“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.”

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