Monthly Archives: July 2018

What they said that got them in trouble in the first half of 2018

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  • “Mr. Maggot” or “Maggot Man.” Judge referring in court to a man who was the subject of a guardianship proceeding.  Public Admonition of Cross and Order of Additional Education (Texas State Commission on Judicial Conduct April 18, 2018) (admonition for this and other misconduct).
  • “This is a redneck court.” Judge at beginning of court session.  Public Warning of Lee and Order of Additional Education (Texas State Commission on Judicial Conduct April 18, 2018) (warning).
  • “[A]s white as a piece of wonder bread, gets all kinds of protection and attention from the prosecution office.” Judge describing victim in domestic violence case.  In the Matter Concerning Lord, Decision and order (California Commission on Judicial Performance April 11, 2018) (admonishment for this and related misconduct).
  • ““You can have your temper tantrum outside of my courtroom.” Judge to attorney in courtroom.  In the Matter Concerning Novak, Decision and order (California Commission on Judicial Performance May 30, 2018) (admonishment for this and other misconduct).
  • “You’re an animal,” and “I am not a potted plant.” Judge rejecting agreed-on sentence in plea agreement in domestic violence case.  In re Wilson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct May 11, 2018) (admonishment).
  • The municipal court judge is “going to find you guilty and issue you a fine. He knows that, he’s with it, he’s tired of it, the Police Department’s tired of it, alright?”  Judge telling neighbors involved in long-running dispute that any further calls to the police would result in disorderly conduct tickets regardless of the circumstances.  In the Matter of Calvert (Wisconsin Supreme Court June 15, 2018) (15-day suspension without pay for this and related misconduct).
  • “Well, I actually – I remember [this defendant], and I remember thinking he was different than most of the people that I dealt with when I was defense attorney. I remember telling the judge that I felt like it was outside of his character for him to do something like this.  In my dealings with him he was a very respectful young man.”  New judge while sentencing defendant she had represented at the preliminary hearing in the same case.  In re O’Rourke, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct March 9, 2018) (admonishment for this and related misconduct).
  • “Show Mr. Andrews for the State. Defendant appears in person, in custody, pro se.  There’s a motion to revoke your probation for failure to comply on file for various reasons.  I find that sufficient.  I revoke your probation and remand you to the custody of the Sheriff’s Office to serve the balance of your sentence.  We’re adjourned.  Parties may withdraw.”  Entire transcript of hearing in which judge revoked a defendant’s probation.  In the Matter of Trigg, 414 P.3d 1203 (Kansas 2018) (censure for this and related misconduct).
  • “This is the time I’ve set for a status hearing so that I could try to get everybody in here and help me figure out the status of these cases. I apologize to all.”  Judge over a year after a post-conviction relief petition was filed and over a year before disqualifying himself from the case without having issued a decision.  Inquiry Concerning Jantzen, Order (Arizona Supreme Court June 15, 2018) (censure for this and related misconduct).
  • “Dragging [my] feet,” no excuses other than “dread” of the case, and “making a decision soon.” Judge to chief judge over a year and a half after taking a case under advisement and approximately 9 months before issuing a decision.  In re Henderson, 812 S.E.2d 826 (North Carolina 2018) (reprimand).
  • “I wanted everything to remain the status quo until we had a chance to review the issue at the motion for a new trial.” Judge explaining to a reporter, while a motion for a new trial was pending, his denial of a request for a protective order at sentencing.  In the Matter Concerning Lord, Decision and order (California Commission on Judicial Performance April 11, 2018) (admonishment).
  • “[S]he would be here in hunter orange this morning, in chains, where she would stay and enjoy her Thanksgiving dinner, probably her Christmas dinner as well.” Judge about clerk in ex parte hearing at which he barred her from the courthouse.  In the Matter of Young, 92 N.E.3d 628 (Indiana 2018) (6-day suspension without pay for this and other misconduct).
  • “[Y]es, go ahead,” and “[N]o problem.” Judge giving a probationer in veterans court permission to handle a gun, notwithstanding firearms prohibition as a probationary condition.  Inquiry Concerning Day, 413 P.3d 907 (Oregon 2018) (3-year suspension without pay for this and other misconduct).
  • “So, I live right there. I’m Judge Atwal from Ramsey County.”  Judge to police officer in traffic stop that led to arrest for driving while impaired.  In the Matter of Atwal, Public reprimand (Minnesota Board on Judicial Standards May 30, 2018) (reprimand for this and related misconduct).
  • “Please Call Me.” Judge on large sign in the front window of his vehicle when he pulled in front of his estranged wife’s vehicle.  In re Sachse, 240 So. 3d 170 (Louisiana 2018) (6-month suspension without pay for a pattern of stalking and harassing his ex-wife).
  • “Mom and Alton are turning over in their graves.” Judge commenting on Facebook about photo showing disorder in house formerly owned by mother-in-law and stepfather-in-law occupied by buyer who had defaulted on contract with estate.  In the Matter of Fisher, Determination (New York State Commission on Judicial Conduct June 26, 2018) (admonishment for this and related misconduct).
  • “This murder suspect was RELEASED FROM JAIL just hours after killing a man and confessing to police.”  Judge’s post on Facebook commenting on news story.  In re McLaughlin, Agreed order public reprimand (Kentucky Judicial Conduct Commission June 12, 2018) (reprimand).
  • “Fired by Obama to please the Muslims, hired by Trump to exterminate them.” Meme about General James Mattis shared by judge on Facebook.  Public Reprimand of Burkeen (Texas State Commission on Judicial Conduct February 21, 2018) (reprimand).
  • “It goes without saying but the tenant wasn’t the brightest bulb in the chandelier.” Judge on Facebook mocking litigant who appeared before him in an eviction proceedings.  Urie, Order (Arizona Commission on Judicial Conduct June 12, 2018) (reprimand).
  • “Please help Boys & Girls Club.” Judge using his judicial e-mail account to encourage recipient to purchase lunch tickets for $15 a plate.  In the Matter of Castaneda, Order (New Mexico Supreme Court February 12, 2018) (bar from judicial office for this and other inappropriate uses of state e-mail address).
  • “I can take a lot of things, but I can’t take a liar.” Judge to court clerk about her cooperation in discipline investigation.  In re Tidd, 181 A.3d 14 (Pennsylvania Court of Judicial Discipline 2018) (reprimand for this and other misconduct).
  • “I nearly went down on my hands and knees, but was able to right myself.” False statement by judge to commission about confrontation with referee at his son’s soccer game.  Inquiry Concerning Day, 413 P.3d 907 (Oregon 2018) (3-year suspension without pay for this and other misconduct).
  • “The Johnson’s [sic] lost the business but continue to make payments on the loan.” False statement about loan default by judge to commission in investigation.  In the Matter Concerning Johnson, Decision and order (California Commission on Judicial Performance January 16, 2018) (admonishment for this and other misconduct).

 

Throwback Thursday

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5 years ago this month:

  • Adopting the factual findings of a master, the California Commission on Judicial Performance publicly admonished a judge for communicating his desired disposition of his son’s case to a clerk and participating in a favorable disposition of the matter in chambers with the pro tem judge. Inquiry Concerning Mills, Decision and Order (California Commission on Judicial Performance July 30, 2013).
  • Granting the recommendation of the Commission on Judicial Qualifications, the Iowa Supreme Court publicly reprimanded a part-time judge for wearing his judicial robes and referring to his position as a magistrate in an advertisement for his services as a private attorney. In the Matter of Meldrum, 834 N.W.2d 650 (Iowa 2013).
  • Based on stipulations and the judge’s agreement, the Nevada Commission on Judicial Discipline publicly reprimanded a former judge for conducting a traffic stop of a teenager, using a badge issued to him as a retired highway patrol officer, seizing her driver’s license and directing her to follow him to a sheriff’s sub-station, then re-directing her to a convenience store, and identifying himself as a judicial officer before returning her driver’s license. In the Matter of Bauer, Order (Nevada Commission on Judicial Discipline July 12, 2013).

A sampling of recent judicial ethics advisory opinions

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  • A judge who has taken over a case after another judge’s retirement due to age may initiate ex parte discussions with the retired judge about legal and factual issues in the case without disclosing the communications to the parties or their counsel. New York Opinion 2018-38.
  • Court staff may not conduct ex parte pre-trial dynamic risk assessments to collect information that the judge will use in making decisions in a defendant’s pending case, including setting conditions of release. Washington Opinion 2018-4.
  • A judge may promote diversity in courtroom participation by including a statement in his rules encouraging litigators to give their knowledgeable junior colleagues more speaking and leadership roles in his courtroom. New York Opinion 2018-36.
  • When a judge knows that a lawyer appearing before the judge is a former Facebook friend, disclosure is not presumptively required, but should be considered based on the nature of the former on-line friendship, any other relationship between the judge and the lawyer, and the personal information the judge posted that the lawyer might use to convey the impression of special access to the judge. Massachusetts Letter Opinion 2018-3.
  • A judge must report to the appropriate attorney disciplinary committee an attorney who made an affirmation with numerous allegations about the judge’s conduct that the judge knows to be false. New York Opinion 2018-29.
  • Subject to limitations, a judge may, without compensation, (1) be interviewed for a commercially produced television documentary series concerning a case she prosecuted over a decade ago that has completely terminated; (2) appear occasionally on a commercial news program hosted by her first-degree relative to share family-friendly jokes or riddles; and (3) appear on a commercial news segment in honor of the achievements of individuals who are a particular racial, ethnic, or cultural background or heritage. New York Joint Opinion 17-163/18-03/18-21.
  • Subject to conditions, a judge may make educational presentations to specialty bar associations whose members primarily represent a particular class of litigants on one side in cases. California Formal Opinion 2018-12.
  • A judge may take part in post-screening question and answer sessions and press interviews at film festivals following a documentary of his volunteer work. New York Opinion 2018-48.
  • A judge may be interviewed by a news station about an alternative to incarceration program that uses art as a means of rehabilitation for eligible defendants. New York Opinion 2018-59.
  • A judge’s title may be included in the listing of her name and the heading of her biography on the web-site of a non-profit organization for which she is a director if the listing and heading of other directors’ biographies include comparable titles. New York Opinion 2018-54.
  • A judge may serve on a governmental task force to address the impacts of closing a prison facility when its members represent a broad spectrum of interests and it will plan an orderly transition, not field complaints. New York Opinion 2018-60.
  • A judge may not serve on a statutorily created council that nominates veterans to receive awards recognizing their service. Florida Opinion 2018-17.
  • A judge may serve as a commissioner with the National Conference of Commissioners on Uniform State Laws. Florida Opinion 2018-9.
  • A judge may serve as a judge advocate officer in the reserve of an armed service. Maryland Opinion Request 2018-26.
  • A judge may not voluntarily write a letter commenting on the character and fitness of an applicant for membership to The Florida Bar at any stage in the investigative process of the Board of Bar Examiners. Florida Opinion 2018-10.
  • A judge may not provide a testimonial on behalf of a party in a pending civil lawsuit or a possible criminal prosecution. A judge should testify as a character witness only after being subpoenaed and should discourage a person from issuing a subpoena unless there are unusual circumstances and the demands of justice require the judge to testify.  Maryland Opinion Request 2018-16.
  • A judicial candidate may not answer a political party’s questionnaire that asks the candidate to say yes or no to a specific pledge or promise, does not acknowledge a judge’s obligation to decide all cases fairly and impartially and in accordance with governing law, and does not invite candidates to assert any caveats when responding. The candidate may, if she wishes, ask the party to circulate a questionnaire specifically tailored to judicial candidates.  New York Opinion 2018-95.

 

 

 

Throwback Thursday

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10 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for failing to promptly and expeditiously decide matters before him and failing to report those delays as required by an administrative order. Letter of Admonishment (Smith) (Arkansas Judicial Discipline & Disability Commission July 21, 2008).
  • The Massachusetts Supreme Judicial Court publicly reprimanded a former judge for sending 2 letters on judicial stationery about a libel case he had brought to the publisher of the Boston Herald, the defendant in his case. In the Matter of Murphy, 897 N.E.2d 1220 (Massachusetts 2008).
  • Based on an agreed statement of facts and joint recommendation, the Mississippi Supreme Court publicly reprimanded a judge for delay in rendering a decision. Commission on Judicial Performance v. Agin, 987 So.2d 418 (Mississippi 2008).
  • The Nevada Commission on Judicial Discipline ordered a judge to publicly apologize for making 2 contributions to judicial candidates, of $5,000 each, from his unspent campaign funds; the Commission also ordered the judge to attend an ethics course at the National Judicial College without using unspent campaign funds to do so. In the Matter of Gates, Findings of Fact, Conclusions of Law, and Imposition of Discipline (Nevada Commission on Judicial Discipline July 7, 1998).
  • The New York State Commission on Judicial Conduct publicly censured a judge for (1) placing monies received in 5 cases in a file cabinet where they remained for months or years until discovered during the Commission investigation; (2) depositing court funds into the court account monthly rather than within 72 hours of receipt as required by law; and (3) failing to notify the Department of Motor Vehicles regarding defendants who did not answer charges or pay fines as required by law. In the Matter of Roller, Determination (New York State Commission on Judicial Conduct July 7, 2008).
  • Adopting the findings of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court permanently disbarred a judge for (1) attempting to conceal a possible conflict of interest and to benefit secretly from funds illegally acquired by a known felon; (2) commenting on the results of a polygraph examination administered to a court employee; (3) failing to disqualify himself from a criminal case against his office administrator’s son and a foreclosure action against the office administrator and her husband; and (4) mishandling the estates of his uncle and cousin. Disciplinary Counsel v. Hoskins, 891 N.E.2d 324 (Ohio 2008).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge for making an inappropriate statement in commenting on a warrant, reacting in an overly harsh manner to comments made by a speaker at a seminar on criminal domestic violence, directing a defendant in a criminal domestic violence case to look at the victim, and incorrectly advising a defendant of the penalty at a bond hearing. In the Matter of Lamb, 665 S.E.2d 169 (South Carolina 2008).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for conducting a proceeding without a prosecutor, conducting a second proceeding in the case over the telephone and without a prosecutor, discussing the merits of cases with the complaining witnesses outside the presence of the defendant and/or a prosecutor, issuing capias pro fine warrants without a judgment against the defendant, coercing the defendant to pay all fines instanter with the threat of arrest and jail for entering a plea of not guilty, failing to announce or render her judgments in open court, and failing to reduce her judgments to writing. Public Admonition of Lawless and Order of Additional Education (Texas State Commission on Judicial Conduct July 1, 2008).

Educating and assisting

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10 or so judicial conduct commissions summarize private actions in their annual reports, in addition to reporting statistics and describing public cases.

The California Commission on Judicial Performance explains that it summarizes its confidential dispositions “to educate judges and the public, and to assist judges in avoiding inappropriate conduct.”  Although the summaries omit or obscure the facts to maintain confidentiality, which makes them “less informative than they otherwise might be,” the Commission believes, “it is better to describe the conduct in abbreviated form than to omit the summaries altogether.”

The summaries are included in each annual report, and there is an on-line compilation that begins in 1998.  The California Commission’s most recent report summarizes the 13 private admonishments and 21 advisory letters that became final in 2017.  The Commission privately admonished, for example:

  • A judge who made an appointment not permitted by law and in violation of a litigant’s rights without affording the litigant notice and an opportunity to be heard and failed to comply with disclosure requirements for judicial campaign contributions,
  • A judge who acted as an arbitrator or mediator or otherwise performed judicial functions in a private capacity,
  • A judge who, without any matter pending before the court, issued an order purporting to exempt an individual from a particular regulation, and
  • A judge who used the court’s e-mail and mailing address in connection with business activities unrelated to court business and misused the prestige of office in communicating with law enforcement about a matter not related to official court business.

* * *
The 2017 report of the Massachusetts Commission on Judicial Conduct includes descriptions of 2 private sanctions.

  • The Commission privately reprimanded a judge for treating parties discourteously in 2 matters; the judge also agreed to retire voluntarily after unsuccessfully struggling to overcome health difficulties.
  • The Commission privately admonished a judge for treating a party discourteously and behaving in a manner unbecoming a judicial officer; the judge agreed to be monitored by the Commission and to meet with a mentor judge for 1 year.

In addition, the report describes several complaints dismissed by the Commission, including the  3 summarized below.

  • Referencing a hearing that occurred approximately 32 months before he filed his complaint, a self-represented litigant in a restraining order matter alleged that a judge had an improper ex parte communication with the opposing party and denied the litigant a full opportunity to be heard. The preliminary inquiry, which consisted of reviewing the materials submitted by the litigant, reviewing the relevant docket sheet, and asking the litigant for any additional evidence, yielded no credible evidence to support the allegations.  The Commission voted there was no good cause to investigate the stale complaint.
  • An anonymous complainant alleged that a judge had engaged in a pattern of treating lawyers and other parties appearing before him discourteously. After reviewing the complaint, the Commission voted to investigate because the seriousness or notoriety of the alleged misconduct outweighed the potential prejudicial effect of an investigation.  The investigation, which included a review of audio records from the judge’s courtroom, revealed no evidence of discourtesy, and the Commission dismissed the complaint.
  • A self-represented plaintiff in a civil matter alleged that a judge treated him discourteously, created an appearance of bias because of his disability and/or because he was self-represented, and denied him due process during a pretrial conference. The investigation included reviewing the materials submitted by the plaintiff, reviewing the audio record of the hearing, and interviewing a witness.  The investigation revealed that the judge treated the plaintiff patiently and courteously throughout the hearing, granted him full due process, and did not do or say anything that would cause a reasonable person to believe that the judge was biased against the plaintiff.  The Commission dismissed the complaint.


* * *
The annual report for the Michigan Judicial Tenure Commission summarizes 3 letters of admonition and 2 cautionary letters in 2017.  For example:

  • The Commission cautioned that a judge’s demeanor had aggravated rather than eased a situation in which the judge had become angry with a criminal defendant for failing to follow directions, dared the defendant to “say another word” in exchange for a year in prison, and, after the defendant became agitated, left the bench to help physically restrain the defendant.
  • The Commission privately admonished a judge for writing an op-ed for a newspaper concerning pending criminal charges stemming from the high profile Flint water issue, which was not assigned to the judge.

* * *
The Pennsylvania Judicial Conduct Board annual report gives examples of the letters of counsel and the letters of caution issued in 2017.  For example, letters were sent to:

  • A judge who failed to recuse at the appropriate time from criminal matters involving a former sexual partner,
  • A judge who engaged in a clandestine emotional support relationship with a governmental official while the official and the official’s staff presented cases before the judge,
  • A judge who was charged with driving under the influence of alcohol and identified himself as a judge to the arresting officer,
  • A judge who forwarded an e-mail with racially insensitive content to court employees,
  • A judge who utilized his court office as a forum for a political discussion and utilized the prestige of the judicial office to assist the career prospects of a then-potential opponent to lessen the chances that the potential opponent would run against the judge,
  • A judge who addressed the father of a litigant in a condescending and arrogant manner in open court, calling him “stupid,”
  • A judge who told a witness to “suck it up, cupcake,” in open court when many members of the public were present, and
  • A judge who publicly misrepresented the procedural history of a case and refused to allow counsel to correct the record.

 * * *
The Utah Judicial Conduct Commission 2017 annual report summarizes the 4 dismissals with warning the Commission issued, finding in each matter that “the misconduct was troubling but relatively minor misbehavior for which no public sanction was warranted.”  The Commission dismissed with a warning:

  • A self-report by a part-time justice court judge who had represented a juvenile in a criminal case in violation of a statute,
  • A complaint that a judge made 2 offensive statements about an excused juror during sidebar discussions with the prosecutor and defense counsel,
  • A complaint that a judge had revoked the appointment of counsel when an indigent criminal defendant failed to appear, and
  • A complaint that a juvenile court judge had failed to ensure notice and an adequate record of permitted ex parte communications.

* * *
The New York State Commission on Judicial Conduct annual report describes the 30 confidential cautionary letters issued in 2017.  For example, the Commission cautioned:

  • 1 judge for beginning court proceedings with a prayer from the bench,
  • 1 part-time judge for linking his law firm web-site to a personal web-site detailing his judicial position,
  • 5 judges for failing to properly supervise court clerks, which resulted in misappropriated court funds,
  • 1 part-time judge for filing frivolous lawsuits as an attorney, and
  • 1 judge for circulating nominating petitions for someone other than himself and participating in town board budget sessions on matters not involving court operations.

* * *
The Minnesota Board on Judicial Standards annual report for 2017 describes the 3 private admonitions and a sampling of the 6 letters of caution the Board issued.  For example, the Board:

  • Cautioned 1 judge about signing proposed orders without providing the opposing party an opportunity to respond,
  • Cautioned 1 judge about yelling or swearing during an in-chambers meeting, and
  • Cautioned 1 judge about statements made during a third-party visitation hearing, such as, “I didn’t know parenting was optional?” and “I’m just saying some people who are scared to death shouldn’t have children.”

* * *
The Colorado Commission on Judicial Discipline 2017 annual report explains that it:

  • Privately admonished 1 judge for statements during an in-chambers meeting with counsel that disparaged the defendant and interfered with the defendant’s attorney/client relationship, and
  • Privately reprimanded a second judge for failing to timely resolve permanent orders after being placed on a deferral program regarding delays in finalizing permanent orders in an earlier case, also requiring the judge to make periodic docket management reports.

The report also lists the misconduct at which private disciplinary action has been directed in recent years, for example:

  • Failure to respond to Commission letters and disciplinary measures,
  • Delays in docket management caused by medical conditions requiring diversion programs for treatment,
  • Disrespectful remarks to the media or through e-mails regarding the conduct of a litigant, a witness, an attorney, or another judge,
  • Intemperance or verbal abuse toward an employee, a person dealing with court staff, or a customer of a business establishment,
  • Undue reliance on staff for matters in which the judge should be fully competent,
  • Driving while impaired or under the influence of alcohol,
  • Sexual harassment or other inappropriate personal conduct involving a court employee, witness, attorney, or litigant,
  • Irrelevant, misleading, or incoherent statements during arraignments and sentencing,
  • Rulings from the bench involving unprofessional terminology, including expressions that are viewed as offensive in civilized discourse,
  • A pattern of errors in handling trials or issuing rulings that indicated a lack of competence,
  • Making public statements about another judge’s case,
  • Arbitrary rulings in contempt proceedings that resulted in incarceration without due process,
  • Failure to comply with rules applicable to retention elections,
  • Disregard of court-imposed gag orders,
  • Prohibiting a process server from subsequent cases without an opportunity to be heard,
  • Discourtesy toward judicial colleagues, administrative staff, and sheriff deputies,
  • Behavior that the judge may not recognize as a symptom of a medical condition that affects judicial performance, and
  • Advocating for a self-represented party by providing legal advice or failing to treat all self-represented parties to a case impartially.

* * *
In its 2017 annual report, the New Mexico Judicial Standards Commission summarizes the 18 complaints involving 14 judges it resolved with cautionary letters and the 4 inquiries disposed of through informal remedial measures.  For example, 1 judge successfully completed an informal mentorship that addressed concerns the judge allegedly (a) abused discretion by issuing bench warrants to defendants who were sometimes only minutes late to court, then cancelling the bench warrants, but imposing the $100 bench warrant fee and (b) demonstrated inappropriate demeanor with fellow judges and court staff.   A second judge completed an informal mentorship assisting the judge comply with the Inspection of Public Records Act.

* * *
The Texas State Commission on Judicial Conduct annual report for fiscal year 2017 summarizes private dispositions.  For example, the Commission:

  • Privately warned and ordered additional education for a judge who participated in a ride-along with law enforcement during a “no-refusal” weekend while serving as the on-call magistrate for blood search warrants arising from the ride-along,
  • Privately warned and ordered additional education for a judge who wore a Halloween costume during the performance of her judicial duties,
  • Privately ordered additional education for a judge who used the contempt power to pressure a witness into providing specific testimony, and
  • Privately warned a judge who represented that his opponent did not vote between 1996 and 2012, although publicly available voting records showed that his opponent voted 7 times during that period.

Throwback Thursday

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20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for holding in criminal contempt of court a woman who had posted on his office door a letter that said his daughter was responsible for the woman’s husband being convicted of sexually abusing 2 girls. Letter to Lewis (Arkansas Judicial Discipline & Disability Commission July 20, 1998).
  • The California Commission on Judicial Performance publicly admonished a judge for ex parte e-mails with an attorney about a pending case. Public Admonishment of Caskey (California Commission on Judicial Performance July 6, 1998).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court suspended a judge for 60 days without pay for having an extra-marital affair with a felon who was on parole from a prison sentence she had imposed. In re Harris, 713 So. 2d 1138 (Louisiana 1998).
  • Agreeing with the recommendation of the Commission on Judicial Conduct, the Massachusetts Supreme Judicial Court suspended a judge for 3 months without pay and publicly reprimanded him for (1) routinely failing to properly advise defendants during plea colloquies even though he knew the legal requirements and (2) an ex parte communication to another judge that caused the other judge to dismiss an abuse prevention order she had issued. In the Matter of Markey, 696 N.E.2d 523 (Massachusetts 1998).
  • Adopting the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge from office for making public misrepresentations at a press conference, attempting to introduce a fraudulent letter into evidence in a Commission hearing, and, throughout the proceedings, engaging in conduct that was inappropriate, unprofessional, and demonstrated a lack of respect for the proceedings. In re Ferrara, 582 N.W.2d 817 (Michigan 1998).
  • Following the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court suspended a non-lawyer judge for 90 days without pay and fined him $1,500 for assaulting a defendant in the courtroom and directing profane language at the defendant during the altercation. Commission on Judicial Performance v. Guest, 717 So. 2d 325 (Mississippi 1998).
  • Accepting the recommendation of the Commission on Judicial Qualifications, the Nebraska Supreme Court removed a judge from office for consistently using intemperate, threatening language over a long period; sending a death threat to another judge and igniting firecrackers in that judge’s office; using false signatures and odd bond amounts on court documents; and consistently having close contacts with people placed on probation. In re Jones, 581 N.W.2d 876 (Nebraska 1998).
  • The New York State Commission on Judicial Conduct publicly censured a judge for conveying the impression of bias in favor of the prosecution and against defendants, failing to effectuate the rights of defendants at arraignment, having ex parte communications with prosecutors, and displaying intemperate demeanor. In the Matter of McKevitt, Determination (New York State Commission on Judicial Conduct July 27, 1998).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for entering a judgement in a case without holding a trial, administering an oath to the witnesses, or receiving evidence that would support his judgment and even though he knew that the defendant had no legal obligation to pay the amount claimed and that the decision was contrary to law. In the Matter of Degenhardt, Determination (New York State Commission on Judicial Conduct July 27, 1998).

Recent cases

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  • Based on a stipulated resolution and the recommendation of the Commission on Judicial Conduct, the Arizona Supreme Court publicly censured a judge for failing to decide a petition for post-conviction relief for over 2 years and filing statements falsely certifying that he did not have any matters under submission that were pending and undetermined for more than 60 days. Inquiry Concerning Jantzen, Order (Arizona Supreme Court June 15, 2018).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for mocking a litigant in posts on his Facebook page; the Commission also ordered the judge to delete the posts and to review an Arizona advisory opinion about social media. Urie, Order (Arizona Commission on Judicial Conduct June 12, 2018).
  • Based on an agreement, the Georgia Supreme Court publicly reprimanded a judge for demanding in a telephone call that a car dealership return a repossessed car and advising the woman from whom the vehicle was repossessed to file a lawsuit that was inconsistent with the law. Inquiry Concerning Anderson (Georgia Supreme Court June 29, 2018).
  • Based on a stipulation and the judge’s resignation and agreement not to serve in judicial office, the Indiana Commission on Judicial Qualifications concluded its investigation of allegations that a judge had inappropriate relationships with court employees and attorneys during court hours and on court property. In the Matter of Shoulders, Stipulation and agreement for resolution of investigation (Indiana Commission on Judicial Qualifications May 2, 2018).
  • Based on an agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for sharing a news story on her Facebook account with the comment, “This murder suspect was RELEASED FROM JAIL just hours after killing a man and confessing to police.” In re the Matter of McLaughlin, Agreed order of public reprimand (Kentucky Judicial Conduct Commission June 12, 2018).
  • Based on an agreement, the Nevada Commission on Judicial Discipline suspended a judge for 3 months without pay, publicly censured him, and fined him $1,000 for failing to supervise a judicial assistant who was not performing duties; failing to follow established court practice and procedure and cooperate with other judges and court staff by hiring the judicial assistant; failing to perform his own administrative duties and to answer his phone when on call; and failing to timely respond to phone calls from the Commission’s investigator; the Commission also ordered that the judge attend a National Judicial College course on effective case management. In re Humke, Stipulation and order of consent to discipline (Nevada Commission on Judicial Discipline June 8, 2018).
  • Following a hearing, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for holding a mother in contempt of court without notice and an opportunity to be heard and changing custody of a child to sanction the mother; the Commission also ordered that the judge attend a course on managing challenging family law cases at the National Judicial College. In the Matter of Hughes, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline June 18, 2018), appeal filed.
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for entering a property without the owner’s permission, taking photographs, posting the photos on Facebook with disparaging comments about the owner, and failing to promptly remove the offensive Facebook post despite assuring the Commission that he would do so. In the Matter of Fisher, Determination (New York State Commission on Judicial Conduct June 26, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a complaint alleging that a non-lawyer judge had been rude to the defendant in a civil case and engaged in an ex parte conversation with the claimant. In the Matter of Kline, Decision and order (New York State Commission on Judicial Conduct June 13, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded (1) its investigation of a complaint that a judge had failed to re-register as an attorney or to pay the required biennial registration fee and (2) a proceeding in which there was a pending recommendation that the judge be removed for failing to timely report or remit court funds to the comptroller and the town and failing to cooperate in the Commission investigation. In the Matter of Siegal, Decision and order (New York State Commission on Judicial Conduct June 14, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded an investigation of a complaint that a non-lawyer judge was not maintaining a residence in the town where he presides, as required, but was residing in his mother’s former house. In the Matter of Brooks, Decision and order (New York State Commission on Judicial Conduct June 13, 2018).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate based on his arrest for possession of a substance that he believed was oxycodone. In the Matter of Drose (South Carolina Supreme Court June 13, 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 former judge; the Commission had initiated formal proceedings alleging that the judge had intentionally or knowingly possessed Tussinonex, ecstasy, and marijuana; facilitated the purchase of Tussinonex without a prescription; knowingly engaged in sexual misconduct based on the payment of a fee; and failed to cooperate with Commission investigations. Green, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct April 18, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for posting campaign advertisements for other candidates on his Facebook page and sitting in the campaign tent of 3 candidates during the election. Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for participating in a joint campaign fund-raising event with the elected district attorney and authorizing the use of his name, title, and photograph on advertisements for the event. Public Warning of Duhon (Texas State Commission on Judicial Conduct June 28, 2018)
  • Adopting a judicial conduct panel’s undisputed findings of fact and conclusions of law, the Wisconsin Supreme Court suspended a court commissioner for 15 days without pay for speaking with the police chief about a petition for a harassment injunction and reviewing the police file about the conflict between the parties, who are neighbors, and falsely telling the parties that law enforcement and the municipal court judge had agreed that any further calls to the police would result in disorderly conduct tickets to all involved that would be sustained by the judicial system regardless of the circumstances. In the Matter of Calvert (Wisconsin Supreme Court June 15, 2018).

Throwback Thursday

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25 years ago this month:

  • Granting the application for discipline filed by the Judicial Qualifications Commission, the Iowa Supreme Court publicly reprimanded a judge for a series of inappropriate and unnecessary characterizations of persons appearing before him, for example, describing a witness as a “beer-bellied, full-bearded, unemployed, seedy, coverall-clad lout.” In the Matter of Jenkins, 503 N.W.2d 425 (Iowa 1993).
  • Adopting the recommendation of the Judiciary Commission, the Louisiana Supreme Court involuntarily retired a judge who had continued to hold office beyond the mandatory judicial retirement age of 70. In re Wingerter, 621 So. 2d 1098 (Louisiana 1993).
  • The New Jersey Supreme Court suspended a judge for 60 days without pay for a pattern of sexually harassing behavior that was personally offensive to an employee. In the Matter of Seaman, 627 A.2d 106 (New Jersey 1993).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for twice signing his dead mother’s name to a credit card application to procure a user’s card for himself and, when questioned by bank investigators, repeatedly implying his mother was alive. In the Matter of Mazzei, 618 N.E.2d 123 (New York 1993).
  • The New York State Commission on Judicial Conduct removed a judge who used a shotgun, physical threats, vulgarities, and verbal intimidation in a personal dispute over property rights, which led to his convic­tion on menacing, trespass, and criminal mischief charges. In the Matter of Gloss, Determination (New York State Commission on Judicial Conduct July 27, 1993).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for (1) filing his 1990 financial disclosure statement 10 months late despite 2 notices from the Ethics Commission, (2) filing an incomplete 1991 statement and failing to complete it for over 6 months even after 2 notices and even though he knew the Commission was investigating him, (3) failing to answer letters from Commission staff about his financial disclosure statement, (4) failing to open a letter from the Commission and, consequently, failing to appear as requested, and (5) failing to open 9 letters received in his chambers from attorneys, litigants, and witnesses concerning matters pending before him and failing to have his staff open the letters.  In the Matter of Burstein, Determination (New York State Commission on Judicial Conduct July 27, 1993).
  • Agreeing with the findings of the Board of Commissioners on Judicial Standards, the South Carolina Supreme Court publicly reprimanded a judge for (1) twice disclosing to newspapers confidential correspondence from the Board regarding its investigation; (2) allowing signs favoring 2 candidates for the Republican nomination to the state senate to be placed on his property, sponsoring and attending a barbecue for one of the candidates, and allowing his photo to appear in a newspaper endorsement for the second candidate; and (3) interrupting a town council meeting, levying accusations of criminal conduct against the town police chief, and calling on the council to suspend the chief. In the Matter of Martin, 434 S.E.2d 262 (South Carolina 1993).

Independent factual investigations IRL

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Although judges’ using the internet or social media to independently investigate facts at issue in cases has been a hot topic recently (see discussion here, for example), judges still violate the prohibition the old-fashioned way as a recent judicial discipline case demonstrates.

The Wisconsin Supreme Court suspended a court commissioner for 15 days without pay for speaking with the police chief and reviewing the police file about the conflict between neighbors behind a pending case and then falsely telling the parties that law enforcement and the courts had agreed that any further calls to the police would result in all involved receiving disorderly conduct tickets that would be sustained regardless of the circumstances.  In the Matter of Calvert (Wisconsin Supreme Court June 15, 2018).

In September 2015, as part of an ongoing dispute between next-door neighbors, a petition for a harassment injunction and a request for a temporary restraining order was filed alleging that the respondents had repeatedly harassed the petitioners, including pointing surveillance cameras at their house.  Before holding a hearing or deciding whether to enter a TRO, the commissioner, on his own initiative, went to the police station and obtained from the police chief a summary of the conflicts between the parties and their contacts with the police department.  The police chief told the commissioner that he had visited the respondents’ residence and that there were no cameras pointed at the petitioners’ property.  The commissioner also reviewed the neighbors’ “contact file” kept by the police department, including police statements, and asked the police chief if there was any basis for a citation.

In denying the petitioners’ request for a temporary restraining order, the commissioner considered the information provided by the police chief and in the police file.

At a hearing regarding the preliminary injunction, after the testimony of several witnesses and arguments from both sides, the commissioner denied the request without first disclosing his contact with the police.  The commissioner then stated:

What is going to happen, though, is that anything between these two neighbors is going to stop as of today.  Period.  End of story.  And how it’s going to stop is this:  I’ve already talked to [the police] chief [ . . . ] as of yesterday.  What’s going to happen is, if you call the Oconto Police Department, or the Sheriffs Department, or, you call them, they are going to come out, they are not going to have to listen as to what took place because if they get called out to either of your places, complaining about each other, what’s going to happen—they’re going to issue mutual disorderly conduct tickets.  So, I don’t care who calls.  You call, either of you call, they are going to come out, they are going to issue a disorderly conduct to you and they are going to issue a disorderly conduct to you.  Alright?

Now, if you wish to take that ticket into municipal court, and argue about whether you were disorderly or not, go ahead because I’ve already talked to [the municipal judge] in Oconto [ . . . ] and I’ve told him the problem with this situation, enough is enough, it’s been going on for twelve/thirteen years, I’m putting an end to it, and I told him, “I don’t care what either one of you say.”  He’s going to find you guilty and issue you a fine.  He knows that, he’s with it, he’s tired of it, the Police Department’s tired of it, alright?  If you want to de novo his decision, which you have a right to do[,] under the statute[,] upon finding you guilty, that’s fine because it’ll get de novo’d and it’ll get de novo’d up here to me and guess what’s going to happen?  I’m going to uphold it and you’re both going to pay a fine.

Now, with regard to a court commissioner, you have a right to de novo that, too.  Go ahead because I’m gonna tell either one of these circuit court judges, “Enough is enough.  This is how we’re going to handle it.”  I want nothing further going on.

In fact, the commissioner had not directed the police chief to issue mutual disorderly conduct citations to the neighbors regardless of fault and the municipal judge had not agreed to find the neighbors guilty regardless of fault.

The Court emphasized that the misconduct was “undeniably serious,” stating “a judge’s objectivity and impartiality are critical to the proper functioning of the judicial system.”  It explained:

[The commissioner’s] behavior was far from objective and impartial.  He independently investigated the facts of a case pending before him—an effort that included engaging in an ex parte communication with the police chief.  He then lied to the parties in a particularly manipulative manner, falsely claiming that he had communicated with individuals in the judicial and law enforcement systems in such a way that the parties were doomed to failure and future legal troubles should they ever seek additional recourse.  We cannot abide such assurances by a judge to rig the judicial and criminal justice systems against its participants.