Throwback Thursday

5 year ago this month:

  • Based on a recommendation and stipulated resolution, the Arizona Supreme Court publicly censured a judge for his failure to be patient, dignified, and courteous in 2 settlement conferences. Inquiry Concerning Cornelio, Order (Arizona Supreme Court April 24, 2013).
  • Accepting a settlement agreement, the Indiana Supreme Court permanently banned a senior judge from judicial service and suspended her from the practice of law for 1 year for an improper romantic relationship with a defendant while serving as his public defender; all but 45 days of the suspension was stayed subject to 2 years’ probation. In the Matter of Traylor-Wolff, Order (Indiana Supreme Court April 9, 2013).
  • Based on a stipulation and the judge’s consent, the New Hampshire Judicial Conduct Committee publicly reprimanded a judge for presiding over 2 arraignments in cases in which the victim was his brother-in-law without disclosing the relationship. Lyons, Reprimand (New Hampshire Judicial Conduct Committee April 16, 2013).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a former judge for sexual contact with a 5-year-old girl in 1972. In the Matter of Hedges, 988 N.E.2d 509 (New York 2013).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge for his conduct in 5 cases. In the Matter of Bryngelson, 742 S.E.2d 392 (South Carolina 2013).
  • Pursuant to an agreement, the Tennessee Board of Judicial Conduct publicly censured a judge for his intemperate, argumentative, and disruptive conduct during a deposition, which was contrary to a 2009 deferred discipline agreement in which he had agreed to cease and desist from injudicious treatment directed at a particular law firm.  Wilson (Tennessee Board of Judicial Conduct April 11, 2013).
  • Pursuant to an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for granting a petition to modify a permanent parenting plan following an ex parte hearing. Wilson (Tennessee Board of Judicial Conduct April 5, 2013).
  • Pursuant to an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for (1) commenting that he believed an attorney must be having a sexual relationship with another attorney, which the other attorneys heard; and (2) approaching the spouse of a court employee who had taken a leave of absence and whom the judge perceived had personal issues with him, and, in the presence of others who worked with the spouse, using inappropriate language to abrasively inquire about the court employee’s potential problem. McKenzie (Tennessee Board of Judicial Conduct April 11, 2013).

 

Notice and opportunity: draft orders

The Iowa Supreme Court recently issued a supervisory order stating that “no judge or magistrate shall communicate with an attorney about preparing a proposed order or decree without including all other attorneys or self-represented litigants in the case in the communication.”  The order noted that it “does not change permitted practices, but ensures that the rules and principles regarding ex parte communications are followed.”

The Court explained:

Ex parte judicial communications include a judge’s request to an attorney to prepare a proposed decree or ruling without including all opposing counsel or parties in the communication.  The practice of attorneys, as officers of the court, providing proposed findings of fact and conclusions of law can greatly assist judges in the preparation of orders, particularly in complex or technical cases.  Yet, knowledge of and notice to all parties or attorneys is the touchstone that permits that practice to occur. . . .   The overarching prohibition against ex parte communications must be carefully followed.

The Court emphasized that “just a single violation of this admonition by one judge in one case threatens not only the fair resolution of that case but the reputation of the bench, bar and entire system of justice.  All judges are obligated to conduct their work in a way that preserves this reputation.”

The order followed a report in the Des Moines Register that a now-retired judge had admitted that “a couple hundred” of his rulings were written by attorneys on the winning side without the knowledge of opposing counsel.  He made that admission during a deposition in one of the cases in which he had apparently followed that practice.

In the 1990 version of the American Bar Association’s Model Code of Judicial Conduct, a comment stated that “[a] judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.”  In the 2007 code revisions (which Iowa and many other states have adopted), the ABA deleted that comment because, according to the reporters’ notes, “the permissibility of the practice was so free from doubt as to render the Comment unnecessary.”  However, by deleting the comment, the revision omitted the conditions that validate the practice and need to be emphasized:  providing all parties with notice and an opportunity to respond.

The Indiana Judicial Qualifications Commission issued an advisory opinion after receiving a complaint about a judge who, in a contested support hearing, telephoned the attorney whose client had prevailed, outlined his decision, instructed him to prepare an order reflecting that decision, and then signed the order drafted by the attorney after making some minor changes.  Indiana Advisory Opinion 1-1998.   The attorney for the other party was unaware of the judge’s decision and his instruction to opposing counsel until after the order was signed.

The Commission explained that the judge’s conduct had given one party’s lawyer an advantage.

Even assuming the judge’s decision was firm, and the conversation involved only its announcement and instructions to prepare an order, the party whose lawyer was not asked to participate justifiably would question the fairness of the conduct and might question whether the conversation, from which his or her attorney was excluded, went beyond a simple announcement and might have involved further argument or comment on the merits.  Then, subsequent to the ex parte conversation, for a period of time, one party only was privy to the outcome.  The potential for abuse is great and, even where the informed party has no occasion or reason to exploit that information, the negative impact on the other party’s perception of the judge’s neutrality and impartiality is rightfully compromised.

The Commission concluded:

A judge must never announce his or her decisions to one party, to the exclusion of others, except in extraordinary circumstances.  A judge who is not inclined to ask for proposed orders from all parties prior to rendering the decision, and who, instead, prefers to instruct only the prevailing party to prepare a proposed order conforming with the judge’s decision, must give that instruction under circumstances in which both parties are made aware of the decision at the same time.

See also South Carolina Advisory Opinion 1-1994 (after a judge has ruled in open court and directed one attorney to prepare an order in accordance with instructions, a copy of the proposed order must be sent to opposing counsel at the same time and by the same means as to the judge, and the judge may not discuss the order with the drafting attorney ex parte except for minor, non-substantive corrections).

In Disciplinary Counsel v. Stuard, 901 N.E.2d 788 (Ohio 2009), the Ohio Supreme Court publicly reprimanded a judge for entering a sentencing order drafted by an assistant prosecutor following ex parte communications; the Court also publicly reprimanded the assistant prosecutor.

The judge had presided over a capital murder trial in which a jury found the defendant guilty of 2 counts of aggravated murder, among other crimes, and recommended a sentence of death.  Between the penalty-phase hearing and the sentencing hearing, the judge engaged in 4 ex parte communications with Kenneth Becker, one of the prosecutors.

In the first communication, the judge asked Becker to prepare an opinion sentencing the defendant to death and gave him 2 pages of notes on the aggravating and mitigating factors.  The second ex parte communication occurred the next day when the judge found on his desk a 17-page draft of a sentencing opinion.  In a third ex parte communication later that day, the judge asked Becker to make several corrections.  Becker made the corrections and also incorporated  editorial suggestions from another prosecutor in the case.  In the fourth communication, the judge received the corrected version of what became his opinion.

During the sentencing hearing, as the judge read his opinion from the bench, defense counsel, who did not have a copy of the sentencing order, noticed that one of the prosecutors seemed to be silently “reading along” with the judge, turning pages of a document in unison.  In a sidebar discussion, the judge acknowledged that he had given his notes to Becker and instructed him to draft the sentencing order.

On appeal, the Ohio Supreme Court held that the judge committed prejudicial error by delegating responsibility for the content and analysis of his sentencing opinion to prosecutor; the Court  vacated the death sentence, and remanded the case with instructions for the judge to personally review and evaluate the appropriateness of the death penalty.

Throwback Thursday

10  years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly reprimanded a judge for lapses in demeanor while on the bench and for using his judicial letterhead to object to the parole of a prisoner who was the opposing party to a divorce client in his private law practice. Ludwig, Letter of Reprimand (Arkansas Judicial Discipline & Disability Commission April 2, 2008).
  • Conditioned on the judge’s agreement to retire and not seek or hold judicial office or judicial assignment, the California Commission on Judicial Performance publicly admonished a judge for egregious and pervasive conduct while presiding over a jury trial in an employment claim that had led the appellate court to reverse the judgment. In the Matter of Brooks, Decision and Order (California Commission on Judicial Performance April 8, 2008).
  • Based on the judge’s admission, the New Hampshire Supreme Court suspended a judge from office for 3 years without pay and censured her for helping her husband protect his assets from creditors and, consequently, impeding the Professional Conduct Committee from collecting attorneys’ fees awarded in disbarment proceedings against him. Coffey’s Case, 949 A.2d 102 (New Hampshire 2008).
  • The New Mexico Supreme Court removed a judge from office for adjudicating 24 traffic cases in the defendants’ favor ex parte and without a hearing or taking evidence. Inquiry Concerning Griego, 181 P.3d 690 (New Mexico 2008).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge following his Alford plea to criminal charges of failing to report to law enforcement authorities information received in his professional capacity regarding the sexual misconduct of a county employee with an inmate. In the Matter of Carter, 662 S.E.2d 597 (South Carolina 2008).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for not obtaining 14 hours of judicial education that he had missed in fiscal year 2005 as previously ordered by the Commission. Public Admonition of Brockwell (Texas State Commission on Judicial Conduct April 7, 2008).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for driving while intoxicated and attempting to use his position to escape the consequences of his actions. Public Admonition of Liendo (Texas State Commission on Judicial Conduct April 7, 2008).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for creating and posting in public areas in and around the courthouse, or allowing his court staff to create and post, suggestive flyers about an assistant city prosecutor. Public Admonition of Gilbert (Texas State Commission on Judicial Conduct April 3, 2008).
  • Based on the findings of fact and conclusions of law of the Judicial Conduct Commission, the Utah Supreme Court approved the implementation of the Commission’s public reprimand of a former judge for gambling. In re Serassio, Order (Utah Supreme Court April 16, 2008).

Recent cases

  • Based on his resignation and agreement to never hold judicial office again, the Georgia Judicial Qualifications Commission closed its investigation of allegations that a judge had issued warrants and made other rulings contrary to clearly established law, including issuing arrest warrants for criminal defamation in violation of a statute held unconstitutional in 1982 and formally repealed. In re Todd, Report of disposition (Georgia Judicial Qualifications Commission January 4, 2018).
  • Accepting the parties’ agreement with the masters’ proposed findings of fact, conclusions of law, and recommended sanction, the Indiana Supreme Court suspended a judge for 6 days without pay for barring the county clerk from the courthouse for 6 days after a hearing at which she was not present and of which she had not been adequately notified; holding a hearing that did not reflect patience, dignity, or courtesy and did not promote public confidence in judicial impartiality; commanding 2 deputy clerks to appear for the hearing without written notice of its purpose; and presiding over the hearing even though he had a specific interest in the   In the Matter of Young, 92 N.E.3d 628 (Indiana 2018).
  • Based on the recommendation of the Commission on Judicial Qualifications, the Kansas Supreme Court publicly censured a former magistrate for revoking a defendant’s probation based only on a motion and without providing the defendant an opportunity to respond and failing to cooperate with the Commission. In the Matter of Trigg (Kansas Supreme Court April 6, 2018).
  • Pursuant to an agreement, the Kentucky Judicial Conduct Commission suspended a judge for 60 days without pay for the use of inmates from the county detention center and publicly owned equipment in the reconstruction of the church he attended and at which he had a leadership role; personally observing community services work and signing documents verifying community services work by criminal defendants on probation in his court; misconduct related to the ankle monitoring program; failing to decide a motion for 3 years; failing to decide motions for shock probation within the statutory time limit; and employing to work on his property a man who was under supervised probation for a guilty plea over which the judge had presided. In re Langford, Agreed order of suspension (Kentucky Judicial Conduct Commission April 2, 2018).
  • Based on the recommendation of the Judiciary Commission, the Louisiana Supreme Court suspended a judge for 6 months without pay for a pattern of stalking and harassing his ex-wife. In re Sachse, Opinion (Louisiana Supreme Court March 13, 2018).
  • Adopting the findings of the Judicial Standards Commission and based on its recommendation and the commissioner’s agreement, the North Carolina Supreme Court publicly reprimanded a deputy commissioner of the Industrial Commission for driving under the influence of an impairing substance. In re Shipley, Order (North Carolina Supreme Court April 6, 2018).
  • The Oregon Supreme Court suspended a judge for 3 years without pay for (1) making a false statement to the Commission on Judicial Fitness and Disability during its investigation of his conduct at a soccer game and (2) having inappropriate out-of-court contacts with a probationer in the veterans treatment court; twice permitting the probationer to handle a gun despite the prohibition on possession of firearms that was a condition of his probation; and making a false statement to the presiding judge in a meeting about the gun-handling incidents. Inquiry Concerning Day, 413 P.3d 907 (Oregon 2018).
  • The Pennsylvania Court of Judicial Discipline publicly reprimanded a former judge for angrily confronting court staff about complaints to the Judicial Conduct Board. In re Tidd, Opinion (Pennsylvania Court of Judicial Discipline April 4, 2018).
  • Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against a judge; the Commission had been investigating allegations that the judge had signed warrants for the arrest of 2 men in unrelated incidents without affidavits of probable cause to support the charges, resulting in their illegal arrest and detention. Leal, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct February 13, 2018).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for refusing to permit a man to inspect and copy judicial case files and for engaging in a heated conversation with the man; the Commission also ordered the judge to obtain 4 hours of instruction with a mentor on judicial demeanor and public access to judicial case files. Public Warning of Smith and Order of Additional Education (Texas State Commission on Judicial Conduct February 21, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for engaging in an intimate relationship with the city prosecutor. Public Reprimand of Berry and Order of Additional Education (Texas State Commission on Judicial Conduct February 21, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for posting on his Facebook page a meme endorsing the extermination of Muslims and statements “railing” against liberals. Public Reprimand of Burkeen (Texas State Commission on Judicial Conduct February 21, 2018).
  • Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against a judge; the Commission had been investigating allegations that the judge had been arrested for operating a motor vehicle while intoxicated and lied to the media about it, in addition to other misconduct. Burkeen, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct March 29, 2018).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for presiding over a case in which she had represented the defendant before becoming a judge and making statements about the defendant’s character during sentencing. In re O’Rourke, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct March 9, 2018).

 

 

Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly censured a retired judge for (1) conduct in a civil action after becoming angry with an insurance company and its attorney; (2) slamming a tablet down on the bench because an attorney had repeatedly violated an in limine ruling, excusing the jury, and yelling loudly at the attorney for several minutes; (3) telling an inappropriate and offensive joke while on the bench in a case involving sexual abuse of a child; (4) after several incidents raised the possibility of contempt charges and a hearing, obtaining the plaintiffs’ waivers of complaints to the Commission, their wavier of the filing of potential civil suits, and their agreement to indemnify him for costs incurred in Commission proceedings, and threatening retaliation if they made complaints or filed civil suits; and (4) using the judicial office to promote and sell a book he had written. Inquiry Concerning Ross, Decision and Order (California Commission on Judicial Performance April 30, 1998).  The Commission also barred him from receiving assignments, appointments, or references of work from any California state court.
  • Adopting the recommendation of the Board of Commissioners on Judicial Standards, the South Carolina Supreme Court publicly reprimanded a former non-lawyer magistrate who, on the notarized application form he had filed with the governor’s office to become a magistrate, had falsely stated that he was a “high school graduate or its equivalence (G.E.D.).” In the Matter of White, 499 S.E.2d 813 (South Carolina 1998).

 

Complainant anonymity in sexual harassment discipline

To encourage reporting of offenses and to protect a victim’s privacy, the New Jersey Supreme Court directed that the anonymity of the victim should be preserved in judicial discipline cases involving sexual harassment or similar conduct.  In the Matter of Seaman, 627 A.2d 106 (New Jersey 1993).  Thus, noting that sexual harassment “is personally offensive, highly invasive, psychologically hurtful, and often deeply embarrassing to the victim,” the Court referred to the complainant in the case by her initials in its decision.  It maintained the complainant’s anonymity even though her privacy had already been “shattered” because the Advisory Committee on Judicial Conduct had followed “conventional practice” and used her full name in its pleadings.  (The judge in that case had engaged in a pattern of sexually harassing behavior toward a female staff member, for example, boasting of his sexual prowess and touching her inappropriately.)  In a subsequent case involving a judge who made an unwanted advance to his law clerk, the Court explained it would follow its practice of using initials to designate the complainant even though her name was known to the public because of the publicity surrounding the matter and a civil lawsuit she had filed against the judge and the judiciary.  In the Matter of Subryan, 900 A.2d 809 (New Jersey 2006).  Accord In re Barr, 13 S.W.3d 525 (Texas Special Review Tribunal 1998) (referring to female attorneys to whom a judge made sexual comments and gestures by their initials to protect their privacy and encourage reporting even though the State Commission on Judicial Conduct had used their full names in its pleadings).

Similarly, in In re Iddings, 897 N.W.2d 169 (Michigan 2017), the Michigan Supreme Court redacted the name of the victim (the judge’s secretary), referring to her as Ms. *****, to protect her privacy.  See also In the Matter of LoRusso, Determination (New York State Commission on Judicial Conduct June 8, 1993) (referring to female court employees subjected to a course of uninvited sexual activity, touching, and crude and suggestive comments by a judge as Ms. A, Ms. B, Ms. C, and Ms. D).

Other cases refer to the subjects of the judge’s harassment simply as “complainant” or by job title, without using the person’s name.  See, e.g., Public Admonishment of Hiber (California Commission on Judicial Performance October 23, 1998) (describing inappropriate conduct by a judge towards his “courtroom clerk,” not identified by name); In the Matter of Corwin, 843 N.W.2d 830 (North Dakota 2014) (describing a judge’s conduct that could reasonably be perceived as sexual harassment of his court reporter without using her name); Office of Disciplinary Counsel v. Campbell, 623 N.E.2d 24 (Ohio 1993) (referring to each of 4 victims of a judge’s unwelcome and offensive sexual remarks and/or physical contact as “complainant”); In re Deming, 736 P.2d 639 (Washington 1987) (describing a “myriad of improper and offensive comments and sexual innuendos” by a judge to women, with specific examples in which the women are identified without names as an intern, a docket clerk, a deputy prosecutor, a probation officer, and a woman from the county department of assigned counsel).

In other cases, however, courts or commissions follow the usual practice and use the full names of the complainants when sanctioning a judge for sexual harassment.  See, e.g., In re Spurlock, Order (Illinois Courts Commission December 3, 2001) (intimidating and sexually inappropriate behavior toward 4 assistant state’s attorneys identified by name); In the Matter of Henderson, 343 P.3d 518 (Kansas 2015) (offensive and demeaning comments of a sexual nature to female attorneys and staff members identified by name); In re Alonge, 3 A.3d 771, (Pennsylvania Court of Judicial Discipline 2010) (conduct “akin to stalking” toward 4 female lawyers identified by name); In re Casey, Opinion (Texas Special Court of Review May 9, 2017) (identifying by full name the chief clerk with whom judge had improper sexual relationship).

 

Throwback Thursday

25 years ago this month:

  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for rendering a decision that went beyond the relief requested and beyond his legal authority and denying an attorney’s rights without notice or a hearing, motivated by personal animosity based on information obtained outside of the court proceedings. In the Matter of Dier, Determination (New York State Commission on Judicial Conduct April 28, 1993).
  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for being very argumentative with sheriff’s officers when a boat in which he was a passenger was stopped on a lake in Idaho, not responding to the officers’ reasonable requests for information, using abusive language, attempting to pick a fight with one of the officers, being arrested for being in physical control of a boat while under the influence of alcohol and intoxicants, refusing to exhale into a breathalyzer, and obstructing an officer in the performance of his duties. In re Larson, Stipulation and Order of Reprimand (Washington State Commission on Judicial Conduct April 2, 1993).
  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct publicly admonished a judge for, during an arraignment concerning a charge of no valid operator’s license, directing insensitive questions and comments about AIDS to the defendant. In re O’Roarty, Stipulation and Order of Admonishment (Washington State Commission on Judicial Conduct April 2, 1993).