Coronavirus and judicial conduct

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.

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