Educating and assisting

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.

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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.

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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.

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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.

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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.

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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.

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