Monthly Archives: August 2018

Another Facebook fail

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Based on a stipulation, the California Commission on Judicial Performance publicly censured a former commissioner and barred him from receiving an assignment, appointment, or reference of work from any California state court for (1) “egregious” posts and re-posts on his public Facebook page and (2) representing to his presiding judge and the Commission that he had taken the posts down when that was not true, although he believed the posts were no longer publicly viewable.  In the Matter Concerning Gianquinto, Decision and order (California Commission on Judicial Performance August 22, 2018).  The Commission noted that, because the commissioner had retired, a censure and bar was the strongest discipline it could impose on him.

In 2016 and 2017, the commissioner maintained a public Facebook page that identified him as “Jj Gianquinto,” stated that he “works at Kern County,” and included photos of him recognizable by the public, but did not identify him as a commissioner.

In May 2017, the presiding judge wrote the commissioner that there was a “significant concern” about the “content” of a number of his posts and the “impression” a member of the public might have on reviewing them.  In a written response, the commissioner stated that he had deleted the posts, had refrained from sharing similar posts, and had “designated my Facebook account as ‘private’ which means only my friends can view any future posts.”  On June 28, the presiding judge privately reprimanded the commissioner in writing.

The commissioner self-reported to the Commission, repeating that he had deleted the posts, “refrained from sharing additional posts of a political nature,” and “designated my Facebook account as private.”

However, despite his representations to the presiding judge and to the Commission, until at least August 2, 2017, the commissioner’s Facebook page remained public and 6 of the posts were still on the page.  Although the commissioner had tried to make the changes, his “unfamiliarity with the technology resulted in the changes not taking effect as intended.  When alerted to the fact that the posts were still visible to the public, the commissioner immediately sought further assistance, deleted the offending posts, and increased the privacy settings on his Facebook profile.”

Reproducing screenshots of many of the posts, the Commission decision describes at least 45 posts or reposts that it found were “egregious” and “the type of conduct that inherently undermines public confidence in the judiciary and that brings the judicial office into disrepute.”  The commissioner’s page reflected, among other things, anti-immigration sentiment, anti-Muslim sentiment, anti-Native American sentiment, anti-gay marriage and transgender sentiment, anti-liberal and anti-Democrat sentiment, anti-California sentiment, opposition to then-presidential candidate Hillary Clinton, accusations against President Barack Obama, a lack of respect for the federal justice system, and contempt for the poor.

A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct Reporter.  Part 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available here.

 

Summer Judicial Conduct Reporter published

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The summer issue of the Judicial Conduct Reporter has been published and is now available on-line.  It has articles on:

  • Professional boundaries in the courthouse,
  • Promotional campaigns for alma maters and other organizations,
  • The resign-to-run rule, and
  • Recent cases involving Facebook.

The Judicial Conduct Reporter is published electronically, and an index and current and past issues of the Reporter are available on-line.  Anyone can sign up to receive notice when a new issue is available.

 

 

Throwback Thursday

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5 years ago this month:

  • Following a hearing on a complaint by the Judicial Inquiry Commission, the Alabama Court of the Judiciary suspended a judge for 90 days without pay and publicly reprimanded her for, in 5 domestic relations cases, failing to properly exercise her contempt power and entering unlawful orders for arrest and detention that resulted in 5 witnesses and 2 litigants being jailed, or put in fear of immediate incarceration, for an indeterminate amount of time and without notice or a hearing. In the Matter of Batiste, Final Judgment and Order (Alabama Court of the Judiciary August 6, 2013).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to disqualify himself from a case involving a man who contributed to his campaign and whose business took over a debt owed by the campaign and granting the man’s request to serve as his granddaughter’s representative during mediation even though, as a non-attorney, the man was not legally permitted to do so. Jayne, Order (Arizona Commission on Judicial Conduct August 21, 2013).
  • The Kentucky Commission on Judicial Conduct publicly reprimanded a former senior status special judge for (1) refusing to allow a pro se defendant in a civil case to present any argument because he was not a lawyer, summarily entering an injunction against the defendant, and awarding attorney’s fees of $11,579.20 and (2) his statements to defense counsel and the defendant in a criminal case, for example, that ineffective counsel motions in general are “distasteful to the court.” In re McDonald, Findings of Fact, Conclusions of Law, and Final Order (Kentucky Commission on Judicial Conduct August 12, 2013).
  • Based on an agreed statement of facts, the Mississippi Supreme Court suspended a judge without pay for 30 days, publicly reprimanded him, and fined him $1,000 for, with full knowledge that he had recused himself from a case, re-inserting himself and issuing arrest warrants for indirect criminal contempt. Commission on Judicial Performance v. Skinner, 119 So. 3d 294 (Mississippi 2013).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for during a murder trial (1) recessing court in the early afternoon on 6 days to attend her daughter’s high school soccer games and (2) to accommodate her personal schedule and for other reasons, conducting proceedings continuously from approximately 1:12 p.m. on December 16, 2010, until the jury returned a verdict at approximately 6:47 a.m. on December 17. In the Matter of Vega, Findings of Fact, Conclusions of Law, and Order (Nevada Commission on Judicial Discipline August 29, 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 for presiding over a speeding charge against his nephew by marriage. In the Matter of Marbot, Determination (New York State Commission on Judicial Conduct August 6, 2013).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) serving as a fiduciary in several matters while a full-time judge and (2) falsely responding to a question about his financial liabilities in 4 applications for appointment as a fiduciary prior to becoming a judge. In the Matter of O’Connor, Determination (New York State Commission on Judicial Conduct August 12, 2013).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for, in a statement during a town board meeting, linking his disposition of a ticket received by the daughter of a board member to his pay raise. In the Matter of Torregiano, Determination (New York State Commission on Judicial Conduct August 26, 2013).

Recent cases

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  • Based on an agreement, the Arkansas Judicial Discipline & Disability Commission publicly censured a judge for being impatient, discourteous, and undignified toward a public defender in a hearing, toward a deputy prosecuting attorney in 2 hearings in drug court, to a drug court litigant during a hearing, to probation officers, and to members of her court staff. Letter of Censure of McGowan (Arkansas Judicial Discipline & Disability Commission July 13, 2018).
  • Accepting a stipulation of facts and an agreed recommendation, the Mississippi Supreme Court publicly reprimanded a judge for signing warrants based on affidavits by her relatives; dismissing petitions for orders of protection from domestic abuse without holding the hearings required by statute; presiding over the initial appearance of a relative on a possession of a controlled substance charge, setting the bond at $50,000, and subsequently reducing the bond to $5,000; waiving an expungement fee and directing the clerks to void the receipts and refund the money; and requesting that the county board of supervisors transfer the complainant from her position as justice court clerk because of the complaint. Commission on Judicial Performance v. Curry (Mississippi Supreme Court July 26, 2018).
  • Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly censured a judge and ordered him to pay a $1,500 fine to a law-related charity for (1) rudeness and sarcasm in 1 criminal case, including threatening to apply duct tape to the defendant’s mouth and (2) muttering under his breath to a defendant convicted of child abuse, “I hope this follows you to prison” in a second case. In the Matter of Smith, Stipulation and order of consent to discipline (Nevada Commission on Judicial Discipline July 26, 2018).  The judge also agreed that he would complete a National Judicial College course entitled “Ethics and Judging:  Reaching Higher Ground” or a similar class and that his failure to comply with the order would result in his permanent removal.
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct censured a non-lawyer judge for delaying and mishandling a small claims action and failing to mechanically record any court proceedings for more than 8 years. In the Matter of Skinner, Determination (New York State Commission on Judicial Conduct June 26, 2018).
  • Following a trial de novo, a Special Court of Review Appointed by the Texas Supreme Court publicly admonished a judge for referencing his judicial title and position to promote a project with his wife called “divorce in peace” that included a book, website, and on-line referral service. In re Roach, Judgment and public admonition (Texas Special Court of Review July 24, 2018).
  • Based on an agreement, the Washington State Commission on Judicial Conduct publicly admonished a court commissioner for requiring a defendant to “tattoo” his next court date on his arms in black ink. In re Ponomarchuk, Stipulation, agreement, and order of admonishment (Washington State Commission on Judicial Conduct July 20, 2018).

 

Throwback Thursday

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10 years ago this month:

  • Granting the petition of the Judicial Standards Commission, the New Mexico Supreme Court removed a judge for (1) having an ex parte conversation with the complaining witness in a domestic violence case and altering a court document; (2) promising a couple he would help them in court with their landlord/tenant case and advising them on how to excuse the other magistrate judge, and (3) giving testimony at the Commission hearing that was not forthright. Inquiry Concerning Rodella, 190 P.3d 338 (New Mexico 2008).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for (1) significant delays in 3 small claims actions and (2) staying a warrant of eviction in a landlord-tenant case based on an ex parte communication and failing to require the holdover tenant to make a deposit with the court, as required by law. In the Matter of Baldwin, Determination (New York State Commission on Judicial Conduct August 22, 2008).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for making sexually inappropriate comments to and having unwanted physical contact with several female detention officers. Public Warning of DePena (Texas State Commission on Judicial Conduct August 29, 2008).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a former judge for her intimate relationship with a public defender and presiding over matters in which the public defender appeared, becoming highly intoxicated in front of her court staff and revealing details of her sexual encounter with the public defender, and apparently attempting to conceal her misconduct in conversations with the Commission staff and on a voice message to the court administration; the former judge agreed not to perform judicial functions again without the Commission’s approval. In re Hartl, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct August 1, 2008).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for requiring a litigant to remove a head covering the litigant maintained was for religious purposes without any inquiry as to the sincerity of the claimed religious belief. In re Stolz, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct August 1, 2008).

Special presentations

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In a recent advisory opinion, the California Supreme Court Committee on Judicial Ethics Opinions identified the conditions under which a judge may make educational presentations to specialty bar associations.  California Formal Advisory Opinion 2018-12.  The committee defined a specialty bar association as one “whose members primarily represent a particular class of litigants on one side in cases before the courts . . . .”

The opinion advised that a judge may make educational presentations to specialty bar associations but conditioned that permission on the judge:

  • Being equally available to give presentations to audiences with opposing interests or viewpoints, and
  • Evaluating whether the frequency of presentations before a particular association or type of association would create an appearance of bias.

Further, the judge’s presentation:

  • Must be neutral in content,
  • Must be presented from a judicial perspective,
  • Must avoid coaching or providing a tactical advantage to the audience, and
  • Must not include statements that may cast doubt on the judge’s capacity to act impartially.

The committee explained that a “presentation is sufficiently neutral if the judge can give the same presentation to specialty bar associations with members that represent opposing or competing interests or parties.”

The committee stated the promotional materials for the program may identify a judge by judicial title, but the judge should ask to review the materials in advance to ensure that they accurately reflect the neutral and educational nature of the presentation.  If the judge is aware that the materials are inconsistent with the canons, the opinion stated, the judge must take corrective action, which may include giving an oral disclaimer at the time of the presentation.

See also Massachusetts Advisory Opinion 2002-1 (a judge may participate as a speaker or panelist in educational programs sponsored by the Academy of Matrimonial Lawyer, which does not favor any particular category of litigants); Nebraska Advisory Opinion 2006-4 (a judge should not make a presentation on effective motions to suppress in a seminar about successful defense of driving under the influence cases sponsored by the Nebraska Criminal Defense Attorneys Association); New Mexico Advisory Opinion 2008-6 (a judge may not speak about the domestic violence court over which she presides at a seminar of the state criminal defense lawyers association that prosecutors were not permitted to attend); New York Joint Advisory Opinions 2003-84 and 2003-89 (a judge may participate in education programs sponsored by the National Consumer Law Center or by a legal services group that appears in housing court provided she does not give advice on strategy or tactics to succeed in such cases on behalf of particular clients); New York Advisory Opinion 2003-54 (a judge may be a panelist and lecturer on the law of evidence at the annual meeting of the National Association of Criminal Defense Lawyers provided he does not comment on pending or impending cases and does not indicate a pre-disposition to rule in a particular way concerning legal issues that may come before the him).

Throwback Thursday

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25 years ago this month:

  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct publicly admonished a former judge for, while a judge, contracting with a public university to teach a class for compensation and discussing legal representation with persons after announcing his pending resignation. In re Moberg, Stipulation and Agreement (Washington State Commission on Judicial Conduct August 6, 1993).