2017 State judicial discipline sanctions

Top judicial ethics stories of 2017

In 2017, as a result of state disciplinary proceedings, 6 judges were removed from office.  In addition, 15 judges or former judges resigned or retired in lieu of discipline pursuant to public agreements with conduct commissions; 1 judge was ordered retired based on a finding of mental inability to perform duties; 1 judge’s permanent resignation was ordered based on compromised cognitive and physical abilities; and 1 judge was suspended without pay until the end of his term.

17 judges were suspended without pay as a final sanction; the length of the suspensions ranged from 2 years (plus a $15,000 fine) to 3 weeks (plus a public censure).  6 of the other suspensions also included reprimands, censures, and/or fines.

64 judges (or former judges in 4 cases) were publicly censured, reprimanded, admonished, or warned.  There were:

  • 12 censures. 1 censure was severe, 1 was based on the judge’s agreement to tender his irrevocable resignation and not seek or hold judicial office in the state, 1 was based on a former judge’s agreement not to hold judicial office, and 1 included a retired judge’s agreement to resign his commission as an emergency judge.
  • 31 reprimands. 2 of the reprimands barred former judges from judicial office, and 7 also ordered additional education.
  • 18 public admonishments. In 1 case, the judge also agreed to additional training.
  • 3 public warnings, all of which also ordered additional education.

Complaints against 9 additional judges or former judges received other public dispositions.

  • 1 judge was placed on probation for 3 years with conditions
  • 1 judge was ordered to reimburse the court $10,002.58 for unauthorized benefit payments
  • 1 judge received a public caution with a dismissal without prejudice of multiple complaints
  • 1 judge received a public letter of counsel
  • 1 former judge was ordered to cease and desist from using misleading campaign material
  • 1 former judge was found to have committed misconduct but no sanction was imposed because the judge was no longer in office
  • 3 former judges were suspended from the practice of law for misconduct while judges

Click here for the state judicial discipline sanction information for 2016.

As noted, In 2017, there were 6 removals.

  • Based on the judge’s voluntary resignation and agreement to be permanently ineligible to serve as a judge, the Arkansas Judicial Discipline & Disability Commission removed from office a judge who had been charged by the Commission and in a criminal information with failing to file state or federal income tax returns for many years before and after becoming a judge. Judicial Discipline & Disability Commission v. McCallister, Resignation and removal from office by agreement (Arkansas Judicial Discipline & Disability Commission December 15, 2017).
  • Accepting the findings of fact and conclusions of law of the Judicial Standards Commission and granting its recommendation, the New Mexico Supreme Court permanently removed a magistrate for (1) continuing to have ex parte communications with litigants after being told multiple times to stop; (2) refusing to accept a prosecutor’s nolle prosequi; (3) abandoning her docket 1 day; and (4) arresting an innocent court clerk for criminal contempt. In the Matter of Johnston, Order (New Mexico Supreme Court October 23, 2017).
  • On plenary review of the record, the New York Court of Appeals sustained the findings of the State Commission on Judicial Conduct and concluded that the removal of a non-lawyer judge was warranted for (1) multiple efforts 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 and discourteous statements about the defendant and his attorney. In the Matter of Ayres, 85 N.E.3d 1011 (New York 2017).
  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld the removal of a judge for seeking the advice of another judge about her son’s case and acquiescing in his offer to communicate ex parte with the judge who was handling the case. In re Roca, 173 A.3d 1176 (Pennsylvania 2017).  Click here for a longer post about the case.
  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld a judge’s removal for listening to another judge’s requests for favorable treatment for parties in 3 In re Segal, 173 A.3d 603 (Pennsylvania 2017).  Click here for a longer post about the case.
  • The Virginia Supreme Court removed a judge from office for contacting 2 potential witnesses prior to his wife’s trial on federal corruption charges. Judicial Inquiry and Review Commission v. Pomrenke, 806 S.E.2d 749 (Virginia 2017).

 

 

Throwback Thursday

5 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Conduct, the Alaska Supreme Court removed a former judge for, in ex parte communications, suggesting relevant case law to the prosecution in 2 cases. In re Cummings, 292 P.3d 187 (Alaska 2013).
  • The Delaware Court on the Judiciary publicly censured a judge for delay and failing to comply with reporting mandates. In re Coppadge 74 A.3d 593 (Delaware 2013).
  • The Louisiana Supreme Court suspended a judge for 1 year without pay for (1) failing to disqualify himself from a hearing on an inmate’s motion to reconsider his sentence after it became clear that the inmate was making allegations that would benefit the judge and (2) giving advice to the inmate in an ex parte letter. In re Boothe, 110 So.3d 1002 (Louisiana 2013).

 

Recent cases

  • Approving a stipulation for discipline by consent and based on the judge’s agreement to resign, the California Commission on Judicial Performance publicly admonished a judge for (1) making a material misrepresentation to the Commission during a prior investigation; (2) improperly using her court credit card 14 times in violation of court policies; (3) frequently arriving to court after the calendar over which she presided was scheduled to start; (4) twice revising the local court rules without providing the notice of and opportunity to comment required by the California Rules of Court; and (5) appointing her former law partner to represent a conservatee in a matter without disclosing the relationship or disqualifying herself from the case. In the Matter Concerning Johnson, Decision and order (California Commission on Judicial Performance January 16, 2018).
  • The Illinois Courts Commission retired a judge who was mentally unable to perform her duties. In re Turner, Order (Illinois Courts Commission December 1, 2017).
  • In lieu of formal disciplinary proceedings and based on the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for 2 incidents involving his estranged wife and firearms that prompted law enforcement investigations. Public Admonition of Day (Indiana Commission on Judicial Qualifications December 29, 2017).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for undermining the right to counsel in 3 cases, conveying an appearance of bias, eliciting incriminatory responses from a defendant at arraignment, making discourteous and threatening comments, destroying court records without authorization, and holding extra-judicial positions (court clerk and fire police officer) that were incompatible with judicial office. In the Matter of Kline, Determination (New York State Commission on Judicial Conduct December 26, 2017).
  • Agreeing with the findings and recommendation of a panel of the Board of Professional Conduct based on a stipulation, the Ohio Supreme Court publicly reprimanded a magistrate for asserting her status in an attempt to avoid arrest during a traffic stop. Disciplinary Counsel v. Williams (Ohio Supreme Court December 19, 2017).
  • The Ohio Supreme Court indefinitely suspended a former judge from the practice of law for his conviction, based on a guilty plea, to 1 count of attempted felonious assault and 1 count of domestic violence. State Bar Association v. Mason (Ohio Supreme Court December 28, 2017).
  • Based on the unanimous report and recommendation of the Disciplinary Board, the Pennsylvania Supreme Court disbarred a former judge from the practice of law for using cocaine he stole from the evidence locker in his courtroom. Office of Disciplinary Counsel v. Pozonsky, Opinion (Pennsylvania Supreme Court January 18, 2018).
  • Pursuant to the judge’s agreement with an investigative panel, the Tennessee Board of Judicial Conduct publicly reprimanded a part-time judge and suspended him from judicial duties for 120 days without impairment of compensation for failing to timely file a petition for a client and making false statements to the client and/or her daughters; the Tennessee Supreme Court had suspended the judge from the practice of law for 3 years, with 120 days active suspension and the remainder on probation, for the same conduct pursuant to his conditional guilty plea to a petition for discipline. Letter to Boyd (Tennessee Board of Judicial Conduct January 11, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) setting a $4 billion bond for a murder suspect and (2) magistrating her own son; the Commission also ordered that the judge receive 2 hours of instruction on magistration with a mentor. Public Reprimand of Brown and Order of Additional Education (Texas State Commission on Judicial Conduct December 19, 2017).
  • The Texas State Commission on Judicial Conduct publicly admonished 3 hearing officers for strictly following directives not to issue personal bonds to defendants per the instructions of the judges in whose court the cases were assigned; the Commission also ordered the hearing officers to obtain 4 hours of instruction with a mentor on magistration and bond setting. Public Admonition of Licata and Order of Additional Education (Texas State Commission on Judicial Conduct January 10, 2018); Public Admonition of Hagstette and Order of Additional Education (Texas State Commission on Judicial Conduct January 10, 2018); Public Admonition of Wallace and Order of Additional Education (Texas State Commission on Judicial Conduct January 10, 2018).

Throwback Thursday

10 years ago this month:

  • The Louisiana Supreme Court suspended a judge for 15 days without pay for (1) failing to give a judgment debtor proper notice of a hearing, finding the judgment debtor in contempt of court without conducting a hearing or allowing the judgment debtor to be heard, and issuing an arrest warrant without signing a judgment of contempt; and (2) permitting her constable to use her judicial authority to collect worthless checks on behalf of local merchants. In re Frederic-Braud, 973 So. 2d 712 (Louisiana 2008).
  • Based on an agreed statement of facts and recommendation, the Mississippi Supreme Court publicly reprimanded a judge for, in a case in which he had decided not to be involved, insisting that another judge talk with him before signing an arrest warrant, becoming angry when the other judge refused, and instructing a court clerk not to issue the warrant. Commission on Judicial Performance v. Thompson, 972 So. 2d 582 (Mississippi 2008).
  • The Mississippi Supreme Court suspended a judge for 180 days without pay for his actions in response to the repossession of an automobile jointly owned by his wife and mother-in-law. Commission on Judicial Performance v. Osborne, 977 So.2d 314 (Mississippi 2008).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a magistrate for 90 days without pay for failing to ensure that deposits were made and bank accounts were reconciled monthly. In the Matter of Lynah, 656 S.E.2d 344 (South Carolina 2008).

 

Election motives  

In several judicial discipline cases in 2017, although the sanctioned misconduct did not directly involve their campaigns, the judges’ concerns about their election chances were cited as a reason for their conduct.

An FBI agent testified that Judge Dawn Segal told him she was concerned about her forthcoming retention election and believed then-judge Joseph Waters to be politically influential when she listened to his requests for favorable treatment for parties in 3 cases to please him.  The Pennsylvania Supreme Court upheld her removal.  In re Segal, 173 A.3d 603 (Pennsylvania 2017).

For example, Waters had called Judge Segal and told her that a petition for reconsideration had been filed from her previous refusal to open a default judgment in a code enforcement complaint against Judge Angeles Roca’s son for failing to pay Philadelphia’s business privilege tax for his barbershop.  The same day as his call, Judge Segal reviewed the petition and issued a rule to show cause why the default judgment should not be opened.  She and Waters then engaged in the following phone conversation, which was recorded by the FBI as part of its wiretap surveillance of Waters

Segal:  Hi, I figured it out and I took care of it.

Waters:  Oh, okay.  Thank you.

Segal:  I got it.  Alright.  It was on my um, queue, so I did it.  So tell her it’s done.

Waters:  Thank you very much ….

(Also in November, the Pennsylvania Supreme Court upheld Judge Roca’s removal for seeking Water’s advice about her son’s case and acquiescing in his offer to communicate ex parte with Judge Segal.  In re Roca (Pennsylvania Supreme Court November 22, 2017).  Waters was removed in 2016 following his guilty plea to federal mail fraud and honest services wire fraud charges.  In re Waters, Opinion and order (Pennsylvania Court of Judicial Discipline January 12, 2016).)

2 other discipline cases involved judge-candidates giving interviews about their cases in the midst of their campaigns.

The Nevada Commission on Judicial Discipline suspended a judge for 60 days without pay for making comments to a reporter about 2 pending cases to protect his re-election, in addition to other misconduct.  In the Matter of Potter, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline November 22, 2017).

In October 2014, the judge held a temporary custody hearing and ruled that a child should reside with his father while his mother, Michelle Angeles, a lieutenant in the Air Force, was deployed in Cuba.  After Angeles divorced Cardona in 2012, she had married a woman.

The Las Vegas Review Journal published an article in which Angeles’s attorney, David Mann, suggested that the judge had ruled against his client based on her sexual orientation.  The judge contacted the reporter, and there was a follow-up article entitled “Judge Defends Custody Decision in Lesbian Mom Case.”  In the article, the judge stated that he granted Angeles physical custody “knowing full well she was gay.”  He also stated that “there’s no way” he could find it to be in the child’s best interest to stay with his stepmother, providing the paper “with profane text messages the stepmother had sent the father.”  The judge also told the reporter that Mann “might have an axe to grind” as he had “handled Mann’s personal divorce this year, and Mann did not show up for trial.”

In the discipline proceeding, the judge explained that he felt that he had to respond to the article because the election was 12 days away, he had an opponent, the article was a lie, he was not anti-gay, and he wanted to protect his reputation and the integrity of the judiciary.  The Commission found that the judge had put his desire to be re-elected ahead of the judicial canons.

Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for making public comments about a murder case pending before him in 3 media interviews, in addition to other misconduct.  In the Matter of Piampiano, Determination (New York State Commission on Judicial Conduct March 13, 2017).  The Commission noted that the “fact that respondent made these statements in media interviews at a time when he was a candidate for election to Supreme Court raises a question as to whether his public comments were motivated by political concerns.”

In September 2015, the judge, then on the county court, was nominated for election to the supreme court, the general jurisdiction trial court in New York State.

On or about October 8, after approximately 8 days of jury deliberations, the judge granted a mistrial in a high profile murder case in which Charles Tan was charged with shooting his father at their family home.  The defense moved for an order of dismissal; the assistant district attorney opposed the motion because they intended to retry Tan.  The judge ordered the parties to appear before him on November 5.

The same day the mistrial was declared, the judge agreed to 1-on-1 interviews about the case in his chambers with reporters from 2 TV stations and a newspaper.

As the Commission explained:

While he often responded to the reporters’ questions about the Tan case with general statements about procedures and the legal system, he should have recognized that any statements he made in that context would be understood as pertaining to Tan and therefore were problematic.  His statements, however, went well beyond general explanations of the law.  He discussed legal issues in the case (including his denial of a request for an accomplice charge), and he provided a description of his interactions with the jury and his sense of the jury’s deliberations.

The Commission noted as “[e]specially troubling” the judge’s description of the defendant in an interview as a “sympathetic’ figure,” raising doubts about his impartiality and undermining public confidence in the impartial administration of justice.

 

Throwback Thursday

20 years ago this month:

  • Reviewing a recommendation of the Commission on Judicial Fitness and Disability, the Oregon Supreme Court suspended a judge for 6 months without pay for (1) using his judicial assistant’s work time and other public resources to conduct personal and campaign-related business and (2) using his official position to obtain an advantage in corresponding with persons and entities regarding disputes. Inquiry Concerning Gallagher, 951 P.2d 705 (Oregon 1998).
  • Adopting the recommendations of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly admonished a supreme court justice for, during his campaign, authoring, typing, signing, and personally sending a letter asking for an endorsement to individuals on a committee of a county labor council. In the Matter of Starcher, 501 S.E.2d 772 (West Virginia 1998).

 

A sampling of recent judicial ethics advisory opinions

  • If a judge has an honest, reasonable, and articulable basis to conclude that he should recuse from a case, his recusal does not violate his obligation to hear and decide matters. Maryland Request 2017-28.
  • An appellate justice is not required to disqualify from a matter when she is an acquaintance of leading members of associations that have filed an amicus curiae brief. California Oral Advice 2017-21.
  • A judge is disqualified if an attorney from a law firm in which his brother-in-law is a partner appears as counsel in a case, subject to remittitur. A judge may enter an agreed order appointing her cousin as a mediator as long as the parties initiated the selection of her cousin.  Florida Opinion 2017-20.
  • The administrative judge of a family law division may send letters of appreciation to attorneys who have served as volunteer pro bono guardians ad litem as long as the letters are general and are not signed by the judges who presided over the cases for which the representation was provided. The court may recognize attorneys who served as pro bono guardians ad litem as a group at a bar luncheon or similar function.  Florida Opinion 2017-23.
  • A judge may attend a free public conference on human trafficking and commercial sexual exploitation of children that will focus on identifying and assisting at-risk youth. New York Opinion 2017-146.
  • A judge may speak about landlord/tenant law at a free educational forum organized by elected officials, subject to general limitations on judicial speech. New York Opinion 2017-155.
  • A family court judge may personally solicit donations of artwork by children for display at the court from local teachers and/or children who have pending permanency hearings with the artist identified by first name or initials. New York Opinion 2017-152.
  • A judge should not use the internet to gather adjudicative facts or information about the activities or characteristics of a litigant or other participant in a matter unless the information is subject to proper judicial notice. ABA Opinion 478 (2017).
  • A judge’s repeated or unjustified tardiness in opening court sessions violates ethical rules and can lead to judicial discipline. If a recess is required to attend to other official business, a judge should as a best practice open court on time and communicate personally or through court staff to those in the courtroom when court will reconvene and the reasons for the recess.  North Carolina Formal Opinion 2017-2.
  • A judge may participate in a community parade but should consider whether the participation will adversely reflect on her independence, integrity, or impartiality based on the sponsor and purpose of the parade, should not appear with non-judicial candidates or elected officials in the parade or on their floats/vehicles, and should not permit any banner or signage displaying her name and office to appear on floats or vehicles of political parties, candidates, or officeholders. Ohio Opinion 2017-8.
  • On behalf of a non-profit legal clinic, a judge may send to attorneys a letter that states, “I encourage you to consider contacting [the named attorney at the clinic] (contact information below) or another such agency to discuss taking just one case in the coming months.” Maryland Request 2017-35.
  • A judge may accept an award from a local voluntary bar association at an annual gala that raises funds for scholarships for law students. Florida Opinion 2017-22.
  • Judges and court employees may not, as part of a county fund-raising drive, conduct meetings to solicit donations to United Way or post fliers promoting such donations in the courthouse. New Mexico Opinion 2017-4.
  • A judge who immediately resigned after learning that an investment club he joined was a for-profit entity is not required to self-report. New  York Opinion 2017-156.
  • A judge may not, in a “search for happiness and harmony,” write a newspaper article volunteering to travel anywhere in the state and, free of charge, “mediate any conflict, teach a law class, math or someone how to read, coach a sport, build or paint any fence, pull weeds, clean yards, or do anything that requires only time and effort to help a stranger.” New Mexico Opinion 2017-3.
  • An incumbent judge may appear in her robe in campaign photographs. A slate of judges may appear together in robes in a campaign photograph.  Maryland Request 2017-37.
  • A judge may appear in a video that will be used in her brother’s congressional campaign as long as she is not identified as a judge. Kansas Opinion 185 (2017).
  • A judge may not contribute to his spouse’s campaign for political office, but his spouse may contribute to her own campaign even from community property funds in a joint checking account, although the judge should urge her to create a separate account from which to contribute. New Mexico Opinion 2017-1.