‘Tis the season

Gifts

Judicial ethics committees are split on whether judges and their staffs may accept holiday gifts from lawyers or vendors under the code of judicial conduct.  (State and/or local regulations may also apply.)

Several committees advise that such gifts are unacceptable.  The Kentucky committee, for example, advised that a judge may not accept even nominal Christmas gifts such as boxes of candy and poinsettias from persons whose interests are likely to come before the judge, and the prohibition extends to the judge’s staff.  Kentucky Advisory Opinion JE-86 (1995).

Similarly, the Florida committee concluded that a judge may not accept gifts from lawyers or law firms if they have come or are likely to come before the judge and should direct court personnel not to accept such donations.  Florida Advisory Opinion 2000-8.  The committee noted the judge who sent the inquiry described “what seems to be a frequent occurrence in some Florida jurisdictions,” reaching “epidemic proportion[s].”

During the winter holiday season, attorneys, vendors, and others, offer gifts to judges, judicial assistants, bailiffs and other court employees.  In the past, the gifts normally consisted of candy, fruit, nuts, stuffed animals and liquor.  That tradition is no longer followed and gifts of money, and certificates redeemable for cash, goods, or services are presented to court personnel.

 See also Texas Advisory Opinion 194 (1996) (a judge, court coordinator, court reporter, clerk, or bailiff may not accept seasonal gifts from a lawyer or law firm); West Virginia Advisory Opinion (September 19, 2006) (a judge or court staff should not accept Christmas gifts such as cakes, cookies, candy, fruit baskets, or gift certificates from attorneys who regularly appear in family court or from a court interpreter who provides services to the court).

Those opinions are based on a code of judicial conduct provision stating that a judge may only accept a gift if “the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge,” which was Canon 4D(5)(h) of the 1990 American Bar Association Model Code of Judicial Conduct.

In contrast, several advisory committee have concluded that inexpensive gifts at holiday time fall within the ordinary social hospitality exception to the gift rule and may be accepted by a judge and court staff even from lawyers who appear before the judge.  The Wisconsin committee, for example, advised that a gift of candy or fruit from a law firm would “come within the ambit of ‘ordinary social hospitality’ as long as it is of de minimis value.”  Wisconsin Advisory Opinion 1998-10R.

Similarly, the Oklahoma committee stated that a judge may accept a gift during the Christmas season from an attorney who makes a comparable gift to all judges when the gift is inexpensive, for example, food, a tie, a book, or similar item, although it added that “in each case, the judge must consider the appearance of impropriety and exercise caution and good judgment.  Oklahoma Advisory Opinion 2001-3.  The committee explained:

A judge, like other members of society, must be permitted to be involved in ordinary social amenities.  “Ordinary social hospitality” . . . would suggest a gift that would not cause reasonable people in the community to believe the donor was obtaining or intending to obtain any special advantage, nor that the donee would have cause to give the donor any unfair advantages.

It is impossible to set specific parameters regarding such gifts.  A gift package of homemade cookies at Christmas surely would not be perceived as an impropriety.  Larger gifts – season tickets to sporting events, free use of a vacation home, free vacation on a cruise ship – would be more than the perception of impropriety.  If a gift is given where gifts are traditional, such as special occasions or holidays, or if the gift is given to all of the judges in the Courthouse, there would seem to be no impropriety.

 See also Oklahoma Advisory Opinion 2001-4 (a judge may allow her staff to accept inexpensive gifts from attorneys on special occasions, for example, Christmas); Washington Advisory Opinion 1993-17 (a judicial officer may allow a court employee to accept gifts of nominal value, such as food trays or candy, from local attorneys and court vendors during the holiday season, but should ensure that practice does not create an appearance of partiality or impropriety).

That interpretation of “ordinary social hospitality” is similar to the gift rule from the 2007 ABA model code.  The 2007 amendments eliminated the prohibition on gifts from anyone whose interests are likely to appear before the court and substituted a prohibition (Rule 3.13(A)) on gifts that “would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”

Parties

In general, judges and court staff have been permitted to attend law firm holiday parties, although the approval is not unconditional and each invitation requires a fact-specific inquiry.

The New York committee, for example, stated that “[a] judge may attend an ordinary holiday-type party or similar function given by a lawyer, law firm, or legal agency.”  New York Advisory Opinion 1987-15(a).  The committee emphasized “the word ‘ordinary’; this would not include, for example, a party that provides guests with a complete dinner at an expensive restaurant, a cruise, or like affair that is more expensive or lavish than an ordinary party.”

Whether an “event is a traditional occasion for social hospitality such as a holiday party or the opening of an office” is one of the factors the California advisory committee identified as relevant to a judge’s determination whether a social event hosted by an attorney constituted ordinary social hospitality.  California Advisory Opinion 43 (1994).  The committee developed the following, non-exhaustive list:

  1. The cost of the event in the context of community standards for similar events. What may seem excessive in one part of the State or county may be within ordinary hospitality in other places depending on what is customary and reasonable in the community in question.
  2. Whether the benefits conferred are greater in value than that traditionally furnished at similar events sponsored by bar associations or similar groups.
  3. Whether the benefits are greater in value than that which the judge customarily provides his/her own guests. The events which a judge hosts tend to reveal the judge’s view of ordinary social hospitality.
  4. Whether the benefits conferred are usually exchanged only between friends or relatives such as transportation, housing or free admission to events which require a paid admission.
  5. Whether there is a history or expectation of reciprocal social hospitality. If a judge is invited to a social event by an attorney who the judge has invited in the past or is likely to invite in the future to similar events; this is suggestive of ordinary hospitality.
  6. Whether the event is a traditional occasion for social hospitality such as a holiday party or the opening of an office.
  7. Whether the benefits received are reportable to any governmental entity.

The Oklahoma committee approved those factors as “good common sense considerations.”  Oklahoma Advisory Opinion 2005-1.  Stating “[t]here is no ‘one size fits all’ answer,” the committee explained that a judge should ask, “Could my acceptance of this invitation give rise to the perception by reasonable persons that it might cause me to act in a manner not keeping with my obligation to avoid impropriety and to maintain the impartiality and independence required of the judiciary?”  The committee noted that “a judge should be cautious about accepting invitations from one group, but declining invitations from its counterpart, i.e., those identified as plaintiffs or defendants advocates.”  The committee also emphasized that “the appearance of impropriety would be high should the judge accept such invitations from a firm involved in a ‘high profile case’ currently assigned to the judge.”

Similarly, the Connecticut committee advised that a judicial official may attend a large holiday party hosted by a law firm only if the firm is not actively engaged in litigation or proceedings before the judge and the party constitutes “ordinary social hospitality.”  Connecticut Emergency Staff Opinion 2015-23.  If the judge does attend, the committee stated, the judge must not permit the host firm to announce his attendance, may not engage in any action that may be perceived as advancing the private interests of the host law firm, and may not discuss any pending matters with the hosts or guests.  After the party, the committee stated, the judge must, for a reasonable time, recuse himself or disclose and seek remittal should the firm appear in a case.

The Wisconsin committee also advised that a judge or the judge’s staff may only attend a holiday party given by a law firm if the firm is not involved in a current trial or one about to begin before the judge.  Wisconsin Advisory Opinion 1998-10R. The committee also conditioned the judge’s attendance on no clients being in attendance at the party and the hospitality being limited to ordinary social hospitality.

See California Advisory Opinion 47 (1997) (a judge may attend events such as a law firm’s holiday party); New York Advisory Opinion 1987-12(a)(b) (a judge may attend an ordinary holiday-type party given by a law firm or legal agency); New York Advisory Opinion 2010-195 (a judge may attend a holiday celebration hosted by the prosecutor’s office where he worked just prior to assuming the bench); Texas Advisory Opinion 194 (1996) (a judge, the judge’s staff, court officials, and others subject to the judge’s direction and control may attend holiday or seasonal law firm parties if the party is open to people other than judges and court personnel); Washington Advisory Opinion 1991-27 (a judge may attend a law firm holiday open house at which snacks and/or beverages may be offered).

But see New Jersey Advisory Opinion 46-2000 (judges may not attend the county Hispanic Bar Association’s holiday reception if it is held at a law office); New Jersey Advisory Opinion 62-1992 (municipal court judges and court employees may not attend a holiday party hosted by a law firm); New Jersey Advisory Opinion 57-1995 (judges may not attend a holiday party hosted by the county prosecutor’s office).

See also Connecticut Informal Opinion 2013-47 (a judicial official may attend a holiday party at a restaurant hosted by a municipality’s governing body if the municipality does not have any matter pending before her and does not regularly appear before her, if she will pay the full cost to attend, and if the party is not a fund-raiser or a lavish event); Delaware Advisory Opinion 2004-6 (a judge may attend a holiday reception given by an organization whose executive director is the sister of a father in a custody dispute over which the judge presided that is currently on appeal); Delaware Advisory Opinion 2005-4 (a judge may attend a holiday party hosted by the governor that benefits Toys for Tots); New Jersey Advisory Opinion 73-1994 (municipal court judges may not attend a holiday open house at the home of a township trustee); New Jersey Advisory Opinion 47-2000 (a judge may not attend a holiday party given by and for township employees, even though attendees pay their own way); New York Advisory Opinion 2013-192 (a judge who has retained a firm to promote and lobby for a proposed law relating to the courts may briefly attend the firm’s holiday party); New York Advisory Opinion 2006-170 (a judge may attend a holiday party sponsored by law enforcement agencies if the judge avoids any actions that may be perceived to advance the private interests of the organization or of individuals attending or that may otherwise create an appearance of impropriety); New York Advisory Opinion 2007-211 (a judge may not attend a holiday party hosted by a member of Congress and paid by campaign funds even if the host is a friend); Pennsylvania Informal Advisory Opinion 12/1/2009 (a judge may not attend a holiday reception that is a fund-raiser held by a judge’s-elect’s campaign committee); South Carolina Advisory Opinion 4-1999 (a judge may attend a Christmas party sponsored by an entity that occasionally appears before the judge).

Throwback Thursday

5 months ago:

  • Accepting the recommendation of the Judicial Discipline and Disability Commission, which the judge did not contest, the Arkansas Supreme Court suspended a judge for 30 days without pay for his confrontation with his estranged wife and her male companion at a Walmart; the Court also ordered the judge to undergo anger management counseling with the Arkansas Judges & Lawyers Assistance Program and to write an apology letter. Judicial Discipline and Disability Commission v. Pope (Arkansas Supreme Court October 4, 2012).
  • The California Commission on Judicial Performance publicly admonished a judge for violating the Political Reform Act during and after his campaign for judicial office. In the Matter Concerning Brehmer, Decision and order (California Commission on Judicial Performance October 25, 2012).
  • Pursuant to the judge’s agreement, the Georgia Judicial Qualifications Commission made public the fact but not the content of a private reprimand; the report states that the matter originated with news reports of the judge’s arrest for driving under the influence of alcohol and speeding. In re Wommack, Report of disposition (Georgia Judicial Qualifications Commission October 3, 2012).
  • Accepting the recommendation of the Judicial Tenure Commission, to which the judge consented, the Michigan Supreme Court censured a judge for bringing “shame and obloquy” to the judiciary by his flippant manner in an interview with a reporter about a digital image of himself he had sent to others. In re McCree, 821 N.W.2d 674 (Michigan 2012).
  • Based on an agreed statement of fact and joint recommendation, the New York State Commission on Judicial Conduct censured a judge for disguising the source of funds received by her campaign to circumvent contribution limits imposed by law. In the Matter of Anderson, Determination (New York State Commission on Judicial Conduct October 1, 2012).
  • Accepting findings of fact, conclusions of law, and the sanction recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a judge’s law license for 6 months for (1) using vulgar and intemperate language to litigants in his courtroom and (2) injecting himself into an administrative investigation by the police department and allowing his history of conflicts with the department to cloud his judgment; the Court stayed the sanction on the condition that the judge commit no misconduct during the suspension. Disciplinary Counsel v. Elum, 979 N.E.2d 289 (Ohio 2012).

Court-annexed self-help clinic

In an advisory opinion, the Ohio Board of Professional Conduct approved a court’s proposal to establish a self-help center where court-appointed lawyers would provide short-term legal assistance to persons of limited means who otherwise would be unrepresented.  Ohio Advisory Opinion 2017-7.  The lawyers would not represent the litigants before the court but would provide general legal assistance and information, explaining court procedures, addressing service of process issues, ensuring that litigants file the correct court forms, and making referrals to sources or persons for additional information or assistance.

Comment 4 to Rule 2.2 of the Ohio code of judicial conduct provides that a judge may make reasonable accommodations to ensure self-represented litigants the opportunity to have their matters fairly heard.  Ohio Advisory Opinion 2017-7 explains that a court-annexed legal services program “is a permissible method” of ensuring the right of self-represented litigants to be heard and improving access to justice.  “A self-help clinic in a court,” it states, “can facilitate the administration of justice by reducing the necessity for a judge to provide additional accommodations for a self-represented litigant during a hearing, assisting in maintaining the appearance of impartiality, and increasing the opportunity for the matter to be heard on its merits rather than dismissed on technicalities.”

However, “[b]ecause the self-help clinic inevitably will be viewed by the public as a court-provided service,” the opinion states, “it must operate and appear, to the extent possible, as an independent function of the court.”   Thus, the Board advises that the court’s oversight and involvement “should be de minimis,” primarily funding and appointment of the lawyers, “not the day-to-day operation.”  Further, the opinion suggests, the physical location of the self-help clinic should reinforce the independence of the court and appointing judges.

The opinion also directs the court to take steps “to avoid communications between the appointed lawyers and court staff and judges about case-related matters that could be interpreted as an ex parte communication or imply that judges are not impartial.”  The opinion does permit occasional meetings between judicial officers, court staff, and appointed lawyers to discuss general administrative issues related to the clinic’s operation.  The opinion notes that the court should appoint the lawyers “impartially on a merit basis, and their compensation should not exceed the fair market value for similar services.”

Finally, the Board emphasizes that a “court that establishes a self-help clinic must be aware of the ethical obligations of the appointed lawyers in the clinic.  Most importantly, a limited client-lawyer relationship is formed when a lawyer participates and assists litigants in a self-help clinic, requiring the lawyer to adhere to his or her ethical obligations under the Rules of Professional Conduct.”

Throwback Thursday

10 years ago this month:

  • The California Commission on Judicial Performance removed a judge for (1) failing to dispose of matters promptly and executing false salary affidavits; (2) becoming embroiled in 3 criminal cases; and (3) failing to respond to a letter from the Commission. Inquiry Concerning Spitzer, Decision and Order (California Commission on Judicial Performance October 2, 2007).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to decide a case within the 90 days permitted by law. Public Reprimand of Roue (Minnesota Board on Judicial Standards October 4, 2007).
  • Based on an agreed statement of facts, the Mississippi Supreme Court suspended a judge for 30 days without pay and publicly reprimanded him for ex parte communications with and giving legal advice to a litigant. Commission on Judicial Performance v. Fowlkes, 967 So.2d 12 (Mississippi 2007).
  • Granting a stipulated petition for discipline, the New Mexico Supreme Court suspended a judge for 2 weeks without pay for (1) living in a housing authority home for 20 months without paying rent and (2) dismissing 3 traffic citations issued to the director of the housing authority. In the Matter of Gomez (New Mexico Supreme Court October 25, 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 newspaper. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007).
  • Adopting the findings of fact, conclusions of law, and recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a former judge from the practice of law for 2 years for her conduct in 2 civil protection order cases, 2 divorce cases, and 1 case involving a complaint that a child was abused and neglected; the Court stayed 12 months of the suspension on condition that the former judge commit no further violations. Disciplinary Counsel v. Squire, 876 N.E.2d 933 (Ohio 2007).
  • Adopting the findings and recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a judge’s license to practice law for 18 months, with 6 months stayed with conditions, for (1) jailing a gallery spectator for contempt without cause; (2) presiding over a defendant’s plea and sentencing even though he had accompanied the police officer after signing a search warrant for the defendant’s apartment; (3) attempting to coerce plea agreements in 2 criminal cases; (4) insisting that a domestic violence victim’s facial injuries be photographed; (5) calling 911 to have a police officer sent to his chambers to transport a prisoner to court; (6) telephoning a defendant’s alleged drug dealer in open court; and (7) repeatedly mistreating defendants and other participants in court proceedings. Disciplinary Counsel v. Parker, 876 N.E.2d 556 (Ohio 2007).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for (1) stating, “I would if you pulled it out but you can’t find it,” in response to a vulgar statement by a defendant and (2) referring to the ethnicity of 2 defendants while presiding over mental health court. In the Matter of Chow, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct October 24, 2007).

Parsing truth

A lack of candor can be misconduct and/or an aggravating factor in determining the appropriate sanction in judicial discipline proceedings, sometimes leading to removal when the underlying misconduct otherwise might not.  But courts and judicial conduct commissions have identified different degrees of dishonesty with different consequences.  In 2 recent cases, for example, the Michigan Supreme Court and Judicial Tenure Commission discussed actionable falsehoods, statements “unworthy of belief,” selective or incorrect memories, imprecise expressions, intentional misrepresentations, inaccurate or careless answers, lying under oath, guesses, and speculation.

The Court publicly censured 1 judge for directing insulting, demeaning, and humiliating comments and gestures to 3 children during a contempt proceeding in a protracted and highly contentious divorce and custody case.  In re Gorcyca (Michigan Supreme Court July 28, 2017).  The Commission had also found that the judge committed misconduct by holding the oldest child in contempt for refusing to participate in parenting time with his father and ordering the 3 children confined to a children’s residential center until their father determined they had purged themselves of contempt.  The Court agreed that the judge committed legal error but concluded that error did not constitute judicial misconduct because she had acted with due diligence (appointing attorneys for the children and holding a hearing) and her error could not be fairly characterized as willful failure to observe the law (no one in the courtroom offered alternatives for handling the difficult circumstances or suggested that she was crossing a line).

In addition to other inappropriate comments, the judge had said to the father with respect to the oldest child, 13-year-old LT, “Dad, if you ever think that he has changed and therapy has helped him and he’s no longer like Charlie Manson’s cult, then you let us know and we can do it.”  While making that statement, she made a circular gesture with her finger near her temple.

In response to the Commission inquiry, the judge denied that she had circled her temple with her finger “to indicate or even imply that [LT] was crazy,” explaining that she believed the motion simulated “a wheel moving forward” to indicate that the father should let her know if LT made any forward movement as a result of therapy.

The master had found that answer was false.  The Commission disagreed, stating that knowledge that a statement is false and an intention to deceive are required.  It explained:

The fact that a statement may be incorrect does not, by itself, render the statement “false” within the context of a legal proceeding.  It may be discredited, or deemed unworthy of belief, but given the limits of human memory and perception, as well as the limitations of language, it would be unfair to impute motives of deception or falsehood to everyone who says something that someone else finds incredible, or that proves to be incorrect.  Selective memory does not equal falsehood; incorrect memory does not equal falsehood; imprecision in expression does not equal falsehood; even an answer that one chooses to disbelieve does not equal a falsehood.

The Commission noted that, during the hearing, the judge had “clarified that she did not recall making the gesture and was unaware she had done so until she viewed the video recording of the proceedings,” but that, when she gave her response, she had felt “obligated to provide her best guess about what she intended.”  The Commission emphasized that “the simple answer — ‘I do not remember what was in my mind at the time’ — would have been both accurate and helpful” but concluded that, “as long as she was candid about her lack of memory,” her “speculation about her motives or intentions in performing actions months earlier — actions that she could not even recall” were not “actionable falsehoods.”

However, noting the judge’s response was sufficiently misleading to require a hearing, the Commission requested over $12,500 in costs pursuant to a rule that authorizes costs “if the judge engaged in conduct involving fraud, deceit, or intentional misrepresentation, or if the judge made misleading statements to the [C]ommission, the [C]ommission’s investigators, the [M]aster, or the Supreme Court.”

Disagreeing on review, the Michigan Supreme Court stated that a misleading statement required an actual intent to deceive or at least some showing of wrongful intent.  It concluded that the judge had “merely speculated as to her intent” and that a guess was not akin to a misrepresentation or misleading statement.

* * *
In the second case, the Court suspended a judge for 9 months without pay for interfering with a police investigation at the scene of an accident involving his intern, interfering with the prosecution of the intern, and making an intentional misrepresentation to the Commission; the Court also ordered that the judge pay over $7,500 in costs.  In re Simpson (Michigan Supreme Court July 25, 2017).

In July 2013, Crystal Vargas accepted an internship with the judge.  Within days, the judge and Vargas began communicating with each other frequently by telephone call and text message, exchanging several thousand communications in 4 months, at all times of the day and night and on weekends.

On September 8, the judge and Vargas exchanged 6 text messages between 1:25 a.m. and 2:29 a.m. and 6 text messages between 4:20 a.m. and 4:23 a.m.  At about the time of the latter messages, Vargas was involved in a motor vehicle accident less than 2 miles from the judge’s home.  Vargas called the judge at 4:24 a.m., shortly after the accident.

While Vargas was still on the phone with the judge, Officer Robert Cole arrived at the scene.  As Cole was administering field sobriety tests to Vargas, the judge arrived.

Concluding that the judge’s “behavior at the accident scene constitutes judicial misconduct,” the Court found that the judge “used his position as a judge in an effort to scuttle a criminal investigation of his intern.”

[R]espondent exited his vehicle and approached Ms. Vargas and Officer Cole as sobriety tests were being performed.  Indeed, respondent interrupted the sobriety-testing process.  Respondent, who had prosecuted numerous drunk-driving cases on behalf of Superior Township before he became a judge, was certainly aware that Officer Cole was investigating whether Ms. Vargas was under the influence of alcohol or a controlled substance.  Given these circumstances, when respondent began his interaction with Officer Cole by introducing himself as “Judge Simpson,” he appears at best to have failed to prudently guard against influencing the investigation and at worst to have used his judicial office in a not-so-subtle effort to interfere with the investigation.  Indeed, but for respondent’s status as a judge, Officer Cole would not have spoken to respondent until Officer Cole completed his investigation.  Next, respondent spoke to Ms. Vargas during the investigation without Officer Cole’s permission — another action an ordinary citizen would not have been permitted to take.  Finally, respondent’s question — “Well, does she just need a ride or something?”— was a transparent suggestion to Officer Cole to end his investigation and allow respondent to drive Ms. Vargas away from the scene.

Subsequently, the judge twice contacted the township prosecutor, describing Vargas as a “good kid” who was in a “pretty bad relationship,” noting that the prosecutor had met Vargas in the past and would be working with her in the future, raising an evidentiary issue, and discussing potential defense attorneys.  The Court concluded that the judge “improperly acted as a legal advocate for Ms. Vargas and used his position as a judge to thwart the township’s criminal prosecution of his intern,” succeeding for a time in delaying the charges, and that his “actions—individually and taken together” constituted judicial misconduct.

In his answer to the Commission complaint, the judge had stated that “the vast bulk” of his communications with Vargas “related to a complex, sensitive project” she was working on for him in People v. Nassif.  The Court agreed with the Commission finding that that statement was “an intentional misrepresentation or a misleading statement.”  The Court explained:

The sheer number of communications—which were frequently exchanged during the night and on weekends—is inconsistent with respondent’s explanation that the communications related to court business, including an in camera review of evidence in the Nassif case.  Moreover, respondent testified that he learned that the Nassif case was assigned to him on August 11 or 12, and that his court did not receive the evidence for the in camera review until September 12.  Yet respondent and Ms. Vargas had already exchanged a surfeit of communications by then.  In addition, this explanation was inconsistent with another explanation advanced by respondent—that the communications were attributable to the “problems” that Ms. Vargas was having with her former boyfriend, who allegedly had been violent toward her.

However, the Court disagreed with the Commission’s additional finding that the judge made a separate intentional misrepresentation or misleading statement while testifying under oath at the hearing.  In response to the question whether he had any contact with Vargas between midnight and 3:30 that morning, the judge had answered “no” but then added, “I don’t believe there were any text messages.  I don’t believe that there was any contact.”  In fact, telephone records indicated that the judge and Vargas exchanged 6 text messages between 1:25 a.m. and 2:29 a.m.

The Court concluded that the judge had not made an intentional misrepresentation because he had “equivocated by adding that he did not ‘believe’ that there was any communication.”

[C]onsidering this context, it appears that respondent simply may not have recalled the precise timing of a few of the many communications he had with Ms. Vargas—communications that were not central to the allegations of misconduct in this case.  We find that respondent’s testimony on this point was careless and that he provided inaccurate information.  However, we do not believe that the JTC has sustained its burden of proving by a preponderance of the evidence that respondent made an intentional misrepresentation or misleading statement regarding his contacts with Ms. Vargas before 4:00 a.m. on September 8, 2013.

The Court noted that the Commission had also “equivocated” by finding that the judge made “an intentional misrepresentation or misleading statement,” and the Court stated that, if the Commission intended to find that the judge made an ‘”intentional misrepresentation,’ it should not have expressed its finding in the alternative.”  The Court emphasized that “it is far from clear that a ‘misleading statement’ is equivalent to a ‘lie under oath,’” noting it has not addressed “whether materiality or an intention to deceive are necessary to prove that a judge testified falsely under oath.”  Finally, stating that the judge should not receive a more serious sanction simply because he denied the allegations of misconduct, the Court explained that a contrary rule “would create immense pressure on judges to stipulate to the charges or risk removal for fighting them.”

Throwback Thursday

20 years ago this month:

  • The Delaware Supreme Court suspended for 3 months without pay and publicly censured a part-time judge for (1) failing to pay federal, state, and city payroll taxes for his law firm’s payroll and to timely file withholding reports; (2) failing to pay property taxes and to pay delinquent property taxes in accordance with a schedule he and the county had agreed upon; (3) having 29 unpaid parking tickets; and (4) failing to properly maintain his law office records and to correctly answer questions on the certificate of compliance with client account reconciliation requirements. In the Matter of Williams, 701 A.2d 825 (Delaware 1997).
  • Accepting the recommendation of the Commission on Judicial Qualifications, the Florida Supreme Court publicly reprimanded a judge for, as a candidate, (1) claiming to have circuit judicial experience, when her service was that of a general master; (2) claiming that her opponent had no circuit judicial experience, when she had extensive experience as a county judge who had been assigned to the circuit court; (3) injecting party politics into a non-partisan election by noting the party affiliation of the governor who had appointed her opponent as county judge; (4) including a photograph of her opponent sitting next to a criminal defendant, noting that her opponent “defend[ed] convicted mass murderer, cop killer, William Cruse,” when at the time of the photograph Cruse had not been convicted and her opponent was an assistant public defender; and (5) including a portion of a newspaper editorial implying that she, not her opponent, had been endorsed by the newspaper. Inquiry Concerning Alley, 699 So. 2d 1369 (Florida 1997).
  • The Mississippi Supreme Court suspended a judge for 30 days without pay, fined her $1,500, and publicly reprimanded her for (1) issuing an arrest warrant on petit larceny and simple assault charges filed by a friend and distant relative; (2) having license tags from her husband’s car on her car; (3) writing a check she did not have sufficient funds in her checking account to cover; and (4) failing to file with the circuit clerk reports of contributions or expenditures required by statute. Commission on Judicial Performance v. Franklin, 704 So. 2d 89 (Mississippi 1997).
  • Affirming the determination of the Commission on Judicial Discipline, the Nevada Supreme Court removed a judge from office for (1) borrowing money from court employees and not always promptly repaying the loans, forcing the employees to make oral and/or written demands for payment; (2) publicly endorsing and campaigning for a judicial candidate and testifying falsely to the Commission that he had only gone to houses where he knew the residents while going door-to-door campaigning for the candidate; (3) storing antiques throughout the courthouse, selling those antiques to persons with whom he came in contact at the courthouse, and directing city employees and jail trustees to move antiques into and out of the courthouse; (4) directing court employees during normal business hours to go to the nursery business owned by his mother to provide Spanish translating services and to perform other personal errands for him, including antique shopping; (5) directing or suggesting to persons appearing before the court who had been found guilty to contribute money to certain charities in lieu of paying fines to the city, diverting approximately $405,916 from the city treasury to his selected charities; and (6) using property he owned in part that was zoned for residential purposes for commercial purposes after been advised by the community planning department of the proper zoning for the property and causing his agents to trespass on adjoining property to hook up water and sewer lines. In the Matter of Davis, 946 P.2d 1033 (Nevada 1997).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct censured a judge for a series of legal and procedural errors in a harassment case and making improper statements that compromised his impartiality and the proper administration of justice. In the Matter of Smith, Determination (New York Commission on Judicial Conduct October 29, 1997).
  • Accepting the findings and conclusions of the Board of Commissioners on Grievances and Discipline and adopting its recommendation, the Ohio Supreme Court publicly reprimanded a judge for appearing in a television commercial for a law firm. Office of Disciplinary Counsel v. Allen, 684 N.E.2d 31 (Ohio 1997).
  • Adopting the recommendation of the Judicial Investigation Commission, the West Virginia Supreme Court of Appeals publicly admonished a judge for discussing the reduction of DUI charges against a distance relative with the police officer, communicating ex parte with the relative and other family members about the case at least 3 times, creating the appearance that he had struck a deal to reduce the charge, and accepting gifts of china and an ashtray in appreciation for his assistance. In the Matter of Reese, 495 S.E.2d 548 (West Virginia 1997).

Recent judicial discipline cases

  • The California Commission on Judicial Performance publicly admonished a court commissioner for tolerating offensive and inappropriate comments by court staff and making profane and derogatory comments about a court interpreter. Public Admonishment of Kliszewski (California Commission on Judicial Performance October 4, 2017).
  • Based on a stipulation and consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for giving an interview about a pending case on which he had served as prosecutor. In the Matter of Kephart, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline August 31, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for comments she made criticizing the district attorney during 4 habeas corpus hearings on the same date. Public Reprimand of Schildknecht (Texas State Commission on Judicial Conduct August 22, 2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct censured a judge for 8 instances of unjustified decisional delay in a variety of cases over 3 years. In re Roberts, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 26, 2017).
  • A hearing panel of the Ontario Judicial Council suspended a judge for 30 days without pay and reprimanded him for wearing a “MAKE AMERICA GREAT AGAIN” baseball cap in the courtroom the day after the U.S. presidential election. In the Matter of 81 Complaints Respecting Zabel, Reasons for decision (Ontario Judicial Council September 11, 2017).