Monthly Archives: March 2019

Throwback Thursday

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5 years ago this month:

  • Pursuant to the judge’s consent, the Arkansas Judicial Discipline and Disability Commission publicly admonished a judge for imposing unauthorized fees on criminal defendants who changed their pleas from not guilty to guilty. Letter of Admonishment to Blackman (Arkansas Judicial Discipline and Disability Commission March 21, 2014).
  • The Indiana Supreme Court removed a judge for (1) failing to maintain court files and records in a manner that allowed access; (2) failing to complete paperwork necessary to effectuate court decisions, delaying many rulings, failing to rule promptly on motions to continue court settings, continuing bench trials if she believed the trials could not be completed by 4:00 p.m., and unnecessarily continuing several trials; (3) delaying the release of 10 defendants from jail for 1 to 22 days by failing to complete paperwork or to supervise court staff to ensure that paperwork was correctly filled out and errors were caught; (4) failing to cooperate with the court’s executive committee to address the issues that led to the delayed releases; (5) treating some attorneys, particularly public defenders, rudely and discourteously; (6) making derogatory and inappropriate remarks to court employees, treating court employees discourteously and with hostility, and favoring some court employees over others; and (7) retaliating when she thought court staff had complained to or cooperated with the Commission on Judicial Qualifications. In the Matter of Brown, 4 N.E.3d 619 (Indiana 2014).
  • Based on the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge from office for (1) engaging in a sexual relationship with a complaining witness in a case pending before him without recusing himself from her case and numerous ex parte communications with her about the case; (2) ex parte communications with her about another case in which one of her relatives was a party; (3) permitting his mistress to enter the facility through an employee entrance without going through security, allowing her to remain alone in his chambers while he was on the bench, arranging for her to park in an area reserved for judges, and sneaking her cell phone into the courthouse for her; (4) when their relationship went sour, concocting stalking and extortion charges and seeking to use the prosecuting attorney’s office as leverage against her; and (5) lying under oath during the Commission proceedings. In re McCree, 845 N.W.2d 458 (Michigan 2014).
  • Based on a settlement agreement and the Judicial Tenure Commission’s decision and recommendation, the Michigan Supreme Court publicly censured a judge for, based only on unsworn conversations with court staff, commencing indirect contempt proceedings against a litigant who had a confrontation with court staff and, after the commencement of proceedings, directing staff to provide information to the prosecuting attorney and to prepare affidavits without advising the litigant’s counsel of the communications. In re Wiley, 844 N.W.2d 1 (Michigan 2014).
  • The North Dakota Supreme Court suspended a judge from office for 1 month without pay for conduct toward his court reporter that could reasonably be perceived as sexual harassment. In the Matter of Corwin, 843 N.W.2d 830 (North Dakota 2014).

Insubordination and lack of candor

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Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge for 2 months for surreptitiously recording 3 meetings with her assignment judge and denying what she was doing when she got caught.  In the Matter of Gross-Quatrone, Order (New Jersey Supreme Court January 24, 2019).  The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment.

The judge’s law clerk for the 2015/2016 term began on August 4, 2015.  That clerkship “ended abruptly” on Friday December 10 after the law clerk complained to the county human resources supervisor and the trial court administrator about the judge’s abusive treatment.  The following Monday, County Assignment Judge Bonnie Mizdol met with Judge Gross-Quatrone to discuss the removal of her law clerk and related issues.  Judge Gross-Quatrone acknowledged that she had told the law clerk she considered the clerk’s performance to be deficient, but denied any abusive treatment.

Judge Gross-Quatrone attempted to record this meeting with Judge Mizdol surreptitiously on her cellular telephone although she claims that attempt failed and that there is no recording.

On the morning of December 21, Judge Mizdol scheduled a management meeting in her chambers to discuss providing Judge Gross-Quatrone with administrative support.  She invited Judge Gross-Quatrone, Trial Court Administrator Laura Simoldoni, the family division presiding judge, and the division manager.  Judge Mizdol denied Judge Gross-Quatrone’s request to have her secretary attend the meeting as “her witness,” but agreed to meet privately before the meeting.

During her private meeting with Judge Mizdol, Judge Gross-Quatrone repeated her request to have a “witness” at the meeting or, alternatively, that the meeting take place in a courtroom where it could be recorded; Judge Mizdol denied both requests.  Without Judge Mizdol’s knowledge, the judge recorded this meeting on an Olympus digital voice recorder hidden in her purse.

Judge Gross-Quatrone also recorded the management meeting that followed without the knowledge of the other participants.  The other participants became aware of the judge’s secretive recording when Simoldoni noticed a red light “beaming” from the top of the judge’s purse.  Simoldoni reached into the purse, retrieved the judge’s digital recorder, and pressed the “stop” button.  Simoldoni asked the judge if she was recording the meeting, and the judge replied:  “No!  It was a gift from my parents.  I’m not taping the meeting.  I don’t know how this thing works.”  The judge reiterated her denial when questioned by Judge Mizdol.  In response, Simoldoni replayed a portion of the recording that revealed that the judge had, in fact, recorded the meeting.

Judge Gross-Quatrone demanded the return of her digital recorder, but Simoldoni declined to return the recorder before speaking with counsel to the Acting Administrative Director of the Courts.  The meeting ended shortly thereafter.

Judge Gross-Quatrone requested and was permitted a private meeting with Judge Mizdol.  Judge Mizdol, after confirming that the judge was not also recording that meeting, advised the judge that her conduct was “irretrievable” and constituted a “significant breach of trust.”  The judge maintained that she had done nothing wrong and reiterated her request for the return of her recorder.

Over the next several hours, the judge telephoned Judge Mizdol at least twice and the acting administrative director once seeking the return of her recorder.   In response, Judge Mizdol advised the judge that she would advise the judge of the status of her recorder at that time after hearing from the counsel’s office that afternoon

Judge Gross-Quatrone telephoned Simoldoni and threatened to call the police if she did not return the recorder.  The sheriff’s office received a telephone call from Judge Gross-Quatrone’s courtroom asking about the telephone number for emergencies.  In response, Sergeant Gabriel Soto conducted a ”security check” of the judge’s courtroom and chambers area.  The judge reported to Sergeant Soto that Simoldoni had taken her “personal property” without her permission and had refused to return it.  Sheriff’s Lieutenant James Hague, at Sergeant Soto’s request, went to the judge’s chambers.  The judge recounted for Lieutenant Hague the events leading up to Simoldoni’s retrieval of her recorder, which the judge characterized as a “theft,” and said she wanted to file a report with the police department.

Simoldoni, with the requisite administrative approvals, made a copy of the contents of the judge’s recording and released the recorder to the sheriff’s department that afternoon.  A sheriff’s officer returned it to the judge that same day.

Judge Gross-Quatrone was transferred following these incidents.

There were 3 files on the judge’s recorder:  a recording of the judge saying “testing, testing, one, two, three, testing, testing;” a second that was blank; and the recording of the judge’s private meeting with Judge Mizdol and subsequent management meeting.  The Committed noted that the judge’s evident testing of the recorder contradicted her claim that she did not know how the recorder worked.

The judge argued that she was justified in surreptitiously recording the 3 meetings because she needed “to protect herself from recurring ‘workplace hostilities, belittling in the presence of staff, and verbal abuse’” by Judge Mizdol.  The Committee found that the judge’s defenses did not justify or mitigate her intentional misconduct.  It explained:

While Respondent may have perceived herself to be the subject of hostile treatment, she had available to her several options to address that situation short of engaging in deceptive and insubordinate conduct.  Respondent could have communicated her concerns directly to the Acting Administrative Director of the Courts or the Assistant Director of Human Resources at the Administrative Office of the Courts.  Respondent’s decision to forego these legitimate avenues to address workplace concerns does not constitute a viable defense in this proceeding.

The Committee noted that the judge’s recording and subsequent denials “occurred in full view of subordinate court personnel,” thus undermining Judge Mizdol’s authority.  It explained:

Such insubordination is intolerable in an institution such as the judiciary where the operational fortitude of the organization depends appreciably on its members’ compliance with the mandates of the administrative hierarchy.  Absent such compliance by its most senior members, i.e. jurists, the judiciary risks similar noncompliance from subordinate court personnel and, for that matter, court users who are required to abide by court orders or face potential sanctions.

The Committee concluded that the judge’s defiance of her superior and lack of candor “suggest a disturbing lack of sound judgment and professional integrity that, if left unaddressed, threaten the dignity of the judicial office and the public’s confidence in the judiciary as an institution worthy of deference.”

The Committee also stated that the judge’s misconduct had been aggravated by her multiple calls about the return of her recorder, her threats to have the police intervene, and her “spurious incident report” to the sheriff’s office, which “exacerbated an already tense situation and unnecessarily exposed additional courthouse staff to this incident.”  Also in aggravation, the Committee noted the judge’s attempts to mislead it during its investigation by feigning ignorance about having recorded the first meeting.  In mitigation, the Committee noted that the judge had performed satisfactorily on the bench after her transfer.

The judge argued that her surreptitious recordings were “legal” in New Jersey and she could not be disciplined for legal conduct.  The Committee stated, however, that, regardless of her legal rights, the judge’s “documented insubordination in her interactions with her Assignment Judge and lack of credibility both to her Assignment Judge and this Committee constitute a sharp deviation from the integrity demanded of all jurists under Canons 1 and 2 of the Code of Judicial Conduct and is deserving of public discipline.”

Throwback Thursday

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10 years ago this month:

  • Based on a conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for driving while intoxicated. In the Matter of Felts, 902 N.E.2d 255 (Indiana 2009).
  • The Indiana Supreme Court suspended a judge from office for 60 days without pay for excessive delays in ruling on prisoners’ petitions for post-conviction relief, which resulted in 1 prisoner being incarcerated for nearly 2 years longer than necessary, and for delay in reporting to the Judicial Qualifications Commission and providing incomplete and inaccurate information to the Commission. In the Matter of Hawkins, 902 N.E.2d 231 (Indiana 2009).
  • 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, in a summary eviction matter, visiting the office of an attorney who represented the defendant in a related matter, questioning the attorney’s secretary about the defendant’s finances, and, based on the information, ruling against the defendant and issuing an order of eviction. In the Matter of Bishop, Determination (New York State Commission on Judicial Conduct March 18, 2009).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for permitting 6 defendants charged with speeding to plead guilty to a reduced charge without the consent of the prosecutor. In the Matter of Schurr, Determination (New York State Commission on Judicial Conduct March 23, 2009).
  • Based on a referee’s proposed findings of fact and conclusions of law, to which the judge stipulated, and a joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for, while a part-time judge (1) arranging to have charges against his client filed in a court that did not have jurisdiction to circumvent the prohibition against practicing law in his own court; (2) failing to disqualify himself in a case notwithstanding that he had previously represented the complaining witness and holding the defendant in summary contempt without complying with proper procedures; and (3) representing defendants in 3 cases that had originated in his court. In the Matter of Aison, Determination (New York State Commission on Judicial Conduct March 26, 2009).
  • The Ohio Supreme Court permanently disbarred a judge who burned down his house to defraud an insurance company for which he had been found guilty on 2 federal counts of mail fraud, 1 count of use of fire to commit mail fraud, 1 count of conspiracy to use fire to commit mail fraud, and 2 counts of money laundering. Disciplinary Counsel v. McAuliffe, 903 N.E.2d 1209 (Ohio 2009).
  • The Texas State Commission on Judicial Conduct publicly warned a justice of the peace for facilitating and permitting the paddling of juveniles in his courtroom. Public Warning of Garza (Texas State Commission on Judicial Conduct March 9, 2009).
  • The Texas State Commission on Judicial Conduct publicly warned a justice of the peace for failing to provide notice to the plaintiff in a small claims case or to hold a hearing before ruling on the defendant’s untimely motion to set aside a default judgment; setting the case for trial without expressly granting or denying the defendant’s motion; conducting the trial after the court had lost jurisdiction; entering a second judgment in the case after the default judgment in favor of the plaintiff became final; and preventing the plaintiff from testifying about the car wreck or the damage to her vehicle. Public Warning of Torres and Order of Additional Education (Texas State Commission on Judicial Conduct March 9, 2009).

Balls, strikes, and self-represented litigants

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In an advisory opinion, the California Judges Association Judicial Ethics Committee encouraged judges to “understand the difficulties encountered by self-represented litigants” and “to exercise discretion to treat them differently.”  California Judges Association Advisory Opinion 76 (2018).  The opinion emphasized that a “judge may make reasonable procedural accommodations that will provide a diligent self-represented litigant acting in good faith the opportunity to have his or her case fairly heard.”

The committee explained:

Some judges take the position that the job of the judge is to call the balls and strikes, not to throw the pitches.  Is this an accurate statement of the role of the judge?  Not necessarily. . . .  Fundamental justice should not be sacrificed to procedural rules and cases should be decided on their merits.  Exercising discretion – not just calling balls and strikes – is the nature of judging, from granting motions for extensions of time to handing out sentences.

Frequently, there is tension between the represented party and the self-represented litigant.  One side is ready to proceed, has done the legal work, and would like to complete the proceeding as soon as possible.  The self-represented litigant often is struggling with legal terms, time limits, and court procedures.  The judge must decide what reasonable accommodation is proper and when it is unreasonable.  Judges may grant continuances, explain legal terms, refer a litigant to self-help services or the library, or refer him or her to the local bar association for a low-cost meeting with an attorney.  Whether the judge should take any of these or other steps is a matter of judicial discretion.

The committee concluded:

The adversary system is not embedded in the Code of Judicial Ethics, nor is it the primary purpose of the code to protect the formalities of the adversary system.  Reasonable procedural accommodations for self-represented litigants do not change the facts, the law, or the burden of proof, nor do they ensure a victory for the unrepresented.  Such accommodations simply mean that both sides will have a fair opportunity to tell their stories.

The committee applied its analysis to several courtroom situations.  For example, the committee stated, a judge may, at the beginning of a civil case in which one litigant is unrepresented by counsel and the other is represented, explain how the proceedings will be conducted, including that the party bringing the action has the burden to present evidence in support of the relief sought, the kind of evidence that may be presented, and the kind of evidence that cannot be considered.  In addition, the opinion advised:

  • A judge may give a self-represented litigant a neutral explanation of how to respond to a motion for summary judgment.
  • A judge may provide a self-represented litigant information about the requirements for entry of a default judgment.
  • A judge may ask a self-represented litigant if she wants a continuance to bring a witness to court.
  • During a trial, a judge may ask witnesses neutral questions to clarify testimony and develop facts.
  • A judge may sign a settlement agreement prepared by the attorney for 1 party and signed by an unrepresented party, but, as a best practice, should ask the parties if they understand the document and ask the unrepresented party if she understands her responsibilities under the agreement.
  • When a self-represented litigant refers to information after being instructed not to, a judge is not required to grant a motion for a mistrial but may instruct the jury to disregard the testimony.
  • If an unrepresented plaintiff makes no specific claim for damages at the close of her case, the judge may ask the plaintiff, “Are you asking for damages in this case? If so, what is the amount you are asking for?  And why are you asking for this amount?”
  • In a criminal case, if a prosecutor tries to take advantage of a defendant’s unrepresented status to introduce the defendant’s prior drug-related arrest and the factual basis for a search, the judge should immediately intervene even if the defendant does not object.

In domestic violence cases, the committee stated, a judge:

  • May give the self-represented plaintiff a short continuance to learn about the relevant rules of evidence and the procedural requirements for the admission of hospital records,
  • Should permit a support person to accompany a self-represented moving party to counsel table, and
  • Should inform a self-represented respondent that he could present oral testimony.

Commentary to the California Code of Judicial Ethics states:  “[W]hen a litigant is self-represented, a judge has the dis­cretion to take reasonable steps, appropriate under the circumstances and con­sistent with the law and the canons to enable the litigant to be heard.”  Comment 4 to Rule 2.2 of the American Bar Association Model Code of Judicial Conduct states:  “It is not a violation of this Rule [requiring that a judge be fair and impartial] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”  34 states and the District of Columbia have added comment 4 or a version of comment 4 to their codes of judicial conduct.  Click here for more information.

Throwback Thursday

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20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for presiding over a small claims case involving a defendant who had filed a complaint against him that resulted in a letter of reprimand from the Professional Conduct Committee in 1982. Letter to Judge Hall (Arkansas Judicial Discipline & Disability Commission March 15, 1999).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for (1), after witnessing an apparent larceny, directing a police officer to issue a citation for the infraction and presiding at the trial and (2) using chewing tobacco during court proceedings. Letter to Inboden (Arkansas Judicial Discipline & Disability Commission March 15, 1999).
  • Approving an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Commission publicly admonished a judge for participating in cases in which her brother-in-law, his wife, and his daughter were parties or complaining witnesses and in cases involving an altercation between her brother-in-law and his wife, which the judge had personal knowledge of. In the Matter of Remchuk, Determination (New York State Commission on Judicial Conduct March 29, 1999).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for intemperate demeanor, biased behavior against victims of domestic violence, disregard of the law, and offering to use his influence with the town board to reward the police chief if the police instigated a criminal complaint for the benefit of a friend and client of his private practice.  In the Matter of Romano, 712 N.E.2d 1216 (New York 1999).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for making a series of public comments on a case that had been remanded to him. In the Matter of O’Brien, Determination (New York State Commission on Judicial Conduct March 4, 1999).
  • The New York State Commission on Judicial Conduct removed a judge for “gross neglect” of court record-keeping. In the Matter of Gregory, Determination (New York State Commission on Judicial Conduct March 23, 1999).
  • Reviewing a judicial conduct panel’s findings of fact, conclusions of law, and recommendation based on the complaint of the Judicial Commission, the Wisconsin Supreme Court publicly reprimanded a judge for holding 2 offices of public trust ‑‑ municipal judge and school board member ‑‑ at the same time. In the Matter of Stern, 589 N.W.2d 407 (Wisconsin 1999).

Recent cases

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  • Accepting the findings and recommendation of the Commission on Judicial Conduct, the Alaska Supreme Court ordered that a judge be immediately placed on medical disability retirement for a disability that seriously interferes with her performance of judicial duties and that is or may become permanent. In the Disability Matter Involving Greene, Order (Alaska Supreme Court January 11, 2019).
  • Pursuant to the judge’s retirement and agreement not to serve in the judiciary, the Arkansas Judicial Discipline & Disability Commission publicly reprimanded a former judge for improperly using court premises, equipment, or other resources for extra-judicial activities that did not concern the law, the legal system, or the administration of justice and improperly using court computer equipment after regular work hours at the office, as he admitted under oath during divorce litigation. Smith, Letter of reprimand and agreement not to serve in the judiciary (Arkansas Judicial Discipline & Disability Commission February 22, 2019).
  • The California Commission on Judicial Performance publicly censured a former judge and barred him from holding judicial office for (1) allowing a business to use his testimonial on its web-site without assuring that it did not use his judicial title; (2) ordering defendants in 5 cases to use an alcohol monitoring service without disclosing that his son worked for the company and that the owner was a friend and ordering a defendant to pay restitution to the company contrary to the law and based on a letter from his son; (3) appointing an attorney as a special master without disclosing that the attorney was a personal friend; (4) receiving improper gifts from Court Appointed Special Advocates, an attorney he had appointed as a master, and a law school; (5) failing to accurately report travel-related payments or reimbursements for attending judicial education programs; (6) commenting in the courthouse that gay men are “snappy” dressers;” (7) running for California Attorney General without taking a leave of absence and using his judicial title to raise funds for and promote his campaign; (8) failing to file a candidate intention statement until after his campaign had received contributions in violation of the Political Reform Act; and (9) permitting a campaign coordinator to use his judicial title on the Facebook page for his campaign for Attorney General and in posts on her law firm’s Facebook page promoting his candidacy. Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).
  • Approving a second revised stipulation, the Florida Supreme Court suspended a judge for 90-days without pay, fined her $5,000, and publicly reprimanded her for failing to take reasonable steps to stay apprised of her financial circumstances and failing to verify the accuracy of her 2016 and 2017 financial disclosures, which did not report that the accommodations and other benefits she received on 3 trips with her husband were provided by the hotel for free. Ortiz (Florida Supreme Court January 29, 2019).
  • Accepting a conditional agreement and petition to dismiss as moot following the judge’s resignation and the closing of his court, the Indiana Supreme Court dismissed the statement of charges filed by the Commission on Judicial Qualifications alleging that a non-lawyer judge, without the authorization of the county prosecutor’s office and contrary to the prosecutor’s directions, permitted state infraction cases to be filed in the city court and allowed individuals to be placed in the infraction deferral program, used the prosecutor’s signature stamp to approve deferral agreements, permitted juveniles to participate in a deferral program contrary to statute, and dismissed with prejudice state infractions in which the court had accepted partial payments with no adjudication. In the Matter of Robison, 116 N.E.3d 452 (Indiana 2019).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission suspended a judge for 7 days without pay for leaving the scene of a vehicular accident. In re Roberts, Agreed order of suspension (Kentucky Judicial Conduct Commission January 17, 2019).
  • Based on the judge’s consent, the Nevada Commission on Judicial Discipline ordered a judge to resign and to be barred from serving in judicial office based on his lack of knowledge and ability to handle the legal and administrative duties of his family court docket. In the Matter of Humke, Stipulation and order of consent to discipline (Nevada Commission on Judicial Discipline January 11, 2019).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge for 2 months for surreptitiously recording 3 meetings with other judges and denying that she recorded 1 of the meetings. In the Matter of Gross-Quatrone, Order (New Jersey Supreme Court January 24, 2019).  The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment.
  • Granting a petition to accept a stipulation, the New Mexico Supreme Court ordered the permanent resignation of a judge based on her arrest for driving under the influence of intoxicating liquor or drugs and the resulting criminal proceedings. Inquiry Concerning Walker, Order (New Mexico Supreme Court January 31, 2019).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for invoking his judicial position when asking the police for assistance in unlocking his personal vehicle and threatening to refuse to do arraignments if they refused his request. In the Matter of Abbott, Determination (New York State Commission on Judicial Conduct February 7, 2019).
  • Accepting an agreed statement of fact and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for holding a preliminary hearing without the defendant’s attorney after his request to adjourn because he was required to appear at a sentencing proceeding in federal court at the same time and committing errors during the hearing that gave the appearance she was biased against the defendant. In the Matter of Wachtman, Determination (New York State Commission on Judicial Conduct February 7, 2019).  The judge is not an attorney.
  • Accepting the Board of Professional Conduct’s findings of fact and misconduct, based on stipulations and an agreement, the Ohio Supreme Court suspended a judge for 1 year for (1) reducing bail in a case from $350,000 to $85,000 following ex parte texts from the defendant’s attorney forwarded to her by her bailiff and (2) changing her verdict in a bench trial from guilty to not guilty out of frustration with the prosecutor for refusing to dismiss an unrelated charge against the same defendant; the Court stayed the suspension conditioned on the judge not engaging in further misconduct, paying the costs of the proceeding, and completing 6 hours of CLE. Disciplinary Counsel v. Salerno (Ohio Supreme Court February 12, 2019).
  • Accepting a consent-to-discipline agreement, the Ohio Supreme Court suspended a former judge from the practice of law for 6 months for his actions after his 17-year-old daughter was pulled over for speeding, including trying to talk to the prosecutor about her case during a hearing in an unrelated case, complaining that the state trooper who pulled her over had not shown him professional courtesy, saying in unrelated cases that he did not trust troopers like he used to, testifying as a radar expert in his daughter’s case, and complaining that the magistrate who presided in his daughter’s case had questioned his credibility. Disciplinary Counsel v. Marshall (Ohio Supreme Court February 28, 2019).
  • Based on an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for delay in entering a final ruling in a domestic relations case, failing to promptly enter a ruling following a remand from the state supreme court, and failing to respond to notices from the Board. Weiss (Tennessee Board of Judicial Conduct January 11, 2019).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a former judge for engaging in a sexual relationship with an employee and giving her preferential treatment in raises and promotions. Public Reprimand of Riley (Texas State Commission on Judicial Conduct February 20, 2019).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for telling a jury that the defendant was not guilty and exhibiting prejudice against the prosecution and bias in favor of the defense during the trial. Public Warning of Robison (Texas State Commission on Judicial Conduct February 20, 2019).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for appointing as foreperson of a county grand jury a detective whose agency investigates cases in the county. Public Warning of Strother (Texas State Commission on Judicial Conduct February 20, 2019).

 

Throwback Thursday

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25 years ago this month:

  • Affirming the order of the Judicial Retirement and Removal Commission, the Kentucky Supreme Court publicly censured a former judicial candidate for campaign advertisements that stated: “Jed Deters is a Pro-Life Candidate.”  Deters v. Judicial Retirement and Removal Commission, 873 S.W.2d 200 (Kentucky 1994).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for driving while intoxicated and losing control of the car; when asked his name by a police office, giving his name and judicial office; and asking the officer, “Isn’t there anything we can do?” In the Matter of Henderson, Determination (New York State Commission on Judicial Conduct March 18, 1994).
  • The New York State Commission on Judicial Conduct publicly censured a judge for failing to remit court funds promptly to the state comptroller as required by statute; failing to respond to 4 letters from Commission counsel and failing to appear to testify; and failing to make deposits to his official court account for almost 6 months even though a statute required deposits within 72 hours of receipt. In the Matter of Giffin, Determination (New York State Commission on Judicial Conduct March 18, 1994).
  • The New York State Commission on Judicial Conduct publicly censured a judge for stating to a jury after it had rendered a guilty verdict: “Ladies and gentlemen, I’m very happy that you reached that disposition because the Dominican people are just killing us in the courts” and making similar comments.  In the Matter of Cunningham, Determination (New York State Commission on Judicial Conduct March 18, 1994).
  • Reviewing the findings of fact, conclusions of law, and recommendation of the Commission on Judicial Fitness and Disability, the Oregon Supreme Court suspended a judge for 45 days without pay for (1) refusing to recuse himself in several cases involving an attorney who had filed a complaint with the Commission that the judge publicized with his opinion of the attorney; (2) meeting privately with the district attorney, at the judge’s initiation, on the general subject of his disqualification in several cases with a specific reference to a case in which a disqualification motion was pending; and (3) writing a letter to the editor and a guest editorial published in a local paper that criticized the district attorney. In re Schenck, 870 P.2d 185 (Oregon 1994).
  • The Pennsylvania Supreme Court removed a judge from office for failing to recuse from 33 cases involving parties who had loaned the judge or her family money and with whom she had a close personal relationship. Pekarski v. Judicial Inquiry and Review Board, 639 A.2d 759 (Pennsylvania 1994).
  • Affirming the recommendation of the State Commission on Judicial Conduct, the Review Tribunal appointed by Texas Supreme Court removed a judge from office for conspiring to extort money from a probationer, altering conditions of probation ex parte, and granting credit for time served in excess of time actually served. In re Thoma, 873 S.W.2d 477 (Texas Special Court of Review 1994).
  • The Vermont Supreme Court publicly reprimanded a former, non-lawyer judge for had, while a judge, purchasing a paid political advertisement in a newspaper that supported candidates for national, state-wide, and local offices. In re Steady, 641 A.2d 117 (Vermont 1994).

 

Delay

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As in every year, in 2018, delay in issuing a decision was sanctioned in several cases.

  • A judge was suspended for 30 days without pay for failing to rule for more than five years on a motion for permanent child support. In re Chapman, 819 S.E.2d 346 (North Carolina 2018).
  • A judge was publicly reprimanded for failing to rule for more than two years on a motion for attorney’s fees and expenses and failing to respond or to respond promptly to inquiries about the status of the ruling. In re Henderson, 812 S.E.2d 826 (North Carolina 2018).
  • A judge was censured for failing to decide a petition for post-conviction relief for over two years and falsely certifying that he did not have any matters under submission that were pending for more than 60 days. Inquiry Concerning Jantzen, Order (Arizona Supreme Court June 15, 2018).
  • A judge was suspended for 60-days without pay for, in addition to other misconduct, failing to rule on a defendant’s motion for relief from an ankle monitoring program for over three years and, in five cases, failing to consider motions for shock probation within 60 days and to rule within 20 days after considering the motion, as required by statute. In re Langford, Agreed order of suspension (Kentucky Judicial Conduct Commission April 2, 2018).

The five-year delay in Chapman is one of the longest recorded in a judicial discipline proceeding.  (In fact, the motion remained undecided at the time of the North Carolina Supreme Court’s decision in October 2018, over six years after it was taken under advisement and almost one year after the judge recused himself.)  In the motion, the mother had argued that, based on the father’s income, she was entitled to an over $3,000 increase a month in child support and over $17,000 in attorney’s fees.  Following a multi-day hearing that concluded on November 30, 2012, the judge reserved his ruling and took the matter under advisement.

From January 2013 until April 2016, the mother’s attorney contacted the judge every couple of months to inquire about the ruling.  Sometimes, the judge responded with a promise to rule soon; sometimes, the judge did not respond.  For example, in a January 2013 e-mail, the attorney stressed that the order was required to resolve ongoing financial issues.  The judge, over a month later, said that he would be “taking it home with him” because the courts were closing due to inclement weather.  When the judge failed to rule after a request in April 2016, the attorney stopped contacting the judge, concerned that further contact was futile and could harm his client’s interests.

The judge offered no justification for the delay.  During his exchanges with the attorney, however, the judge did express compunction about his inaction.  For example, in April 2016, the judge replied to an inquiry from the attorney:  “[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.”

Similarly, in Jantzen, during a status hearing almost 18 months after taking the petition for post-conviction relief under advisement, the judge apologized for the delay and stated, for example, “I know that you’re irritated by the delay, but I have now made a record that the canons need to be effected.  I may write the Judicial Commission myself and tell them what I’ve done in this case.”

In Henderson, the defendant’s counsel withdrew after receiving no response to her many inquiries over the year and a half since the judge took under advisement her client’s motion for attorney’s fees and costs associated with her claims for post-separation support, permanent child custody, and sanctions.  The defendant, now appearing pro se, e-mailed the chief judge asking for assistance and expressing her frustration with the then 18-month delay.  That afternoon, the judge replied to the chief judge that he had been “dragging [his] feet” and had no excuses other than his “dread” of the case and committed to “making a decision soon.”  The judge, however, did not respond to the defendant or otherwise inform the parties about the status of the ruling.  On August 26, the judge finally e-mailed the parties to apologize for the tardiness of his decision and to inform them that he intended to issue a decision by the end of the week of September 5.

The judge failed to do so, however, and the defendant e-mailed the judge again on October 10, imploring him to issue a decision.  The judge again did not respond.  On November 9, the defendant filed a complaint with the Commission.  On March 27, 2017, the judge informed the Commission that the order had been entered, over two years and three months after the final hearing on the motion for attorneys’ fees.

Pattern and practice

Addressing more than a single delay, the Alabama Court of the Judiciary suspended a judge for 180 days without pay and publicly reprimanded her for a pattern of unreasonable and unjustifiable delay in the management of her family court docket, preventing the timely resolution of disputes and profoundly affecting the lives of those, in particular children, whose interests were before her court.  In the Matter of Kelly, Final judgment (Alabama Court of the Judiciary May 11, 2018).  The Court found:

  • In termination of parental rights cases, the judge engaged in a pattern and practice of failing or refusing to complete the trials within 90 days of service and to enter orders within 30 day of completing trial as required by statute and the rules of juvenile procedure.
  • The judge failed or refused to manage court dockets to make timely decisions, failed or refused to allocate sufficient time on her dockets to hear pending matters in one hearing, regularly continued dockets, unreasonably delayed setting hearings and re-setting continued trials, and unjustifiably delayed or failed to rule on applications for uncontested divorce and requests for modification of divorce decrees, many of which included agreed proposed orders.
  • The judge failed failed or refused to submit accurate and timely six-month reports.

The Court noted “credible opinion testimony” that the judge takes her job seriously and wants the best outcome for all parties.  However, it emphasized that “well intentioned or not, Judge Kelly has demonstrated sustained inefficiency in managing – and an overall inability in administering – her busy and complex docket.  Unfortunately, the victims of that inefficiency are some of the most vulnerable of any under the power of the court system.”  The Court acknowledged the “shortages in staffing and budgeting” that all courts in Alabama have had since at least 2003, but also noted the other two family court judges, who had less experience, managed their dockets in much more efficiently than Judge Kelly.  The Court also cited the judge’s “failure to accept responsibility and her attempt to blame others – including specifically the juvenile clerk’s office – for the many delays that resulted in this matter being filed.”