Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a court commissioner for hearing testimony in a child support case from the mother at a hearing when the father was not present because he had a medical emergency, ordering the father to pay a purge amount by a specified date, issuing an arrest warrant for the father when he failed to pay the purge amount, and providing specious and incomplete responses during the Commission investigation. Morton, Order (Arizona Commission on Judicial Conduct February 3, 2014).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a former court commissioner for operating a vehicle while under the influence. Madden, Order (Arizona Commission on Judicial Conduct February 12, 2014).
  • Based on a stipulated resolution in which the judge agreed to resign, the Colorado Supreme Court publicly censured a judge for inappropriate jokes and comments in the course of his duties and ex parte communications. In the Matter of Rand, 332 P.3d 115 (Colorado 2014).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which were accepted by the judge and based on stipulations, the New Jersey Supreme Court publicly admonished a judge for using his judicial stationery when communicating with school officials in an effort to secure funding for a summer camp for the son of the woman with whom he was in a relationship. In the Matter of Isabella (New Jersey Supreme Court February 19, 2014).  The Court’s order does not describe the judge’s misconduct; this summary is based on the Committee’s presentment.
  • Adopting the findings of fact of the Judicial Conduct Commission, the North Dakota Supreme Court suspended a judge for 1 month without pay for failing to diligently and promptly decide judicial matters assigned to him. In the Matter of Hagar, 842 N.W.2d 873 (North Dakota 2014).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for encouraging defendants at an arraignment to enter a guilty plea that afternoon, promising a specific outcome, and failing to require written plea forms when 12 defendants accepted her offer. In re Seitz, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct February 24, 2014).

Judicial Conduct Reporter

The winter issue of the Judicial Conduct Reporter has been published.  The issue reviews 2018 and has articles on:

  • State judicial discipline in 2018
  • Removal cases in 2018
  • Top judicial ethics and discipline stories of 2018
    #MeToo and the judiciary
    Indictments and impeachments in West Virginia
    Facebook fails
    Legal error plus
  • What judges said that got them in trouble in 2018
    What they said to or about litigants
    What they said to or about attorneys
    What they said to or about court staff
    What they said that abused the prestige of office
    What they said on social media
    What they said during campaigns

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.

 

 

What judges said that got them in trouble in the second half of 2018

  • “You could have had a job. I had a job, okay. . . .  Went to school full time, worked part-time. . . .”  Judge to college student who had failed to pay fees.  In the Matter Concerning Elswick, Public admonishment (California Commission on Judicial Performance December 13, 2018).
  • “If you have [ADHD], then I don’t know how you can drive, but that’s a different story.” In the Matter Concerning Elswick, Public admonishment (California Commission on Judicial Performance December 13, 2018).
  • “Tattoo right now the next court date.” Judge to defendant who had missed previous court dates, before handling him a pen to write on his arm.  In re Ponomarchuk, Stipulation, agreement, and order of admonishment (Washington State Commission on Judicial Conduct July 20, 2018).
  • “I understand there’s a battle between your office and myself okay. I’m not trying to make a battle is my point.”  Judge to public defender after public defender’s office disqualified the judge in an unrelated case.  In the Matter Concerning Elswick, Public admonishment (California Commission on Judicial Performance December 13, 2018).
  • “You don’t have to sarcastically say thank you every time I make a ruling, okay counsel?” and “I don’t see any other way to take it, counsel …. It’s obviously clear.”  Judge to attorney.  In the Matter of O’Connor, 112 N.E.3d 317 (New York 2018) (removal for this and other misconduct).
  • “Is there some course in law school now, how to be discourteous and how to be rude? Because if there is, you must have gotten an A in it.”  Judge to attorney.  In the Matter of O’Connor, 112 N.E.3d 317 (New York 2018) (removal for this and other misconduct).
  • “No wonder people think lawyers are a disgrace. It’s people like you who give them that impression.”  Judge to attorney.  In the Matter of O’Connor, 112 N.E.3d 317 (New York 2018) (removal for this and other misconduct).
  • “I heard she’s going crazy;” “Well, tase her;” “Shoot her?”; “What do you do, billy-club people?”; “Well, punch her in the face and bring her out here.  You can’t take a 16-year-old?;” “She needs a whoopin’“; and “Is she crazy or is she bad?”  Judge to sheriff about a woman who had been cursing, kicking, and punching sheriff’s deputies while being transported to the court for arraignment.  In the Matter of Astacio, 112 N.E.3d 851 (New York 2018) (removal for this and other misconduct).
  • “Stay out of the street. It’s super annoying.  I hate when people walk in front of my car.  If there was [sic] no rules, I would totally run them over because it’s disrespectful.”  Judge at arraignment of defendant charged with disorderly conduct for walking in the middle of the road.  In the Matter of Astacio, 112 N.E.3d 851 (New York 2018) (removal for this and other misconduct).
  • “She [the prosecutor] didn’t think it was funny … She was offended.  I thought it was hilarious.”  Judge after laughing when a defense attorney said that a request for an order of protection was “a case of buyer’s remorse.”   In the Matter of Astacio, 112 N.E.3d 851 (New York 2018) (removal for this and other misconduct).
  • “I feel like I’ve sat for the last four and a half or five hours dealing with junior high school students, both of you, even though you have some gray over your ears, all right;” and “[I]t was like Mr. Stowell was pretty much the big man on campus, had the bucks in his back pocket, and the petitioner was the best looking girl in school, and he was going to get her any way he possibly could, all right. And she knew it, and she liked it, because she got things.”  Judge in a hearing before denying a request for a restraining order.  In the Matter Concerning Stafford, Decision and order (California Commission on Judicial Performance December 13, 2018) (admonishment).
  • “[D]o you want to know what I would have done?” Judge offering advice to prosecutor about countering defense argument in a DWI case while jury was deliberating.  Inquiry Concerning Mills, Decision and order (California Commission on Judicial Performance August 28, 2018) (censure for this and other misconduct).
  • “I was hoping we could just get the State to dismiss it.” Judge in court to prosecutor about a ticket involving “a friend of mine.”  In the Matter of Johanningsmeier, 103 N.E.3d 633 (Indiana 2018) (reprimand).
  • “I can do that” and “we do that all the time in St. Johns County.”  Judge to administrative judge about ordering his bailiff to search a father and turn over his money to the mother in a hearing involving child support.  Inquiry Concerning DuPont, 252 So. 3d 1130 (Florida 2018) (removal for this and other misconduct).
  • “Eric was not going to be released because he was a threat to society.” Judge to detention center staff about frequent defendant indefinitely detained without due process following arrest for indecent exposure.  In the Matter of Van Gundy, Order and public censure (New Mexico Supreme Court December 31, 2018).
  • “[T]here is not a day, and seldom a night, that goes by that this case has not been on my mind.  I understand your clients [sic] needs.”  Judge to attorneys inquiring about a decision on a motion for permanent child support almost 4 years after the case was taken under advisement.  In re Chapman 819 S.E.2d 346 (North Carolina 2018) (30-day suspension).
  • “I have spoken with E.K. about this land dispute situation prior to E.K. being charged with Harassment 2nd.” Judge explaining why he was disqualifying himself from a boundary dispute involving his neighbor’s daughter — belatedly as he had already made numerous rulings.  In the Matter of Porter, Determination (New York State Commission on Judicial Conduct November 13, 2018) (admonishment).
  • “You the tax payers decided that a long time ago.” Judge referring to not getting a pay raise when explaining to court personnel that he wanted to dispute a cost of living increase applied to his own child support payments.  In the Matter of Palmer, Order (New Jersey Supreme Court November 8, 2018) (censure).
  • “You don’t have to do this. This isn’t part of your job.”  Judge to police officer arresting her for driving while intoxicated.  In the Matter of Astacio, 112 N.E.3d 851 (New York 2018) (removal for this and other misconduct).
  • “With all due respect, I don’t know you, so you don’t do DWIs, and you don’t know what you’re doing, but you’re making a very big mistake … I’d rather you call someone who does know what they’re doing.” Judge to police officer arresting her for driving while intoxicated.   In the Matter of Astacio, 112 N.E.3d 851 (New York 2018) (removal for this and other misconduct).
  • “You know that. I’m a f**cking judge.  I would never do anything to hurt you man.  Come on.” Judge to police officer while being handcuffed during arrest for driving while intoxicated.  In the Matter of Benitez, Order (New Jersey Supreme Court September 6, 2018) \ (censure).
  • “Just let it slide,” or words to that effect. Judge to police officer who struck a police van at a traffic light about a report after voluntarily identifying herself as a judge several times.  In the Matter of Michels, Determination (New York State Commission on Judicial Conduct December 27, 2018) (admonishment).
  • “When [Obama] said he was going to ‘fundamentally transform’ this nation, he was gaining success.  He was going to transform it from a primarily Judeo-Christian nation into Islam.  Got it now?  Thank God for Trump.”  Court commissioner on Facebook.  In the Matter Concerning Gianquinto, Decision and order (California Commission on Judicial Performance August 22, 2018) (censure).
  • “For the Indian Rez that will not permit the wall built on 75 miles of border on their land — how about building the wall around that rez, fencing them into Mexico? That should please them.”  In the Matter Concerning Gianquinto, Decision and order (California Commission on Judicial Performance August 22, 2018) (censure).
  • “[N]ice body for a 70 year old.” Judge to another judge in a text message with a group photo taken at a social function honoring a third judge.  Public Reprimand of Williams (Texas State Commission on Judicial Conduct December 14, 2018).
  • “I heard [you were] one of my victims.” Judge to clerk after social function at which he had inappropriately touched her, another clerk, and another judge.  Public Reprimand of Williams (Texas State Commission on Judicial Conduct December 14, 2018).
  • “Nine inches.” Judge in response clerk stating, “I have a question for you,” after a court session.  In re Kathren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018) (admonishment).
  • “Heifers” and “DW” (double wide). Judge referring to court personnel.  In the Matter of Peeler, 818 S.E.2d 723 (South Carolina 2018) (reprimand).
  • “The Burlington Fire Department Pancake Feed is happening now and 100% of the proceeds go to benefit the families of the victims of the recent tragedy at Cascade Mall. Please consider attending, it runs until noon today.”  Judge in Facebook post.  In re Svaren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018) (admonishment).
  • “Support these folks who are just trying hard to earn some money in an honest way.” Supreme court justice in Facebook post about homeless who sell a newspaper to raise funds.  In re Yu, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018) (admonishment).
  • “Judge James Metts and Constable Rowdy Hayden’s Annual School Supply Drive” and “AR-15 Raffle Ticket $10 . . . . Donated by Judge James Metts and Constable Rowdy Hayden” to charitable auction.  On judge’s Facebook page.  Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018).
  • “But even though I’ve been asked to find a statute unconstitutional as a sitting judge, I have refused to do so. Because again, it’s not my job to legislate from the bench.”  Judge explaining his judicial philosophy during a candidate forum.  Inquiry Concerning DuPont, 252 So. 3d 1130 (Florida 2018) (removal for this and other misconduct).
  • Campaign opponent was “a member of http://www.hideyourpast.com, which is a website that you join to hide your personal history.” Judge while a candidate insinuating that his opponent had secrets that he sought to conceal.  Inquiry Concerning DuPont, 252 So. 3d 1130 (Florida 2018) (removal for this and other misconduct).
  • “Attorney Gregg Lerman has made a lot of money trying to free Palm Beach County’s worst criminals. Now he’s running for judge!”  Judge about her opponent while a candidate.  Inquiry Concerning Santino, 257 So.3d 25 (Florida 2018) (removal for this and related misconduct).
  • “I’m ‘almost’ taller than him. ”  Judge while a candidate in a comment to a photoshopped picture of herself and an actor on her campaign Facebook page, which misled the public that “the Rock” had endorsed her campaign.  In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018) (reprimand).
  • “Keep this talented team working for our families and for our children.” 2 judges in joint mailer for their re-election campaigns.  Public Warning of Martin and Order of Additional Education (Texas State Commission on Judicial Conduct December 20, 2018); Public Warning of Cooks and Order of Additional Education (Texas State Commission on Judicial Conduct December 20, 2018).
  • “Judge Eleazar Cano & Rep. Roland Gutierrez look forward to seeing you!” On mailer advertising a campaign event for a state representative running for state senate.  Public Warning of Cano (Texas State Commission on Judicial Conduct December 13, 2018).

What they said that got them in trouble in the first half of 2018.

Throwback Thursday

10 years ago this month:

  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for using disparaging speech to refer to a defendant in court and then asking the courtroom gallery to weigh in on his own conduct and that of the defendant. Press Release (Spicer) (Minnesota Board on Judicial Standards February 5, 2009).
  • Accepting an agreed statement and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for repeatedly using her secretary for personal, non-governmental purposes and directing her secretary to check a confidential family court database for information about a defendant based on an ex parte request by her husband, an assistant district attorney. In the Matter of Ruhlmann, Determination (New York State Commission on Judicial Conduct February 9, 2009).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a part-time judge who (1) had significant delays in disposing of criminal cases attributable in large part to his failure to properly administer the court and supervise court staff, resulting in misplaced files, poor record-keeping, and poor case management; (2) in 6 cases, delayed reporting final dispositions to the state comptroller for from 8 months to 3 and a half years; and (3) failed to disqualify himself from a case in which the defendant was a friend and schoolmate of his daughter. In the Matter of O’Donnell, Determination (New York State Commission on Judicial Conduct February 5, 2009).
  • Accepting the recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court indefinitely suspended the license of a former judge for misappropriating funds from a humane society and impermissibly practicing law while a domestic relations court magistrate. Disciplinary Counsel v. Kelly, 901 N.E.2d 798 (Ohio 2009).
  • Based on the recommendation of a panel of the Commission on Judicial Conduct, the South Carolina Supreme Court publicly reprimanded a former judge for failing to meet continuing legal education obligations, to timely file the required annual CLE reports, and to petition the court for reinstatement following his suspension before resuming his judicial duties. In the Matter of Hall, 673 S.E.2d 429 (South Carolina 2009).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for failing to conduct a trial prior to finding a traffic defendant guilty, changing the defendant’s plea from “not guilty” to “guilty,” and failing to enter a written judgment reflecting the decision in the case. Public Warning of James (Texas State Commission on Judicial Conduct February 12, 2009).

Death penalty controversy in Arkansas

Top judicial ethics stories of 2018

A 2017 controversy about the death penalty in Arkansas resulted in cross judicial discipline complaints by a circuit court judge and the supreme court justices and other legal proceedings.  In 2018, some of those cases were resolved although some remain pending for resolution in 2019.  A timeline of the events follows.

2017

April 10
Judge Wendell Griffen writes a blog post stating, in part, “[u]sing medications designed for treating illness and preserving life to engage in . . . premeditated and deliberate killing is not morally justifiable,” and referring to a series of executions that the state will carry out “[b]eginning a week from today, and three days after Good Friday—on Monday, April 17.”

April 14 (Good Friday)
~ 2:00 p.m. — Judge Griffen participates in an anti-death penalty rally on the steps of the Arkansas Capitol.
4:22 p.m. — McKesson Medical-Surgical, Inc., a distributor of the drug vecuronium bromide, files a lawsuit and moves for a temporary restraining order to prevent the state from using its drug in scheduled executions.
4:37 p.m. — Judge Griffen grants the motion.
~5:30 p.m. — Judge Griffen attends a prayer vigil with his church outside the Governor’s mansion.

April 15
The state attorney general files an emergency petition for a writ of mandamus with the Arkansas Supreme Court, seeking to vacate the TRO and remove Judge Griffen from the vecuronium bromide case.

April 17
In an order, the Court immediately and permanently re-assigns all cases involving the death penalty or the state’s execution protocol, whether civil or criminal, that had been assigned to Judge Griffen and refers Judge Griffen to the Commission on Judicial Discipline & Disability.

April 27
Judge Griffen files a complaint about the 7 justices of the Court with the Commission.

September
Judge Griffen files a federal lawsuit alleging that the Court and the 7 individual justices, by entering the April 17th order, retaliated against him for his exercise of his First Amendment rights, violated the Arkansas Religious Freedom Restoration Act, denied his procedural due process rights, violated equal protection, and constituted a civil conspiracy.

2018
April 12
The federal district court denies the justices’ motions to dismiss Judge Griffen’s lawsuit, ruling that “the Court cannot state that Plaintiff has failed to state plausible claims for relief.”  It does dismiss his claims against the Court itself as barred by sovereign immunity and held that the judge is “precluded from seeking injunctive relief against the individual Justices in their official capacities pursuant to Section 1983.”

April 13
In discovery, Judge Griffen seeks from the justices all documents and communications regarding him, his conduct in death penalty cases, his religion or race, his public statements about the death penalty, his participation in anti-death penalty rallies, his “fitness or perceived fitness to serve as a judge,” his grant of the TRO, his potential impeachment, the request for his recusal, and the April 2017 order.

April 24
The justices petition the U.S. Court of Appeals for the 8th Circuit for a writ of mandamus to vacate the district court’s order denying their motions to dismiss.

June 8
In a statement of allegations, an investigative panel of the Commission on Judicial Discipline & Disability alleges that Judge Griffen committed misconduct by failing to disqualify himself from the vecuronium bromide case and making comments in opposition to the death penalty on his social and electronic media sites.

July 2
Vacating the district court’s order, the 8th Circuit holds that Judge Griffen’s federal lawsuit fails to state any plausible claims for relief and remands the case to be dismissed.  In re Kemp, 894 F.3d 900 (8th Circuit 2018).

August 20
The Commission denies Judge Griffen’s motion to dismiss the statement of allegations.

August 29
The 8th Circuit denies Judge Griffen’s motion for re-hearing and re-hearing en banc of its decision directing that his lawsuit be dismissed.

September 20
In statements of allegations, an investigative panel of the Commission alleges that 6 of the 7 justices acted arbitrarily and capriciously by entering the April 2017 order.

October 4
The Commission files a statement of allegations against the 7th justice.

October 17
In an expedited petition for a writ of mandamus, prohibition, and/or certiorari, 5 of the justices argue that the Commission has no jurisdiction to issue a complaint against them based on a ruling of law.

November 22
The Commission dismisses the statements of allegations filed against the 7 justices, finding that the April 2017 order was a legal conclusion or application of the law over which the Commission had no jurisdiction in the absence of allegations of fraud, corrupt motive, or bad faith.

November 27
Judge Griffen files a petition for writ of certiorari with the U.S. Supreme Court from the 8th Circuit decision directing that his lawsuit be dismissed.

December 19
The Arkansas Supreme Court, with special justices appointed by the governor after the justices disqualified themselves, finds that the justices’ petition for a writ is moot based on the Commission’s dismissal of the allegations against them.

2019

February 19
U.S. Supreme Court denies Judge Griffen’s cert petition.

March 22
The hearing on the statement of allegations against Judge Griffen is scheduled to begin.

Throwback Thursday

20 years ago this month:

  • Pursuant to an agreement, the California Commission on Judicial Performance publicly admonished a judge for committing fraud during settlement negotiations in a suit in which he was party. Inquiry Concerning Blackwell, Decision & Order (California Commission on Judicial Performance February 23, 1999).
  • The California Commission on Judicial Performance publicly censured a judge for denying due process in a civil trial, argumentative questioning of a minor in a contempt proceeding, and labeling a lawyer “unethical and dishonest.” Inquiry Concerning Broadman, Decision & Order (California Commission on Judicial Performance February 26, 1999).
  • Affirming the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for mishandling an appeal before becoming a judge, back-dating the certificate of service on a brief, making serious and substantial falsehoods in a deposition she gave in the malpractice suit arising out of her mishandling of the appeal, overcharging her client and misrepresenting to her client how much work she performed on the appeal, depositing some of the cash payments from the client into her own operating account and spending the money rather than depositing it into a trust account, and failing to advise parties when an attorney who was representing her in the pending, personal civil litigation appeared before her. In re Ford-Kaus, 730 So. 2d 269 (Florida 1999).
  • The Mississippi Supreme Court privately reprimanded a judge for inappropriately remarking to a deputy clerk that he noticed that she checked out men. Commission on Judicial Performance v. Justice Court Judge R.R., 732 So. 2d 224 (Mississippi 1999).
  • Pursuant to the presentment filed by the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a retired judge for driving while intoxicated. In the Matter of D’Ambrosio, 723 A.2d 943 (New Jersey February 1999).

A sampling of recent judicial ethics advisory opinions

  • A judge may participate, identified as a judge and wearing a robe, in a state agency video explaining successful truancy measures for juveniles. West Virginia Opinion 2018-19.
  • Judges must assume their attendance at a march, rally, or protest will be scrutinized, publicized, and depicted in reports of the event, including in press coverage or on social media, and consider whether their participation would appear to a reasonable person to undermine their independence, integrity, or impartiality or demean the judicial office, which is an objective standard. Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating.  The same restrictions apply to judges’ personal staff, courtroom clerks, and court managers.  Arizona Opinion 2018-6.
  • A judicial official may not act as a reference for a support enforcement officer who regularly testifies before him and is applying for a promotion Connecticut Informal Opinion 2018-17.
  • A judge may host a “meet & greet” in her home for the new dean of the Oklahoma City University law school if there will be no fund-raising. Oklahoma Opinion 2018-10.
  • A judge may serve on a committee that interviews applicants to his alma mater and recommend a student for admission as long as his title is not mentioned in the recommendation. Florida Opinion 2018-31.
  • A judicial official may not accept an award at a fund-raising dinner for a non-profit human relations organization that promotes inclusion and acceptance through education, advocacy, and building respectful and just communities. Connecticut Informal Opinion 2018-16.
  • A judge may accept a raffle prize valued at approximately $500 at a charity event hosted by the probation department, which regularly appears in her court. New York Opinion 2018-133.
  • A judge may not participate in an interview with a former juror writing a book about a case over which she presided when related proceedings remain pending or impending. New York Opinion 2018-134.
  • A judge may serve as a manager in a real estate investment limited liability company formed to manage his real estate investments and those of close family members but should avoid that role if other members could easily undertake the duties and may not serve if doing so would require frequent disqualification. North Carolina Formal Opinion 2018-1.
  • A judge may serve as an executor/administrator for a great nephew’s estate when they had a close family relationship and may receive the statutorily mandated compensation. West Virginia Opinion 2018-4.
  • A magistrate may participate in a street/block yard sale in his neighborhood. West Virginia Opinion 2018-8.
  • A circuit court judge’s spouse may be the executive director of an organization that provides domestic violence victim advocacy services, including in proceedings before the circuit court, but they judge should not discuss with her the organization’s policies, activities, or clients or attend the organization’s events and should advise her not to promote or comment on their relationship in a job interview or any aspect of her duties. Wyoming Opinion 2018-2.
  • Judicial candidates must disavow third-party/PAC advertisements that contain statements that are false or misleading; that indicate the candidate would be biased in favor of or against an individual, group, or legal issue; or that do not accurately reflect the duties and role of a judge. West Virginia Opinion 2018-22.