- “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?” Judge to father in a hearing on a request for a domestic violence restraining order. In the Matter Concerning Symons, Decision and Order (California Commission on Judicial Performance May 20, 2019) (severe censure for this and other misconduct).
- “I cannot avoid the observation that the party who represents himself has a fool for a client. That is a well-known quote. It’s too bad that someone did not perform the older and more gracious function, not simply of attorney, but counselor at law. Counselors at law used to advise people not to go to court, to let the matter go and resolve it outside of court. And that might have been a kindness in this situation.” Judge in case in which an attorney was representing herself. In the Matter Concerning Symons, Decision and Order (California Commission on Judicial Performance May 20, 2019) (severe censure for this and other misconduct).
- “Prayer might be the answer. ‘Cause, he just signed an order to start building the wall and he has no money to do that, and so if you think you are going to get taxes back this year, uh-yeah, maybe, maybe not. But don’t worry[,] there is a tax cut for the wealthy so if you make over $500,000 you’re getting a tax cut. You’re right there[,] right? Pretty close? Allright, so do you have a plan? Other than just get the tax cut and pay it off?” Judge to a defendant who could not pay his fines, referring President Trump’s immigration and tax policies. In re Kwan (Utah Supreme Court May 22, 2019) (6-month suspension for this and other misconduct).
- “Okay. I will do it this way. Please delete the prior stuff. I’ll find you not guilty, ma’am. Thank you. Trying to clean up the docket, guys, not add to it.” Judge changing her verdict in a bench trial from guilty to not guilty after the prosecutor refused to dismiss an unrelated charge against the same defendant. Disciplinary Counsel v. Salerno (Ohio Supreme Court February 12, 2019) (1-year suspension for this and other misconduct).
- “You have a hard time understanding me? Two lawyers can’t argue one argument.” Judge, during a felony criminal trial, just before ordering his courtroom deputy in front of the jury to remove one the defendant’s attorneys from a sidebar conference. Inquiry Concerning Bailey, 267 So. 3d 992 (Florida 2019) (public reprimand).
- “[Your] lies are getting [you] in trouble,” “close [your] mouth,” and your “license in the State of Illinois does not exist.” Judge to criminal defendant who was a former nurse after incorrectly deducing based on independent internet research that she had never been licensed as a nurse in Illinois. Judicial Commission v. Piontek, Opinion (Wisconsin Supreme Court May 21 2019) (5-day suspension without pay for this and other misconduct).
- “Today I have to eat humble pie.” Judge apologizing in treatment court for his sexual relationship with the girlfriend of a defendant. In re Shaw, 192 A.3d 350 (2018), Order (Pennsylvania Court of Judicial Discipline April 23, 2019) (severe reprimand of now-former judge and $5,000 fine for this and other misconduct).
- “Sit on my lap if you want . . . no, no I take that back.” Judge to a participant in a drug court proceeding when she seemed confused about where to sit or stand when her case was called. Fell, Order (Arizona Commission on Judicial Conduct June 10, 2019).
- “When God tells me I gotta do something, I gotta do it.” Judge after telling deliberating jurors that a defendant was innocent. Public Warning of Robison (Texas State Commission on Judicial Conduct February 20, 2019).
- “Take a read of People v Solmonson, 261 MA 657 (2004), cited in People Rassoull Omari Janes, COA Unpublished June 15, 2017 (I have a copy).” Judge providing caselaw to assistant prosecutor in an ex parte e-mail. In re Filip, 923 N.W.2d 282 (Michigan 2019) (public censure for this and related misconduct).
- Prosecutor “handled himself in in [sic] a completely unprofessional manner, never notified me of his concerns,” and “is a fool that I suffered” and a “cancer” in the prosecuting attorney’s office. Judge in disqualification hearing referring to prosecutors who had told the defense attorney about his ex parte e-mails. In re Filip, 923 N.W.2d 282 (Michigan 2019) (public censure for this and related misconduct).
- “Just get rid of them.” Judge to clerk about search warrant materials in boxes that should have been matched up and transmitted to the clerk for filing. In the Matter of Russell, Opinion (Maryland Court of Appeals June 28, 2019) (6-month suspension without pay for this and other misconduct).
- “So did you do it? Are you going to own up to it? No one is owning up to it? Somebody … did it. People aren’t telling the truth.” Judge to clerks in “line-up” in clerk’s office to identify who had assisted a domestic violence petitioner in a case with a missing file. In the Matter of Russell, Opinion (Maryland Court of Appeals June 28, 2019) (6-month suspension without pay for this and other misconduct).
- The administrative judge “is not your boss. You don’t need to listen to her. You don’t need to listen to [the chief judge.” Judge to new judge while they were eating lunch together. In the Matter of Russell, Opinion (Maryland Court of Appeals June 28, 2019) (6-month suspension without pay for this and other misconduct).
- The administrative judge “is a complete and utter incompetent vicious coward.’” Judge to several court employees in the courthouse hallway. In the Matter of Russell, Opinion (Maryland Court of Appeals June 28, 2019) (6-month suspension without pay for this and other misconduct).
- “No! It was a gift from my parents. I’m not taping the meeting. I don’t know how this thing works.” Judge trying to explain the recorder found in her purse during a meeting with other judges. In the Matter of Gross-Quatrone, 200 A.3d 411 (New Jersey 2019) (2-month suspension for this and related misconduct).
- “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.” Appellate judge about colleague and non-public vote in pending case in text to intimate, non-spousal partner. In the Matter of Booras (Colorado Supreme Court March 11, 2019) (public censure of now-former judge for this and related misconduct).
- “We had many times where we didn’t have enough clerks, plus the clerks that were there were not trained in some of the areas, and we fell behind. And so, in falling behind trying to keep a very busy court going, I stepped in – was trying to answer phones, dealing with people at the, at the, uh, window. Uh, in doing that, I made some mistakes. And so the Censure involves some of the mistakes that I made.” Judge in radio interview misrepresenting the grounds, extent, and nature of misconduct for which he had been previously sanctioned. In the Matter of Walton, Order (New Mexico Supreme Court March 12, 2019) (3-week suspension without pay).
- “[I] would never have thought [you] would have stolen anything.” Judge in voicemail to unqualified friend he had appointed as a trustee after failing to respond promptly to evidence of friend’s mismanagement and embezzlement. In the Matter of Freese, Per curiam opinion (Indiana Supreme Court June 4, 2019) (45-day suspension without pay).
- “To start with, the whole system, quite frankly, sucks;” “Most of these individuals, if l had my way, you’d see them probably swinging outside the door, okay? That’s the way I was brought up;” and “But thanks to lawyers, everybody has rights.” Judge at a public meeting of the village board addressing concerns about recent criminal activity in the village. In the Matter of Stone, Decision and Order (New York State Commission on Judicial Conduct May 30, 2019) (complaint concluded with judge’s resignation and agreement not to seek or accept judicial office in the future).
- “‘Okay, you need to stop for a minute,” and, “You are lying. You’re such a liar.” Judge interrupting a deposition during her divorce case when the deponent began answering a question about an allegation that the judge had been intoxicated in her office. In re Brennan (June 19, 2019) (removal for this and other misconduct).
- “If I hear the basketball bounce one more time I am going after Chico’s disability.” Judge to next-door neighbor about her husband during dispute with his neighbors that “erupted” periodically and resulted in the judge’s neighbors filing several police reports. In the Matter of Guthrie, Order and public censure (New Mexico Supreme Court April 8, 2019) (public censure).
- “[I want] to take the trooper back to 1982 . . . when there was professional courtesy [my] daughter would not have received a ticket.” Judge to prosecuting attorney about a state trooper who had ticketed his daughter for speeding. Disciplinary Counsel v. Marshall (Ohio Supreme Court February 28, 2019) (1-year suspension for this and other misconduct).
- “I am Judge Abbott of Palmyra and I just won’t do any arraignments for you anymore.” Judge when police in a neighboring town refused to help unlock his personal vehicle. In the Matter of Abbott, Determination (New York State Commission on Judicial Conduct February 7, 2019) (public censure for this and other misconduct).
- “I recommend the Redd Group for all your polling needs. Excellent work! – Steven C. Bailey.” Judge in a testimonial used on a business’s web-site with his title. Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019) (public censure for this and other misconduct).
- “Quick question: Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say . . . about your business practices?” Judge in Facebook post critical of then-presidential candidate Donald Trump. In re Kwan (Utah Supreme Court May 22, 2019) (6-month suspension for this and other misconduct).
Monthly Archives: July 2019
5 years ago this month:
- Based on an agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judicial candidate for “liking” a Facebook post that publicly endorsed a candidate for public office and making a contribution to a political candidate. In the Matter of Cohen, Agreed order of public reprimand (Kentucky Judicial Conduct Commission July 21, 2014).
- Based on an agreed statement of facts, the Mississippi Supreme Court removed a former judge and fined her $1,000 for wrongfully incarcerating 8 parents and 3 minors without affording them basic due process rights. Commission on Judicial Performance v. Darby, 143 So. 3d 564 (Mississippi 2014).
- Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly censured a former judge and permanently barred him from serving in judicial office for (1) engaging in fraudulent conduct including attempts to avoid his judgment creditors, fraudulently transferring real property, breaching his fiduciary duties to investors, having wage garnishments entered against his judicial salaries, failing to report his involvement in litigation as required by an administrative directive, and being consistently uncooperative with opposing counsel in 43 lawsuits filed against him; (2) political contributions by the judge’s law firm and business entities; and (3) the representation of municipal police officers by his law firm while he held judicial office in the county. In the Matter of Cook, Order (New Jersey Supreme Court July 18, 2014).
- The New York State Commission on Judicial Conduct publicly censured a judge for imposing fines and/or surcharges in over 941 cases that exceeded the maximum amounts authorized by law or were below the minimum amounts required by law and failing to properly supervise his court clerks, which resulted in the improper fines in some of the cases. In the Matter of Piraino, Determination (New York State Commission on Judicial Conduct July 30, 2014).
- The Ohio Supreme Court publicly reprimanded a judge for failing to disqualify herself from 53 cases involving a public defender whose arrest for driving while intoxicated she had witnessed, who was temporarily living in her house, and whom she was driving to work. Disciplinary Counsel v. Oldfield, 16 N.E.3d 581 (Ohio July 2014).
- The Ohio Supreme Court indefinitely suspended a former judge’s law license based on her conviction on charges of lying to the FBI. Ohio State Bar Association v. McCafferty, 17 N.E.3d 521 (Ohio July 2014).
- The Texas State Commission on Judicial Conduct publicly reprimanded a former judge for his extended practice of dismissing citations without a motion from the prosecutor. Public Reprimand of Romo (Texas State Commission on Judicial Conduct July 3, 2014).
A sampling of recent judicial ethics advisory opinions
- Except in specified circumstances, a judge may not engage in an ex parte communication with a professional or volunteer who works with the court, such as a district attorney investigator, probation officer, probate investigator, social worker, CASA volunteer, or CASA staff, and should require such individuals to communicate through a written report shared with all parties. A judge should not receive an oral up-date from an investigator from the district attorney’s office appointed by the court to search for a child who has been abducted by a parent in a contested custody case but may receive a written up-date. A judge should not permit a deputy probation officer to explain portions of a report in chambers and should ask that any explanations take place with all the parties or their attorneys present or in a supplemental written report. When police officers come to a judge’s house with an affidavit in support of a search warrant, the best practice is for the judge to read the affidavit alone so that the officers cannot add to the facts or explain them, and the judge should decline any offer of additional information. A judge may discuss with the director of the local CASA program administrative issues such as the quality of CASA reports and the role of the advocates in court but must be careful not to discuss individual cases. California Judges Association Opinion 77 (2019).
- A judge may not display a rainbow flag or rainbow heart sticker on the bench or in the courtroom to communicate to individuals identifying as lesbian, gay, transgender, or queer that they are in a safe, affirming, and inclusive space. New York Opinion 2019-50.
- A judge who oversaw legislation that made West Virginia a right-to-work state while serving as a member of the House of Delegates must recuse himself from any challenge the right-to-work laws. West Virginia Opinion 2019-9.
- Court employees who are licensed members of the bar may in general volunteer their services to a pro bono publico service program even in a representative capacity, outside of regular hours of employment, but, before deciding whether to allow a court employee to provide pro bono services, a judicial officer should consider whether the court has a policy related to outside employment or volunteer work, the nature of the employee’s role with the court, the nature of the participation, whether the participation will lead to frequent disqualification of the judicial officer, and whether the participation may convey the impression that the employee is in a position to influence the judge or is expressing the judge’s views on pending or impending cases. Washington Opinion 2019-3.
- A judge may not permit an incoming law clerk to accept a salary advance from the law firm for which the law clerk will be working after the clerkship. Maryland Opinion Request 2019-14.
- A judge may serve on a governmental task force to address the impacts of closing a prison facility if its members represent a broad spectrum of interests and it will focus on planning for an orderly transition rather than fielding complaints. New York Opinion 2018-168.
- A judge may write a book about family law courts and the mental health issues sometimes associated with them, specifically, the “warning signs” that judges and litigants should be concerned about, and may promote the book as long as the judge does not use the prestige of office to promote the book and the judge, his judicial assistant, and members of his family do not sell the book to any member of the Bar. Florida Opinion 2019-18.
- With conditions, a judge who re-sentenced a person for a murder committed while the person was a juvenile may, after the person’s probation has ended, participate in a brief e-mail interview that will be published in the person’s memoir. Maryland Opinion Request 2019-13.
- A judge may teach or lecture part-time at a private law school and accept reasonable compensation. New York Opinion 2018-168.
- A judge may serve in leadership positions in bar associations, including as an officer, director, committee chair, or non-legal advisor to a local or national bar association. New York Opinion 2018-168.
- A judge may not serve as an officer of, on the board of directors of, or in any other leadership position in the Anti-Defamation League or the regional chapter of the Anti-Defamation League Pacific Northwest. A judge may participate in the ADL PNW No Place for Hate education campaign if the program’s content does not give the impression that the judge will not apply the law or has a bias or predisposition toward any question that he might be called upon to decide, but should not associate himself with the organization’s positions on public controversies, should disqualify himself from any litigation in which the ADL or ADL PNW is a party, is representing a party, or has participated as amici, and should disclose his affiliation with the ADL and consider recusing if an issue comes before him that involves a matter on which ADL has taken a public position by litigation, lobbying, or direct advocacy. Washington Opinion 2019-1.
- A judicial officer may donate an item to a charitable auction as long as her name or participation is not associated with the donated item, but may not donate a drinks and hor d’ouerves event in the new home she shares with her spouse. Her spouse may donate to the auction unless members of the legal community are aware that the donated gift or service features their shared residence or includes personal interaction with the judicial officer. Washington Opinion 2019-2.
- A close friend of a judge should not establish a charitable fund in the judge’s name to benefit animal rescue organizations, but guests at the judge’s birthday party may make a one-time donation to an organization in her honor with certain conditions. West Virginia Opinion 2019-10.
- A judge may receive payments from her former law firm pursuant to an agreement that pre-dated her appointment but must disclose the payments in any case involving the firm as long as the payments continue. West Virginia Opinion 2019-1.
- A magistrate judge should not open a pawn shop. West Virginia Opinion 2019-8.
- A judge’s spouse may act as a poll worker for a municipal election. West Virginia Opinion 2019-5.
- A judicial candidate may not use on his campaign materials a stock photograph of strangers with a banner that reads “Re-Elect Judge [Name] for Us!” New York Opinion 2019-53.
10 years ago this month:
- The Alabama Court of the Judiciary publicly reprimanded and censured a judge and suspended him from office for 90 days without pay for failing to recuse himself from a proceeding arising out of a voter fraud investigation involving his close relatives. In the Matter of Wiggins, Final Judgment (Alabama Court of the Judiciary July 30, 2009).
- Based on the recommendation of the Judicial Conduct Commission, the Alaska Supreme Court suspended a judge for 3 months without pay for passing a note to a state trooper who was a witness in a trial, a subsequent communication with the trooper about the note, his misstatement of his intention to distribute similar notes to both parties, and continuing to preside after he initially recused himself. In re Cummings, 211 P.3d 1136 (Alaska 2009).
- Based on a stipulation, the California Commission on Judicial Performance censured a former court commissioner for failing to decide numerous cases in a timely manner; the Commission also barred her from seeking or holding judicial office or accepting a position or an assignment as a judicial officer. In the Matter Concerning Dobbs, Decision and Order (California Commission on Judicial Performance July 15, 2009).
- Based on stipulated facts and conclusions of law, the Louisiana Supreme Court suspended a judge from office for 30 days without pay for suggesting that a petition for protection from abuse was inconsequential, suggesting approval of the infliction of severe corporal punishment on a child, and treating the petitioner in a condescending, demeaning, and impatient manner. In re Ellender, 16 So. 3d 351 (Louisiana 2009).
- The Michigan Supreme Court publicly censured a judge for inappropriate sexual drawings and comments directed toward female court employees. In re Servaas, 774 N.W.2d 46 (Michigan 2009).
- Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) failing to make timely deposits and to timely report and remit funds to the State Comptroller and (2) filing a small claims action in his own court, presiding over the case, and failing to transfer it to another court. In the Matter of Miclette, Determination (New York State Commission on Judicial Conduct July 1, 2009).
- Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) threatening to hold a litigant in contempt for not disclosing the address of the shelter where the litigant was residing and holding her attorney in contempt and (2) without the knowledge or consent of the parties, visiting a child he had ordered hospitalized for a mental evaluation. In the Matter of Singer, Determination (New York State Commission on Judicial Conduct July 1, 2009).
- Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for imposing fines that exceeded the amount authorized by law. In the Matter of Banks, Determination (New York State Commission on Judicial Conduct July 16, 2009).
- Based on stipulated facts, the Pennsylvania Court of Judicial Discipline suspended a judge for 4 months without pay for using his secretary and other judicial resources in the day-to-day operations of 16 properties he owned. In re Berry, 979 A.2d 991 (Pennsylvania Court of Judicial Discipline 2009).
- Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate for removing a statue from the yard of a member of his wife’s family and calling court employees while on interim suspension to try to obtain a continuance in a case to which he was not a party. In the Matter of Lucas, 681 S.E.2d 874 (South Carolina 2009).
- The Arizona Commission on Judicial Conduct publicly reprimanded a judge for entering an ex parte order in a criminal matter from which he had recused himself. Jantzen, Order (Arizona Commission on Judicial Conduct May 13, 2019).
- The Arizona Commission on Judicial Conduct publicly reprimanded a judge for, during a drug court hearing, saying, “sit on my lap if you want . . . no, no I take that back” to a female participant when she seemed confused about where to sit or stand when her case was called. Fell, Order (Arizona Commission on Judicial Conduct June 10, 2019).
- Based on a joint statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court suspended a judge without pay for 45 days for appointing an unqualified friend as trustee of a trust and personal representative of a related estate, failing to disclose the friendship and his financial relationship with the friend, and failing to respond promptly to evidence his friend was embezzling the funds. In the Matter of Freese, Per curiam opinion (Indiana Supreme Court June 4, 2019).
- Based on the findings, conclusions, and recommendation of the Commission on Judicial Disabilities, the Maryland Court of Appeals suspended a judge for 6 months without pay for (1) abdicating her duty to handle and process search warrant materials, as required by statute, and instructing a law clerk to destroy warrant materials and (2) failing to treat fellow judges and courthouse staff with dignity and respect, including repeatedly yelling at court clerks and judges, subjecting court clerks to line-ups when clerical mistakes were made, physically pushing a clerk, and repeatedly attempting to undermine the authority of the administrative judge. In the Matter of Russell, Opinion (Maryland Court of Appeals June 28, 2019). The Court conditioned the judge’s reinstatement on her undergoing emotional and behavioral assessment by a health care professional and completion of an approved course on judicial ethics.
- Adopting the findings of fact and conclusions of law of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge from office for (1) failing to disclose the extent of her relationship with a police detective who was a witness in a trial over which she presided; (2) failing to disclose the extent of her relationship with an attorney when the attorney or her law firm appeared in several cases over which the judge presided; (3) failing to immediately disqualify herself from her own divorce proceeding and destroying evidence; (4) making false statements (a) during court proceedings over which she presided, (b) to the Commission while under oath, and (c) while testifying at her deposition under oath in her divorce proceeding; (5) being persistently impatient, undignified, and discourteous to those appearing before her; (6) requiring her staff to perform personal tasks during work hours; (7) allowing her staff to work on her judicial campaign during work hours; and (8) improperly interrupting 2 depositions that she attended during her divorce proceeding; the Court also barred her from exercising the power of her office for 6 years without pay if she were to be elected or appointed to judicial office during that time. In re Brennan (Michigan Supreme Court June 19, 2019).
- Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, based on stipulations, the New Jersey Supreme Court publicly censured a former judge for directing that money from a municipal DWI fund be disbursed to him without the required pre-approval from his assignment judge; the Court also permanently barred him from judicial office and ordered that he pay restitution of $11,995.85 to the state. In the Matter of Corradino (New Jersey Supreme Court June 5, 2019).
- Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against a former judge; the Commission had received 2 complaints alleging that the judge had sexually harassed a woman and/or engaged in a sexual relationship with a woman employed by the county, which the judge denied. Sutherland, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct June 6, 2019).
- Based on a formal complaint, to which the judge stipulated, the Vermont Judicial Conduct Board publicly reprimanded a judge for, in small claims cases, issuing arrest warrants for judgment debtors without due process, financial disclosure hearings, or contempt hearings; setting “purge amounts” on the arrest warrants without a finding about the judgment debtor’s ability to pay; and continuing financial disclosure hearings on a rolling, on-going basis even after a judgment debtor’s present inability to pay had been demonstrated by sufficient evidence. In re Vance, Public reprimand with order (Vermont Judicial Conduct Board May 28, 2019).
20 years ago this month:
- By agreement, the Indiana Commission on Judicial Qualifications publicly admonished a judge for allowing an ex parte communication in his chambers between the judge presiding in a case and parties to the case, who were related to the chair of the county Republican Party. Public Admonition of Funke (Indiana Commission on Judicial Qualifications July 8, 1999).
- The North Carolina Supreme Court publicly censured a judge for entering a finding of not guilty to a traffic charge without hearing any sworn testimony or giving the state the opportunity to present evidence. In re Tucker, 516 S.E.2d 593 (North Carolina 1999).
- The North Dakota Supreme Court suspended a former judge from the practice of law for 6 month for harassing and stalking his ex-wife, engaging in conduct that showed disrespect for the courts, inserting his personal situation into proceedings in which he presided as a judge, and demonstrating a lack of dignity and courtesy to those appearing before him. In the Matter of Hoffman, 595 N.W.2d 592 (North Dakota 1999).
- The Washington Supreme Court removed a judge from office for (1) serving as president of 3 corporations included in an estate; (2) while an adjustment of the purchase price for one of the assets of the estate was being negotiated, accepting payments of his car loan from the purchaser and failing to disclose the payments to the trustee of the estate; and (3) failing to disclose the payment of the car loan on public disclosure forms. In the Matter of Anderson, 981 P.2d 426 (Washington 1999).
- The West Virginia Supreme Court of Appeals publicly reprimanded a magistrate for improperly delaying the filing of a domestic violence protective order by screening the facts through an ex parte communication and by deterring the individuals who sought the order from coming to the courthouse on a Saturday to file a petition. In the Matter of McCormick, 521 S.E.2d 792 (West Virginia 1999).
Judicial conduct commissions: Establishment and membership
Depending on the state, the judicial discipline agency is called a commission, board, council, court, or committee, with the appellation conduct, advisory, qualifications, discipline, disability, standards, tenure, fitness, inquiry, investigation, performance, removal, responsibility, retirement, review, judiciary, ethics, or fitness.
- In 32 states, the judicial conduct commission was established by the state constitution.
- In 10 jurisdictions, the commission was established by statute.
- In 9 states, the commission was established by supreme court rule.
Some commissions created by constitution also have implementing legislation.
In addition to establishing provisions, the commissions have procedural rules that set out their processes in more detail.
- In some states, the commission adopts its own rules. For example, the Florida constitution provides: “The [Judicial Qualifications Commission] shall adopt rules regulating its proceedings.”
- In other states, the state supreme court promulgates the rules for the commission. For example, the Alabama constitution provides: “The Supreme Court shall adopt rules governing the procedures of the [Judicial Inquiry Commission].”
Most commissions have 7, 9, or 11 members. In most states, the commission is comprised of judges, lawyers, and members that are neither judges nor attorneys, called public members, lay members, or citizen members.
- In 7 states, the commission has an equal number of judges, lawyers, and public members.
- In 5 states, judges comprise the majority of the members.
- In 9 states, the majority are public members.
- In Hawaii and New Jersey, there are no judge members (although in New Jersey, 3 members are retired judges).
- In West Virginia, there are no attorney members.
- In Utah, 4 members are state legislators.
In some states, the types of judges to be appointed are designated. For example, the Maryland constitution provides that 3 members of the 11-member Commission on Judicial Disabilities “shall be appointed from among the judges of the State, with one member representing the appellate courts, one member representing the circuit courts, and one member representing the District Court.”
Depending on the state and the category of membership, members are appointed by the supreme court, the chief justice, judges’ groups, the state bar, the governor, the attorney general, or members of the legislature.
- In 7 states, the judge members are chosen by the supreme court, the lawyer members by the state bar, and the public members by the governor.
- In 8 states, all members are chosen by the supreme court.
- In 3 states (Connecticut, Maryland, and Minnesota), all members are appointed by the governor.
- In Virginia, all members are appointed by the legislature.
In some states, some or all of the appointments by the supreme court or governor are subject to confirmation by or the consent of the senate. For example, the statute governing the Georgia Judicial Qualifications Commission provides: “The commission shall consist of ten members who shall be subject to confirmation by the Senate.”
In some states, there are provisions for an alternate to replace a member who is unable to participate in a proceeding.
- In some of those states, each member has a permanent alternate. For example, the provision for the Mississippi Commission on Judicial Performance states: “An alternate for each member shall be selected at the time and in the manner prescribed for initial appointments in each representative class to replace those members who might be disqualified or absent.”
- In other states, an alternate is only appointed as required. For example, the provision for the New Hampshire Committee on Judicial Conduct provides: “Whenever a member is disqualified from participating in a particular proceeding, or is unable to participate by reason of prolonged absence or physical or mental incapacity, the court, upon written request of the chair, may appoint an alternate to participate in any such proceeding or for the period of any such disability, any such alternate to have the same qualifications as those required for the selection of the member who is being replaced.”
The terms for commission members range from 3 years to 6 years.
- In some states, the number of terms a member can serve is limited. For example, the Virginia constitution provides: “No member of the [Judicial Inquiry and Review] Commission shall be eligible to serve more than two consecutive terms.”
- In other states, there is no term limit for commission members.
An individual’s membership can terminate before the end of their term when the member no longer meets the qualifications for the appointment. For example, the Maryland constitution provides:
A member’s membership automatically terminates: (1) When any member of the Commission on Judicial Disabilities appointed from among judges in the State ceases to be a judge; (2) When any member appointed from among those admitted to practice law becomes a judge; (3) When any member representing the public becomes a judge or is admitted to the practice of law in this State or has a financial relationship with or receives compensation from a judge or a person admitted to practice law in this State; or (4) When any member ceases to be a resident of the State.
A table on the Center for Judicial Ethics web-site shows how each state’s commission is established, the membership composition, who appoints the members, and the length of the members’ terms. The Center also has links on its web-site to the web-sites of the judicial conduct commissions.
25 years ago this month:
- The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge who had been arrested and charged with driving while intoxicated. Letter to Judge Taylor (Arkansas Judicial Discipline & Disability Commission July 18, 1994).
- Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a part-time judge for giving misleading testimony during a disciplinary committee investigation of his conduct as a lawyer. In the Matter of Barlaam, Determination (New York State Commission on Judicial Conduct July 27, 1994).
Willful ignorance, unreasonable credulity, and misappropriation
Two recent judicial discipline cases involved misappropriation of money – over $11,000 by a judge from a DWI fund in 1 case and over $265,000 by a judge’s friend from an estate in the second.
The New Jersey Supreme Court censured a former judge for directing that money from a municipal DWI fund be disbursed to himself without the required pre-approval from his assignment judge; the Court also permanently barred him from judicial office and ordered that he pay restitution of $11,995.85 to the state. In the Matter of Corradino (June 5, 2019). The Court’s order does not describe the judge’s misconduct; this summary is based on the presentment of the Advisory Committee on Judicial Conduct.
To help municipal courts promptly dispose of DWI matters, a state statute creates a fund to defray the costs of additional court sessions needed to expeditiously address pending and backlogged DWI cases. Acceptable expenditures include “payments to municipal court judges, municipal prosecutors and other municipal court personnel for work performed in addition to regular employment hours.” Guidelines require written approval from the assignment judge of the vicinage in which a municipality is located prior to any disbursements from the DWI fund.
From 2009 through 2013 and in 2015, the judge, without advising his assignment judge, verbally directed the township treasurer to disburse funds “mostly to himself and, for a few years, to the municipal prosecutor and other municipal court personnel.” The judge received between $647 to $3,001 from the DWI fund in each of those years.
The Committee noted that the judge “has asserted, at various times, inconsistent defenses,” for example, that he did not receive the annual memorandum about the DWI fund or the related guidelines, that he received them but failed to read them, and that he started reading but stopped because he “mistakenly believed he was already sufficiently educated.” The judge also claimed that “the checks and balances of the court system should have earlier detected and more explicitly alerted him to his procedural noncompliance. . . .” The Committee rejected those defenses.
The Committee also concluded that the judge’s “assertion that he would have been entitled to receive at least some of the DWI Fund monies if he had filled out the appropriate form is not supported by the evidence,” noting that there was no evidence that the judge held special sessions or that his court had a backlog requiring special sessions. The Committee also stated that the extra work the judge claimed he performed outside of court, such as legal research and drafting opinions, would not qualify as an acceptable expenditures from the DWI fund. “More importantly,” the Committee stated, the judge should not have “usurped” the assignment judge’s role in determining “what would qualify as a compensable event under the DWI Fund Guidelines.”
The Committee concluded that the judge’s “purported lack of willfulness or intentionality” was not a sufficient basis to withhold discipline.
Respondent, by virtue of his judicial office, was duty-bound to know and adhere his conduct to the rules and statutes that govern the municipal court, including the strictures pertaining to the operation of the DWI Fund and the attendant requirements for receipt of expenditures from same. . . . Willful ignorance of these strictures cannot reasonably serve as a defense to Respondent’s unauthorized receipt of state funds.
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Based on a joint statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court suspended a judge without pay for 45 days for appointing an unqualified friend as trustee of a trust and personal representative of a related estate, failing to disclose their friendship and financial relationship, and “failing to act promptly when faced with mounting evidence of the friend’s mismanagement and embezzlement of the funds entrusted to him.” In the Matter of Freese, Per curiam opinion (Indiana Supreme Court June 4, 2019).
The judge has known Stephen Scott since about 1990, having worked with him in the county prosecutor’s office where Scott supervised adult protective services. The judge lunched regularly with Scott and considered him one of his closest friends.
In 2004, Scott needed $122,400 to buy a home but had poor credit after a bankruptcy. The judge used his line of credit to lend Scott the funds. On January 13, 2005, they executed and recorded a mortgage in that amount, and Scott gave the judge a promissory note.
17 days later, the judge appointed Scott as trustee over the Herbert Hochreiter Living Trust. None of the parties objected; the judge never disclosed his financial arrangement with Scott.
Later in 2005, Hochreiter died, and an estate was opened with an estimated $2.3 million in real and personal property. On October 24, the judge appointed Scott as personal representative of the estate. None of the parties objected; the judge did not disclose his financial arrangement with Scott.
On June 12, 2007, when the estate had been pending for nearly 2 years, the judge advised Scott that a final report and accounting was due. Although the judge granted Scott’s request for a 180-day extension, Scott never filed a final report and accounting. Through 2009, Scott repeatedly disregarded the judge’s directives to file accountings in the 2 cases. In December 2009, Scott filed a partial, defective trust accounting and then sought an extension to January 29, 2010. The judge granted the extension over the objection of a beneficiary who was concerned that gold bars might be missing from the trust and that Scott had disregarded accounting requirements from the beginning.
In January 2010, Scott asked to withdraw as trustee. The beneficiaries objected to Scott resigning without submitting a complete accounting and filing tax returns and other legal documents. The judge gave Scott 30 days to respond to the objection.
Scott relocated to Florida and never responded.
The Court found that, from August 2010 through July 2012, the judge “had multiple indications of Scott’s poor performance: summonses sent to Scott were returned to sender;” Scott’s counsel reported that Scott was unresponsive and that the trust checking account contained only $8.27 and its savings account had been closed when it should have $50,000 to $60,000 in cash; and a beneficiary “filed a detailed objection and multiple rules to show cause or contempt citations against Scott.” The Court also found that the judge “‘took no action or minimal action’ on those reports.” The judge did leave Scott a phone message when Scott was living in Florida that stated “he was concerned that Scott was behaving bizarrely, and that he ‘would never have thought [Scott] would have stolen anything.’”
On July 31, 2012, when the cases had been pending nearly 7 years, the judge ordered Scott to appear in person and bring all financial records to a show cause hearing in September. The hearing was later rescheduled to November, but Scott failed to appear. The judge held him in contempt and found that he had permitted substantial amounts of money to be removed from the trust for non-trust purposes.
In January 2013, after a damages hearing, the judge entered judgment against Scott for nearly $580,000, finding that (1) between September 2007 and August 2011, there were disbursements totaling $140,550 from trust accounts to Scott’s personal accounts, plus another $101,217 in wire transfers or cash withdrawals not corresponding to legitimate disbursements and (2) in January 2010, $16,800 was transferred from estate accounts to Scott’s personal account, and the estate’s remaining bank balance of $6,517.08 was taken by unexplained cash withdrawal. The Court also held that the amounts directed to Scott’s accounts should be trebled as punitive damages, for a total judgment, including the remaining un-trebled sums, of $579,784.08.
The judge never referred those findings to the local prosecutor or to the U.S. Attorney. However, in 2017, Scott pleaded guilty to federal charges related to his embezzlement. The stolen funds remain unrecovered.
The Court noted that the judge’s misconduct was mostly negligent, not willful, and involved 1 case, not “systemic neglect.” However, it emphasized that the judge’s “misconduct ultimately enabled a massive theft.” It held that the judge violated the duty to make “appointments . . . impartially and on the basis of merit” because Scott “lacked fiduciary experience and had been bankrupt recently enough to have poor credit.” The Court noted that, although, “subjectively, the Judge trusted Scott, as his loan shows,” “objectively, Scott was utterly unqualified to be entrusted with a third party’s money; appointing him seems to have been driven by friendship, not merit.” In addition, the Court concluded, “that friendship clouded the Judge’s objectivity through seven years of warning signs—making him unreasonably credulous of, and lenient towards, Scott in the face of growing evidence of serious financial misconduct. If not for the Judge’s inaction, Scott’s theft likely could have been largely prevented.”