Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for his tone during an eviction trial, failing to afford either party a fair opportunity to be heard, and simultaneously entering judgment for the defendant and dismissing the case without prejudice. Fletcher, Order (Arizona Commission on Judicial Conduct August 14, 2015).
  • Adopting the findings of 3 masters, the California Commission on Judicial Performance severely censured a judge for calling the county jail and ordering the own-recognizance release of a person he knew socially. Inquiry Concerning Petrucelli, Decision and order (California Commission on Judicial Performance August 18, 2015).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for making improper contributions to political organizations and candidates directly and through his law firm. In the Matter of Sakowski, Determination (New York State Commission on Judicial Conduct August 20, 2015).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for improper contributions to political organizations and candidates through his law firm and his spouse. In the Matter of Fleming, Determination (New York State Commission on Judicial Conduct August 20, 2015).
  • Based on the judge’s admission of the factual allegations, the Pennsylvania Court of Judicial Discipline removed a judge from office for not filing state and federal tax returns for 5 years, failing to remit approximately $130 in sales tax owed by a shoe store she owned, opening the store without a license, and pleading guilty to 3 misdemeanors (for dismissing several of her own tickets) and 1 summary offense (the business license violation). In re Ballentine, Opinion and order (Pennsylvania Court of Judicial Discipline August 4, 2015).
  • The Pennsylvania Court of Judicial Discipline removed a former supreme court justice from office based on her conviction in state court of theft/diversion of service, criminal conspiracy, and misapplication of entrusted property. In re Orie Melvin, Opinion and order (Pennsylvania Court of Judicial Discipline August 14, 2015).

 

Officer of the court candor

In several recent judicial discipline cases, judges were sanctioned for failing to be truthful and forthcoming with law enforcement.

The Illinois Courts Commission removed a judge from office for making false and misleading statements to detectives investigating the discharge of a firearm in his apartment, in addition to other misconduct.  In re O’Shea, Order (Illinois Courts Commission September 27, 2019).

In September 2017, the judge’s neighbors found a bullet inside their apartment and contacted the police.  When detectives went to the judge’s apartment, he initially told them that a hole in his wall had been caused by a screwdriver.  After the detectives told him that his neighbors had found a bullet, the judge suggested that his son may have accidentally fired a bullet through the wall.  On further questioning, the judge admitted that he had accidentally discharged a firearm and that the bullet had gone through the wall.

At the hearing before the Commission, the detectives testified that the judge’s admission came after they had interviewed him for at least 15 minutes.  The judge initially claimed that he had immediately told the detectives that the hole was from a bullet and denied blaming a screwdriver or his son.  The judge then testified that, although a screwdriver had been his first explanation, he had admitted only a few seconds later that he had fired a bullet through the wall.

The Commission found that the detectives were “credible, believable, and . . . had no basis for any bias,” and that the judge’s “testimony was not credible, not believable, and not truthful.”  The Commission emphasized that, although firing the bullet through the wall was not related to the judge’s duties, his “response to the incident was unacceptable for an officer of the court.”

* * *
The Illinois Commission removed a second judge for failing to disclose information relevant to the investigation of a homicide and providing false statements when questioned by police detectives.  In re Duebbert, Order (Illinois Courts Commission January 10, 2020).

Duebbert met David Fields in 2013, before he was a judge, and they developed and maintained a close personal relationship.  In 2015, Fields pled guilty to aggravated assault on a pregnant person and was incarcerated.  While Fields was incarcerated, Duebbert and Fields remained in contact through telephone calls, written correspondence, and the judge’s personal and attorney visits.

On October 24, 2016, Fields was released on mandatory supervision.  On November 4, Fields moved into the judge’s home.  On November 8, Duebbert was elected judge.  On December 2, Fields moved back to his mother’s home.  On December 5, Duebbert was sworn in as a judge.

On December 29, the judge and Fields exchanged texts; Fields used a cell phone with a 650 area code that was in the judge’s name and that the judge had given him to use several times, including earlier that day.

Early the next morning, December 30, Carl Silas was murdered.

Later that morning, Fields called the judge; their conversation lasted just over 3 minutes.  By noon, the judge knew that Field was a suspect in Silas’s murder.

That afternoon, 2 state police officers investigating the murder interviewed the judge at his home.  The officers asked the judge about his firearms and the 650 phone.  The interview was recorded.

In the discipline proceedings, the officers testified that, when they asked who had the 650 phone, the judge said that Fields had given it back to him in late November or early December and did not tell them that he had returned the phone to Fields the night before, that Fields had used that phone to text him the night before, or that he had received a phone call from Fields earlier that day.  The judge told the officers more than once that “if” he heard from Fields, he would tell Fields to turn himself in to the police.

The Commission found that the detectives’ testimony was credible, believable, and without bias.  The Commission rejected the judge’s testimony that he had told the detectives about his texts and phone call with Fields during an alleged off-camera interview and found that his testimony was “seriously wanting and unworthy of any belief” and that his arguments were “insulting and disturbing” from a former defense attorney and elected judicial officer.

The Commission concluded that the judge “intentionally led the police officers astray.  Rather than being forthcoming about his contact with Fields, respondent purposely deceived the investigators by failing to provide significant information he knew was relevant to the investigation.”  The Commission also found that the judge’s false and misleading statements had effectively misdirected the police investigation and “wasted significant police time and the use of personnel during the critical investigation of a homicide.”

Noting that the judge “tried to explain these false and misleading statements by suggesting that he was petrified when speaking with the officers,” the Commission stated that his “perceived fear does not excuse lying to the police during a homicide investigation” or “absolve his subsequent lies and misstatements in attempting to explain his actions in deceiving and misleading the investigations.”  The Commission found that “the more likely reason for the judge’s implausible testimony” was that he had reviewed his recorded statement to the officers, realized he had lied, and “crafted a new explanation to somehow explain that he was not lying during the police interview.”  It also concluded that, although his false and misleading statements were made outside the courtroom and in his private life, his “repeated falsehoods are intolerable for a sworn officer of the court.”  Finally, the Commission noted that the judge had “exploited his position to satisfy is personal desires” and “to shift the focus away from his involvement with Fields,” valuing “his reputation and position as a judge over providing truthful statements to the police.”

* * *
Finding that she had given priority to personal considerations over law enforcement’s public safety concerns, the New Jersey Supreme Court suspended a former judge for 3 months without pay for withholding from the police information about the whereabouts of her boyfriend even though she knew there were warrants for his arrest and, when she was arrested for hindering apprehension, telling the officers that she had been “vetted” and asking to be handcuffed with her hands in front.  In the Matter of Brady (New Jersey Supreme Court August 6, 2020).

In June 2013, the judge had been a superior court judge for approximately 2 months, she had been involved in a romantic relationship with Jason Prontnicki for about 6 months, and Prontnicki was living in her home.  The judge was undergoing medical treatment to have a child with Prontnicki, and a doctor had told her that she might be pregnant.

On the morning of June 10, the judge went to the headquarters of the Woodbridge Township Police Department and told Officer Robert Bartko and others that Prontnicki had loaned her car to a friend without her permission.  She stated that she had told Prontnicki that, if she did not hear from him by 10:00 a.m. on the 10th, she would report the vehicle as stolen.

While the judge was at the police station, the officers learned that there were 2 open warrants for Prontnicki’s arrest and that his driver’s license had been suspended.  One of the warrants related to an armed robbery of a pharmacy in April in which the perpetrator allegedly threatened a pharmacist with a crowbar, demanding drugs.  The officers told the judge.  According to the police report, the officers told the judge that as “an officer of the court,” she was required to tell them “if and when” Prontnicki returned so that they could arrest him.

By text, the judge told 2 friends that she had just learned that Prontnicki had threatened a pharmacist with a crowbar and that, when the incident occurred, Prontnicki “was already staying with me and I was a judge.”  She added, “I can’t have him in my house cos I wud now be harboring a criminal . . .  I wud have to report him.”

Shortly after the judge returned to her home, Prontnicki called her and told her that he had her car and would return it; she told him that police officers had advised her that he had outstanding warrants and a suspended license.  According to the judge, Prontnicki denied knowing that he had any warrants or that his license had been suspended, and she told him that he needed to “go to the police and take care of it right away.”  The judge testified that Prontnicki said he would bring her car back first, and she told him “fine, it would be nice if you brought back [the] car, but you can’t come in my house.”

Immediately following that call, the judge texted a friend that Prontnicki “just called to tell me he got the car and will bring it home.”  She added that she had told him that “he can’t stay with me cos he has a warrant out for his arrest and I am required to notify authorities when I know someone has a warrant.  So I told him he must leave after he drops the car off as I must go to the police.”

At approximately 3:00 p.m., Prontnicki arrived at the judge’s home.  The judge was “a little surprised and shocked and then fearful,” and she told Prontnicki to leave.  When Prontnicki walked through the house to the garage, she followed him.  They talked for about an hour, joined by her father for the final 15 minutes.  According to the judge, Prontnicki denied having outstanding warrants and suggested that the police might be “trying to get you because you’re a judge.”  Eventually, Prontnicki’s brother picked him up.

Approximately 15 minutes after Prontnicki left her home, the judge called the police department, asked to speak with Bartko, and left a message on Bartko’s voicemail.

The next morning, Prontnicki called the judge, and they spoke for almost 3 hours.  According to her texts to her friend that afternoon, Prontnicki attempted to reassure the judge that “he had done nothing unlawful and that their relationship could be salvaged,” but she told him that “without written verified proof he and I can’t be seen or stay at my house together.”

At 3:31 p.m., the judge left a second voicemail message for Officer Bartko.

That afternoon, officers conducted surveillance of the judge’s residence.  At 3:48 p.m., driven by his brother, Prontnicki arrived at the judge’s home, entered the garage, and spoke with her.  After about an hour, Prontnicki left with a duffel bag.  Shortly thereafter, he was arrested.

Shortly after Prontnicki’s arrest, Sergeant Brian Murphy, a detective, and an officer went to the judge’s home and arrested her for hindering Prontnicki’s apprehension.  One officer testified that she said, “I’ve been vetted, take the cuffs off.”  According to the police report, the judge directed officers to take the handcuffs off and asked to be handcuffed with her hands in front rather than behind her.  The officers refused both requests.

After escorting the judge to the processing room at police headquarters, Bartko and other officers listened for the first time to the 2 voicemail messages she had left.

Later that evening, Sergeant Murphy, an officer, and an assistant prosecutor went to another judge’s home and presented a complaint warrant alleging that Judge Brady had “harbor[ed]” Prontnicki in her residence “for approximately 1 hour and never ma[de] any attempt to contact law enforcement.”  In the discipline proceedings, Murphy conceded that the statement that the judge never tried to contact law enforcement was inaccurate.  The other judge signed the complaint warrant.

Although a grand jury indicted the judge on charges of official misconduct and hindering apprehension or prosecution, all charges were dismissed with prejudice by March 2018.

In the discipline proceedings, the judge contended that the police had tampered with the recordings of her voicemail messages before producing them, deleting part of what she told Officer Bartko.  The judge and the Advisory Committee on Judicial Conduct both submitted reports from forensic audio experts.  The Court found that, even if the judge had included the information she claimed the police had deleted, she had not been “fully forthcoming” with the police, had provided only “a vague notion” of Prontnicki’s general location, and had failed to disclose what she knew of his plans and location and how much she had communicated with him.

The Court held that the judge’s communications with the police department “fall short of the high standards imposed by the Code” and that “it is apparent that respondent’s priorities were her personal concerns — particularly her relationship with Prontnicki –not her duty to the public.”  Noting that the judge “clearly understood that the charges against Prontnicki were serious and that the police viewed public safety to be at risk while he remained at large,” the Court emphasized that “she disclosed only minimal information about her extensive contacts with Prontnicki” in “perfunctory and vague” communications that “stand in stark contrast to the candid and detailed accounts she provided by text to her friends, in real time.”  The Court also faulted the judge for not trying to contact the officers by calling the police headquarters’ general telephone number, calling 9-1-1, or visiting police headquarters.

The Court acknowledged that the judge “was undoubtedly in a difficult situation during the two days at issue here” and that it was “understandable that respondent was upset as those disturbing events unfolded.”  However, it explained:

As a judge, . . . respondent was not at liberty to address her circumstances with only herself and her personal relationships in mind.  The WTPD was searching for an individual who allegedly robbed a pharmacy by threatening a pharmacist with a crowbar.  A judge had found probable cause and issued a warrant for his arrest, and WTPD officers were charged to execute that warrant in the interest of public safety.  It was incumbent on respondent to fully cooperate with law enforcement in their search for Prontnicki, notwithstanding her distressing personal circumstances. . . .

The public has the right to expect that when police officers are searching for a fugitive accused of a violent crime and a judge has detailed knowledge of the whereabouts, activities and immediate plans of that fugitive, the judge will take prompt and decisive action to ensure that law enforcement is fully informed.  There is no exception to that principle when the judge and the fugitive have a personal relationship.

In a dissent, 1 justice described his disagreements with the Committee’s findings and the Court’s conclusions and argued that the judge should not be disciplined for “not leaving more information on a voicemail that the police recklessly failed to retrieve and for not acting as the perfect police informant during the tumultuous hours at issue . . . , and for not calling the police in the presence of a potentially violent criminal . . . .”  He stated:

Today’s majority decision is a sad epilogue to Judge Carlia Brady’s seven-year nightmare journey through the criminal justice system and the judicial disciplinary process.  Seven years ago, Judge Brady was the quintessential American success story — a Filipino-American immigrant, who became an accomplished lawyer and rose from the ranks of the Bar to become a Superior Court judge.  Just several months after her judicial appointment, her career, her reputation, her health — her life — would be in ruins, the victim of overzealous Woodbridge Township police officers, who filed criminal charges that could not be sustained in court.

 

Summer Judicial Conduct Reporter

The summer issue of the Judicial Conduct Reporter has been published and is available on-line.  The issue has articles on:

  • Disqualification and social media connections
  • Judicial campaigns on-line
  • Virtual campaign solicitation
  • Recent cases
    • Ex parte communications in a small community (Inquiry Concerning Scaff (Florida Supreme Court 2020))
    • Appropriate discourse or personal attack (Resolution of Complaints Against Adelman (7th Circuit Judicial Council 2020))
    • “Misuse of the title and tools” of office (In re Lucas, Stipulation, agreement, and order (Washington Commission 2020))

The Judicial Conduct Reporter is published electronically, and an index and current and past issues of the Reporter are available on-line.  Anyone can sign up to receive notice when a new issue is available.

In addition, please watch the Center for Judicial Ethics inaugural CourtClass tutorial on judges and court staff participating in marches and demonstrations.  In less than 30 minutes, the ethics-in-brief presentation covers the key points for all employees of the judicial branch, both judges and non-judges.

Throwback Thursday

10 years ago this month:

  • In consolidated appeals, the Kentucky Supreme Court affirmed 2 decisions of the Judicial Conduct Commission (1) reprimanding a judge and suspending her for 45 days without pay for (a) summarily holding a husband in contempt of court for actions that occurred outside of her perception and (b) entering an order changing custody that denied the father due process and (2) reprimanding her for a “standing order” that prohibited child support modifications for Toyota employees. Gormley v. Judicial Conduct Commission, 332 S.W.3d 717 (Kentucky 2010).
  • Pursuant to the judge’s agreement, the Nebraska Commission on Judicial Qualifications publicly reprimanded a judge for accusing an attorney of publicly disparaging him and threatening the attorney with an ethics complaint if he did not apologize. In the Matter of McArdle (Nebraska Commission on Judicial Qualifications August 18, 2010).
  • The North Carolina Judicial Standards Commission publicly reprimanded a judge for a 2-year delay in entering an order; the judge accepted the reprimand. Public Reprimand of Black (North Carolina Judicial Standards Commission August 13, 2010).
  • The Washington Supreme Court suspended a judge for 5 days without pay for a pattern or practice of deriding the intelligence of pro se litigants and rudely and impatiently interrupting them. In the Matter of Eiler, 236 P.3d 873 (Washington 2010).
  • Based on stipulations and the findings and recommendation of a judicial conduct panel, the Wisconsin Supreme Court publicly reprimanded a former judge for a substantial backlog of unadjudicated citations and refusing to adjudicate any parking ticket stipulation cases. In the Matter of Zodrow, 787 N.W.2d 815 (Wisconsin 2010).

 

What they said that got them in trouble so far in 2020: Part 2

To court staff

  • “EEEEEEEEEEEkkkkkkkkkkkkkkkkkk.” Judge in email response to email from law clerk that said, “[Y]our last sexual experience” during a jury trial on a criminal sexual conduct charge.  Public Reprimand of Leahy (Minnesota Board on Judicial Standards March 19, 2020).
  • “Stupid people.” Judge in email to law clerk referring to the sheriff’s department employees involved in a change to the warrant process.  Public Reprimand of Leahy (Minnesota Board on Judicial Standards March 19, 2020).
  • “What do you think of that? Did you hear the sex stuff? . . . .”  Judge to court staff following a hearing in a domestic violence case involving sexual assault.  In the Matter of Russo (New Jersey Supreme Court May 26, 2020) (removal for this and other misconduct).
  • “This conversation never happened.” Judge to court manager after asking her to contact another court for a scheduling favor in his personal matter.  In the Matter of Russo (New Jersey Supreme Court May 26, 2020) (removal for this and other misconduct).

In campaigns

  • “Friendly Judge Barth loves to stop what he’s doing and meet all community members. Even the stuffed ones!  Judge Barth with Eileen and her sloth family at Walmart.”  Post on Facebook page for a part-time judge’s campaign for sheriff with a photograph.  Barth, Order (Arizona Commission on Judicial Conduct June 10, 2020) (reprimand for this and related posts).
  • “Norm Miller’s projected revenues from traffic tickets for 2017 was $50,000. He failed to reach that by over $13,500 and he overspent his court budget by over $10,000.  Can Princetown afford to keep Norm Miller as Judge?”  Judicial candidate’s campaign advertisement about incumbent judge.  In the Matter of VanWoeart, Determination (New York State Commission on Judicial Conduct March 31, 2020) (censure for this and other misconduct).
  • “Like.” Judicial candidate reacting on her campaign Facebook page to others’ posts about her incumbent opponent, for example, “Time to take out the trash!!”  In the Matter of VanWoeart, Determination (New York State Commission on Judicial Conduct March 31, 2020) (censure for this and other misconduct).

To law enforcement

  • “Yeah, you can’t arrest us for this. This is not – this is not a jailable offense.”  Magistrate to Department of Natural Resources officers citing him for violating a state fishing regulation.  In the Matter of Ferguson, 841 S.E.2d 887 (West Virginia 2020) (90-day suspension, $2,000 fine, and reprimand).
  • “Big mistake, I should have been in Lucas County. I’m a judge there.  I’m not trying to play that up, but.”  Judge to police officer during traffic stop for driving under the influence of alcohol.  Disciplinary Counsel v. Gonzalez (Ohio Supreme Court June 11, 2020) (reprimand).
  • “I am so intoxicated.” Judge to law enforcement officer during traffic stop.  Disciplinary Counsel v. Doherty (Ohio Supreme Court April 14, 2020) (reprimand).
  • “Two beers.” Judge’s false response to trooper’s question about whether he had consumed any alcoholic beverages.  In the Matter of Miranda, Determination (New York State Commission on Judicial Conduct January 30, 2020) (censure for this and related misconduct).
  • “No, f*** you.” Judge to police officer during traffic stop.  In the Matter of Petucci, Determination (New York State Commission on Judicial Conduct January 30, 2020)(censure for this and related misconduct).

Miscellaneous

  • “We will appear entirely calm and reasonable . . . let your daughter act like the a****le she is;” and “Eyelashes.” Part-time judge in emails to his clients referring to their daughter and her attorney.  In the Matter of Senzer (New York Court of Appeals June 23, 2020) (removal for this and related comments).
  • “By now it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball ‘umpire who [merely] calls the balls and strikes,’ was a masterpiece of disingenuousness. Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides.”  Judge beginning a law review articleResolution of Complaints Against Adelman (7th Circuit Judicial Council June 22, 2020) (admonishment).
  • “We have worked with Our Kids and we have complete faith only in the Our Kids model of leadership. When you select the agency please keep our voices in mind.”  Judges in a letter encouraging the Florida Department of Children and Families to award a contract to a particular vendor.  Inquiry Concern Lederman, Caballero, Figarola, Pooler, and Ruiz, 292 So. 3d 425 (Florida 2020) (reprimand).
  • “[I have] heard 19 different stories.” Judge to staff at county jail about ex parte contacts he had with family members of 3 men who had been arrested for fighting.  Inquiry Concerning Scaff (Florida Supreme Court May 28, 2020) (reprimand of judge for this and other misconduct).

 

Throwback Thursday

20 years ago this month:

  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for (1) ordering “instanter trials” in 18 criminal neglect of family cases immediately after the defendants pleaded not guilty and (2) violating the Commission’s confidentiality rules by asking if a litigant wanted him to recuse based on the complaint the litigant had filed against him. In re Aucoin, 767 So. 2d 30 (Louisiana 2000).
  • The New York State Commission on Judicial Conduct removed a part-time judge who had been convicted of 2 misdemeanors for physically abusing a mentally incompetent patient in a nursing home where she was employed as a licensed practical nurse. In the Matter of Stiggins, Determination (New York State Commission on Judicial Conduct August 18, 2000).
  • Adopting the recommendation of the panel of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court ordered a 6-month stayed suspension for a judge for, while a candidate, failing to closely supervise campaign activities; failing to report a township’s contributions of the use of a township garage for producing campaign signs and the value of labor of inmates and welfare workers; and exaggerating his endorsements. Office of Disciplinary Counsel v. Evans, 733 N.E.2d 609 (Ohio 2000).
  • Based on stipulations of fact, the Pennsylvania Court of Judicial Discipline severely reprimanded a senior district justice, and ordered him ineligible to accept any assignments for contacting another district justice seeking favorable treatment for a friend in connection with a traffic violation. In re Kelly, 757 A.2d 456 (Pennsylvania Court of Judicial Discipline 2000).
  • Pursuant to a stipulation and agreement, the State Commission on Judicial Conduct publicly censured a judge and the Washington Supreme Court suspended him without pay for 5 months for (1) engaging in abusive and intemperate language and behavior toward court staff and colleagues, (2) improperly entering ex parte orders without a hearing or notice to parties, and (3) engaging in numerous ex parte contacts in a child custody dispute, including undertaking an ex parte investigation outside the courtroom. In re Tollefson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct August 21, 2000). approved (Washington Supreme Court August 30, 2000).

 

 

What they said that got them in trouble so far in 2020: Part 1

To or about litigants

  • “And good luck to [the child], because it ain’t going to turn out well for her;” and “she’s going to get divorced. And your grandkid is going to go through the same things she’s going through because this is all she knows.”  Judge to parents in a family law case.  In the Matter Concerning Gary, Decision and order (California Commission on Judicial Performance May 14, 2020) (admonition for this and related comments).
  • “This is a self-created, self-inflicted wound that I’m ready to give up on. You can bleed out.  It’s not my responsibility anymore.”  Judge to parents in a family law case.  In the Matter Concerning Gary, Decision and order (California Commission on Judicial Performance May 14, 2020) (admonition for this and related comments).
  • “Death is part of life. In fact, it’s one of the certainties of life.  And the reason I raised religion is not to get into a deep philosophical religious discussion, but to address this witness’s concern with these two parents that a child not understanding the permanence of death, that is true, but parents or adults also struggle with the permanence of death.  And one of the ways they cope with the permanence of death is through religion, through the promise of when you die, somehow you will live again.  The Christian religion — I know dad goes to church, or at least I’ve heard testimony.  The Christian religion, you will have everlasting life, John 3:16.  If you go through that, what is the purpose for that for adults?”  Judge to retired licensed clinical social worker testifying in family law case.  In the Matter Concerning Gary, Decision and order (California Commission on Judicial Performance May 14, 2020) (admonition for this and related comments).
  • “The only person you should be sending naked pictures to [is] . .. Hugh Hefner.  He will pay you $100,000 for the use of them.”  Judge to plaintiff seeking the return of photographs taken of her for the benefit of her then-boyfriend.  In the Matter of Rivas, Order (New Jersey Supreme Court March 23, 2020), accepting (censure for this and related comments).
  • “[Fish] said he was a minister. What’s the story with that? * * *  A Christian minister even though he’s Jewish;” and “Do Jewish people have halos?  I think they have angels though, right? * * *  The Catholics got lots of angels or uh * * *  ‘Halos.”  Magistrate in ex parte conversation with one party after the other party left the courtroom following a hearing in a protection order case.  Disciplinary Counsel v. Porzio (Ohio Supreme Court April 23, 2020), adopting (stayed 6-month suspension without pay).
  • “[A]t the end of this, who looked like * * * an as—le and who looked like a good guy?’” Magistrate in ex parte conversation with one party after the other party left the courtroom following a hearing in a protection order case.  Disciplinary Counsel v. Porzio (Ohio Supreme Court April 23, 2020), adopting (stayed 6-month suspension without pay).
  • “He is a most obnoxious mean man.” Judge in email to law clerk about a party in a case.  Public Reprimand of Leahy (Minnesota Board on Judicial Standards March 19, 2020).
  • “You know, sounds like she was using meth and she’s a meth head.” Judge referring to the victim in a domestic violence case.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “[Stop] shucking and jiving.” Judge to African-American defendant who gave what the judge believed to be evasive answers to his question.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “Stop, now, just stop with that! Jesus . . . .  Come on.  That’s getting old, that’s getting really old;” and “Why can’t you just be quiet when other people are talking?” Judge to pro se litigant in small claims case in which a close friend was representing the other party.  In the Matter of Gorski, 937 N.W.2d 609 (Wisconsin 2020) (reprimand for this and related misconduct).
  • “Close your legs? Call the police?  Did you do any of those things?”  Judge asking domestic violence victim about a sexual assault.  In the Matter of Russo (New Jersey Supreme Court May 26, 2020) (removal for this and other misconduct).
  • “For the record I’ve known Al Carbonetto and his wife since high school. Tina Bizzucci at that point.”  Judge before reducing the amount of spousal support a husband had been ordered to pay by another judge.  In the Matter of Russo (New Jersey Supreme Court May 26, 2020) (removal for this and other misconduct).
  • “If he’s not using the illicit drugs, then what is he transporting them up his backside for?” Judge in the courtroom about a case pending in a different court.  In the Matter of Pebler, Determination (New York State Commission on Judicial Conduct June 17, 2020) (censure for this and related misconduct).
  • “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;” and “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.”  Judge on Facebook Messenger to woman about cases pending before other judges.  Letter of resignation and prohibition from office (Throesch) (Arkansas Judicial Discipline & Disability Commission May 1, 2020)  (resignation and permanent bar for this and other misconduct).

To or about attorneys

  • “I don’t care what anybody wears, Ms. McKeegan, if you wear yoga pants to court, it’s okay with me;” and “Oh, I should not have said that. Are there cameras in here?”  Judge to assistant district attorney.  In the Matter of Gerber, Determination (New York State Commission on Judicial Conduct June 27, 2020) (admonition for this and other misconduct).
  • “[Do you] want a room?” and “[Should I] turn off the lights?” Judge to an assistant district attorney and her friend as he was leaving the courtroom.  In the Matter of Gerber, Determination (New York State Commission on Judicial Conduct June 27, 2020) (admonition for this and other misconduct).
  • “I will let your client withdraw his plea. However, no matter what happens, I am putting him in jail for 10 days for wasting the court’s time.  Unless he gets a not guilty, he should expect to go to jail for 10 days.  If the jury gives him 30 days, I will give him forty.  If he pleads, he’s going in for at least 10 days as a condition.”  Judge after defendant rejected a plea agreement.  Public Warning of Gray (Texas State Commission on Judicial Conduct February 7, 2020) (warning for this and other misconduct).
  • “I’m not sure I want to shake your hand;” and “Do you know how much trouble you have caused me? Do you know how much money I have had to pay lawyers because of you?”  Judge to attorney he believed had complained about him to the Commission.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “I have the biggest balls in the courthouse.” Judge in hallway to 2 female assistant district attorneys.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “You should see their faces. They start to roll up their sleeves, and I just drop ‘trou’ and take my shot in the a**,” or words to that effect.  Judge about getting flu shot at employee health center in conversation in chambers with 2 female attorneys.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “And, I don’t need a cheering section okay? So, if I need something from you, I’ll ask you, all right.”  Judge after attorney said, “That’s correct, Your Honor.”  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “You can tell [Attorney General Xavier] Becerra that’s what he gets for going against my president;” and “It’s my job to give the government a bad time,” or words to that effect. Judge after excluding most of the prosecution’s evidence in a case.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “Tell [DDA Brent] Nibecker he’s an idiot. I’ve told him to his face, I don’t care.”  Judge to deputy district attorney.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020)  (censure for this and other misconduct).
  • “You don’t have to act like a scared little girl in my courtroom,” or words to that effect. Judge in ex parte communication with deputy district attorney after a hearing.  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct).
  • “He is an awful attorney;” “Kill me;” “Deep sigh;” and “the [S]tate will ask a million dumb questions about burden of proof, etc.”  Judge in emails to law clerk about proceedings.  Public Reprimand of Leahy (Minnesota Board on Judicial Standards March 19, 2020).

Throwback Thursday

25 years ago this month:

  • Granting a joint motion, the Mississippi Supreme Court publicly reprimanded a judge and fined him $1,450 for dismissing 18 speeding tickets involving 18 defendants after ex parte communications with the defendants and dismissing 13 other traffic tickets involving 12 defendants. Commission on Judicial Performance v. Bowen, 662 So. 2d 551 (Mississippi 1995).
  • The California Commission on Judicial Performance publicly admonished a judge for attending the premiere of a movie that was the subject of a lawsuit over which she had presided and making a public comment about the suit while it was pending on appeal. Public Admonishment of Chirlin (California Commission on Judicial Performance August 28, 1995).

 

“An extra ‘remember me:’”  Serious risk of actual bias on Facebook

Finding that “the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation,” the Wisconsin Supreme Court held that a serious risk of actual bias had been created in a child 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 about domestic violence, which was an issue in the case.  In re Paternity of B.J.M., 944 N.W.2d 542 (Wisconsin 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.

5 years after Timothy Miller and Angela Carroll stipulated to joint legal custody and shared physical placement of their minor son, Carroll filed a motion seeking sole legal custody, primary physical placement, child support payments, and a change in residence.  She alleged that Miller engaged in domestic violence against her and failed to adequately parent and discipline their son.  Miller opposed the motion and disputed the allegations of domestic violence.

On June 7-8, 2017, Judge Michael Bitney presided over a highly contested evidentiary hearing that included 15 witnesses.  On June 16, the parties filed briefs.

3 days after the briefs were filed, Carroll sent the judge a “friend request” on Facebook.  The judge “accepted” Carroll’s request.

On July 14, the judge issued a written decision in favor of Carroll.

During the 25 days between the judge’s acceptance of Carroll’s friend request and his decision, Carroll “engaged with and ‘reacted to’ at least 20” of the judge’s Facebook posts.  16 of her reactions were “likes” to prayers and Bible verses that he posted.  She “loved” one of his posts reciting a Bible verse and a second regarding “advice” to children and grandchildren.  In response to 2 of his posts about his knee surgery, she posted:  “Prayers on a healthy recovery Judge!!” and “Hope u get some rest and feel better as the days go on.”

In addition, Carroll posted on her Facebook page about domestic violence.  She posted that she was “interested in” attending a “Stop the Silence Domestic violence awareness bike/car Run.”  She “liked” a third-party post related to domestic violence and reacted “angry” to a third-party post entitled, “Woman dies two years after being set on fire by ex-boyfriend.”  She “shared” a third-party post related to domestic violence.

The same day as the judge’s decision, Carroll posted on her Facebook page:

My boys and a [sic] I have been given a chance at greatness, peace, and safety.

The Honorable Judge has granted everything we requested.  I’m overwhelmed with emotions and as bitter sweet as this is, we will have better from here on out. . . .

Viewing that post, the guardian ad litem appointed to the case discovered that Carroll and the judge were Facebook friends and immediately told Miller’s counsel.

Miller filed a motion for reconsideration of the judge’s decision in favor of Carroll.  The judge confirmed his Facebook friendship with Carroll, but denied the motion, asserting that he had no bias and that no “reasonable person in the circumstances of Mr. Miller or others . . . would seriously call into question the Court’s objectivity or impartiality.”  The judge emphasized that he “did not like any posts, respond to any posts, or conduct any communication ex parte or otherwise with Ms. Carroll, other than simply accepting the Facebook friendship request.”  He also claimed that when he accepted Carroll’s friend request he had already “decided how [he] was going to rule, even though it hadn’t been reduced to writing.”  The judge did not deny seeing Carroll’s reactions, comments, or posts on Facebook.

Although noting that it presumed that the judge acted fairly, impartially, and without prejudice, the Court concluded that the father had “rebutted this presumption by showing ‘a serious risk of actual bias.’”  The Court considered:  “(1) the timing of the Facebook friend request and Judge Bitney’s affirmative acceptance; (2) the volume of Carroll’s Facebook activity and likelihood Judge Bitney viewed her posts and comments; (3) the content of the Facebook activity as it related to the context and nature of the pending proceeding; and (4) Judge Bitney’s lack of disclosure.”

With respect to the timing of the Facebook friendship, the Court explained:

Although Judge Bitney had “thousands” of Facebook friends, Carroll was not an established “friend.”  Instead, she was a current litigant who requested to be Judge Bitney’s friend only after she testified at a contested evidentiary hearing in which he was the sole decision-maker.  Judge Bitney had presided over the case since August of 2016; yet, Carroll friended him after he heard the evidence and the final briefs were submitted, but before he rendered a decision.  The timing of the friend request implied that Carroll wanted to influence Judge Bitney’s decision on her motion to modify legal custody, physical placement, and child support.

The Court emphasized that the judge had taken “the affirmative step of accepting Carroll’s ‘friend request’ prior to issuing a written decision on her motion” and that, by accepting the request, the judge “accepted access to off-the-record facts that were relevant to the dispute, namely information regarding Carroll’s character and parental fitness.”  The Court noted that, “in an affidavit filed with the motion for reconsideration, Miller’s sister asserted that Carroll made a ‘purposeful switch in [her] Facebook persona to support her position in the custody dispute,’ including changing her pictures and posts ‘from party type pictures and posts to family pictures and posts about children and family.’”  The Court concluded that “Carroll’s request, and Judge Bitney’s acceptance, put Carroll in a different position than Miller and caused an improper asymmetry of access.”

With respect to the likelihood that the judge would have seen Carroll’s Facebook activity, the Court noted that Carroll had engaged with and “reacted to” a significant number of the judge’s Facebook posts and that the judge would have received a Facebook notification for each of Carroll’s reactions and comments.  It also noted that the judge could have but did not deny seeing Carroll’s reactions, comments, shares, and reactions.  The Court recognized that the record did not include conclusive evidence that the judge read any of Carroll’s posts, but emphasized that “evidence to the contrary is notably absent.”

With respect to the social media contacts in the context of the litigation, the Court noted that Carroll and Miller had the same opportunity to portray themselves in the best light at the hearing but that “Carroll was provided with additional opportunities to do this for 25 days through her access to Judge Bitney via Facebook.”  It explained

The Facebook activity, including 18 “reactions” and two comments, was relevant to the decision-making process in a proceeding like this one, where Carroll’s character, fitness, and credibility were paramount.  Carroll was allowed the opportunity to give Judge Bitney additional information about herself and an extra “remember me” almost 25 different times during the time period when the matter was under advisement, all unbeknownst to Miller.  By reacting to and engaging with Judge Bitney’s posts, Carroll was effectively signaling to Judge Bitney that they were like-minded and, for that reason, she was trustworthy.  She was conveying to him off-the-record information about her values, character, and parental fitness — additional evidence Miller did not have the opportunity to rebut.  Under a “realistic appraisal of psychological tendencies and human weaknesses,” this off-the-record information about Carroll, created a serious risk of actual bias. . . .

The Court also stated that “a portion of Carroll’s Facebook activity was related to her main allegation against Miller at the contested hearing:  domestic violence” but that, “unlike the information presented at the hearing, Miller was unaware that Judge Bitney had access to this off-the-record information.  Had Carroll sent Judge Bitney a letter containing a domestic violence article, which he then read, he undoubtedly would have had to disclose that information to the parties.”

Finally, the Court emphasized the judge’s failure to disclose “at any point, in any way or form.”

Judge Bitney could have initially ignored or denied Carroll’s friend request and disclosed the request to the parties.  He could have also disclosed the Facebook friendship when he received notification of Carroll’s reactions to his posts, unfriended Carroll on Facebook, or changed his security settings to hide her posts from appearing on his News Feed.  Instead, Judge Bitney failed to disclose the friendship or other Facebook activity, and the friendship was discovered only after Judge Bitney issued his decision.  Because of Judge Bitney’s lack of any means of disclosure, Miller was unable to review the interactions between Judge Bitney and Carroll and have an opportunity to refute what Judge Bitney might have seen Carroll post or share.

Thus, the Court held:  “The totality of the circumstances and the extreme facts of this case, viewed objectively, rise to the level of a serious risk of actual bias, which rebuts the presumption of Judge Bitney’s impartiality.”  The Court also held that, “the serious risk of actual bias is a structural error” and, therefore, that the judge’s decision should be reversed and the matter assigned to a different judge on remand.

Although the Court applied the “serious risk of actual bias” that is the constitutional standard from Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), the factors identified by the Court are also relevant to an “appearance of impartiality” analysis under the code of judicial conduct; if the circumstances of a case are significant enough to require disqualification under the due process clause, they would also raise enough reasonable questions to require disqualification under the lower threshold of the code.