Throwback Thursday

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

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.