Monthly Archives: November 2020

Throwback Thursday

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5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for committing multiple errors in an eviction proceeding.  Carrillo, Order (Arizona Commission on Judicial Conduct November 13, 2015).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a former court commissioner for being impatient, harsh, and intimidating to an attorney for the victim in a criminal case who was attempting to be heard at a hearing.  Newell, Order (Arizona Commission on Judicial Conduct November 13, 2015).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for comments he publicly posted on his Facebook page about cases to which he was assigned as a senior judge.  In the Matter of Bearse, Public reprimand (Minnesota Board on Judicial Standards November 20, 2015).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for issuing warrants of eviction and money judgments in 2 summary eviction proceedings without according the tenants an opportunity to be heard or reviewing the supporting documents and failing to mechanically record 2 other eviction proceedings.  In the Matter of Williams, Determination (New York State Commission on Judicial Conduct November 2, 2015).
  • Adopting the findings and recommendation of the Judicial Standards Commission based on stipulated facts, the North Carolina Supreme Court publicly reprimanded a judge for, during proceedings in a divorce case, failing to be patient, dignified, and courteous to the parties, making inappropriate comments to the parties, misstating the law when threatening future contempt proceedings, improperly exercising his contempt powers, and failing to maintain order and decorum in the proceedings before him.  In re Hill, 778 S.E.2d 64 (North Carolina 2015).

Fall Judicial Conduct Reporter

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The fall issue of the Judicial Conduct Reporter has been published.  The issue has articles on:

  • Judicial ethics in landlord/tenant cases
  • Interim suspensions pending discipline proceedings or criminal charges
  • Encouraging pro bono services
  • Recent cases
    • Independent investigation:  Commission on Judicial Performance v. Bozeman (Mississippi 2020)
    • Orchestrated release:  Disciplinary Counsel v. Goulding (Ohio 2020)
    • Solar opposition:  Public Warning of Plaster (Texas Commission 2020)

The first article discusses cases in which judges have been disciplined for their conduct in landlord/tenant cases.  It begins with cases in which legal error has been found to constitute judicial misconduct because the judges did not follow the procedures that ensure that tenants and landlords both have an opportunity to be heard.  Next, it summarizes cases in which judges have been disciplined for ex parte communications in eviction matters, sometimes with the landlord, sometimes with the tenant, and sometimes even without a case being filed.  Finally, the article lists cases involving other types of misconduct in landlord/tenant cases.

The article on interim suspension explains that, in over half the states, a judge can be suspended with pay pending the resolution of allegations of misconduct and that over 30 states have constitutional provisions, statutes, or rules that authorize the suspension of a judge with pay pending the outcome of criminal proceedings.  It then describes how that suspension authority differs from state to state based on which authority can suspend the judge—the judicial conduct commission or the supreme court; the stage of the process at which a suspension be imposed—any time or after a formal complaint is filed; what notice and opportunity to be heard the judge receives; whether disciplinary proceedings are expedited when a judge is suspended; and the criterion for when an interim suspension is warranted.

The article on encouraging pro bono services discusses the code and advisory opinions that approve judicial efforts to increase lawyer participation in pro bono programs and the caveats conditioning that permission.

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, the Center for Judicial Ethics has posted 3 online CourtClass tutorials.

  • Judges and court staff participating in marches and demonstrations:  In less than 30 minutes, the presentation covers the key points for all employees of the judicial branch, judges and non-judges alike. 
  • Ex parte communications:  The 11-minute presentation introduces this core rule of the code of judicial conduct and discusses judicial discipline cases applying its principles.
  • Ability to pay hearings:  In approximately 35 minutes, the presentation covers the essential constitutional, ethical, and practical aspects of conducting ability to pay hearings in connection with court-ordered financial obligations and bail. 

Throwback Thursday

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10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for, while a candidate, criticizing her opponent under the guise of a fictitious identity in a comment to an on-line newspaper story.  Segal, Amended Order (Arizona Commission on Judicial Conduct November 30, 2010).
  • Based on a stipulation for discipline by consent in which the judge agreed to tender her irrevocable resignation within 5 days, the California Commission on Judicial Performance publicly censured a judge for (1) allowing herself to be videotaped while conducting proceedings in her courtroom to promote herself for a role in a potential television entertainment program and telling an attorney representing the producer that she would set her more interesting cases on the day of the filming; (2) making numerous improper remarks and engaging in improper conduct while court proceedings were being filmed; (3) a pattern of other improper conduct, including making demeaning and discourteous remarks regarding litigants, court attorneys, and others; (4) making remarks in court disparaging the court clerical staff; and (5) placing a defendant into custody for contempt without affording her due process or complying with the legal requirements for contempt.  Inquiry Concerning Salcido (California Commission on Judicial Performance November 10, 2010).
  • Based on a complaint by the Judicial Inquiry Board, the Illinois Courts Commission publicly reprimanded a judge for creating an appearance of impropriety by agreeing to conduct a special bond hearing on a Saturday afternoon for the brother of a long-time friend and former client who was well-known in county politics.  In re Chmiel, Order (Illinois Courts Commission November 19, 2010).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court removed a judge for (1) sharing a hotel suite during a judges’ meeting with a 20-year-old female who had been charged with possession of drug paraphernalia and who was taking part in the judge’s alternative sentencing program and (2) operating alternative sentencing programs that were not approved by the solicitor’s office as required by an order of the Court.  In the Matter of Evans, 702 S.E.2d 557 (South Carolina 2010).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate who had pled guilty to state charges of misconduct in office for engaging in ex parte communications with certain defendants; using his judicial position to advance the private interests of a litigant; using a procedure for handling fines and bond services for certain defendants that was not in accordance with the orders of the Chief Justice; and appropriating public funds for his own use.  In the Matter of Love, 702 S.E.2d 115 (South Carolina 2010).
  • The Tennessee Court of the Judiciary publicly reprimanded a judge for a delay of 10 years and 11 months in entering a decision in a case.  Public Reprimand of Russell (Tennessee Court of the Judiciary November 29, 2010).

A sampling of recent judicial ethics advisory opinions

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  • When an appellate justice learns that a staff member has posted a comment on social media that violates the canons of judicial ethics, the justice should immediately take steps to remedy the violation, including at a minimum requiring the staff member to take all reasonable steps to have the post taken down and removed from the public domain. If the justice learns that an improper comment has been viewed by the public, republished, or otherwise disseminated, the justice should, depending on the circumstances, instruct the staff member to correct or repudiate the comment on social media, particularly if the comment is demeaning, offensive, or otherwise undermines the dignity of the court.  California Oral Advice Summary 2020-37. 
  • A judge may permit his law clerk to participate in peaceful Black Lives Matter protests away from the courthouse during non-working hours, but must instruct the clerk not to carry signs calling for the arrest or prosecution of the police officers involved in the Breonna Taylor shooting and not to remain with any protestors engaging in vandalism or violence. New York Opinion 2020-141.
  • A judge may display photographs and other memorabilia of current and former elected federal officials in her chambers but must be mindful of the content, context, and circumstances of the display to avoid any appearance of impropriety. New York Opinion 2020-101.
  • A court may include on its approved arbitrator list and guardian ad litem registry an attorney who is married to a judge on the court as long as protocols are followed to ensure that there is no appearance of impropriety, nepotism, or favoritism. Washington Opinion 2020-6.  
  • A judge or group of judges may sign a proposed resolution urging judges to remain vigilant in their efforts to keep racial bias out of the justice system and may submit the resolution for consideration to the chief judge of their circuit and to the Florida Supreme Court. Florida Opinion 2020-18. 
  • Judges may use court letterhead for any correspondence related to the appropriate exercise of the judicial office, including educational outreach and civic leadership activities. Alaska Opinion 2020-1.
  • A judge may not voluntarily write a letter of support on behalf of any litigants in any civil or criminal matter pending or impending in any court or administrative venue, including any judge or lawyer disciplinary proceeding. West Virginia Opinion 2020-25. 
  • A judicial official may not provide a letter of recommendation to the governor’s legal counsel at the request of a candidate seeking a judicial appointment but may be listed as a reference for the candidate and, if requested by the governor’s legal counsel, may provide a written or oral recommendation, subject to conditions. Connecticut Informal Opinion 2020-4.  
  • A judge may not submit a letter to a newspaper or bar association newsletter that accuses a named elected federal official who is currently running for re-election of undermining the rule of law, blames recent civil unrest on that official’s policies and philosophies, and criticizes the official’s policies. New York Opinion 2020-90. 
  • A judge may speak to an ethnic/cultural affinity group of employees in the prosecutor’s office about the judge’s experience as a prosecutor and career path and the court system’s adaptation to virtual operations. New York Opinion 2020-131.
  • A judge may write the biography of a noted attorney that includes accounts of criminal events and judicial decisions that may reflect negatively on the judicial system at the time. The judge may post the release date for the book on Facebook or other social media and participate in book promotions and speaking engagements in Florida or other states.  Florida Opinion 2020-21.  
  • A judge may write a book review of a friend’s novel and post it online without mentioning her judicial position provided the purpose is not to promote sales of the book. The judge must not authorize use of the review on the book jacket or elsewhere to promote sales of the book.  New York Opinion 2020-85.
  • A judge, judge’s family members, and staff members may accept gifts that are considered ordinary social hospitality but should not accept any gifts from persons who may appear before the judge or gifts presented with no reasonable expectation the judge will reciprocate. Ordinary social hospitality includes, for example, food or a bottle of wine presented by a houseguest; the purchase of a meal by a friend or colleague with the reasonable expectation that it will be reciprocated; mutual gift exchanges, such as holiday or birthday gifts of comparable value; and produce from a home garden if it is reciprocated.  Examples of gifts that would not be considered ordinary social hospitality include tickets to concerts, shows, sporting events, or fundraising events and gifts that are of significant value, such as use of a vacation home or time-share and expensive gifts from a lobbyist or vendor.  Michigan Opinion JI-146 (2020).
  • A judge may purchase raffle tickets at a charity auction. Florida Opinion 2020-19. 
  • A judge who is on the board of directors of a non-profit organization that supports and promotes musicians may not write a letter in support of the foundation’s application for grants from local and state governments. Florida Opinion 2020-17.
  • A judge may serve on the board of a non-profit organization that supports the historic preservation of buildings, makes recommendations for the establishment of historical districts, supports rehabilitation projects, and provides loans to organizations with similar goals. New York Opinion 2020-109.
  • A judge who wishes to be a member or leader of a non-profit organization that allows only women to be general members with voting authority and advocates for the Black Lives Matter movement and promotes U.S. Census participation by African-Americans and the expansion of literacy and technology resources in the community must determine if the organization invidiously discriminates, engages in partisan political activity, or will insert the judge unnecessarily into controversial lobbying, advocacy, or litigation. If some of the organization’s activities are clearly permissible and some are potentially controversial, a judge may only be a regular member and may not serve in a leadership position.  New York Opinion 2020-128. 
  • A judge may become a dues-paying member of the NAACP. Florida Opinion 2020-22.
  • A judge may not accept appointment to a federal health agency’s advisory council on improving public health among minority populations. New York Opinion 2020-146. 
  • A judge may participate on an exploratory committee formed by the public defender and the district attorney to consider the creation of a district court system in her county. New York Opinion 2020-147.
  • A circuit court judge may not serve as a regional judicial outreach liaison, a part-time paid position with the American Bar Association Judicial Division related to driving while under the influence laws, which is part of a cooperative agreement between the ABA and the National Highway Traffic Safety Administration. Wyoming Opinion 2020-1. 

Throwback Thursday

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20 years ago this month:

  • The Nevada Supreme Court upheld the removal of a judge for engaging in numerous and repeated ex parte communications with experts retained by the parties or appointed by her in child custody proceedings and appointing her first cousin as the mediator in a case without informing the parties of their relationship.  In the Matter of Fine, 13 P.3d 400 (Nevada 2000).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who had continued to serve as secretary/treasurer and director of a corporation after becoming a judge and who had failed to disqualify himself from cases involving an attorney who was making lease payments or mortgage payments to the judge as principal of the corporation.  In the Matter of Torraca, Determination (New York State Commission on Judicial Conduct November 7, 2000).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s order of public reprimand of a judge who had on-the-record, in the courtroom criticized jurors in 2 cases for their verdicts.  In re Young, Order (Utah Supreme Court November 7, 2000).
  • Pursuant to a stipulation in which the judge agreed to resign, the Washington State Commission on Judicial Conduct publicly censured a judge for (1) his treatment of 2 witnesses in a case; (2) presiding over a case in which the defendant was the judge’s brother-in-law and transferring the case and recalling a bench warrant after an ex parte contact with the defendant; and (3) writing a defendant whom the judge believed had knowledge of property stolen from the judge, “if you know where by stuff is – I will let you out — & Dismiss your case.”   In re Colby, Stipulation, Agreement and Order of Censure (Washington State Commission November 30, 2000).

Recent cases

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  • Based on a stipulation and the judge’s retirement and agreement not to serve in a judicial capacity in the future, the California Commission on Judicial Performance publicly admonished a judge for intruding into the charging authority of the district attorney, questioning a deputy district attorney about the filing of a peremptory challenge, choosing a successor judge to handle a case after his disqualification, engaging in improper ex parte communications with the district attorney, and engaging in conduct toward the district attorney that was discourteous and conveyed the appearance of bias, embroilment, and prejudgment.  In the Matter Concerning Tamietti, Decision and order (California Commission on Judicial Performance October 14, 2020) .
  • The California Commission on Judicial Performance publicly admonished a judge for (1) interrogating a witness in a hostile manner in a civil jury trial, making sarcastic remarks, and mishandling the witness’s assertion of her privilege against self-incrimination, and (2) questioning the parties and counsel in an injudicious manner in a quiet title action.  In the Matter Concerning Roesch, Decision and order (California Commission on Judicial Performance October 15, 2020).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals upheld the removal of a judge for (1) engaging in a pattern of inappropriate behavior toward court staff, including unwelcome comments of a sexual nature; (2) allowing his court secretary to prepare a letter to obtain payment for legal work he performed prior to becoming a full-time judge; and (3) failing to file timely and accurate disclosure reports of his income from his extra-judicial activities with the IRS, the New York State Department of Taxation and Finance, the Ethics Commission for the Unified Court System, and the clerk of the court.  In the Matter of Miller (New York Court of Appeals October 15, 2020).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for revoking a defendant’s probation without having the probation officer sworn in before testifying, denying the defendant the right to present evidence, and denying an appeal bond; the Commission also ordered the judge to obtain 2 additional hours of education.  Public Admonition of Christian and Order of Additional Education (Texas State Commission on Judicial Conduct August 12, 2020).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for refusing to allow a defendant’s counsel access to the defendant’s court records and providing the police chief an interoffice memo about the case ex parte; the Commission also ordered the judge to obtain 4 additional hours of instruction.  Public Admonition of Del Carmen and Order of Additional Education (Texas State Commission on Judicial Conduct August 12, 2020).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for making a phone call on his aunt’s behalf to determine the whereabouts of a horse and exhibiting poor demeanor during the call; the Commission also ordered the judge to receive 2 additional hours of education.  Public Admonition of Foley and Order of Additional Education (Texas State Commission on Judicial Conduct August 12, 2020).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for speaking publicly about a domestic violence victim during a political forum.  Public Reprimand of Howard (Texas State Commission on Judicial Conduct August 12, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for requesting that law enforcement officers target and issue traffic citations to commercial vehicles associated with a solar farm project that was next to property owned by her family and making racially insensitive comments about people of Mexican descent in her communications with law enforcement officers; the Commission also ordered the judge to obtain 2 hours of instruction with a mentor.  Public Warning of Plaster and Order of Additional Education (Texas State Commission on Judicial Conduct August 12, 2020).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for going to the homes of litigants to determine if they had in their possession disputed marital personal property and/or to supervise the transfer of the items.  In the Matter of Shuck, Public admonishment (West Virginia Judicial Investigation Commission August 25, 2020).

Throwback Thursday

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25 years ago this month:

  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for his treatment of a police officer who had given him a ticket and for questioning an attorney ex parte in his chambers about an unflattering newspaper article concerning him.  Re Steinhardt, 663 So. 2d 616 (Florida 1995).
  • Upholding the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for her involvement with someone who was engaged in drug-dealing and money-laundering schemes.  In the Matter of Backal, 660 N.E.2d 1104 (New York 1995).
  • Accepting a settlement agreement, the West Virginia Supreme Court of Appeals publicly censured a former judge for (1) on a number of occasions, approaching a court employee, speaking to her with lewd and vulgar language, touching and kissing her without her consent, and using language and behavior that were offensive and sexual in nature; (2) on a number of occasions, making offensive comments to another court employee that could be reasonably construed as sexual harassment; and (3) on at least 2 occasions, being under the influence of alcohol while on the bench and making offensive and inappropriate remarks to litigants and/or attorneys appearing before him.  In the Matter of Hey, 452 S.E.2d 24 (West Virginia 1995).

Perception problem

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Based on the judge’s consent, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for stating, “the Grand Wizard of our Supreme Court said we have to wear these masks,” or words to that effect, to a courtroom audience of criminal defendants, some of whom were African-American.  Re Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020).  The judge admitted making the statement in open court on July 16, 2020, referring to the Tennessee Supreme Court’s requirement that face coverings be worn in court.  The judge explained that the statement was spontaneous and intended to “soften any resistance by those present in the courtroom to the requirements of wearing a mask, as we have had negative feedback to this [Supreme Court] mandate.”  The judge acknowledged that he was wrong to make the statement, recognized the perception problem with the comment, said that he meant no disrespect to anyone, and regretted making it.

The Board stated that “participants in a legal proceeding who hear racially insensitive comments, such as the one involved here, may reasonably perceive that the judge is biased or prejudiced” and “may reasonably question whether they received impartial and unbiased treatment” even if, “as here, there is nothing to suggest bias or prejudice in any case.”  The Board also stated that “comments like the one at issue do not inspire” public confidence that “the judge will dispense justice respectfully and fairly.”  The Board said that the comment was not dignified or courteous and impugned a higher court even if the judge did not intend “to cast aspersions on any member” of the Court because those who heard his comment had no way of determining his intent “apart from the words used.  Once such comments are made, the damage is done.” 

Other recent examples of sanctions for expressions of bias or the appearance of bias, derogatory comments, and/or extra-judicial comments that cast doubt on the judge’s capacity to act impartially:

  • A judge who asked a female deputy district attorney, “What kind of Asian [are you]?”  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • A judge who told an African-American defendant to stop “shucking and jiving.”  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct). 
  • A judge who referred to Caucasian and African-American defendants as “crackers” and “homeboys.”  Disciplinary Counsel v. Burge, 134 N.E.3d 153 (Ohio 2019) (6-month suspension of former judge’s law license for this and other misconduct).
  • A judge who told a reporter, “The young black men – and it’s primarily young black men rather than young black women – charged with felony offenses, they’re not getting good advice from their parents.  Who do they get advice from?  Rag-tag organizations like Black Lives Matters, which tell you, ‘Resist police,’ which is the worst thing in the world you could tell a young black man . . . they teach contempt for the police, for the whole justice system.”  Public Warning of McSpadden (Texas State Commission on Judicial Conduct November 12, 2019).
  • A judge who, when complaining to law enforcement about trucks associated with a solar farm project that was next to property owned by her family, said, “None of them had driver[‘s] licenses, since they are Mexican.”  Public Warning of Plaster and Order of Additional Education (Texas State Commission on Judicial Conduct August 12, 2020).