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.

Throwback Thursday

25 years ago this month:

  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct to which the judge consented, the New Jersey Supreme Court publicly reprimanded a judge for failing to inform a defendant that he was facing a charge of contempt of court, prejudging the merits of the case, sentencing the defendant without taking a plea or hearing evidence, and imposing a sentence that was beyond his authority.  In the Matter of Pizzi, 617 A.2d 663 (New Jersey 1993).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct to which the judge consented, the New Jersey Supreme Court publicly censured a judge for driving while intoxicated and conducting himself inappropriately after his arrest. In the Matter of Annich, 617 A.2d 664 (New Jersey 1993).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for driving while intoxicated, causing a 3-car accident. In the Matter of Siebert, Determination (New York State Commission on Judicial Conduct January 27, 1993).
  • The New York State Commission on Judicial Conduct removed a town court judge who (1) had mishandled $1,173 in public money and made no timely effort to notify authorities or rectify the problem, (2) when confronted with the issue of missing deposits by town officials, had repeatedly given a false explanation, and (3) had presided over 9 cases involving a party from whom he had borrowed and repaid a loan without disclosing the relationship and offering to disqualify himself. In the Matter of Murphy, Determination (New York State Commission on Judicial Conduct January 28, 1993).
  • The North Carolina Supreme Court publicly censured a judge for convicting defendants of reckless driving when they were charged with driving while impaired. In re Martin, 424 S.E.2d 118 (North Carolina 1993).

 

Genuine, compelling, and indefinable

In the recent decision French v. Jones (9th Circuit December 7, 2017), the U.S. Court of Appeals for the 9th Circuit described how the “strict First Amendment framework” for challenges to restrictions on judicial campaign speech established in 2002 “underwent significant changes” in 2015.  In Republican Party of Minnesota v. White White, 536 U.S. 765 (2002), the U.S. Supreme Court held unconstitutional a prohibition on judicial candidates announcing their views on disputed legal and political issues, finding it was not narrowly tailored to serve the state’s interest in judicial impartiality.  In contrast, despite a similar First Amendment challenge, the Court upheld a prohibition on personal solicitation of campaign contributions in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015).

According to the 9th Circuit in French v. Jones:

  • Unlike White, the decision in Williams-Yulee “did not attempt to define precisely what judicial integrity or impartiality means” but emphasized that the concept of public confidence in judicial integrity “is genuine and compelling.”
  • Unlike White, the decision in Williams-Yulee “flatly rejected” arguments based on an under-inclusive analysis, noting it was “somewhat counterintuitive to argue . . . that a law violates the First Amendment by abridging too little speech” and emphasizing that a “State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.”
  • Unlike White, the decision in Williams-Yulee did not require that a restriction be “perfectly tailored,” only narrowly tailed, declining to “’wade into [the] swamp’ of unworkable line drawing” and respecting the state’s decision to address “evils in their most acute form.”

Thus, the 9th Circuit concluded that “Williams-Yulee marked a palpable change in the approach to state regulations of judicial-campaign speech” that now allows states to take “a middle ground” that both “abridge[s] some judicial-campaign speech and preserve[s] its election system . . . .’”  The court explained that the change was “perhaps best exemplified by our unanimous en banc decision in Wolfson” v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016), in which it had upheld numerous clauses in the Arizona code of judicial conduct.

In French v. Jones, the 9th Circuit upheld the rule in the Montana code of judicial conduct providing that “a judge or judicial candidate shall not … seek, accept, or use endorsements from a political organization, or partisan or independent non-judicial office-holder or candidate….”  The challenged rule is the same as Rule 4.1(A)(7) of the 2007 American Bar Association Model Code of Judicial Conduct except that the Montana version extends to endorsements by non-judicial officer holders and candidates as well as parties.

The 9th Circuit discerned 2 compelling state interests achieved by the endorsements rule:  an interest in both actual and perceived judicial impartiality and “a related but distinct” and perhaps “more compelling still” interest in a structurally independent judiciary.

With respect to impartiality, the Court noted “the regrettable but unavoidable consequence that judges who personally ask for political endorsements may diminish the public’s faith in the impartiality of the judiciary, whether a judge’s actual impartiality is affected or not.”  With respect to the judicial independence, it noted the numerous state models for judicial selection but emphasized, “[i]t is not for us to choose among these systems because the U.S. Constitution does not prescribe any particular form for state judicial elections.”  What is important, the court explained, is that “Montana has chosen to structure its third branch differently from the political branches,” and it declined to “fault its efforts to reinforce that choice in the manner in which it elects its judges” by prohibiting the solicitation and use of endorsements from political parties that might make the public “view the judiciary as indebted to, dependent on, and in the end not different from the political branches.”

The 9th Circuit rejected the plaintiff’s argument that the rule is fatally under-inclusive because it applies to endorsements from political organizations but not from other interest groups, corporations, and entities.  The court noted that “political parties are simply not the same as interest groups and private individuals.  Parties have comprehensive platforms, take firm positions on a multitude of issues, and are capable of exerting more influence in an election than most (if not any) interest groups.”  It also explained:

Once we turn to Montana’s interest in judicial independence (as opposed to mere judicial impartiality) the differences between political parties and interest groups grow starker.  An endorsement from a political party threatens the public perception of judicial independence to a greater degree than an endorsement from an interest group.  In all cases, an endorsement suggests the possibility of a quid-pro-quo exchange in which a judge may rule favorably for the endorsing entity.  But whereas a judge may only infrequently encounter litigation implicating an endorsing interest group, he or she is likely to often face legislation an endorsing political party has either supported or opposed.  Dependence on an endorsing political party brings into question whether a judge will be able to independently interpret and review a given piece of legislation and thus goes to the core of the separation of powers.

The 9th Circuit also rejected the plaintiff’s argument that the rule is impermissibly under-inclusive because it permits candidates to solicit and use political parties’ money but not their endorsements.

An endorsement is a public and easily communicable show of solidarity.  Although most campaign contributions are also public information, . . . they are less forceful and less easily communicable.  Unlike endorsements, information on campaign contributions typically requires extra work for voters to access.  It would therefore not be surprising for judicial candidates to derive more value from endorsements from political parties and popular politicians (including politicians outside Montana) than from even sizeable donations.  Montana could reasonably conclude that endorsements are more suggestive of a quid-pro-quo exchange and pose a greater risk to the public perception of its judiciary than donations.

Rejecting the plaintiff’s argument that the rule was unconstitutionally under-inclusive because it only applied during campaigns and to endorsements from “non-judicial office-holders,” the Court stated, “[i]t is almost self-evident that the dangers of actual and perceived bias and dependence are not nearly as great when the candidate is not yet running for office or when she uses endorsements from nonpartisan judges.”

The 9th Circuit rejected the argument that the rule is over-inclusive because it does not allow a candidate’s campaign committees to seek and use political endorsements.  The court stated that the “danger lies in the public losing trust in its judges from hearing political endorsements; it is irrelevant whether the candidate or the candidate’s committee delivers the message.”

The 9th Circuit rejected the argument that a party endorsement is just “shorthand for the [numerous] views the candidate holds.”  The court explained:

Seeking and using of political endorsements is nothing like announcing one’s views on certain issues.  An endorsement is a thing of value:  it may attract voters’ attention, jumpstart a campaign, give assurance that the candidate has been vetted, or provide legitimacy to an unknown candidate and indicate that he or she is capable of mounting a successful campaign.  Such things of value are usually not given out for free, and even when they are, the mere perception of quid pro quo in judicial campaigns might undermine the public’s trust in the impartiality and independence of its judiciary.

Finally, the 9th Circuit rejected the argument that Montana had presented no evidence that political endorsements cause harm and that the fact that states with partisan elections not only allow but require political endorsements demonstrates that there is no harm.  The court emphasized that “the Supreme Court has flatly stated that ‘[t]he concept of public confidence in judicial integrity … does [not] lend itself to proof by documentary record.’”  It concluded:

Montana need not present empirical evidence of something as abstract as a decrease in actual or perceived judicial impartiality and independence for its rule to survive strict scrutiny.  And as to the point regarding states with partisan judicial elections, neither Williams–Yulee nor Wolfson so much as thought about invalidating restrictions designed to preserve nonpartisanship in judicial elections simply because there are some states that have partisan elections and appear to be doing just fine.  If that fact alone were sufficient to invalidate a restriction on judicial-campaign speech, then nonpartisan judicial elections could be themselves deemed unconstitutional.  We decline to reach such a result.

Although French suggests that eliminating judicial elections altogether would be a less restrictive means to accomplishing Montana’s stated goals, Williams–Yulee and Wolfson foreclose that suggestion.  Those cases confirm that the states have every right to devise and regulate a system of nonpartisan judicial elections. . . .  The Constitution does not demand that the states follow the federal model and appoint their judges, and if it permits the states to hold partisan judicial elections, we see no impediment to the states adopting nonpartisan judicial elections, as Montana has done.

There is a summary of caselaw since Republican Party of Minnesota v. White on the Center for Judicial Ethics web-site.