Throwback Thursday

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

  • 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

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

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.