining Officers supported by the judge’s admissions, the Delaware Court on the Judiciary removed a judge for advising a young female attorney in an e-mail how to prepare a memorandum in a case before him and hearing cases involving the attorney after developing and expressing romantic feelings for her. In re Henriksen, 70 A.3d 206 (Delaware Court on the Judiciary 2012).
  • The Illinois Courts Commission suspended a judge for 60 days without pay for striking a parked car, then driving his damaged car from the scene at a high rate of speed, disobeying multiple stop signs, causing a 13-year-old girl to move away from the road quickly to avoid being struck, causing the police to wait when they arrived at his home, and being less than candid before the Commission. In re Popejoy, Order (Illinois Courts Commission May 9, 2012).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a former judge for (1) in an adoption proceeding, failing to return a child to the child’s biological parent, failing to recognize the mother’s right to revoke her consent, failing to provide the unrepresented biological parents with adequate information about obtaining counsel, and injecting the father’s immigration status into the matter and (2) displaying an impatient, undignified, and discourteous demeanor in a custody case. In the Matter of Poyfair, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct May 4, 2012).

Another Facebook fail

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The Texas State Commission on Judicial Conduct publicly reprimanded a judge for posting, “Time for a tree and a rope . . .” on Facebook in response to the arrest of an African-American man in the killing of a police officer.  Amended Public Reprimand of Oakley and Order of Additional Education (Texas State Commission on Judicial Conduct May 8, 2017).  The Commission also ordered the judge to complete 30 hours of training for new judges and participate in 4 hours of instruction on racial sensitivity with a mentor chosen by the Commission.

On November 21, 2016, the San Antonio Police Department posted to its Facebook page a mugshot of Otis McKane, an African-American man, with the following statement:

Today at 1545 hrs.  Otis Tyrone McKane was taken in custody for the capital murder of SAPD Det. Benjamin Marconi.  The arrest was made by SAPD in a joint effort with multiple law enforcement agencies.  The arrest was made without incident.  The San Antonio Police Department would like to thank everyone who assisted in locating the suspect.

In response, the judge posted to the police department Facebook page the comment, “Time for a tree and a rope . . .”  His comment, along with the post, also appeared on his own Facebook page.

The former editor of a local newspaper took a screen shot of the judge’s Facebook post and disseminated it to the news media.  The judge removed his post and issued a public apology, describing his comment as “harsh,” “off-the-cuff,” and “curt,” but denying it had anything to do with race.  The judge and his post became the subject of negative media attention locally, nationally, and internationally, and the Commission received 18 written complaints.  The complainants expressed numerous concerns about the post, including its call for vigilante justice, apparent disregard for due process of law, racial insensitivity, and possible influence on the jury pool.  Multiple complainants also questioned the judge’s suitability for judicial office and his ability to perform his judicial duties impartially.

Asked by the Commission to explain the intent and context of his Facebook post, the judge responded, “My comment was intended to reflect my personal feelings that this senseless murder of a police officer should qualify for the death penalty.  In my mind the race/gender of the admitted cop killer was not relevant.”  The judge explained that a “tree and a rope” was a reference to a humorous advertising campaign for Pace Picante Sauce salsa from the 1980s.  The judge does not believe his post cast discredit on the judiciary because the “media stories were promoted as a political attack” and his words were twisted into “phrases [and] headlines that were not accurate.”  During his appearance before the Commission, the judge made statements that indicated to the Commission that he could benefit from racial sensitivity training.  The judge also testified that he had not attended training for new judges.

The Commission found that the judge’s post “cast reasonable doubt on his capacity to act impartially in the performance of his duties” and was “willful conduct that cast public discredit on the judiciary and the administration of justice.”

The most-requested resources section of the Center for Judicial Ethics web-site has a comprehensive list of discipline cases, advisory opinions, and other judicial ethics and discipline materials related to social media.

“Social Media and Judges:  Bright Lines and Best Practices” will be the plenary session at the 25th National College on Judicial Conduct and Ethics, October 4-6, 2017, in Austin, Texas.  Topics for the break-out sessions are:

  • Disqualification
  • The Curious Judge: Independent Factual Investigations
  • Judicial Discipline and Technology
  • Ethical Guidelines for Members of Judicial Conduct Commissions
  • Judicial Impairments
  • Best Practices for Judicial Ethics Advisory Committees
  • Pro Se Litigants and Judicial Ethics
  • Fines, Fees, and Judicial Ethics
  • Determining the Appropriate Sanction
  • The Role of Public Members
  • Introduction to Judicial Ethics and Discipline for New Members of Judicial Conduct Commissions

Registration is now open for the College.

The up-coming spring and summer issues of the Judicial Conduct Reporter will be a 2-part article on social media and judicial ethics.  Part 1, the spring issue, will be a general introduction to the topic followed by a discussion of the social media issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and commenting on pending cases.  The second part of the article, which will be the summer issue of the Reporter, will cover off-bench conduct:  abuse of the prestige of office, disclosing non-public information, providing legal advice, charitable activities, commenting on issues, political activity, and campaign conduct.  You can sign up to receive notice when new issues of the Reporter are available.

Throwback Thursday

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10 years ago this month:

  • Accepting a stipulation and adopting the findings, conclusions, and recommendation of the Commission on Judicial Conduct, the Alaska Supreme Court publicly censured a former judge for (1) making pre-signed bail orders available for prosecutors to use for out-of-custody arraignments; (2) failing to diligently track speedy trial timeframes; (3) engaging in ex parte communications and presiding over a matter from which he should have disqualified himself; and (4) making inappropriate sexual comments to female court employees in the workplace. In re Landry, 157 P.3d 1049 (Alaska 2007).
  • Based on a stipulated agreement, the Arizona Commission on Judicial Conduct publicly reprimanded a judge for a campaign flyer that used multiple exclamation points, a bold font, and capital letters and made insinuations about his opponent. Inquiry Concerning Gastelum, Public Reprimand (Arizona Commission on Judicial Conduct May 8, 2007).
  • The California Commission on Judicial Performance publicly admonished a judge for a pattern of discourteous and sarcastic comments to attorneys and litigants. Public Admonishment of Petrucelli (California Commission on Judicial Performance May 22, 2007).
  • Based on a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge who pleaded guilty to operating a motor vehicle with an alcohol concentration above the limit. In the Matter of Hanley, 867 N.E.2d 157 (Indiana 2007).
  • Based on the findings of the Judiciary Commission, the Louisiana Supreme Court suspended a judge from office for 30 days without pay for issuing an arrest warrant against a neighbor with whom she had a poor relationship. In re Alfonso, 957 So.2d 121 (Louisiana 2007).
  • The Mississippi Supreme Court suspended a judge for 30 days without pay for “passing” 14 traffic tickets to the file over the objections of the issuing officer. Commission on Judicial Performance v. Gordon, 955 So. 2d 300 (Mississippi 2007).
  • Granting a petition filed by the Commission on Judicial Standards based on stipulated facts, 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 published in the newspaper. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 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 sentenced 2 defendants represented by an attorney just before announcing that she was barring the attorney from appearing before her in the future and who barred the attorney from appearing before her based on unsubstantiated hearsay information. In the Matter of Appel, Determination (New York State Commission on Judicial Conduct May 14, 2007).
  • Based on an agreed statement of facts and argument on the issue of sanctions, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge who (1) in 2 matters, engaged in ex parte communications and made biased statements about the parties, notwithstanding that he had previously been admonished for similar conduct and (2) failed to disqualify himself in 7 cases when his personal attorney appeared. In the Matter of Merrill, Determination (New York State Commission on Judicial Conduct May 14, 2007).
  • Accepting a recommendation of the Judicial Standards Commission based on stipulated facts, the North Carolina Supreme Court removed a former judge from office for his conviction for failing to file federal income tax returns. In re Balance, 643 S.E.2d 584 (North Carolina 2007).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge from office without pay for 6 months for setting a bond for the friend of a sheriff’s officer even though he was not the magistrate on call, did not seek permission to conduct the special bond hearing, did not conduct hearings for any other inmates awaiting bond hearings, and failed to inform the chief magistrate that a hearing had been conducted. In the Matter of Davis, 645 S.E.2d 243 (South Carolina 2007).

Dangerous lack of candor

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Agreeing with the findings of a hearing panel of the Commission on Judicial Qualifications, the Kansas Supreme Court found that a judge had made dishonest statements under oath in a prior discipline proceedings; however, it did not impose a sanction because the judge had resigned, and, therefore, suspension or removal were unavailable.  In the Matter of Henderson (Kansas Supreme Court April 7, 2017).

In 2015, based on the findings of the Commission and adopting its conclusions of law, the Court had suspended the same judge for 90 days without pay for making offensive and demeaning sexual comments to female attorneys and staff members; trying to broker an employment opportunity for his wife; and sending an ex parte e-mail to an attorney’s client that expressed bias or prejudice toward the attorney.  In the Matter of Henderson, 343 P.3d 518 (Kansas 2015).  While that first case was still pending, additional complaints were filed against the judge, and, after an investigation, a second notice of formal proceedings was filed alleging the judge had provided testimony that was not candid and honest during the first proceeding.  Just prior to a hearing before a different panel in the second case, the judge was defeated in a primary election.  He resigned after the hearing.

The Commission agreed with the findings of the second panel that the judge had told an offensive story to the assistant district attorney contrary to his testimony in the first hearing, that testimony and documentary evidence refuted his version of his communications with a school board member about his wife’s employment, and that his explanations of one of his comments were not credible.  Further, the Court explained that the additional testimony in the second hearing “illustrates the dangerous undermining of faith in the judicial system resulting from the Respondent’s lack of candor.”  The Court noted, for example, that a court services officer had testified “that it was ‘upsetting’ to her that the administrative judge for whom she worked for so many years ‘would take an oath to tell the truth and then blatantly tell that he had never told the story when he told it all the time.’”  In addition, a juvenile justice education liaison for the county department of corrections “testified that she was ‘very upset’ when she heard the Respondent’s testimony at the first hearing, because ‘to have your presiding judge take an oath and not tell the truth was really upsetting.’”

Rejecting the judge’s argument, the Court held it had not lost jurisdiction when he resigned.  It explained:

Notwithstanding the availability of sanctions, the issues before us are matters of great public interest concerning the honor and dignity of the judiciary. . . .

The duty to protect the public from malfeasance by judges does not terminate the moment a judge steps down from office.  A judge may not evade public responsibility and our jurisdiction based on the misconduct simply by stepping away from the bench when the misconduct is revealed. . . .

The purpose of judicial discipline is to maintain the honor and dignity of the judiciary and the proper administration of justice rather than to punish the individual. . . .  Public trust is essential to the effective operation of the judicial system, and the conduct of one judge may have a significant adverse impact on the public perception of the entire judicial system. . . .

It would be disrespectful both to the public and to the witnesses whose reputations he impugned if we were to abdicate our responsibility of judicial supervision by dismissing the complaint merely because the Respondent walked away from his responsibilities.

Finally, the Court rejected the judge’s argument that his due process rights were violated because he had not been immediately notified of the second set of complaints, noting the relevant rule did not require “immediate and simultaneous action.”  The Court also explained that, even if there was a question whether the Commission had acted in a timely manner, “[a]sserted due process violations are subject to harmless error analysis,” and the judge had not articulate “any tangible resulting harm.”

Throwback Thursday

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20 years ago this month:

  • The Arkansas Judicial Discipline and Disability Commission publicly reprimanded a judge for delays ranging from 13 months to 34 months in deciding 13 cases. In the Matter of King, Final Decision and Order (Arkansas Judicial Discipline & Disability Commission May 21, 1997)
  • The Arkansas Judicial Discipline & Disability Commission imposed an informal adjustment on a part-time judge for a delay of almost 32 months in rendering a decision after trying a case. Letter to McKimm (Arkansas Judicial Discipline & Disability Commission May 21, 1997)
  • Pursuant to the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge who was rude, abusive, and insulting to 2 assistant state attorneys and refused to allow a victim to make a statement as was her right, addressed the victim in an improperly raised voice, acted in an overbearing and dictatorial manner, had the victim escorted to the rear of the courtroom, and mimicked a shooting gun as she was led away. Re Wright, 694 So. 2d 734 (Florida 1997).
  • Based on a joint statement of circumstances and conditional agreement, the Indiana Supreme Court suspended a judge for 30 days without pay for (1) failing to disqualify himself from a case in which he had submitted written materials, which were highly critical of the defendant, in support of an attorney against whom the defendant had filed a grievance or to disclose that fact to the defendant; (2) imposing a lengthier sentence on a defendant who demanded a jury trial than he would have imposed if she had submitted to a bench trial or pleaded guilty; and (3) misrepresenting the law to a defendant and forcing her to choose between proceeding without counsel or exercising her right to counsel and facing contempt and incarceration. In the Matter of Cox, 680 N.E.2d 528 (Indiana 1997).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a court of appeal judge for failing to disqualify herself from an appeal by a party with whom the judge had a close, personal relationship. In re Cooks, 694 So. 2d 892 (Louisiana 1997).
  • Agreeing with the recommendation of the Commission on Judicial Qualifications, the Nebraska Supreme Court suspended a judge for 6 months without pay for offensive and unwelcome conduct that amounted to sexual harassment toward female court personnel, citizens having business in the courts, and student interns and for disseminating religious materials to jurors. In re Empson, 562 N.W.2d 817 (Nebraska 1997).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for (1) presiding over cases involving his friends notwithstanding that he had been previously cautioned by the Commission against doing so and (2) confronting a woman, in the presence of her employer, after she sent a letter to the editor of the local newspaper criticizing him. In the Matter of Robert, 680 N.E.2d 594 (New York 1997).
  • The New York State Commission on Judicial Conduct publicly admonished a judge who had issued a warrant of eviction without any notice to the tenant and without conducting any court proceeding based solely on the ex parte request of the landlord. In the Matter of Holmes, Determination (New York State Commission on Judicial Conduct May 29, 1997).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct censured a judge who had stated, “Oh, it’s been a rough day — all those blacks in here” and had conditioned his disqualification from a case on the withdrawal of complaints against him. In the Matter of Jensen, Determination (New York State Commission on Judicial Conduct May 29, 1997).

25th National College on Judicial Conduct and Ethics

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Registration is now open for the 25th National College on Judicial Conduct and Ethics.  There is a link from the College registration site to the hotel reservation site.  If you have any questions about registration, contract Alisa Kim at akim@ncsc.org or (303) 308-4340.

The College 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 July 31, but $425 beginning August 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 is a complete description of sessions and moderators on-line.  The session topics are:

PLENARY SESSION

Social Media and Judges:  Bright Lines and Best Practices

BREAK-OUT SESSIONS

  • Disqualification
  • The Curious Judge: Independent Factual Investigations
  • Judicial Discipline and Technology
  • Ethical Guidelines for Members of Judicial Conduct Commissions
  • Judicial Impairments
  • Best Practices for Judicial Ethics Advisory Committees
  • Pro Se Litigants and Judicial Ethics
  • Fines, Fees, and Judicial Ethics
  • Determining the Appropriate Sanction
  • The Role of Public Members
  • Introduction to Judicial Ethics and Discipline for New Members of Judicial Conduct Commissions

Recent cases

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  • A special Alabama Supreme Court affirmed the decision of the Court of the Judiciary suspending the chief justice of the Alabama Supreme Court from office without pay for the remainder of his term for entering an administrative order that directed all probate judges to follow the state’s marriage laws in disregard of a federal court injunction and for failing to disqualify himself from the state case on same-sex marriage after taking a position on the issue in the administrative order. Moore v Judicial Inquiry Commission (Alabama Supreme Court April 19, 2017).
  • The California Commission on Judicial Performance publicly admonished a judge for violations of the financial reporting laws during her campaign for office. In the Matter of Flanagan, Public admonishment (California Commission on Judicial Performance April 11, 2017).
  • Agreeing with a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a non-lawyer judge who had been convicted of battery against a public safety official for shoving the police chief during a meeting and ordered that he be eligible for future judicial service and that he pay the costs of the proceeding; the reprimand was conditioned on the judge tendering his resignation effective April 28, 2017. In the Matter of Phillips (Indiana Supreme court April 28, 2017).
  • Agreeing with the findings of a hearing panel of the Commission on Judicial Qualifications, the Kansas Supreme Court found that a former judge made dishonest statements under oath in a prior discipline proceeding; however, it did not impose a sanction because the judge had resigned, and suspension or removal were, therefore, unavailable. In the Matter of Henderson (Kansas Supreme Court April 7, 2017).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for, as a joke, holding an attorney in contempt for adding expungement cases to her docket contrary to a “no add-on” order for the day. In re Leibson, Agreed order of public reprimand (Kentucky Judicial Conduct Commission April 13, 2017).
  • Adopting the recommendation of the Commission on Judicial Performance, based on a stipulation of agreed facts and proposed recommendation, the Mississippi Supreme Court suspended a judge from office for 30 days without pay, fined him $1,100, and publicly reprimanded him for threatening to use a weapon on a defendant, interrogating the same defendant concerning his drug use, which had no bearing on the charge before the court, and interrogating, demeaning, and intimidating the defendant’s mother about the defendant’s drug use and her parenting skills. Commission on Judicial Performance v. Vess (Mississippi Supreme Court April 20, 2017).
  • Based on the findings of fact, conclusions of law, and recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge and fined him $3,000 for advising a plaintiff to orally move to amend her complaint and issuing a default judgment that ordered an immediate eviction even though the original complaint had not asked for it, and that awarded $3,000 more than the original complaint had demanded. Commission on Judicial Performance v. Roberts (Mississippi Supreme Court April 20, 2017).

 

Throwback Thursday

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25 years ago this month:

  • The California Commission on Judicial Performance publicly reproved a judge for (1) executing a detention, search, and warrant check of citizens lawfully present in his courtroom and subjecting them to unwarranted personal searches; (2) criticizing a jury for its verdict, improperly detaining the jurors after their verdict, and requiring them to sit through a hearing that appeared calculated to punish the jury and humiliate the defendant; and (3) granting a new trial on the grounds of prosecutorial misconduct after the prosecution and defense refused his request to add, “It is further stipulated that Judge Steven Hintz committed no legal error or ethical breach in the trial” to their stipulation granting a new trial. Letter to Hintz (California Commission on Judicial Performance May 29, 1992).
  • The Pennsylvania Supreme Court publicly reprimanded a supreme court justice for providing an ex parte tip to a common pleas court judge about possible bankruptcy fraud in a case pending before the judge. In the Matter of Larsen, 616 A.2d 529 (Pennsylvania 1992).

 

A sampling of recent judicial ethics advisory opinions

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  • A judge is disqualified from any cases in which his wife appears as a guardian ad litem. West Virginia Opinion 2017-1.
  • A family court judge may send a sympathy card to the family of a decedent who was formerly the subject of juvenile delinquency proceedings before the judge. New York Opinion 2017-15.  
  • A judge must self-report a violation of the Rules of Professional Conduct that raises a question as to the judge’s own honesty, trustworthiness, or fitness as a lawyer. A judge should report misconduct by a lawyer or another judge within a reasonable time after becoming aware of the violation.  A judge who reports a lawyer’s misconduct is not presumptively disqualified from cases in which that lawyer appears.  A judge does not have a duty to report misconduct by those who are not judges or lawyers, but a judge should expose obvious and egregious illegal activity when the failure to do so could undermine confidence in the integrity of the judiciary.  Ohio Opinion 2017-2. 
  • A judge may accept an appointment to the Florida Impaired Driving Coalition, an advisory body to the state department of transportation, as long as it does not engage in matters that could reasonably be perceived as favoring the state in DUI prosecutions. Florida Opinion 2017-2.
  • A judge may not be a member of a “Justice Council” comprised of representatives of government agencies that is addressing the use of community-based programs and considering ways to reduce jail population. Nebraska Opinion 2017-1.  
  • A circuit’s chief judge may accept a copier donated by a group of professional guardians to be used in the probate and guardianship courtrooms only by probate and guardianship attorneys to make copies or certified copies of orders immediately following hearings. Florida Opinion 2017-6.
  • A judge may allow a personal injury firm, a legal aid group, a women lawyers association, and an African-American lawyers association to jointly host a free reception at the courthouse after a free diversity training seminar for judges and attorneys and may accept food/drink provided by the hosts at the event. Florida Opinion 2017-4.
  • To encourage others to pursue a legal career, a judge may speak to not-for-profit organizations affiliated with a certain religion, including domestic and foreign parochial schools and places of worship, about her background and experience in becoming a judge and accept standard speaking fees and reasonable travel expenses. New York Opinion 2017-12.
  • A judge may serve on the admissions committee of a country club if the club is non-profit, does not regularly engage in litigation, and does not invidiously discriminate. New York Opinion 2016-161.  
  • A judge is obligated to determine before joining a lay organization for men of a particular ethnicity and religion whether that organization engages in invidious discrimination. New York Opinion 2017-11.  
  • A judge may submit a letter to a municipality supporting the dedication of a little league baseball field in the name of her deceased former bailiff. Florida Advisory 2017-9.
  • A magistrate may participate in a dunk tank for a non-profit organization run by the judge’s spouse as long as he does not personally solicit funds and the prestige of judicial office is not used in advertising the fund-raiser. South Carolina Opinion 5-2017.
  • A judge may not give a videotaped interview that will be shown at a re-entry agency’s fund-raising event. New York Opinion 2016-152.
  • A judge may serve as a “judge” for preliminary Miss America pageant competitions. Florida Opinion 2017-8. 
  • A judge may run for a seat on a church parish council and serve on the finance committee. West Virginia Opinion 2017-7. 
  • A judge who presides over domestic violence cases may write a thesis for his master’s degree in social work on community response to domestic violence as long as he does not express any opinions on what he would do with any specific set of facts or on any pending or impending issues. West Virginia Opinion 2017-3.  
  • A judicial officer should not have an interest in an enterprise involved in the sale or manufacture of medical or recreational marijuana including a personal financial investment or private equity fund investment, shares in a corporation that invests in marijuana, an interest in property that is leased for marijuana growth or distribution, or an interest owned by a spouse or registered domestic partner. California Opinion 2017-10.  
  • A full-time magistrate who is a certified paramedic may work part-time for a service that transports non-emergency patients, for example, from hospital to hospital. South Carolina Opinion 4-2017.
  • A judge may serve as a referee at soccer games and accept reasonable compensation ($40-$80 per game). New York Opinion 2017-1.  
  • A judge may perform with a non-profit orchestra and other musical groups that are not business entities and accept reasonable compensation for her performances. A judge may publish her own musical compositions and receive royalties and performance rights fees for them.  New York Opinion 2017-11.  
  • A new judge may continue to serve as a receiver in a foreclosure provided his duties are ministerial and completed within 1 year, if possible. New York Opinion 2016-164.  
  • A new judge may complete her service as executor of a former client’s will by signing a deed necessary to transfer title to an heir. New York Opinion 2017-33.