Monthly Archives: September 2019

Throwback Thursday

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5 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Conduct, the Alaska Supreme Court suspended a judge for 45 days without pay for failing to timely decide 3 matters and signing 16 pay affidavits when matters had been pending for more than 6 months.  In re Estelle, 336 P.3d 692 (Alaska 2014).
  • Adopting the recommendation of the Commission on Judicial Conduct, the Arizona Supreme Court removed a judge and barred him from judicial office for failing to effectively oversee court administration, inefficient and ineffective calendar and court management, prohibiting the training of clerk/staff, creating a hostile work environment, poor demeanor, lack of professionalism and decorum, questionable judgment, and racially discriminatory or offensive remarks.  Inquiry Concerning Sulley, Order (Arizona Supreme Court September 23, 2014).
  • Pursuant to the judge’s agreement, the Arkansas Commission on Judicial Discipline and Disability issued a letter of informal adjustment to a judge for his $525 contribution to the campaign of a candidate for the State House of Representatives.  Letter of Informal Adjustment to Bourne (Arkansas Commission on Judicial Discipline and Disability September 19, 2014).
  • Based on a “report not contested” filed by the Judicial Discipline and Disability Commission, the Arkansas Supreme Court removed a judge from office for (1) on a public, on-line fan-site, posting comments regarding the closed adoption of a famous actress; making inappropriate statements about official duties, pending cases, and independent investigations; and making inappropriate gender, race, and sexually related statements; (2) spoliation of evidence; and (3) involvement in a hot check case in which he was the victim.  Judicial Discipline and Disability Commission v. Maggio, 440 S.W.3d 333 (Arkansas 2014).
  • Based on a stipulation for discipline by consent, the California Commission on Judicial Performance publicly censured a judge for (1) engaging in sexual activity in his chambers on multiple occasions with 2 women; (2) initiating contact with the district attorney’s office about the employment application of one of the women, asking questions about the interview and hiring processes, and expressing irritation that his recommendation had not resulted in her hiring; (3) after disqualifying himself from cases in which the second women appeared, re-assigning her cases to other judges; and (4) failing to disqualify himself from a case in which a close friend was an attorney.  In the Matter Concerning Steiner, Decision and order (California Commission on Judicial Performance September 2, 2014).
  • Based on a stipulation for discipline by consent, the California Commission on Judicial Performance publicly censured a judge for engaging in sexual intercourse in the courthouse with a courtroom clerk, exchanging communications of a sexual nature with her during court proceedings, and misleading court administration and his superior judicial officers in an effort to prevent the clerk’s reassignment.  In the Matter Concerning Woodward, Decision and order (California Commission on Judicial Performance September 2, 2014).
  • Based on the application of the Commission on Judicial Qualifications, the Iowa Supreme Court suspended a judge for 30 days without pay for appearing at the courthouse in an intoxicated state and unable to perform scheduled judicial duties.  In the Matter of Dean, 855 N.W.2d 186 (Iowa 2014).
  • Accepting the recommendation of the Judicial Tenure Commission based on a settlement agreement, the Michigan Supreme Court publicly censured a judge and suspended her for 30 days for taking the bench at 11 a.m. on 5 days on which matters were scheduled for 9, 9:30, or 10.  In re Gibson, 852 N.W.2d 891 (Michigan 2014).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for being or appearing to be intoxicated while performing his duties and related misconduct; the judge agreed to complete a course at the National Judicial Conduct on co-occurring disorders, to continue counseling, and to attend Alcohol Anonymous at least once a week.  In the Matter of Fletcher, Stipulation and order (Nevada Commission on Judicial Discipline September 27, 2014).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a former judge for (1) failing to timely sign orders, renditions, and findings of fact in 4 divorce cases and (2) dismissing for want of prosecution 600 divorce cases without notice or a hearing, including active cases awaiting trial or the judge’s signature on final orders and cases from which she had already been recused.  Public Reprimand of Pratt (Texas State Commission on Judicial Conduct September 4, 2014).

 

Repeated failure to address and decide issues

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For the second time in 2019, a judge, or in the second case a former judge, has been disciplined for mishandling an estate case.  The first sanction was imposed on a judge who appointed an unqualified friend as a trustee and personal representative in a case without disclosing their friendship and financial relationship and failed to respond promptly to evidence of his friend’s mismanagement and embezzlement.  In the Matter of Freese, 123 N.E.3d 683 (Indiana 2019).  That case was discussed in the post, “Willful ignorance, unreasonable credulity, and misappropriation” published on July 2.

More recently, based on stipulated facts and conclusions of law, the Vermont Judicial Conduct Board publicly reprimanded a former judge for failing in a probate case to complete all hearings as noticed, to follow-up and enforce orders, or to hold the guardian accountable.  In re Lewis, Public reprimand (Vermont Judicial Conduct Board September 6, 2019).

In February 2010, the judge appointed 1 of 5 siblings as the financial and medical guardian for their mother, who had dementia.  The estate was valued at $2,433,058, with significant real estate holdings, personal property, and accounts in 10 financial institutions.

The guardian filed each annual accounting late, and 3 of his siblings objected to each accounting, noting that the guardian was paying himself prior to filing.

In September 2016, following numerous hearings, 3 of the siblings filed a 67(b) notice and a motion for contempt.  (Rule 67(b) provides for proceedings “when it appears to the court that a fiduciary has failed to comply with procedures required by law or court rule, or that the estate is not being promptly and properly administered . . . .”)  In a hearing, the judge stated that he may have “been too permissive about allowing things to go on” and expressed his displeasure and frustration with the guardian’s failure to comply with his orders and apparent inability do what he told him to do.  However, the judge did not take any action but encouraged the parties to engage in mediation.

In March 2018, the parties reported that the mediation had not been successful.  The judge entered an order “taken in large part” from a document submitted by the attorney for the 3 siblings in September 2016.  The judge had had all of the evidence about the guardian’s failures by August 25, 2016, at which time there had already been over 5 years of complaints about the guardian’s accounting and behavior.  By 2018, the guardian had paid himself over $250,000.

The stipulation concluded that the judge had not done “everything a Judge should and could have done to dispose of the matters before the Court promptly, efficiently, and fairly.”  The reprimand stated that the judge’s “repeated failure to address and decide issues” related to the guardian’s conduct caused the other siblings “to incur significant attorney fees and resulted in inefficient use of both parties’ and the Court’s resources . . . .”  The Board emphasized the judge’s “chronic failure to hold the guardian accountable for his actions . . . while allowing him to pay himself enormous amounts of money over 7½ years, despite repeated filings that brought such issues to the Court’s attention . . . .”  The Board noted that the facts suggest, although not conclusively, that the judge’s failure to dispose of the matter “promptly, efficiently and fairly may have also resulted in the unnecessary depletion of assets to the detriment of [the siblings].”

Throwback Thursday

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10 years ago this month:

  • The Minnesota Supreme Court publicly censured a judge and suspended him from office without pay for 6 months for negotiating and obtaining a substantial fee reduction from his personal attorney while contemporaneously appointing her to provide mediation or related services in matters pending before him, at the litigants’ expense, without informing them that the attorney had represented him in his divorce.  Inquiry into Blakely, 772 N.W.2d 516 (Minnesota 2009).
  • Approving a joint motion for approval of the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge for an 11-month delay in deciding a motion for summary judgment in 1 case.  Commission on Judicial Performance v. Agin, 17 So. 3d 578 (Mississippi 2009).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, based on stipulations, the New Jersey Supreme Court publicly reprimanded a judge for, during a video arraignment, engaging with the defendant in an adversarial manner and then imposing a 180-day jail sentence for contempt in the face of the court without allowing him the opportunity to respond or entering the appropriate order.  In the Matter of Toth (New Jersey Supreme Court September 14, 2009).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for failing to deposit, report, and remit court funds within the time required by law.  In the Matter of Carver, Determination (New York State Commission on Judicial Conduct September 30, 2009).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for failing to notify the Department of Motor Vehicles to order the suspension of the driver’s licenses of 43 defendants who failed to appear or answer in the judge’s court, failing to certify to the DMV that he had convicted 16 defendants of traffic law violations, failing to report and remit to the state comptroller fines and fees in 20 vehicle and traffic cases, and failing to record and issue fine and fee receipts to defendants in 7 cases.  In the Matter of Trickler, Determination (New York State Commission on Judicial Conduct September 30, 2009).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) failing to ensure that his court staff was properly trained and adequately supervised, which resulted in long delays, poor customer service, rude and discourteous demeanor, and errors in numerous cases and (2) failing to obtain required judicial education.  Public Admonition of Jones (Texas State Commission on Judicial Conduct September 9, 2009).

 

A sampling of recent judicial ethics advisory opinions

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  • A judge may not communicate ex parte with a county attorney about an arrestee’s criminal record for the purpose of setting an appearance bond when the courts are closed over the weekend and holidays.  Nebraska Opinion 2019-1.
  • A judge is not disqualified from a criminal matter because the defendant, a self-identified sovereign citizen, is attempting to file a fraudulent lien against her and has threatened to accuse her of treason if she does not protect what the defendant perceives as his rights.  New York Opinion 2019-81.
  • A judge is not disqualified from a criminal trial in which the state’s witness was the petitioner and the defendant was the respondent in a prior protective order proceeding over which the judge presided.  Maryland Opinion Request 2019-22.
  • A judge may wear a judicial robe while attending a retirement ceremony for another judge held in a courtroom.  Virginia Opinion 2019-2.
  • A judge may not provide a reference for a former law clerk or any attorney on the attorney rating web-site Avvo.  Maryland Opinion Request 2019-24.
  • A town court justice may not meet privately with the town comptroller and town board members to explain an apparent decrease in revenue generated by the court but may explain the amount of fines and fees collected and the court’s budgetary needs at a board meeting or public forum.  New York Opinion 2019-63.
  • An appellate judge with administrative or supervisory responsibilities who concludes that a trial court judge contacted the judges participating in an appeal to attempt to influence the outcome of the case must ensure that the incident is reported to the State Commission on Judicial Conduct and must direct that the improper communication be disclosed to appellate counsel in the case.  New York Opinion 2018-157.
  • Magistrate judges should not host a radio talk show on sports law, new laws, amendments to existing laws, opinions from the Supreme Court, and court procedures even if they would not be paid; the show will be taped and edited, not live; the judges will control the topics and narratives; and the judges will not take questions from callers.  South Carolina Opinion 10-2019.
  • A judge may serve as executor/trustee of a friend’s will/trust and as guardian of the friend’s child if the friend and the judge have a long and involved relationship that appears to be more than a mere friendship and is more akin to a close familial relationship.  Washington Opinion 2019-4.
  • With conditions, a judge’s spouse may volunteer as a court-appointed special advocate in the judicial district in which the judge presides and advocate on behalf of children in the juvenile court system and domestic violence protection order cases in which the judge is not presiding.  Wyoming Opinion 2019-1.
  • A judge may be the plenary speaker at a non-fund-raising event sponsored by a not-for-profit homelessness services network and speak about religious and spiritual issues, mental illness, drug and alcohol addiction, and progress in community responses to homelessness if the judge will not address funding or government support for the homeless.  New York Opinion 2019-73.
  • A judge may serve as officer or director of a bar foundation that provides financial aid to attorneys in personal and professional crisis and may, unless the attorney asks the judge to recuse himself, preside in matters involving attorneys receiving assistance if the judge’s contacts with the attorneys are relatively minimal and occur exclusively through a liaison who presents the case to the board.  New York Opinion 2019-55.
  • A judicial officer may attend, at no cost for him and his guest, a private testimonial dinner in honor of his retirement from the executive committee of an Inn of Court after nearly 20 years, but the judge must report the total cost of their meals.  A judge may allow the Inn of Court to establish a student achievement award in his name and may accept a framed commemoration of the award.  California Opinion Summary 2019-30.
  • A judge may not present an award to a friend being recognized as a community leader at a fund-raising event for a non-profit civic organization.  Florida Opinion 2019-20.
  • A judge may contribute to a local historical society that is raising funds for a portrait of a former mayor who remains active in local government.  Florida Opinion 2019-21.
  • A judicial candidate is not obligated to disavow a misstatement about an opponent by a third-party or PAC unless the misstatement involves a substantive, significant fact and not an opinion, the misstatement must be false or a material misrepresentation, and the candidate knows about the statement and its falsity.  The obligation to disavow is met by the timely issuance of a press release to all area news media and a prompt letter notifying the third party or PAC it to immediately stop running the statement.  West Virginia Opinion 2019-15.

 

 

Throwback Thursday

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20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for driving while intoxicated.  Letter to Munson from the Arkansas Judicial Discipline & Disability Commission (September 23, 1999).
  • The California Commission on Judicial Performance publicly admonished a judge for banning a case coordinator from her courtroom, her chambers, and the hallway and prohibiting the coordinator from communicating with her or her staff. Inquiry Concerning Brown, Decision and Order Imposing Public Admonishment (California Commission on Judicial Performance September 1, 1999).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded the judge for inadvertently issuing an order in a case in which his former daughter-in-law was the defendant and his son was the complainant and for executing warrants for the arrest of his former daughter-in-law based on his son’s affidavit.  Inquiry Concerning Brown, 748 So. 2d 960 (Florida 1999).
  • Approving a statement of circumstances and conditional agreement in bar discipline proceedings, the Indiana Supreme Court publicly reprimanded a former judge for failing to recuse from a criminal proceeding against his son and ordering his son’s release from jail following his arrest.  In the Matter of Van Rider, 715 N.E.2d 402 (Indiana 1999).
  • Approving a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court suspended a judge for 3 days without pay for entering an ex parte temporary restraining order without certification that notice had been given notice to the other side or what efforts had made to give notice or why notice was not required.  In the Matter of Jacobi, 715 N.E.2d 873 (Indiana 1999).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished who judge had, during a case in which a 16-year-old defendant was charged with disorderly conduct at a high school, referred to the principal as a “b***h” and a teacher as an “a**” and said the teacher “was the same one that my kid had a problem with a couple of years ago.”  In the Matter of Taggart, Determination (New York State Commission on Judicial Conduct September 15, 1999).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who, in 52 traffic cases, set bail after the defendants pleaded not guilty during the initial court appearance without inquiring into the factors a statute required a judge to consider and in an amount that matched the subsequent fine and surcharge, using the bail amount to secure payment of the fine and surcharge.  In the Matter of Muskopf, Determination (New York State Commission on Judicial Conduct September 16, 1999).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who had failed to disclose to the defendant in a small claims case that he had recently had his car repaired by the plaintiff body shop even though the quality of the repairs to the defendant’s vehicle was an issue in the case and going to the defendant’s home and requesting that she give him a new check made out to the body shop when the defendant made an error in writing a check for the judgement.  In the Matter of Grems, Determination (New York State Commission on Judicial Conduct September 15, 1999).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for being a guest of honor with members of his family at a dinner dance that benefited a Catholic schools foundation.  In the Matter of Paris, Determination (New York State Commission on Judicial Conduct September 16, 1999).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for making statements about abortion while running for another judicial office.  In the Matter of LaCava, Determination (New York State Commission on Judicial Conduct September 16, 1999).

 

Recent cases

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  • The Alabama Court of the Judiciary accepted an agreement and stipulation in which a former judge agreed to never again seek judicial office in the state and to pay over $2300 in costs and the Judicial Investigation Commission agreed to dismiss 1 count of its complaint against him; the parties stipulated that, while he was involved in a romantic relationship with an attorney, the judge had (1) appointed the attorney to cases, taken judicial action in cases in which she was attorney of record, and entered attorney’s fees declaration orders for her benefit and (2) gained access to courtroom surveillance footage to advance their private interests.  In the Matter of Kaminski, Final judgment (Alabama Court of the Judiciary August 6, 2019).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for dereliction of duty based on an operational review conducted by the Administrative Office of the Courts, which referred the matter to the Commission.  Martinez, Order (Arizona Commission on Judicial Conduct August 13, 2019).
  • The investigative panel of the Georgia Judicial Qualifications Commission reported that its investigation of a magistrate who was under criminal investigation for a crime of moral turpitude had been disposed of with his resignation.  In re Hrabovsky, Report of disposition (Georgia Judicial Qualifications Commission July 17, 2019).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge; a formal complaint alleged that the judge had signed an arrest warrant for a husband and a stay-away order of protection on behalf of a wife even though the judge was representing the wife in a divorce action and had assisted the wife file a family offense petition against the husband based on the same incident and then continued to represent the wife for almost a year after signing the warrant and the order of protection in the related criminal case.  In the Matter of Katz, Decision and Order (New York State Commission on Judicial Conduct August 9, 2019).
  • Accepting the findings of fact and conclusions of law of the Board of Professional Conduct, which were based on stipulations of fact, misconduct, and aggravating and mitigating factors, and agreeing with its recommended sanction, the Ohio Supreme Court suspended a former judge’s license to practice law for 1 year, with 6 months stayed and credit for time served under an interim suspension, for (1) his conviction on crimes related to his failure to disclose on his annual financial disclosure statements his ownership interest in an LLC that owned an office building; (2) failing to disqualify himself from cases in which several tenants in the office building appeared as counsel; (3) making derogatory statements about proposed legislation and its sponsors in a letter on official court stationery to state representatives; (4) making improper comments from the bench; (5) talking ex parte to a defendant after he had pleaded guilty; (6) refusing to apply controlling precedent in a criminal trial; and (7) conducting a hearing in Spanish rather than appointing an interpreter.  Disciplinary Counsel v. Burge (Ohio Supreme Court August 13, 2019).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for closing his courtroom and draping black fabric over the door to protest the confirmation of Justice Brett Kavanaugh to the U.S. Supreme Court.  Public Admonition of Lipscombe (Texas State Commission on Judicial Conduct August 8, 2019).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for refusing to allow a litigant to review and copy the charging documents in his case until he entered a plea and for her policy and practice regarding access to court’s files; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Baggett and Order of Additional Education (Texas State Commission on Judicial Conduct August 8, 2019).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for invoking her judicial position during a telephone conversation with a man she believed was the estranged husband of a woman she believed was cohabitating with her estranged husband; the Commission also ordered that she receive 2 hours of instruction with a mentor.  Public Admonition of Rocha and Order of Additional Education (Texas State Commission on Judicial Conduct August 26, 2019).
  • The Texas State Commission on Judicial Conduct publicly admonished a former judge for telling a woman that she should wait to file her complaint until he had an opportunity to discuss the case with the defendant, whom he knew, and failing to timely issue a citation.  Public Admonition of Crouch (Texas State Commission on Judicial Conduct August 8, 2019).
  • The Texas State Commission on Judicial Conduct publicly admonished 11 judges or former judges from the same district court for instructing hearing officers not to issue personal recognizance bonds in any cases and to strictly follow a bail schedule, contrary to the authority provided to the hearing officers by statute; the judges reportedly will request review.  Public Admonition of Barr (Texas State Commission on Judicial Conduct August 26, 2019); Public Admonition of Ritchie (Texas State Commission on Judicial Conduct August 26, 2019); Public Admonition of McSpadden (Texas State Commission on Judicial Conduct August 26, 2019); Public Admonition of Brown (Texas State Commission on Judicial Conduct August 26, 2019); Public Admonition of Cabaniss (Texas State Commission on Judicial Conduct August 26, 2019); Public Admonition of Collins (Texas State Commission on Judicial Conduct August 26, 2019); Public Admonition of Ellis (Texas State Commission on Judicial Conduct August 26, 2019); Public Admonition of Evans (Texas State Commission on Judicial Conduct August 26, 2019); Public Admonition of Jones (Texas State Commission on Judicial Conduct August 26, 2019); Public Admonition of Powell (Texas State Commission on Judicial Conduct August 26, 2019); Public Admonition of Wallace (Texas State Commission on Judicial Conduct August 26, 2019).
  • Pursuant to a stipulation, the Vermont Judicial Conduct Board publicly reprimanded a judge for directly asking attorneys, including attorneys who appeared before him, to be part of his campaign committee; the judge also agreed to participate in a mentoring program.  In re Glennon, Public reprimand with order (Vermont Judicial Conduct Board August 28, 2019).

 

 

Throwback Thursday

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25 years ago this month:

  • The Arizona Supreme Court suspended a judge until the end of her term for signing an order releasing her boyfriend from jail following his arrest on suspicion of domestic violence, criminal trespass, and disorderly conduct after she had called the police.  In re Jett, 882 P.2d 426 (Arizona 1994).
  • Modifying an order of the Judicial Retirement and Removal Commission, the Kentucky Supreme Court publicly reprimanded a former judge for a misrepresentation made in a campaign advertisement and for failing to assess fines, court costs, and DUI service fees as required by statute.  Doyle v. Judicial Retirement and Removal Commission, 885 S.W.2d 917 (Kentucky 1994).
  • The New York State Commission on Judicial Conduct publicly censured a part-time judge who had become involved as a judge in a matter in his court that involved a current client in a matter in another court, had represented a client in a case that had originated in his court, and had appeared before another part-time lawyer judge of the same county.  In re Sack, Determination (New York State Commission on Judicial Conduct September 29, 1994).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge who, in 8 incidents over 2 years, acted as a police officer, stopping motorists who were driving improperly and, in most cases, identifying himself as a judge.  In the Matter of Rones, Determination (New York State Commission on Judicial Conduct September 30, 1994).

Relationship disclosure

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Although a judge is not automatically disqualified from a case involving a social acquaintance, a judge’s duty to disclose a relationship is triggered by ties far short of blood or marriage and far more often than some judges may think, as several recent judicial discipline cases illustrate.

In In re Brennan, 929 N.W.2d 290  (Michigan 2019), the Michigan Supreme Court removed a judge for, in addition to other misconduct, failing to disclose her close, personal relationships (1) with a police detective who was a witness in a murder case over which she was presiding; and (2) with an attorney when the attorney or her law firm appeared in cases over which the judge presided.

In the discipline proceeding, the master had concluded that the judge had a romantic relationship with the detective before and during a murder trial in which he was a witness.  The Court adopted the Judicial Tenure Commission’s conclusion that, regardless whether the judge’s relationship with the detective was romantic, it was “a very close, personal relationship” that required the judge “at a minimum” to disclose the facts so that the parties could determine whether to move for disqualification.  The judge had failed to disclose that:

  • She had socialized with the detective, allowed him to use her cottage, and had him as a guest at her home for dinner,
  • Her husband sometimes gave the detective his University of Michigan football season tickets at her urging,
  • She had told a member of her staff that the detective had persuaded her of the defendant’s guilt before the case was assigned to her in March 2009,
  • She and the detective had had more than 1500 social telephone calls between July 2008 and the start of the trial in January 2013,
  • She had talked on the phone with the detective for 1-2 hours every month in the year or so before the trial, and
  • She had exchanged approximately 400 texts with the detective from 2010 until the start of the trial.

In addition, the judge failed to disclose her close, personal relationship with Shari Pollesch in 5 cases in which Pollesch appeared as counsel and 5 cases in which attorneys from Pollesch’s firm appeared; the judge also denied 2 motions for disqualification based on her relationship with Pollesch.  The judge had failed to disclose that:

  • She considered Pollesch one of her best friends, and they had known each other for about 25 years,
  • She and Pollesch took ski trips together, participated in a book club, took walks during lunch, and were guests at each other’s cottages,
  • She provided her home for Pollesch’s wedding,
  • Pollesch provided legal services to the judge’s husband’s business, to the judge’s husband personally, and to the judge’s sister, and
  • Pollesch was one of 3 friends who had submitted statements to the Commission on the judge’s behalf in 2009.

* * *
In Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019), the California Commission on Judicial Performance publicly censured a former judge and barred him from holding judicial office for, in addition to other misconduct, (1) ordering defendants to use an alcohol monitoring service without disclosing that his son worked for the company and that the owner was a friend and (2) appointing an attorney as a special master without disclosing that the attorney was a personal friend.

In 5 cases, the judge released a defendant charged with an alcohol-related crime on the defendant’s own recognizance on the condition that the defendant participate in a monitoring program; in all of the cases, the judge failed to disclose that his son worked at CHI Monitoring, LLC, the only local provider of the service.  The judge’s son installed the device, monitored for violations, wrote reports for the court, and set up payments, receiving a commission for every participant he worked with.  The Commission concluded that the judge’s son’s employment was reasonably relevant to the question of the judge’s impartiality and, thus, that he was required to disclose the relationship before ordering a defendant to participate in the program.

In addition, the Commission concluded that the judge should have disclosed his relationship with the owner of CHI, Charles Holland.  The Commission accepted the judge’s characterization of the relationship as “more professional than social,” but concluded the relationship “went further than being members of the same professional organization or having contacts at professional events.”  The judge had failed to disclose that:

  • Prior to taking the bench, the judge had represented Holland, and Holland had referred clients to him,
  • Holland had been to his home and attended strategy meetings his judicial campaign, and
  • The judge as one of Holland’s Facebook friends.

Disclosure was required by “the totality of these circumstances,” the Commission concluded, even if each fact taken alone did not require disqualification.

In addition, the judge appointed Bradley Clark as a special master in a matter concerning easements for a development without disclosing that:

  • He and “Clark were friends who socialized together, at times with their spouses,”
  • He had received gifts from Clark,
  • His nephew was employed by Clark, and
  • He had officiated over Clark’s wedding.

The Commission concluded that “knowing these facts, a party might have thought the judge would be more inclined to approve Clark’s findings and recommendations,” and, therefore, the judge had, at minimum, a duty to disclose the relationship before appointing Clark.

The judge sat in a “small legal community,” where most of its members, “are likely to have known about the social relationship between the judge and Clark,” but none of the parties had objected to the appointment.  The Commission concluded, however, that “in determining the need to disclose, the same standard applies regardless of the size of the community.”  It explained:

By their terms, the canons impose uniform statewide standards.  Whenever an assigned case involves a party the judge “knows,” the judge must be particularly vigilant to ensure the appearance and reality of independence and impartiality.  The situation may arise more frequently in a small town than a major metropolitan area, but the judge’s ethical duties are the same irrespective of population statistics.

The risk of applying a different disclosure standard in a small community based on the assumption that the parties and the attorneys know the judge’s relationships “is that there may be someone involved in the proceeding who, in fact, does not know about the relationships.” . . .  Moreover, the purpose of disclosure is not only to inform the attorneys and parties of information that may be relevant to disqualification but to uphold the integrity and impartiality of the judiciary.

* * *
In In the Matter of Kaminski, Final judgment (Alabama Court of the Judiciary August 6, 2019), the judge stipulated that, while he was involved in a romantic relationship with an attorney, he had appointed the attorney to cases, taken judicial action in cases in which she was attorney of record, and entered attorney’s fee declaration orders for her benefit, in addition to other misconduct.  The judge had resigned after the formal complaint was filed and agreed never to seek judicial office in the state again and to pay $2,346.60 in costs.