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.