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.”