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.

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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.

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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.

Throwback Thursday

25 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Conduct, the Arizona Supreme Court suspended for 30 days without pay a judge who had been tardy in the conduct of court business, had repeatedly failed to timely decide cases, and had failed to competently, fairly, and diligently administer the day-to-day-operations of the court.  In re Braun, 883 P.2d 996 (Arizona 1994).
  • The Florida Supreme Court publicly reprimanded a judge for (1) writing 2 letters to the editor of a local newspaper criticizing the criminal justice system and (2) holding a hearing on a child custody matter when he did not have jurisdiction, giving the mother notice only after the hearing began, and forcing her to act as her own attorney.  Inquiry Concerning Miller, 644 So. 2d 75 (Florida 1994).
  • The Florida Supreme Court publicly reprimanded a judge for, while going over his case list with his partners before he took the bench, misrepresenting the merits of a case and later concealing from his partners that he had negotiated with the insurance company, reached a settlement, and received a fee.  Inquiry Concerning Davey, 645 So. 2d 398 (Florida 1994).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge for sexual harassment of a judicial assistant, engaging in ex parte communications, and intentional abuse directed toward a public defender.  In re McAllister, 646 So. 2d 173 (Florida 1994).
  • Pursuant to a stipulation, the Florida Supreme Court publicly reprimanded a judge for authoring and mailing a letter on his official court stationery to a probation officer as a character witness and reference on behalf of a defendant.  Inquiry Concerning Stafford, 643 So. 2d 1067 (Florida 1994).
  • The Georgia Supreme Court suspended a former judge from the practice of law for 3 years for unwanted touching of a sexual nature of several women, including county employees, while a judge.  In the Matter of Brooks, 449 S.E.2d 87 (Georgia 1994).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for (1) in 2 cases, refusing to accept bail in cash and remanding the defendants to jail in lieu of bail, in violation of a statute; (2) in 1 case, setting restitution after soliciting and receiving information from the 2 ex parte, without holding a hearing, and refusing to hold a restitution hearing when requested by the defendant, in violation of a statute; and (3) being a member of the fire department’s fire police and directing traffic at the scenes of fires and accidents.  In the Matter of Miller, Determination (New York State Commission on Judicial Conduct October 7, 1994).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for arraigning his son after the son’s arrest for assault.  In the Matter of Poli, Determination (New York State Commission on Judicial Conduct October 7, 1994).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for, after assessing a fine of $10 for a defendant who had plead guilty to the theft of 2 packages of cigarettes from a store, deferring $9, giving the defendant $1 to pay the remainder of the fine, and stating that the store was more culpable than the defendant because of the health consequences of smoking.  In re Schillberg, Stipulation and Agreement and Order of Admonishment (Washington State Commission on Judicial Conduct October 7, 1994).
  • The Washington State Commission on Judicial Conduct publicly censured and disqualified from future service as a judicial officer a former pro tem judge who had picked up a 12-year old who was hitch-hiking, taken the minor to his house overnight, and dropped the minor off by the side of the road the next morning.  In re Hatter, Commission Decision (Washington State Commission on Judicial Conduct October 7, 1994).
  • Adopting the recommendations of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly censured a former judge who had accepted a $5,000 campaign donation in cash in violation of state law.  In the Matter of Mendez, 450 S.E.2d 646 (West Virginia 1994).

Ex parte communications

Several recent judicial ethics advisory opinions illustrate the breadth of the prohibition on ex parte communications and the narrowness of its exceptions, highlighting the importance of transparency in the justice system.

For example, in Nebraska Advisory Opinion 2019-1, the Nebraska committee advised that a judge may not communicate ex parte with a county attorney to get information to use in setting an appearance bond for the defendants arrested without a warrant when the courts are closed on weekends and holidays.  The committee noted that a judge’s ex parte review of an affidavit for a warrantless arrest “is not problematic” because it is expressly authorized by state law.

However, the committee stated, the interaction described by the inquiring judge went beyond reviewing an affidavit.

The communication is between the judge and a prosecuting attorney, outside the presence of the arrestee or his counsel, so it is clearly an “ex parte communication.”  The issues being discussed are the persons who have been arrested over the weekend.  Presumably, a criminal complaint will soon be filed regarding these persons.  Therefore, the discussions would clearly be “concerning a pending or impending matter” and . . . such communication would only be allowed pursuant to one of the enumerated exceptions to the prohibition on ex parte communications.

The committee concluded that none of the exceptions applied.  First, it stated, the communication was not for “scheduling” or “administrative” purposes.  Second, the committee acknowledged that the communication could be considered for “emergency” purposes “given the time constraints on reviewing probable cause affidavits and setting bond,” but stated that exception only allows emergency ex parte communications that do not address “substantive matters.”  The committee concluded that a discussion about an arrestee’s criminal history and other matters relevant to the amount of the appearance bond is clearly “substantive” and, therefore, prohibited even under in circumstances.

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In Washington Advisory Opinion 2018-4, the Washington committee stated that court staff may not interview a defendant ex parte to collect information as part of a pre-trial dynamic risk assessment for a judge to use in setting pretrial conditions of release.

The opinion explained that defendants are interviewed prior to their first appearance about employment status, residential stability, any history of drug abuse, or any recent use of illegal drugs that may have caused family, social, or work issues.  After the interview, a staff person reviews the defendant’s criminal history, data on pending charges, and record of appearing on any previous charges and then, based on the interview and that information, uses a “statistically based risk assessment tool to categorize the defendant’s likelihood of reappearing and complying with pretrial release conditions.”  The staff person assigns a category of low, medium, or high risk, and that result is presented on the record at the defendant’s first appearance.

The inquiring judge asked whether the interview part of the risk assessment process, which takes place off the record, without counsel and without any signed waiver of counsel, can be conducted by court staff who are under the judge’s direction and control without violating the prohibition on ex parte communications.

The opinion noted that the code of judicial conduct “prohibits judicial officers from investigating facts in a pending matter” and that prohibition extends to court staff who are under a judge’s direction and control.  The committee emphasized that “current law and court rules do not expressly authorize judges or court staff to conduct off-the-record interviews of unrepresented defendants with pending matters to gather information for use in a pre-trial risk assessment” and concluded that “neither a judge nor court staff under the judge’s direction and control may conduct off-the-record pre-trial risk assessment interviews.”

Although acknowledging “the value of the information that can be gained through a dynamic pre-trial risk assessment,” the committee explained that achieving that “laudable” goal “must not come at the cost of the underpinnings of a fair and impartial justice system. . . .  [U]ntil and unless there is an amendment to the or court rules, the pre-trial risk assessment conducted by court employees described in the question posed is prohibited.”

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In California Judges Association Advisory Opinion 77 (2019), the advisory committee discussed ex parte communications between judges and professionals or volunteers who do not represent either party in a pending case but do provide the court “with important information about pending litigation,” usually in written reports.  As examples, the committee noted CASA volunteers or staff, probation officers, probate investigators, social workers, and investigators with the district attorney’s office appointed by the judge to search for a child who has been abducted by a parent in a custody case.

The committee stated that sometimes people in these positions may want to talk with the judge about issues that were not covered in a written report, believing that “the law permits verbal exchanges with the judge.”  As an example, the committee noted that a publication of the child abduction division of the Los Angeles District Attorney’s Office suggested that investigators contact judges to clarify a court order, to request an additional order based on the investigation, for example, if the child is out-of-state or out-of-country, and to inform the judge about “a serious fact relevant to the enforcement of the court’s order.”

The judicial ethics committee warned against such discussions, stating that, except in specified circumstances, those communications would be improper ex parte communications even if the investigator “has a special need to talk with the court.”  The proper method of communication, the committee stated, was a written report that must be shared with all of the parties in the case.

Addressing specific situations, the committee advised:

  • A judge should not receive an oral up-date from a district attorney investigator in a child abduction cases but may receive a written up-date.
  • A judge should not permit a deputy probation officer to explain portions of a report in chambers and should ask that any explanations take place with all the parties or their attorneys present or in a supplemental written report.
  • When police officers come to a judge’s house with an affidavit in support of a search warrant, the judge should read the affidavit alone so that the officers cannot add to the facts or explain them and should decline the officers’ offer of additional information.
  • A judge may listen when a family court mediator, pursuant to a statute, tells the judge that a restraining order is necessary to address an imminent risk to the safety of a child involved in a custody dispute.
  • A judge may discuss with the director of the CASA program administrative issues such as the quality of reports and the role of the advocates in court if the judge is careful not to discuss individual cases.