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

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.”

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