Bad faith de-escalation

Judicial conduct commissions and supreme courts do not usually second-guess a judge’s decision to hold someone in contempt, but there are exceptions to that rule, and a judge was recently censured for having a mother involved in a visitation dispute handcuffed and escorted out of the courtroom without an opportunity to be heard or any contemptuous behavior in the courtroom.  In re Foster (North Carolina Supreme Court September 27, 2019).  The North Carolina Supreme Court adopted the findings of the Judicial Standards Commission, which were based on a stipulation and agreement for a stated disposition.

The judge presided over a hearing to determine whether the mother of 15-year-old twin sons should be held in contempt after the twins, who reside with their mother, refused to visit their father during the winter holiday.  The mother’s counsel objected because the mother had not received sufficient notice of the hearing.  The judge acknowledged the objection but ordered the mother and the twins to appear in court within 30 minutes, stating:  “I’m not saying that we’re going through with the hearing, but you need to call your client and tell her to get here because I have a few choice words that I need to say to her . . . .”  The judge added that “the boys need to come . . . so that they can hear that their mother can go to jail for their behavior” and “if a child wants their parent to go to jail, I got a problem with that as well.”

When they arrived, the judge asked the 2 boys whether they understood that their mother could be incarcerated if they continued to resist visitation with their father.  After the boys told the judge that they would rather have their mother go to jail than visit with their father, the judge stated:  “my children would never allow me to go to jail for any reason whatsoever . . .  I’m appalled because my children respect me so much they would never allow that to happen.”  After the boys said that they understood the consequences of their refusal, the judge ordered the bailiff to handcuff their mother and place her in a holding cell.  The mother’s counsel objected because the judge had not held a contempt hearing or given his client an opportunity to be heard.  Nevertheless, the judge instructed the bailiff to take the mother out of the courtroom.

After the mother was removed, the judge told the twins that she was “appalled” at their behavior and that they should be “ashamed” for allowing their mother to go to jail.  The judge also shared personal stories about being a parent and “disturbing cases she had presided over where children had suffered unfortunate outcomes.”  She asked the twins whether it made more sense to spend 6 days visiting their father as originally ordered, or 60 days with him while their mother was incarcerated.  The boys relented and agreed to visit their father.

The judge had the mother brought back into the courtroom and then said “as far as your full-blown hearing, it is going to be continued.  You two need to pick a date because I do not believe that you [had] enough time to truly prepare.”  Both parties thanked the judge for trying to resolve the boys’ refusal to visit with their father.

The judge believed that her actions “were appropriate to deescalate an unfortunate situation and resolve the visitation issues without further involving the Court.”  Her conduct in the case reflected her practice of placing litigants in temporary custody for “a short ‘cooling-off period’ without an opportunity to be heard,” which she had found successful in getting litigants to comply with her directives.

The Commission emphasized that it was not reviewing the legal issue whether the judge may have properly held the mother in contempt.  The Commission noted that the judge had specifically intended to avoid a “full-blown hearing,” which she admitted she could not hold because of inadequate notice.  The Court concluded that the judge’s actions were “not a mere ‘error of judgment or mere lack of diligence’” but intentional and part a pattern.

The judge argued that she had acted “with benevolent motives to ‘deescalate an unfortunate situation and resolve the visitation issues without further involving the Court.’”  However, the Commission stated that “‘bad faith’ includes ‘any knowing misuse of the office, whatever the motive,’” and concluded that the judge “acted in bad faith because she had ‘[a] specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of [her] authority.’”

Throwback Thursday

5 years ago this month:

  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for (1) her conduct and demeanor in injunction, juvenile, and dependency cases; (2) ruling in a way that made it appear she did not know the law or refused to apply it; and (3) appearing on behalf of her sister at her sister’s first appearance after an arrest.  Inquiry Concerning Kautz, 149 So. 3d 681 (Florida 2014).
  • The Florida Supreme Court removed a judge from office for (1) operating a for-profit business from her judicial chambers using official time and judicial resources; offering to sell the business’s products in the courthouse to lawyers who appeared before her and courthouse employees; promoting the sale of the products on a web-site that included photographs of her in her judicial robes; and using her judicial assistant to promote and produce the products during working hours; (2) devoting less than full time to her judicial duties; (3) failing to pay state sales tax on the sale of her business products and to register the name of her business under the fictitious name law; and (4) demonstrating a lack of candor during the investigation.  Inquiry Concerning Hawkins, 151 So. 3d 1200 (Florida 2014).
  • The Louisiana Supreme Court suspended a judge without pay for 12 months for failing to file her annual financial statements for 3 years, with 6 months deferred conditioned on her filing the statements within 3 months.  In re Myers, 156 So. 3d 11 (Louisiana 2014).
  • Approving an agreement for discipline by consent, the Maryland Court of Appeals suspended a judge for 30 days for (1) mocking and ridiculing a criminal defendant and his fiancé in a probation violation hearing and (2) being dismissive, disrespectful, and intemperate toward defense counsel during 2 post-conviction hearings; the Court stayed 25 days of the suspension if the judge successfully completes a 2-year probation.  In the Matter of Mays, Consent order (Maryland Court of Appeals October 21, 2014).
  • Granting a petition to accept a stipulation agreement, the New Mexico Supreme Court publicly censured a judge for calling a magistrate judge to vouch for the character of a defendant in a case and to obtain special treatment for the defendant; the Court also ordered the judge to participate in a formal mentorship and to be on unsupervised probation for 1 year.  In the Matter of Ramos, Order (New Mexico Supreme Court October 14, 2014).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for failing to appoint an interpreter for a Spanish-speaking tenant in a summary eviction.  In the Matter of Merino, Determination (New York State Commission on Judicial Conduct October 2, 2014).
  • The Ohio Supreme Court publicly reprimanded a judge for wearing a name badge identifying herself as “Colleen Mary O’Toole, Judge, 11th District Court of Appeals” while she was a judicial candidate and not an incumbent.  In re Judicial Campaign Complaint Against O’Toole, 24 N.E.3d 1114 (Ohio 2014).
  • The Pennsylvania Court of Judicial Discipline removed a former judge who had been convicted of 12 felonies in federal court based on his participation in the infamous “kids-for-cash scheme,” including racketeering, racketeering conspiracy, honest services mail fraud, money laundering conspiracy, conspiracy to defraud the U.S., and filing a materially false tax return.  In re Ciavarella, 108 A.3d 983 (Pennsylvania Court of Judicial Discipline 2014).
  • The Pennsylvania Supreme Court affirmed without an opinion the decision of the Court of Judicial Discipline removing a judge for (1) lying repeatedly on the questionnaires he submitted to the Philadelphia Bar Association Commission on Judicial Selection and Retention while running for judicial office and (2) twice being held in contempt in a court case arising from a Philadelphia Board of Ethics complaint against a PAC he represented and, to avoid paying a court-ordered fine, dissipating the PAC’s funds and engaging in delay, obfuscation, and deceit.  In re Nocella, 102 A.3d 422 (Pennsylvania 2014), affirming, Opinion (June 26, 2013) and Sanction order (Court of Judicial Discipline August 5, 2013).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court reprimanded a judge for identifying herself as a judge in a call and letters to the magistrate assigned to her grandson’s case.  In the Matter of Johnson, 763 S.E.2d 812 (South Carolina 2014).
  • Pursuant to the judge’s agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for telling a commissioner that a 12-hour hold should not have been placed on a defendant in a domestic violence case.  Moreland (Tennessee Board of Judicial Conduct October 22, 2014).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a former judge for (1) retaliating against 4 attorneys; (2) practicing law on behalf of his girlfriend, misusing government resources to do so, and injecting himself into litigation involving her children; (3) failing to disclose or to recuse from cases involving those with whom he had a close, personal relationship; and (4) lying under oath, engaging in witness tampering, and harassing, bullying, and maligning county officials, including 3 judges.  Public Reprimand of Dupuy (Texas State Commission on Judicial Conduct October 23, 2014).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for driving under the influence of alcohol and/or drugs and twice gratuitously identifying herself as a judge to the arresting officer.  In re Hitchcock (Washington State Commission on Judicial Conduct October 3, 2014).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for failing to timely decide 3 matters.  In re Sullivan (Washington State Commission on Judicial Conduct October 3, 2014).
  • The West Virginia Supreme Court of Appeals suspended a judge without pay until the end of her term (December 2016) and censured her for having an extra-marital relationship with the director of the community corrections program and related misconduct.  In the Matter of Wilfong, 765 S.E.2d 283  (West Virginia 2014).

“Transparency and a powerful disincentive”

Adopting the conclusions of a special committee, the 10th Circuit Judicial Council publicly reprimanded a U.S. District Judge for the District of Kansas for (1) giving preferential treatment and unwanted attention to female court employees through sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, often after work hours and late at night; (2) engaging in a years-long extramarital sexual relationship with a drug-using individual who was then on probation for state-court felony convictions and is now incarcerated for probation violations; and (3) being habitually late for court proceedings and meetings for years.  In re:  Complaint under the Judicial Conduct and Disability Act (Murguia), Order (Judicial Council for the U.S. Court of Appeals for the 10th Circuit September 30, 2019).  The Council also stated that, in a private letter, it was requiring the judge to take “certain corrective actions” to which he agreed.  The judge also agreed to waive his right to seek review of the order.  The special committee’s investigation included interviews with 23 people and a hearing at which the judge testified under oath.

(1) The committee found that the judge gave preferential treatment and unwanted attention to female employees of the judiciary “in the form of sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, much of which occurred after work hours and often late at night.  All of the harassed employees stated that they were reluctant to tell Judge Murguia to cease his behavior because of the power he held as a federal judge.  One of the employees eventually told him explicitly to stop his harassing conduct, but he continued.”

(2) The committee found that the judge “engaged in a years-long extramarital sexual relationship with a drug-using individual who was then on probation and is now incarcerated (because of probation violations) for state-court felony convictions.”  The Council stated that a judge’s sexual affair, even with a convicted felon, is not always misconduct but agreed with the committee’s finding that the judge “placed himself in such a compromised position that he made himself susceptible to extortion” and that “given the risk of extortion and potential for embarrassment to the Judiciary, Judge Murguia’s relationship implicates Code of Conduct Canons 1 and 2.”

(3) The committee stated that the judge has been habitually late for court proceedings and meetings for years, noting general agreement among witnesses that he “was frequently late for court proceedings, often requiring attorneys, parties, and juries to wait, and sometimes making attorneys late for proceedings in other courtrooms.”  The committee found that the judge’s regularly scheduled lunchtime basketball games was a repeated cause of his tardiness.  The committee noted that the judge’s tardiness persisted even though he had been “counseled about his tardiness fairly early in his federal judicial career . . . .”

The judge admitted that he engaged in the misconduct, apologized during the investigation and proceedings, and assured the Council that he would not engage in this or any other inappropriate conduct in the future.  The committee found no evidence that his misconduct continued after he was served with the complaint and noted he offered to take voluntary corrective action.

However, the Council noted, the judge had been less than candid with the committee, failing to disclose the extent of his misconduct when initially confronted with the allegations and admitting “allegations only when confronted with supporting documentary evidence.”  The Council concluded that “his apologies appeared more tied to his regret that his actions were brought to light than an awareness of, and regret for, the harm he caused to the individuals involved and to the integrity of his office.”  The Council emphasized that the judge’s misconduct “is very serious and occurred over a lengthy period.”

The Council found that the judge’s conduct “was too serious and the importance of maintaining the integrity of the Judiciary in the mind of the public too important for a private reprimand.”  The Council concluded that, although a “public reprimand may cause embarrassment to the Judiciary, misconduct that rises to this level calls for transparency and a powerful disincentive.”  Noting that a public reprimand is the most severe sanction available it could impose, the Council also concluded that the matter was “insufficient to recommend the Judicial Conference refer this matter to Congress for impeachment” “considering the statutory requirement for certifying a misconduct matter for impeachment, . . . and the applicable constitutional standard of ‘high Crimes and Misdemeanors.’”

With respect to the sexual harassment allegations, the Council cited several provisions in the Conduct of Conduct for U.S. Judges and the Rules for Judicial-Conduct and Judicial-Disability Proceedings that were part of “a package of workplace conduct-related amendments” adopted in March 2019 by the U.S. Judicial Conference.  The 10th Circuit cited:

Canon 3B(4):  “A judge should practice civility, by being patient, dignified, respectful, and courteous, in dealings with court personnel, including chambers staff.  A judge should not engage in any form of harassment of court personnel.  A judge should not retaliate against those who report misconduct.  A judge should hold court personnel under the judge’s direction to similar standards.”

Comment to Canon 3B(4):  “Under this Canon, harassment encompasses a range of conduct having no legitimate role in the workplace, including harassment that constitutes discrimination on impermissible grounds and other abusive, oppressive, or inappropriate conduct directed at judicial employees or others.”

Rule 4(a)(2)(A):  “Cognizable misconduct includes:  . . . engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment or assault.”

Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for being argumentative in a case, rarely allowing the complainants to respond, and aggressively cutting them off while stating what he predicted their testimony would be.  Fletcher, Order (Arizona Commission on Judicial Conduct October 8, 2009).
  • Adopting the findings and recommendations of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly reprimanded a retired judge for promoting a plea deal in an ex parte conversation with a defendant’s brother.  In the Matter of Delehey, Order (New Jersey Supreme Court October 6, 2009).

Recent cases

  • Accepting a stipulation based on the judge’s resignation following a formal complaint and his 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, who waived confidentiality to the limited extent that the stipulation can become public; the complaint alleged that the judge had posted on his Facebook account “a picture of a noose with the annotation, ‘IF WE WANT TO MAKE AMERICA GREAT AGAIN WE WILL HAVE TO MAKE EVIL PEOPLE FEAR PUNISHMENT AGAIN,’” and the stipulation stated that the judge had “shared an image and statement on his Facebook account that was visible to the public and conveyed and/or appeared to convey racial and/or political bias, and thereby failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  In the Matter of Canning, Decision and Order (New York State Commission on Judicial Conduct September 12, 2019).
  • Based on a stipulation and agreement for stated disposition, the North Carolina Supreme Court publicly censured a judge for, in a hearing to determine whether a mother should be held in contempt after her 15-year-old twin sons refused to visit with their father, directing the bailiff to handcuff the mother and escort her out of the courtroom without an opportunity to be heard and without any contemptuous behavior in the courtroom and berating and threatening the children.  In re Foster, Order (North Carolina Supreme Court September 27, 2019).
  • 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 and failing to hear and decide motions for months or longer without justification.  In re Lewis, Public reprimand (Vermont Judicial Conduct Board September 6, 2019).
  • Adopting the conclusions of a special committee, the 10th Circuit Judicial Council publicly reprimanded and admonished a U.S. District Judge for the District of Kansas for (1) giving preferential treatment and unwanted attention to female court employees in the form of sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, often after work hours and late at night; (2) engaging in a years-long extramarital sexual relationship with a drug-using individual who was then on probation for state-court felony convictions and is now incarcerated for probation violations; and (3) being habitually late for court proceedings and meetings for years.  In re:  Complaint under the Judicial Conduct and Disability Act (Murguia), Order (10th Circuit Judicial Council September 30, 2019).

Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for sentencing a litigant to 5 days in jail for contempt after ordering her from the courtroom, without citing her for contempt, having her returned to the courtroom, following the required procedures, or entering an order that stated facts sufficient to constitute a contempt as required by law.  Public Admonishment of Guy-Schall (California Commission on Judicial Performance October 13, 1999).
  • Adopting factual stipulations in a proposed disposition, the California Commission on Judicial Performance publicly admonished a judge for 9 incidents in which he failed to respect the rights of unrepresented individuals.  Inquiry Concerning Henne, Decision and Order (California Commission on Judicial Performance October 13, 1999).
  • Approving the findings and recommendations of the investigative panel of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded and suspended for 10 days a judge who knew about a theft from a restaurant but attempted to hinder investigating law enforcement.  Inquiry Concerning Wilson, 750 So. 2d 631 (Florida 1999).
  • Pursuant to the recommendation of the Commission on Judicial Qualifications, the Indiana Supreme Court publicly reprimanded an attorney for, during her candidacy for judge, making knowing misrepresentations about the incumbent judge’s judicial record and failing to maintain the dignity appropriate to the judicial office and act in a manner consistent with the integrity and independence of the judiciary.  In the Matter of Bybee, 716 N.E.2d 957 (Indiana 1999).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for (1) taking possession of certain assets at the request of a friend, knowing or having reason to know that the assets were subject to litigation in another jurisdiction; (2) serving as a director of a business entity and as a trustee on behalf of a non-family member, and accepting payment for those services; (3) failing to report extra-judicial income; (4) accepting judicial pay for time not engaged in official judicial business; and (5) failing to cooperate with the Board’s investigation and making misrepresentations to the Board’s representatives.  Public Reprimand of Ballard (Minnesota Board on Judicial Standards October 13, 1999).
  • Agreeing with the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a part-time judge from office for (1) making inappropriate, obscene, and sexist remarks about another judge in the course of his judicial duties, (2) refusing to deal with more than 100 cases over 8 months, (3) permitting an attorney with whom he shared office space, a business telephone, and mailing address  to appear before him in 6 criminal cases over 5 years without disclosing the relationship, (4) permitting a private individual to sit at the bench and make ex parte recommendations about sentencing, and (5) representing his former court clerk in her action against the town in which he served as a judge.  In the Matter of Assini, 720 N.E.2d 882 (New York 1999).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a part-time judge for making financial contributions to the campaign of 2 non-judicial candidates for public office.  In re Michels, Stipulation, Agreement, and Order of Admonishment (Washington Commission on Judicial Conduct October 1, 1999).

More Facebook fails

In May 2019, the New York State Commission on Judicial Conduct filed a complaint alleging that a judge had posted on “his Facebook account a picture of a noose with the annotation, ‘IF WE WANT TO MAKE AMERICA GREAT AGAIN WE WILL HAVE TO MAKE EVIL PEOPLE FEAR PUNISHMENT AGAIN.’”  The post was viewable by the public.  The judge’s Facebook account was under his name, and he had approximately 121 Facebook friends.

The judge and the Commission stipulated that the image and statement “conveyed and/or appeared to convey racial and/or political bias” and, therefore, that the judge had “failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The judge resigned, agreed not to seek or accept judicial office in the future, and waived confidentiality to the limited extent that the stipulation can become public; the Commission concluded the proceeding.  In the Matter of Canning, Decision and Order (New York State Commission on Judicial Conduct September 12, 2019).  The post was attached as an exhibit to the complaint, which is attached to the stipulation.

* * *
The Chief Justice of the Kentucky Supreme Court disqualified a trial judge from a lawsuit brought by the state Attorney General against the state Secretary of Labor because the judge had “liked” a Facebook post supporting the Attorney General’s campaign for governor.  In re Commonwealth of Kentucky, ex rel. Beshear and Jefferson County Teachers Association v. Dickerson (Kentucky Supreme Court September 27, 2019).

The judge was presiding over a suit brought by Andy Beshear the state Attorney General and a county teachers association seeking an injunction against subpoenas the Secretary of the Kentucky Labor Cabinet had issued to several school districts for information regarding teachers who had participated in “sick-outs” during the 2018 and 2019 legislative sessions.

Beshear is also the Democratic nominee for governor, opposing incumbent Governor Matt Bevin.  The judge liked a post in which a state representative said that he was “honored to sign a pledge card to vote for the Beshear/Coleman ticket in November.”  The Labor Secretary filed a motion to disqualify the judge based on that “like.”  The judge denied the motion; the Labor Secretary then invoked a Kentucky procedure that allows the Chief Justice to immediately review and decide whether grounds exist to appoint a different judge for the case.

The Chief Justice agreed with the Labor Secretary’s argument that “Governor Bevin is effectively a party to the lawsuit because ‘the Attorney General brought this lawsuit against Governor Bevin’s administration, and the Attorney General frequently promotes the lawsuit as part of his campaign for governor.’”

Noting several reprimands for similar conduct by the Judicial Conduct Commission, the Chief Justice concluded that the judge’s “liking” of a Facebook post supporting Beshear’s campaign was a per se violation of the code of judicial conduct.  The Chief Justice also stated that the fact that the judge “also ‘liked’ posts supportive of Governor Bevin’s campaign or of other Democratic and Republican candidates does not . . . right the wrong.  In fact, those ‘likes’ constitute additional violations . . . .”  The Chief Justice acknowledged that the Labor Secretary did not allege and there was nothing in the record to indicate that the judge had explicitly endorsed Beshear’s campaign or that he was biased against Governor Bevin or the Labor Secretary.  The Chief Justice also expressed his conviction that the judge “would preside over this case, as he has in so many other cases, in a completely fair, neutral, and unbiased manner.”  But the order emphasized that the standard for disqualification does not require actual proof of bias but simply circumstances that raise reasonable questions about the judge’s impartiality.  Thus, the Chief Justice held:  Given that the judge’s “‘like’ may reasonably be perceived as a public endorsement of a candidate’s campaign, that the candidate is a party in this case, and that this case involves a central issue in that candidate’s campaign, this is one such circumstance.”

The Chief Justice added:

This case should serve as a cautionary tale to all Kentucky judges who use social media.  As the Judicial Ethics Commission wisely admonished in its 2010 opinion, these services are “fraught with peril” for judges and should be used with extreme caution.  While judges are not ethically prohibited from using social media, their use is subject to the Code of Judicial Conduct in the same manner as other extrajudicial activities.  Judges should review their social-media presence to ensure it does not violate the Code of Judicial Conduct and should act prudently when “liking” pages, posts, or tweets or otherwise interacting with other users on social media.

 * * *
A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics web-site.