Monthly Archives: July 2020

In response to recent events:  Judicial participation in demonstrations, protests, marches, and rallies

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Tens of millions of people have participated in thousands of racial justice demonstrations across the county since May, and the protests continue.  So far, 6 judicial ethics advisory committees have issued opinions in response to inquiries about whether judges can join them.

The Connecticut Committee on Judicial Ethics issued an opinion about a judicial officer’s desire to participate in a specific way in a specific event.  Connecticut Informal Opinion 2020-3.  The organizers of “A Silent March of Black Female Attorneys of Connecticut” had invited the judicial official to meet the marchers at the steps of the Supreme Court and to speak at the event.  The judicial official wanted to read a section of the state constitution:  “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and they have at all times an undeniable and indefeasible right to alter their form of government in such manner as they may think expedient.”  The judicial officer would not be introduced, identify himself by name or title, wear a robe, permit his name or title to be used in advertising, elaborate on the constitutional provision, or speak with the media.

With respect to the march itself, at the steps of the Court, each female attorney go to “the podium, one at a time, to say “Attorney —-, and I am the Mother of a black man, or the Wife of a black man, or Sister…, or Aunt, or…..”  There would be no comments to the media other than:  “No comment, the evidence speaks for itself.”  The committee noted that supporters would be wearing “We Can’t Breathe” buttons directly referring to the George Floyd case and similar cases and would be encouraged to bring protest signs, although it was not known what the signs would say and whether they would refer to police brutality and/or other pending cases.

The Connecticut committee advised the judicial official not to participate.  It concluded:

  • Because the judicial official “may be called upon to rule in cases that involve claims of police brutality or police abuse, his participation . . . may appear to a reasonable person to undermine the judge’s independence and impartiality . . . .”
  • The judicial official’s “participation will insert him unnecessarily into public controversy . . . .”
  • People would likely figure out the judicial official’s identity.
  • A judicial official speaking in support of the event with the Supreme Court as the backdrop “could undermine the public’s confidence in the independence and impartiality of the judiciary . . . .”

Similarly, the New York Advisory Committee on Judicial Ethics stated that judges may not participate in a “walk for justice” organized by a bar association in which participants would “walk silently on the sidewalk past governmental buildings and ‘take a knee’ in front of a depiction of the U.S. Constitution, ‘as a way to both remember George Floyd” and to recognize judges and court personnel at every level ‘who strive every day to accomplish Dr. King’s goal of justice for everyone.’”  New York Advisory Opinions 2020-92/93.  According to the organizers, there would be no speeches, all members of the legal community could participate, and the walk would be entirely peaceful.

The committee noted its strong belief that “racial justice should not be controversial” but concluded:

In this instance, the controversy surrounds not just the broad principle of racial justice but many fact-specific controversies concerning the impact of race on the criminal justice system, police tactics in interactions with African-Americans and minority communities, the legal doctrine of qualified immunity, and the need for law enforcement accountability.  These and other such issues are already a part of many pending disputes in the Unified Court System.  Similar issues, involving competing legal principles and disputed facts, will surely come before New York’s judges at every level of the judiciary.  In the face of these controversies, judges must inspire confidence on all sides that they can be just and fair to all litigants in all proceedings.  Participation in a high-profile silent “walk for justice,” organized around an intensely emotional appeal concerning a man whose death in police custody has roiled the nation in ongoing protests, could “create an appearance of particular sympathy toward one side in court” and necessarily cast doubt on the judge’s ability to be impartial.

See also New York Advisory Opinion 2020-112 (because “multiple high-profile, racially-charged incidents of police violence have resulted in ongoing or reasonably foreseeable litigation and intense local and national controversy, a judge may not participate in an initiative designed to (a) promote trust and open dialogue between activists and police concerning those incidents and/or (b) recommend changes to current police force deployments, strategies, policies, procedures, and practices”).

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The Colorado and Maryland judicial ethics committees advised in general that judges should not participate in demonstrations, protests, marches, or rallies supporting the Black Lives Matter movements.

The Colorado Judicial Ethics Advisory Board noted that, “in response to recent events concerning racial inequality, a growing number of state courts and judges have issued . . . statements opposing racism and calling for reformation of the legal system and the way in which courts administer justice.”  Colorado Advisory Opinion 2020-2.  The opinion explained that these statements are permissible “because they call on judges and others to recognize that police misconduct and racial bias are problems within the legal system” and “to reflect upon, reform, and improve the justice system.”  According to the committee, those statements were “not political and do not call into question the integrity or impartiality of the judiciary; rather, they instill public confidence in the judiciary and promote ethical conduct among judges and lawyers by promoting access to justice for all.”  (As the committee noted, the National Center for State Courts has collected the statements on racial justice by state courts and chief justices on its website).

In contrast to statements, the committee concluded, “marching in support of the Black Lives Matter movement or the Blue Lives Matter movement gives the appearance of impropriety and bias,” raises questions about a judge’s impartiality and independence, and constitutes an inappropriately “political or divisive” statement, regardless of the judge’s “non-partisan aspirations or . . . subjective belief that he or she is ‘doing the right thing,’ . . . .”  The committee also noted that a case involving the subject of the protest could come before the judge.

In addition, the Colorado committee warned judges not to use social media “to express support for or to protest current political issues,” noting that comments and images on social media “could be disseminated widely.”  The committee explained that this caution should apply not only to posts by the judge but reactions on social media that “validate, endorse, or ‘like’ a person, image, or statement made by another.”  The opinion added that “this concern exists even if a judge does not use his or her title.”

Finally, the committee advised that judges should inform staff under their direction and control to conform to the same constraints regarding marches and social media that apply to the judges.  The committee acknowledged that the code of judicial conduct does not apply to court staff but stated that “a law clerk’s actions may be imputed to his or her judge if the judge becomes aware of the staff member’s behavior and does nothing, or if the judge fails to require a staff member to act in a manner consistent with the judge’s obligations under the Code.”

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The Maryland Judicial Ethics Committee advised that “participation in a march, rally, or protest associated with the Black Lives Matter movement presents a significant risk . . . that the judge will end up in a situation that could undermine the judge’s impartiality.”  Maryland Advisory Opinion Request 2020-13.  The committee noted that its opinion was based in part on its “knowledge of these events, from the news and personally viewing them.”  The committee stated that it was not addressing a specific event and could not give a definitive answer for all circumstances.

The committee expressed concern that the events were focused “on law enforcement and perceived shortcomings in the system of justice” and that a judge, “particularly in a large gathering,” would not be able to know about or control the signs displayed by other participants, which could include messages such as “Defund the Police” or “We Can’t Breathe.”  The committee concluded that “a depiction of a judge, on social media or otherwise, at an event with signs such as these, could lead a reasonable person to question the judge’s impartiality in cases involving the police.”

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The Indiana and California judicial ethics committees approached the issue by listing factors a judge should consider when deciding whether to participate in an event in general, without approving or disapproving participation in any particular event or type of event.

The Indiana Judicial Qualifications Commission stated that a judge may participate in public events aimed at addressing social issues if the judge can do so without impinging on the independence, integrity, and impartiality of the judiciary.  Indiana Advisory Opinion 2020-1.  The Commission stressed that the determination was fact sensitive and encouraged judges to consult with its staff about specific events.

The Commission listed “guiding principles/factors that a judge should consider in his/her evaluation:”

  • The title of the event;
  • The purpose of the event;
  • The organizers and sponsors of the event;
  • The details of the event; and
  • The role of the judge at the event.

The Commission stated that a judge should not attend:

  • An event “with a “provocative or advocacy-oriented the title;”
  • An event that “primarily serves an advocacy or political purpose;”
  • A fund-raiser if the judge is a featured speaker;
  • An event that “touches upon a pending matter currently before the judge,” for example, an event aimed at raising awareness about police practices “if the judge currently has a civil lawsuit on his/her docket regarding the city’s response to excessive force incidents);”
  • An event primarily “sponsored or affiliated with a political party or candidate;”
  • An event primarily supporting or opposing a political party or candidate;
  • An event with the primary purpose of influencing the actions of a political candidate or party, even if it is sponsored by a non-partisan group;
  • An event held by an advocacy group or a frequent litigant in the judge’s court unless “it is for a nonadvocacy purpose and the judge can participate in a manner that will not raise public concern about the judge’s impartiality;”
  • An event “held in a time, place, or manner where participants likely will violate the law,” for example, by violating curfew or becoming violent; or
  • An event that has a history of violence.

If a judge is asked to be a featured speaker or guest of honor at an event, the committee advised, the judge should “carefully review all invitational materials to determine whether his/her featured presence may cause frequent disqualification or might subject the judge to concerns that the judge is improperly using the prestige of judicial office to further the organization’s goals.”  The committee stated that a “judge should not allow his/her legal title to be referenced during the event and should not wear any clothing identifying him/her with the judiciary” unless the matter specifically involves “the law, the legal system, or the administration of justice.”

If a judge decides to attend the event, the committee cautioned the judge:

  • To act temperately and judiciously at all times, and
  • To be prepared to leave immediately if circumstances change, for example, if “the majority of protesters are carrying signs supporting/opposing a political candidate).”

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The California Supreme Court Committee on Judicial Ethics Opinions suggested that, to “make their views on a subject known,” judges might consider writing a letter or providing a written statement or opinion to the press to “avoid many of the risks inherent in participating in a public demonstration or rally” and to “maintain control over the tone and substance of the message they wish to convey.”  California Supreme Court Advisory Committee Formal Opinion 2020-14.

With respect to attending demonstrations or similar events, the committee warned judges to “always assume that their attendance will be known and that their conduct may be subject to comment and reporting in press coverage or on social media.”  In general, the committee stated:

Judges may not participate in a public demonstration or rally if:  (a) participation might undermine the public’s confidence in the judiciary; (b) the event relates or is likely to relate to a case pending before a court, relates to an issue that is likely to come before the courts, or is reasonably likely to give rise to litigation and the judge’s attendance might lead to disqualification; (c) participation would or is likely to cause a violation of the law . . . ; (d) participation would create the appearance of speaking on behalf of, or lending the prestige of office to, a political candidate or organization; or (e) participation would interfere with the proper performance of judicial duties.

Before deciding to attend a protest or similar event, the committee stated, judges should:

  • Examine the event’s official title, its stated mission, its sponsors, and its organizers;
  • Investigate the agenda, including the organizers’ objectives;
  • Evaluate the risk that organizers or supporters will express views that might reasonably be perceived to compromise the judge’s independence and impartiality;
  • “Take reasonable efforts to determine the messages that will be delivered by other participants;”
  • “Take reasonable efforts to determine . . . the risks that the demonstration or rally might depart from its original mission;”
  • Determine the meaning of any “unfamiliar terms, symbols or abbreviations” used in invitations or other promotional materials; and
  • Consider how the public will perceive of their participation.

The California committee stated that a judge should not attend:

  • An event that “is promoted using derogatory or disrespectful references to individuals, groups of people or communities;”
  • An event that is sponsored or organized by individuals or entities that regularly appear in state court proceedings;
  • An event that seems likely to “result in a confrontation between participants and others, including law enforcement;”
  • An event that seems likely to “lead to unlawful acts;”
  • An event that does not have proper permits;
  • An event that might “not conclude before a lawful curfew” unless the judge can leave early; or
  • An event that would require the judge to reschedule official duties to attend.

If, after engaging in that analysis, a judge decides to attend, the committee stressed that, at the event, the judge:

  • Should not engage in a “symbolic act,” carry a sign, wear clothing or buttons that might identify the judge as siding with a particular viewpoint;
  • Should be mindful “of any risks that the demonstration or rally might evolve in ways that could violate the judge’s ethical duties” and be prepared to leave;
  • Should leave if other participants carry signs or chant slogans “that are inflammatory, derogatory, and inconsistent with the judge’s own ethical duties;” and
  • Should not make a public statement on even permissible topics that would undermine the public’s confidence in the judiciary, lend the prestige of their office to further the personal interests of the individuals or entities organizing the event, commit the judge to a position on a topic likely to come before the courts, or comment about a pending or impending proceeding.

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The Center for Judicial Ethics has compiled and posted on its website summaries of judicial ethics advisory opinions about participating in marches, demonstrations, vigils, protests, rallies, and other issue-related community events, including the ones issued in 2020 and those about participation in demonstrations after the 2016 election.  That document will be up-dated as additional opinions are issued.  Also, please watch our inaugural CourtClass Ethics-in-Brief tutorial on judges and court employees participating in marches and demonstrations at:  https://vimeo.com/442133613.

Throwback Thursday

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5 years ago this month:

  • Based on an agreement, the Kentucky Judicial Conduct Commission suspended a judge for 7 days without pay for raising a bond without notice and abusing her contempt power by holding the defendant’s mother in contempt for calling her a “b***h” outside her presence without a notice, a hearing, or the opportunity to have counsel present. In re Prewitt (Kentucky Judicial Conduct Commission July 10, 2015).
  • Accepting in part the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge for a mental disability that prevented the performance of her judicial duties, failing to cooperate with the Commission in its investigation, and making intentional misrepresentations to the Commission, to her employer, and to courts in which she was involved in litigation. In re Sanders, 865 N.W.2d 30 (Michigan 2015).
  • Based on the judge’s agreement following a referee’s report, the New Hampshire Supreme Court suspended a judge for 60 days without pay and censured him for dismissing a petition for involuntary admission after becoming angry with the sheriff’s deputy for refusing to remove the respondent’s handcuffs and without giving the petitioner an opportunity to be heard and blaming the deputy in a subsequent order. In the Matter of Lyons, Order (New Hampshire Supreme Court July 10, 2015).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for requesting leniency for his son from 2 law enforcement officers. In the Matter of Sullivan, Determination (New York State Commission on Judicial Conduct July 14, 2015).
  • Pursuant to an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for requiring defendants to perform public service work in order to be granted appointed counsel; sentencing defendants to jail for contempt if they did not complete public service work required for the appointment of counsel; without regard for their personal financial means, denying appointed counsel or revoking individuals’ bonds if they requested appointed counsel; ordering cash-only bonds in violation of law; requiring the waiver of the constitutional right to counsel and a jury trial as a prerequisite for a continuance: allowing some defendants as a requirement of probation or to obtain appointed counsel to donate items to charities specified by the judge; and refusing defendants’ requests for appointed counsel without conducting an indigency hearing. In re Holley, Reprimand and agreed cease and desist order (Tennessee Board of Judicial Conduct July 6, 2015).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for exchanging ex parte emails with a prosecutor and continuing a hearing in a case. In re Kondo, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 17, 2015).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a former judge for receiving a discounted carpool parking rate when he did not carpool. In re Bonner, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 17, 2015).

 

A sampling of recent judicial ethics advisory opinions

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  • A judge presiding over a proceeding being conducted in parallel to multi-district federal litigation on the east coast may not accept reimbursement from the parties or their attorneys for travel, lodging, meals, and other expenses incurred in connection with the matter but must seek reimbursement from the courts following the policies and procedures and using the reimbursement rates approved by the Judicial Council. California Oral Advice Summary 2020-33.
  • Judges may preside over the swearing-in ceremonies for new assistant state’s attorneys in courtrooms during court hours. Maryland Opinion 2020-2.
  • A town or village justice court must not promote or favor mail-in pleas and/or plea bargaining over other options even to mitigate the effects of the COVID-19 outbreak or “collaborate” with prosecutors to develop procedures to process pleas on paper and establish a mail-in plea bargaining process for defendants charged with vehicle and traffic law infractions. A court may invite defense bar representatives and the prosecution to discuss procedures for handling mail-in pleas on traffic infractions and distribute a court-prepared form impartially listing all options for a defendant motorist and including a link to the district attorney’s website and/or email address as a convenience to defendants.  New York Opinion 2020-99. 
  • A letter to the judges in a district from a coalition of agencies seeking to assist tenants in eviction cases during the COVID-19 pandemic is not an ex parte communication that requires disclosure to opposing parties. The judges or their designee may meet with attorneys from those agencies to discuss scheduling and public health risks, but the judges should encourage other attorneys or interested parties to participate in the meeting as well.  Judges may not refer litigants to specific attorneys or groups but may tell an unrepresented litigant that they have a right to seek the assistance of counsel and that there are organizations that may assist them on a reduced or a no-fee basis.  Judges may not have a blanket rule that all continuances will be granted or denied in any type of case as requested by the coalition.  Judges may not provide information about available legal services with eviction summonses, but information about the coalition’s activities may be posted in a highly visible place near courtrooms and in other locations throughout the courthouse.  Nebraska Opinion 2020-1.
  • A judge may discuss pending or impending matters with other judges and court clerks at a magistrate’s association meeting in a confidential setting with no others present. When a judicial association’s email contact list includes individuals who are not judges or court personnel, a judge cannot assume emailed discussions would be confidential or private and must comply with generally applicable limitations on judicial speech.  New York Opinion 2020-38. 
  • Subject to generally applicable limits on judicial speech and conduct, a judge may publicly identify the strengths and weaknesses in recent bail reform legislation and suggest that the legislature seek additional comments or testimony to improve the law. New York Opinion 2020-42. 
  • A judge may not be involved in efforts to encourage the state legislature to ratify the Equal Rights Amendment. Utah Informal Opinion 2020-2. 
  • A judicial officer may not participate in “A Silent March of Black Female Attorneys of Connecticut” by meeting marchers on the steps of the Supreme Court and reading part of the state constitution even if he is not introduced, does not identify himself by name or title, does not wear a robe, does not permit his name or title to be used in advertising, does not elaborate on the constitutional provision, and does not speak with the media. Connecticut Informal Opinion 2020-3.
  • A judge may participate in a museum’s documentary film commemorating the passage of an amendment to the U.S. Constitution if the film will not be used for fund-raising. New York Opinion 2019-166. 
  • A judge may teach a law school course based on a now-concluded homicide trial in her jurisdiction only if the time for appeals is exhausted and no related matters are pending or reasonably foreseeable. In teaching the class, the judge may only use materials from the public record.  New York Opinion 2020-31. 
  • A judge may speak at a free elder abuse awareness conference sponsored by a not-for-profit home health care agency if the program is primarily educational and preventative in nature. New York Opinion 2020-44. 
  • A judge may volunteer as a disc jockey for a not-for-profit college radio station. New York Opinion 2020-49. 
  • A judge may not play the role of a judge in a theatrical performance to raise funds for her house of worship. New York Opinion 2020-57. 
  • A judge may not serve as stewardship co-chair for her house of worship. New York Opinion 2020-62. 
  • A judge may serve on the board of directors of a regional chapter of the Polish American Congress. New York Opinion 2020-71. 
  • A judge may not, as a member of a political party and without disclosing her judicial position, write to state or federal representatives or senators expressing her personal positions; attend meetings, rallies, or events for candidates for office; volunteer for candidates in any capacity at their office or in contact with the general public; canvass in other states to support candidates for national office or candidates for office in those other states; or engage in any similar efforts to support candidates for any political office. New York Opinion 2020-51. 

 

Throwback Thursday

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10 years ago this month:

  • Based on an agreement for discipline by consent, the Maryland Court of Appeals suspended a judge without pay for 5 work days for deflating a tire on an automobile parked in his reserved parking space at the courthouse. In the Matter of Nalley, 999 A.2d 182 (Maryland 2010).
  • Accepting the recommendation of the Judicial Tenure Commission, to which the judge consented, the Michigan Supreme Court publicly censured a judge for releasing a county commissioner on his own recognizance on a day he was not scheduled to do arraignments after calls from another county commissioner. In re Logan, 783 N.W.2d 705 (Michigan 2010).
  • Adopting the findings of the Judicial Tenure Commission, the Michigan Supreme Court suspended a judge for 14 days without pay and publicly censured him for dismissing 30 family law cases as the time guidelines threshold approached to avoid those cases being identified as out of compliance, but continuing to work on the cases. In re Halloran, 783 N.W.2d 709 (Michigan 2010).
  • Based on the recommendation of the Commission on Judicial Qualifications, the Nebraska Supreme Court removed a judge from office for interfering in a criminal case against a softball coach and a juvenile case involving a softball player. In re Florom, 784 N.W.2d 897 (Nebraska 2010).
  • Agreeing with the recommendation of the Board of Commissioners on Grievances and Discipline based on the parties’ stipulations, the Ohio Supreme Court suspended a judge from the practice of law for 1 year (with 6 months stayed with conditions) for (1) investigating a criminal matter pending in his court; (2) failing to be patient, dignified, and courteous; (3) using his position to pressure the city law director’s secretary to bring the law director’s file on a defendant to the court; (4) improperly handling proceedings to appoint counsel for indigent defendants; (5) comments that gave the impression that 3 defendants were remanded into custody due to a failure on the part of the county commissioners; (6) placing a defendant in a holding cell until he was ready to discuss her case; (7) creating the appearance that he was trying to force the mayor to execute a law director’s contract; (8) involving himself in the formulation of charges against a defendant; and (9) badgering 2 defendants about their eligibility for appointed counsel. Disciplinary Counsel v. Campbell, 931 N.E.2d 558 (Ohio 2010).
  • Accepting the recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a former judge from the practice of law for 1 year (with 6 months stayed with conditions) for (1) failing to maintain or provide complete records of the proceedings in his courtroom; (2) unreasonably delaying compliance with a mandate of the court of appeals on remand; (3) engaging in an improper ex parte communication with a prosecutor; (4) expressing an opinion on an issue of fact in the jury’s presence, berating defense counsel during closing argument, and refusing to grant a mistrial based upon his own prejudicial conduct; and (5) refusing to accept a guilty plea for a misdemeanor speeding violation based on his mistaken belief that the prosecutor was statutorily required to charge the defendant with a greater offense. Disciplinary Counsel v. Plough, 931 N.E.2d 575 (Ohio 2010).
  • The Pennsylvania Court of Judicial Discipline suspended a judge for 60 days without pay for “scary” conduct “akin to stalking” toward 4 female lawyers (2 of whom occasionally appeared before the judge and 1 of whom was another judge’s clerk) and toward a 17-year-old girl who had appeared in his court; the Court also placed him on probation. In re Alonge, 3 A.3d 771 (Pennsylvania Court of Judicial Discipline 2010).
  • Based on an agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for hiring her daughter as her court officer without considering other qualified applicants and authorizing a salary for her that was commensurate with the position even though she had no experience or training. In re Dumas, Reprimand (Tennessee Court of the Judiciary July 16, 2010).

 

Recent cases

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  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to issue a ruling in a dissolution case for almost 6 months and signing payroll certifications that did not reflect the matter as pending for more than 60 days. Astrowsky, Order (Arizona Commission on Judicial Conduct May 19, 2020).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to disqualify herself from cases involving an attorney against whom she appeared to be biased and prejudiced and failing to comply with disclosure and waiver requirements in cases involving the police department where her husband is a sergeant. Gregory, Order (Arizona Commission on Judicial Conduct May 19, 2020).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a part-time judge for using his judicial title/status in posts on the Facebook page for his campaign for sheriff. Barth, Order (Arizona Commission on Judicial Conduct June 10, 2020).
  • Based on the findings of 3 masters, the California Commission on Judicial Performance removed a justice on the court of appeal from office for (1) engaging in a pattern of unwelcome, undignified, discourteous, and offensive conduct toward a female appellate justice that would reasonably be perceived as sexual harassment, including multiple instances of unwanted touching; (2) making comments to a female highway patrol officer about her appearance and making comments to her that were unflattering about his wife; (3) engaging in unwelcome, undignified, and discourteous behavior toward 2 female research attorneys that would reasonably be perceived as sexual harassment; (4) engaging in inappropriate conduct toward 2 female judicial assistants, a female research attorney, and a female appellate justice; (5) displaying poor demeanor toward a female appellate justice, a female judicial assistant, a female research attorney, and a male research attorney; (6) engaging in a pattern of conduct toward 5 female attorneys who did not work for the court that demeaned the judicial office and lent the prestige of office to advance his personal interests; (7) appearing to be under the influence of alcohol on 7 occasions, 5 of which were at the courthouse late at night; and (8) using profanity to refer to 2 female justices when speaking to highway patrol officers. Inquiry Concerning Johnson, Decision and order (California Commission on Judicial Performance June 2, 2020).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a part-time judge from office for repeatedly using degrading, profane, vulgar, and sexist language in emails with 2 clients that insulted their daughter, opposing counsel, and the presiding court attorney referee, including using “an extremely crude gender-based slur to describe opposing counsel.” In the Matter of Senzer (New York Court of Appeals June 23, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for failing to render decisions in 6 small claims cases for between 5 and 47 months, long after the time required by statute. In the Matter of Corretore, Determination (New York State Commission on Judicial Conduct June 22, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for commenting about pending criminal charges and making disparaging comments about the defendant on 3 different dates in his courtroom, outside the presence of the defendant and his attorney. In the Matter of Pebler, Determination (New York State Commission on Judicial Conduct June 17, 2020).
  • Accepting an agreed statement and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for, on 3 occasions, making inappropriate comments to and about lawyers and others and failing to disqualify himself from a probation violation matter after expressing negative views regarding the Department of Probation, a probation department employee, and an employee of the Department of Health. In the Matter of Gerber, Determination (New York State Commission on Judicial Conduct June 27, 2020).
  • Adopting the findings and recommendation of the Board of Professional Conduct, which were based on a stipulation, the Ohio Supreme Court publicly reprimanded a judge for driving while under the influence of alcohol and making repeated non-responsive references to his judicial office after being stopped by a law enforcement officer. Disciplinary Counsel v. Gonzalez (Ohio Supreme Court June 11, 2020).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for expressing his opposition to a building permit in emails to city officials that were sent from his work email address and identified him as a judge in the signature block; the judge also agreed to complete 1 hour of training. In re Lucas, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 26, 2020).
  • Approving a resolution proposed by a special committee, the Judicial Council of the U.S. Court of Appeals for the 7th Circuit publicly admonished a judge of the U.S. District Court for the Eastern District of Wisconsin for the first 2 sentences of a law review article he wrote entitled, “The Roberts Court’s Assault on Democracy,” which was published in the Harvard Law Review. Resolution of Complaints Against Adelman (7th Circuit Judicial Council June 22, 2020).

Throwback Thursday

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20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for issuing a temporary restraining order in favor of Wal-Mart while the judge and his wife owned approximately $700,000 worth of Wal-Mart stock. Letter to Huffman (Arkansas Judicial Discipline & Disability Commission July 24, 2000).
  • Pursuant to the recommendation of the Commission on Judicial Qualifications, the Iowa Supreme Court removed a judge for (1) conducting initial appearances in her office, preventing others from being present; (2) violating clear procedural requirements when conducting arraignments and handling no-contact orders; and (3) frequent conflicts with almost all of the people with whom she came in contact.  In the Matter of Holien, 612 N.W.2d 789 (Iowa 2000).
  • Pursuant to an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court publicly reprimanded a judge and fined her $861.50 for dismissing approximately 11 tickets based on her ex parte communications with the defendants or other persons without notice to the officer or a hearing or trial. Commission on Judicial Performance v. Boykin, 763 So. 2d 872 (Mississippi 2000).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for playing the role of a judge in a commercial motion picture. In the Matter of Wolfgang, Determination (New York State Commission on Judicial Conduct July 5, 2000).

More Facebook fails and advice

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Finding that “the extreme facts” of the case rebutted “the presumption of judicial impartiality” and established a due process violation, the Wisconsin Supreme Court held that a serious risk of actual bias was created in a custody dispute when, while his decision was pending following a contested hearing, the trial judge accepted a Facebook “friend request” from the mother; she interacted with him, including “liking,” “loving,” or commenting on at least 20 of his Facebook posts; and she “shared” and “liked” several third-party posts related to domestic violence, which was an issue in the case.  In re Paternity of B.J.M. (Wisconsin Supreme Court June 16, 2020).  The Court affirmed the decision of the court of appeals reversing the trial judge’s denial of a motion for reconsideration of his decision in the mother’s favor and remanding the case with directions that it proceed before a different judge.

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A judge who failed to immediately recuse from all cases involving a female defendant with whom he was communicating on Facebook Messenger and by telephone, in addition to other misconduct, resigned and agreed to a permanent bar from judicial office pursuant to an agreement with the Arkansas Judicial Discipline & Disability Commission.  Letter of resignation and prohibition from office (Throesch) (Arkansas Judicial Discipline & Disability Commission May 1, 2020).

On April 15, 2018, the judge began communicating with a woman “on a personal level” by Facebook Messenger and telephone, progressing “from friendly to flirty.”  On June 4, the woman told the judge that she was facing charges in the district court on which he sat and a potential probation revocation in the circuit court.  The judge did not immediately recuse himself from her cases and continued to communicate with her.  On July 11, when the woman’s case was called in the judge’s courtroom, she entered a plea.  The judge then recused himself, and the case was set for a conflict docket to be heard by a special judge.

After he recused himself, the judge sent the following messages to her on Facebook Messenger, indicating that he would help with her charges:

  • “Are you done with everything except what u [sic] have in my court?”
  • “I am going to look at those [sic] traffic stuff and see what we can do. Your [sic] really trying and I hate to see u [sic] buried in fines.  I would do that for anyone who’s trying.”
  • “Well I want u [sic] to get everything behind u [sic]. We need to talk so I k ow hoe [sic] to help u [sic].”
  • “Message me first thing in the morning and I will call. Make sure you don’t tell anyone ur [sic] talking to me for lots of reasons.”

On July 27, the woman sent explicit photographs to the judge’s cell phone; in texts, the judge “requested additional photographs of the same nature.”

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A Texas judge has asked for review of the admonition she received for congratulating attorneys on winning jury verdicts in her court and lauding their results and professional backgrounds in 8 posts on her Facebook page, which identifies her as a judge and which she uses to disseminate information about the court to the public.  Public Admonition of Gonzalez (Texas State Commission on Judicial Conduct March 18, 2020).

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Effective July 2020, new commentary to Canon 2B of the California code of judicial ethics explains:

If a judge posts on social networking sites such as Facebook or crowdsourced sites such as Yelp or TripAdvisor, the judge may not lend the prestige of judicial office to advance the pecuniary or personal interests of the judge or others.  For example, a judge may not comment on, recommend, or criticize businesses, products, or services on such sites if it is reasonably likely that the judge can be identified as a judge.

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Based on her admissions, the Montana Supreme Court suspended a judge for 30 days without pay for, in addition to other misconduct, (1) failing to remove from her Facebook page endorsements of her campaign from the county Republican Party, a Republican candidate for the state house of representatives, and a Libertarian candidate for the U.S. House, and (2) publicly endorsing on her personal Facebook page the Republican candidate for county commissioner and the Republican incumbent candidate for county attorney.  Inquiry Concerning Harada, 461 P.3d 869 (Montana 2020).  Montana judges are chosen in non-partisan elections, and the Montana code of judicial conduct prohibits judges and judicial candidates from publicly endorsing a partisan candidate for a non-judicial public office and from using endorsements from partisan political organizations, partisan office-holders, or partisan candidates for non-judicial public office.

The judge admitted the violations but noted that she had established privacy settings on her personal profile to keep Facebook posts expressing her personal views from becoming public, relying on American Bar Association Opinion 462 (2013).  The judge acknowledged that the Judicial Standards Commission’s requirements were “more stringent” than the ABA’s guidance.  The ABA opinion states:  “Judges may privately express their views on judicial or other candidates for political office, but must take appropriate steps to ensure that their views do not become public,” by managing privacy settings on social media sites to restrict “the circle of those having access to the judge’s [social media] page,” to limit the ability of some connections to see others, to limit who can see the judge’s contact list, or to block a connection entirely.

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Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for, during her election campaign, liking or replying to crude comments on Facebook by her supporters about her election opponent, in addition to other misconduct.  In the Matter of VanWoeart, Determination (New York State Commission on Judicial Conduct March 31, 2020).  Screenshots of the Facebook posts are included with the agreed statement of facts.

During her 2018 campaign for office, the judge created and administered a Facebook group called “Friends to Elect Michelle VanWoeart Judge for the Town of Princetown.”  The incumbent, Judge Norm Miller, was her opponent in both the primary and general elections.

After the primary, another member of the Friends to Elect Michelle VanWoeart group posted:  “Michelle VanWoeart you won???  YESSSSSSSS congratulations!!!!!!  Time to take out the trash!!  #amen #outwiththetrash #sorrynotsorry,” which was a reference to then-judge Miller.  The judge clicked the “like” button on that post.

Another member posted:  “Great job, Princetown!!  BUT, Dirt Bag Norm will try to find some obscure line to keep going ….. don’t let your guard down on this SH*T HE*D.”  The judge replied, “Thank you.”

The judge published a post on the Friends group page stating, “Yup.  Millers [sic] flyers sent out packed full of lies.”  The judge clicked the “like” button on a comment another member posted:  “I’d like to shove the flyers up Norm’s butt!”

After the general election, another member of the group page posted a “gif” image of a man throwing a bag of trash down a driveway and into a trash can, with the statement, “I knew you had this!  Congratulations!!  The trash has been taken out!”  The judge clicked the “like” button on the post.

The judge stipulated that her responses to the posts had violated the provision in the New York code of judicial conduct requiring that a judicial candidate “maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary.”

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The Florida judicial ethics committee issued 2 advisory opinions on the use of social media in judicial election campaigns.

  • A judicial candidate’s campaign committee may maintain a Facebook page and post on the candidate’s behalf communications written in the first person about, for example, campaign events, candidate appearances, public speeches, and the candidate’s qualifications, provided the first-person communications do not seek financial support or public statements of support. Florida Advisory Opinion 2020-10.
  • A judicial campaign website or social media page may include a video of the candidate personally describing their experience, qualifications, and similar subjects; an invitation to potential followers to watch the campaign website for updates and to submit questions to the candidate; and personal requests for support in both English and Spanish, as long as the candidate does not ask for donations and the candidate’s answers to questions do not constitute promises of future conduct or other prohibited statements. Florida Advisory Opinion 2020-13.

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In an advisory opinion, the Michigan judicial ethics committee stated that judicial candidates may advertise their own campaigns on their “personal or professional social media accounts” as long as it is the candidate’s committee, not the candidate, that solicits funds.  Michigan Advisory Opinion JI-147 (2019). In general, the opinion stated that judges may have social media accounts as long as their activity on those platforms does not violate the code of judicial conduct.  The committee emphasized that the format does not change a judge’s ethical obligations “even though social media allows a greater audience with a single click” but noted that “this creates potential issues for judicial officers . . . who post matters without thinking through the matter thoroughly.”

In a separate opinion, the Michigan committee advised that judges may show their support for charitable organizations on social media.  Michigan Advisory Opinion JI-148 (2029).  Specifically, the committee advised that “judges may allow their names and photographs to be shown on the website or in the social media of a charitable organization if the use does not:  (1) appear to be the judge’s personal solicitation for funds; (2) coerce participation from others; or (3) compromise the integrity of the court.”  The opinion also stated that judges may include in a social media profile their membership on charitable boards and allow those positions to be listed on the organizations’ websites and social media “as one among many board members.”  Such references are akin to “the judge’s curriculum vitae for public speaking engagements” and “a digital version of the old-school concept of letterhead.”

However, the committee advised that a judge should not post about making a specific pledge or donation to a charitable organization because such a post “is likely to be perceived” as the judge’s personal suggestion that others should “follow suit.”  Further, to prevent the implication that the prestige of office is being used to benefit the organization, the opinion stated, an organization should not publicly disclose a financial contribution by a judge in a different manner than a contribution by any other individual.

The opinion also emphasized that, if a judge has reservations about an organization, the judge should avoid any association, including through social media and other digital media.  Specifically, the committee noted the prohibition on a judge associating with an organization that “discriminate[s], or appear[s] to discriminate, on the basis of race, gender, or other protected personal characteristic.”

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A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct Reporter.  Part 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

 

Throwback Thursday

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25 years ago this month:

  • Pursuant to the judge’s consent, the California Commission on Judicial Performance publicly admonished a judge for saying “good boy” to an African-American adult man during a hearing.  Public Admonishment of Flier (California Commission on Judicial Performance July 27, 1995).
  • Upholding the recommendation of the Commission on Judicial Performance, the California Supreme Court removed a judge from office for (1) engaging in several business transactions with and accepting a gift from a litigant to whom he had awarded a substantial verdict, (2) advising members of a law firm on cases pending before other judges, (3) receiving gifts from attorneys whose interests had or were likely to come before him, (4) failing to disqualify himself or disclose his relationship with those attorneys or their firms when they appeared before him, and (5) making material misrepresentations and omissions to the Commission during its investigation.  Adams v. Commission on Judicial Performance, 897 P.2d 544 (California 1995).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) in 10 cases, repeatedly issuing dispositive orders without making findings of fact or setting forth his reasoning, contrary to law, and despite criticism by the appellate court; (2) repeatedly refusing to accept reply papers on the day of oral argument for contested motions, even though the papers were served within the permissible period, despite appellate court decisions reversing his rulings on grounds of his refusal to accept such papers; (3) a heated verbal confrontation with a neighbor that resulted in the judge being questioned by the police; and (4) failing to fully disclose his income and liabilities for 1992 in the financial disclosure statement required by law.  In the Matter of Dier, Determination (New York State Commission on Judicial Conduct July 14, 1995).
  • The New York State Commission on Judicial Conduct publicly censured a judge for imposing a sentence in a case to retaliate against the defendant for firing her from her other employment. In the Matter of Lindell-Cloud, Determination (New York State Commission on Judicial Conduct July 14, 1995).
  • The North Dakota Supreme Court publicly censured a former judge for serving as a member of a municipal airport authority while serving as a judge and drafting agreements between the authority and 2 individuals.  In the Matter of Grenz, 534 N.W.2d 816 (North Dakota 1995).