Private dispositions

Most judicial conduct commissions can dispose of a matter with a private sanction or informal resolution if there is evidence of misconduct, but the misconduct does not warrant a public sanction.  Depending on the state, these private dispositions are called:

  • Dismissals with caution, admonition, explanation, concern, or warning,
  • Letters of admonition, counsel, caution, advice, or correction, or
  • Private censures, reprimands, admonitions, or warnings.

Some states have more than one category of private disposition.

These types of remedies are usually used if:

  • The misconduct is a single, isolated act that is not likely to be repeated,
  • The misconduct did not involve dishonesty, deceit, fraud, or misrepresentation,
  • The misconduct did not substantially prejudice a litigant or other person,
  • The judge has acknowledged the misconduct and agreed to comply with the code in the future,
  • The judge has not previously been disciplined for the same misconduct, and
  • The judge has not recently been disciplined for other misconduct.

Failure to enter a timely ruling in 1 or 2 cases, for example, is a common subject for a private sanction or caution.

In an informal disposition, a commission:

  • Reminds the judge of ethical responsibilities,
  • Gives authoritative advice,
  • Expresses disapproval of the behavior,
  • Warns that further complaints may lead to more serious consequences,
  • Suggests that other actions would have been more appropriate in the situation,
  • Cautions the judge not to engage in specific behavior in the future, and
  • Recommends that the judge obtain counseling or education.

Although informal dispositions and private sanctions are confidential, several commissions publish on their web-sites redacted versions of dismissals with comment (Arizona), private reprimands (Kentucky), private warnings, admonitions, and reprimands (Texas), and private warnings (Vermont).

In addition, approximately 10 judicial conduct commissions include in their annual reports summaries of private resolutions in addition to statistics of complaint dispositions, descriptions of public cases, and explanations of commission procedures.

For example, in its recent annual report, the California Commission on Judicial Performance summarized the 11 private admonishments and 23 advisory letters that became final in 2018.  It explained that the summaries omit some facts to maintain confidentiality, which makes them “less informative than they otherwise might be,” but that, “because these summaries are intended in part to educate judges and the public, and to assist judges in avoiding inappropriate conduct, the commission believes it is better to describe the conduct in abbreviated form than to omit the summaries altogether.”

For example, the Commission privately admonished:

  • A judge who failed to diligently monitor social media associated with the judge’s name, disregarded court directives regarding the setting of hearings, inappropriately handled a business transaction on the court’s behalf, made undignified, overly personal remarks to a member of court staff, and had a private conversation with an attorney that created the appearance of impropriety.
  • A judge who accepted an improper gift from an attorney and failed to disclose the gift when the attorney appeared before the judge and failed to disclose or disqualify when another attorney with whom the judge had a personal relationship appeared.
  • A judge who made remarks that gave the appearance that the judge was trying to dissuade an attorney from filing a statement of disqualification for cause, reflected poor demeanor, and gave the appearance of bias and embroilment.
  • A judge who included gratuitous, inaccurate information about a litigant in a recusal order.
  • A judge who, on the record during proceedings, mentioned information received ex parte about one of the litigants without providing the litigant an opportunity to be heard; made gratuitous and discourteous remarks in open court; and described personal experiences on the record.

In privately cautioning a judge, the New Mexico Judicial Standards Commission makes no findings of wrongdoing but expresses its concern “that if true, the conduct may violate or may lead to a violation of the Code if not raised with the judge.”  According to its 2018 annual report, the Commission cautioned 6 judges, for example, a judge who allegedly failed to provide an interpreter for a Spanish-speaking defendant, a judge who allegedly made disparaging and/or condescending comments to an attorney, a judge who allegedly ruled based on a coin toss, and a judge who allegedly engaged in an ex parte communication with an assistant district attorney regarding scheduling without promptly notify defense counsel.

In addition, the Commission disposed of 3 inquiries through informal remedial measures.  For example, a judge who allegedly criticized a jury verdict in the presence of the jury successfully completed an informal mentorship and agreed to receive a letter of caution.

The Arizona Commission on Judicial Conduct typically includes advisory language with a dismissal “when a judge has not technically violated the Code but members believe the judge could benefit from advice about a particular Code-based issue.”  According to its annual report in 2018, the Commission privately advised 13 judges, for example:

  • To be cautious about clerks’ use of the judge’s signature stamp;
  • To avoid using terms of endearment with litigants; and
  • To ensure that all parties understand the judge’s policies for bench conferences to avoid the appearance that ex parte communications are occurring.

The Commission generally issues warnings when “a judge either came close to violating the Code or when a technical violation has occurred, but members conclude that mitigating circumstances dictate against issuance of a public sanction.”  In 2018, the Commission privately warned 12 judges, for example:

  • For making derogatory comments about an elected official during a court proceeding;
  • For improper demeanor, giving legal advice to litigants, and interrupting court business to conduct a wedding;
  • For using a court computer to access restricted file materials in a family member’s case with the family member’s consent;
  • For using the judicial title to further a personal business;
  • For seeking the endorsement of a law enforcement association for a re-election campaign and using a court computer for campaign activities; and
  • For issuing an order including facts not supported by the record.

The Pennsylvania Judicial Conduct Board issues a letter of counsel as a private admonition when there is sufficient evidence of judicial misconduct to file formal charges but mitigating or extenuating circumstances weigh against the filing of formal charges; a judge must accept a letter of counsel and appear before the Board’s Chief Counsel.  The Board issues a letter of caution as a private warning of potential judicial misconduct.  Its 2018 annual report includes examples of the type of conduct addressed by letters of caution, such as:

  • A judge became frustrated at a party’s in-court antics and failed to allow the party and party’s counsel to present a case.
  • A judge referred to a witness for the prosecution as a “liar” and otherwise attempted to cast doubt on the witness’ credibility throughout the jury charge.
  • In response to an unjustified complaint, a judge engaged in “petty retaliation” against a member of the judge’s office staff.
  • After recusing from several cases due to a prior relationship with a litigant, a judge selected his own replacement.
  • A judge routinely had lunch in public with attorneys who had matters pending before him.
  • A judge presided over a preliminary arraignment and preliminary hearings on criminal cases when the judge was Facebook friends with the victim, the victim’s mother, the victim’s grandparents, and the arresting officer.
  • A judge used inappropriate language when addressing a female defendant at her sentencing hearing.
  • While presiding over a sentencing hearing, a judge spoke about and in front of the defendant in a demeaning and inappropriately harsh manner.
  • While campaigning door-to-door, a judicial candidate accepted a $100 cash donation from a constituent.
  • A judge failed to secure proper coverage for his district court, failed to be available to police officers and his court clerks, repeatedly arrived late at court, and failed to train and supervise newly hired court clerks.

The 2018 annual report of the Minnesota Board on Judicial Standards gave a sample of the 4 private admonitions and 9 letters of caution it issued in 2018.  For example, a judge was privately admonished for serving during a hearing as the lawyer for the respondents, who were the judge’s relatives; making statements that, at a minimum, vouched for their character without being under subpoena; and testifying about the judge’s personal observations about the facts of the case.  The Board cautioned, for example, a referee who admitted referring to an attorney in court as “that sleazy attorney” and “that blood sucking attorney,” intending “to be humorous and put people at ease.”

 In its annual report, the New York State Commission on Judicial Conduct briefly described the 20 letters of dismissal and caution issued in 2018.  For example, the Commission cautioned judges for:

  • Failing to deposit court funds in a timely manner;
  • Serving as a board member for a group that regularly appeared in his court;
  • Engaging in isolated and relatively minor instances of unauthorized out-of-court communications with a party in a pending case;
  • Campaigning for a judicial and a non-judicial position simultaneously; and
  • Failing to record all court proceedings as required.

 The Texas State Commission on Judicial Conduct summarized private reprimands, admonishments, and warnings issued its annual report for fiscal year 2018.  For example, the Commission privately admonished:

  • A judge who discussed with his granddaughter’s previous employer her wish to be rehired and gave the employer a business card identifying him as a judge; and
  • A judge who, during a criminal trial, repeatedly interrupted a defense attorney during her examination of witnesses and tried to direct the form and substance of her questioning, and, after the defense attorney briefly stepped out of the courtroom, remarked in front of the jury that he would have preferred her to remain out of the courtroom.

The Colorado Commission on Judicial Discipline annual report for 2018 summarized the private sanctions and dismissals with concern issued by the Commission.  For example, the Commission privately censured a relatively new judge for docket and calendar mismanagement that resulted in burdensome caseloads on magistrates and other judges, for excessive absenteeism for extra-judicial activities, and for inappropriate demeanor with staff and judicial colleagues.  According to the report, “the disciplinary process proved to be a constructive measure that resulted in the improvement of the judge’s docket management and demeanor.”

In its annual report 2018, the Massachusetts Commission on Judicial Conduct described 2 complaints that were dismissed with expressions of concern following an investigation.  In 1 complaint, a self-represented party had alleged that a judge treated him discourteously and failed to grant him a full opportunity to be heard.  The investigation, which included reviewing the audio record of the hearing, reviewing the docket sheet, and interviewing the judge, “revealed that the judge did adopt a somewhat discourteous tone during the hearing” but did not reveal that the judge failed to grant the party a full opportunity to be heard.  Although it dismissed the complaint, the Commission expressed “its concern to the judge that, in the future, he remain patient and courteous toward all parties appearing before him.”  An investigation of an anonymous complaint revealed that a judge made comments directed at the parties that could have been reasonably perceived as discourteous and/or condescending; the Commission dismissed the complaint while expressing its concern to the judge regarding those comments.

According to its 2018 annual report, the Michigan Judicial Tenure Commission privately admonished, for example:

  • A judge who used her position to promote a novel she had written;
  • A judge who reacted very aggressively and engaged in a shouting match with a disrespectful defendant, using profanity and otherwise being intemperate;
  • A judge who twice called the officer in charge of a homicide case to advocate for the return of the defendants’ property;
  • A judge who called the sheriff’s department and ordered that his daughter be released from custody after she had been arrested after midnight for driving under the influence; and
  • A judge who in interviews sharply and disrespectfully criticized another judge’s sentence in a high-profile criminal case, after the sentencing but before the time to file a notice of appeal had expired.

There are tables that identify the private dispositions and public sanctions available in judicial discipline proceedings in each state on the Center for Judicial Ethics web-site.

Throwback Thursday

5 years ago this month:

  • Pursuant to a finding allowing for discretionary disclosure, the Arizona Commission on Judicial Conduct made public a letter privately warning a judge regarding his web-site and other self-promotional activity. Jayne, Order (Arizona Commission on Judicial Conduct August 22, 2014).
  • The Hawaii Supreme Court suspended a former judge from the practice of law for 120 days for altering 10 judicial determinations of probable cause documents. In the Matter of DesJardins (Hawaii Supreme Court August 21, 2014).
  • Based on an amended consent-to-discipline agreement, the Ohio Supreme Court publicly reprimanded a judge based on his arrest and no contest plea to charges of operating a motor vehicle under the influence of alcohol and impeding the roadway. Ohio State Bar Association v. Corrigan, 17 N.E.3d 553 (Ohio 2014).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge who had been convicted on charges that, in return for sexual contact, he gave 2 women money and/or other benefits for the handling and disposition of matters involving them. In the Matter of Ferguson, 762 S.E.2d 385 (South Carolina 2014).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) granting a receiver in a divorce case non-delegable judicial powers and (2) making a disproportionately high percentage of indigent court appointments to 1 attorney, contrary to the Texas Fair Defense Act and the county indigent defense plan; the Commission also ordered the judge to obtain 4 hours of instruction with a mentor judge. Public Admonition of Gonzalez (Texas State Commission on Judicial Conduct August 26, 2014).

 

Judicial Conduct Reporter

The summer issue of the Judicial Conduct Reporter has been published.  The issue has articles on:

  • Continuing jurisdiction over former judges
  • Marijuana and judicial ethics
  • Fund-raising for problem-solving courts
  • Recent cases
    • Willful ignorance, unreasonable credulity, and misappropriation (In the Matter of Corradino (New Jersey); In the Matter of Freese (Indiana))
    • Ex parte communications and independent investigation (Judicial Commission v. Piontek (Wisconson)

The Judicial Conduct Reporter is published electronically, and an index and current and past issues of the Reporter are available on-line.  Anyone can sign up to receive notice when a new issue is available.

 

 

Ex parte communications:  “Convenience, happenstance, and habit”

Based on a special committee report, the Judicial Council of the U.S. Court of Appeals for the 7th Circuit publicly admonished a judge of the U.S. District Court for the Central District of Illinois for his practice of exchanging ex parte communications with the U.S. Attorney’s Office.  In re Bruce, Memorandum (7th Circuit Judicial Council May 14, 2019).  The Council also ordered that the judge remain unassigned to any matters involving the Office until September 1, watch a Federal Judicial Center training video, and read excerpts of the Code of Conduct for U.S. Judges.

Before being appointed in 2013 to the U.S. District Court for the Central District of Illinois, the judge worked for 24 years in the U.S. Attorney’s Office in the Central District of Illinois and had “unsurprisingly” formed friendships with several people working in that office.  After being appointed, the judge remained friendly with many people in the office, including paralegal Lisa Hopps.

In December 2016, Hopps complained in an e-mail to the judge about his absence from a going-away party for U.S. Attorney Jim Lewis, and the judge responded that he had missed the party because he was presiding over the trial in U.S. v. Nixon.  The judge said one of the Assistant U.S. Attorneys in the case was “entirely inexperienced” and criticized that attorney for repeating “the bull***t” from the defendant’s testimony and turning a “slam-dunk” case into a “60-40” one for the defendant.  The judge mentioned his boredom and added that he “work[s] hard not to try” cases, which he testified referred to not acting as an advocate even when a case is being poorly tried.

In late 2017, Hopps shared these e-mails with Assistant U.S. Attorney Timothy Bass after the judge found that Bass had misled the court in a high profile criminal case in which the defendant was a former member of Congress.  Bass then notified other personnel in the U.S. Attorney’s Office about the e-mails, and the Office disclosed the e-mails to Nixon’s counsel.  Nixon filed a motion for a new trial based on the e-mails, which is still pending.

After a review, the U.S. Attorney’s Office discovered additional e-mails between the judge and members of the Office in other cases and disclosed the e-mails to the defense in those cases.  The Federal Defender in the Central District, whose office represented the defendants in many of the cases, filed a complaint.

In August 2018, the Illinois Times published an article titled, “Federal judge engaged in ex parte talk.”  Other news outlets also reported the story, and the “coverage and its aftermath prompted” the Chief Judge of the 7th Circuit to file a complaint and prompted the Central District’s Chief Judge to remove the judge from all cases involving the U.S. Attorney’s Office.

The special committee found that the judge frequently had ex parte communications with employees of the U.S. Attorney’s Office about requests for warrant approvals, draft plea agreements, jury instructions, docketing issues, scheduling matters, and criticisms of individual Assistant U.S. Attorneys.  The special committee also found that probation officers regularly contacted the judge directly and copied the Office but not defense counsel on those e-mails.  The committee also found that the judge occasionally had ex parte communications with the Office after he had entered judgment in a criminal case, for example, congratulating Assistant U.S. Attorneys when they prevailed on appeal in cases over which he had presided.  Most of the communications were by e-mail, but some were in person or over the phone.

Further, in addition to the Nixon-related e-mails, the committee found that the judge had communicated ex parte about a second pending trial with the U.S. Attorney’s Office.  After the judge and Assistant U.S. Attorney Elly Perison had a misunderstanding during a pretrial-conference about what documents had been filed in U.S. v. Gmoser, Peirson sent the judge a series of docket entries, copying his clerk and defense counsel.  In a private response, the judge stated, “My bad.  You’re doing fine.  Let’s get this thing done.”  During the hearing, the judge explained that his comment was only intended to comfort Peirson after the misunderstanding.  Disclosure of this e-mail  prompted a defense motion for a new trial, which remains pending.

The committee noted that there was no evidence that the judge’s ex parte communications with the U.S. Attorney’s Office “impacted any of his rulings or advantaged either party” or were on the merits of cases, with the exception of the Nixon-related and appeal-related e-mails.  The judge “admitted that some of his communications were flatly inappropriate and others were unwise.”  However, he initially claimed that the e-mails about scheduling and other ministerial matters were not objectionable, arguing that ex parte communications about minor matters were “‘permissible for the efficient operation of the court,’” were the “default,” and were part of the “culture” of the courthouse that went back at least to his predecessor as district judge.

However, although the code allows an ex parte communication for scheduling “when circumstances require it,” the special committee emphasized that, “’when circumstances require it’ is key.  As Judge Bruce now concedes, the majority of his ex parte communications did not ‘require’ the exclusion of defense counsel; they were often a matter of simple convenience, happenstance, and habit.”  The committee acknowledged that “certain circumstances will require ex parte communications, including genuine emergencies and emails relating to warrant applications,” but stated that no good reason had been provided why defense counsel should not have been included in “the routine scheduling and ministerial discussions” the judge had had with the Office and that the communications violated the code even if the practice was attributable to courthouse culture.

The special committee disagreed with the judge’s argument that his sanction should be private, concluding that a public response was required given the “public criticism of Judge Bruce’s ex parte communications, found in news reports and defense motions for new trials.”  The committee stated that “the public heeds the judiciary’s decisions on the belief that it operates independently and with integrity, and this case suggests that such belief in Judge Bruce’s work on cases involving the Office may have waned.”

However, the committee also emphasized that it was not condemning the judge’s “ongoing friendships with members of the Office.  Such relationships are normal, . . . and there is ample guidance on when recusal or disqualification based on friendship is appropriate . . . .  The bottom line is that a judge’s closeness to individuals having cases before him simply does not excuse ex parte communications prohibited by judicial norms and the Code of Conduct.”  Although the committee noted that “some interviewees expressed a concern that Judge Bruce remained too friendly with members of the Office,” it concluded that “no evidence suggested that Judge Bruce had an inappropriate relationship with anyone at the Office.”

 

Throwback Thursday

10 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a former judge for failing, while he was presiding judge, to take sufficient action to ensure that a court commissioner was deciding all of her cases in a timely manner and failing to promptly respond to complaints about the commissioner’s delays. In the Matter Concerning Schnider, Decision and Order (California Commission on Judicial Performance August 31, 2009).
  • Modifying the recommendation of the Commission on Judicial Qualifications based on the judge’s consent, the Nebraska Supreme Court suspended a judge for 4 months without pay for (1) improperly involving himself in a criminal case against his nephew by personally requesting the prosecutor to keep a plea agreement open, telephoning and meeting with the nephew’s attorney, and having an ex parte communication with another judge concerning the case; and (2) using expletives during a private conversation with a prosecutor concerning the scheduling of a case, stating that the defendant should have been “hammered” with other felony charges, and leaving a profane and threatening message on the prosecutor’s telephone. In re Complaint against Marcuzzo, 770 N.W.2d 591 (Nebraska 2009).
  • Based on the judge’s acceptance, the North Carolina Judicial Standards Commission publicly reprimanded a judge for ordering a woman to show cause why she should not be held in criminal contempt of court for distributing political flyers alleging the judge was corrupt. Public Reprimand of Bridges (North Carolina Judicial Standards Commission August 24, 2009).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for taking 8 months to decide a petition to restore custody of a child to the child’s mother. In re Rich (Tennessee Court of the Judiciary August 26, 2009).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for having an affair with a court employee. In the Matter of Mamiya, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct August 7, 2009).

 

Recent cases

  • The California Commission on Judicial Performance publicly admonished a judge for failing to timely act in 3 family law cases and signing 2 false salary affidavits.  In the Matter Concerning Lamb, Decision and order (California Commission on Judicial Performance July 2, 2019).
  • Based on stipulated facts, the Mississippi Supreme Court suspended a judge for 30 days without pay, publicly reprimanded him, and fined him $500 for contacting sheriff’s investigators in 2 cases and remanding the charge to file in 1 of the cases.  Commission on Judicial Performance v. Sutton (Mississippi Supreme Court July 19, 2019).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for ordering a landlord jailed for contempt without following the law; the judge also agreed to complete a course at the National Judicial College.  In the Matter of Jasperson, Stipulation and order of consent (Nevada Commission on Judicial Discipline July 23, 2019).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for failing for over 15 months to appoint a prosecutor pro tem for or recuse himself from a criminal matter against a justice of the peace who was his friend and with whom he had a business relationship.  Public Warning of Turcotte (Texas State Commission on Judicial Conduct July 16, 2019).\
  • The Texas State Commission on Judicial Conduct publicly warned a judge for failing to maintain her Texas law license in good standing 5 times from 1992 through 2018.  Public Warning of Guaderrama (Texas State Commission on Judicial Conduct July 16, 2019).
  • Based on the findings and recommendation of a judicial conduct panel, the Wisconsin Supreme Court suspended a former judge for 3 years from eligibility for appointment as a reserve municipal court judge for a “pattern of obsessive conduct about whether [the court manager] liked him as a friend” and actions that were meant to intimidate her or to retaliate against her for reporting his conduct.  Judicial Commission v. Kachinsky (Wisconsin Supreme Court July 9, 2019).
  • Based on a special committee report, the Judicial Council of the U.S. Court of Appeals for the 7th Circuit publicly admonished a judge for his practice of ex parte communications with the U.S. Attorney’s Office; the Council also ordered that the judge remain unassigned to any matters involving U.S. Attorney’s Office until September 1, watch a Federal Judicial Center training video, and read the excerpts of the Code of Conduct that are part of the training.  In re Bruce, Memorandum (7th Circuit Judicial Council May 14, 2019).

 

Throwback Thursday

20 years ago this month:

  • Pursuant to a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for granting a petition for habeas corpus that raised issues of law related to another court’s order even though he knew that the prosecutor had not been notified. In the Matter of Johnson, 715 N.E.2d 370 (Indiana 1999).
  • Affirming the recommendation of the Court of the Judiciary, the Tennessee Supreme Court suspended a part-time non-lawyer judge for (1) using an inmate from the county jail to work on a house being built for the judge’s son; (2) trying a felony offense when he knew or should have known that his court did not have jurisdiction over felony offenses; and (3) falsely answering interrogatories and testifying about his assets in a federal court proceeding in which a judgement had been entered against him. In re Williams, 987 S.W.2d 837 (Tennessee 1998).