Monthly Archives: December 2019

Ex parte communication:  “Basic judicial obligation to act as a neutral arbiter” 

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Two recent judicial discipline cases illustrate the temptation for judges to take ex parte shortcuts around the justice system’s requirements of openness and orderly procedures.

The Washington State Commission on Judicial Conduct publicly reprimanded a judge who, based on his suspicions that 2 attorneys were trying to commit a fraud on the court, entered an order unsealing documents in a case without notice or a reasonable evidentiary basis.  In re Spanner, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 22, 2019).

On March 14, 2018, the judge was assigned to hear a guardianship/probate docket.  One of the cases was a guardianship of a minor who had suffered a significant injury from medical malpractice.  Prior to the hearing, the minor’s attorney filed a motion disqualifying the judge from the guardianship case, and the hearing was stricken from the calendar and rescheduled to be heard by a different judicial officer.

Before the judge was informed of his disqualification, he had reviewed the guardianship case file and the file in the same minor’s separate medical malpractice action in which another judge had approved the settlement.  In reviewing the minor settlement file, the judge noticed that parts of the settlement and supporting documentation were filed under seal through a procedure that did not appear to apply.

The judge “surmised, based in part on ‘back hall’ talk he had heard at the courthouse among court personnel, and in the community,” that the minor’s attorneys in the malpractice case were improperly trying to keep the settlement confidential to avoid disclosing the amount in a pending dissolution case involving one of the attorneys, in other words, they wanted “to keep earnings from the settlement secret from one of the attorney’s estranged husband.”  In August 2016, the judge had disqualified himself from that divorce case.  Although the minor settlement case was not before the judge, he ordered, “on his own initiative and without notice to any party,” that the documents be unsealed.  In the order, he found that the documents had been filed under seal to prevent the attorney’s estranged spouse from learning “the extremely large fee granted to plaintiffs’ attorneys” and concluded that the documents were sealed “without lawful authority” and “with perhaps nefarious motivations.”  The judge stayed the order for 14 days to allow an opportunity to address his decision to unseal.

The Commission emphasized that the judge’s order was “not based on a motion, evidence or argument presented to him, but on mere speculation and conjecture he gathered from extrajudicial sources . . . .”  Despite the judge’s argument that his motivation was proper, the Commission concluded that he had “betrayed that basic judicial obligation to act as a neutral arbiter” and “gratuitously impugned the attorneys’ integrity, which created a perception of partiality and unfairness.”

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Based on a presentment by the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a judge for a series of aggressive, ex parte emails on New Year’s Eve to a prosecutor about scheduling a trial and related misconduct.  In the Matter of Jones-Tucker, Order (New Jersey Supreme Court November 20, 2019).

The judge was presiding over the case State v. Heimstra.  Kristina Bryant was the municipal prosecutor; John Sitlzer represented the defendant.

On Wednesday, December 27, 2016, Bryant emailed the judge the dates her witnesses and the defendant’s expert witness were available for trial.  That same day, the judge advised Bryant by email that the trial was scheduled for February 24, 2017.  Bryant notified Sitzler of the trial date by email.

On Friday, December 30, the judge rescheduled the trial for February 22 because she was not available on February 24.  She notified Bryant by email.  On Saturday, December 31, in an email to the judge, Bryant said that the defendant’s expert was not available on February 24 and provided the judge with 4 alternate dates.

The judge replied in 4 closely timed emails, beginning at 10: 54 p.m. and “continuing in quick succession” at 10:56 p.m., 10:59 p.m. and 11:09 p.m.  Her responses were:

  • “We need a certification as to unavailability with reference to the designated trial counsel and experts b4 changing the date. thank you.  I am not scheduling a special date like last Friday which was a complete waste of court resource time.  Too bad.  That is the trial date.  Get with the program.”
  • “Court rules say duis have priority. Follow the rules.”
  • “Your last message was you would send the appropriate subpoenas. What changed?”
  • “Not a game. Trial is 2/22/17.  You agreed to send subpoenaed trial date.  Not a game.  Not a game.  That is the trial date.  Not a game.  This is the trial date.  No more repeats of what happened this past Friday.  Not a game.  That is the date.  You agreed to send revised dates.  That is the scheduled trial date.  Sick of this.  Respect for the city if [sic] Camden.  Respect for our court.”

After a response from Bryant, on January 2, at 4:25 a.m., the judge replied:  “Not having a repeat of last week.  This is it [sic] a game in have already scheduled the trial for Wed 2/22.  Last time I am sending you this message.  This is is [sic] not a game.  Respect for this court.  Respect for the city.”

Questioning the judge’s “mindset in choosing to engage in this excessive fashion with counsel, over email, late in the evening on New Year’s Eve,”  the Committee found that the judge’s “overtly aggressive emails” berating Bryant about a scheduling issue Bryant had not created “depict a judge in an intemperate state responding belligerently to the municipal prosecutor, after-hours, about a simple scheduling issue . . . .”  The Committee agreed with Bryant’s characterization of the emails as “’disrespectful and condescending.’”

On Friday, January 6, Bryant and Sitzler appeared, as directed, before the judge.  Following a protracted colloquy about the trial date, Sitzler requested that the judge give him copies of the emails between her and Bryant.  The judge disclaimed any knowledge of the emails and directed Sitzler to seek such “confidential” emails from the court director.  Following this exchange, the judge instructed Sitzler to provide to the court, within 10 days, a list of possible dates for the Heimstra trial and then concluded Heimstra for the day.

After hearing several unrelated matters, the judge directed Bryant to return to the courtroom.  Although acknowledging that Sitzler was absent, the judge addressed Bryant about the Heimstra matter, stating:

The Court has grave concerns about Mr. Sitlzer’s requests and why he would even make such a request considering they are from my personal emails to you.  Have grave concerns about that and I believe this puts me in both a conflict of interest with him and with you.  I do not expect you to prosecute any further cases in my Court until this matter’s resolved.  You and Mr. Sitzler will hear from the Court Director as to which judge this case will be assigned to.  You’re excused.

The Committee found that the judge addressed Bryant ex parte in a “demeaning and patronizing tone” in the courtroom and accused Bryant of behaving inappropriately by telling Sitzler about the ex parte emails.  The Committee concluded that the judge’s prohibition on Bryant appearing before her until the matter was resolved was “an unjustified and exaggerated reaction to a perceived transgression.”

Throwback Thursday

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5 years ago this month:

  • Based on a stipulated resolution, the Arizona Supreme Court publicly censured a judge for statements during her re-election campaign.  In the Matter of Segal, Order (Arizona Supreme Court December 11, 2014).
  • The California Commission on Judicial Performance publicly admonished a judge for driving while under the influence of alcohol.  Public Admonishment of Scott (California Commission on Judicial Performance December 30, 2014).
  • Based on a complaint by the Judicial Inquiry Board, which the judge admitted, the Illinois Court Commission reprimanded a judge for driving under the influence of alcohol.  In re Hettel, Order (Illinois Court Commission December 22, 2014).
  • Based on a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for driving under the influence of alcohol, ordered that he submit his resignation effective December 31, 2014, and ordered that he be ineligible for future judicial service in Indiana unless/until he successfully completes a 2-year monitoring agreement and treatment plan approved by Indiana Judges and Lawyers Assistance Program.  In the Matter of Weber, 21 N.E.3d 92 (Indiana 2014).
  • Pursuant to the judge’s agreement, the Kentucky Judicial Conduct Commission reprimanded a judge for unnecessary and undignified comments from the bench that were inconsistent with the presumption of innocence.  In re McLaughlin (Kentucky Judicial Conduct Commission December 29, 2014)
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court suspended a judge for 30 days without pay for (1) engaging in improper ex parte communications with counsel for a party regarding the judge’s disqualification and (2) taking an all-expenses-paid trip on a private jet to a hunting ranch with attorneys in a case shortly after the case was concluded.  In re Free, 158 So. 3d 771 (Louisiana 2014).
  • Pursuant to the judge’s waiver, the Maryland Commission on Judicial Disabilities released its private reprimand of a judge for delay.  In the Matter of Carr, Private reprimand (Maryland Commission on Judicial Disabilities December 16, 2014).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for failing to disclose that a key prosecution witness in a disorderly conduct case was the daughter of the court clerk; permitting the court clerk to perform her duties in the case and to be in the courtroom during the trial; and, after convicting and sentencing the defendant, sending a letter to the county court judge hearing the appeal that contained legal arguments and facts outside the record.  In the Matter of Gumo, Determination (New York State Commission on Judicial Conduct December 30, 2014).
  • The Tennessee Board of Judicial Conduct publicly censured a judge for filing a complaint against an attorney with the Board of Professional Responsibility in retaliation for the complaint the attorney had filed with the Board of Judicial Conduct.  In re Donald, Opinion (Tennessee Board of Judicial Conduct December 15, 2014).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for intervening in a private dispute between a contractor and an electrician when no case was pending in his court and meeting with a witness and the parties to the dispute; the Commission also ordered the judge to obtain 2 hours of instruction with a mentor judge.  Public Reprimand of DeLaPaz and Order of Additional Education (Texas State Commission on Judicial Conduct December 19, 2014).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for his demeanor and comments in a private meeting with 2 court administrators that could reasonably have been interpreted as threatening, intimidating, and/or retaliatory.  In re Goodwin, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 5, 2014).

Another Facebook fail

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Based on an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a  judge for sharing partisan posts on Facebook.  Lammey (Tennessee Board of Judicial Conduct November 15, 2019).  The judge also agreed to complete, either in person or online, a judicial ethics program or other educational program addressing ethical issues and the use of social media; to refrain from making any substantially similar comments or disseminating any substantially similar social media posts; and to keep his social media platforms on the private setting.

The judge shared on his Facebook accounts images that, the Board found, were partisan and clearly violated the code of judicial conduct.  The images were about issues such as the credibility of certain federal agencies, professional athletes kneeling during the national anthem, the effect of undocumented immigrants on the economy, opposition to certain positions in the Democratic party platform, bias in favor of then-presidential candidate Donald Trump and opposition to then-presidential candidate Hillary Clinton, the Black Lives Matter movement, media bias, fatal shootings by police officers, anti-Jihadist sentiment, transgender bathrooms and boys in girl’s locker rooms, and undocumented immigrants voting in Virginia.

The Board found that “after a complete and thorough investigation and under the limited and specific facts of this case, . . . there is no proof that [the judge] displayed any actual bias, prejudice, or impartiality toward any litigant that appeared before [him] . . . .”  However, the judge acknowledged that reasonable minds could easily have perceived “the dissemination of these types of articles and images on [his] social media platform” as prejudice or bias.

Screenshots of the Facebook posts shared by the judge were submitted by the organization Latino Memphis with a complaint in response to a newspaper article titled, “Memphis Judge Posts Facebook link to Holocaust denier’s Essay calling Immigrants ‘Foreign Mud.’”  The article was based on an interview the judge gave to a newspaper reporter about his policy of requiring undocumented immigrants to report to U.S. Immigration and Customs Enforcement as part of probation.  The article references an essay the judge shared on Facebook by David Cole, titled “Stop with the Golems, Already.”  The judge’s post commented, “interesting read . . . some four-letter words though.”  Cole, who is Jewish, argued that Jewish Americans “should not bring in people who want to do them harm,” saying, “In a perfect world, these rabbinical Rain Men would finally get the f*** over the Holocaust and end their war of hostility against the west.”  The Memphis Bar Association also filed a complaint based on the widespread media reports about the judge’s posts and his methods of dealing with immigrants.

The Board stated that any issues about the judge’s treatment of undocumented immigrants would be resolved by the  Court of Criminal Appeals.  The Board’s letter noted that it was “abundantly clear” that the judge had not written the essay; Cole “does not describe all immigrants as ‘mud,’” just those who want to do Jewish people harm; and its investigation revealed that Cole was not a Holocaust denier.  The Board also concluded that there was no proof that the judge made statements that were anti-Semitic, racist, or anti-immigration.

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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 Reporter.  Part 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

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10 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for (1) a pattern of misuse of court resources for personal matters and (2) a letter to the sheriff about his concerns regarding the field training of his former courtroom bailiff.  Public Admonishment of Coates (California Commission on Judicial Performance December 2, 2009).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for disqualifying himself from cases in which parties were represented by law firms that included legislators to force the legislature to pass a judicial pay raise; encouraging other judges to do the same and denigrating judges who refused; making public comments concerning the pay raise litigation; and making denigrating comments about legislators.  In the Matter of Himelein, Determination (New York State Commission on Judicial Conduct December 17, 2009).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) driving a motor vehicle under the influence of alcohol and pleading guilty to driving while ability impaired and (2) presiding over 2 cases without disclosing her friendship with the complaining witness or the witness’ spouse.  In the Matter of Burke, Determination (New York State Commission on Judicial Conduct December 15, 2009).
  • The New York State Commission on Judicial Conduct publicly censured a judge for (1) refusing to accept a plea agreement and attempting to coerce a plea to additional charges because he wanted a disposition that would bring revenue to the village and making public comments about the case while it was pending on appeal and (2) nominating a candidate for village board of trustees at a political party caucus.  In the Matter of Herrmann, Determination (New York State Commission on Judicial Conduct December 15, 2009).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for failing to deposit, report, and remit court funds within the time required by law and failing to issue duplicate receipts as required by law.  In the Matter of Ridgeway, Determination (New York State Commission on Judicial Conduct December 15, 2009).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) issuing a citation affording a defendant less than 10 days to answer a suit and or appear for trial, failing to provide adequate notice of a trial to either party, and holding a second trial after a default judgment based on an oral request from the defendant; (2) trying to persuade another judge through her court staff to provide a favorable resolution for a litigant’s pending traffic citation; and (3) issuing a final judgment and a writ of execution for the return of property and issuing an amended judgment on his own motion, without notice to the parties and well after his court had lost jurisdiction; the Commission also ordered the judge to obtain 5 hours of instruction with a mentor.  Public Admonition of Perez and Order of Additional Education (Texas State Commission on Judicial Conduct December 17, 2009).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s public reprimand of a judge who drew a gun in the courtroom.  In re Sampson, Order (Utah Supreme Court December 19, 2009).
  • Adopting the stipulation of facts and order of the Judicial Conduct Board with a modification, the Vermont Supreme Court suspended a judge for 30 days or until he resigns as a judge or as a member of the town select board, whichever occurs last.  In re Colby, 989 A.2d 553 (Vermont 2009).

Recent cases

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  • Following a hearing on a complaint filed by the Judicial Inquiry Commission, the Alabama Court of the Judiciary publicly reprimanded a judge for initiating and considering ex parte communications with a mother and father about pending child custody and visitation issues.  In the Matter of Wiggins, Final judgment (Alabama Court of the Judiciary November 18, 2019).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for, after his dismissal of a civil suit was overturned on appeal, speaking to the plaintiff in a condescending and mocking tone and attempting to dissuade her from exercising her right to a jury trial.  McMurry, Amended order (Arizona Commission on Judicial Conduct November 8, 2019).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a special master for proposing that her domestic partner act as a third party neutral in a family law matter without disclosing the relationship.  Paus, Order (Arizona Commission on Judicial Conduct November 8, 2019).
  • The California Commission on Judicial Performance removed a judge from office for (1) remanding a defendant into custody without resetting bail in open court and engaging in an ex parte communication with the deputy district attorney about the case; (2) engaging in a pattern of conduct toward a deputy public defender that was unwelcome, undignified, discourteous, and offensive; (3) making unwelcome, undignified, discourteous, and offensive comments to and about other female attorneys who appeared before him; (4) making unwelcome, undignified, discourteous, and offensive comments to his court reporter and female defendants; (5) revoking a criminal defendant’s own recognizance release in the defendant’s absence without affording him or his attorney notice and the opportunity to be heard and creating the appearance that he was retaliating for the filing of a peremptory challenge against him by the defendant’s attorney; and (6) failing to always disclose his son’s employment in the district attorney’s office.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019).
  • Based on the findings and recommendation of the Judicial Qualifications Commission and a stipulation, the Florida Supreme Court publicly reprimanded a judge for her comments in 2 criminal cases.  Inquiry Concerning Lemonidis (Florida Supreme Court November 14, 2019).  The Court also agreed that the judge should continue to participate in stress management counseling.
  • Following a hearing, the Kentucky Judicial Conduct Commission publicly reprimanded a former judge for intervening on behalf of her ex-husband after he was arrested on several criminal charges including possession of a controlled substance, and texting an ex parte communication to a Commission member just before the hearing.  In re Maze, Findings, conclusions, and final order (Kentucky Judicial Conduct Commission November 7, 2019).
  • Based on a presentment by the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a judge for a series of aggressive, ex parte emails on New Year’s Eve to a prosecutor about scheduling a trial; a hostile ex parte exchange with the prosecutor in the courtroom; and creating a conflict that required reassignment of the case.  In the Matter of Jones-Tucker, Order (New Jersey Supreme Court November 20, 2019).
  • Based on a petition to accept a stipulation to permanent resignation from judicial office in lieu of further proceedings, the New Mexico Supreme Court ordered a former judge to never again hold or become a candidate for any judicial office in New Mexico; the Judicial Standards Commission had filed a notice of formal proceedings, which the judge contested, alleging that the judge had violated defendants’ due process rights; failed to follow the law and court procedures regarding contempt, warrants, bond, and conditions of release; and engaged in ex parte communications.  In the Matter of Harrison, Order (New Mexico Supreme Court November 5, 2019).
  • Based on findings of misconduct, the Pennsylvania Court of Judicial Discipline suspended a judge for 45 days without pay and fined him $5,000 for (1) viewing images of naked and partially naked women while in his office and (2) having judicial employees grade papers and make copies of handouts on the court’s copier for classes he was teaching.  In re Muth, Opinion and order (Pennsylvania Court of Judicial Discipline November 8, 2019).  The Court also placed him on probation for 1 year, conditioned on his undergoing “a psychological and psychosocial assessment by a licensed psychologist to determine the cognitive, behavioral, and emotional motivation leading to the inappropriate sexualized behavior” and completing any recommended treatment recommendations.
  • Based on an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for sharing partisan posts on Facebook on issues such as the credibility of federal agencies; professional athletes kneeling during the national anthem; the effect of undocumented immigrants on the economy; the Democratic party platform; support for or opposition to presidential candidates; the Black Lives Matter movement; media bias; fatal shootings by police officers; anti-Jihadist sentiment; transgender bathrooms and boys in girls’ locker rooms; and undocumented immigrants voting in Virginia.  Lammey (Tennessee Board of Judicial Conduct November 15, 2019).  The judge also agreed to complete a program addressing ethical issues and social media; to refrain from making comments or disseminating posts substantially similar to those that were the subject of the reprimand; and to keep his social media platforms “private.”
  • The Texas State Commission on Judicial Conduct publicly warned a judge for refusing to perform same-sex weddings while continuing to perform opposite-sex weddings.  Public Warning of Hensley (Texas State Commission on Judicial Conduct November 12, 2019).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for his comments to a newspaper reporter and in a letter to the editor about young black defendants.  Public Warning of McSpadden (Texas State Commission on Judicial Conduct November 12, 2019).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for, without notice or a reasonable evidentiary basis, entering an order in a case to which he was not assigned that gratuitously attacked the character of 2 attorneys.  In re Spanner, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 22, 2019).  The judge also agreed to participate in 4 hours of judicial ethics training.

Throwback Thursday

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20 years ago this month:

  • The Alabama Supreme Court affirmed the decision of the Court of the Judiciary removing a judge from office for (1) depositing a $23,000 personal check in the probate court account after examiners made a charge back, but, during the same transaction, withdrawing $23,000 from the official account and depositing it back into his personal account; (2) showing the slip indicating the deposit into the probate court account to the state examiner’s office to prove that he had paid the examiner’s charges; (3) negotiating and cashing 8 personal checks from court funds that were returned by his bank because he had insufficient funds in his account and failing to pay them for more than 3 years; (4) filing his 1996 state ethics form more than a year late; and (5) failing to properly administer his office.  Boggan v. Judicial Inquiry Commission, 759 So. 2d 550 (Alabama 1999).
  • Pursuant to the recommendation of the Commission on Judicial Conduct, the Arizona Supreme Court suspended a judge for 18 months without pay for tampering with the official transcript in a case, repeated outbursts of temper, and shouting at a court clerk.  In the Matter of Flournoy, 990 P.2d 642 (Arizona 1999).
  • Pursuant to his consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for granting an ex parte petition for change of custody without notice to the custodial parent and failing to communicate with the Florida judge who had assumed jurisdiction.  Public Admonition of Spencer (Indiana Commission on Judicial Qualifications December 28, 1999).
  • Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge and fined her $3,000 for (1) abusing the contempt power and (2) illegally expunging 2 convictions.  Commission on Judicial Performance v. Sanders, 749 So. 2d 1062 (Mississippi 1999).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for (1) a pattern of failing to advise defendants of constitutional and statutory rights; (2) engaging in ex parte communications with prosecutors outside the presence of the defense; (3) in 3 traffic cases, granting dismissals or adjournments in contemplation of dismissal without the knowledge and consent of prosecutors; and (4) eliciting from defendants who had pleaded not guilty statements concerning the charges against them or explanations of their pleas.  In the Matter of Pemrick, Determination (New York State Commission on Judicial Conduct December 22, 1999).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge who had detained a defendant for 1 hour and 40 minutes without any basis or legal process.  In the Matter of Feinman, Determination (New York State Commission on Judicial Conduct December 2, 1999).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) on her own motion, subpoenaing a ranking officer in the sheriff’s department to appear in 3 cases even though he was not a witness because she was irritated that a member of the sheriff’s department had not appeared before her as scheduled and (2) wrote another judge asking that he grant youthful offender status to the son of a town employee, putting forth mitigating circumstances, and listing her court telephone.  In the Matter of Howard, Determination (New York State Commission on Judicial Conduct December 22, 1999).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for comments at an arraignment and comments to a reporter that indicated a predisposition to believe the defendant and to disfavor the woman he was charged with assaulting.  In the Matter of Bender, Determination (New York State Commission on Judicial Conduct December 21, 1999).
  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct publicly admonished a judge for making comments of an offensive sexual nature.  In re Ross, Stipulation, Agreement and Order of Admonishment (Washington State Commission on Judicial Conduct December 3, 1999).
  • Pursuant to a stipulation and the judge’s agreement to resign, the Washington State Commission on Judicial Conduct publicly censured a judge for (1) having a court staff person check public information on the Judicial Information System computer for purposes that were not related to court business; (2) initiating contact with the media while a case was pending before him; (3) shouting and using profanities at a public defender in chambers in the presence of others; (4) on multiple occasions, signaling his staff to go off the record without informing both parties that he was doing so; and (5) directing court staff to delete specific court docket entries, leaving an incomplete docket record during the appeal period in a case.  In re Mittet, Stipulation, Agreement and Order of Censure (Washington Commission on Judicial Conduct December 3, 1999).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for his comments to a defendant who, he believed, had threatened his son during an exchange in a store and failing to disqualify from the case.  In re Edwards, Stipulation and agreement (Washington State Commission on Judicial Conduct December 29, 1999).

 

Judicial Conduct Reporter

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The fall issue of the Judicial Conduct Reporter has been published.  The issue has articles on:

  • Confidentiality in judicial discipline proceedings
  • Defining sexual harassment
  • Judges serving as fiduciaries
  • Recent cases
      • Ex parte communications: “Convenience, happenstance, and habit” (In re Bruce, Memorandum (7th Circuit Judicial Council 2019))
      • Private, individual, and secret interests (In re Oakley, Opinion (Texas Special Court of Review 2019))
      • Courtroom protest (Public Admonition of Lipscombe (Texas Commission 2019))

The Judicial Conduct Reporter is published electronically, and an index and current and past issues of the Reporter are available on-line.  Anyone can sign up to receive notice when a new issue is available.

Throwback Thursday

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25 years ago this month:

  • Adopting the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for writing a character reference letter on his official court stationery for a personal friend who was awaiting sentencing in federal court.  Inquiry Concerning Fogan, 646 So. 2d 191 (Florida 1994).
  • Adopting the recommendations of the Commission on Judicial Performance, based on an agreed statement of fact, the Mississippi Supreme Court publicly reprimanded a part-time judge for attempting as an attorney to reduce bail that he had set while acting as a judge.  Commission on Judicial Performance v. Atkinson, 645 So. 2d 1331 (Mississippi 1994).
  • Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge for (1) notarizing a signature and stating that the signatory had appeared before him even though the signatory had not done so; (2) directing that a prisoner held outside the county be returned to the county for a hearing when no case involving the prisoner was pending, no petition had been filed, and he had conducted no hearing; and (3) executing an instrument styled “authorization to remove personal property” when there was no related case pending before the court.  Commission on Judicial Performance v. Hartzog, 646 So. 2d 1319 (Mississippi 1994).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for failing to deposit court funds in his official account within 72 hours of receipt as required by statute and failing to properly supervise his court staff or take necessary steps to ensure that his staff timely deposited court funds.  In the Matter of Burton, Determination (New York State Commission on Judicial Conduct December 1, 1994).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for recommending 6 persons, including his wife and daughter, to attorneys to be used as process servers in civil actions in his court.  In the Matter of Ellis, Determination (New York State Commission on Judicial Conduct December 1, 1994).
  • Agreeing with the findings and recommendations of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court publicly reprimanded a former judge for touching a client while a lawyer and touching a clerk while a judge.  Office of Disciplinary Counsel v. Talbert, 644 N.E.2d 310 (Ohio 1994).
  • Based on the report and recommendations of the Commission on Judicial Tenure and Discipline, which the judge had accepted, the Rhode Island Supreme Court publicly censured a family court judge for making inappropriate comments in 5 cases; the Court also directed the chief judge of the family court to monitor the judge’s work load and the demeanor.  In re O’Brien, 650 A.2d 134 (Rhode Island 1994).

Necessary professional distance

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Adopting the findings of 3 masters, the California Commission on Judicial Performance removed a judge from office for (1) engaging in a pattern of conduct toward a deputy public defender that was unwelcome, undignified, discourteous, and offensive; (2) making unwelcome, undignified, discourteous, and offensive comments to other female attorneys, his court reporter, and female defendants; (3) remanding a defendant into custody without resetting bail in open court and engaging in an ex parte communication with the deputy district attorney about the case; (4) revoking a criminal defendant’s own recognizance release in the defendant’s absence without notice and an opportunity to be heard and creating the appearance that he was retaliating for a peremptory challenge; and (5) failing to always disclose his son’s employment in the district attorney’s office.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019).

For example:

  • The judge told a deputy public defender words to the effect of, “Sometimes having you in here is like having a teenage daughter—you constantly argue with me and you just keep talk, talk, talking until you get what you want,” and, “It’s a compliment. Take a compliment.”
  • The judge winked at the deputy public defender during a hearing and called her to the bench to ask her if she saw him winking at her.
  • During a conversation with her in his chambers, the judge called the deputy public defender a “hard one” and told her, “Your parents hadn’t spanked you enough.”
  • The judge called the deputy public defender to the bench to ask if she was mad at him 10 to 15 times in 2016 and 2017.
  • Between 2014 and 2017, the judge told a second deputy public defender that she looked like an actress on the television show “Doc Martin” 12 to 20 times during her weekly appearances, often saying, “I saw you on TV last night.”
  • On 5 or 6 occasions, in the presence of grand jurors, the judge referred to a deputy district attorney as “beautiful” or “lovely” and one of his “favorite” attorneys.
  • The judge asked a second deputy district attorney personal questions, including about her ethnicity, her childhood, and her relationship with her father, asking her once “what kind of Asian” she was.
  • The judge told his court reporter, “You’re so pretty. I don’t know how you do it,” and “you are hot” on different occasions.
  • The judge occasionally commented to prospective jurors that his court reporter was “quite tall” and “very pretty,” and that they would “enjoy looking at her.”
  • The judge made comments about the physical appearance of female defendants, including telling some that they were “pretty” and should avoid drinking and driving and tattoos.

The Commission concluded:

Much of Judge Laettner’s misconduct reflects a pattern of engaging with attorneys appearing before him in a manner that is governed by his emotions, rather than by the California Code of Judicial Ethics.  His desire to have certain attorneys like him and not be upset or “mad at him” about his rulings, and action he has taken when he was angry or upset with them, has, at times, overridden his compliance with the canons of judicial ethics.  The factual findings of the special masters suggest that Judge Laettner failed to maintain the necessary professional distance between himself and attorneys appearing before him, or that he became embroiled. . . .

The Commission repeated the masters’ explanation for why it is inappropriate for a judge to compliment an attorney’s appearance.

Saying that a female attorney is beautiful or otherwise commenting upon her looks lifts Lady Justice’s blindfold by suggesting that one of a person’s immutable characteristics, her appearance, matters to the judge; suggesting that the judge is partial to the woman he has declared to be beautiful.  Even though the judge may have meant the comment to be an innocent courteous compliment, intended to create and maintain a “friendly” and “collegial atmosphere,” does not excuse such a statement.  Whether the recipient of the comment was offended or made uncomfortable . . . or not . . . is not the issue upon which the propriety of the statement turns.  The reason a judge’s declaration that someone is beautiful or attractive is misconduct is due not only to its effect on the person to whom the comment was directed, but also because of the potential impact the statement has upon those who may not perceive themselves as attractive or beautiful.  If two attorneys appear before a judge, and one attorney perceives herself to be unattractive, and the judge says to the other attorney, “Here is the beautiful Ms. Bell,” it is reasonable for the other attorney to question the fairness and impartiality of the judge.

The judge argued that he had not known that comments about the physical appearance of women were improper, but the Commission found that he “should have been on notice,” noting the ethics training judges receive and the information in the California Judicial Conduct Handbook.

Acknowledging substantial evidence that the judge had had “an exemplary work ethic” and “been a responsible, conscientious judge, and an asset to his court” during his 13 years on the bench, the Commission stated  that it would have censured, not removed him, based only on his misconduct.  However, the masters had also found that the judge was “not credible” in 6 instances and that his testimony was “impeached” in another and rejected much of his testimony in favor of that of other witnesses.  The Commission also emphasized that the judge had not fully accepted responsibility for his behavior, noting that, although he acknowledged generally the impropriety of his comments, he continued to deny responsibility for significant acts of misconduct and to blame others, particularly the public defender’s office.

Thus, the Commission concluded that the judge’s lack of candor and “his selective and limited acknowledgment of his misconduct” made removal the appropriate discipline.