The difference between reprimand and removal

On September 21, the New Jersey Supreme Court publicly reprimanded a judge who had involved herself in the scheduling and processing of a friend’s custody case.  In the Matter of Wright, Order (September 21, 2018).  (The Court does not describe the judge’s conduct; this summary is based on the presentment of the Advisory Committee on Judicial Conduct.)

On September 26, the New Jersey Court removed a judge who had involved herself in a former intern’s custody dispute.  In the Matter of DeAvila-Silebi, Order (September 26, 2018).  (The Court’s order does not describe the judge’s misconduct; this summary is based on the report of a 3-judge panel.)

The imposition of drastically different sanctions in 2 cases involving improper use of influence is attributable in part to a difference in the nature and extent of the misconduct.

Judge Wright had escorted a friend seeking temporary custody of his grandson to the court’s intake office, talked to court personnel to ensure he had the right forms, asked the judge on emergent duty about the schedule, and then told a staff member that her friend could return on Monday; the staff member advised the judge that she would bring the friend to her desk so he could complete the application.

In contrast, Judge DeAvila-Silebi called the police the day before Mother’s Day and told a sergeant she wanted an officer to accompany a mother to retrieve her child.  She identified herself as the emergent duty judge and explained that she had received a phone call from an attorney who had filed an emergent application on behalf of a client and that she had seen the order indicating that the mother was supposed to have the child that weekend.  The police department dispatched an officer with the mother to the home of the child’s paternal grandmother; the officer took the 5-year-old boy from his grandmother and returned to police headquarters with the child and the mother, after which the mother left with the child.  The father appeared at police headquarters approximately 2 hours later, irate and questioning why police had removed the child.

The panel also found that Judge DeAvila-Silebi had “demonstrated dishonesty, perversion of her judicial authority and betrayal of the public trust” by making numerous misrepresentations to the police department.  For example, contrary to what she told the police sergeant, she had not received a phone call from an attorney, no emergent application had been filed, and she had not seen the court order regarding parenting time.

Probably the biggest difference that took the Court from reprimand to removal (the intermediate sanctions of censure and suspension without pay were also available) were the aggravating factors in the second case, particularly the judge’s “less than truthful” testimony before the Advisory Committee on Judicial Conduct.

In Wright, there were no aggravating factors, and the mitigating factors included her sincere remorse and contrition, which had demonstrated to the Committee that the likelihood of her repeating the misconduct was “nearly nonexistent.”

In contrast, in DeAvila-Silebi, the judge “not only failed to acknowledge her wrongdoing or express remorse or contrition” but “displayed additional dishonesty and transcended her right to present a defense.”  Most significantly, the panel found that, despite her repeated denials, the judge did know the mother, who had been assigned to her as an intern for several months.  In fact, the judge had continued to have contact with her after the internship ended, including exchanging texts just before and after the judge intervened with the police.  Phone bills produced by the judge had obviously been altered, which was evident when compared with the bills provided by Verizon.

The panel explained that the judge had “constructed a defense predicated on the false claim that she received a call from an attorney or law enforcement agency requiring her emergent intervention to enforce another court’s order” and “perpetuated that falsehood throughout the proceedings before the ACJC, embellishing or revising it as necessary whenever she became aware of contrary evidence” until “the entire house of cards crumbled” when the “telephone records irrefutably demonstrated the falsity of respondent’s assertions.”  The panel emphasized that the judge’s “’disturbing’ decision to perpetuate a defense without any ‘compunction about being less than credible’ as the investigation of her conduct continued, ‘evidence[s] that [she] lacks the honor and integrity demanded of a judge.’”

Throwback Thursday

25 years ago this month:

  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge who had been charged with misdemeanor driving while under the influence of alcoholic beverages and with careless driving for being at fault in an accident. Inquiry Concerning Gloeckner, 626 So. 2d 188 (Florida 1993).
  • The New York State Commission on Judicial Conduct publicly censured a judge for (1) summarily convicting and jailing 2 men for criminal contempt without affording them procedural due process and without a factual or legal basis, (2) after agreeing to release a defend­ant, re-committing him based on ex parte information, and (3) immediately after arraignment, accepting a guilty plea from a 16-year-old unrepresented defendant whose mental stability he questioned, refusing to set bail as required by law, and denying repeated requests to allow the defendant to withdraw the plea and go to trial, even though the prosecutor consented. In the Matter of Meacham, Determination (New York State Commission on Judicial Conduct October 28, 1993).
  • The South Carolina Supreme Court publicly reprimanded a former magistrate who had pled nolo contendere or guilty to 6 counts of misconduct in office, 2 counts of assault and battery of a high and aggravated nature, and 1 count of assault of a high and aggravated nature. In the Matter of Lee, 437 S.E.2d 85 (South Carolina 1993).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for writing a letter on official stationery and an affidavit on behalf of a child living in his home, a minor of no relation, to the American Schools of Correspondence, representing himself as a judge in the documents, and providing legal representation for the minor in the documents. In re Moynihan, Stipulation and order (Washington State Commission on Judicial Conduct October 1, 1993).
  • Pursuant to a stipulation and agreement with a judge, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for using his chambers telephone to make numerous long distance phone calls for personal matters and for having court personnel prepare his personal correspondence using county equipment and supplies on 3 to 5 occasions over 8 years. In re Eiesland, Stipulation and order (Washington State Commission on Judicial Conduct October 1, 1993).

A sampling of recent judicial ethics advisory opinions

  • A judge is not disqualified from matters involving a credit union where she is a member and account holder. New York Opinion 2018-44(A)
  • A judge whose spouse and the construction company he owns are represented by a large law firm is not disqualified from unrelated cases in which that law firm appears. Florida Opinion 2018-22.
  • A judge may preside in a criminal matter involving disruptions at a zoning board by a defendant who has also filed a notice of claim against the town for damages arising from the same incident even though the judge is a resident and taxpayer of the town. New York Opinion 2018-86.
  • A judge may continue to preside in a case after reporting one of the attorneys to a bar association’s lawyer assistance committee. A judge’s disciplinary responsibilities apply to attorney competence as well as misfeasance, malfeasance, and non-feasance.  New York Opinion 2018-58.
  • At the request of a police department’s inspector general, a judge may forward published decisions that appear to involve corrupt or perjured police officers to an appropriate investigative authority, but may decline to do so absent a legal duty. New York Opinion 2018-28.
  • A judge may not participate in a school’s truancy intervention court in his courtroom even if he does not wear a robe and is not the only person making determinations. New Mexico Opinion 2018-5.
  • A judge may write a letter to state agencies with her observations that a state center for the developmentally disabled is no longer suited to house inmates, many of whom are judicially committed for criminal offenses, and requesting action to provide a safer, more secure facility. A judge may inform the legislature of the importance of a center where parents have monitored visitation with their children.  If a judge is concerned that the current law on the apportionment of fault in negligence cases inhibits settlements and increases litigation, the judge may explain to a legislative committee the impact pending legislation on the issue will have on court operations.  A judge may not appear before a legislative committee to support a bill that would increase penalties for domestic violence crimes.  A judge may testify before a county legislative body about the need for indigent legal services in the county.  A judge may make a public service television announcement to encourage people to become foster parents.  California Judges Association Opinion 75 (2018).
  • A judicial official may serve as the president of a local chapter of a college’s alumni association. Connecticut Informal Opinion 2018-15.
  • A judicial official may serve on the board of trustees of a local university. Connecticut Informal Opinion 2018-8.
  • A judge who wrote a book on methods to keep kids out of trouble may speak at a library on the east coast and accept reimbursement for her travel expenses. A judge may attend an economic cooperation and development forum in South Korea but may not accept reimbursement for travel expenses and must attend on his own time.  California Judges Association Opinion 75 (2018).
  • A judge may not publish a scholarly article that is highly critical of the state correctional officers association, the recent administrations in Sacramento, and the “tough on crime” movement. A judge may not sit on an advisory board that distributes grant money to police departments for anti-terror equipment.  California Judges Association Opinion 75 (2018).
  • A newly appointed judge who sits in a misdemeanor calendar may continue to teach a class to at-risk juveniles. California Judges Association Opinion 75 (2018).
  • A judicial official may provide training in collaborative divorce through the Connecticut Council for Non-Adversarial Divorce and receive compensation. Connecticut Informal Opinion 2018-11.
  • A judge may assist a high school team learn the skills necessary to compete in a mock trial competition. New Mexico Opinion 2018-7.
  • A judge may accept a discount to attend a mediation program at Pepperdine University, a discounted membership in California Women Lawyers, and payment of national and local membership dues for the American Board of Trial Advocates offered to all judges by the local chapter. A presiding judge may not authorize a publisher to supply each judge on the court with a free subscription to a local business-type magazine.  California Judges Association Opinion 75 (2018).
  • A judicial official may resell to a commercial ticket reseller or to friends sporting event tickets for more than what he paid, subject to conditions. Connecticut Informal Opinion 2018-9.
  • A judicial official who holds a real estate broker’s license may not receive referral fees consistent with the real estate industry practice even if she connects buyers and sellers. Connecticut Informal Opinion 2018-13.
  • If a municipal parade is a ceremonial community event, not a fund-raiser or a political event, a judicial official may march in the parade with other former municipal officials if her name is not used in connection with soliciting sponsors, if she does not permit any banner or sign displaying her name and office to appear on floats or vehicles promoting political parties or candidates, and if she does not appear with political candidates in the parade or on their floats/vehicles. Connecticut Informal Opinion 2018-12.
  • A judicial candidate may use or re-publish a news report on his opponent’s inappropriate relationship with a legal client, which the opponent has reportedly confirmed. Florida Opinion 2018-12.