Throwback Thursday

10 years ago this month:

  • Accepting the recommendation of the Judicial Discipline and Disability Commission, the Arkansas Supreme Court removed a judge from office for his relationships with probationers; his involvement with Cycle Breakers, a probation program run through a non-profit corporation; ignoring and by-passing laws that were an impediment to his interest in Cycle Breakers; and enforcing payment of unauthorized “civil fees” from defendants with jail or the threat of jail, knowing the money would go to Cycle Breakers.  Judicial Discipline and Disability Commission v. Proctor, 360 S.W.3d 61 (Arkansas 2010).
  • The California Commission on Judicial Performance severely censured a judge for terminating and abandoning the trial in a dissolution of marriage matter before the husband had completed his case and without offering the parties an opportunity to present additional evidence; threatening the husband’s attorney with contempt if her client did not produce his statement of economic interests; failing to disqualify himself after reporting the husband’s failure to disclose an economic interest to the husband’s employer, which terminated him; and being discourteous and impatient toward the husband’s attorney and repeatedly threatening a mistrial if the proceedings were not concluded quickly enough.  Inquiry Concerning McBrien, Decision and Order (California Commission on Judicial Performance January 5, 2010).
  • In lieu of formal disciplinary proceedings and with the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a commissioner for invoking his office and using profanity while protesting a parking ticket.  Public Admonition of Pierce (Indiana Commission on Judicial Qualifications January 26, 2010).
  • Reviewing the recommendation of the Judicial Tenure Commission based on a settlement agreement, the Michigan Supreme Court suspended a judge without pay for 21 days and publicly censured her for acting as treasurer for her own campaign and running for mayor while a judicial candidate and after being sworn in.  In re Sanders, 777 N.W.2d 134 (Michigan 2010).
  • Based on the recommendation of the Judicial Tenure Commission, to which the judge consented, the Michigan Supreme Court suspended a judge without pay for 90 days and publicly censured him for driving while intoxicated.  In re Nebel, 777 N.W.2d 132 (Michigan 2010).

Recent cases

  • The California Commission on Judicial Performance publicly admonished a judge for failing to disclose his personal relationship with an attorney every time the attorney appeared before him.  Public Admonishment of Mason (California Commission on Judicial Performance December 3, 2019).
  • Approving a stipulation for discipline by consent, the California Commission on Judicial Performance publicly admonished a judge for (1) speaking sharply to a female attorney who was new to the felony trial department and hitting her hand at the bench with enough force to leave a visible impression and (2) using crude and inappropriate language when talking with a court administrator about a case involving sexual misconduct by a judge in another state.  Inquiry Concerning Jacobson, Decision and Order (California Commission on Judicial Performance December 19, 2019).
  • Adopting the recommendation of the Commission on Judicial Discipline based on a stipulation, the Colorado Supreme Court suspended a judge for 28 days without pay and publicly censured him for driving under the influence and crashing his vehicle into trees and bushes while avoiding a collision with another vehicle.  In the Matter of Timbreza (Colorado Supreme Court December 2, 2019).
  • Based on an agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for (1) his handling of a small claims case and (2) holding a hearing in 2 criminal cases even though a petition for his disqualification was pending.  In re Wright, Public reprimand (Kentucky Judicial Conduct Commission December 23, 2019).
  • Following a hearing, the Nevada Commission Judicial Discipline publicly admonished a hearing master for ignoring an attorney’s objections to her questioning of a juvenile defendant, yelling at the attorney, telling the juvenile that her probation would be increased if she refused to answer her questions, preventing the attorney from making a record on his objection, and threatening to contact the attorney’s boss; the hearing master was also ordered to complete a course at the National Judicial College.  In the Matter of Henry, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission Judicial Discipline December 12, 2019).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former non-lawyer judge who waived confidentiality to the limited extent that the stipulation can become public; the Commission had been investigating several complaints alleging that the judge had (1) failed to enforce a town ordinance regulating storage of “junk” on residential properties; (2) failed to properly inform a defendant during an arraignment of his due process rights; and (3) sent a letter to the editor of a local paper in which he made political and partisan statements, criticized public officials and town residents concerning a local controversy; and criticized the governor’s executive decisions and policies and described the governor as “corrupt” at a time when he was running for re-election.  In the Matter of Chamberlain, Decision and order (New York State Commission on Judicial Conduct December 5, 2019).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) using profanity and invoking his judicial office in an attempt to have smoking and/or drug-related paraphernalia removed from a store’s window display and (2) making an insensitive remark about a co-defendant’s ethnicity while acting as a private attorney in a civil case and asserting his judicial office when confronted about his remark.  In the Matter of Tawil, Determination (New York State Commission on Judicial Conduct December 12, 2019).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for appearing and acting as his daughter’s attorney in a family court matter on 3 occasions and invoking his judicial title in several instances during 2 court appearances.  In the Matter of Edwards, Determination (New York State Commission on Judicial Conduct December 20, 2019).
  • The Oklahoma Supreme Court (1) publicly reprimanded a judge for, while a candidate, violating rules concerning election expenditures and reports and (2) publicly admonished her for neglecting to pay over 60 parking tickets and county, state, and federal tax obligations for several years; the Court also placed her on probation, including completing at least 5 mentoring sessions with an experienced judge.  In the Matter of Coleman (Oklahoma Supreme Court December 3, 2019).
  • The Pennsylvania Judicial Conduct Board issued a letter of counsel to a judge for telling a police officer at a traffic stop to “check the registration on this plate soon;” the Board made the letter public with the judge’s consent.  Letter to Reinaker (Pennsylvania Judicial Conduct Board December 13, 2019).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for endorsing on his Facebook page his brother’s campaign for a position on the school board.  Public Warning of Saucedo (Texas State Commission on Judicial Conduct December 5, 2019).
  • The Utah Supreme Court approved the Judicial Conduct Commission’s reprimand of a judge for texting to court clerks a “short, graphic video showing a man’s scrotum.”  Inquiry Concerning Dow (Utah Supreme Court September 13, 2019).

 

Throwback Thursday

 20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for telling a litigant who was in his office, “I’m tired of lying sons of b****es telling lies on me,” which was a reference to a complaint the litigant had filed against him, and, in a second case, shouting at an attorney in his office, “I do not have time to teach you law.  What are you looking at me like that for?  Am I speaking Chinese?”  Letter to Davis (Arkansas Judicial Discipline & Disability Commission January 24, 2000).  The Commission also required the judge to attend anger management counseling.
  • The California Commission on Judicial Performance publicly admonished a judge for inappropriate conduct toward female court employees, including suggestive sexual references and unconsented kissing.  Inquiry Concerning Gibson, Decision and Order (California Commission on Judicial Performance January 28, 2000).
  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge from office for (1) abusing his contempt power 3 times, (2) banning a prosecutor from his courtroom and then dismissing 41 cases when the prosecutor did not appear, (3) participating in a case as counsel for 4 years after becoming a judge, and (4) deliberately disobeying orders of the administrative judge.  In re Jefferson, 753 So. 2d 181 (Louisiana 2000).
  • The Missouri Supreme Court suspended a judge for the remainder of his term for (1) writing an “open letter,” published in a local newspaper, that implored citizens to support the police chief in a dispute with the mayor, (2) ordering a blanket reduction in fines and release of prisoners to compel the payment of his health insurance, and (3) failing to recuse from a case involving the daughter of the mayor with whom he was feuding.  In re Hill, 8 S.W.2d 578 (Missouri 2000).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) presiding over a traffic case in which the defendant was his niece, and (2) issuing a criminal summons when a defendant in a small claims case failed to make a payment on a judgement.  In the Matter of Bishop, Determination (New York State Commission on Judicial Conduct January 10, 2000).

 

Refusing to perform same-sex marriages

Recently, 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 Commission found that the judge had cast “doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation . . . .”  (According to the Texas Tribune, the judge has filed a lawsuit in state court claiming that the Commission violated the Texas Religious Freedom Restoration Act and seeking a declaratory judgment that “any justice of the peace may refuse to officiate a same-sex wedding ‘if the commands of their religious faith forbid them to participate in same-sex marriage ceremonies.’”)

Beginning in August 2016, the judge and her court staff gave all same-sex couples wishing to be married by the judge a document stating:  “I’m sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings.”  The document includes a list of local persons who would officiate a same-sex wedding.

On June 24, 2017, the Waco Tribune published an article on their web-site entitled, “No Courthouse Weddings in Waco for Same-Sex Couples, 2 Years After Supreme Court Ruling.”  The article reported that the judge “would only do a wedding between a man and a woman.”

Other judges have also been publicly sanctioned for refusing to perform same-sex marriages.

In 2013, based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for publicly stating he would not perform same-sex marriages in his judicial capacity while he continued to perform opposite-sex marriages.  In re Tabor (Washington State Commission on Judicial Conduct October 4, 2013).

On November 6, 2012, Washington voters passed a referendum approving same-sex marriage.  During an administrative meeting with judges and court personnel shortly before the referendum was to take effect, the judge stated that he felt “uncomfortable” performing same-sex marriages and asked his colleague who did not have similar personal objections to officiate in his stead.  Reporters learned about his position from an unidentified source, and his statement was broadly publicized.  After several newspaper articles and on-line comments, to press clarify his position, the judge explained that his decision not to marry same-sex couples was very personal and based on his religious views, and that, because judges are not required to perform marriages, he believed he had a right to decline to perform same-sex marriages so long as those seeking to be married have access to another judge without delay.

Following contact by the Commission, of his own volition, the judge ceased performing all marriages.

The judge accepted “the Commission’s determination that, by announcing he would not solemnize same-sex marriage due to his philosophical and religious concerns while continuing to solemnize opposite-sex marriages, the judge appeared to express a discriminatory intent against a statutorily protected class of people, thereby undermining public confidence in his impartiality.  Acknowledging that the judge was not required to solemnize marriages, the Commission explained that, “having chosen to make himself available to solemnize some weddings, . . . he is bound by the Code of Judicial Conduct to do so in a way that does not discriminate or appear to discriminate against a statutorily protected class of people.”

The Code of Judicial Conduct imposes on judicial officers a specific, enforceable obligation to avoid bias and the appearance of bias.  These obligations go beyond those imposed on others who serve the general public, reflecting the unique and integral role judicial officers play in our constitutional scheme of justice honoring the rule of law.  Judges must not only be impartial, but must also be perceived as impartial, in order to properly fulfill that role . . . .

By even temporarily acting in a discriminatory fashion toward gay men and lesbians, in stating that he would not solemnize their marriages when he continued to solemnize heterosexual marriages, and by commenting on that decision publicly, a reasonable person could objectively conclude that he might act in a discriminatory fashion toward gay or lesbian litigants, lawyers, or witnesses.

* * *
In a de novo review, the Wyoming Supreme Court censured a judge for her refusal to perform same-sex marriages and ordered that she either perform no marriage ceremonies or that she perform marriage ceremonies regardless of the couple’s sexual orientation.  Inquiry Concerning Neely, 390 P.3d 728 (Wyoming 2017).  For a longer discussion of the case, see a previous blog post.

See also Moore v. Judicial Inquiry Commission (Alabama Supreme Court April 19, 2017) (suspension until end of term of Chief Justice for entering an administrative order that directed all probate judges to follow the state’s laws banning same-sex marriage in disregard of a federal court injunction; In re the Matter of Nance, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission December 19, 2017) (public reprimand for entering a general order declaring that “under no circumstance” would the adoption of a child by a homosexual be in the child’s best interest); Inquiry Concerning Day, 413 P.3d 907 (Oregon 2018) (holding that judge committed willful misconduct by having his staff screen marriage requests to ensure that he did not marry a same-sex couple, but declining to consider the judge’s constitutional arguments because, even if it considered his refusal to perform same-sex marriages, it would impose the same sanction (a three-year suspension without pay) as it was imposing for other violations); Re Atherton (Tennessee Board of Judicial Conduct December 18, 2015) (public reprimand for an order dismissing a complaint for divorce because, referring to the U.S. Supreme Court decision on same-sex marriage in Obergerefell v. Hodges, “Tennesseans, corporately, have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage and, thereby, at a minimum, contested divorces”).

* * *
In 2014 and 2015, judicial ethics committees or conduct commissions in 6 states issued opinions, orders, or articles advising that a judge cannot refuse to perform same-sex marriages if the judge performs opposite-sex marriages even if the refusal is based on sincerely held religious or personal beliefs.  For an analysis of those advisory opinions, see a previous blog post.

In 2019, the American Bar Association Standing Committee on Ethics And Professional Responsibility issued a formal opinion on judges and same-sex weddings.  ABA Formal Opinion 485 (2019).  The opinion advised that, in a jurisdiction in which judges are obligated to perform marriages, a judge may not decline to perform marriages for same-sex couples.  In a jurisdiction in which performing marriages is a discretionary judicial function, the committee stated, a judge may not decline to perform marriages for same-sex couples if the judge agrees to perform opposite-sex marriages but may refuse to perform all marriages for members of the public while still performing marriages for family and friends as long as they do not refuse to perform same-sex marriages for family and friends.

Throwback Thursday

25 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a municipal court judge who had been suspended from the practice of law for failing to pay annual fees and, therefore, had not been an attorney in good standing for 4 years as required for municipal court judges.  Letter to Harrison (Arkansas Judicial Discipline & Disability Commission January 24, 1995).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a municipal court judge who had been suspended from the practice of law for failing to pay annual fees and, therefore, had not been an attorney in good standing for 4 years as required for municipal court judges.  Letter to Adams (Arkansas Judicial Discipline & Disability Commission January 24, 1995).
  • Granting the petition of the Judicial Standards Commission, the New Mexico Supreme Court removed a judge from office for (1) harassing and interfering with a court administrator, refusing to obey legitimate orders of the chief judge; verbally abusing a deputy sheriff, using profanity, and being discourteous, undignified, and disrespectful; deliberately failing to devote the number of hours required of a district judge; treating a hearing officer with discourtesy and disrespect and acting without dignity; and (2) his relationship with a not-for-profit organization.  In the Matter of Castellano, 889 P.2d 175 (New Mexico 1995).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for dismissing a case based on ex parte communications, sua sponte, without hearing any witnesses, stating that he could not ignore the “cry . . . raised up in the community” about the plaintiff, and ordering the plaintiff not to file any further actions without the court’s permission.  In the Matter of Frati, Determination (New York State Commission on Judicial Conduct January 20, 1995).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for giving inaccurate testimony in an attorney disciplinary proceeding against his law assistant.  In the Matter of Bloom, Determination (New York State Commission on Judicial Conduct January 20, 1995).