The difference between censure and removal

Accepting determinations of the State Commission on Judicial Conduct, the New York Court of Appeals recently removed 2 judges from office for a variety of misconduct.  Both judges had admitted to at least some of the misconduct charged, but both had argued that censure, rather than removal, was the appropriate sanction.  The Court rejected their arguments, considering the “full spectrum” and “entirety” of their behavior to find their misconduct “truly egregious,” justifying removal.  (Suspension without pay is not available as a sanction in New York judicial discipline cases.)

The Court removed 1 judge for (1) her conviction for a misdemeanor offense of driving while intoxicated; being discourteous and seeking preferred treatment from the arresting officers; violating the terms of her conditional discharge by ignoring court orders to abstain from alcohol; and going to Thailand for an extended vacation without notice to the court or her lawyer, resulting in the revocation of her conditional discharge; (2) failing to disqualify herself from the arraignment of a former client and attempting to have his case transferred in a manner that she thought might benefit him; and (3) making discourteous, insensitive, and undignified comments before counsel and litigants in court.  In the Matter of Astacio, Opinion (New York Court of Appeals October 16, 2018).  The Commission decision is In the Matter of Astacio, Determination (New York State Commission on Judicial Conduct April 23, 2018).

Acknowledging that the judge had “expressed some contrition,” the Court was “unpersuaded” that she had “genuinely accepted personal responsibility” because she continued “to point to external factors and justifications as excuses for her behavior.”  The Court explained:

Although we do not expect petitioner to “adopt a posture of obeisance,” we do require that she adequately “recognize wrongdoing in order to forestall the inevitable, unfortunate conclusion that, absent a harsher sanction, more of the same will ensue” . . . .  Here, petitioner’s justifications for her conduct indicate she does not truly recognize the essential role her own decisions played in bringing about her current predicament.

Emphasizing that the judge’s actions cannot be viewed “through a limited prism” but “the full spectrum of her behavior and its impact on public perception of the judiciary” must be considered, the Court concluded that, given her “apparent lack of insight into the gravity and impact of her behavior on both public perception of her fitness to perform her duties and on the judiciary overall, . . . any rupture in the public’s confidence cannot be repaired.”

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The Court removed the second judge for (1) on numerous occasions, acting impatiently, raising his voice, and making demeaning and insulting remarks, often in open court; (2) twice striking witness testimony and dismissing petitions for insufficient proof because counsel reflexively kept saying “okay;” (3) awarding counsel fees without providing the party ordered to pay an opportunity to be heard, contrary to applicable rules; and (4) failing to cooperate with the Commission.  In the Matter of O’Connor, Opinion (New York Court of Appeals October 16, 2018).  The Commission decision is In the Matter of  O’Connor, Determination (New York State Commission on Judicial Conduct March 30, 2018).

The judge argued that his courtroom demeanor “was justified by the circumstances, including the ‘rough and tumble’ nature of landlord-tenant litigation.”  Disagreeing, the Court explained:

To be sure, judges must insist upon order and decorum in the courtroom . . . .  Nevertheless, the need to maintain order must be counterbalanced against a judge’s obligations to remain patient and to treat those appearing before the court with dignity and courtesy . . . .  As we have explained, “respect for the judiciary is better fostered by temperate conduct, not hot-headed reactions” . . . .

The Court also emphasized that the judge’s “failure to observe and follow the law resulted in substantial and unjustifiable adverse consequences for the parties that went uncorrected—namely the dismissal of their petitions and the imposition of fee awards.”  Thus, the Court rejected that the judge’s argument that, at most, he had committed “harmless” legal errors that should not serve as grounds for findings of misconduct.  The Court stated that the judge’s “sustained pattern of inappropriate behavior evinced a lack of understanding of his role as a judge—most notably by disregarding the law and impinging on the fundamental right to be heard—thus eroding the public’s trust and confidence in the integrity of the judiciary.”

The judge did not challenge the Commission’s finding that he had engaged in a “consistent pattern of efforts to withhold cooperation and to delay or thwart the investigation.”  For example, he had not appeared at the hearing before the referee, at a proceeding scheduled to address the issue of notice, at an opportunity to reopen the hearing, or at oral argument before the Commission members.

On appeal, the Court rejected the judge’s argument that, because his underlying conduct, standing alone, would not result in more than a censure, “his failure to cooperate fully with the Commission’s investigation should not elevate the sanction to removal.”  It explained that it would “not overlook the entirety of a judge’s behavior and the extent to which it ‘qualif[ies] in the aggregate to the level and quality of egregiousness that merit[s] the ultimate discipline of removal.’”  The Court concluded:

If the public trust in the judiciary is to be maintained, as it must, those who don the robe and assume the role of arbiter of what is fair and just must do so with an acute appreciation both of their judicial obligations and of the Commission’s constitutional and statutory duties to investigate allegations of misconduct . . . .  In short, willingness to cooperate with the Commission’s investigations and proceedings is not only required—it is essential.

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for sarcastic comments he made during 2 oral arguments in appeals from justice court convictions. McClennen, Order (Arizona Commission on Judicial Conduct October 4, 2013).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for a standing policy that failed to comply with the statutory requirements for waiver of personal service of a citation. Mapp, Disposition of complaint (Arizona Commission on Judicial Conduct October 22, 2013).
  • Pursuant to an agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for his statements during a sentencing hearing that suggested the 5 under-age victims were complicit or at fault in their teacher’s sexual offenses. In re Fletcher, Agreed Order of Public Reprimand (Kentucky Judicial Conduct Commission October 7, 2013).
  • Based on an agreed statement of facts, the Mississippi Supreme Court publicly reprimanded a judge and fined him $500 for failing to disclose on the record in an asbestos case the history of asbestosis claims by his parents or to disqualify himself from the case and refusing to identify his father when asked. Commission on Judicial Performance v. Bowen, 123 So. 3d 381 (Mississippi 2013).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for publicly stating he would not perform same-sex marriages in his judicial capacity but continuing to perform opposite-sex marriages. In re Tabor (Washington State Commission on Judicial Conduct October 4, 2013).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a commissioner for his argument with a defendant in a hearing and the appearance that he set bail based on his displeasure with the defendant, rather than on the merits. In re Parise (Washington State Commission on Judicial Conduct October 4, 2013).

 

26th National College on Judicial Conduct and Ethics

The 26th National College on Judicial Conduct and Ethics will be held Wednesday October 23 through Friday October 25, 2019, in Chicago at the Embassy Suites Downtown Lakefront.  The College registration fee will be $425 through September 4, but $450 beginning September 6.  The hotel room rate will be $239 for single or double occupancy, which includes breakfast.

The College will begin Wednesday afternoon with registration and a reception.  Thursday morning there will be a plenary session, followed by concurrent break-out sessions through Friday noon.  The College provides a forum for judicial conduct commission members and staff, judges, judicial ethics advisory committees, and others to discuss professional standards for judges and current issues in judicial discipline.

Registration will be open sometime in the spring.  As usual, there were be a session on determining the appropriate sanction and sessions for new members of judicial conduct commissions and public members of judicial conduct commissions.  As has become usual in the last few College, there will probably be a session on social media.  If you have suggestions for other sessions, please e-mail cgray@ncsc.org.

Another Facebook fail

The Texas State Commission on Judicial Conduct publicly admonished a judge for Facebook posts advertising a school supply drive, soliciting donations for an individual, and advertising his donation of a rifle to a charitable raffle.  Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018).  In response to the Commission , the judge said that a member of his judicial staff handles his Facebook page and other social media accounts, that many posts were made without his prior authorization, and that he is often unaware of what appeared on his Facebook page.

In July and August 2017, there were a number of posts on the judge’s Facebook page promoting “Judge James Metts and Constable Rowdy Hayden’s Annual School Supply Drive.”  In the posts, the judge asked for donations of school supplies to benefit elementary school students in the county.  He also welcomed cash donations in lieu of supplies, asking donors to make their checks payable to him personally.  The posts advised that donations would be accepted at the court office and provided the court’s telephone number as the number for questions.  Pictures of several donors appeared on the page, with posts thanking them individually by name.

In July 2017, a post appeared on the judge’s Facebook page that stated, “I’m Jamie, with Judge Metts’ office and I’m setting up this page at his request,” with a link to a gofundme.com account that she had established to raise funds to help a county resident repair his driveway.  The post included a photograph of the judge working on the driveway.

In April 2017, the judge’s Facebook page reposted an article from the Montgomery County Police Reporter about his donation of an AR-15 rifle to raise funds for Project Graduation, a charitable organization that provides sober graduation parties.  Included was a copy of the flyer advertising the raffle and stating, “AR-15 Raffle Ticket $10 . . . .  Donated by Judge James Metts and Constable Rowdy Hayden.”

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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 ReporterPart 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.

 

 

Throwback Thursday  

10 years ago this month:

  • Pursuant to a stipulation, the California Commission on Judicial Performance publicly admonished a former judge for failing to be patient, dignified, and courteous in 5 cases. In the Matter of Bryant, Decision and Order (California Commission on Judicial Performance October 27, 2008).
  • Adopting the recommendation of the Commission on Judicial Performance based on an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court publicly reprimanded a former part-time judge for representing a defendant after presiding over proceedings concerning the same defendant on the same criminal charges. Commission on Judicial Performance v. Pittman, 993 So. 2d 816 (Mississippi 2008).
  • The Mississippi Supreme Court publicly reprimanded a former judge and fined her and levied costs of $7,782.06 for repeatedly entering unlawful orders resulting in a man’s incarceration. Commission on Judicial Performance v. Boland, 998 So.2d 380 (Mississippi 2008).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) presiding over cases in which his step-grandchildren were the defendants, (2) initiating an ex parte communication with the judge handling his step-grandson’s case, (3) arraigning a former co-worker’s son and changing a bail decision after an ex parte call from the defendant’s mother, and (4) asserting his judicial office after a car accident. In the Matter of LaBombard, 898 N.E.2d 14 (New York 2008).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for violating the fundamental due process rights of litigants in 5 cases. In the Matter of Jung, 899 N.E.2d 925 (New York 2008).
  • The New York State Commission on Judicial Conduct publicly censured a non-lawyer judge who, in the absence of counsel and with good cause to believe that the defendant was intoxicated and incapable of understanding and asserting his rights, accepted a guilty plea at arraignment and sentenced the 19-year-old defendant to 90 days in jail without making any significant inquiry into whether the defendant was capable of entering a plea or appreciated the disadvantages of waiving the right to the assistance of counsel. In the Matter of Dunlop, Determination (New York State Commission on Judicial Conduct October 28, 2008).
  • The New York State Commission on Judicial Conduct publicly censured a judge who presided over 2 cases in which his personal attorney appeared. In the Matter of Ambrecht, Determination (New York State Commission on Judicial Conduct October 28, 2008).
  • The North Carolina Supreme Court removed a judge for (1) awarding spousal support in a domestic violence protective order case when none had been requested and no evidence had been presented, ordering the bailiff to search the husband’s wallet and turn his money over to the wife; (2) making statements that created the appearance of bias; and (3) during the investigation, making untruthful, deceptive, and inconsistent statements to a State Bureau of Investigation agent and attempting to influence the recollections of a deputy clerk and the plaintiff’s attorney; the Court also disqualified him from holding further judicial office in the state and declared him ineligible for retirement benefits. In re Badgett, 666 S.E.2d 743 (North Carolina 2008).
  • The South Carolina Supreme Court publicly reprimanded a former judge for (1) referring to his judicial office in a dispute with a motorist and (2) his actions during a foreclosure action on his residence. In the Matter of Anderson, 668 S.E.2d 413 (South Carolina 2008).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for failing to make findings of fact required by law in a juvenile proceeding and signing 2 orders in the case after recusing. Complaint against Rich (Tennessee Court of the Judiciary October 10, 2008).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a former judge for (1) allowing a grand jury he had appointed to be influenced by a friend and political supporter seeking indictments against political opponents based upon information that had been rejected by multiple independent investigative agencies and (2) requesting a court of inquiry to investigate a political opponent based on affidavits that were not credible and did not constitute probable cause. Public Reprimand of Davis (Texas State Commission on Judicial Conduct October 31, 2008).

Recent cases

  • Agreeing with the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for (1) ordering the search of a litigant in open court and the seizure of money found on him; (2) misrepresenting facts about his campaign opponent; (3) publicly pledging during a candidate forum not to hold any statute unconstitutional; and (4) holding first appearance hearings without counsel present on the Saturday of a Memorial Day weekend during his campaign. Inquiry Concerning DuPont (Florida Supreme Court September 6, 2018).
  • The Maryland Commission on Judicial Disabilities publicly reprimanded a judge for failing to disclose on a questionnaire he submitted to apply for an open judicial seat that the Commission had previously privately reprimanded him. In the Matter of Wright, Public reprimand (Maryland Commission on Judicial Disabilities September 24, 2018).
  • Following a hearing, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for stating, during a meeting of a domestic violence task force, that women should be concerned that cuts in funding to the Violence Against Woman Act would put women back in their place and, when asked, “are you saying that we need to be in a place?” responding, “the kitchen and the bedroom;” the Commission also ordered the judge to pay $2,500 to the domestic violence resource center, to attend a National Judicial College course, and to send private letters of apology to the women who were at the meeting. In the Matter of Weller, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline September 20, 2018), notice of appeal filed.
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which were based on stipulated facts and which the judge accepted, the New Jersey Supreme Court publicly censured a judge for referring to his judicial status during an encounter with state troopers; the Court also ordered that he continue to be disqualified from DWI matters for at least a year. In the Matter of Benitez, Order (New Jersey Supreme Court September 6, 2018).  The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment.
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which were based on stipulated facts and which the judge accepted, the New Jersey Supreme Court publicly reprimanded a judge for involving herself in the scheduling and processing of a friend’s case. In the Matter of Wright, Order (New Jersey Supreme Court September 21, 2018).  The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment.
  • Based on the report of a 3-judge panel recommending removal, which the judge accepted, the New Jersey Supreme Court removed a judge for using her judicial office to influence the police department to act on behalf of a former intern in a custody dispute and making material misrepresentations to the police department. In the Matter of DeAvila-Silebi (New Jersey Supreme Court September 26, 2018).  The Court’s order does not describe the judge’s misconduct; this summary is based on the report of the 3-judge panel.
  • 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 matter against a former non-lawyer judge who had resigned after Commission informed him that it was investigating allegations that he had made a culturally insensitive comment to a defendant in sentencing; yelled at his co-judge from the bench in a denigrating manner and using vulgarity; and posted racially offensive material in the office area of the courthouse. In the Matter of Tilney, 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 a matter against a former non-lawyer judge who had pled guilty to 3 state charges for stealing over $3,000 in court funds from the town or state and engaging in a check-kiting scheme to obtain from 3 banks over $1,000 that she did not have in her business or personal accounts. In the Matter of Martin, Decision and order (New York State Commission on Judicial Conduct September 17, 2018).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for organizing a school supply drive using court staff and advertising it in Facebook posts, solicitating donations to an individual in a Facebook post, and advertising his donation of a rifle to a charitable organization’s raffle in a Facebook post. Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 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 a confidential complaint alleging the judge was “never in her office” and was otherwise inaccessible to members of the public attempting to transact business with her court. Hicks, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct October 3, 2018).

 

 

Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for his method of handling the misdemeanor pretrial calendar, for leaving the courthouse prior to completion of the pretrial calendar once when no other judge was available to cover the calendar, and for occasionally running on the stairs near his chambers during his pretrial calendar. Inquiry Concerning Sheldon, Decision and order (California Commission on Judicial Performance October 23, 1998).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) inappropriate conduct towards his courtroom clerk and (2) giving his clerk $250 to donate to a candidate for non-judicial office. Public Admonishment of Hiber (California Commission on Judicial Performance October 23, 1998).
  • Adopting a consent agreement, the California Commission on Judicial Performance publicly admonished a judge who had appointed 2 attorneys who rented office space from him and 1 attorney who had a social relationship with him to represent criminal defendants in numerous cases. Inquiry Concerning Shook, Decision and Order Imposing Public Admonishment (California Commission on Judicial Performance October 29, 1998).
  • Adopting a consent agreement, the California Commission on Judicial Performance publicly admonished a judge for failing to rule in 7 cases within 90 days as required by law. Inquiry Concerning Rogers, Decision and Order Imposing Public Admonishment (California Commission on Judicial Performance October 29, 1998).
  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for (1) making comments about 2 pending cases to a newspaper reporter, (2) taking a straw poll of the courtroom audience regarding the guilt of a defendant, and (3) chastising a juvenile in the courtroom. In re Best, 719 So. 2d 432 (Louisiana 1998).
  • Affirming the findings of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge for first offense driving under the influence of intoxicating liquor. Commission on Judicial Performance v. Thomas, 722 So. 2d 629 (Mississippi 1998).
  • The New York State Commission on Judicial Conduct removed a judge who had failed to fulfill his statutory duties to report dispositions and remit court funds to the comptroller; failed to maintain a docket of motor vehicle cases; failed to maintain a docket of criminal cases; failed to maintain a cashbook; failed to issue duplicate receipts; and in 111 cases, failed to send fine notices to defendants who had pleaded guilty by mail, failed to schedule trial for defendants who had pleaded not guilty, and failed to suspend the driving privileges of defendants who had not answered summonses, paid fines, or appeared for trial. In the Matter of Sohns, Determination (New York State Commission on Judicial Conduct October 19, 1998).
  • Based upon an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge who had pleaded guilty to driving while ability impaired. In the Matter of Burns, Determination (New York State Commission on Judicial Conduct October 20, 1998).
  • The New York State Commission on Judicial Conduct publicly censured a judge who had reached out to have the criminal charges against a family friend brought before him, knowing that he should not handle the case, then granted a favorable disposition. In the Matter of Jarvis, Determination (New York State Commission on Judicial Conduct October 20, 1998).