Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for taking action in a case after being disqualified. Lusk, Order (Arizona Commission on Judicial Conduct April 7, 2009).
  • Accepting a stipulation for discipline by consent, the California Commission on Judicial Performance publicly censured a judge for routinely leaving the courthouse for the day before noon and after the conclusion of his calendar without receiving authorization from or notifying his supervising judges; the judge also agreed to tender his irrevocable resignation effective October 2, 2009. Inquiry Concerning Sheldon, Decision and Order (California Commission on Judicial Performance April 15, 2009).
  • The Tennessee Court of the Judiciary publicly reprimanded a judge for a delay of 7 years, 5 months, and 21 days in ruling on a petition for post-conviction relief in a capital case. Public Letter to Reprimand of Blackett (Tennessee Court of the Judiciary April 17, 2009).
  • The Tennessee Court of the Judiciary publicly reprimanded a judge for statements about court employees made in open court or the public areas of the clerk’s office. Public Letter of Reprimand to Walton (Tennessee Court of the Judiciary April 13, 2009).
  • Adopting the findings and recommendations of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly reprimanded a judge for driving while intoxicated. In the Matter of Jones, Order (New Jersey Supreme Court April 2, 2009). The Court’s order does not describe the judge’s conduct; the summary is based on the Committee’s presentment.
  • The Texas State Commission on Judicial Conduct publicly warned a justice of the peace for her refusal to accept a forcible detainer action; the Commission also ordered her to obtain 4 hours of instruction with a mentor in addition to her required judicial education. Public Warning of Valadez and Order of Additional Education (Texas State Commission on Judicial Conduct April 27, 2009).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for her practice of obtaining witness signatures for marriages from court staff and others who had not witnessed the ceremony. In the Matter of Kato, Stipulation, Agreement and Order (Washington State Commission on Judicial Conduct April 10, 2009).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for failing to properly advise criminal defendants of their constitutional and procedural rights, including the right to counsel, at arraignment and probation review hearings; failing to properly accept guilty pleas; failing to record all hearings; and failing to use qualified interpreters. In the Matter of Mendoza, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct April 10, 2009).

Small town friendships

Defining when a judge’s relationship with an attorney or litigant is close enough to raise ethical issues is one of the perpetual issues in judicial conduct, and it was presented twice in the recent case Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

One of the grounds for the sanction was that the judge had ordered 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.  With respect to the judge’s relationship with the owner of the monitoring company (Charles Holland), the California Commission on Judicial Performance emphasized several factors that required disclosure:

  • Prior to taking the bench, the judge had represented Holland,
  • Holland had referred clients to the judge prior to his taking the bench,
  • Holland had been to the judge’s home,
  • Holland had attended strategy meetings for the judge’s judicial campaign, and
  • The judge was one of Holland’s Facebook friends.

The Commission stated that, even if it accepted the judge’s characterization of the relationship as “more professional than social,” he and Holland were more than members of the same professional organization and had contact outside professional events.  The Commission concluded that, “[e]ven if each of these facts taken alone did not require disqualification, . . . the totality of these circumstances was reasonably relevant to disqualification and required disclosure.”

A second ground for the sanction was the judge’s appointment of an attorney (Bradley Clark) as a special master without disclosing that Clark personal friend.  The Commission emphasized several factors:

  • The judge and Clark socialized together, sometimes with their spouses,
  • The judge received gifts from Clark,
  • The judge’s nephew was employed by Clark, and
  • The judge officiated over Clark’s wedding.

The special masters in the disciplinary proceeding had found that the appointment was not misconduct because Clark was qualified and, therefore, it had not been proven that the appointment was based on the friendship, rather than competence.  The master also found that disclosure was not necessary because most members of the “small legal community” where the judge sat probably knew about the relationship.  The Commission deferred to the finding about the appointment, but found that the judge did have a duty to disclose the relationship “regardless of the size of the community.”  It explained:

By their terms, the canons impose uniform statewide standards.  Whenever an assigned case involves a party the judge “knows,” the judge must be particularly vigilant to ensure the appearance and reality of independence and impartiality.  The situation may arise more frequently in a small town than a major metropolitan area, but the judge’s ethical duties are the same irrespective of population statistics.

The risk of applying a different disclosure standard in a small community based on the assumption that the parties and the attorneys know the judge’s relationships “is that there may be someone involved in the proceeding who, in fact, does not know about the relationships.” . . .  Moreover, the purpose of disclosure is not only to inform the attorneys and parties of information that may be relevant to disqualification but to uphold the integrity and impartiality of the judiciary.

The fact that there was no objection from the attorneys . . . did not relieve the judge of his obligation to disclose.  There is no evidence that the attorneys and parties were aware of the extent of the judge’s relationship with Clark at the time the judge made the appointment.

A third ground for the sanction, not related to friendships, was the judge’s comment to 2 other judges and an administrative analyst in the courthouse that gay men are “snappy” dressers.  The Commission found that statement was misconduct even though the remark “did not perpetuate invidious or hateful stereotypes.”

As observed by the masters, the judge’s comments “reflect stereotypical attitudes about gay men.”  It is improper for a judge to make remarks that reflect stereotypes based on sexual orientation, whether negative or positive.  We agree with the masters that “[s]uch remarks indicate that the speaker has preconceived ideas about a particular group, a characteristic that is contrary to the qualities of impartiality and propriety required of judges by our Code of Judicial Ethics.”

The judge had made the comment in response to a compliment by another judge about his outfit in an open office area in the court’s administration building:  he explained that he had bought the outfit in France, that the salesperson who put it together for him was gay, and that he knew it looked good because gay men are “snappy” dressers.

The other grounds for the sanction were that the judge had (1) allowed a business to use his testimonial on its web-site without assuring that it did not use his judicial title; (2) received improper gifts from Court Appointed Special Advocates, an attorney he had appointed as a master, and a law school; (3) failed to accurately report travel-related payments or reimbursements for attending judicial education programs; (4) run for California Attorney General without taking a leave of absence and then using his judicial title to raise funds for and promote his campaign; (5) failed to file a candidate intention statement until after his campaign had received campaign contributions, in violation of the Political Reform Act; and (6) permitted 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.  The Commission publicly censured the now-former judge and barred him from seeking or holding judicial office.

Complaining about “a continuous onslaught of allegations,” the judge had blamed the presiding judge and the “toxic environment in the El Dorado Superior Court” for the charges against him.  However, the Commission emphasized  that it was the judge’s “improper conduct that is the basis of this inquiry, regardless of the motivations of those who brought forth the allegations.  There is no evidence that a toxic environment in the court or any animosity between Judge Bailey and [the presiding judge] resulted in misinformation being provided to the commission or inaccuracies in the evidence presented against the judge.”

 

Throwback Thursday

20 years ago this month:

  • Pursuant to the recommendation of the Judiciary Commission based on a stipulation, the Louisiana Supreme Court publicly censured a judge for failing to decide 32 cases for from 1 to 2 years and to decide 14 other cases for from 2 to nearly 3 years, inaccurately and/or delinquently reporting 34 cases taken under advisement, and completely failing to report the undecided status of 7 cases. In re Wimbish, 733 So.2d 1183 (Louisiana 1999).
  • Pursuant to the recommendation of the Judiciary Commission based on a stipulation, the Louisiana Supreme Court publicly censured a judge for (1) maintaining a policy and practice of intentionally refusing to set status conferences or issue scheduling orders, (2) failing and/or refusing to timely sign ex parte orders, (3) 1‑year delays in deciding 2 cases, and (4) failing to report 1 case as under advisement. In re Emanuel, 755 So. 2d 862 (Louisiana 1999).
  • Agreeing with the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge and fined him $1,500 for, contrary to the law, accepting plea bargains that reduced DUI second offense charges to DUI first offense in 3 cases and reduced DUI charges to disorderly conduct in 1 case. Commission on Judicial Performance v. Jones, 735 So. 2d 385 (Mississippi 1999).
  • Approving a statement of agreed facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for circumventing normal procedures in appointing guardians, appointing 2 lawyers as law guardians in a disproportionate number of cases, and failing to scrutinize their bills. In the Matter of Ray, Determination (New York State Commission on Judicial Conduct April 26, 1999) (http://cjc.ny.gov/Determinations/R/Ray.Herbert.B.1999.04.26.DET.pdf).
  • The Ohio Supreme Court publicly reprimanded a judge for speaking at governmental meetings and before a planning commission on behalf of real estate partnerships in which he owned an interest. Ohio State Bar Association v. Reid, 708 N.E.2d 193 (Ohio 1999).
  • Adopting the recommendation of a judicial conduct panel, the Wisconsin Supreme Court publicly reprimanded a judge for stating, “I suppose it was too much to ask that your daughter keep her pants on and not behave like a slut” when a woman explained she had not been able to pay her fines because she was caring for her daughter’s children and making statements in his letter of apology that manifested a bias based on socioeconomic status. In the Matter of Michelson, 591 N.W.2d 843 (Wisconsin 1999).

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for disclosing his candidacy for sheriff on Facebook without resigning and refusing to disclose to the Commission the identity of the individual who took his campaign Facebook page live. Barth, Order (Arizona Commission on Judicial Conduct February 14, 2019).
  • The Colorado Supreme Court publicly censured a former court of appeals judge and accepted her resignation for (1) disclosing to an intimate, non-spousal partner the vote of a court of appeals division on a case prior to the issuance of the decision and (2) using inappropriate racial epithets in communications with that intimate partner, including a racially derogatory reference to a court of appeals colleague. In the Matter of Booras (Colorado Supreme Court March 11, 2019).
  • Adopting stipulated findings based on the judge’s consent, the Michigan Supreme Court publicly censured a judge for citing cases to prosecutors in 2 cases in ex parte e-mails and referring to the prosecutors as unprofessional, “a fool that I suffered,” and a “cancer” because they disclosed the e-mails to defense council. In re Filip (Michigan Supreme Court March 8, 2019).
  • The Nevada Commission on Judicial Discipline publicly censured a judge for using an alternate judge whenever it was his turn to act as on-call search warrant judge for 4 years and failing to cooperate with 3 chief judges; the Commission also ordered the judge to attend the National Judicial College course “Leadership for Judges.” In the Matter of Hastings, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline March 6, 2019).
  • Granting the Judicial Standards Commission’s motion to enforce a stipulation agreement, which the judge did not contest, the New Mexico Supreme Court suspended a judge without pay for 3 weeks for, during a radio interview, misrepresenting the conduct for which he had been censured pursuant to a previous stipulation, thereby violating that agreement. In the Matter of Walton, Order (New Mexico Supreme Court March 12, 2019).
  • Granting the Judicial Standards Commission’s motion to accept a stipulation, the New Mexico Supreme Court ordered the permanent resignation of a judge for failing to immediately resign as a municipal judge when she declared her candidacy for county commission. Inquiry Concerning Encinias, Order (New Mexico Supreme Court March 29, 2019).
  • Based on the report of a referee following a hearing, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for conveying his personal interest, as a member of the high school basketball referees’ association, in a case involving 2 referees who were accosted after a game by communicating with the judge who was handling the case, the defendant’s attorney, and the district attorney’s office. In the Matter of Forando, Determination (New York State Commission on Judicial Conduct March 25, 2019).

 

 

 

 

Throwback Thursdays

25 years ago this month:

  • The California Commission on Judicial Performance publicly reproved a judge for stating to a public defender of Japanese-American ancestry: “Do you have something to add to those papers which isn’t in there, some brilliant case you found somewhere in the Upper Tokyo Reports or somewhere that nobody knows about, tell me about it.  Otherwise there is no need to argue over what you already have.”  Letter to Haugner (California Commission on Judicial Performance April 11, 1994).
  • Adopting a stipulation and the recommendation of the Board on Judicial Standards, the Minnesota Supreme Court publicly reprimanded a judge and suspended him for 60 days without pay for (1) on multiple occasions over several years, responding in an angry and undignified manner to staff members who were innocent of any significant dereliction of duty; (2) ignoring staff members whom he had invited into his chambers, to their evident discomfort; and (3) harshly and without justification criticizing the work of his law clerks. In re Rice, 515 N.W.2d 53 (Minnesota 1994).
  • Pursuant to a stipulation and agreement with the judge, the Washington State Commission on Judicial Conduct publicly admonished a judge for engaging in a casual and cordial conversation in the courtroom with one of the parties in a case that the other party observed, while the attorneys for both parties were discussing settlement outside the courtroom. In re Slusher, Stipulation and Agreement and Order of Admonishment (Washington State Commission on Judicial Conduct April 1, 1994).
  • Agreeing with the State Commission on Judicial Conduct, the Washington Supreme Court removed a judge from office for filing travel vouchers for 4 out-of-state trips on which he conducted minimal judicial business that was wholly incidental to the personal nature of the trips and seeking reimbursement for car and lodging expenses that went beyond that needed for judicial activities. In re Ritchie, 870 P.2d 967 (Washington 1994).
  • Adopting the findings of fact and conclusions of a 3-judge panel based on a stipulation, the Wisconsin Supreme Court suspended a judge from office for 15 days without pay for failing to decide 2 cases for more than 1 year, filing certificates of pending case status for 6 months that falsely reported that he had no cases pending beyond the prescribed period, misrepresenting to the deputy chief judge that 2 decisions had not been entered because a clerk had failed to type them, and making the same misrepresentation to a Commission investigator. In the Matter of Dreyfus, 513 N.W.2d 604 (Wisconsin 1994).

 

A sampling of recent judicial ethics advisory opinions

  • In a jurisdiction in which a judge is obligated to perform marriages, a judge may not decline to perform marriages for same-sex couples. In a jurisdiction in which performing marriages is discretionary, a judge may not decline to perform marriages for same-sex couples if the judge performs opposite-sex marriages, but may refuse to perform all marriages for members of the public and still perform marriages for family and friends as long as the judge does not refuse to perform same-sex marriages for family and friends.  ABA Formal Opinion 485 (2019).
  • A judge may comment on a proposed rule regarding continuances for parental-leave in the Florida Rules of Judicial Administration. Florida Opinion 2019-4.
  • A judge may not meet with the appointing authority to discuss candidates for appointment as her co-judge, render “fact-based opinions” on the candidates, or recommend or oppose specific candidates. New York Opinion 2018-142.
  • The Colorado District Judges’ Association may employ a public information officer, but the Association’s members and particularly its officers are responsible for ensuring that any information provided by the public information officer complies with the code of judicial conduct. The public information officer may disseminate general educational information, including how courts operate, how they make decisions, and how judges are appointed and retained; may share facts with or respond to inquiries from news media, bar associations, and other specific members of the public; and may, under certain circumstances, advocate before decision-makers about issues that concern the Association’s members.  Colorado Opinion 2019-1.
  • A judicial officer may serve on a non-profit organization’s advisory board that will draft legislation to reform part of the criminal law system and may provide testimony before the legislature and meet with legislative sponsors. California Oral Advice Summary 2019-27.
  • An appellate justice may serve on an advisory panel for a state-funded grant program that sponsors educational projects about the internment of Japanese Americans during World War II and other civil rights violations. California Oral Advice Summary 2019-28.
  • A judge may serve on the board of directors of the not-for-profit Association for Children with Learning Disabilities, which does not accept referrals from the courts or regularly engage in litigation in any court. New York Opinion 2018-166.
  • In determining whether to attend or to participate as a lecturer or panel member at a conference or seminar sponsored by a research institute, think tank, association, public interest group, or other organization engaged in public policy debates, a judge or judicial employee should assess (1) the identity of the sponsor of the conference or seminar; (2) the subject of the conference or seminar; (3) whether the seminar or conference has political overtones; (4) the nature and source of funding for the conference or seminar; (5) whether the sponsor or a source of substantial funding is involved in litigation or likely to be involved; and (6) the nature of the expenses paid.  U.S. Advisory Opinion 116 (2019).
  • A judge may plan and attend a community blood drive and organ donor registration event in memory of a deceased relative if his judicial designation will not appear on any advertisements or invitations and he will not personally solicit anyone to participate. New York Opinion 2018-143.
  • A judge may not participate in a 5K athletic/sporting event organized and promoted by the district attorney’s office to raise awareness of and prevent domestic violence. New York Opinion 2018-147.
  • A judge may participate in the filming in another state of a pilot for a television show in which pro se litigants will have their small claims cases resolved by the show’s presiding judge but may not remain on the bench if he accepts a role in the show. Florida Opinion 2019-2.
  • A district court commissioner may not sell beauty products as an independent contractor with Mary Kay Beauty Products. Maryland Opinion Request 2018-38.
  • A judge may receive fees for legal work performed on veterans’ disability cases prior to his ascension to the bench. South Carolina Opinion 3-2019.
  • A senior judge who is retiring and not subject to recall may use her name with the designations “HON” and “RET” on a program for an event commemorating her career. Florida Opinion 2019-1.