Throwback Thursday

5 years ago this month:

  • Approving a stipulation and the Judicial Qualifications Commission’s findings and recommendation, the Florida Supreme Court publicly reprimanded a judge and fined her $25,000 for (1) purchasing a table at a Republican Party fund-raiser; (2) failing to include the qualifier “for” required for non-incumbent candidates in some of her campaign materials; and (3) accepting funds for her campaign from her husband in excess of the $500 contribution limit imposed by law. Inquiry Concerning Krause, 141 So. 3d 1197 (Florida 2014).
  • Adopting the findings of fact and conclusions of the law of the Judicial Tenure Commission, the Michigan Supreme Court suspended a judge for 60 days without pay for (1) perfunctorily closing a courtroom to the public and the victim’s family without complying with a statute; (2) refusing to impose a mandatory sentence even after the statutory language was brought to his attention; (3) refusing to remand a defendant convicted of first-degree criminal sexual conduct with a person under 13 to jail to await sentencing as required by court rule; (4) disregarding an appellate court order directing him to hold a hearing; (5) recasting an order dismissing a case without prejudice to justify his sua sponte dismissal of the case despite the defendant’s intention to plead guilty; (6) subpoenaing a defendant’s medical records without the parties’ knowledge or consent; (7) personally bringing a defendant convicted of several violent crimes from lock-up and sentencing him without restraints or courtroom security present; and (8) coming down from the bench at the start of a trial to shake hands with a criminal defendant and deliver papers to his counsel. In re Morrow, 854 N.W.2d 89 (Michigan 2014).
  • The Montana Supreme Court publicly censured a judge and suspended him for 31 days without pay for his comments while sentencing a teacher for sexual intercourse without consent with a 14-year-old student, imposing an unlawful sentence, attempting to retract his sentence, and making inappropriate public statements attempting to justify his actions. Inquiry Concerning Baugh, 334 P.3d 352 (Montana 2014).
  • Upholding the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for presiding over matters involving (1) a lawyer who was her close friend and personal attorney; (2) a lawyer who was or had been her campaign manager; and (3) a lawyer who was her former attorney. In the Matter of Doyle, 17 N.E.3d 1127 (New York 2014).
  • Adopting the findings and recommendation of the Board of Commissioners on Grievances and Discipline, based on stipulated facts and the judge’s agreement, the Ohio Supreme Court suspended a judge’s law license for 1 year, but stayed the suspension, for (1) during his transition from private practice to the bench, neglecting a client’s personal injury case and continuing to practice law after becoming a judge and (2) failing to timely withdraw his earned fees from his client trust account, commingling personal and client funds. Disciplinary Counsel v. Bender, 11 N.E.3d 1168 (Ohio 2014).
  • Pursuant to the judge’s agreement with the Disciplinary Board, the Pennsylvania Supreme Court suspended a judge’s law license for 1 year based on her guilty plea to 3 misdemeanor charges of tampering with public records for dismissing 3 of her own parking tickets. Office of Disciplinary Counsel v. Ballentine (Pennsylvania Supreme Court June 16, 2014).
  • 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 her comments in several cases. Re Solomon, Letter of reprimand (Tennessee Board of Judicial Conduct May 16, 2014).

 

“Misguided and serious” ex parte communications and independent investigations

Based on the recommendation of a judicial conduct panel, the Wisconsin Supreme Court suspended a judge for 5 days without pay for (1) initiating an ex parte communication with a prosecutor about plea negotiations in 1 case and (2) using the internet to independently investigate a defendant prior to sentencing in a second case.  Judicial Commission v. Piontek, Opinion (Wisconsin Supreme Court May 21, 2019).  The judge had admitted the allegations in the complaint filed by the Judicial Commission.

(1) The judge set a criminal case against S.S. for trial on March 4, 2015.  Sometime before December 3, 2014, the prosecutor visited the judge in his chambers seeking an adjournment of the trial.  On December 3, the judge telephoned the prosecutor, without including defense counsel or giving defense counsel notice.  During the 3-minute-and-7-second phone call, the judge told the prosecutor that he wanted S.S.’s trial to go forward on the scheduled trial date; that any plea negotiation should include S.S. being convicted of a felony; and that people like S.S. involved “in scams like this” need to be stopped.  The judge never disclosed this conversation to S.S. or S.S.’s attorney.

In a letter to defense counsel on January 29, the prosecutor summarized his phone call with the judge.  Shortly thereafter, the prosecutor gave the judge a copy of the letter.  Only after receiving the prosecutor’s letter did the judge recuse himself from the case.

During the Commission’s investigation, the judge at least twice denied the assertions made in the prosecutor’s letter.  In a response letter, the judge denied that he initiated the phone call to the prosecutor and denied making the statements the prosecutor attributed to him.  In response to the notice of formal proceedings, the judge denied that his ex parte conversation with the prosecutor involved discussions of plea negotiations.  Only later, when he filed his response to the complaint, did the judge admit that he initiated the phone call and that he made “off-handed comments about the manner in which he believed the case should be resolved.”

(2) In June 2014, P.E., a former nurse, pled guilty before another judicial official to 3 counts of delivery of non-narcotic controlled substances.  A pre-sentence investigation was ordered, and the matter was scheduled for sentencing before Judge Piontek on October 6, 2014.

Because he believed that P.E. was untruthful in her comments to the presentence investigation writer, the judge independently investigated on the internet P.E.’s nursing licenses and related matters in several states.  From that research, the judge incorrectly deduced that P.E. had never been licensed as a nurse in Illinois.  The judge did not provide the parties or their attorneys with notice of his intent to conduct the investigation, the nature of his investigation, or its results.

When sentencing P.E., the judge relied on the incorrect information he had obtained from the internet regarding P.E.’s Illinois nursing license.  When P.E. attempted to provide information about her Illinois license, the judge told her that her “lies are getting [her] in trouble,” suggested that she “close [her] mouth,” stated that her “license in the State of Illinois does not exist,” and said that he did not want any further comment from her.

Reversing the judge’s order denying resentencing, the court of appeals concluded that the record was inconsistent with the judge’s assertion that he did not rely on the misinformation from his independent investigation and, therefore, that the judge had denied P.E. her right to be sentenced based on accurate information.  The court remanded for resentencing before a different judge.

In his brief to the panel, the judge stated that “long before his formal appearance before the Judicial Commission, [he had] ceased conducting any independent factual research in cases before him.”  Based on that statement, the panel found that the judge had “implicitly conceded” that his independent factual investigation in the P.E. case was not isolated.

The Court concluded that a suspension was appropriate, rather than a reprimand as requested by the judge.  At the time of his misconduct, he had been a judge for 2 years.  The Court explained:

Regardless of his newness to the bench or the weight of his caseload, Judge Piontek’s ex parte communication with the prosecutor on the merits of a criminal case was obviously unethical; even the newest and busiest judge must know as much.  In addition, Judge Piontek’s independent investigation concerning P.E.’s nursing licenses plainly violated his duty of neutrality; it is clearly improper for a judge to both conduct an independent investigation and to fail to give a party a chance to respond to the judge’s misinformed allegations based on that investigation.

The Court also noted its concern that the judge’s “initial denials and later defenses of his conduct suggest that, for much of these proceedings, he failed to fully appreciate the seriousness of his misconduct and its impact on the judicial system.  Simply put, this was not a close case under the undisputed facts, and a reprimand, as Judge Piontek requests, would be an insufficient response.”

The Court concluded that a suspension at the low end of the 5-15 day range recommended by the panel was warranted, “acknowledging that the imposition of discipline is not an exact science” but finding that the judge’s conduct, “while misguided and serious” was not as egregious as conduct that had resulted in 15-day suspensions in previous cases.

Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge who became angry with a litigant, telling her to change her attitude, stating, “I am the judge,” and warning her that she would not be able to present her evidence if her attitude did not change. Hyatt, Amended Order (Arizona Commission on Judicial Conduct June 24, 2009).
  • Granting the recommendation of the Commission on Judicial Conduct based on a stipulation and the judge’s agreement to resign, the Arizona Supreme Court publicly censured a judge for failing to issue decisions within 60 days in 25 cases over 3 years, submitting 11 inaccurate salary certifications, and failing to institute a comprehensive case-tracking system. Inquiry Concerning Hinson, Judgment and Order (Arizona Supreme Court June 2009).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a justice of the peace for orally setting terms of visitation relating to a pending superior court case although she had been notified that the superior court case was pending. Amended Order Davis (Arizona Commission on Judicial Conduct June 24, 2009).
  • With the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for (1) participating in an ex parte conversation with a defendant about her traffic infractions and assuming the role of the prosecutor by negotiating a resolution to the case and (2) employing his wife as court clerk. Public Admonition of Huizenga (Indiana Commission on Judicial Qualifications June 22, 2009).
  • Granting a joint motion, the Mississippi Supreme Court publicly reprimanded a judge and fined him $2,000 for, in a criminal case, engaging in ex parte communications with the victim, the defendant, and her mother; allowing the defendant’s mother to enter a plea for the defendant; failing to act with courtesy toward the defendant; writing a note to the defendant’s employer; and finding the defendant in contempt and ordering her to pay restitution based on a prior incomplete order. Commission on Judicial Performance v. Vess, 10 So. 3d 486 (Mississippi 2009).
  • The Mississippi Supreme Court suspended a former judge for 1 year without pay for disparaging remarks about Caucasian officials and their African-American appointees. Commission on Judicial Performance v. Osborne, 11 So. 3d 107 (Mississippi 2009).
  • Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court removed a former judge for committing a minor to detention without a hearing and taking other action after recusing himself from the case. Commission on Judicial Performance v. Osborne, 16 So. 3d 16 (Mississippi 2009).
  • Adopting the findings and recommendations of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court permanently disqualified a former judge from holding judicial office for (1) twice presiding while intoxicated; (2) disorderly conduct in a bar and referring to his judicial status; (3) abusing the contempt power in several matters and intemperate conduct; (4) consulting with a municipal entity; (5) giving “discounts” in vehicle cases based on the defendants’ status as a high school student; and (6) routinely sanctioning latecomers. In the Matter of Sasso, Order (New Jersey Supreme Court June 2, 2009).
  • Adopting the findings and recommendations of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly censured a judge for driving while intoxicated and obstructive conduct at the police headquarters after his arrest. In the Matter of Tourison, Order (New Jersey Supreme Court June 2, 2009).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for failing to render decisions in a timely manner in 47 cases. In the Matter of Gilpatric, Determination (New York State Commission on Judicial Conduct June 5, 2009).
  • Based on an agreed statement of fact and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for, over a 6-year period, failing to render timely decisions in 29 cases and failing to report 10 of the delayed cases as required to court administrators. In the Matter of Turner, Determination (New York State Commission on Judicial Conduct June 30, 2009).
  • The South Carolina Supreme Court suspended a judge for altering a court order and a letter from the Commission on Continuing Legal Education and Specialization retroactive to his interim suspension. In the Matter of Sullivan, 679 S.E.2d 525 (South Carolina 2009).

 

 

Up-date to death penalty controversy in Arkansas

A 2017 controversy about the death penalty in Arkansas was one of the top judicial ethics stories in 2018, resulting in cross judicial discipline complaints by a circuit court judge and the supreme court justices and other legal proceedings. In 2018, some of those cases were resolved but some remained pending at the end of the year. On June 14, 2019, the discipline complaint against the circuit court judge was dismissed for want of prosecution.  A timeline of the events first posted in February has been up-dated.

Self-represented litigants and the code of judicial conduct

Based on a proposal by its Coalition for Court Access “to improve the availability and quality of access to civil legal services for persons of limited means,” the Indiana Supreme Court recently amended the state’s code of judicial conduct to provide in the text of Rule 2.2:  “A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.”  A new comment 5 explains:

A judge’s responsibility to promote access to justice, especially in cases involving self-represented litigants, may warrant the exercise of discretion by using techniques that enhance the process of reaching a fair determination in the case.  Although the appropriate scope of such discretion and how it is exercised will vary with the circumstances of each case, a judge’s exercise of such discretion will not generally raise a reasonable question about the judge’s impartiality.  Reasonable steps that a judge may take, but in no way is required to take, include:

(a) Construe pleadings to facilitate consideration of the issues raised.
(b) Provide information or explanation about the proceedings.
(c) Explain legal concepts in everyday language.
(d) Ask neutral questions to elicit or clarify information.
(e) Modify the traditional order of taking evidence.
(f) Permit narrative testimony.
(g) Refer litigants to any resources available to assist in the preparation of the case or enforcement and compliance with any order.
(h) Inform litigants what will be happening next in the case and what is expected of them.

Indiana is the 8th state to add language to the text of Rule 2.2 proposed by the Conference of Chief Justices and the Conference of State Court Administrators in a 2012 resolution.  Those states have also, as the resolution suggested, modified the comments “to reflect local rules and practices regarding specific actions judges can take to exercise their discretion in cases involving self-represented litigants.”  All, for example, allow judges to make referrals to resources available to assist pro se litigants prepare their case and to provide information or explanation about the proceedings, and most permit judges to make legal concepts understandable, modify the traditional order of taking evidence, and ask neutral questions to elicit or clarify information.

In addition, 24 states have added a comment to Rule 2.2 from the 2007 American Bar Association Model Code of judicial Conduct:  “It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard,” with 8 of those adding caveats or comments not in the model.  3 states have adopted other comments regarding judges’ treatment of self-represented litigants

For more information, see the document “self-represented litigants and the code of judicial conduct” in the most requested resources on the Center for Judicial Ethics web-site.

Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly censured a former judge and barred him from receiving assignments, appointments, or references of work from any California state court for actions beginning with his arrest for driving under the influence of alcohol and culminating 5 months later with his arrest for riding a bicycle under the influence of alcohol, and included additional arrests for driving while intoxicated, appearing intoxicated at the courthouse, violating an emergency protective order his estranged wife had obtained, and being unavailable for work on 6 days in 4 months. Inquiry Concerning Bradley, Decision and Order (California Commission on Judicial Conduct June 3, 1999).
  • Approving an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for (1) identifying herself as a judge when stopped by a police officer and (2) presiding multiple times in court while under the influence of alcohol. In the Matter of Knott, Determination (New York State Commission on Judicial Conduct June 11, 1999).
  • Adopting the findings and conclusions of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a judge from the practice of law for 18 months (with the final 12 months stayed) and from his position as a judge for 6 months without pay for making derogatory remarks about court officers. Office of Disciplinary Counsel v. Ferreri, 710 N.E.2d 1107 (Ohio 1999).
  • Pursuant to a former judge’s consent, the South Carolina Supreme Court publicly reprimanded the former judge for several abuses of power and lying to investigators and banned him from seeking appointing to judicial office in the state without authorization. In the Matter of Wilder, 516 S.E.2d 927 (South Carolina 1999).
  • Accepting an agreement, the South Carolina Supreme Court publicly reprimanded a judge for allowing court assistants to sign their names to tickets and other orders. In the Matter of Sons, 517 S.E.2d 214 (South Carolina 1999).
  • Pursuant to the judge’s consent, the Utah Supreme Court publicly reprimanded a judge for his treatment of a traffic violation defendant and for ordering another defendant to take his stalking victim to dinner. Re Allredge, Order (Utah Supreme Court June 22, 1999).
  • Pursuant to an agreement, the Washington State Commission on Judicial Conduct publicly admonished a court commissioner for comments to a female employee. In re Aronow, Stipulation, agreement and order of admonishment (Washington State Commission on Judicial Conduct June 4, 1999).
  • Pursuant to an agreement, the Washington Commission on Judicial Conduct publicly censured a judge for entering incorrect information in support of an order granting the court’s own motion to waive fees to facilitate the prompt service of an anti-harassment order she had entered. In re DuBois, Approval of stipulation agreement and order of censure (Washington Commission on Judicial Conduct June 4, 1999).

 

Recent cases

  • Based on a stipulation, the California Commission on Judicial Performance severely censured a judge for (1) failing to accept responsibility for a ticket for running a red light until instructed to do so by her presiding judge, knowingly participating in her husband’s request for a trial by written declaration, and seeking assistance with the ticket from a court clerk; (2) having an ex parte telephone conversation with a deputy district attorney about a question from a deliberating jury and responding to the question in writing without the knowledge of the defendant or his attorney; (3) saying to a defendant in a restraining order proceeding, “You can’t down a couple of 40s before you go pick [your children] up before a visit because that’s not good. Do you understand?”; and (4) in a jury trial, asking a self-represented plaintiff a question that reflected disbelief in her testimony, making a comment that conveyed to the jury that she had not seen any evidence to support a damages award, and referring to the “well-known quote” that the party who represents himself has a fool for a client.  In the Matter Concerning Symons, Decision and Order (California Commission on Judicial Performance May 20, 2019).
  • The California Commission on Judicial Performance publicly admonished a judge for failing to resentence a criminal defendant for over 3 years after remand by the court of appeal. In the Matter Concerning Sandoval, Decision and order (California Commission on Judicial Performance May 20, 2019).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former non-lawyer judge for, at a public meeting of the village board addressing public concerns about criminal activity in the village, had “made statements that conveyed disdain for certain laws and aspects of legal process, a predisposition to presume defendants guilty, and personal annoyance with lawyers who represent criminal defendants.” In the Matter of Stone, Decision and Order (New York State Commission on Judicial Conduct May 30, 2019).
  • Adopting the findings and recommendation of the Judicial Standards Commission based on a stipulation and agreement, the North Carolina Supreme Court publicly reprimanded a judge for attacking the personal integrity and fairness of the chief judge in complaints to other judges, court staff, local attorneys, the Administrative Office of the Courts, and the Commission and failing to diligently discharge her duties. In re Smith (North Carolina Supreme Court May 10, 2019).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for pulling traffic citations to have an assistant district attorney file a motion to dismiss and/or provide other preferential treatment; the Commission also ordered that he receive 20 hours of instruction with a mentor. Public Reprimand of Trejo and Order of Additional Education (Texas State Commission on Judicial Conduct April 26, 2019).
  • A Texas Special Court of Review issued 2 public reprimands to a former judge for (1) for ordering children removed from their mothers’ custody and given to their father in the absence of a verified pleading or affidavit and (2)(a) inappropriately touching another judge and 2 court clerks at a social function and sending the other judge an offensive text message and (b) making disparaging comments about the county district attorney’s office in court in 2 cases. In re Inquiry Concerning Williams, Opinion (Texas Special Court of Review May 17, 2019).
  • Based on the findings and recommendation of the Judicial Conduct Commission, the Utah Supreme Court suspended a judge for 6 months without pay for (1) “seemingly shirty and politically charged comments to a defendant in his courtroom;” (2) losing his temper with a member of the court’s staff and using his authority to seek her removal from the premises; and (3) a Facebook post that was critical of then-presidential candidate Donald Trump. In re Kwan (Utah Supreme Court May 22, 2019).
  • Accepting the recommendation of the Judicial Hearing Board, based on an agreement, which references the formal statement of charges, the West Virginia Supreme Court of Appeals censured and reprimanded a former supreme court justice for (1) not being candid when he told a reporter during an interview that he had “very little” input in the renovation and furnishing of his office; (2) having 2 new computers and a printer owned by the Court installed in his home that were used primarily for personal purposes by the justice, his wife, and/or his son; (3) using a Court-owned vehicle for at least 4 personal trips; and (4) his conviction by a federal jury of 10 felony counts, most related to his personal use of state vehicles; the Court also annulled his license to practice law in the state, permanently enjoined him from seeking public office by election or appointment in the state, fined him $3,000, and ordered that he pay costs of $5,871.12. In the Matter of Loughry, Order (West Virginia Supreme Court of Appeals May 16, 2019).
  • Based on the recommendation of a judicial conduct panel after the judge admitted the allegations in the complaint filed by the Judicial Commission, the Wisconsin Supreme Court suspended a judge for 5 days without pay for (1) initiating an ex parte communication with a prosecutor about plea negotiations in 1 case and (2) independently investigating a defendant on the internet prior to sentencing in a second case. Judicial Commission v. Piontek, Opinion (Wisconsin Supreme Court May 21, 2019).