Recent cases

  • 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).

Throwback Thursday

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.

Throwback Thursday

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.

* * *
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.”