Monthly Archives: April 2019

Back to 1982:  Professional courtesies and judicial office

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Gratuitously referring to judicial status to get favorable treatment is a very common form of judicial misconduct.  In cases last year:

  • A judge identified himself as a judge to court personnel when disputing his own child support payments and discussing child emancipation. In the Matter of Palmer, Order (New Jersey Supreme Court November 8, 2018), adopting  (censure).
  • A judge said to state troopers who handcuffed him after he failed several field sobriety tests, “I’m a f**cking judge. I would never do anything to hurt you man.  Come on,” and “You’re not going to give me any courtesy?  None?”  In the Matter of Benitez, Order (New Jersey Supreme Court September 6, 2018), adopting (censure).
  • A judge asserted her position to avoid the consequences of her arrest after a state troopers found her in a vehicle on the shoulder of the interstate, for example, saying to a lieutenant at the police barracks, “Please don’t do this;” “I have to go to work;” “I have arraignments;” and “I have court right now.” In the Matter of Astacio, 112 N.E.3d 851 (New York 2018) (removal for this and other misconduct).
  • After her vehicle struck a police van, a judge voluntarily identified herself as a judge to the police several times, presented her judicial identification card, and made several other references to her judicial status while repeatedly questioning the need for an accident report and the delay in preparing the report in an attempt to curtail the investigation and be allowed to leave. In the Matter of Michels, Determination (New York State Commission on Judicial Conduct December 27, 2018).

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So far in 2019, 3 judges have been disciplined for variations of that classic misconduct.

The New York State Commission on Judicial Conduct publicly censured a judge for not only invoking his judicial position when asking the police for assistance in unlocking his personal vehicle but also threatening to refuse to do arraignments in the future if they refused his request.  In the Matter of Abbott, Determination (New York State Commission on Judicial Conduct February 7, 2019).

One day, at approximately 3:00 p.m., the judge accidentally locked the keys inside his personal motor vehicle, which was parked at a hospital.  The judge called 911 and asked Patricia Latta, a Newark Police Department clerk, to send police personnel to unlock his vehicle.  Latta told the judge that, pursuant to department policy, the police did not respond to requests to unlock cars unless it was an emergency, such as a child locked inside.  Latta offered to contact a local automotive garage to assist the judge.

The judge replied that the police had “done this before for me,’’ and then said in a raised voice, “I am Judge Abbott of Palmyra and I just won’t do any arraignments for you anymore.”  (The judge arraigns defendants brought to Palmyra by the Newark Police Department officers when the justice and associate justice of the Newark Village Court are unavailable.)  Latta felt intimidated and asked a sergeant to assist the judge with his locked vehicle.  Eventually, officers unlocked the judge’s vehicle.

The Commission found that the judge’s identification of himself as a judge “standing alone, would have constituted an implicit request for special treatment, which is inconsistent with the high ethical standards required of every judge” and that his statement that the police had “done this before for me” made his request for special treatment “explicit, clearly conveying that his judicial status entitled him to deference and exempted him from policies that apply to others.  Asking the police to depart from an established policy for his personal benefit was a particularly improper assertion of special influence.”

Further, the Commission stated, the judge compounded his misconduct by threatening “to retaliate against the Newark police if they did not respond favorably to his request.”  Emphasizing that “[p]erforming arraignments for police from an adjoining village” was part of his duties, the Commission explained that “[t]here is no justification for a judge’s refusal to perform judicial duties out of personal pique, and even threatening to do so is detrimental to public confidence not only in the integrity of the judge’s court, but in the judiciary as a whole.”

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An Ohio judge’s disappointment that his expectation of favoritism was thwarted by a state  trooper influenced not just his reaction to the ticket received by his daughter but his handling of a completely unrelated case involving other state troopers.  Disciplinary Counsel v. Marshall (Ohio Supreme Court February 28, 2019).  At one point, the judge told the prosecutor that he “wanted to take the trooper back to 1982 . . . [b]ack when there was professional courtesy [my] daughter would not have received a ticket.”

On September 1, 2016, Ohio State Highway Patrol Sergeant David Stuart stopped 17-year-old A.M. for speeding and having expired tags.  A.M. immediately identified herself and stated that her father was “Judge Marshall.”  A.M. called her father on her cell phone and asked Stuart to talk to the judge.  Stuart declined but took the phone when A.M. handed it to  him.  The judge disputed Stuart’s assertion that the tags were expired and asked Stuart if he was going to give A.M. a ticket.  Stuart stated that he was going to write A.M. a ticket for speeding because she “was running 14 over.”  Stuart gave A.M. a citation for speeding and a warning for the expired tags.

Afterward on several occasions, the judge made comments to County Assistant Prosecuting Attorney Jay Willis about A.M.’s case and Stuart’s behavior.  For example, one day when Willis was in the judge’s courtroom on an unrelated matter, the judge said, “I didn’t like the trooper.  He didn’t listen to me.  There used to be a code in this county—I’m a judge and he shouldn’t have written my daughter [a ticket].”  Feeling pressured by the judge, Willis asked County Prosecuting Attorney Mark Kuhn to handle A.M.’s case; Kuhn agreed.

The county juvenile court policy allows only the lawyers representing the parties in the courtroom for pretrial conferences.  Prior to A.M.’s pretrial conference, the magistrate assigned to her case told the bailiff that she was not going to treat A.M.’s case differently and that the judge would not be allowed in the courtroom.  When A.M.’s pretrial hearing was about to begin, the bailiff opened the door and announced, “Counsel only,” but the judge said, “I’m her father and I’m an attorney, and I’m coming in,” pushed the bailiff’s arm out of the way, and walked into the courtroom.  The magistrate signaled to her bailiff that it was okay for the judge to enter the courtroom.  After speaking with counsel, the magistrate scheduled another pretrial conference for August 10, 2017.

On August 10, before A.M.’s pretrial conference began, A.M.’s attorney (Eugene Meadows) and Kuhn were discussing the case outside the courtroom when the judge approached them and interjected, referring to Stuart, “If he cuts my little girl, I’m going to cut him.”  During the conference, the judge stated that Stuart had been unprofessional and had shown him no professional courtesy.  The magistrate set A.M.’s final adjudicatory hearing for September 18.

On September 14, the judge told Kuhn that he would like to meet with Stuart and that, if Stuart agreed to meet, he would have A.M. plead guilty, but if Stuart refused to meet, they would take the case to trial.  Kuhn ended the discussion.

The next day, while 2 assistant prosecuting attorneys, a state trooper, and a defense attorney were waiting outside his office for a suppression hearing in an unrelated criminal case, the judge yelled for his secretary to get Stuart on the phone, made derogatory comments about Stuart, and indicated that Stuart had failed to return his calls.

Before the suppression hearing began, the parties reached an agreement, and the assistant prosecuting attorney told the judge that the case had been resolved.  But the judge stated, “No it hasn’t.  I don’t trust the highway patrol like I used to.”  He then took the bench and forced the parties to conduct the suppression hearing.  When the state trooper was being questioned about the traffic stop that led to the defendant’s arrest, the judge interrupted and questioned the trooper about the calibration of his speedometer and the condition of the tuning forks that were used to check the calibration.  Eventually, the judge threw down his legal pad and walked off the bench.

On November 17, the attorneys and Stuart were waiting outside the courtroom in the hallway before a hearing for A.M. commenced.  The judge approached Stuart and said, “Are you Trooper Stuart?”  Stuart responded, “I’m Sergeant David Stuart, nice to meet you.”  The judge turned away, then looked back at Stuart and said, “a**hole.”

During the hearing, the judge interjected twice during Stuart’s testimony.  Upon the conclusion of Stuart’s testimony, Meadows asked for a short recess.

Prior to the resumption of the hearing, Meadows asked the judge, “You’re sure you want to do this?”  The judge replied, “Yes,” and took the stand.  The judge claimed that he was qualified to testify as an expert witness about radar based on what he learned while he was a city prosecuting attorney, a position he last held in 1994.  The judge testified that the best way to determine the condition of the troopers’ turning forks would be to bring them into the courtroom.  He also commented that the “trooper was rude” and that Stuart was the only trooper that he had had issues with in his entire career.

At the conclusion of the hearing, the magistrate was going to issue a decision from the bench, but Kuhn requested that the magistrate delay because he was worried that an adverse decision would impact an upcoming felony criminal matter he had in front of the judge.

The magistrate issued her decision on December 17, and the disposition hearing was scheduled for January 30, 2018.  On January 23, the judge called the magistrate.  They had the following exchange:

[Magistrate]:  What can I help you with?
[Marshall]:  I just want you to know, have you ever had an expert come in and testify about radar?
[Magistrate]:  Judge, this is probably not a conversation we should be having
[Marshall]:  Have you ever had an expert testify about radar
[Magistrate]:  I know we should not be having this conversation—
[Marshall]:  If not, you cannot make that finding.  You questioned my credibility.  Screw that.  Bye.

The judge hung up the phone.  At a status conference the following day, the magistrate disclosed the judge’s telephone call and asked whether the attorneys wanted her to recuse herself.  Both Meadows and Kuhn consented to the magistrate’s continuing to preside over A.M.’s case.

On January 30, A.M. appeared with Meadows and the judge for the final disposition of her case.  Before the magistrate announced the disposition, the following exchange occurred:

[Magistrate]:  Okay.  All right.  Your Honor, is there anything you want to say on your daughter’s behalf?
[A.M.]:  He’s good.
Marshall:  She’s a good kid and I, you questioned my credibility and that is a problem but I don’t get a say.

The magistrate then adjudicated A.M. a juvenile traffic offender and imposed court costs.  The judge inquired, “Are there points involved in that?”  When the magistrate said there were, the judge stated, “So I have to pay the insurance for it.”  The judge also said, “When I was the Municipal Court Judge, I had to have an expert come in an[d] testify as to the accuracy of the radar and if you haven’t done that, I don’t believe you can go forward.”  The magistrate replied, “Well, those are things to raise in an objection. . . .  All right.  Anything else?”  The magistrate then concluded the matter.

After acknowledging that his conduct was inappropriate, the judge resigned.   Accepting a consent-to-discipline agreement, the Ohio Supreme Court suspended him from the practice of law for 6 months.

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In a classic example of the appearance of impropriety standard in the influence context, the New York Commission admonished a judge for conveying his personal interest, as a member of the high school basketball referees’ association, in a case involving 2 referees who were allegedly accosted after a game.  In the Matter of Forando, Determination (New York State Commission on Judicial Conduct March 25, 2019).

As a member of the Capital District Board of Women’s Basketball Officials since 1972, the judge assigns referees to officiate over high school girls’ basketball games.  He assigned Dan Dineen and John Kelleher to a junior varsity game at the Argyle Central School on January 29, 2016.  At the conclusion of that game, a spectator, D.F., allegedly had an altercation with Dineen and Kelleher for which he was charged with unlawful imprisonment and harassment and directed to appear in the Argyle Town Court on February 9.  Dineen reported the incident to the judge by e-mail, noting that police had been called to the scene.

The Commission stated:

The moment that respondent learned, on the day of the incident, about the altercation involving the referees in which police had been called to the scene, he should have realized that as a judge, especially in the same county, he should refrain from any involvement in the matter that, intentionally or not, would telegraph that a judge was interested in the case.  Instead, throughout the pendency of the criminal matter, he repeatedly interjected himself into the case in an apparent attempt to monitor its progress and, in doing so, repeatedly signaled his interest in the matter to those who were directly involved in it, including the presiding judge.

Before the Commission, the judge testified that he had “let the referee hat probably supersede the judge hat” but that he had “no ulterior motive” in contacting the other judge and the attorneys.  The Commission emphasized that, “[r]egardless of a judge’s intent, such communications may convey an appearance of misusing the prestige of judicial office for personal advantage,” and that judges “must assiduously avoid those contacts which might create even the appearance of impropriety.”  The Commission stated that “any communication by a judge about a pending matter, even to ask about scheduling or procedures, is improper since it conveys the judge’s interest in the case and can be interpreted as an implicit request for special treatment . . . .”

Throwback Thursday

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5 years ago this month:

  • Based on a stipulation, the Minnesota Board on Judicial Standards publicly reprimanded a judge for (1) failing to follow the law in 6 cases, (2) improper ex parte orders in 4 cases, (3) chronic tardiness and related misconduct, and (4) discourtesy to court staff; the Board also required the judge to comply with conditions, including submitting a plan to address the causes of his misconduct and identifying a mentor. In the Matter of Cahill, Public reprimand and conditions (Minnesota Board on Judicial Standards April 21, 2014).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for (1) failing to supervise his law clerk and approving inaccurate time sheets, (2) refusing to allow a defendant to withdraw his plea, (3) trying a defendant in absentia, and (4) discourtesy to a psychologist; the Board also imposed conditions on the judge including completing an anger management program or therapy, identifying a mentor, and writing a letter of apology to the psychologist. In the Matter of Walters, Public reprimand and conditions (Minnesota Board on Judicial Standards April 22, 2014).
  • Agreeing with the recommendation of the Commission on Judicial Qualifications, to which the judge consented, the Nebraska Supreme Court publicly reprimanded a judge for instructing jail personnel to release a friend, who had been arrested on a felony drunk driving charge, from jail on his own recognizance before arraignment. In re Complaint Schatz, 845 N.W.2d 273 (Nebraska 2014).
  • Pursuant to the judge’s agreement, the New Hampshire Judicial Conduct Committee publicly reprimanded a former judge for statements in a meeting with public defenders that could reasonably be interpreted as manifesting bias based on gender. Lewis, Reprimand (New Hampshire Judicial Conduct Committee April 1, 2014).
  • The New York State Commission on Judicial Conduct publicly censured a judge for (1) riding in a police car with a defendant after arraigning him, recommending that the defendant hire an attorney who was the judge’s business partner, giving him legal advice, and presiding over the case; (2) using his judicial title to promote his law firm and business; (3) imposing fines that exceeded the maximum authorized by law; and (4) making improper political contributions. In the Matter of Burke, Determination (New York State Commission on Judicial Conduct (April 21, 2014).
  • The Tennessee Board on Judicial Conduct publicly censured a former child support magistrate for changing a child’s name from “Messiah,” applying her own religious beliefs in her decision, and publicly commenting on her decision while the case was still pending. In re Ballew, Opinion (Tennessee Board on Judicial Conduct April 25, 2014).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission order, based on a stipulation, publicly reprimanding a judge for yelling at a grandfather in an adoption hearing. In re Andrus, Order (Utah Supreme Court April 23, 2014).

Judicial responsibility:  Reasonable measures, confrontation, and supervision

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One of the features of the high ethical standards to which judges are held is that sometimes judges get in trouble for something someone else did.

For example, a Florida judge was sanctioned for submitting financial disclosure reports for 2016 and 2017 that failed to disclose 3 free trips she had taken with her husband — even though she had not known the trips were free and even though the reports had been completed by her husband, who managed their family finances.  The judge and her husband had received free accommodations from a hotel chain, allegedly as part of an illegal compensation scheme for her husband’s assistance with permitting problems while he was director of the Miami Beach Building Department.  The judge was held responsible for the inaccurate reports because she failed to take reasonable steps to stay apprised of her financial circumstances, failed to ask who paid for the trips, and failed to verify the accuracy of the reports despite certifying to their veracity when she signed them.  Pursuant to a stipulation, she was suspended for 90 days without pay, fined $5,000, and publicly reprimanded.  Ortiz (Florida Supreme Court January 29, 2019).  (The Court had rejected 2 prior stipulations that imposed less severe sanctions.)

A New Mexico judge was sanctioned, in part, for receiving at his court e-mail address numerous e-mails from his family members, particularly his cousin, that were offensive, degrading, pornographic, racist, and sexist.  The judge testified that, after he received the first inappropriate e-mail, he told his cousin, “Cuz, you got to stop this,” and that he told family members over and over again to stop sending e-mails to his judicial e-mail address, but they continued to use that address.  In its findings, the Judicial Standards Commission noted that the judicial information division had instructed the judge how he could put an end to the e-mails, but he had not followed their instructions.

The Commission stated:

The Respondent maintained his innocence throughout the entirety of the inquiry by stating that he only received the e-mails and should not be punished for merely being a recipient.  His position is that his relatives sent him completely inappropriate sexual, derogatory, racist, and sexist e-mails to his judicial e-mail, that he provided to them, that he told them to quit and they didn’t, so it is their fault even though Respondent could have stopped them by changing his judicial e-mail but he didn’t want them to feel like they were the bad guy.

The Commission concluded:

It is far beyond negligent, and not the result of mere carelessness or lack of computer skills, that Respondent was unwilling to stop his relatives from sending him offensive e-mails of a sexual, racist, sexist, derogatory nature over a period of many years. . . .  The Respondent’s behavior in not confronting his family members and stopping the e-mails is offensive and shows that the Judge was indifferent to the impact of his actions on his reputation and integrity and the impact on the reputation and integrity of the judiciary as a whole.

Adopting the Commission’s findings, the New Mexico Supreme Court ordered the now-former judge never to hold judicial office in the state.  In the Matter of Castaneda, Order (New Mexico Supreme Court February 12, 2018).

A California judge was sanctioned for his testimonial published on a business’s web-site identifying the author as a superior court judge and including a photograph of the judge in his judicial robe.  The judge did not authorize the use of his title or provide the photograph or authorize its use or even know the photograph would be used.  However, neither did he review the final text of the testimonial or instruct the business not to use his judicial title and photograph in judicial robes or even ask how his comments would be used or where they would be published.

The judge had retained the Redd Group to survey voters about a local attorney’s judicial campaign.  After the election, the judge called David Cooper, an employee of the Redd Group, to compliment him on the survey results.  Cooper asked if he could use the judge’s comments as a testimonial for the Redd Group.  The judge agreed.  The testimonial, published on the Redd Group web-site, stated:

I was helping a fellow attorney run for county judge.  Our mail went out ahead of schedule and The Redd Group accommodated for our poll to be done accordingly with many more respondents than were promised.  We got the detailed results in less than 24 hours.  I recommend the Redd Group for all your polling needs.  Excellent work! – Steven C. Bailey

The California Commission on Judicial Performance publicly censured the now-former judge and barred him from seeking or holding judicial office for this and other misconduct (see also  discussion below).  Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

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Several judges have been sanctioned for content on their Facebook pages posted by others to whom they had delegated the task without sufficient oversight.  For example, the Texas State Commission on Judicial Conduct admonished a judge for Facebook posts advertising a school supply drive, soliciting donations for an individual, and advertising his donation of a rifle to a charitable raffle — even though a member of his judicial staff handled his Facebook page, many posts were made without his prior authorization, and he was often unaware of what appears on his page.  Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018).  Similarly, the Texas Commission reprimanded a judge for campaign advertisements for other candidates posted on his Facebook page, in addition to other misconduct — even though he had not authorized the posts and did not know about them until he received the Commission’s inquiry.  Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).

Unauthorized and inappropriate posts have also been a problem on judicial campaign Facebook pages.

For example, the Florida Supreme Court removed a judge for criticism of her campaign opponent for representing criminal defendants on a Facebook page that was created by an electioneering communications organization formed by her campaign consultant.  Inquiry Concerning Santino, 257 So.3d 25 (Florida 2018).  The Court held that the judge’s actions “—individually and through her campaign, for which she was ultimately responsible—unquestionably eroded public confidence in the judiciary.”  The Court emphasized the finding of the hearing panel that nothing in the code of judicial conduct permitted, “Santino to delegate to her campaign manager the responsibility for written materials created or distributed by the campaign.”

The Nevada Commission on Judicial Discipline reprimanded a former judge for a photoshopped picture of herself and an actor that her campaign manager had posted on her campaign Facebook page, which misled the public that “the Rock” had endorsed her campaign, and for her subsequent comment on the post:  “I’m ‘almost’ taller than him.  Almost.”  In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018).  The Commission found that the judge had not taken reasonable measures to ensure that her campaign representatives complied with the code of judicial conduct, noting her contract with her campaign manager did not contain any restrictions on the posting of social media materials, such as obtaining prior approval from the judge, that the judge did not discuss with her campaign representatives the prohibitions in the code, and that the judge failed to properly supervise her campaign representatives.  The Commission took the “opportunity to remind judicial candidates that campaign-related social media platforms, such as Facebook, maintained by a campaign committee or others, do not insulate them from the strictures of the Code.”

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The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for publicly disclosing his candidacy for sheriff without resigning and initially 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 California Commission on Judicial Performance publicly censured a now-former judge and barred him from seeking or holding judicial office for 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, in addition to other misconduct (see also discussion above).  Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

In 2016, Martha Romero, the judge’s Southern California Campaign Coordinator, created the “Judge Steven Bailey” Facebook page for the judge’s campaign for state attorney general.  (Judges in California are allowed to run for another office if they take a leave of absence; the judge’s failure to take a leave of absence was another grounds for his discipline.)  In November and December 2016, several posts on the page promoting his campaign referred to the judge by his judicial title.

Rejecting the judge’s argument that he cannot restrict the First Amendment rights of others, the Commission agreed with the masters’ finding that “the judge had an obligation to take some action to prevent the improper use of his title in connection with campaign communications and events, even if it was just to instruct Romero to ensure that the Facebook page did not refer to his judicial title and position” because she was a coordinator for and “very involved” in his campaign.  The Commission also agreed that, because the standard for prejudicial conduct assumes that an objective observer is familiar with the facts, “the judge’s failure to supervise a campaign staffer and take any measures to guard against impermissible use of his judicial title would be considered prejudicial to public esteem for the judiciary in the eyes of an objective observer,” rejecting the judge’s argument that “the public would have no way of knowing if he asked Romero not to use his title.”

Romero also maintained a Facebook page for her law firm, the Romero Law Firm.  In a post on that page, Romero included photos of the judge and wrote, “My friend Judge Steven Bailey is running for California Attorney General 2018,  He is not a politician.  Please Help us!” and “Judge Steven Bailey.  Candidate for Attorney General 2018.  He will be the next Attorney General!!!  Please repost.  We need to win this!!”

The Commission acknowledged that the judge “could not force Romero to edit her posts about him or to avoid using his judicial title in future posts” but stated that he could “have asked her to modify her posts to be in compliance with his ethical obligations.”  Rejecting the judge’s argument, the Commission concluded that “Romero’s First Amendment rights are not implicated by requiring the judge to ask her to comply with a request to remove the Facebook posts.”

Throwback Thursday

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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

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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

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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

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  • 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

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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

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  • 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.