Monthly Archives: January 2020

What judges said that got them in trouble in the second half of 2019

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What judges said that got them in trouble in the first half of 2019 was summarized in a previous post

What they said to or about criminal defendants

  • “Crackers” and “homeboys.”  Judge to Caucasian and African American defendants.  Disciplinary Counsel v. Burge, 134 N.E.3d 153 (Ohio 2019) (6-month suspension of former judge’s law license for this and other misconduct).
  • “Now, if I were to believe you were that stupid, James, I would just have Deputy Motelewski shoot you right now, because I know you’re not going to make it through life.  Just tell me you knew it was stolen, that’s all.”  Judge to defendant.  Disciplinary Counsel v. Burge, 134 N.E.3d 153 (Ohio 2019) (6-month suspension of former judge’s law license for this and other misconduct).
  • “In fact, you’ve been such a headache, I was looking forward to putting you in the pen.  And I would have paid 50 bucks to give you a beating before you went.”  Judge to defendant.  Disciplinary Counsel v. Burge, 134 N.E.3d 153 (Ohio 2019) (6-month suspension of former judge’s law license for this and other misconduct).
  • “I do hope you do fight for your life every minute of every day.  And that would be the only reason that I would hope your life is any longer than six weeks.”  Judge during sentencing in a murder case.  Inquiry Concerning Lemonidis, 283 So. 3d 799 (Florida 2019) (reprimand for this and similar comments).
  • “On a lighter note, I can take judicial notice that women can drive you crazy,” and, “You know, a judge could get in trouble for something like this.”  Judge while presiding over a domestic violence case.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) () (removal for this and other misconduct).
  • “I guess it’s ok to urinate everywhere and on yourselves, be drunk in public in this town just because you don’t have any money.”  Judge to police officer who said the prosecution wanted a minimum fine for a woman who pled guilty to public drunkenness and related conduct.  In re Hladio, Opinion (March 25, 2019), Opinion (Pennsylvania Court of Judicial Discipline October 4, 2019) (reprimand of former judge for this and other misconduct).

What they said to litigants in family court cases

  • “Can you point me to one thing you’ve done in your life as an adult, so we are talking about since you turned 18, that would demonstrate, not just words, but demonstrate that you can stick with something to the end, see it through and successfully complete?”  Judge to father in termination of parental rights proceeding.  Public Admonition of Bailey (Texas State Commission on Judicial Conduct July 16, 2019).
  • “My children would never allow me to go to jail for any reason whatsoever . . . I’m appalled because my children respect me so much they would never allow that to happen.”  Judge berating and threatening 15-year-old twin boys whose mother was held in contempt because they refused to visit their father.  In re Foster, 832 S.E.2d 684 (North Carolina 2019) (censure for this and related misconduct).
  • The mother was “just calling me giving me a different side.”  Judge to a father in one of a series of ex parte calls about pending child custody and visitation issues.  In the Matter of Wiggins, Final judgment (Alabama Court of the Judiciary November 18, 2019) (reprimand).

What they said to or about litigants in civil cases

  • “I’m going to do whatever I can to convince you that that’s [a jury trial] is a bad choice.  But I don’t think I’m going to be successful.  I think you’re going to insist upon it, and you are.  And you have the right.  You certainly have the right.  But I’ll tell you the only time I’ve seen someone in your position take a case to a jury trial, it was an unmitigated disaster.  And I warned the plaintiff.  But yeah, you have the right to do it, but you have the same right to perform brain surgery on yourself.  And I think they’re both equally imprudent.”  Judge attempting to dissuade the plaintiff in a civil case from exercising her right to a jury trial.  McMurry, Amended order (Arizona Commission on Judicial Conduct November 8, 2019).
  • “I guess I have to say, from my perspective, it seems like we got to drag Paul screaming and kicking to do what we have told him to do.”  Judge in probate case in which he failed to hold the guardian accountable for over seven years.  In re Lewis, Public reprimand (Vermont Judicial Conduct Board September 6, 2019), based on a stipulation.

What they said to or about attorneys

  • “Entirely inexperienced,” “repeating the bull***t” to which the defendant testified, and turning a “slam-dunk” case into a “60-40” one for the defendant.  Judge in email to paralegal in U.S. Attorney’s Office about the performance of an Assistant U.S. Attorney in a case over which he was presiding.  In re Bruce, Memorandum (U.S. Court of Appeals for the 7th Circuit May 14, 2019) (admonishment for practice of ex parte communications with the U.S. Attorney’s Office).
  • “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.”  Judge in one of a series of aggressive, ex parte emails on New Year’s Eve to a prosecutor about scheduling a trial.  In the Matter of Jones-Tucker, Order(New Jersey Supreme Court November 20, 2019), based on a presentment (reprimand for this and related misconduct).
  • “I need to move this along; I have a lot of cases left on the calendar.  I’m not giving you time right now.”  Judge, sharply, to a female deputy public defender who was new to the felony trial department.  Inquiry Concerning Jacobson, Decision and Order (California Commission on Judicial Performance December 19, 2019) (admonishment for this and other misconduct).
  • “ENOUGH.”  Hearing master shouting repeatedly at attorney who objected to her questions to his client, a juvenile.  In the Matter of Henry, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline December 12, 2019) (admonishment).
  • “Without lawful authority . . . with perhaps nefarious motivations . . . .”  Judge unsealing documents and finding, without notice or a reasonable evidentiary basis in a case to which he was not assigned, that attorneys had filed documents under seal to prevent the estranged spouse of one of the attorneys from learning about a large fee.  In re Spanner, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 22, 2019) (reprimand).
  • “What’s going to happen now is your client is going to pay $25,000 to settle this case right now or I am going to report you to the Appellate Division Second Department.  That’s your license counselor.”  Judge to attorney in off-the-record conference in chambers.  In the Matter of Edwards, Determination (New York State Commission on Judicial Conduct October 23, 2019) (admonition).
  • “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.”  Judge to female deputy public defender.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • “[Y]our parents hadn’t spanked you enough.”  Judge to female deputy public defender.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • “I saw you on TV last night.”  Judge repeatedly telling female deputy public defender she looked like an actress on the TV show “Doc Martin.”  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • “What kind of Asian [are you]?”  Judge to deputy district attorney.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • “She’s the attractive young Asian woman.”  Judge to attorney looking for a deputy district attorney.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).

What they said to or about court staff

  • “She did not know what she started.”  Judge in filing a complaint against a clerk in retaliation for the sexual harassment allegations she made against him.  In re O’Shea, Order (Illinois Courts Commission September 27, 2019).
  • “Quite tall,” “very pretty,” and “[you will] enjoy looking at her.”  Judge to prospective jurors about his court reporter.  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • “Something pretty to look at.”  Judge explaining to a law intern why he had asked her to attend a meeting.  Disciplinary Counsel v. Horton (Ohio Supreme Court October 10, 2019) (indefinite suspension of former judge from the practice of law for this and other misconduct).
  • “Number one priority.”  Judge telling clerks how he wanted them to treat him.  In re Hladio, Opinion (March 25, 2019), Opinion (Pennsylvania Court of Judicial Discipline October 4, 2019) (reprimand of former judge for this and other misconduct).
  • “Meow.”  Judge making “cat noises” while sitting close to the court manager’s desk after she complained to human resources about his obsessive conduct regarding whether she liked him as a friend.  Judicial Commission v. Kachinsky, 930 N.W.2d 252 (Wisconsin 2019) (three-year suspension of former judge from eligibility for appointment as a reserve judge for this and related misconduct).
  • “Feel free to report me to HR.  I feel spunky this morning.”  Judge in email to the court manager after she complained to human resources about his obsessive conduct regarding whether she liked him as a friend.  Judicial Commission v. Kachinsky, 930 N.W.2d 252 (Wisconsin 2019).
  • “Are you afraid of me now?”  Judge, lunging over court manager’s desk, after she complained to human resources about his obsessive conduct regarding whether she liked him as a friend.  Judicial Commission v. Kachinsky, 930 N.W.2d 252 (Wisconsin 2019) (3-year suspension of former judge from eligibility for appointment as a reserve judge for this and related misconduct).

What political comments they made

  • “Nothing more than the hobgoblin of a small-minded, mouthbreathing, Tea Party type whose political style and abilities uniquely qualify him to do nothing.”  Judge in letter on court stationery to state representatives about the sponsor of proposed legislation.  Disciplinary Counsel v. Burge, 134 N.E.3d 153 (Ohio 2019) (six-month suspension of law license of former judge for this and other misconduct).
  • “Corrupt.”  Judge about governor in letter to the editor published during the governor’s re-election campaign.  In the Matter of Chamberlain, Decision and order (New York State Commission on Judicial Conduct December 5, 2019) (proceedings closed based on judge’s resignation and agreement not to seek or accept judicial office).
  • “The young black men – and it’s primarily young black men rather than young black women – charged with felony offenses, they’re not getting good advice from their parents.  Who do they get advice from?  Rag-tag organizations like Black Lives Matters, which tell you, ‘Resist police,” which is the worst thing in the world you could tell a young black man . . . they teach contempt for the police, for the whole justice system.”  Judge to reporter.  Public Warning of McSpadden (Texas State Commission on Judicial Conduct November 12, 2019).
  • “IF WE WANT TO MAKE AMERICA GREAT AGAIN WE WILL HAVE TO MAKE EVIL PEOPLE FEAR PUNISHMENT AGAIN.”  Judge’s post on Facebook account with picture of a noose.  In the Matter of Canning, Decision and order (New York State Commission on Judicial Conduct September 12, 2019) (proceeding closed based on judge’s resignation and agreement not to seek or accept judicial office).
  • “As I watched the confirmation process for Brett Kavanaugh, I became more and more disgusted and concerned for the future of the Supreme Court . . . not because he comes from a political party different from mine, but because of his character and conduct.”  Judge explaining why he had closed his courtroom and draped black fabric over the door.  Public Admonition of Lipscombe (Texas State Commission on Judicial Conduct August 8, 2019).

What they said that abused the prestige of office

  • “What do you think you’re doing pulling me over?  For blowing my horn?” and “You better check the registration on this plate soon, mister.”  Judge to police officer during traffic stop.  Letter to Reinaker (Pennsylvania Judicial Conduct Board December 13, 2019) (letter of counsel).
  • “What is this b***s***?” and “Take this s**t down.”  Judge to store employees about smoking paraphernalia in window display, while referring to his judicial office.  In the Matter of Tawil, Determination (New York State Commission on Judicial Conduct December 12, 2019) (censure for this and other misconduct).
  • “Give him a break.”  Judge to police chief about a pending traffic stop in which his former brother-in-law was the driver.  In the Matter of Mann, Decision and order (New York State Commission on Judicial Conduct December 5, 2019) (proceeding closed based on judge’s resignation and agreement not to seek or accept judicial office).
  • “Help [me] out.”  Judge to sheriff’s investigator about prostitution charge against woman whose family he knew.  Commission on Judicial Performance v. Sutton, 275 So.3d 1062 (Mississippi 2019) (reprimand and fine for this and similar misconduct).
  • “The Honorable James Oakley, Burnet County Judge.”  With judge’s permission, on campaign materials for candidate for board of elective cooperative.  In re Oakley, Opinion (Texas Special Court of Review October 25, 2019) (admonishment).
  • “Now as a parent I learned one thing, and as a judge, when you say stay away to a young person, they often don’t stay away.”  Judge in court when representing his daughter, who was petitioning for an order of protection.  In the Matter of Edwards, Determination (New York State Commission on Judicial Conduct December 20, 2019).
  • “[I am] a current Part-Time Town Justice” and would never “intentionally make a racist comment.”  Judge when confronted by another judge about an insensitive remark he made when acting as a private attorney.  In the Matter of Tawil, Determination (New York State Commission on Judicial Conduct December 12, 2019).

What they said in their personal lives

  • “I’m not denying that I said something or egged it on … because I drink … I mean I fully acknowledge that I drink and get mouthy, and I’m fiery and I’m feisty, but if I would have ever thought for a second that they were gonna fight or that that guy had a gun on him, I would never, never ….”  Judge to police officer after a verbal altercation she and 2 other judges had with 2 men in a White Castle parking lot led a physical altercation and the other 2 judges being shot.  In the Matter of Adams, Jacobs, and Bell, 134 N.E.3d 50 (Indiana 2019).
  • “[She] goes from older men to older men with money.”  Judge during a telephone conversation with a man she believed was the estranged husband of a woman she believed was cohabitating with her estranged husband.  Public Admonition of Rocha and Order of Additional Education (Texas State Commission on Judicial Conduct August 26, 2019).
  • “This is my livelihood!” and “Judas Iscariot.”  Judge publicly confronting people who supported his campaign opponent.  In re Maruszczak, Opinion (January 9, 2019), Opinion (Pennsylvania Court of Judicial Discipline October 4, 2019) (reprimand).
  • “For all we know, he could be frying up some platanos in the front seat.”  Judge about a party’s ethnicity in a summation while acting as a private attorney in a civil case.  In the Matter of Tawil, Determination (New York State Commission on Judicial Conduct December 12, 2019) (censure for this and other misconduct).

 

 

Throwback Thursday

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 5 years ago this month:

  • Based on an agreement, the Arkansas Commission on Judicial Discipline & Disability Commission publicly censured a judge for (1) issuing arrest warrants for 4 persons without probable cause documentation presented by a law enforcement officer or the county prosecuting attorney and presiding or attempting to preside over the resulting criminal charges and (2) a pattern of rude, impatient, and undignified temperament.  Letter to Van Hook (Arkansas Commission on Judicial Discipline & Disability Commission January 16, 2015).
  • Accepting the findings and recommendation of the Judicial Standards Commission based on an agreement, the North Carolina Supreme Court publicly reprimanded a judge for allowing plaintiff’s counsel to present advice and opinion on the Servicemember’s Civil Relief Act of 2003 outside of the presence of the servicemember/litigant or anyone appointed to represent him, relying on that advice and opinion without independently researching the law, and inappropriately denying the servicemember/litigant the appointment of legal representation guaranteed under the Act.  In re Branch, 767 S.E.2d 47 (North Carolina 2015).

 

A sampling of recent judicial ethics advisory opinions

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  • A judge may participate in a study on judicial diversity in state courts but should not answer questions that could be perceived to suggest a predisposition to decide matters in a certain way regardless whether a case is pending or impending in any court.  Maryland Opinion Request 2019-27.
  • A judge and a judicial association may publicly support or oppose proposed legislative or constitutional changes to court structure, court operations, or the terms or conditions of judicial service by writing and submitting letters, articles, or editorials to newspapers and other publications; advocating in person or in writing to public officials, governmental bodies, and labor unions; testifying at public hearings; and speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee.  A judge and a  judicial association should use discretion when expressing a position on social media.  New York Opinion 2019-120.
  • A judge may speak about her judicial experiences at a federal legislator’s non-partisan, non-political youth cabinet meeting.  New York Opinion 2019-100.
  • A judicial official may not play a fictional judge in a scripted docudrama that raises controversial political and societal issues, such as reparations, police brutality, and the killing of innocent blacks.  Connecticut Informal Opinion 2019-3.
  • A judicial official may join a local bar association as a dues-paying member but should regularly re-examine the association’s activities and rules and should carefully consider whether identification with or involvement in specific programs or activities may undermine confidence in his independence, integrity, and impartiality or result in frequent disqualification.  Connecticut Informal Opinion 2019-4.
  • A judge may serve as a member of the House of Deputies at the general convention of the Episcopal Church.  Florida Opinion 2019-31.
  • A judge may serve on the board of a not-for-profit organization that advocates for effective policies and evidence-based solutions for the health, education, and success of children who are vulnerable because of poverty, racism, health disparities, and trauma.  New York Opinion 2019-105
  • A judge may not write or join an article or editorial on issues of substantial public controversy involving American foreign policy and military operations.  New York Opinion 2019-106.
  • A full-time magistrate judge may not be engaged in business as a motivational speaker.  South Carolina Opinion 15-2019.
  • A family court judge should not appear by telephone as a witness for a friend in an out-of-state custody/relocation hearing.  South Carolina Opinion 16-2019.

 

 

Throwback Thursday

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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

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  • 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

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 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

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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.

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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”).

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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

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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).