Throwback Thursday

20 year ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for ex parte communications with a defendant and an intemperate outburst in court.  Letter to Hall (Arkansas Judicial Discipline & Disability Commission November 22, 1999).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for advising local law enforcement personnel concerning the validity of out-of-county court orders and adopting a policy that law enforcement officials could not execute out-of-county orders without his approval.  Letter to Harkey (Arkansas Judicial Discipline & Disability Commission November 22, 1999).
  • The Arkansas Judicial Discipline & Disability Commission publicly reprimanded a judge who had paid for a car with a check for which his checking account did not have sufficient funds and who had pled nolo contendere to criminal charges relating to the check.  In the Matter of Steel, Final Decision and order (Arkansas Judicial Discipline and Disability Commission November 22, 1999).
  • Adopting a joint stipulation and recommendation, the Illinois Courts Commission publicly reprimanded a judge who had been charged with driving while intoxicated.  In re Gausselin, Order (Illinois Courts Commission November 18, 1999).
  • Adopting a joint stipulation and recommendation, the Illinois Courts Commission suspended a judge for 3 months without pay for (1) criticizing a member of a jury for a not guilty verdict; (2) saying “f**k you” in court to an attorney; (3) withholding a payment voucher to retaliate against a court reporter because she signed a petition regarding him; and (4) on at least 5 occasions, using profanity in referring to other members of the judiciary.  In re Goshgarian, Order (Illinois Courts Commission November 18, 1999).
  • The Minnesota Board on Judicial Standards publicly reprimanded a district court judge for making comments to a reporter for the Minneapolis Star Tribune about a probation revocation pending before the district court.  Press release (Porter) (Minnesota Board on Judicial Standards November 5, 1999).
  • The New York State Commission on Judicial Conduct publicly censured a judge who had engaged in offensive, undignified, and harassing conduct toward his personal secretary.  In the Matter of Shaw, Determination (New York State Commission on Judicial Conduct November 8, 1999).
  • The New York State Commission on Judicial Conduct removed a judge for (1) failing for over 3 years to file reports and remit court funds to the state comptroller by the tenth of the month following collection as required by statute; (2) failing to issue receipts for fines, complete dockets, or report cases and remit court funds to the comptroller for the matters that he had handled; and (3) in a small claims case, sending a summons to the defendant that stated that a warrant would be issued for his arrest if he did not appear in court in response to the claim.  In the Matter of Kosina, Determination (New York State Commission on Judicial Conduct November 9, 1999).

Recent cases

  • Following a hearing on a complaint filed by the Judicial Inquiry Board, the Illinois Courts Commission removed a judge from office for (1) making false and misleading statements to detectives investigating the discharge of a firearm in his apartment; (2) retaliating against 2 employees who filed sexual harassment allegations against him; and (3) during the disciplinary proceedings, providing testimony that contained misrepresentations, omissions, and deceptions.  In re O’Shea, Order (Illinois Courts Commission September 27, 2019).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for presiding over more than 2,500 civil matters involving a credit union for which his brother was an officer and board member.  In the Matter of DiMillo, Determination (New York State Commission on Judicial Conduct October 1, 2019).
  • The New York State Commission on Judicial Conduct removed a part-time judge for, in a series of emails to his clients in a family court matter, repeatedly denigrating in profane, vulgar, and sexist terms his clients’ daughter and her former husband, opposing counsel, the referee in the case, and school officials.  In the Matter of Senzer, Determination (New York State Commission on Judicial Conduct October 9, 2019). The judge has requested review.
  • Based on a stipulation, the New York State Commission on Judicial Conduct publicly admonished a judge who, during a civil trial, threatened to file a professional grievance against the defendant’s attorney for making an offensive remark during his summation unless his client immediately offered to settle the case for $25,000.  In the Matter of Edwards, Determination (New York State Commission on Judicial Conduct October 23, 2019).
  • Agreeing with the findings and recommendation of the Board of Professional Conduct, the Ohio Supreme Court indefinitely suspended a former judge from the practice of law for (1) sexual misconduct, including sexually harassing his secretary and an intern; (2) misusing county resources and staff in his campaign for the court of appeals; and (3) his guilty plea to misdemeanor charges of failing to file accurate campaign statements.  Disciplinary Counsel v. Horton (Ohio Supreme Court October 10, 2019)
  • The Pennsylvania Court of Judicial Discipline publicly reprimanded a former judge for (1) his conduct toward court clerks, including violations of the court policy prohibiting harassment in the workplace; (2) his demeanor towards lawyers, litigants, and police officers; (3) his treatment of 2 constables; and (4) his conduct toward witnesses for the Judicial Conduct Board.  In re Hladio, Opinion (March 25, 2019), Opinion (Pennsylvania Court of Judicial Discipline October 4, 2019).
  • Based on a stipulated record, the Pennsylvania Court of Judicial Discipline publicly reprimanded a judge for, during his re-election campaign, publicly confronting 3 people who supported his opponent and yelling at them, insulting them, and threatening them; the Court also placed him on probation for 1 year with the condition that he submit to a psychological assessment.  In re Maruszczak, Opinion (January 9, 2019), Opinion (Pennsylvania Court of Judicial Discipline October 4, 2019).
  • Agreeing with the State Commission on Judicial Conduct, a Texas Special Court of Review publicly admonished a judge for authorizing the use of his name, title, and likeness on materials supporting a candidate for director of an electric cooperative.  In re Oakley, Opinion (Texas Special Court of Review October 25, 2019).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for failing for 15 months to enter an order on competing motions to confirm or vacate an arbitration award, communicating ex parte with counsel and then temporarily staying a valid writ of execution based on concerns about its execution during a doctor’s office hours, and failing to respond to a letter of inquiry from the Commission.  Public Reprimand of Slaughter (Texas State Commission on Judicial Conduct October 11, 2019).

 

Throwback Thursday

25 years ago this month:

  • The California Commission on Judicial Performance publicly reproved a judge who had a policy of issuing no-bail bench warrants for all defendants who failed to appear on misdemeanors, despite constitutional and penal code provisions giving individuals a right to bail before conviction with only limited exceptions.  Letter to Kanner (California Commission on Judicial Performance November 21, 1994).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for making sexist and racist remarks while performing her duties; using crude, profane, and inappropriate language when presiding over legal proceedings; and failing to diligently perform the duties of office.  Inquiry Concerning Golden, 645 So. 2d 970 (Florida 1994).
  • The Mississippi Supreme Court suspended a judge for 15 days without pay and fined him $1000 for dismissing a burglary case based on ex parte representations by a defendant and his aunt that the complainant wanted to drop the charge; when the complainant executed a second affidavit for the same offense, going with the defendant to the complainant’s place of employment and telling her there would be a hearing the next day at 11:00 a.m.; and at the hearing, without a prosecutor present, finding there was no probable cause to hold the defendant and dismissing the charge.  Commission on Judicial Performance v. Peyton, 645 So. 2d 954 (Mississippi 1994).
  • The New Jersey Supreme Court suspended a judge without pay for 6 months for, over the objections of defense counsel, permitting the city’s mayor to make a speech that was political and prejudicial to the defendants who were charged with multiple housing violations.  In the Matter of Fenster, 649 A.2d 393 (New Jersey 1994).
  • Adopting the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly admonished a judge who had entered a polling place while the polls were still open and where he was not registered to vote, which violated a state statute.  In the Matter Harshbarger, 450 S.E.2d 667 (West Virginia 1994).
  • The West Virginia Supreme Court of Appeals publicly reprimanded a judge and fined her $500 for refusing to assist a woman seeking a protective order, then returning to her office to do paperwork, and later, agreeing to assist someone else.  In the Matter of Browning, 452 S.E. 2d 34 (West Virginia 1994).
  • The West Virginia Supreme Court of Appeals publicly reprimanded a judge for presiding over a case in which one of the parties was represented by an attorney with whom the judge equally owned all the shares of a corporation that owned 106 acres of land, on which the judge and his family lived and for which he paid no rent.  In the Matter of Means, 452 S.E.2d 696 (West Virginia 1994).

Not “a normal working environment”

Stating that it took seriously its responsibility for setting precedent concerning sexual harassment, “to protect the public by sending a strong message to members of the judiciary that abusing the trust of public employees and the public at large will result in significant consequences,” the Ohio Supreme Court recently suspended a former judge indefinitely from the practice of law for his predatory sexual conduct and other misconduct.  Disciplinary Counsel v. Horton (Ohio Supreme Court October 10, 2019).  The Court did note that “an indefinite suspension may not be appropriate in all cases of sexual misconduct or harassment” but that it was appropriate “given the number of other violations, the harm to individual victims and to the public trust, the significant number of aggravating factors, and the limited mitigating evidence.”

The judge had served on the Court of Common Pleas from 2006 until he joined the 10th District Court of Appeals in 2015.  He resigned effective February 28, 2019.

The Court found that the judge, while on the trial court, “created an inappropriate atmosphere in his office by telling members of his staff they were sexy during the work day and commenting on the attractiveness of other employees.”  For example, he told M.B., a law student intern, that he had asked her to attend a meeting so that he would have “something pretty to look at.”  Several members of his staff believed they could not turn down the judge’s frequent invitations to go out for happy hour at bars when, he admitted, his behavior “was ‘rude’ and ‘obnoxious.’”  The Court found that the judge’s “conduct was beyond rude.”  For example, he told Emily Vincent, his staff attorney, that her tights were sexy and that he would get in trouble for telling her how he would make her over.

The Court also found that the judge’s behavior with M.B., who was 23 years old at the time, and his secretary Elise Wyant, who was 25, “was even worse.”

Following one happy hour, after M.B. had completed her internship, but while she was still a law student, she and Horton engaged in sexual conduct. . . .  On three other occasions, Horton encouraged his friends to touch M.B. inappropriately, and she was groped by his friends on at least two occasions, at Horton’s insistence.  Horton also repeatedly told Wyant that she “looked sexy” and that he wanted to “f**k” her.

M.B. described feeling as though the judge was grooming her.

Wyant admitted that she had joked with the judge and engaged in explicit sexual conversations with him.  When asked why, Wyant explained that was “the culture that he created in the office.”

“He would talk about things that—that he wanted to talk about, and so when, you know, I was talking about my personal life I took the direction from my leader and, you know, I would get personal with my stories, too.”

She described how she “came to realize that this—through conversations with friends and—like, this wasn’t normal, this wasn’t a—a normal working environment.  This culture that he created wasn’t a good one and it wasn’t professional at all.”

When M.B. was asked why she had consented to sexual conduct with the judge even though she did not want to, she explained:  “I felt like I had to do what Judge Horton wanted me to do.  And, you know, I think at the time, 23 at this point, like, I was naive, certainly, but I also think I was just doing the best that I could, you know.”  M.B. further explained:

[T]his is a person who has power over me and I have to go along with what he says.  And I don’t know, like, why I still trusted him, and thought, you know, it would be different, perhaps.  I still saw him as a mentor, which sounds ridiculous after he’s done these horrible things to me; right? . . .  It occurred so incrementally that you almost didn’t see it coming, you know, like you didn’t realize how bad the situation you were in until it was too late to do anything about it, you know.  And I—I think there was also, like, a lot of self-blame involved of, you know, it must be—it must be my fault because, like, he’s—he’s turned me into this sexual object, and so, like, this is just what I know and this is how it works, you know.

Rejecting the judge’s argument that Wyant and M.B. had consented to his sexual conduct and statements, the Court explained:

Even if Horton’s sexual misconduct was not criminal or did not create civil liability, the Code of Judicial Conduct does not merely proscribe crimes or discrimination—it recognizes the power and authority of judges and sets a higher standard.  It also does not police the conduct of judicial employees.  The Code of Judicial Conduct is specifically concerned with the actions of judges.  The issue is not whether Wyant objected to each of Horton’s inappropriate statements or acquiesced to the inappropriate culture Horton created at his office or if M.B. implicitly consented to his sexual conduct.  Horton engaged in sexual harassment in the performance of his judicial duties, abused the prestige of his office for his own personal interests, and acted in a manner that brings disrepute to the judiciary.

As a judge and a supervisor, Horton held a position of power over his staff and interns.  He repeatedly emphasized his power and the importance of loyalty to him.  And it seems to be no coincidence that Horton’s most egregious behavior occurred with and around the younger, less professionally experienced members of his staff who he could more easily manipulate.

Continuing to emphasize a judge’s responsibilities, the Court rejected the judge attempt to blame his staff for working on his campaign for the Court of Appeals during work hours and at public expense, using county resources.  The judge admitted that he had told his staff, “If you want to work on [the campaign], you want to volunteer, that’s great, you know I would appreciate it.”  Although the judge phrased the statement as an invitation and not a directive, his secretary and staff attorney testified that they did not feel comfortable not volunteering for his campaign.  His staff also testified that the judge asked them to conduct campaign business during hours when they would normally be performing county work.

The Court blamed the judge’s “decision not to keep a closer eye on his employees’ time or to create a stronger ethic of professionalism in the office,” noting that “the employees’ culpability is not at issue.”  The Court explained:

If a sitting judge chooses to allow public employees to volunteer to work on his or her campaign, it is incumbent upon the judge to uphold the integrity of the judiciary by imposing clear rules prohibiting campaign work on county time or using county resources and strictly enforcing those rules.  If a judge does not feel confident about his or her ability to make and enforce such rules, then the judge should not accept assistance from public employees.

The judge had also pled guilty in state court to 3 counts of causing inaccurate campaign finance reports to be filed with the secretary of state, admitting that he had reported expenditures that he knew were excessive and unreasonable.