Monthly Archives: March 2020

Coronavirus and judicial conduct

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Like everything else, judicial conduct commissions have been affected by COVID-19 and related shutdowns.  Some commissions have described on their websites how they are modifying their operations during the pandemic.

For example, the Washington State Commission on Judicial Conduct posted:

In light of Governor Jay Inslee’s coronavirus proclamations . . . and the World Health Organization’s declaration of a coronavirus global pandemic, the Commission on Judicial Conduct’s physical office will be closed or minimally staffed until further notice.  To reach the Commission directly, please leave a message at (360) 753-4585 and staff working remotely will try to respond within 24 hours during business days.  The Commission will continue to accept complaints online via our website.  We appreciate your patience as we take measures to safeguard the health and safety of the public and staff.

Others:

In addition to explaining how to contact the commission during any shutdown, 2 commissions have issued statements emphasizing to judges that compliance with administrative orders regarding court business is mandatory and encouraging judges to consult the commission about any ethical issues that arise during the pandemic.

The Georgia Judicial Qualifications Commission posted a statement:

The Statewide Judicial Emergency, as Ordered by Chief Justice Melton, sends a direct and balanced message to the courts of Georgia, allowing for continued court functions in addressing essential functions necessary to protect the health, safety, and liberty of our citizens, while also recognizing the need for courts to postpone and/or cancel non-essential matters in order to avoid the potential infection of court employees and members of the public attending court.  The JQC realizes that this may pose many challenges for parties, litigants, attorneys, court staff, and judges in navigating these uncharted waters.  We stand ready to assist our judicial system with situations that may pose ethical dilemmas for all involved.  In that vein, we also recognize that opinions may differ regarding how best to handle the novel circumstances that our world faces today.  The fact remains, however, that Chief Justice Melton’s Order is an overriding directive to the courts, and refusals to abide by the Order may require action by the JQC.

To that end, judges, parties, and the public are encouraged to contact the JQC staff with any questions or concerns about ethical obligations or possible misconduct.  As the current landscape calls for quick responses to many of these inquiries, we will do our best to be available during and after normal work hours to address time-sensitive matters.  Many members of the judiciary and the bar have already reached out for assistance, and we are committed to doing our part to help guide our State through these difficult and unusual times.

Similarly, the Arkansas Judicial Discipline & Disability Commission issued a statement noting that the Arkansas Supreme Court’s administrative order “is clear and detailed” and “is not a suggestion.  It is an order.  Full compliance is expected.”  It explains:

The JDDC staff are willing to help in any way that we can to assist judges who are working to comply with the order . . . .

Willfully refusing to abide by a Supreme Court order is not an option.  While very few judges would even consider defying a direct order from the Supreme Court, the effect of any such defiance is fundamentally detrimental to the public’s faith in the judiciary.  Complaints against judges who do not obey the order of the Supreme Court will be investigated and may result in public charges by the JDDC.  The Rules of Procedure of the Judicial Discipline & Disability Commission allow the Executive Director to initiate complaints. . . .  Therefore, regardless of whether an attorney or party complains, open disobedience to a Supreme Court order would make it incumbent on Executive Director to take the initiative to file a complaint and bring these matters to the Commission for disciplinary consideration.

There are many opinions on how best to handle the crisis caused by the COVID-19 virus.  However, the only opinion that matters as to court administration and the matters in the Per Curiam of March 17, 2020, are those of the Chief Justice and the Associate Justices of the Arkansas Supreme Court.

It is possible that never in our lifetime has the rule of law been more important.  The judicial branch, following the precepts of our national and state constitutions, stand in the breach between mob rule and what makes our American democracy work; the promise that our fundamental law will be followed.  The Arkansas Judiciary is made up of amazing men and women of honor, ability and work ethic.  The JDDC expects nothing less than full compliance and unity as the courts still function.  Your hard work as judges in Arkansas will help sustain us.  Your excellence will provide a calming effect and send the clear message that our courts will always support the rule of law and our freedom.

Judges, parties, and the public are encouraged to contact the JDDC staff with any questions or concerns about ethical obligations or possible misconduct.  We will be available to address time-sensitive matters.  Many members of the judiciary and the bar have already reached out for assistance, and we are committed to doing our part to help guide our State through these difficult and unusual times.

At least 3 commissions have announced delays in pending public cases because of the pandemic.

In a press release, the California Commission on Judicial Performance announced:

Due to increasing public health concerns related to the coronavirus, . . . the March 18, 2020 public appearance for oral argument before the commission in the matter concerning Justice Jeffrey W. Johnson of the California Court of Appeal, Second Appellate District, Division One, has been postponed.  A new date will be set once conditions improve.

 The scheduled oral argument was to be on the findings of 3 masters that the judge had engaged in 3 general categories of misconduct:  (1) inappropriate conduct ranging “from overly familiar compliments to highly offensive touching and vulgar, sexually explicit statements” towards 17 women; (2) being intoxicated after hours at the Court of Appeal building and at events outside the court facility; and (3) improper demeanor toward a Court of Appeal colleague and 3 staff members and derogatory statements about 2 colleagues.

The Kentucky Judicial Conduct Commission granted Judge Dawn Gentry’s motion to continue the hearing on the formal charges filed against her, originally scheduled for April 20, “in light of the extraordinary circumstances created by COVID-19”.  The Commission has suspended the judge pending resolution of its charges that she engaged in a wide variety of misconduct, for example, retaliating when people did not support her campaign and engaging in sexual activity in the courthouse.

The Michigan Commission ordered the postponement of a public hearing relating to Judge Byron Konschuh, from April 6 until May 4, noting that the “May 4 hearing will likely be held via Polycom and is subject to further adjournment as is warranted.”  A master has found that Judge Konschuh committed misconduct by failing to disqualify himself from cases involving 3 attorneys or to disclose the relationships but found that other allegations in an 8-count complaint by the Commission had not been proven.

Throwback Thursday

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5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for delaying 3 rulings in the same DUI case past 60 days and certifying that he had no pending or undetermined cause for more than 60 days.  Guzman, Order (Arizona Commission on Judicial Conduct March 26, 2015).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for ex parte communications to the attorney general’s office demanding that they correct a misstatement made by the state supreme court during oral argument in an appeal from a sentence he had imposed.  Irwin, Order (Arizona Commission on Judicial Conduct March 26, 2015).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for making unwelcome comments to 2 detention officers and unwelcomed physical contact with one of those officers.  Roberts, Order (Arizona Commission on Judicial Conduct March 26, 2015).
  • The Louisiana Supreme Court suspended a judge for 30 days without pay for holding an assistant city prosecutor in contempt and then ordering the dismissal of 15 criminal cases on the docket that day.  In re Sims, 159 So. 3d 1040 (Louisiana 2015).
  • Accepting an agreed statements of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for mishandling a $500 cash bail he received at an arraignment and failing to maintain records of the proceeding.  In the Matter of Kressly, Determination (New York State Commission on Judicial Conduct March 25, 2015).
  • Adopting a consent-to-discipline agreement based on stipulations, the Ohio Supreme Court publicly reprimanded a judge for telling jurors in a criminal trial that they had reached the wrong verdict.  Ohio State Bar Association v. Salerno, 28 N.E.3d 84 (Ohio 2015).
  • The Texas State Commission on Judicial Conduct publicly admonished a court of appeals judge for, during a traffic stop, repeatedly identifying herself to police officers as a judge and offering to show the officers her judicial badge.  Public Admonition of Longoria (Texas State Commission on Judicial Conduct March 13, 2015).
  • The Texas State Commission on Judicial Conduct publicly warned a former judge for (1) reimbursing himself from campaign funds for travel expenses that were not properly reported to the Ethics Commission and (2) conduct that resulted in negative attention and criticism in the press.  Public Warning of Cortez (Texas State Commission on Judicial Conduct March 9, 2015).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for her handling of 2 cases, including using criminal summons in a small claims matter and divorce case, failing to afford parties the right to appeal her judgment, maintaining incomplete and/or inaccurate court records, conducting informal private mediations of disputes without proper notice to the parties while excluding individuals from entering the courtroom to observe the proceedings in violation of the open courts doctrine, and other failures to comply with the law; the Commission also ordered the judge to, in addition to her required judicial education, obtain 8 additional hours of education.  Public Reprimand of Melendrez and Order of Additional Education (Texas State Commission on Judicial Conduct March 19, 2015).

Nothing new here

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In a recent judicial discipline case involving unwelcome comments to a court clerk, the judge blamed the clerk because she had not said:  “‘Judge, I’m uncomfortable with your manner or the statement you made,’” claiming, “I can assure you that I would have apologized and changed my behavior.  It does me no good to have my co-workers dislike me.”

The New York State Commission on Judicial Conduct easily rejected that argument, explaining that the clerk did not have an obligation to tell the judge that she “did not approve of his comments” but that he had a responsibility “to not make sexist comments to a court employee” in the first place.  In fact, the Commission found that the judge’s “misapprehension” about whose fault it was compounded his misconduct.

The Commission also emphasized that this responsibility was not new:  over 20 years ago it had held that, “remarks of a personal and sexual nature to a subordinate are especially egregious, even if the woman does not protest and even if the judge makes no explicit threats concerning job security.”  In the Matter of Dye, Determination (New York State Commission on Judicial Conduct February 6, 1998).  It quoted an even older decision:

The cajoling of women about their appearance or their temperament has come to signify differential treatment on the basis of sex.  A sensitized and enlightened society has come to realize that such treatment is irrational and unjust and has abandoned the teasing once tolerated and now considered demeaning and offensive.  Comments such as those of respondent are no longer considered complimentary or amusing, especially in a professional setting.

In the Matter of Doolittle, Determination (New York State Commission on Judicial Conduct June 13, 1985).

The Commission concluded that, as an experienced lawyer and judge, the judge should have realized that “sexually charged remarks have no place in a courthouse,” particularly to a court employee “given the imbalance of power in their respective positions.”

Chief Clerk Debbi Singer had testified that, after a court luncheon, the judge had stopped in her office to say he really liked the dish that she made and added:  “‘If I knew you could also cook, I would have gone for the widow.’”  Singer, a widow, was “surprised, shocked, and disgusted” and did not find the comment humorous.

Further, a month later, the judge was in Singer’s office, and she began to use a fan because she was having a hot flash.  After she explained and apologized to the judge, he replied, “It’s nice to know I still have that effect on you.”

Also that month, Singer testified, the judge walked by her office, stopped, stepped in, and said to her, “You look really hot in that outfit.  You should always wear that outfit.”  Singer was again “shocked and disgusted” by the judge’s unwelcome comment.

The New York Commission removed the judge for his inappropriate comments to Singer and for berating and demeaning a female court assistant; allowing his court secretary to prepare a letter as part of his effort to obtain payment for legal work that he had performed prior to becoming a full-time judge; and failing to timely and accurately report his income from his extra-judicial activities to the Ethics Commission for the Unified Court System, the IRS, the New York State Department of Taxation and Finance, and the clerk of the court.  In the Matter of Miller, Determination (New York State Commission on Judicial Conduct February 14, 2020).  The judge has asked the Court of Appeals to review the determination.

The case is the second involving sexual misconduct so far this year from New York.  In the first, the judge had resigned and agreed not to serve in judicial office again after being informed that the Commission was investigating allegations that, from 2005 through 2019, he had “made improper and at times abusive personal demands of court staff, directly or indirectly conveying that continued employment required submitting to such demands, and creating a hostile workplace environment.”  In the Matter of Rosenbaum, Decision and order (New York State Commission on Judicial Conduct January 23, 2020).  As described in the winter 2020 issue of the Judicial Conduct Reporter, 11 judicial discipline cases in 2019 involved sexual misconduct by judges.

Throwback Thursday

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10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to be patient, dignified, and courteous to litigants.  Addington, Order (Arizona Commission on Judicial Conduct March 16, 2010).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for dismissing a DWI charge for a relative within the 3rd degree after it was determined and agreed that the state could not prove the charge.  Re Johnson, Letter of Admonishment (Arkansas Judicial Discipline & Disability Commission March 19, 2010).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for granting a writ of error coram nobis to facilitate the testimony of a witness whose criminal case had been closed to support the prosecution in a separate pending criminal case.  Re Sims, Letter of Admonishment (Arkansas Judicial Discipline & Disability Commission March 19, 2010.
  • Pursuant to a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court suspended a judge without pay for 60 days for, during an investigation into a shooting at her home, asking a law enforcement officer to dispose of potential evidence; the Court also ordered the judge to disqualify herself for 1 year from any cases in which any of the witnesses who appeared for the state at her criminal trial are involved and to satisfy therapeutic treatment and reporting requirements.  In the Matter of Koethe, 922 N.E.2d 613 (Indiana 2010).
  • The Mississippi Supreme Court removed a former judge from office following his guilty plea to charges of obstructing, influencing, and impeding an official federal corruption investigation and grand jury proceeding.  Commission on Judicial Performance v. DeLaughter, 29 So.3d 750 (Mississippi 2010).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge had accepted, the New Jersey Supreme Court publicly reprimanded a judge for (1) comments about a defendant who did not speak English and was in the country illegally and (2) calling a defendant pathological liar and comparing him to O.J. Simpson.  In the Matter of Citta (New Jersey Supreme Court March 8, 2010).
  • Adopting the findings and recommendations of the Advisory Committee on Judicial Conduct, which the judge had accepted, the New Jersey Supreme Court publicly reprimanded a judge for (1) comments that created the appearance he was making fun of a litigant and (2) and asking an attorney “when did you become an illegal alien?”  In the Matter of Convery (New Jersey Supreme Court March 8, 2010).
  • The New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for using his judicial title in communications asking prison officials to confiscate documents that contained information detrimental to his interests in a personal injury lawsuit against an inmate and for failing to be forthright when questioned.  In re Calderon, Determination (New York State Commission on Judicial Conduct March 26, 2010).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for his policy of scheduling trials based on the availability of the issuing police officers, resulting in a failure to efficiently and promptly schedule trials in more than 500 traffic matters.  In re Barlaam, Determination (New York State Commission on Judicial Conduct March 15, 2010).
  • The North Carolina Judicial Standards Commission publicly reprimanded a judge for intimidating and inappropriate outbursts at prosecutors in 2 cases in another judge’s courtroom in which his wife was the defense attorney.  Public Reprimand of Smith (North Carolina Judicial Standards Commission March 4, 2010).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for accepting tickets to San Antonio Spurs basketball games from a lawyer who wrote bail bonds and/or practiced in her court and writing a letter of recommendation for a person with a pending criminal case.  Public Admonition of Guerrero (Texas State Commission on Judicial Conduct March 26, 2010) .
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) mishandling a case in which a defendant did not pay a fine; (2) finding numerous individuals in contempt of court without legal authority and ordering them arrested and incarcerated without first issuing a written finding of contempt and/or commitment order; (3) failing to reduce orders and judgments to writing; (4) mishandling truancy cases; (5) ordering truancy defendants to relinquish their cell phones without legal authority; (6) including directives in emergency protective orders outside his legal authority; and (7) presiding over 2 matters involving family members who were the sons of his immediate supervisor and giving them favorable treatment; the Commission also ordered the judge to get 20 hours of instruction with a mentor.  Public Reprimand of Garza and Order of Additional Education (Texas State Commission on Judicial Conduct March 30, 2010).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for having 7 adults (a caseworker, her supervisor, the CASA volunteer, the reintegration project coordinator, the Texas Family Support Services parent coach and mentor, and a juvenile’s mother) locked in in-take cells for approximately 20 minutes after becoming angry and frustrated with their recommendation that a juvenile be detained.  Public Admonition of Meurer (Texas State Commission on Judicial Conduct March 30, 2010).

 

A sample of recent judicial ethics advisory opinions  

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  • A judge may not step down from the bench and shake a criminal defendant’s hand in front of potential jurors to emphasize that the defendant is presumed not guilty before trial.  Utah Informal Opinion 2019-3.
  • A judge may not facilitate a traffic ticket plea reduction program instituted by the district attorney’s office that would interfere with the court’s exercise of judicial review and discretion.  New York Opinion 2019-145.
  • A new judge is required to disqualify from cases involving an attorney who is a former employee, protégé, and intern and was manager for her election campaign.  Washington Opinion 2020-3.
  • A town justice may not write the town board expressing her personal view that a new local law was poorly drafted and offering proposed amendments.  New York Opinion 2019-137.
  • A judge may participate in a panel discussion on human trafficking at an event sponsored by a non-profit organization that is not a fund-raiser.  Florida Opinion 2020-3.
  • A judge may not accept an invitation to speak to law enforcement officials about honesty and integrity in investigations and testimony.  Utah Informal Opinion 2019-2.
  • A judge may not give a media interview about a rule to show cause he issued against a state agency that has a significant case backlog.  West Virginia Opinion 2019-16.
  • A judge may not discuss cold cases from other states on a nationally broadcast podcast hosted by Nancy Grace.  West Virginia Opinion 2019-21.
  • A judge may participate in an academic study on judicial diversity in state courts but must abide by generally applicable limitations on speech and conduct.  New York Opinion 2019-115.
  • A judge may solicit other judges in her district for a “Wellness Fund” to be used by the local Wellness Committee to fund social events for judges and employees to promote workplace collegiality and a positive work environment if she and other judges on the committee do not have any supervisory or appellate authority over the solicited judges.  New York Opinion 2019-108.
  • With qualifications, judges may write reviews on crowd-sourced sites, such as Yelp, and use the “like” function on a social networking site.  California Judges Association Formal Opinion 78 (2020).
  • A judge may publish her dissertation for her doctoral degree in judicial studies as a book and receive compensation for sales of the book.  Florida Opinion 2020-1.
  • A judge should not attend an event that will honor individuals who support the mission of a civic organization “by making positive changes in the lives of abused, neglected and disadvantaged youth in or aging out of foster care” when the price of the tickets and availability of advertisement space indicate that the event has a fund-raising component.  Florida Opinion 2020-2.
  • With conditions, a judge may serve as the chair of a strategic planning committee for the private not-for-profit school that his children attend.  New York Opinion 2019-86.
  • A judge may serve on the board of the Colorado Women’s Leadership Foundation, which encourages corporations and non-profit organizations to fill board positions with qualified women.  Colorado Opinion 2020-1.
  • A judge may not serve as a board member or non-legal advisor of a non-profit organization that receives court appointments and provides guardianship services and attorney representation.  New York Opinion 2019-122.
  • A judge may serve on the board of a non-profit entity that provides occupational therapy activities such as art classes and workshops to the disabled if it does not receive referrals from the judge’s court or regularly engage in litigation in any court.  New York Opinion 2019-131.
  • A new judge may continue to serve as president of the board of a non-profit organization he established while a lawyer but cannot be the signatory for any legal documents such as contracts and rental agreements, cannot be on the checking account, cannot engage in any negotiation with prospective renters/leaseholders of the organization’s building, cannot fund-raise for the organization, and cannot be involved in any press events publicizing donations.  West Virginia Opinion 2019-12.
  • A judge may serve as president of a bar foundation that focuses on the management and distribution of grants for local legal services programs.  New York Opinion 2019-141.
  • A judge may serve as an ex officio member of a charitable organization’s advisory group about funding criminal justice reform initiatives in the state.  West Virginia Opinion 2019-27.
  • A magistrate may serve on a church disciplinary committee.  South Carolina Opinion 3-2020.
  • A judge may not serve as an advisor to the U.S. President on disability programs and services or on an advisory committee to the U.S. Department of Health and Human Services.  A  judge may, subject to certain limitations, meet with federal executive branch officials on her own behalf to discuss her experiences as a disabled individual.  New York Opinion 2019-146.
  • Court webpages may list the names of the judges authorized to perform wedding ceremonies and their phone number but should inform the public that judges may be available to perform wedding ceremonies during court hours when there is no fee and should not highlight special services that individual judges may provide (for example, wedding ceremonies in languages other than English or availability to “officiate LGBTQ weddings”).  A judge should not maintain a webpage that would allow the public to schedule wedding ceremonies with just that judge for a fee outside of court hours.  Judges may wear their robes on their court’s wedding webpage, but a judge may not wear a robe on a webpage not affiliated with the court that promotes her availability to perform weddings for a fee.  Washington Opinion 2020-1.
  • A judicial officer may not offer a free weekly drop-in yoga class at the courthouse.  Washington Opinion 2020-2.
  • A new magistrate may continue to teach NRA handgun safety classes.  West Virginia Opinion 2019-14.
  • A magistrate may hold a yard sale to sell his own items for personal gain.  West Virginia Opinion 2019-11.
  • A full-time judge may not serve as a bankruptcy trustee.  Utah Informal Opinion 2019-1.
  • A judge may not retain an ownership interest in property with his former law partners when the firm and other law firms are tenants on the property.  Maryland Opinion Request 2019-35.
  • A judge may make the political party declaration required by statute to vote in the presidential primary.  Washington Opinion 2020-4.
  • A judge whose wife is running for governor may attend fund-raisers on her behalf outside the marital home, but may not appear in a parade with her or introduce her or speak about her at campaign events; the judge’s name and photograph may appear in his wife’s campaign literature or other campaign photograph as long as he is not identified a judge.  West Virginia Opinion 2019-22.
  • A judicial candidate may not characterize an opponent’s prior removal from the ballot when his petitions were invalidated as an inability to “follow the law” and/or a “flagrant disregard for the law” or ask voters to imagine several “disastrous outcomes in serious matters” if the opponent were elected and then “failed to follow the law.”  New York Opinion 2019-112.

 

 

Throwback Thursday

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20 years ago this month:

  • Affirming the findings and recommendations of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge who had engaged in a pattern of conduct in which he acted with hostility towards attorneys, court personnel, and fellow judges, including (1) intimidating 2 attorneys into withdrawing from representation of a client by threatening to recuse from all of their cases; (2) entering an order directing a litigant to show cause why she should not be held in indirect criminal contempt for writing a letter to the governor complaining of the judge’s handling of her case; (3) seeking to hold a guidance clinic counselor in contempt and threatening to put the clinic out of business; (4) limiting the rights of pro se petitioners with domestic violence complaints by requiring employees of the domestic abuse shelter to submit affidavits that stated that they did not furnish any assistance to the petitioners, which chilled the willingness of victims and staff to come forward with legitimate claims, and falsely stating in a letter to a newspaper that the staff of the shelter agreed to use the forms; (5) engaging in a pattern of antagonism with court staff and other judges; (6) independently investigating a bailiff by interviewing a witness without notice to the bailiff and without counsel on his behalf, intending to release the information to a newspaper; (7) slamming a door in a bailiff’s face; (8) inappropriately criticizing a bailiff; (9) entering an order in a capital case improperly implying that 2 attorneys were guilty of unethical conduct without allowing an opportunity to respond and threatening that he would refer any failure of counsel to comply with his directives to the chief justice; (10) denying a motion for recusal and then entering an order inaccurately criticizing defense counsel without affording them an opportunity to respond; (11) suggesting that attorneys in a domestic violence case were encouraging their client to disobey his orders when they filed motions for a stay and finding the client in contempt; (12) falsely accusing an assistant state attorney of attempting to make ex parte contacts with him and threatening to report him to The Florida Bar; (13) falsely accusing an assistant state attorney of stating that he had engaged in ex parte communications; (14) improperly seeking to involve third parties in an internal dispute concerning court administrative matters by publicly disseminating his version of events; (15) verbally attacking fellow judges in a judges’ meeting; (16) violating the confidence of another judge by disclosing the contents of a confidential memorandum; and (17) threatening to assess attorney fees against the clerk of the circuit court.  Inquiry Concerning Shea, 759 So. 2d 631 (Florida 2000).
  • Approving a recommendation of the Judicial Qualifications Commission based on stipulated facts, the Florida Supreme Court publicly reprimanded an appellate judge for berating 2 legal interns who were presenting arguments before the court, cutting short their oral arguments, and making discourteous remarks about the professor who was supervising their arguments.   Inquiry Concerning Schwartz, 755 So. 2d 110 (Florida 2000).
  • Acting on an application of the Commission on Judicial Qualifications, the Iowa Supreme Court publicly reprimanded a judge for (1) holding a hearing to set aside a temporary injunction that another judge had issued while counsel for one of the parties was engaged in the trial of a previously scheduled matter in the same courthouse, (2) failing to recuse from an attorney fee application after announcing his bias toward an attorney who opposed the application, (3) subverting the Commission’s authority to rule on a discovery request by serving on the complaint a subpoena issued by the clerk for the judge’s court, and (4) showing disrespect toward the Commission chair.  In the Matter of Stigler, 607 N.W.2d 699 (Iowa 2000).
  • Adopting the findings of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended from the practice of law for 6 months a judge who, after observing a car being operated erratically, had written the owner a letter on court stationery telling her to contact the court and held an inquisitory hearing without legal authority; the Court stayed the entire 6 months suspension provided the judge engages in no further violations.  Office of Disciplinary Counsel v. Hoague, 725 N.E.2d 1108 (Ohio 2000).
  • Adopting the findings, conclusion, and recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court publicly reprimanded a former judge who, while a judge, had used invitations to pool parties at his residence that were undignified, lacking in taste, and may have been offensive to many of the invitees.  Office of Disciplinary Counsel v. Mascio, 725 N.E.2d 1111 (Ohio 2000).

 

Recent cases

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  • Based on an agreement and stipulation and the judge’s retirement, the Alabama Court of the Judiciary found that a former judge committed misconduct by appointing his son as an attorney in more than 200 indigent cases from August 2015 to July 2017, for which his son was paid approximately $105,000, not including any money paid under an indigent-defense contract, and taking judicial action in some of the cases and ordered that he pay costs of the prosecution.  In the Matter of Chaney, Final judgment (Alabama Court of the Judiciary February 24, 2020).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for ex parte communications with a temporary guardian about a pending matter and an independent investigation in the case.  Stevens, Order (Arizona Commission on Judicial Conduct January 31, 2020).
  • Based on the report of a referee following a hearing, the New York State Commission on Judicial Conduct removed a judge from office for (1) engaging in a pattern of inappropriate behavior toward court staff, including unwelcome comments of a sexual nature; (2) allowing his court secretary to prepare a letter as part of his effort to obtain payment for legal work he had performed prior to becoming a full-time judge; and (3) failing to timely and accurately report his extra-judicial income to the Ethics Commission for the Unified Court System, the Internal Revenue Service, the New York State Department of Taxation and Finance, and the court clerk.  In the Matter of Miller, Determination (New York State Commission on Judicial Conduct February 14, 2020).
  • Adopting the findings, conclusion, and recommendation of the Judicial Standards Commission based on a stipulation and agreement, the North Carolina Supreme Court publicly censured a judge for making “detailed, affirmative and specific factual assertions to the State Bar during its investigation” that he “knew were unsupported by any personal recollection or documentation” and were misleading, grossly negligent, and made with reckless disregard for the truth on letterhead bearing the imprimatur of the North Carolina Judicial Branch.  In re Stone (North Carolina Supreme Court February 28, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for attempting to impose a 10-day jail on a defendant who failed to accept a plea agreement and attempting to influence a witness’s statement to the Commission.  Public Warning of Gray (Texas State Commission on Judicial Conduct February 7, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for removing an attorney as appointed defense counsel in 14 cases, instructing a defendant to “shop around” for another attorney after he removed her defense attorney and failing to appoint her counsel for 3 months, and posting a list of attorneys on the court’s website and disseminating a list to criminal defendants in his court.  Public Warning of Cox (Texas State Commission on Judicial Conduct February 7, 2020).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for failing to maintain her Texas law license in good standing and failing to cooperate with the Commission.  Public Reprimand of Slaughter (Texas State Commission on Judicial Conduct February 7, 2020).

Throwback Thursday

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25 years ago this month:

  • Accepting the recommendation of the Judicial Qualifications Commission, the Georgia Supreme Court removed a magistrate from office for her handling of a dispute with the sheriff and county board.  Inquiry Concerning O’Neal, 454 S.E.2d 780 (Georgia 1995).
  • The New York State Commission on Judicial Conduct removed a non-lawyer judge for handling 365 cases, including committing defendants to jail in 36 cases, without successfully completing the training course required by statute before he could assume the duties of office.  In the Matter of Yusko, Determination (New York State Commission on Judicial Conduct March 7, 1995).
  • The New York State Commission on Judicial Conduct publicly censured a judge for presiding while intoxicated and, in 2 small claims cases, entering judgements based on his conversations with litigants outside of court.  In the Matter of Bradigan, Determination (New York State Commission on Judicial Conduct March 10, 1995).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for, at a number of arraignments, failing to advise the defendants of their rights, and, in 7 cases involving defendants charged with patronizing a prostitute, eliciting potentially incriminating statements, making remarks that presumed guilt, and making sarcastic and inappropriate statements.  In the Matter of Austria, Determination (New York State Commission on Judicial Conduct March 10, 1995).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for dismissing a series of cases without according the prosecutor the opportunity to be heard and, in 3 cases, initiating and considering ex parte communications on the merits.  In the Matter of More, Determination (New York State Commission on Judicial Conduct March 13, 1995).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for, after receiving an inquiry from the Commission concerning his handling of a criminal case, telling the defendant in that case to lie to the Commission.  In the Matter of Menard, Determination (New York State Commission on Judicial Conduct March 13, 1995).
  • The West Virginia Supreme Court of Appeals publicly reprimanded a judge for giving ex parte advice to an assistant prosecuting attorney about an on-going criminal trial.  In the Matter of Starcher, 457 S.E.2d 147 (West Virginia 1995).

 

Conditions

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Many commissions and courts can impose conditions on judges in judicial discipline cases.  For example, the rule in Indiana provides:  “Upon a finding of misconduct . . . or disability . . . , the Supreme Court may impose . . . limitations or conditions on the performance of judicial duties,” alone or in combination with other sanctions.  In 2019, conditions were imposed in over 20 cases, usually with the judge’s agreement.

For example, as part of a stipulation, a judge who was publicly admonished for delays of 392 days and 132 days in deciding 2 family law cases agreed to maintain a list so that pending matters will be regularly brought to his attention and, every 3 months for a year, to affirm in writing that he has no matters with decisions pending beyond 90 days to the Washington State Commission on Judicial Conduct.  In re Fennessy, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 26, 2019).

In several discipline cases, judges were required to undergo a psychological assessment as part of the sanction.  For example, the Maryland Court of Appeals conditioned a judge’s reinstatement after a 6-month suspension without pay on an emotional and behavioral assessment by a qualified health care professional.  The judge was required to “fully cooperate in the health care evaluation and comply with the recommended course of treatment, including counselling, if any;” and, if and when she applies for reinstatement, to provide the Commission of Judicial Disabilities and the Court “a written report from the evaluating health care professional or professionals” about her current medical condition, including any reason why she should not be reinstated as a district court judge.  The judge had (1) failed to treat other judges and courthouse staff with dignity and respect, including repeatedly yelling at court clerks and judges, subjecting court clerks to line-ups when clerical mistakes were made, physically pushing a clerk, and repeatedly attempting to undermine the authority of the administrative judge and (2) abdicated her duty to handle and process search warrant materials as required by statute and instructed a law clerk to destroy warrant materials.  In the Matter of Russell, 211 A.3d 426 (Maryland 2019).

In 2 unrelated cases, the Pennsylvania Court of Judicial Discipline placed judges on probation in addition to sanctioning them and ordered them to complete any treatment complete any recommended treatment by licensed psychologists following a psychological and psychosocial assessments.

In In re Muth, Opinion (October 31, 2018), 220 A.3d 1220 (Pennsylvania Court of Judicial Discipline 2019), the Court 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.  The purpose of the psychosocial assessment, the Court stated, was “to determine the cognitive, behavioral and emotional motivation leading to the inappropriate sexualized behavior . . . .”

In In re Maruszczak, Opinion (January 9, 2019), Opinion (Pennsylvania Court of Judicial Discipline October 4, 2019), the Court publicly reprimanded a judge for, during his re-election campaign, publicly confronting 3 people who supported his opponent and yelling at them, insulting them, and threatening them.  The purpose of the psychological assessment, the Court explained, was “to assess impulse control and anger related issues.“

See also Inquiry Concerning Lemonidis, 283 So. 3d 799 (Florida 2019) (agreeing that a judge continue stress management counseling in addition to a public reprimand, pursuant to a stipulation, for her comments in 2 criminal cases).

The condition most often imposed is a requirement of additional education, often with a mentor.

For example, a judge agreed to participate in a mentoring program he would develop in consultation with the chief judge when he agreed to be publicly reprimanded by the Vermont Judicial Conduct Board for directly contacting attorneys, including attorneys who appeared before him, to ask them to be part of a campaign committee.  In re Glennon, Public reprimand with order (Vermont Judicial Conduct Board August 28, 2019), pursuant to a stipulation.

Ordering instruction with a mentor is an option often imposed by the Texas State Commission on Judicial Conduct.

  • The Commission publicly reprimanded a judge for pulling traffic citations to have an assistant district attorney file a motion to dismiss and/or provide other preferential treatment and ordered that he receive 20 hours of additional instruction with a mentor about traffic citations and warrants. Public Reprimand of Trejo and Order of Additional Education (Texas State Commission on Judicial Conduct April 26, 2019).
  • The Commission publicly warned a judge for refusing to allow a litigant to review and copy the charging documents in his case unless and until he entered a plea and for her policy and practice with respect to requests for access to court files; the Commission also ordered the judge to receive 2 hours of instruction with a mentor on public access to court records and responding to requests for court records. Public Warning of Baggett and Order of Additional Education (Texas State Commission on Judicial Conduct August 8, 2019).
  • The Commission publicly admonished a judge for invoking her judicial position during a telephone conversation with a man she believed was the estranged husband of a woman she believed was cohabitating with her estranged husband; the Commission also ordered that she receive 2 hours of instruction with a mentor, particularly on judicial ethics and professionalism. Public Admonition of Rocha and Order of Additional Education (Texas State Commission on Judicial Conduct August 26, 2019).

Both the Arizona Commission on Judicial Conduct and the Nevada Commission on Judicial Discipline ordered judges to complete the web-based course, “Ethics and Judging:  Reaching Higher Ground,” offered by the National Judicial College.  Guerrero, Order (Arizona Commission on Judicial Conduct March 29, 2019) (reprimand for threatening to hold 2 police officers in contempt for failing to comply with his order to arrest a woman for violating a harassment injunction entered in a proceeding from which the judge had recused himself); In the Matter of Jasperson, Stipulation and order of consent (Nevada Commission on Judicial Discipline July 23, 2019) (reprimand for ordering a landlord jailed for contempt without following the law).

The Nevada Commission also ordered 2 judges to attend at their own expense other specific courses at the National Judicial College, which is located in Reno, Nevada.

  • The Commission publicly censured a judge for using an alternate judge whenever it was his turn to act as on-call search warrant judge for 4 years and failing to cooperate with 3 chief judges and ordered the judge to attend the NJC course “Leadership for Judges.” In the Matter of Hastings, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline March 6, 2019).
  • The Commission publicly admonished a hearing master for ignoring an attorney’s objections to her questioning of a juvenile defendant, interfering with the attorney-client privilege and relationship, yelling at the attorney, attempting to pressure the juvenile into answering her questions by telling her that her probation would be increased if she refused, preventing the attorney from making a record on his objection, and threatening to contact the attorney’s boss; the Commission also ordered the judge to complete “Managing Challenging Family Law Cases: A Practical Approach” at the NJC.  In the Matter of Henry, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline December 12, 2019).

Other examples of education requirements:

  • Based on an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for sharing partisan posts on Facebook. The judge also agreed to complete a program addressing ethical issues and the use of social media; to refrain from making any comments or disseminating any substantially similar social media posts; and to keep his social media platforms private.  Lammey (Tennessee Board of Judicial Conduct November 15, 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 attorney. The judge also agreed to participate in 4 hours of judicial ethics training, not to repeat his conduct, and to read the code of judicial conduct.  In re Spanner, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 22, 2019).