Throwback Thursday

5 years ago this month:

  • Based on a joint motion to resolve charges, the Alabama Court of the Judiciary reprimanded and censured a judge for failing to recuse himself from his son’s traffic violation case and dismissing the case. In the Matter of Durward, Reprimand and Censure (Alabama Court of the Judiciary November 21, 2012).
  • Based on the recommendation of the Commission on Judicial Conduct and a stipulated resolution, the Arizona Supreme Court censured a former judge for accompanying his niece while she collected nominating petition signatures for a candidate and for speaking at a political meeting. In the Matter of Pearce, Order (Arizona Supreme Court November 26, 2012).
  • With the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for assuming the role of the prosecutor when she attempted to negotiate a resolution to a defendant’s case after the defendant inquired about the status of his traffic infraction ticket and driver’s license suspension and for several ex parte conversations with the prosecutor about the same case. Public Admonition of Hagerty (Indiana Commission on Judicial Qualifications November 19, 2012).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a judge for telling a defendant, “I’ll beat your ass if you call me a liar.” In the Matter of Martin, 734 S.E.2d 165 (South Carolina 2012).

 

Recent cases

  • Approving the findings and recommendation of the Commission on Judicial Qualifications, the Florida Supreme Court suspended a judge for 30 days without pay and publicly reprimanded him for failing to disqualify himself from cases involving an attorney with whom he had an adversarial and contentious professional relationship. Inquiry Concerning Yacucci (Florida Supreme Court November 2, 2017).
  • The New York Court of Appeals removed a non-lawyer judge for (1) repeatedly trying to influence the disposition of a traffic ticket received by his daughter and being discourteous to the prosecutor in the case and (2) in connection with the appeal of his order of restitution in a case, sending 8 letters to the county court that contained factual and legal arguments and biased, discourteous statements about the defendant and his attorney. In the Matter of Ayres (New York Court of Appeals October 17, 2017).
  • Accepting a stipulation based on the judge’s retirement and agreement never to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a matter against a non-lawyer judge; the Commission had apprised the judge that it was investigating a complaint that he dismissed sua sponte a misdemeanor charge of driving while intoxicated after an ex parte investigation and that, in 5 additional matters, he appeared to have engaged in ex parte communications and/or dismissed matters without a statutory basis. In the Matter of Maclaughlin, Decision and order (New York State Commission on Judicial Conduct October 30, 2017).
  • Pursuant to an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for unexplained tardiness for her court dockets. Letter to Little (Tennessee Board of Judicial Conduct October 31, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for his treatment of prospective jurors and his use of the contempt power against lawyers. Public Reprimand of Aguilar and Order of Additional Education (Texas State Commission on Judicial Conduct November 6, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) communicating ex parte with the judge presiding over her nephew’s criminal case and voluntarily testifying as a character witness on her nephew’s behalf at his probation revocation hearing and (2) shaming and reprimanding jurors who found a defendant guilty. Public Reprimand of Hawthorne (Texas State Commission on Judicial Conduct November 9, 2017).
  • The West Virginia Judicial Investigation Commission publicly admonished a magistrate for (1) failing to give a defendant a jury trial as he had timely requested and failing to timely respond to the allegations and (2) publicly endorsing a candidate for appointment for magistrate and commenting on an impending criminal matter against a former magistrate. Public Admonishment of Halloran (West Virginia Judicial Investigation Commission November 2, 2017).

Throwback Thursday

10 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for approving a plea agreement that provided for the postponement of sentencing and release of the defendant on his own recognizance on condition he leave California and remain outside the state, a clear violation of case law and public policy. Public Admonishment of Iles (California Commission on Judicial Performance November 15, 2007) .
  • Based on the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge for (1) failing to schedule and conduct hearings in 2 matters filed by a consumer loan company; issuing judgments in favor of the plaintiff in both matters despite never conducting a hearing; failing to notify, provide for, or arrange service of process of the suits or of the judgments; and failing to communicate with the plaintiff regarding the suits; and (2) making contradictory and unsupported statements to and failing to cooperate with the Commission. In re Franklin, 969 So. 2d 591 (Louisiana 2007).
  • The New York State Commission on Judicial Conduct removed a judge who had been convicted of tampering with the utility company meter measuring electricity to his home. In the Matter of Myles, Determination (New York State Commission on Judicial Conduct November 1, 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a non-lawyer town court judge for failing for 6 years to adequately perform his administrative and supervisory duties, resulting in the careless handling of funds collected by the court.  In the Matter of Brooks, Determination (New York State Commission on Judicial Conduct November 7, 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a non-lawyer judge for dismissing 2 charges against a defendant and reducing a third charge based on ex parte discussions with an Army recruiter and without notice to or the consent of the district attorney’s office. In the Matter of Ballagh, Determination (New York State Commission on Judicial Conduct November 7, 2007).
  • The New York State Commission on Judicial Conduct censured a judge for speaking ex parte to an arresting officer concerning a matter affecting a defendant’s credibility. In the Matter of Williams, Determination (New York State Commission on Judicial Conduct November 13, 2007).
  • The Virginia Supreme Court removed a judge for (1) calling ex parte the hospital where a woman seeking a temporary protective order had been treated and twice directing the women to lower her pants in the courtroom so he could inspect the wound on her thigh and (2) in a separate case, twice tossing a coin in the courtroom to resolve a visitation dispute. Judicial Inquiry and Review Commission v. Shull, 651 S.E.2d 648 (Virginia 2007).

Resign-to-run rule

Rule 4.5 of the American Bar Association 2007 Model Code of Judicial Conduct provides that, “[u]pon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless permitted by law to continue to hold judicial office.”  Canon 5C(2) of the 1990 model code and Canon 7A(3) of the 1972 model code were similar, and California and Montana are the only states not to adopt a resign-to-run requirement.

The rationale for the rule was described in a federal case upholding the Louisiana canon against a First Amendment challenge by a judge who wanted to run for mayor without first resigning.  Morial v. Judiciary Commission, 565 F.2d 295 (5th Circuit 1977).  The U.S. Court of Appeals for the 5th Circuit acknowledged that “relegating one’s robes to the closet is a heavy price to pay for tossing one’s hat in the ring.”  However, the Court concluded:

By requiring a judge to resign at the moment that he becomes a candidate, the state insures that the judge will not be in a position to abuse his office during the campaign by using it to promote his candidacy.  The appearance of abuse which might enshroud even an upright judge’s decisions during the course of a hard-fought election campaign is also dissipated by requiring the judge to resign.  He who does not hold the powers of the office cannot abuse them or even be thought to abuse them.

Moreover, the Court agreed that resignation was necessary to prevent post-campaign abuse or its appearance, which could not be prevented by a leave of absence during the campaign.  Noting that a state is not required to rely on post-campaign measures such as recusal or disciplinary proceedings against judges who used their office improperly, the Court held that “a requirement that a judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state’s interest in preventing the actuality or appearance of judicial impropriety,” without offending the First Amendment’s guarantees of free expression and association or the 14th Amendment’s guarantee of equal protection of the laws.  Accord Matter of Buckson, 610 A.2d 203 (Delaware 1992).

Similarly, the Maine Supreme Judicial Court concluded the rule “rationally seeks to separate a judge’s political, legislative, or executive branch ambitions from the judge’s judicial decision-making to further the objective of maintaining a judiciary that is independent and impartial both in fact and in the public’s perception.”  In re Dunleavy, 838 A.2d 338 (Maine 2003).  Rejecting the judge’s state and federal constitutional challenges, the Court found that a probate judge had violated the code of judicial conduct by running for the state senate without resigning his judicial position, although it imposed no discipline.

A comment was added to the model code in 2007 to explain the basis for the rule.

In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office.  Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her.  The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.

Timing

The code does not define when a judge becomes “a candidate for a nonjudicial elective office,” triggering the resignation requirement, but it does provide that for a judicial office a person becomes a candidate “as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office.”  The same definition has been applied in interpreting the resign-to-run rule.

Thus, a judge must resign whenever the judge announces to the public the intention to run for a non-judicial office, whether by issuing a press release, filing with the proper authority, “or any other method by which he lets his candidacy become generally known.  To hold otherwise would permit the very appearance of impropriety to which the [resign-to-run rule] is directed.”  Kentucky Formal Opinion JE-23 (1981).

The Delaware Court on the Judiciary found that a judge who had publicly announced in a press release that he intended to have his “name placed before the Republican Convention to be the gubernatorial nominee for Governor of Delaware” had violated the code.  Matter of Buckson, 610 A.2d 203 (Delaware 1992).  The Court censured and removed him from office.

In a press release, the judge had stated:

The party deserves a choice.  This is not partisan politics and, therefore, not in violation of any rules pertaining to the judiciary.  When I am the nominee, I will resign my present position and ask the Governor to promptly name a successor acceptable to the Senate.

Based upon the contacts by many people since my November announcement, I have statewide support.  My plan is to attend functions of many of the Republican Party organizations to gain delegates to the convention by presenting my qualifications, . . . Based upon my experience in state government, I am eminently qualified to be Governor of Delaware . . . certainly more so than any person mentioned for the office to date.

So . . . on to the convention!  Thanks.

He had also attended regional party caucuses and other meetings to gain support.  Rejecting the judge’s “testing the waters” defense, the Court held that the record was clear that he had publicly announced his candidacy, his political activity went beyond that of a prospective candidate, and he had actively engaged in political activity to secure the nomination.

The Florida judicial ethics committee stated that when a person becomes a candidate may vary depending on the nature of the community.  Florida Advisory Opinion 1994-20.  In a large community, the committee advised, telling a few friends should not qualify the judge as a candidate for a non-judicial office, but in a small community, the situation may be perceived differently.  The committee noted that the resignation requirement is not triggered simply by an intent to run for office.

Further, a judge does “not have to resign merely to learn whether he has a realistic chance of election.”  Matter of Buckson, 610 A.2d 203 (Delaware 1992).  Thus, without having to resign, a judge may make preliminary surveys of financial and voter support (Kentucky Formal Opinion JE-23 (1981); Louisiana Advisory Opinion 35 (1976)) and discuss the possibility of becoming a candidate with the head of a local political committee, political party members, governmental officials, and political authorities.  New York Advisory Opinion 1991-44; New York Advisory Opinion 1997-65; New York Advisory Opinion 1993-55.

Offices

By its terms, the rule does not require a judge to resign before running for a different judicial office.  See Florida Advisory Opinion 2011-9 (civil traffic infraction hearing officer may run for county judge); Kansas Advisory Opinion JE-117 (2004) (municipal judge may run for district magistrate); Oklahoma Advisory Opinion 1998-3 (sitting appointed judge may run in judicial election); Tennessee Advisory Opinion 2003-4 (general session judge may run for state court judge).  But see In re Hodgdon, 19 A.3d 598 (Vermont 2011) (public reprimand of an assistant judge who failed to resign upon becoming a candidate for probate judge when the state’s code provides that, “A judge shall resign from judicial office upon becoming a candidate for any elective office, except that a judge of probate or an assistant judge may be a candidate for reelection or may serve as town meeting moderator, provided that the judge complies with the provisions of Section 5C”).

The model code allows a judge to be a candidate for appointment to a non-judicial office without resigning provided “the judge complies with the other provisions of this Code.”  A comment notes, “when a judge is seeking appointive nonjudicial office,” the dangers the resignation requirement was designed to prevent “are not sufficient to warrant imposing the ‘resign to run’ rule.”  The reporters’ notes further explain:

In addition, because a sitting judge may become a “candidate” for an appointive non-judicial office . . . merely by being considered by an executive branch officer for appointment, the Commission decided it was unwarranted to require automatic resignation.  This consideration is especially strong when the executive branch may be considering several nominees for the same position, and when the confirmation process, if any, is both lengthy and of uncertain outcome.

However, “[a]s a fail-safe,” the code reminds a judge who is a candidate for even an appointive non-judicial office “to abide by the other provisions of this Code (such as maintaining independence, integrity, and impartiality).”

Similarly, the Ohio judicial ethics committee advised that a judge was not required to resign from judicial office to become a candidate for appointment by a county central committee to the office of prosecuting attorney but that her activities would be limited by the code of judicial conduct.  Ohio Advisory Opinion 1998-6.  Thus, the judge could announce her intention to be a candidate to the public and to the appointing authority and seek support or endorsement “from individuals or organizations that are involved in the making of the recommendation for appointment to the office.”  However, the judge could not participate in any fund-raising and must ensure that her efforts to win the appointment do not interfere with the diligent and impartial performance of her judicial duties.  The committee advised that the judge should resign from judicial office before accepting the appointment if offered.

See also Nevada Advisory Opinion JE2011-15 (a judge must resign before becoming a candidate for appointment to the unexpired term of the elective office of district attorney); New York Advisory Opinion 2015-176 (a judge may reveal, discuss, and explore his interest in an interim appointment to non-judicial office with the public official who will make that decision if the position becomes vacant).

There are no other exceptions.  Thus, conduct commissions and advisory committees have stated that a judge must resign before running for:

See also South Carolina Advisory Opinion 8-2016 (a full-time magistrate cannot run for a political office).

Admonishing a part-time judge, the New York State Commission on Judicial Conduct found that he should not have run for the school board even if he was unopposed and even if the post was non-partisan.  In the Matter of Vosburgh, Determination (New York State Commission on Judicial Conduct September 24, 1991).  The Commission explained:

Although not openly aligned with major political parties, school board members in most jurisdictions of the state are elected, political officers.  Service on a school board often requires a member to take positions on controversial issues of community interest other than those related to the law, the legal system or the administration of justice.

The judge had been elected to fill an unexpired term on a local school board in May 1987; in November 1987, he was elected as a part-time town court justice.  When he stood for re-election to the school board in May 1990, he asked for an advisory opinion but ignored it when the judicial ethics committee stated that a part-time judge who was elected to the local school board before becoming a judge may not seek re-election to the board.  New York Advisory Opinion 1990-79.  The advisory committee explained:

Local school boards, both in urban and rural areas, are subjects of wide-spread community interest.  One of their principal functions is approval of budgets and fixation of school taxes, which are subject to controversy.  School board members may be at the center of such controversies and the object of public criticism.

Although the judge states that the school board district is a small part of the jurisdiction of the court, local attention focused on the school board could spread to the rest of the judicial area and to surrounding towns as well.  Thus, the judge could be highly visible in educational controversies, which could be inconsistent with judicial duties.  That the judge is unopposed for re-election does not preclude controversy while serving as a board member.

See also Washington Advisory Opinion 1985-8 (a part-time judge may not become a candidate for an uncompensated, non-partisan school board position in a school district outside the municipality in which the judge sits).

The judge’s resignation must be effective immediately upon becoming a candidate for a non-judicial elective position.  See New York Advisory Opinion 2009-126 (a judge who has announced his candidacy for an elective non-judicial office may not after resigning remain on the judicial payroll to receive compensation for accrued vacation time); West Virginia Advisory Opinion (February 23, 2012) (a mental hygiene commissioner must resign immediately upon becoming a candidate for the house of delegates and cannot be appointed for the limited purpose of serving as the substitute drug court judge during the election); West Virginia Advisory Opinion (January 27, 2011) (a magistrate must resign immediately on announcing his candidacy for sheriff and cannot remain in the position pending appointment of a new magistrate).

The resignation requirement cannot be circumvented by taking a leave of absence from a judicial office while running for a non-judicial office.  See New York Advisory Opinion 1989-126 (town justice may not take a leave of absence to campaign for town supervisor); South Carolina Advisory Opinion 7-1992 (a magistrate cannot simply take a leave of absence, without pay, to become a candidate for sheriff).  In California, there is no resign-to-run rule, and the state constitution allows a trial judge to “become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy.”  The California code of judicial ethics provides that a judge who is on leave while running for other public office pursuant to the constitution “shall comply with all provisions of this code, except . . . , insofar as the conduct relates to the campaign for public office for which the judge is on leave:  2B(2)—Lending the prestige of judicial office to advance the judge’s personal interest, 4C(1)—Appearing at public hearings, 5 — Engaging in political activity (including soliciting and accepting campaign contributions for the other public office).”  The California constitution provides that “[a]cceptance of the public office is a resignation from the office of judge.”

Throwback Thursday

20 years ago this month:

  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a part-time judge who had been disbarred for conduct involving dishonesty, fraud, and deceit in his handling of an estate as a private attorney. In the Matter of Embser, 688 N.E.2d 238 (New York 1997).
  • Accepting a stipulation consenting to the findings of fact, conclusions of law, and order of the Commission on Judicial Conduct, the Utah Supreme Court publicly reprimanded a judge for presiding over a criminal proceeding in which he knew that his mother-in-law would likely be a material witness. Inquiry Concerning Herring (Utah Supreme Court November 17, 1997).

 

A sampling of recent judicial ethics advisory opinions

  • A judge presiding over a civil matter involving allegations that a non-party minor committed sexual abuse should not solicit an attorney to represent the minor pro bono during a deposition to protect his right against self-incrimination and should not direct the parties’ attorneys to solicit such representation. New York Opinion 2017-114.
  • A court may establish a self-help center to provide legal assistance to persons of limited means who otherwise would not be represented and may appoint and compensate lawyers as independent contractors for the center to provide limited scope representation that does not include representation before the court. Ohio Opinion 2017-7.
  • A municipal court may house a customer service kiosk purchased by the city that asks, “Was our staff professional and courteous?” and allows users to select 1 to 4 “smiley” faces to indicate their level of satisfaction. South Carolina Opinion 13-2017.
  • The supreme court justices who are named as defendants are required to recuse themselves from a case filed by an inmate, but the other justices may hear the case. Utah Informal Opinion 2017-2.
  • Absent a relationship between the judge and a former law clerk that would otherwise require the judge to recuse, a judge is not required to disclose that a lawyer in a case is a former law clerk. Maryland Opinion Request 2017-21.
  • A judge may permit a court attorney to raise funds to offset the costs of an international adoption through fund-raisers away from the courthouse during non-working hours and to use personal social media accounts to promote the fund-raisers. The judge may attend and make contributions from her personal funds but may not assist with any solicitation.  New York Opinion 2017-68.
  • A judge’s wife may chair a motorcycle poker run to raise funds for Alzheimer’s research and treatment, and the judge may ride in the event if he does not help plan it or solicit donations. West Virginia Advisory Opinion 2017-11.
  • A judge may not participate in a “dancing with the stars” fund-raiser for United Way in which people pay $5 to vote for their favorite dancer. West Virginia Opinion 2017-15.
  • A judge may sing in a band that plays without compensation at fund-raisers for law-related organizations, non-fund-raising events, or private parties hosted by or honoring lawyers if the judge would disqualify herself from cases involving those lawyers because of personal friendship but may not sing at political fund-raisers, fund-raisers for non-law-related organizations, or private parties hosted by or honoring other lawyers who are reasonably likely to appear before her. A judge may not as an independent contractor sing in a band that performs for a fee even if she declines her share.  Massachusetts Letter Opinion 2017-4.
  • A judge may speak to community groups about the Constitutional Revision Commission as part of a Florida Bar-sponsored “Protect Florida Democracy” program. Florida Opinion 2017-15
  • A judge may not participate in a “Call to Service and Compassion Workshop” to honor child abuse victims and survivors hosted by a child advocacy center. New York Opinion 2017-108.
  • With conditions, a new judge may complete his terms as a member of the board of directors of a county bar association and of the executive board of the state bar association. Massachusetts Letter Opinion 2017-3

Throwback Thursday

25 years ago this month:

  • In a public letter, the Arkansas Judicial Discipline and Disability Commission admonished a judge for directing 3 teenagers into a police station to be charged with disorderly conduct after he observed 2 of them making an obscene gesture in front of a slain police officers’ memorial while the third took their picture; directing the police department to seize the camera and develop the film; presiding at their criminal trial; and then directing that they perform community service. Letter to Watt (Arkansas Judicial Discipline and Disability Commission November 24, 1992).
  • In a public letter, the Arkansas Judicial Discipline and Disability Commission admonished a judge for, during a court hearing, reaching across and grabbing a pack of cigarettes rolled in the sleeve of a litigant’s t-shirt, tearing the sleeve, and using inappropriate language toward the litigant. Letter to Hodnett (Arkansas Judicial Discipline and Disability Commission November 24, 1992).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for continuing to act as a fiduciary in several estates after becoming a judge, continuing to perform business or legal services for clients, and maintaining a business and financial relationship with his former law firm, which had an active practice before his court. In the Matter of Moynihan, 604 N.E.2d 136 (New York 1992).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct admonished a judge for failing to fully review bail bonds presented to him and, as a result, approving bail bonds presented by someone who was not authorized to do so and ordering the release of defendants on bonds that could not be used to secure their appearance in court. In the Matter of Corning, Determination (New York State Commission on Judicial Conduct November 4, 1992).