Commitment, awareness, and training

On January 31, 2018, the Conference of Chief Justices passed a resolution “in support of commitment to awareness and training on workplace harassment” that encourages “the judicial branch of each state, territory, and the District of Columbia to establish and maintain policies:  (1) to provide every judge and employee with training that addresses the various forms of workplace harassment, including sexual harassment, and related intimidation and reprisal that are prohibited by law; and (2) to establish procedures for recognizing and responding to harassment and harassment complaints.”  The resolution also provides that the National Center for State Courts “shall create a repository of resources that address workplace harassment in the state courts, including model policies and procedures.”  The explanation for the resolution states:

  • WHEREAS, the Conference of Chief Justices is committed to the rule of law and to strict observance of laws relating to conduct in the workplace; and
  • WHEREAS, the Conference of Chief Justices has historically championed gender equity in the state courts and in 1988 passed a resolution urging each Chief Justice to establish separate task forces devoted to the study of gender bias in the court system and minority concerns as they relate to the judicial system; and
  • WHEREAS, recent events have raised public awareness of pervasive sexual harassment in the workplace in government, the media, and private industry; and
  • WHEREAS, State codes of judicial conduct require judges, in the performance of their judicial duties, not to manifest bias or prejudice or engage in harassment (including sexual harassment) and not to permit court staff, court officials, or others subject to the judge’s direction and control to do so; and
  • WHEREAS, a judicial disciplinary commission exists in every state to hold judges accountable; and
  • WHEREAS, as a separate branch of government, the judicial branch has the duty to protect its employees against harassment and intimidation in the workplace.

On February 7, in his State of the Judiciary Address, the Chief Justice of the Alaska Supreme Court advised the legislature that he is creating “a working group of judges, retired judges, law clerks, court staff, and court administrators to examine what changes are needed in the Court System’s anti-Sexual Harassment policy and procedures, and to make recommendations to ensure that the Court System’s policy and procedures reflect best practices.”  He noted that the Alaska Court System has had a “zero tolerance” anti-sexual harassment policy for years, which is provided to new employees, including judges, when they are appointed.  Although stating he was “unaware of any instance of sexual harassment committed by any sitting judge or other court employee,” the Chief Justice explained that, “in the light of the grim evidence of pervasive sexual harassment and assault we have seen in the last year, including that widely reported occurring in the federal courts, I am not so naive as to think it can’t happen here” and concluded “that the Court System must do more proactively to ensure that no court employee will be subjected to sexual harassment of any kind” and “to ensure an exemplary workplace for every judge and every court employee.”

In his 2017 Year-End Report on the Federal Judiciary, Chief Justice John Roberts stated that he has asked the Director of the Administrative Office to assemble a working group “to consider whether changes are needed in our codes of conduct, our guidance to employees—including law clerks—on issues of confidentiality and reporting of instances of misconduct, our educational programs, and our rules for investigating and processing misconduct complaints.”  The Chief Justice explained:

Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune.

. . .  These concerns warrant serious attention from all quarters of the judicial branch.  I have great confidence in the men and women who comprise our judiciary.  I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies.

The Chief Justice’s action followed news stories that Judge Alex Kozinski of the 9th Circuit had sexually harassed numerous clerks.

Below is a timeline of recent events regarding workplace harassment in the judiciary.

Sexual harassment and the judiciary timeline

12/8/2017       Washington Post publishes article, “Prominent appeals court Judge Alex Kozinski accused of sexual misconduct”

12/14/2017     Based on news reports, the Chief Judge of the 9th Circuit identifies a complaint against Judge Kozinski under the Rules for Judicial Conduct and Judicial Disability Proceedings (https://tinyurl.com/y7kj6rgo)

12/15/2017     Washington Post publishes article, “Nine more women say judge subjected them to inappropriate behavior, including four who say he touched or kissed them”

Chief Justice Roberts transfers the complaint against Judge Kozinski to the 2nd Circuit (https://tinyurl.com/ybqdq9q8)

12/17/2017     The 9th Circuit creates a special ad hoc committee on workplace environment (https://tinyurl.com/y7adz29s)

12/18/2017     The Federal Judicial Center revises the law clerk handbook to add clarifying language regarding reporting workplace harassment (https://tinyurl.com/y8ydvsoe)

12/19/2017     Judge Kozinski retires, effective immediately (https://tinyurl.com/yauwm8e3)

12/29/2017     The 7th Circuit appoints a committee to examine its process for raising and considering claims of harassment (https://tinyurl.com/y7vb37bh)

12/31/2017     In his 2017 Year-End Report on the Federal Judiciary, Chief Justice Roberts announces creation of a working group to examine the federal judiciary’s practices for investigating and correcting sexual harassment in the workplace (https://tinyurl.com/yaxgx4gp)

1/31/2018       The Conference of Chief Justices passes a resolution “in support of commitment to awareness and training on workplace harassment in the judicial branch” (https://tinyurl.com/y8l6v993)

2/5/2018         Based on Judge Kozinski’s retirement, the 2nd Circuit Judicial Council concludes the complaint against him (https://tinyurl.com/yarbcy6k)

2/7/2018         The Chief Justice of the Alaska Supreme Court announces creation of a working group to examine what changes are needed in the court system’s anti-sexual harassment policy and procedures (https://tinyurl.com/y7oqbon4)

 

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for stating, “some of the most profane, manipulative and backstabbing people I’ve worked with have been women. Men tend to get physical and just hit you,” during a staff meeting and slamming his hand against the table in anger during another staff meeting.  Goettemann, Order (Arizona Commission on Judicial Conduct February 27, 2013).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to disclose the contents of an ex parte communication from court security that caused her to alter how she dealt with a case and failing to disqualify herself from the case. Segal, Order (Arizona Commission on Judicial Conduct February 27, 2013).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for displaying an improper demeanor during a hearing in an injunction against harassment case. King, Order (Arizona Commission on Judicial Conduct February 21, 2013).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for (1) taking a woman for a motorcycle ride when the woman had appeared before him as a criminal defendant multiple times, was on intensive probation due to felony convictions, and should not have been in the county where they were riding based on the terms of her probation and (2) being profane and disrespectful with law enforcement and emergency response personnel at the scene of an accident they had on the ride. Gunnels, Order (Arizona Commission on Judicial Conduct February 27, 2013).
  • The Illinois Courts Commission suspended a judge for 60 days without pay for using his work computer to access pornographic web-sites during work hours in his chambers. In re Polito, Order (Illinois Courts Commission February 1, 2013).
  • The Mississippi Supreme Court publicly reprimanded a judge for an ex parte communication with a man who had received 5 tickets and his brother and dismissing the tickets under the pretense that the prosecutor and officers were not in court when the case was called. Commission on Judicial Performance v. Carter, 107 So. 3d 964 (Mississippi 2013).
  • Approving a consent, the Oregon Supreme Court publicly censured a judge for his statements during sentencing in a sex crimes case. Inquiry re Barnack, 299 P.3d 525 (Oregon 2013).
  • Based on the judge’s agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for issuing an order altering child custody without following the proper procedure or making sufficient findings and for having an ex parte telephone conversation with the child’s grandfather. Letter to Baliles (Tennessee Board of Judicial Conduct February 13, 2013).

What they said that got them in trouble in the second half of 2017

Top judicial ethics stories of 2017

In the courtroom

  • “$4,000,000,000.” Judge imposing bond on a murder suspect.  Brown (Texas Commission 2017) (reprimand for this and other misconduct).
  • “Brief appearance for the hat. P***ed off the rest of the judges because they all voted for Hillary, so [sic].  I was the only Trump supporter up there, but that’s okay.”  Judge explaining why he wore “MAKE AMERICA GREAT AGAIN” baseball cap in the courtroom the day after the U.S. presidential election.  Zabel (Ontario 2017) (30-day suspension).
  • “We’re going to switch judges.” Judge before giving her robe to a clerk/staff attorney and allowing her to sit behind the bench and preside over cases.  Turner (Illinois Commission 2017) (retirement for being mentally unable to perform duties).
  • “We don’t know whether he’s some white guy like me making a threat or somebody who’s, you know, more likely to be a gangster.” Judge during murder trial outside presence of jury.  North (Washington Commission 2017) (admonishment).
  • “I’m not an expert, I’m not a developer, I’m not a contractor, but I’ve been involved in real estate a little bit” and, “the truth gets left out when people are trying to cover their butts.” Judge in a small claims action.  Kreep (California Commission 2017) (censure for this and other misconduct).

To jurors

  • “I am disturbed by the way you came back with such a harsh verdict and sentence for this man’s life in such a short time. Did you even discuss the details of the case at all?”  Judge to jury following guilty verdict.  Hawthorne (Texas Commission 2017) (reprimand for this and other misconduct).
  • “This is one of the few things this country asks our citizens to do, come up here and pass judgment. And in return, we send you disability checks.  And you turn around and come up to me and tell me, I don’t want to serve because I do not understand.  You understand perfectly.  Your English is no problem.”  Judge to prospective juror.  Aguilar (Texas Commission 2017) (reprimand for this and additional misconduct).

To or about litigants

  • “I’m aware there’s been multiple violations of the order of protection.” Judge relying on ex parte information from two sources.  Curran (New York Commission 2017) (admonishment).
  • “[You need] to do a research program on Charlie Manson and the cult that he has. Your behavior in the hall with me months ago, your behavior in this courtroom, your behavior back there, is unlike any I’ve ever seen in any 46,000 cases.  You, young man, are the worst one.  So you have bought yourself living in Children’s Village, going to the bathroom in public, and maybe Summer school, I don’t know . . . .”  Judge to 13-year-old boy in custody proceeding.  Gorcyca, 902 N.W.2d 828 (Michigan 2017) (censure for this and similar comments).
  • “To some extent I think ‘dumb-a**’ should be engraved on his forehead.” Judge about defendant during sentencing hearing.  Ditsworth (Arizona Commission 2017) (reprimand).
  • “Is it you like the money? Or you just like the action?”  Judge taking the plea of a defendant charged with prostitution.  Kreep (California Commission 2017) (censure for this and other misconduct).
  • “Gift for the day.” Judge when sentencing criminal defendants.  Kreep (California Commission 2017) (censure for this and other misconduct).
  • “Just so you know, ma’am, I grew up in a relationship where I used to get the crap beat out of me on a regular basis by a stepfather . . . . So I have some understanding of what you’re going through, okay?  From a child’s perspective.”  Judge after defense attorney said that defendant was in an abusive relationship.  Kreep (California Commission 2017) (censure for this and other misconduct).
  • “Slap him upside the head a few times, make sure he stays off the drugs.” Judge to defendant’s mother.  Kreep (California Commission 2017) (censure for this and other misconduct).
  • “No cerveza. No tequila.  No alcohol.  Nada”  Judge to defendant with Spanish surname.  Kreep (California Commission 2017) (censure for this and other misconduct).

To or about attorneys

  • “If they’re coming for me, they are likely coming for you.” Judge ex parte to public defenders after city attorney’s office filed a blanket challenge against him.  Kreep (California 2017) (censure for this and other misconduct).
  • “So our district attorney’s failure to do the job with which he was being paid to do has created a lot of problems for everybody: the citizens, the defendants.”  Judge in habeas corpus hearing.  Schildknecht (Texas Commission 2017) (reprimand).
  • “I love her accent,” and “I wasn’t planning on having you deported.” Judge to public defender.  Kreep (California Commission 2017) (censure for this and other misconduct).
  • “Star Parker,” “Bun Head,” “Ms. Dimples,” and “Shorty.” Judge referring in court to deputy city attorney and interns for public defender.  Kreep (California Commission 2017) (censure for this and other misconduct).
  • “The lovely attorney next to you went over the form, correct?” Judge to defendant about public defender.  Kreep (California Commission 2017) (censure for this and other misconduct).
  • “If you’re good during your argument, I’ll give you some cookies, little boy.” Judge to law student intern with the city attorney’s office who appeared for an arraignment.  Kreep (California Commission 2017) (censure for this and other misconduct).
  • “And I had a Filipino teacher who always used to ask for a sh** of paper.” Judge during trial about misunderstanding what someone said.  Kreep (California Commission 2017) (censure for this and other misconduct).
  • “Does the 30-day notice require the abandonment of property wording?” Judge asking attorney for advice about a case the attorney was not handling.  Kreep (California Commission 2017) (censure for this and other misconduct).

To or about court staff

  • “Besides, she is sexy as hell.” Judge in letter of recommendation for his judicial secretary.  In re Iddings, 897 N.W.2d 169 (Michigan 2017) (6-month suspension without pay and censure for this and related misconduct).
  • “That c***! That f******g b***h!”  Court commissioner after learning an interpreter had reported to her supervisor that he had spoken harshly to her in the courtroom.  Kliszewski (California Commission 2017) (admonishment for this and other misconduct).
  • “Sperm donors.” Judge about men in general and a bailiff specifically.  Haviland  (Nevada Commission 2017) (1-year suspension without pay for this and other misconduct).

To abuse the prestige of office

  • “So we need to call her today.” Judge to another judge about a third judge who was presiding over her son’s case.  Roca, 173 A.3d 1176 (Pennsylvania 2017) (removal).
  • “Hi, I figured it out and I took care of it.” Judge to another judge reporting that she had provided favorable treatment to a third judge’s son.  Segal, 173 A.3d 603 (Pennsylvania 2017) (removal for this and other misconduct).
  • “Give this to Judge Hawthorne and have him dismiss it for me.” Judge to office assistant at another court about a ticket received by an acquaintance.  Aluzzi (New York Commission 2017) (censure).
  • “If this ticket was in my courtroom, I’d dismiss it.” Judge to prosecutor about a ticket issued to his daughter.  Ayres, 85 N.E.3d 1011 (New York 2017) (removal for this and other misconduct).
  • “Part of my family.” Judge in character letter on judicial stationery in support of a motion to vacate her former babysitter’s gambling conviction.  Ramirez (New York Commission 2017) (admonishment for this and other misconduct).
  • “Well, does she just need a ride or something?” Judge to police officer at the scene of an accident involving his intern.  Simpson, 902 N.W.2d 383 (Michigan 2017) (9-month suspension without pay).
  • “Please! I’m a judge.  Don’t do this to me.  I did not flunk this.  I didn’t flunk it!”  Judge to trooper during a traffic stop when she did not pass a field sobriety test.  Williams (Ohio 2017).
  • “Bring it Angleton, Texas, County Court Number Three . .. you s**k!” Judge to umpire at his son’s baseball game.  Warren (Texas Commission 2017) (warning).
  • “Hey Connie, this is Kurt, um, when you’re testifying in that trial there might be a couple of things that you could do that would really help Stacey.” Judge in voicemail message to witness prior to his wife’s trial on federal charges.  Pomrenke, 806 S.E.2d 749 (Virginia 2017) (removal for this and related misconduct).

To reporters

  • “I stand behind what we did. I have no qualms about what happened and how we prosecuted the matter.  I believe it was completely justice done.”  Judge to reporter about a pending case he had tried as a prosecutor.  Kephart (Nevada Commission 2017) (reprimand).
  • “[T]here’s no way” it was in the child’s best interest to stay with his stepmother. Judge to reporter explaining custody decision.  Potter (Nevada Commission 2017) (60-day suspension without pay and $5,000 fine for this and other misconduct).

What they said that got them in trouble in the first half of 2017.

 

 

Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for presiding over a traffic case involving a member of his service club and using paid sick leave to serve as a pro tem judge in another court. West, Order (Arizona Commission on Judicial Conduct February 6, 2008).
  • Based on the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge for (1) physical and psychological dependence on prescription medications that seriously impaired her judgment and mental faculties while performing judicial duties; (2) a pattern of absenteeism and appearing late for court; (3) detaining a juvenile in a holding cell at the court facility; (4) use of court staff to handle personal matters; and (5) ex parte communications with an attorney who was seeking a peace bond with regard to his nephew and other irregularities in the matter. In re Alford, 977 So.2d 811 (Louisiana 2008).
  • The Louisiana Supreme Court revoked the probation of a judge and suspended him without pay through the remainder of his term after finding he had failed to comply with the terms of his contract with the Lawyers Assistance Program. In re Krake, 976 So. 2d 162 (Louisiana 2008).
  • Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a former judge for derogatory statements about African-Americans at a National Drug Court Institute training conference. Commission on Judicial Performance v. Boland, 975 So.2d 882 (Mississippi 2008).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) in numerous cases, failing to timely deposit and report official monies as required by law; (2) failing to report and remit to the State Comptroller $415 from 6 cases; (3) failing to maintain a complete and accurate cashbook recording her receipts and disbursements; and (4) presiding over her sister-in-law’s seat belt case, accepting a guilty plea, and imposing no fine. In the Matter of Minogue, Determination (New York State Commission on Judicial Conduct February 21, 2008).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for convicting the defendants in a code violation case without a trial or guilty plea and imposing 2 consecutive fines based on unsubstantiated ex parte information from the code enforcement officer. In the Matter of Ray, Determination (New York State Commission on Judicial Conduct February 26, 2008).
  • Based on an agreement, the Oregon Supreme Court publicly censured a court of appeals judge for driving while under the influence of intoxicants. Inquiry Concerning Wollheim, 178 P.3d 224 (Oregon 2008).
  • Accepting an agreement, the South Carolina Supreme Court publicly reprimanded a former magistrate for failing to ensure that court funds were deposited and to reconcile accounts monthly as required by orders of the chief justice and for taking court files and the court computer home during the investigation of his accounts. In the Matter of Kinlaw, 657 S.E.2d 756 (South Carolina 2008).
  • Accepting an agreement, the South Carolina Supreme Court publicly reprimanded a judge for engaging in a consensual sexual relationship with a member of the court staff. In the Matter of Harrelson, 657 S.E.2d 754 (South Carolina 2008).
  • Based on an agreement, the South Carolina Supreme Court publicly reprimanded a former judge who had pled guilty to breach of trust for converting money from her former law firm to her own use; the Court also ordered that she not apply for, seek, or accept any judicial position in the state without its prior written authorization. In the Matter of Koulpasis, 657 S.E.2d 759 (South Carolina 2008).
  • Based on an agreement, the South Carolina Supreme Court publicly reprimanded a former master-in-equity for using official funds to make loan or advances to friends; the Court also ordered that he not apply for, seek, or accept any judicial position in the state without its prior written authorization. In the Matter of Evans, 658 S.E.2d 78 (South Carolina 2008).
  • The Tennessee Court of the Judiciary publicly reprimanded a judge for (1) accepting a campaign contribution from a corporation and a campaign contribution over $1,000 in violation of election laws and (2) misrepresenting in campaign advertising that he had reduced juvenile crime by 25% during his prior term and that the incumbent judge was habitually absent from court. Letter to Glover (Tennessee Court of the Judiciary February 19, 2008).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for improperly exercising his contempt authority; failing to properly document court proceedings; writing improper personal notes about defendants in their public records; and failing to determine if he had the legal authority to incarcerate a 17-year-old student for constructive contempt; the Commission also ordered the judge to obtain 8 hours of instruction with a mentor. Public Admonition of Middents and Order of Additional Education (Texas State Commission on Judicial Conduct February 28, 2008).

 

Increasing frustration

In a recent advisory opinion, the North Carolina Judicial Standards Commission emphasized that a judge’s repeated or unjustified tardiness in opening court sessions violates ethical rules and can lead to the imposition of judicial discipline.  North Carolina Formal Advisory Opinion 2017-2.  (North Carolina is one of 9 or so states in which the judicial discipline commission also acts as the judicial ethics advisory committee.)  The opinion explained:

Delay is one of the most common complaints of judicial misconduct, whether it arises from excessive grants of continuances, delays in rendering decisions under advisement, lengthy periods of time in issuing written orders, or the judge’s regular tardiness in appearing at scheduled court times.  These delays raise the costs of litigation, increase frustration with the judicial system and diminish public confidence in the courts.

Poor communication about when the judge will arrive and the reasons for the delay heightens frustration among individuals present in the courtroom, many of whom have taken time away from work or traveled long distances to appear at the required time under threat of sanction if late.  In these circumstances, when a judge repeatedly or unjustifiably fails to open court on time, the attending frustration impairs public confidence in the courts.

The opinion added that, “if a recess is required to attend to other official business that must be considered before the court session continues, the judge should as a best practice open court on time and communicate either personally or through court staff to those present in the courtroom when court will be reconvened and the reasons for the recess.”

In January, approving a stipulation for discipline by consent and the judge’s agreement to resign, the California Commission on Judicial Performance publicly admonished a judge for, in addition to other misconduct, frequently arriving to court after the calendar over which she presided was scheduled to start, including 3 times when she arrived 30 minutes late.  In the Matter Concerning Johnson, Decision and order (California Commission on Judicial Performance January 16, 2018).

Between January 1, 2013 and August 10, 2015, on days the judge had calendars set to begin at 9:00 a.m., she arrived at the courthouse (not her courtroom or chambers) after 9:00 a.m. at least 42 times.  While in most of these incidents the judge arrived at the courthouse within 10 minutes of 9:00 a.m., several involved longer periods, and typically there was additional delay between the time the judge entered the courthouse and the time she took the bench.  On each of these occasions, the Commission found, the judge’s tardiness caused numerous people who were at court on time, including parties, attorneys, and court personnel, to have to wait for her to take the bench.

In 2015, a Special Court of Review Appointed by the Texas Supreme Court reprimanded a judge for, in addition to other misconduct, a pattern of leaving the bench and failing to communicate with counsel and defendants about when or whether she would return.  In re Mullin, Opinion (Texas Special Court of Review October 21, 2015).  The judge often “left the bench with matters still to be heard” and “those remaining in the courtroom could not discern whether to go (as waiting would be futile) or stay (because the judge might return, though no one could say when).”

The Court noted that a judge is permitted to leave the bench for many reasons and “taking breaks is a matter within the judge’s discretion.”  However, it explained:

The first principle of courtesy is consideration of others.  Though a judge need not disclose why she is leaving the bench or what she will be doing while she is gone, common courtesy requires a judge to let those waiting to be heard know whether and when she anticipates returning.  By persistently leaving the bench for extended periods of time without communicating this basic information to those in attendance, the respondent showed a lack of consideration for court-goers and thus failed to act with the courtesy expected of a judicial officer. . . .

See also In the Matter of McVay, Judgment and Order (Arizona Supreme Court September 25, 2007) (60-day suspension without pay for, in addition to other misconduct, arriving in the courtroom between 5 and 18 minutes after her calendar was scheduled to begin 20% of the time); Williams, Amended order (Arizona Commission on Judicial Conduct December 9, 2010) (public reprimand for consistently failing to appear for work on Wednesdays and Fridays except to perform weddings in the evenings for a fee); Doan v. Commission on Judicial Performance, 902 P.2d 272 (California 1995) (removal for, in addition to other misconduct, habitual tardiness in commencing court sessions by an hour to an hour and a half); Inquiry Concerning Woodard, 919 So. 2d 389 (Florida 2006) (public reprimand for, in addition to other misconduct, frequently starting scheduled first appearance hearings late); Inquiry Concerning Albritton, 940 So. 2d 1083 (Florida 2006) (reprimand for, in addition to other misconduct, on a continuing basis, being late to hearings and trials and taking purported 15 minutes breaks but not returning for 1-2 hours); Inquiry Concerning Singbush, 93 So. 3d 188 (Florida 2012) (public reprimand for, in addition to other misconduct, being habitually tardy for hearings, first appearances, and trials, often for more than 15 minutes and often without good cause); In re Alford, 977 So.2d 811 (Louisiana 2008) (removal for, in addition to other misconduct, a pattern of absenteeism and appearing late for court); In re Nettles-Nickerson, 750 N.W.2d 560 (Michigan 2008) (removal for, in addition to other misconduct, excessive absences, commencing proceedings late, and untimely adjournments); In the Matter of Cahill, Public reprimand and conditions (Minnesota Board on Judicial Standards April 21, 2014) (public reprimand for, in addition to other misconduct, being chronically late for court); In re Merlo, 58 A.3d 1 (Pennsylvania 2012) (removal for, in addition to other misconduct, repeatedly failing to appear or consistently appearing late for scheduled court proceedings); In re Lokuta, 11 A.3d 427 (Pennsylvania 2011) (removal for, in addition to other misconduct, being habitually and egregiously late for court and frequently absent from the courthouse).

Throwback Thursday

20 years ago this month:

  • Pursuant to the judge’s consent, the California Commission on Judicial Performance publicly admonished a judge for (1) referring to 2 female juveniles charged with battery as “b****es” during an in-chambers conference with counsel and (2) commenting that a male juvenile defendant who had appeared to charge the judge did not have a “chinaman’s chance” of reaching him. Inquiry Concerning Stevens, Decision and order (California Commission on Judicial Performance February 19, 1998).
  • Affirming the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge and fined her $1,500 for releasing 2 prisoners post-sentencing based on ex parte communications and suspending a sentence in cases in which she had represented the defendant. Commission on Judicial Performance v. Sanders, 708 So. 2d 866 (Mississippi 1998).
  • Upholding the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge who had passed a note to his court attorney concerning the physical attributes of a female law intern, suggested to the intern that she remove part of her apparel in his presence, made false statements to the Commission, and gave deceitful responses to the governor’s screening committee and to the staff of the senate judiciary committee when they were considering his nomination to a different court. In the Matter of Collazo, 691 N.E.2d 1021 (New York 1998).
  • The New York State Commission on Judicial Conduct removed a judge for failing to remit any funds to the state comptroller for almost 2 years as required by statute and failing to respond to letters from the Commission and to give testimony during the Commission’s investigation. In the Matter of Coble, Determination (New York State Commission on Judicial Conduct February 5, 1998).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for, during his re-election campaign, sending a letter asking voters to support the several candidates for non-judicial positions and to oppose their opponents, expressing concern about the village’s financial condition and the “huge tax increase that we are facing,” stating that “our hometown is being threatened,” and calling for the election of “a new Mayor and new Trustees on our Village Board.” In the Matter of Cacciatore, Determination (New York State Commission on Judicial Conduct February 6, 1998).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for making numerous comments to his secretary about the physical appearance and attributes of women in the courthouse, boasting to her of his sexual prowess and experience, commenting on her physical appearance, and stating to her that he wanted to have sex with her. In the Matter of Dye, Determination (New York State Commission on Judicial Conduct February 6, 1998).
  • The New York State Commission on Judicial Conduct publicly censured a judge for retaining for several years more than $450 of public monies from a double reimbursement for the same expenses. In the Matter of Faso, Determination (New York State Commission on Judicial Conduct February 5, 1998).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for promising in campaign advertisements to jail every defendant charged with a violation of an order of protection. In the Matter of Herrick, Determination (New York State Commission on Judicial Conduct February 6, 1998).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for trying to influence the outcome of a custody proceeding involving a friend and his former wife’s current husband. In the Matter of Putnam, Determination (New York State Commission on Judicial Conduct February 6, 1998).
  • Pursuant to an agreement, the South Carolina Supreme Court publicly reprimanded a former judge who had pled guilty to 1 count of misconduct in office. In the Matter of Pryor, 496 S.E.2d 630 (South Carolina 1998).
  • Affirming the recommendation of the State Commission on Judicial Conduct, the review tribunal appointed by the Texas Supreme Court removed a judge for (1) making sexual comments and gestures to female attorneys appearing in his courtroom, (2) displaying impatience and disrespect to attorneys appearing before him, and (3) having a deputy sheriff confined pursuant to a writ of attachment. In re Barr, 13 S.W.3d 525 (Review Tribunal Appointed by the Texas Supreme Court 1998).
  • Accepting the recommendation of the State Commission on Judicial Conduct, the review tribunal appointed by the Texas Supreme Court removed a judge from office for (1) asking another judge to submit a false report to the Commission that he had complied with education requirements imposed by the Commission, (2) calling a parking lot attendant a racial epithet, and (3) engaging in self-help to enforce an order he had entered. In re Lowery, 999 S.W.2d 639 (Review Tribunal Appointed by the Texas Supreme Court 1998).
  • Adopting the decision and recommendation of the Judicial Tenure Commission, the Michigan Supreme Court publicly censured a judge for, following a dispute about pension benefits for court employees, assessing fines, fees, and costs in a way that reduced the city’s revenues. In the Matter of Justin, 577 N.W.2d 71 (Michigan 1998).

 

Conditioned sanctions

The count of state judicial discipline sanctions in 2017 from last week’s post has been up-dated to add 1 public admonishment and 1 resignation in lieu of discipline that should have been included.

At least 18 of the discipline cases from 2017 imposed conditions on the judge in addition to another sanction such as reprimand or suspension.

For example, in addition to publicly censuring a judge for 8 instances of unjustified delay in deciding a variety of cases, the Washington State Commission on Judicial Conduct ordered the judge to affirm in writing to the Commission every 3 months that she has no matters with decisions pending beyond 90 days.  The sanction was based on a stipulation and agreement, and the judge also agreed to exercise caution to avoid repeating the violations and to diligently maintain a list so that matters pending decision will be regularly brought to her attention.  In re Roberts, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 26, 2017).

In another case involving delay, the North Dakota Supreme Court ordered a judge to attend the course on decision-making at the National Judicial College and suspended him for 3 months.  This was the third time the judge had been sanctioned for delay, and the judge had also failed to respond to letters from the presiding judge about the timeliness of his decisions.  In the Matter of Hagar, 891 N.W.2d 735 (North Dakota 2017).

2 judges agreed to numerous conditions as part of a period of probation in lieu of or in addition to other sanctions.

In a deferred discipline agreement, a Tennessee judge agreed to be on probation for 3 years, conditioned on no meritorious complaints being filed against her.  During the probation period, she must consult with another judge about any questions she has on law, procedure, or ethics and attend at her own expense the general jurisdiction course at the National Judicial College.  In consideration of the judge’s agreement, the investigative panel of the Board of Judicial Conduct agreed not to pursue formal charges on 16 complaints against her.  In the Matter of Sammons, Deferred discipline agreement (Tennessee Board of Judicial Conduct January 23, 2017).

The New Mexico Supreme Court deferred a judge’s 3-week suspension without pay conditioned on his being under supervised probation and a formal mentorship for the remainder of his term and his completion of 2 National Judicial College web-cast courses, “Ethics and Judging:  Reaching Higher Ground” and “Special Considerations for the Rural Court Judge.”  The Court, granting a petition to accept a stipulation and consent to discipline, also publicly censured the judge for ex parte communications in numerous cases, misusing the contempt power, failing to cooperate with supervisory personnel from the administrative office of the courts, allowing his judicial decisions and conduct to be influenced by public opinion, fear of criticism, and/or political interests, and other misconduct.  In the Matter of Walton, Order (New Mexico Supreme Court December 18, 2017).

Training and course attendance, usually on topics specified by the commission, is a common condition imposed in judicial discipline proceedings.

  • Based on an agreement, the Kentucky Judicial Conduct Commission ordered a judge to complete courses and training on substantive and procedural due process within 6 months in addition to suspending her without pay for 30 days for (1) granting permanent sole custody of a child without requiring the petitioner to provide evidence or giving the respondent an opportunity to obtain counsel, cross-examine witnesses, or introduce evidence and (2) ordering 2 minor children to be immediately placed in foster care without conducting a formal hearing, taking any sworn testimony, or affording the parents due process. In re Stein, Agreed order of suspension (Kentucky Judicial Conduct Commission March 21, 2017).
  • Based on stipulations, the New Hampshire Judicial Conduct Committee ordered a judge to complete a seminar on enhancing judicial bench skills by the National Judicial College and publicly reprimanded the judge for revising a negotiated plea agreement sua sponte and refusing to allow the state to strike amendments to the complaint. In the Matter of DeVries (New Hampshire Judicial Conduct Committee April 7, 2017).
  • A judge agreed to complete at least 1 hour of training in judicial campaign ethics as part of a stipulation in which the Washington Commission publicly reprimanded the judge for soliciting written endorsements from court employees in support of his judicial campaign. In re Federspiel, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct May 12, 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 and ordered the judge to take 8 hours of additional education, including on the role of a judge, contempt, recusal and disqualification, listening, ethics, and case management. Public Reprimand of Aguilar and Order of Additional Education (Texas State Commission on Judicial Conduct November 6, 2017).
  • 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 relationship; the Court also ordered the judge to complete a judicial ethics course within 1 year. Inquiry Concerning Yacucci, 228 So. 3d 523 (Florida 2017).

Commissions have required training to address inappropriate statements by judges.  A Washington judge who had stated “we don’t know whether he’s some white guy like me making a threat or somebody who’s, you know, more likely to be a gangster” during a hearing agreed to complete training in implicit or unintended bias as part of a stipulation that also included an admonishment.  In re North, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 8, 2017).

The Texas Commission required 2 judges to obtain instruction on racial sensitivity from mentors.  1 judge had posted, “Time for a tree and a rope . . .” on Facebook in response to the arrest of an African-American man for the killing of a police officer.  Amended Public Reprimand of Oakley and Order of Additional Education (Texas State Commission on Judicial Conduct May 8, 2017).  The second judge had used the term “colored” when referring to black people.  Public Reprimand of DeLaPaz and Order of Additional Education (Texas State Commission on Judicial Conduct March 17, 2017).  In the latter case, the judge was also reprimanded for his handling of a small claims case and required to complete stage I of the Texas Justice Court Training Center’s training for new judges.

The Texas Commission often orders mentorships for sanctioned judges.

  • A judge who was publicly warned about refusing to allow a member of the public to inspect and copy case files and escorting him out of his office was also ordered to obtain 2 hours of instruction with a mentor, particularly on judicial demeanor and public access to judicial case files. Public Warning of Alford and Order of Additional Education (Texas State Commission on Judicial Conduct March 28, 2017).
  • A judge who was publicly reprimanded for setting a $4 billion bond for a murder suspect and magistrating her own son was also ordered to receive 2 hours of instruction with a mentor on magistration. Public Reprimand of Brown and Order of Additional Education (Texas State Commission on Judicial Conduct December 19, 2017).
  • A judge who was publicly warned for injecting his judicial position into an exchange with an umpire at his son’s baseball game was also ordered to obtain 2 hours of instruction with a mentor. Public Warning of Warren and Order of Additional Education (Texas State Commission on Judicial Conduct November 10, 2017).

The Nevada Commission on Judicial Discipline ordered that a judge be assigned a mentor when she returns from 1-year suspension and that she attend the state limited jurisdiction judges conference and take courses on special considerations for rural court judges, best practices in handling cases with self-represented litigants, and sexual harassment and discrimination in the workplace.  In the Matter of Haviland, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline August 29, 2017).  The judge had (1) sealed her then son-in-law’s criminal records relating to his arrests for domestic battery of her daughter; (2) ordered staff to conduct an illegal criminal records search regarding her friend’s boyfriend; (3) sentenced an unrepresented individual to 8 months in jail in violation of due process; (4) referred to men as “sperm donors;” (5) run a juvenile diversion program that did not comply with the law; and (6) issued orders in small claims cases regarding titles for abandoned vehicles.

In a hearing in another case before the Nevada Commission, a video was shown of a matter in which a judge failed to accord plaintiff’s counsel the right to be heard, repeatedly using intemperate language and yelling at her, directing that she be handcuffed, and holding her in contempt.  When asked by a member of the Commission to define a “bully,” the judge replied, “I think if you watch the video that you get a taste of it.”  The Commission ordered the judge to pay a $5,000 fine to and perform 10 hours of community service for an anti-bullying organization, to complete a judicial education course on dealing with difficult parties and attorneys, and to write letters of apology to 2 attorneys.  The Commission also suspended the judge for 60 days for the conduct reflected in the video as well as for making comments to a reporter about 2 pending cases, holding a hearing in a case in which a motion for recusal was pending, and advising a party to file a complaint against opposing counsel.  Finally, the Commission ordered the judge to submit to a psychiatric exam because the judge’s “visceral and emotional display of rage” in the discipline hearing “caused the Commission to seriously question Respondent’s mental stability and capacity to control his anger . . . .”  In the Matter of Potter, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline November 22, 2017).

The Michigan Supreme Court has held that it does not have the authority to order conditions such as training “because they are not judicial discipline as described” in the state constitution, which only provides that the Court “may censure, suspend with or without salary, retire or remove a judge . . . .”  However, in In re Iddings, 897 N.W.2d 169 (Michigan 2017), the Court stated that the Judicial Tenure Commission may recommend further discipline if the judge fails to comply with his agreement to continue counseling for a year at his own expense and to attend a course on maintaining proper boundaries sponsored by the University of Texas Southwestern Medical Center and the Sante Institute of Professional Education and Research at his own expense.  The Court suspended the judge for 6 months without pay and publicly censured him for sexual harassment of his judicial secretary.