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.

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