Monthly Archives: May 2019

A sampling of recent judicial ethics advisory opinions

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  • A judge may invite attorneys to e-mail motion papers directly to him, but should require that opposing counsel be copied on the e-mail. New York Opinion 2019-3.
  • A judge may not, to expedite proceedings, e-mail government agencies to obtain records necessary to litigate pending claims but must leave it to the litigants to subpoena the records. New York Opinion 2019-3.
  • A judge may consult ex parte about cases before her with judges in courts outside the state court system, including tribal courts, but should make reasonable efforts to preserve confidentiality. New York Opinion 2019-8.
  • A judge who resigned from the board of a public benefit corporation must recuse himself, subject to remittal, from all matters on which he was briefed or involved as a board member but may preside in other matters involving the entity. New York Opinion 2019-1.
  • In fulfilling a judge’s statutory duty to report suspected child abuse, abandonment, or neglect, a judge is not required to use the form provided by the Department of Children and Families and may not independently investigate the facts to provide a more detailed report. Florida Opinion 2019-13.
  • A judge may not suggest or recommend that an inmate apply to the governor’s office of clemency. New York Opinion 2019-21.
  • A magistrate may not serve on a committee that reviews domestic violence fatalities. South Carolina Opinion 5-2019.
  • A judge who presides over juvenile and person-in-need-of-supervision cases may participate in a non-partisan initiative by legislators and schools to create an anti-bullying program in schools. New York Opinion 2019-14.
  • A judge may testify before the legislature on the compensation rate for criminal defense representation for the indigent when the public defender’s office contracts cases to private counsel. A judge should not propose or advocate for specific legislation or a specific policy or work with independent groups or agencies advocating for specific legislation or a specific policy.  Wisconsin Opinion 2019-1.
  • By writing to or in meetings with the executive branch and legislators, a judicial association and its members may support or oppose a funding increase for the State Commission on Judicial Conduct. New York Opinion 2018-185.
  • A judge should not wear his judicial robe to the funeral service of another judge if he is not attending the service in his official capacity. Virginia Opinion 2019-1.
  • A judge may donate baked goods that will be auctioned off to raise funds for Habitat for Humanity as long nothing reveals that the items were donated by a judge but may not serve as the auctioneer and get on stage to encourage bids. Florida Opinion 2019-15.
  • A judge who is president of a religious organization may not directly solicit donations to the organization or sell tickets to its fund-raisers except to other judges over whom she does not exercise supervisory or appellate authority. The judge may urge members to attend organization functions that are not fund-raisers and may announce fund-raisers to members without urging attendance.  The judge may not thank donors at fund-raisers or at receptions for major donors.  The judge may meet with potential new members to solicit membership as long as the solicitation cannot reasonably be perceived as coercive, membership is not essentially a fund-raising mechanism, and the potential new members and people with whom they are affiliated are not likely to appear before the judge’s court.  Florida Opinion 2019-10.
  • A judge may serve on a committee for her house of worship that will coordinate with architects regarding proposed structural improvements, oversee expenditures, and raise funds, and the judge may act as an “internal coordinator” for the committee, planning fund-raising, soliciting other congregation members to serve on the committee, scheduling and notifying committee members of meeting details, and asking committee members to solicit donations as long as the judge does not personally solicit funds, does not permit her name or the prestige of judicial office to be used for fund-raising, and does not appear as the author, signatory, or spokesperson in fund-raising materials. If the judge donates to the project, her name and donation amount may be published with other donors, without mention of the judge’s committee role.  New York Opinion 2019-18.
  • A judge may not individually help his fellow congregants complete their health care directives but may give a general lecture on the subject. New York Opinion 2019-29.
  • A judge may not accept an “outstanding alumni” award from a college alumni foundation at a ceremony primarily intended to raise funds for the foundation. Florida Opinion 2019-11.
  • A judge may not serve on the board of directors of a not-for-profit credit union that regularly appears in adversary proceedings. New York Opinion 2019-36.
  • A judge may not continue to serve as an officer or director of a not-for-profit land trust after it becomes involved in a controversial, contested agency proceeding regarding plans to build power-generation facilities adjacent to conserved land, but may remain a member if she does not comment on the proceedings or otherwise publicly associate herself with the trust’s positions on matters of public controversy, for example, by appearing at proceedings on its behalf. New York Opinion 2019-30.
  • A judge may not volunteer as an escort for individuals visiting an abortion clinic that is the subject of a pro-life protest if the judge does not know the individual but may accompany a family member or friend to any medical appointment regardless whether the procedure is the subject of public controversy. New York Opinion 2019-29.
  • A judge may not be a founder or officer of a business that will broker sales of state-licensed marijuana dispensaries in another state but may be a minority shareholder in the business as a passive investor with no other role. New York Opinion 2018-169.
  • A part-time lawyer judge may provide legal services to a state-approved medical marijuana corporation. New York Opinion 2018-163.
  • A judge may take a multi-week improvisational comedy class from a for-profit entity but may not perform in the graduation show for which there is an admission fee even if his participation is not advertised. A judge may not perform a first-person story about his childhood or cultural background at a bar if there is a suggested donation and/or drink minimum or at a show produced by an individual selling tickets even if he performs anonymously and/or uses a pseudonym.  A judge may participate in a storytelling show produced by a not-for-profit entity, if the event is not a fund-raiser and his position is not used for financial gain or promotion, and may participate in a podcast that is non-commercial and is not sponsored by a law firm or other for-profit entity.  New York Opinion 2019-9.
  • Without reference to her judicial office, a judge may permit her spouse to include factual information about the judge’s personal story in his campaign literature and may be identified as the candidate’s spouse in a family photograph and/or video. New York Opinion 2018-174.

 

 

 

Interesting posts

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Several judicial discipline cases warn judges to resist the temptation to create social media posts that may interest or entertain the readers but do not reflect well on the dignity of the judiciary.

For example, one judge began a post with:  “In the category of, You can’t make this stuff up!”  The post purported to be a verbatim account of his conversation with the tenant in an eviction proceeding involving drugs found in an apartment.  (Instead of names, the judge referred to the individuals by their role in the case – “landlord,” “tenant,” etc.)

A maintenance man testified to finding powder that tested positive for cocaine under the bathroom rug in the tenant’s apartment.  The tenant testified that the heroin was not his — cocaine, not heroin, was his drug of choice and he keeps all of his drugs in a safe.  When asked how the heroin got into his apartment, the tenant said, “I don’t know.  Maybe one of the hookers I had in my apartment left it.”

The post ended:  “Needless to say, the Court ruled in favor of the landlord.”

When one of his Facebook friends asked if this was a true story, the judge posted:  “Yes.  It goes without staying but the tenant wasn’t the brightest bulb in the chandelier.”

Publicly reprimanding the judge, the Arizona Commission on Judicial Conduct found that the post and reply “mocked the intelligence level of the tenant,” creating an appearance of impropriety and diminishing public confidence in the judiciary.  Urie, Order (Arizona Commission on Judicial Conduct June 12, 2018).  See also Massachusetts Advisory Opinion 2016-9 (judge should not tweet about a defendants using profanity or throwing urine and feces at a judge because “a reasonable person may perceive these posts to be needlessly offensive, or as making light of behavior by litigants who may have mental health problems”).

In publicly reprimanding a judge for comments posted on his Facebook page, the Minnesota Board on Judicial Standards found that the judge had “put his personal interest in creating interesting posts ahead of his duty to maintain the appearance of impartiality.”  In the Matter of Bearse, Public reprimand (Minnesota Board on Judicial Standards November 20, 2015).

n one post, the judge had stated:  “[L]isten to this and conclude that lawyers have more fun than people.”  He then described a medical school graduate’s petition to expunge her disorderly conduct conviction based on her assault on her boyfriend after she found him having sex with her best friend.  He explained that he had granted the petition even though it was filed about 2 years early under the statute and he would probably be reversed if the prosecution appealed.”  Comments on the post included:  “I am always heartened by the application of common sense.  An excellent decision, in my opinion,” and “You’re back in the saddle again Judge.”

Those favorable comments, the Board stated, created the appearance that the judge’s decisions “could be influenced by the desire to make a good impression of himself on his Facebook page.”

The West Virginia Judicial Investigation Commission publicly admonished a judge for posting on his Facebook page a photo that showed him arraigning a woman on felony charges of forging her dying mother’s will to inherit more than $1,000,000.  Public Admonishment of Hall (West Virginia Judicial Investigation Commission October 31, 2017).  The photo came from a story run by a television station about the case.  The caption underneath the photo read, “Police:  Woman Exploits over One Million Dollars from Dying Mom,” and the news logo appeared to the right of the heading.

The post elicited comments from members of the public, including “[d]isgusting,” “[h]ang ‘em high Brent,” “[h]opefully you set a high bond,” and “I didn’t think anything could be lower than rescinding DACA.  I was wrong.”  Some comments expressed support for the judge’s handling of the arraignment, such as “[g]o Brent” and “[g]et ‘em Brent,” and “[t]hat face!  Good one.”

The judge argued that, because the photo did not include “any comment, opinion, or statement,” it was not a comment about a pending case.  The Commission strongly disagreed.

There is an old maxim that “a picture is worth a thousand words.”  The saying is deigned to convey the concept that a single image often expresses an intricate idea better than any written description.  By placing that still photo on his Facebook page, Respondent expressed to his Facebook friends the woman’s perceived guilt in a louder voice and in a more certain tone then if he had actually written the words himself.

The Commission emphasized that the judge’s post was “designed to elicit responses from his friends because that’s what Facebook is meant to be – an alternate public means of communication.”  The Commission noted that the largely negative comments were “no surprise” and the judge’s “failure to remove them constituted a tacit endorsement,” concluding he had acted in a way that was “contrary to the neutral and detached demeanor of all judges but . . . undoubtedly popular with his friends.”

Throwback Thursday

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5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for serving on the board of directors of an organization to which her court referred litigants for services. Lorona, Disposition of Complaint (Arizona Commission on Judicial Conduct May 19, 2014).
  • The California Commission on Judicial Performance publicly admonished a former judge for treating attorneys in a sarcastic and belittling manner in 2 cases. Public Admonishment of Sohigian (California Commission on Judicial Performance May 13, 2014).
  • Approving the recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for driving under the influence. Inquiry Concerning Sheehan, 139 So. 3d 290 (Florida 2014).
  • Based on a complaint filed by the Judicial Inquiry Board, the Illinois Courts Commission removed a judge from office for a mental disability that persistently interfered with the performance of her judicial duties. In re Brim, Order (Illinois Courts Commission May 9, 2014).
  • Pursuant to an agreement, the Kentucky Judicial Conduct Commission suspended a judge without pay for 30 days for (1) permitting ex parte communications from defense attorneys about whether defendants would be arrested under warrants or summoned to appear in court; (2) entering orders in cases in which she was acquainted with a party; (3) addressing parties in court in an undignified and discourteous manner; (4) threatening the sheriff and his deputies with contempt and jail time in an attempt to influence the assignment of bailiffs in her court; and (5) ordering 2 individuals held for U.S. immigration and custom enforcement without legal basis. In re Ward, Agreed Order of Suspension (Kentucky Judicial Conduct Commission May 12, 2014).
  • The Louisiana Supreme Court suspended a judge for 60 days for engaging in numerous ex parte communications with the parties in a small claims case, having her constable obtain the police report of an altercation between the parties, failing to disqualify herself despite the ex parte communications and independent fact-finding, and allowing her constable to “assist” in the proceedings before her and in her decision-making. In re Foret, 144 So.3d 1028 (Louisiana 2014).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which were accepted by the judge and based on stipulations, the New Jersey Supreme Court publicly censured a judge for pursuing a personal relationship with the victim in a domestic violence matter pending before him and fielding questions from the victim concerning the matter. In the Matter of Montes, Order (New Jersey Supreme Court May 22, 2014). The Court’s order does not describe the judge’s misconduct; this summary is based on the Committee’s presentment.
  • Pursuant to the judge’s agreement with an investigative panel, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for failing to disqualify herself from a case in which an attorney who had been her campaign treasurer and her personal attorney appeared and for her comments in several cases. Re Solomon, Letter of reprimand (Tennessee Board of Judicial Conduct May 16, 2014).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) an adversarial relationship with the director of the county community supervision and corrections department that improperly influenced his conduct and judgment and (2) his demeaning treatment of a prosecutor during a trial, including threatening to use duct tape on her, failing to rule on prosecution motions, and preventing her from conducting voir dire. Public Reprimand of Tittle (Texas State Commission on Judicial Conduct May 21, 2014).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a former judge for (1) entering orders of deferred disposition that did not include an assessment of court costs as required by the Texas Code of Criminal Procedure and failing to maintain court records, receipts, or bank statements to document the court costs allegedly collected by court staff; (2) entering orders dismissing cases without notice to or a motion from the city prosecutor, as required by law; (3) entering orders indicating that he was holding trials and finding defendants not guilty without notifying the city prosecutor of trial settings and/or giving the prosecutor an opportunity to appear; (4) conducting his own independent investigation about whether there was probable cause for a citation; and (5) failing to supervise his staff and ensuring that the court’s business was conducted in a timely, efficient, and lawful manner. Public Reprimand of Cedillo (Texas State Commission on Judicial Conduct May 15, 2014).
  • The Texas State Commission on Judicial Conduct publicly warned a former judge for failing to disclose expenditures made by others on behalf of her campaign and to file campaign finance reports, as required by law. Public Warning of Cruz (Texas State Commission on Conduct Judicial May 16, 2014).
  • The Vermont Supreme Court publicly reprimanded a judge for a 14-month delay in scheduling a hearing on a grandfather’s motion to terminate a father’s parental rights. In re Balivet, 98 A.3d 794 (Vermont 2014).

Deteriorating relationship

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Accepting her resignation, the Colorado Supreme Court publicly censured a former court of appeals judge 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 her intimate partner.  In the Matter of Booras (Colorado Supreme Court March 11, 2019).  In March 2018, the Court had granted the request of the Commission on Judicial Discipline to suspend the judge with pay pending the disciplinary proceedings.  The judge resigned after the Commission recommended her removal.

In 2007, the judge began a 10-year relationship with a man whom she met online (“J.S.”).  J.S. told the judge that he was divorced and living in Denver, although the judge later learned that he was married and living in California.  They did not see each other frequently, but they communicated often, and the judge described their relationship as “intimate” and believed it would lead to marriage.

By early 2017, however, “the relationship was deteriorating, and Judge Booras had good reason to distrust J.S.”

On February 21, 2017, the judge and other judges in a division of the court of appeals heard oral argument in a case about the extent to which a state commission was required to consider public health and the environment in deciding whether to grant permits for oil and gas development.

The next morning, the judge sent an e-mail to J.S. that said:

We had an oral argument yesterday re: fracking ban where there was standing room only and a hundred people in our overflow video room.  The little Mexican is going to write in favor of the Plaintiffs and it looks like I am dissenting in favor of the Oil and Gas Commission.  You and Sid [a colleague of J.S.] will be so disappointed.

“The little Mexican” was a reference to one of Judge Booras’s colleagues, “a Latina who would ultimately write the opinion for the majority in that case.”  Judge Booras wrote the dissent.

At some point in 2018, J.S.’s wife contacted the judge, and the judge told her about the affair. Shortly thereafter, J.S. provided The Denver Post, the chief judge of the Court of Appeals, the governor, the Commission on Judicial Discipline, and counsel for the plaintiffs in the case several communications from the judge.

The Court found that the judge had disclosed confidential information — the court’s vote in the case — to a third party.  The Court also found that the judge “had used an inappropriate racial epithet in communicating with J.S.,” noting that it was not the first time as she had referred to her ex-husband’s new wife, a woman of Navajo descent, as “the squaw” in an e-mail to J.S a year earlier.

The Court held that the judge’s “use of an inappropriate racial epithet directed at one of her colleagues” and her disclosure of confidential information “obviously impaired harmony and trust among her co-workers . . . .”   The Court emphasized that the judge’s “relationship with the colleague at whom her ‘little Mexican’ comment was directed” was particularly affected, noting that the other judge had been “justifiably shocked and deeply hurt by Judge Booras’s comments” and that a close working relationships with other judges is “integral to a collaborative decision-making body” like the court of appeals.  The Court also explained that “knowledge of Judge Booras’s racially inappropriate comments could understandably have caused concern among parties of diverse backgrounds, and particularly those of Latino and Native American ancestry, who inevitably would have appeared before Judge Booras were she to have returned to the court of appeals.  The judicial system cannot function properly if public confidence in a court is eroded in this way.”

The judge argued that “a judge’s communications with an intimate partner should be given First Amendment protection unless the speech ‘violates a specific narrowly-tailored rule of judicial conduct or falls within an ordinary exception to the First Amendment.’”  Rejecting that argument, the Court held that “inappropriate racial epithets and derogatory remarks are not matters of legitimate public concern warranting First Amendment protection.”  The Court also concluded that any First Amendment interests “are outweighed by the state’s countervailing interests.”

 

Throwback Thursday

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10 years ago this month:

  • Pursuant to an agreement, the Tennessee Court of the Judiciary publicly censured a judge for threatening an attorney with contempt, using profanity. Public Censure of Moore (Tennessee Court of the Judiciary May 1, 2009).
  • Pursuant to an agreement, the Tennessee Court of the Judiciary publicly censured a judge for ordering a drug test for a spectator in his courtroom. Public Censure of Moore (Tennessee Court of the Judiciary May 1, 2009).
  • The Texas Review Tribunal affirmed the public warning of a judge for knowingly failing to timely file campaign finance reports as required by law and ignoring the State Commission on Judicial Conduct’s numerous requests and orders that he respond to its inquiries. In re Priddy, Opinion (Review Tribunal Appointed by the Texas Supreme Court May 18, 2009).
  • Affirming the findings and conclusions of the Judicial Conduct Board, the Vermont Supreme Court suspended a judge for 6 months without pay for his handling of the sale of a county building to a non-profit organization while serving on its board. In re Boardman, 979 A.2d 1010 (Vermont 2009).

 

Recent cases

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  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for threatening to hold 2 police officers in contempt for failing to comply with his order to arrest a woman for violating a harassment injunction entered in a proceeding from which the judge had recused himself; the Commission also directed the judge to complete a judicial ethics course at his own expense.  Guerrero, Order (Arizona Commission on Judicial Conduct March 29, 2019).
  • Approving a stipulation and the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for, during a felony criminal trial, ordering his courtroom deputy, loudly and in front of the jury, to remove one of the defendant’s attorneys from a sidebar conference and then denying the defendant’s disqualification motion.  Inquiry Concerning Bailey (Florida Supreme Court April 11, 2019).
  • Approving a stipulation and the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for introducing partisan political activity into his re-election campaign by identifying himself as a registered Republican while being interviewed by a newspaper’s editorial board and touting his endorsement by a partisan political organization affiliated with the Democratic Party at a judicial candidate forum.  Inquiry Concerning Kollra (Florida Supreme Court April 18, 2019).
  • Based on a settlement agreement, the Michigan Supreme Court suspended a judge for 45 days without pay based on her guilty plea to disorderly conduct–littering and her admission to careless driving, a civil infraction.  In re McDonald (Michigan Supreme Court April 25, 2019).
  • Granting a joint motion for approval of the recommendation of the Commission on Judicial Performance based on stipulations of fact, the Mississippi Supreme Court publicly reprimanded a judge and fined him $1,683.34 for (1) failing to timely rule in 28 civil cases and (2) entering a judgment in favor of a plaintiff without holding a hearing on the merits of the case.  Commission on Judicial Performance v. McGee (Mississippi Supreme Court April 4, 2019).
  • Based on a stipulation of facts and agreed recommended sanction, the Mississippi Supreme Court publicly reprimanded a judge and fined him $500 for ordering a deputy clerk to rescind a warrant for the arrest of his former girlfriend that had been issued by another judge based on his own affidavit.  Commission on Judicial Performance v. Burton (Mississippi Supreme Court April 25, 2019).
  • Granting a petition to accept a stipulation agreement and consent to discipline, the New Mexico Supreme Court publicly censured a judge for a conflict with his next-door neighbors.  In the Matter of Guthrie, Order and public censure (New Mexico Supreme Court April 8, 2019).
  • Granting a petition to accept a stipulation agreement and consent to discipline, the New Mexico Supreme Court publicly censured a judge for, in a conversation with the county manager, threatening to have the governor veto funds for the county if the courthouse security measures the judge thought were necessary were not provided.  In the Matter of Mitchell, Order and public censure (New Mexico Supreme Court April 8, 2019).
  • Adopting the findings of the Board on Professional Conduct based on stipulations of facts, the Ohio Supreme Court publicly reprimanded a judge for (1) presiding over numerous cases in which he had served as attorney of record and (2) failing to timely notify multiple clients that he was terminating his representation following his appointment to the bench.  Disciplinary Counsel v. Rusu (Ohio Supreme Court April 3, 2019).
  • Based on stipulations, the Pennsylvania Court of Judicial Discipline severely reprimanded a former judge and fined him $5,000 for engaging in sexual relations with the girlfriend of a treatment court defendant, sending salacious text messages, and presiding in cases in which the attorney representing him in the investigation appeared.  In re Shaw, Opinion (Pennsylvania Court of Judicial Discipline July 18, 2018), Order (April 23, 2019).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for affirmatively allowing a photo constituting an endorsement of a candidate for county commissioner to be posted on his Facebook page.  Public Warning of Madrid (Texas State Commission on Judicial Conduct April 3, 2019).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a former judge for being unnecessarily confrontational toward litigants during hearings on 2 petitions for anti-harassment orders on the same day, including criticizing a domestic violence survivor for her choice in relationships.  In re Meyer, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 26, 2019).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for delays of 392 days and 132 days in deciding 2 family law cases.  In re Fennessy, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 26, 2019).

Throwback Thursday

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20 years ago this month:

  • Pursuant to a stipulation, the Utah Judicial Conduct Commission publicly admonished a judge for failing to recuse from cases involving an attorney who had assisted in the settlement of a civil dispute in which the judge had been involved before becoming a judge and failing to disclose the relationship. Inquiry Concerning Glasmann, Informal resolution (Utah Judicial Conduct Commission May 25, 1999).
  • The West Virginia Supreme Court of Appeals publicly censured a former judge who had pled guilty to driving under the influence of alcohol and possession of less than 15 grams of marijuana and who had attempted to encourage a witness to be less than candid about the charges. In the Matter of Binkoski, 515 S.E.2d 828 (West Virginia 1999).
  • Adopting the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals admonished a judge for personally soliciting campaign contributions. In the Matter of Tennant, 516 S.E.2d 496 (West Virginia 1999).