Top judicial ethics stories of 2018

The #MeToo movement to hold accountable people in authority (usually but not always men) for their sexual misconduct in the workplace began in October 2017 in Hollywood and has since spread to many other professions.  That the theme of “Time’s Up” would apply to the judiciary was clear by December 2017, with the publication of allegations about Judge Alex Kozinski of the U.S. Court of Appeals for the 9^th Circuit.  As Chief Justice Roberts wrote in his 2017 Year-End Report on the Federal Judiciary:  “Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune.”

The timeline for the Kozinski scandal is:

2017

December 8
The Washington Post publishes an article entitled:  “Prominent appeals court Judge Alex Kozinski accused of sexual misconduct.”

December 14
Based on the news reports, the Chief Judge of the 9^th Circuit identifies a complaint against Judge Kozinski under the Rules for Judicial Conduct and Judicial Disability Proceedings.

December 15
The Washington Post publishes a second article:  “Nine more women say judge subjected them to inappropriate behavior, including four who say he touched or kissed them.”

Chief Justice Roberts transfers the complaint against Judge Kozinski to the Judicial Council for the 2^nd Circuit.

December 19
Judge Kozinski retires.

2018

February 5
Based on Judge Kozinski’s retirement, the 2^nd Circuit Judicial Council concludes the complaint against him.

April 17
The U.S. Judicial Conference Committee on Judicial Conduct and Disability forwards a copy of the 2^nd Circuit Judicial Council’s order to the House of Representatives Judiciary Committee chair and ranking minority member, the Speaker, and the minority leader.

December 10
Kozinski is co-counsel on a brief on behalf of the appellant filed in the 9^th Circuit.

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Apparently but not expressly prompted by the Kozinski revelations, in his 2017 year-end report, Chief Justice Roberts announced creation of a working group to examine the federal judiciary’s practices for investigating and correcting sexual harassment in the workplace.  The federal courts have assiduously kept the public informed of their progress:

March 13
The federal working group describes nearly 20 reforms and improvements that have been implemented or are under development.

May 1
Based on the work of its own committee, the U.S. Court of Appeals for the 7^th Circuit adopts a “Policy on Equal Employment Opportunity, Discrimination, Harassment, and Employment Dispute Resolution.”

May 21
Based on the work of its own committee, the 9^th Circuit Judicial Council adopts revised policies and procedures regarding workplace environment for all employees, including law clerks.

June 4
The federal working group issues a report with findings and recommendations to improve workplace conduct policies and procedures.

September 13
The U.S. Judicial Conference Committee on Codes of Conduct and Committee on Judicial Conduct and Disability publish for public comment proposed amendments to the Code of Conduct for U.S. Judges and to the Rules for Judicial-Conduct and Judicial-Disability Proceedings.  The Judicial Conference also approves changes to the judiciary’s model employment dispute resolution plan to cover interns and externs and to extend the time for initiating complaints from 30 to 180 days.

October 30
The committees hold a public hearing on the proposed changes to the code and the rules.

November 28
The D.C. Circuit adopts policies and procedures to improve the handling of and response to workplace misconduct issues.

December 4
The Administrative Office of the U.S. Courts appoints the first judicial integrity officer for the federal judiciary.

December 31
In his 2018 Year-End Report on the Federal Judiciary, Chief Justice Roberts provides an up-date on the working group’s efforts, endorses its recommendations, and explains that the proposals will be fine-tuned before the next meeting of the Judicial Conference in March 2019.

2019
March 12
The U.S. Judicial Conference approves “a package of workplace conduct-related amendments,” including amendments to the Code of Conduct for U.S. Judges, the Code of Conduct for Judicial Employees, and the Judicial Conduct and Disability Act Rules.

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With respect to state courts, on January 31, 2018, the Conference of Chief Justices adopted a resolution encouraging “the judicial branch of each state, territory, and the District of Columbia to establish and maintain policies:  (1) to provide every judge and employee with training that addresses the various forms of workplace harassment, including sexual harassment, and related intimidation and reprisal that are prohibited by law; and (2) to establish procedures for recognizing and responding to harassment and harassment complaints.” Most states already had sexual discrimination and harassment policies, but some have recently adopted new or revised procedures or announced committees to make recommendations for up-dates.  So far:

• The Chief Justice of the Alaska Supreme Court announced the creation of a working group to examine what changes are needed in the court system’s anti-sexual harassment policy and procedures.
• The Arizona Supreme Court adopted a new section on discrimination and harassment to the Code of Judicial Administration.
• The Chief Justice of the California Supreme Court created an 8-member working “group to study and make recommendations for how the judicial branch can prevent and address harassment, discrimination, or inappropriate workplace conduct.”
• The Florida Supreme Court adopted “Sexual Harassment Policy and Procedures for Sexual Harassment Complaints against Justices and Judges,” replacing a policy adopted in 2004.
• The New Jersey Supreme Court adopted a “Revised Judiciary Policy Statement on Equal Employment Opportunity, Affirmative Action and Anti-Discrimination.”

In October, the National Center for State Courts created a “repository for resources to assist the state courts in developing or updating training, policies, and procedures” regarding workplace harassment.

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It is too early to tell whether the #MeToo movement will result in more judges being publicly disciplined for sexual harassment; even if there has been an increase in complaints about such conduct to conduct commissions since October 2017, many of those matters would still be in the confidential investigation phase, particularly if the allegations are extensive and disputed.

There were several resignations in 2018 that terminated investigations of workplace misconduct.

• 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 magistrate 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).
• According to the Omaha World-Herald, in February, a Nebraska Supreme Court justice resigned following a complaint to the Judicial Qualifications Commission; reportedly, the allegations were “in line with the national #MeToo movement,” and attorneys and former colleagues, including 2 women, told the newspaper that his judicial career “has been pocked with sexual comments to women.”
• According to the Washington Post, the Maryland Commission on Judicial Disabilities told a former court administrative aide in January that it had decided to file charges based on her complaint that a trial judge had created a sexually charged work environment, but, in May, the Commission notified her that the charges were being “held in abeyance” in light of the judge’s announcement that he was retiring effective June 1.
• 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 judge it had begun investigating after receiving a letter from the judge’s attorney about events described in an article in D Magazine entitled “Ardor in the Court” about the judge’s alleged affair with an attorney who was serving as counsel for one of the parties in a high value probate matters over which the judge was presiding. Peyton, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct January 26, 2018).

There were several judges publicly sanctioned for sexual misconduct in the workplace in 2018.

• The Kansas Commission on Judicial Qualifications ordered a former judge to cease and desist from verbal and/or physical conduct that is offensive and demeaning to female court reporters and judges and to continue his retirement without seeking election or accepting appointment to any judicial office. Inquiry Concerning Yeoman, Order (Kansas Commission on Judicial Qualifications February 7, 2018).
• Accepting the parties’ stipulation of facts, the Massachusetts Supreme Judicial Court indefinitely suspended a judge without pay and publicly censured him for his sexual relationship with a member of the drug court team; the Court also ordered that a copy of its order be delivered to the governor and the legislature. In re Estes, Order (Massachusetts Supreme Judicial Court May 24, 2018).  The judge resigned after the decision.
• The Texas State Commission on Judicial Conduct publicly reprimanded a judge for hiring a woman with whom he had an intimate relationship and making inappropriate comments to her during office hours, in addition to other misconduct. Public Reprimand of Jasso and Order of Additional Education (Texas State Commission on Judicial Conduct April 18, 2018).
• The Texas State Commission on Judicial Conduct publicly reprimanded a judge for engaging in an intimate relationship with the city’s prosecutor. Public Reprimand of Berry and Order of Additional Education (Texas State Commission on Judicial Conduct February 21, 2018).
• The Texas State Commission on Judicial Conduct publicly reprimanded a judge for inappropriately touching another judge and 2 court clerks at a social function and sending the other judge an offensive text message, in addition to other misconduct. Public Reprimand of Williams (Texas State Commission on Judicial Conduct December 14, 2018).
• Based on a stipulation and agreement, the Washington State Commission publicly admonished a judge for responding “nine inches” after a female court clerk stated, “I have a question for you” to him after a court session. In re Kathren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).

See also In re Complaint No. 05-18-90083, Memorandum (Judicial Council for the 5^th Circuit November 9, 2018) () (finding that appropriate corrective action had been taken and concluding a proceeding against an unnamed magistrate judge for inappropriately pursuing social relationships with an attorney who practices before him and with a court employee).

Those cases do not necessary reflect an increase in discipline attributable to the #MeToo movement, however, because there are several such cases every year and, given the timing, most were likely initiated prior to October 2017.  See, e.g., “Sexual harassment:  Top judicial ethics and discipline stories of 2017,” Judicial Conduct Reporter (winter 2018).

There are currently several pending public judicial discipline proceedings with sexual misconduct allegations.

• Based on a complaint by the Judicial Conduct Board, the Pennsylvania Court of Judicial Discipline has found that a judge committed misconduct by viewing images of naked and partially naked women while in his office, in addition to other misconduct. A hearing on sanctions will be scheduled.
• Following a hearing, the Ohio Board of Professional Conduct has recommended that a court of appeals judge be indefinitely suspended for a pattern of inappropriate sexual comments and conduct with at least 2 members of his judicial staff in the workplace and outside of work, in addition to other misconduct.
• In a notice of formal proceedings, the California Commission on Judicial Performance has alleged that a judge, in addition to other misconduct, engaged in a pattern of conduct towards a deputy public defender that was unwelcome, undignified, discourteous, and offensive and that would reasonably be perceived as sexual harassment or sexual discrimination, and made unwelcome, undignified, discourteous, and offensive comments, some of which would reasonably be perceived as sexual harassment or sexual discrimination, to and about other female attorneys who appeared before him and to and about other women who appeared or worked in his courtroom, including a court reporter and litigants.
• In a notice of formal proceedings, the California Commission on Judicial Performance has alleged that a justice, in addition to other misconduct, engaged in a pattern of conduct that was unwelcome, undignified, discourteous, and offensive, and that would reasonably be perceived as sexual harassment or as bias or prejudice based on gender towards another justice on the court, California Highway Patrol officers assigned to the judicial protection section, court attorneys and other court personnel while on the California Court of Appeal and toward female court employees while a magistrate judge at the U.S. District Court for the Central District of California between 1999 and 2009.