Manifest prejudice

The Oregon Supreme Court recently held that a judge committed willful misconduct by having his staff screen marriage requests to ensure that he did not perform ceremonies for same-sex couples.  Inquiry Concerning Day, Opinion (Oregon Supreme Court March 15, 2018).

After a federal district court invalidated the state’s constitutional ban on same-sex marriage in May 2014, the judge told his judicial assistant and his clerk to “discreet[ly]” try to determine whether a request to perform a marriage was from a same-sex couple by checking for gender information in the judicial case information network, which they had not done prior to the federal decision.  If the request was from a same-sex couple, he instructed, they should tell the couple that he was not available on the requested date or notify him so that he could decide how to proceed.  The judge’s judicial assistant determined that a requesting couple might be a same-sex couple 1 time, but the judge had an actual scheduling conflict, and she truthfully told the couple that he was not available.  Several weeks later, the judge stopped solemnizing all marriages.  His judicial assistant and others testified that they never had seen or known the judge to discriminate against or speak in a derogatory way about the LGBT community.

Rule 3.3(B) of the Oregon code of judicial conduct provides that:  “A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, or engage in harassment, against parties, witnesses, lawyers, or others based on attributes including but not limited to, sex, gender identity, race, national origin, ethnicity, religion, sexual orientation, marital status, disability, age, socioeconomic status, or political affiliation and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.”  (Rule 3.3(B) is similar but not identical to Rule 2.3(B) of the American Bar Association Model Code of Judicial Conduct.)  Rejecting arguments by the judge and amici curiae, the Court held that solemnizing marriages is a judicial duty, noting that, although judges are not required to perform marriages, “it is by virtue of holding judicial office that a judge is statutorily authorized to do so.”

The Court noted that Webster’s Third New International Dictionary defines “manifest” “in part, as ‘to show plainly:  make palpably evident or certain by showing or displaying.’”  That definition, it concluded, means that a judge’s conduct must be “obvious to others” to constitute a violation of Rule 3.3(B).  The Court noted that the public was not aware of the judge’s screening process, but it stated that he “indisputably communicated to his staff his intention to treat same-sex couples” differently than opposite-sex couples and “directed his staff to participate in that different treatment.”  Therefore, it concluded, his instructions manifested prejudice within the meaning of Rule 3.3(B).

Rejecting the judge’s argument, the Court concluded that it was irrelevant that no same-sex couple was refused the opportunity to marry as a result of his actions.  It acknowledged that most manifestations of bias “involve a judge’s overt and prejudicial treatment of a particular person involved in a proceeding before the court—such as a litigant, juror, witness, or lawyer.”  However, emphasizing that the “fundamental objective” of Rule 3.3(B) was “ensuring the public’s trust in an impartial and fair judiciary,” the Court concluded that the “rule is not limited to a manifestation of prejudice against an identified, particular person” but also includes “an expression of bias against an identifiable group, based on personal characteristics, in the performance of judicial duties.”

The judge argued that he had not intended to discriminate against same-sex couples but was only “trying to maintain the tenets of his faith.”  That Court stated that, regardless of his intent, the judge’s instructions to his staff were “an intentional action” that subjected same-sex couples to discriminatory treatment.  The Court also noted that the judge’s direction that his staff be “discreet” “reflected an understanding” that his conduct may have violated the code.

However, the Court did not sanction the judge for adopting the screening process, despite what some headlines stated or suggested.  See, e.g., Law360.com, “Ore. Judge Suspended For ‘Screen’ Of Gay Marriage Couples;” and OregonLive.com, “Judge Vance Day — who wouldn’t marry same-sex couples — suspended for 3 years.”  In the disciplinary proceedings, the judge argued that sanctioning his actions regarding same-sex marriage request would violate his constitutional rights.  The Court sidestepped those “important and complex issues” by concluding that, even if it rejected the judge’s constitutional challenge, the sanction it was already imposing for the judge’s other “notably serious misconduct” would not change.  Thus, without consideration of the same-sex marriage issue, the Court suspended the judge for 3 months without pay for (1) having out-of-court contacts with a probationer in the veterans treatment court over which he presided; permitting the probationer to twice handle a gun despite the firearms prohibition that was a condition of his probation; and making a false statement to the presiding judge about the gun-handling incidents; and (2) making a false statement to the Commission on Judicial Fitness and Disability during its investigation of the judge’s conduct at a soccer game.

Throwback Thursday

5 years ago this month:

  • Granting a joint motion to resolve charges after an alternate dispute resolution hearing, the Alabama Court of the Judiciary publicly reprimanded and censured a judge for making public comments about pending contempt proceedings against a lawyer on his Facebook page and in an e-mail to all state court judges. In the Matter of Allred, Reprimand and censure (Alabama Court of the Judiciary March 22, 2013).
  • Approving the findings and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for 4 incidents of intemperate courtroom behavior in criminal cases; the Court also ordered him to send letters of apology and to continue mental health treatment recommended by his doctor and family therapist. Inquiry Concerning Shea, 110 So. 3d 414 (Florida 2013).
  • Based on his consent, the Georgia Judicial Qualifications Commission suspended a judge for 60 days without pay, reprimanded him, ordered that he be on probation until the end of his term, and ordered that he not run for re-election following the conclusion of his term; the judge admitted that (1) without any legal authority, he had ordered the collection of funds from criminal defendants “in what appeared to be an effort to ‘maximize’ the collection of revenue” for the county that the county was not entitled to receive; (2) failed to include surcharges required by law in fines imposed on criminal defendants; (3) appointed his son to serve as judge in his absence; (4) chatted on Facebook with a woman who contacted him, advised her how her brother could get a DUI matter pending in another court transferred to his court, and failed to recuse from the case; (5) segregated Hispanic defendants from the public courtroom to speak with them about their pending cases without a court reporter or the prosecutor present; (6) while on the bench, asked members of the audience to vote for him and engaged in other political activities; (7) questioned court officials regarding their support of his political opponent; (8) was hostile to an attorney who had contributed to his election opponent; (9) during his campaign, made numerous threatening statements to the owners and employees of the private probation services company under contract with the court because they would not publicly support his candidacy; (10) confronted members of the state patrol about objections they had to some of his rulings; and (11) held a “trial” in absentia over the objection of the defendant’s counsel. In re Bass, Public reprimand (Georgia Judicial Qualifications Commission March 18, 2013).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for approximately 30 remarks he made to the jury in a criminal case. In the Matter of Spicer, Public reprimand (Minnesota Board on Judicial Standards March 26, 2013).
  • Concurring with the findings and recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court suspended a judge for 30 days without pay and publicly reprimanded him for dismissing criminal charges in 38 cases in exchange for payments to a “drug fund” established by the police chief. Commission on Judicial Performance v. Smith, 109 So. 3d 95 (Mississippi 2013).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge who issued a warrant and judgment in an eviction proceeding that did not comply with statutory requirements, a month after being cautioned for issuing a judgment that was inconsistent with the same statute. In the Matter of Temperato, Determination (New York State Commission on Judicial Conduct March 20, 2013).
  • Based on the judge’s acceptance, the North Carolina Judicial Standards Commission publicly reprimanded a judge for becoming embroiled in a public feud with the police chief, the assistant town manager, and the district attorney and engaging in actions that fell outside the legitimate exercise of the powers of his office. Public Reprimand of Tillett (North Carolina Judicial Standards Commission March 8, 2013).
  • After a trial de novo, a Special Court of Review Appointed by the Texas Supreme Court publicly reprimanded a court of appeals judge for contacting 3 individuals associated with the county juvenile detention center, a district judge, and a county commissioner in an effort to secure the release of an acquaintance’s daughter from the juvenile center after she was detained for shoplifting. In re Sharp, 480 S.W.3d 829 (Texas Special Court of Review 2013).
  • Based on stipulated facts and a stipulation for reprimand, the Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s public reprimand of a judge for ex parte communications with the parties in a small claims case after trial but before making his decision. Inquiry Concerning Johnson, Order (Utah Supreme Court March 26, 2013).
  • Adopting the sanction recommended by the Judicial Hearing Board, the West Virginia Supreme Court of Appeals suspended a judge without pay until the end of his term (December 2016) and publicly censured him for (1) demonstrating contempt for the authority of the Court, the circuit court, the Office of the Administrative Director of the Courts, and the Judicial Investigation Commission; (2) being unable to properly manage his office and staff; and (3) a lack of courtesy, civility, decorum, and judicial comportment in hearings and correspondence. In the Matter of Watkins, 757 S.E.2d 594 (West Virginia 2013).

Winter issue of Judicial Conduct Reporter

The winter issue of the Judicial Conduct Reporter has been published.  The issue is the annual year-in-review issue with articles on the number of public judicial discipline sanctions in 2017, summaries of all of the removal cases in 2017, the top judicial ethics and discipline stories of 2017, and “what they said that got them in trouble in 2017.”  The top stories were:  sexual harassment, politicking, judicial well-being, same-sex marriage, and Facebook fails.

All past issues of the Reporter and an index are available on-line.  Anyone can sign up to receive notice when a new issue is available.

Oregon judge suspended — but not because he used a screening process to avoid conducting same-sex marriages

The Oregon Supreme Court held that a judge had committed willful misconduct by having his staff screen marriage requests to ensure that he did not marry same-sex couples, but the Court declined to consider the judge’s constitutional challenge because a decision on that issue would not affect its conclusion that the judge should be suspended for 3 years without pay for (1) having out-of-court contacts with a probationer in the veterans treatment court; permitting the probationer to twice handle a gun despite the firearms prohibition that was a probation condition; and making a false statement to the presiding judge about the gun-handling incidents; and (2) making a false statement to the Commission on Judicial Fitness and Disability during its investigation of the judge’s conduct at a soccer game.  Inquiry Concerning Day, Opinion (Oregon Supreme Court March 15, 2018).

Click here for previous posts on same-sex marriage and judicial ethics

 

Throwback Thursday

10  years ago this month:

  • The D.C. Commission on Judicial Disabilities and Tenure found that a judge violated the code of judicial conduct by ordering the detention of an attorney appearing before him; the judge accepted the Commission’s determination, recognized that his conduct was regrettable and violated the code, and undertook to avoid such conduct in the future and to conform to the code. Re Bayly, Determination and undertaking (D.C. Commission on Judicial Disabilities and Tenure March 12, 2008).
  • The New York State Commission on Judicial Conduct publicly censured a judge for (1) bullying an attorney who had been sent by his firm to request an adjournment; (2) presiding over a matter without fully disclosing that one of the attorneys had recently represented his sister at his expense; (3) while an attorney was appearing before him in a case, offering to testify on the attorney’s behalf in a Grievance Committee proceeding if she would testify on his behalf in the Commission’s investigation; (4) denying the attorney’s legitimate request to make a record of her arguments on behalf on her client shortly after she denied his request that she testify on his behalf; and (5) granting an adjournment of nearly 3 months in an eviction proceeding for a punitive, retaliatory purpose. In the Matter of Hart, Determination (New York State Commission on Judicial Conduct March 7, 2008).
  • The New York State Commission on Judicial Conduct publicly censured a judge who, in a speeding case, granted special consideration to the defendant, who was the wife of a friend and former military colleague. In the Matter of Lew, Determination (New York State Commission on Judicial Conduct March 26, 2008).
  • Based on the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court suspended a judge without pay for 60 days and publicly censured him for (1) having a business relationship with an attorney and failing to disclose the relationship in or disqualify himself from matters involving the attorney; (2) attempting to coerce the district attorney into signing a remittal of disqualification and retaliating against the district attorney’s office after the district attorney refused to sign; and (3) being habitually rude and condescending to those appearing before him and demonstrating an arrogant, contemptuous demeanor while presiding over court. In re Badgett, 657 S.E.2d 346 (North Carolina 2008).

Political activity by members of a judge’s family

With primary and general elections drawing nearer, below are links to 3 previous blog posts on political activity by members of a judge’s family, with summaries of advisory opinions issued since the original posts in 2016.

  • When a judge’s relative is a political candidate
  • A judicial candidate who is married to a judge may utilize the judge’s photograph in campaign advertising as long as her position is not identified and the advertising does not imply that she actively endorses his candidacy. Florida Advisory Opinion 2016-7.

  • A judge whose spouse is running for a partisan office may appear as the candidate’s spouse in a family photograph used in the campaign as long as he is not identified as a judge and there is no indication that he has endorsed her candidacy, but may not appear at non-partisan events where his spouse will be speaking, attend fund-raising events even if those events are not sponsored by a political party (i.e., “friendraisers” at private homes), or wear a campaign button or other item supporting the campaign. Florida Advisory Opinion 2017-16.

  • A judge’s parents and brother may be introduced during the public announcement of the judge’s spouse’s candidacy for elected office and may attend campaign events and fund-raisers as long as the judge’s position is not mentioned or featured. The spouse/candidate may explain that her spouse is absent from campaign events because his profession does not allow him to attend events or to endorse a candidate for office.  Florida Advisory Opinion 2018-2.

  • 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 Advisory Opinion 185 (2017).

  • A judge may not make a contribution 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 Advisory Opinion 2017-1.

  • A judge may appear in a family photograph for her first-degree relative’s campaign literature provided she does not wear a judicial robe and nothing identifies her as a judge. New York Advisory Opinion 2017-79.

  • When a judge’s relative supports a political candidate
  • A judge’s spouse may make political contributions but not from a joint account. Maryland Opinion Request 2016-23.

  • A judge’s spouse may participate in the campaign of another person for office, but the judge should request that his name and position not be used in the campaign by his spouse, the candidate, or the campaign committee. The spouse may donate to the candidate using funds separate from the judge’s and should not use the judge’s name in the donation.  The judge should disqualify himself from any cases in which the candidate supported by his spouse is involved.  Pennsylvania Informal Advisory Opinion 1/23/2012.

  • A judge whose spouse is running for a local, non-partisan office may attend meet-and-greet functions for his campaign if her title is not used, but may not post her spouse’s campaign signs even if someone else obtains the landowners’ permission. South Carolina Advisory Opinion 6-2016.

  • Family political activities at a judge’s home
  • Although a judge’s spouse or significant other who shares an ownership interest with the judge in a property is not precluded from placing political signs on their jointly-owned property, the judge should explain the public perception issues and request that his spouse or significant other and request that she not place political signs on their property. If the spouse, significant other, or any other family member has no ownership interest in the property, the judge should not allow them to place political signs on his solely-owned property.  Arizona Advisory Opinion 2016-3.

 

Throwback Thursday

20 years ago this month

  • Pursuant to the recommendation of the Commission on Judicial Conduct, the Massachusetts Supreme Court publicly reprimanded an appellate court judge for statements he made during an oral argument that were critical of a union, which was a party, its president, and the president’s family. In the Matter of Brown, 691 N.E.2d 573 (Massachusetts 1998).
  • Based on a joint motion for approval of the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge for attempting to limit a litigant’s rights to execute on a judgement, then vacating the judgement without notice or a hearing. Commission on Judicial Performance v. Fisher, 706 So. 2d 1107 (Mississippi 1998).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for failing to disclose that he had recently engaged in a business transaction with a plaintiff similar to that at issue in a case before him, ignoring a legal requirement that he swear-in witnesses in small claims proceedings, and failing to re-try the matter after he learned of his error. In the Matter of Barker, Determination (New York State Commission on Judicial Conduct March 17, 1998).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for acting as an advocate for one of the parties to a dispute. In the Matter of Merrill, Determination (New York State Commission on Judicial Conduct March 17, 1998).