Back to 1982:  Professional courtesies and judicial office

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 . . . .”

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