Monthly Archives: March 2021

“Salty”

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Affirming the findings of fact and conclusions of law of a panel of the Commission on Judicial Conduct following a hearing, the Kansas Supreme Court suspended a judge without pay for 1 year for (1) frequently using the word “f**k” and its derivatives when speaking at the courthouse; (2) using derogatory terms when referring to women; and (3) using the phrase “Kansas boy” to describe a young black male defendant.  In the Matter of Cullins (Kansas Supreme Court February 26, 2021).  The Court stayed the suspension for 60 days for the judge to submit a plan for counseling and training.  If the Court approves the plan, it will stay part or all of the suspension during the plan’s term; if the judge successfully completes the plan, the Court will consider waiving any remaining suspension.

(1) The Court held that the use of “f**k” “is unprofessional and—almost always—undignified for a judge,” violating the rule requiring a judge to treat everyone with patience, dignity, and courtesy.  In response to the panel finding that the judge had also violated the rule requiring a judge to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” the judge argued that the F-word is ubiquitous “in the current culture’s vernacular” and “cussing is so common in Southeast Kansas” that it does not reflect negatively on character.  The Court concluded that the judge’s “offensive conduct went far beyond any undignified and unprofessional use of the word ‘f**k’” and that his “aggressiveness; his reference to a female litigant as ‘crazy’; his overt and public humiliation” of the chief clerk; and “his loud, angry, and expletive-filled reprimand” of a court clerk “collectively” violated the rule.

The judge also argued that his profanity could not have undermined public confidence in the judiciary because the incidents “did not occur in a public forum.”  However, the Court noted that at least 2 incidents had occurred or could be heard in a hallway near members of the public.  Further, the Court explained that the judge’s argument “defies logic” by suggesting that his “conduct has not been discussed in the community by the people who witnessed it.”

The judge also argued in his defense that he was often fair to court staff.  The Court stated that, “while that may be true, good behavior on some—even most—occasions does not disprove misbehavior on other occasions.”  Further, it emphasized that good behavior did not “override” code violations, but at most was relevant as mitigation for discipline.  It explained:  “Frankly, good behavior, while commendable in a judge, is also expected.”

(2) The panel had concluded that the judge’s “use of derogatory words,” particularly “b***ch” and “c**t,” to describe women manifested a clear bias based upon sex and “was hostile toward the individuals about whom he was speaking. . . .  Intentionally gender-based derogatory references toward women have no place in the administration of justice, and have no place in a judge’s vernacular.”  (The Court noted that a minority of the justices believed that there was no showing of bias against females generally but only bias against certain females.)

The judge asserted that his statements did not violate the code because he did not make them while performing judicial duties, that is, “during or in relation to any matter he was adjudicating” or while performing administrative duties.  The Court rejected that argument:

Respondent interprets “judicial duties,” including his administrative duties, too narrowly.  While in the courthouse—when court business of every kind was being addressed—Respondent was present in his official capacity as a district judge, and sometimes also as chief judge.  A judge does not lose his mantle of authority when he steps out of his chambers into a hallway.  A judge’s performance of “judicial duties” occurs constantly in the courthouse during the course of any given day. . . .  Those duties include the times a judge presides over hearings, completes administrative reports, and evaluates employees, but they also include those occasions when a judge discusses employee performance with attorneys and other staff; admonishes persons waiting in the hall to be quieter so as not to disrupt court proceedings; offers to assist a wandering law enforcement officer who needs an application for search warrant reviewed; directs a member of the public to the right courtroom; addresses a complaint; and deals with innumerable other things that require a judge’s professional attention, judgment, and decision throughout the day.

(3) During a bond hearing for a young black male student at a local college, the judge asked, “Can I assume you’re not even a Kansas boy?”  There was a second bond hearing also involving a young black male student immediately afterward.

The judge testified that he did not intend the term “boy” to have any racial connotation, that he considers himself a “Chautauqua County boy,” and that his reference to the young man as “a Kansas boy” was similar.  The panel found that the judge’s testimony was credible and that he did not intend the term as a term of racial derision, noting “geographic origin was relevant for proper administration of the bond hearing, and the men were teenagers.” 

Noting that “words and phrases . . . are important,” the Court concluded that, “regardless of inflection, tone, or local custom,” the judge’s conduct “during these bond hearings created a reasonable perception of racial bias . . . .”  It explained:

Specifically, two adult Black men appeared before the judge during a bond hearing, both presumed innocent of their criminal charges. A reasonable individual might perceive that the following may have shown racial bias:

• Something about the defendants’ appearance caused the judge to believe they were athletes;
• Something about their appearance caused the judge to assume they were not from the area;
• Something about their appearance caused the judge to question—even disbelieve—one defendant’s assertion that he had no felony record; and
• During the judge’s comments he used a term — “boy”— that has been used at times in the past as a common and well-known slur against Black men.

The Court concluded that, “when taken altogether and in context, a reasonable perception of bias cannot be denied.”

In mitigation, the judge stated that he is efficient, fair in his hearings, and “does not mean to hurt or harm” but “is just ‘salty.’”  The Court found that the judge’s conduct “quite troubling.  He has intimidated and publicly humiliated court employees.  He has shown bias and the appearance of bias by his insulting and careless remarks, even while on the bench and presiding over hearings.  By his coarse language in the courthouse, he has sullied the dignity and propriety of the judiciary.”

Throwback Thursday

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5 years ago this month:

  • The California Commission on Judicial Conduct publicly admonished a judge for repeatedly continuing post-trial hearings in a criminal case in response to statements a criminal defense attorney made at sidebar during a trial without citing the attorney for contempt or issuing an order to show cause; failing to give the attorney notice of the subject of one of the hearings, improperly excluding the attorney from the hearing, and engaging in improper ex parte communications before the hearing; and contacting another judge to obtain information about another possible contempt matter concerning the attorney.  Public Admonishment of Connolly (California Commission on Judicial Conduct March 23, 2016).
  • Following a hearing on a complaint brought by the Judicial Inquiry Board, the Illinois Courts Commission suspended 1 judge for 4 months without pay for presiding over cases in which the husband of a judge with whom he was having an affair represented a party without disclosing the relationship and for a pattern of deceptive conduct to hide the affair from the chief judge and publicly censured the judge with whom he was having the affair for knowing that he was presiding in cases involving her husband but failing to initiate appropriate disciplinary measures against him.  In re Drazewski and Foley, Order (Illinois Courts Commission March 11, 2016).
  • Adopting the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge for mishandling multiple peace bond proceedings, including failing to timely refund money paid to him after the bonds had expired without forfeiture; extending peace bonds beyond the 6-month maximum term allowed by law; exceeding the $1,000 maximum limit for peace bonds; charging fees in peace bond proceedings that exceeded the amount allowed by law; imposing sentences on peace bond defendants that exceeded the maximum allowed by the code of criminal procedure; issuing peace bonds that interfered with family court proceedings; issuing peace bonds without a hearing as required by law; being rude and discourteous; allowing his staff to be rude and discourteous; and failing to properly notarize peace bond applications.  In re Laiche, 198 So. 3d 86 (Louisiana 2016).
  • With the judge’s consent, the Maryland Commission on Judicial Disabilities released its private reprimand of a judge for appearing in a court where he was assigned as a recall judge for a trial on a ticket he received.  In the Matter of Plitt, Private reprimand (Maryland Commission on Judicial Disabilities March 15, 2016).
  • The Nevada Commission on Judicial Discipline permanently barred a former judge from judicial office in the state based on his federal plea agreement to charges related to a conspiracy to devise and execute a scheme or artifice to defraud and obtain money or property by means of false and fraudulent pretenses, representations, half-truths, and promises.  In the Matter of Jones, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline March 1, 2016).
  • Based on the judge’s consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for independently investigating the father in a paternity case and then holding him in contempt without following procedures required by due process and failing to enter a visitation order in the case for over a year.  In the Matter of Wanker, Stipulation and order of consent (Nevada Commission on Judicial Discipline March 3, 2016).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which were accepted by the judge, the New Jersey Supreme Court publicly reprimanded a former judge and permanently barred him from serving in judicial office for (1) presiding in 4 cases in which he had a conflict of interest; (2) making improper and derogatory remarks during 2 court proceedings; (3) dismissing a parking violation against a litigant using a procedure that conflicted with the rule and guidelines regarding plea agreements; and (4) engaging in plea negotiations with numerous defendants charged with driving while on the suspended or revoked list.  In the Matter of Scattergood, Order (New Jersey Supreme Court March 8, 2016).
  • Based on joint stipulations of fact, violations, and aggravating and mitigating factors, the Ohio Supreme Court suspended a former magistrate for 2 years, with 18 months stayed with conditions, for his sexual relationship with a party in an eviction action over which he presided as a magistrate, his falsification of a loan application for the purchase of a motor vehicle for her, and his misappropriation of wrongful-death proceeds that were intended to finance an annuity for the benefit of a decedent’s minor children.  Disciplinary Counsel v. Williams, 49 N.E.3d 289 (Ohio 2016).
  • • Based on stipulations of fact in lieu of trial, the Pennsylvania Court of Judicial Discipline fined a former supreme court justice $50,000 for participating in an exchange of e-mails with friends and professional acquaintances that were insensitive and contained inappropriate references to gender, race, sexual orientation, and ethnicity, using his Commonwealth-issued computer equipment and a personal web-based e-mail address. In re Eakin, 150 A.3d 1042 (Pennsylvania Court of Judicial Discipline 2016).
  • • Pursuant to an agreement with the judge, the investigative panel of the Tennessee Board of Judicial Conduct publicly reprimanded a judge for an ex parte meeting and e-mail with members of the district attorney general’s office regarding the types of dispositions she would accept in domestic violence court. Reprimand of Walker (Tennessee Board of Judicial Conduct March 23, 2016).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for attempting to pull a driver over for reckless driving, having a police officer pull the driver over, and threatening to have the driver incarcerated without legal justification; the Commission also ordered the judge to receive 2 hours of additional education. Public Warning of Brady and Order of Additional Education (Texas State Commission on Judicial Conduct March 3, 2016).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for regularly interrupting litigants and attorneys and addressing them in an unduly confrontational, loud, and harsh manner; the judge also agreed to participate in ethics training.  In re Canada-Thurston, Stipulation, agreement, order of reprimand (Washington State Commission on Judicial Conduct March 4, 2016).

Gifts, art, pronouns, and ex parte communications

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Gifts
In a recent opinion, the California Supreme Court Committee on Judicial Ethics Opinions advised that judges “may exchange modest gifts with their courtroom staff.”  California Expedited Opinion 2021-39. However, it explained ed that judges should “treat all staff equally and maintain proper decorum” should not pressure staff to reciprocate.  Moreover, the opinion added that judges should not give gifts that are “offensive, demeaning, or otherwise inappropriate” or gifts that could “be perceived as harassment.”

The opinion noted that “acknowledging birthdays, holidays and other special occasions can be an appropriate way to build morale among a judge and his or her staff.”  However, it emphasized that, “to the extent reasonably possible, judges should endeavor to treat their staff equally.”  For example, it stated that judges should not give “significantly disproportionate” gifts to different staff members or only “celebrate the birthdays of certain of their staff while ignoring the birthdays of others.”  Moreover, it advised judges to be “sensitive to and respect the fact that staff may come from different faiths and traditions” and “to the extent reasonably possible, . . . tailor any gifts that they give to align with the heritage and belief systems of their staff.”

The opinion advised judges to tell their staff that “there is no obligation or expectation” that they will give the judge a gift in return for the judge’s gift and warned judges not to implicitly pressure their staff for such an exchange, noting that staff are more likely to feel that reciprocation is required if the judge’s gift is expensive or extravagant.  Thus, the committee directed judges to “keep any gifts modest” reflecting “the power and financial imbalances between themselves and their staff.”  Further, it stated that “judges should not solicit staff for a group gift.”

The committee also stated that judges should not “give gifts that are offensive or demeaning,” for example, a gift that is “obscene, profane or degrading in any way to the recipient or to others” or that is a practical joke.  Finally, it stated that judges should not “give gifts that would be perceived as harassing, for example if given in the expectation of fostering a romantic or sexual relationship with a staff person.”

Art
In a recent opinion, the New York Advisory Committee on Judicial Ethics stated that judges may undertake “a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups” in collaboration with a non-profit historical society.  New York Advisory Opinion 2020-202.  The committee noted that the judge should first obtain any required administrative approvals.

The inquiring judges were members of a court’s committee on bias and noted that, “[w]hile the law in the United States has proven to be dynamic, and gradually has changed to include protections for marginalized groups, the art in our courthouse has remained static, and displays aesthetics that reflect a less inclusive, and less just, America.”  To make the courthouse more inclusive and educational, the judges wanted to work with “scholars of legal history and architecture to help create signage and other materials that would ‘interrogate our public art and place it in the context of our nation’s history.’”  The judges would prepare written plans for the project, and the Historical Society of the New York Courts would apply for grants.  After funds were received, the judges would collaborate with the Society in their allocation.

The advisory committee concluded that the project was not only “ethically permissible” but supported the court system’s “efforts to eliminate bias and prejudice and thereby promote public confidence in the judiciary.”

Pronouns
In a recent opinion, the New York Committee stated that, when “a party or attorney has advised the court that their preferred gender pronoun is ‘they,’ a judge may not require them to use ‘he’ or ‘she.’”  New York Advisory Opinion 2021-9.  The inquiring judge was concerned that “the use of ‘they’ could create confusion in the record as to the number of persons to whom a speaker is referring.”

The committee recognized that “a judge may take reasonable steps to ensure the clarity of the record, including courteously referring to an individual by surname and/or their role in the proceeding as appropriate.”  However, it stated, “a judge must be careful to avoid any appearance of hostility to an individual’s gender identity or gender expression.”  The Committee explained:  “Adopting and announcing the sort of rigid policy proposed here could result in transgender, nonbinary or genderfluid individuals feeling pressured to choose between the ill-fitting gender pronouns of “he” or “she.”  This could not only make them feel unwelcome but also distract from the adjudicative process.”  Therefore, it concluded, “the described policy, if adopted, could undermine public confidence in the judiciary’s impartiality.”

It also found that there was “no reason for a judge to pre-emptively adopt a policy barring all court participants, in all circumstances, from being referred to by singular ‘they’. . . .”  It noted that “they” “is one of three personal pronouns in the English language” and has been recognized as a grammatically correct use for an individual, citing Merriam-Webster’s addition of that usage to its dictionary definition in September 2019 and its choice as the 2019 Word-of-the-Year.

The Committee expressed its trust that judges can “handle an expressed preference for the use of singular ‘they’ on a case-by-case basis, adopting reasonable procedures in their discretion to ensure the clarity of the record as needed.”  It also noted that a judge could make “adjustments over the course of a proceeding” if they find that “an initial approach was unsuccessful or confusing.”

Ex parte communications
In a recent opinion, the Illinois Judicial Ethics Committee advised that a judge is not required to recuse from a case after an unsolicited ex parte communication from a litigant if the judge halts the communication as soon as possible, disregards it, and promptly advises all parties.  Illinois Advisory Opinion 2020-1.  The committee did note that judges may “wish to insulate themselves, to the extent possible, from such communications,” for example, “by issuing a standing order to make clear to non-lawyers that such communications are not allowed.”

The inquiry came from a judge who had received an email from a self-represented litigant with “extensive and substantive information about a case.”  The email was sent directly to the judge, and opposing counsel was not copied.  The litigant had learned the judge’s email address when the judge, in order to schedule virtual hearings, communicated by email with the litigant and the attorney representing the other side. 

The committee stated that, after receiving an unsolicited ex parte communication, a judge’s first step was “to ensure that the ex parte communication is disclosed to the other party.”  The opinion noted that “an ex parte communication received via email makes possible a verbatim disclosure of the communication,” which “diminishes the opposing party’s concern about whether it knows the full substance of the communication made to the judge.”  The inquiring judge had “immediately notified the other party of the communication.”

After disclosure, according to the committee, the judge should determine “whether, as a result of the ex parte communication, the judge’s neutrality has been affected; in other words, has the judge become actually biased based on what was learned?,” which would require recusal.  The committee noted that the “inquiring judge did not feel that receipt of the communication affected their neutrality,” adding that “it would be unusual for a judge to be unable to compartmentalize” information they could consider from information they could not consider.

Finally, the committee advised that the judge should analyze whether the ex parte communication raised reasonable questions about the judge’s impartiality, noting that recusal “should be required only ‘if additional circumstances give rise to an appearance of bias,’ such as the ‘judge’s initiation of an ex parte communication.’”  An ex parte communication is less likely to require recusal under that test, the committee explained, if the judge did not initiate it, “shut[] it down” when it was recognized, and promptly disclosed the communication to the other side.  The opinion emphasized that “a judge’s initiation of an ex parte communication might create concerns about the judge’s impartiality, but the same is not true when some other person initiates the communication.  The action of another does not implicitly create any inference about the judge’s impartiality.”  The committee also noted that a rule requiring recusal following any ex parte communication “’would allow a party to remove a judge from a case by initiating an ex parte contact, which would encourage unethical ploys and allow manipulation of the judicial process.’” 

Throwback Thursday

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10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for berating defendants, attorneys, and individuals in the courtroom gallery.  Johnson, Order (Arizona Commission on Judicial Conduct March 18, 2011).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for threatening to send a homeowner to jail, take away his house, and give it to the city without authority to do so.  Andress, Order (Arizona Commission on Judicial Conduct March 18, 2011).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for displaying an improper demeanor at a hearing and attempting to alter conditions of release without providing notice to the parties or otherwise following procedure.  Andress, Order (Arizona Commission on Judicial Conduct March 18, 2011).
  • Based on the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission publicly admonished a part-time judge for 2 phone calls he made to police and helping return stolen goods that were taken by an employee of his family’s business.  Letter of Admonishment (Boeckmann) (Arkansas Judicial Discipline and Disability Commission March 18, 2011).
  • The California Commission on Judicial Performance publicly admonished a judge for an insensitive comment about the Ku Klux Klan.  Public Admonishment of Giss (California Commission on Judicial Performance March 16, 2011).
  • The Mississippi Supreme Court suspended a judge without pay for 30 days, publicly reprimanded him, and fined him $1,000 for engaging in ex parte communications; misusing his contempt power; failing to properly notice hearings; granting relief not requested; issuing a search warrant without legal authority; making comments to the local newspaper to explain his actions and justify the defendant’s incarceration in 1 case; and publicly admitting ex parte contact with a litigant.  Commission on Judicial Performance v. Patton, 57 So. 3d 626 (Mississippi 2011).
  • Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly censured a former judge for committing domestic battery against his now ex-wife and having been convicted of the charge arising from the incident; the Commission also prohibited him from seeking and accepting judicial office in Nevada for 4 years.  In the Matter of Abbatangelo, Findings of Fact, Conclusions of Law, Consent Order of Discipline (Nevada Commission on Judicial Discipline March 30, 2011).
  • The New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for personally delivering his co-worker’s traffic ticket to another court.  In the Matter of Daniels, Determination (New York State Commission on Judicial Conduct March 25, 2011).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for taking a treatment court participant for a ride in his personal car over a lunch recess and speaking privately with him about personal issues, including the defendant’s drug use and his mother’s death.  In the Matter of Tarantino, Determination (New York State Commission on Judicial Conduct March 28, 2011).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for (1) representing clients before the village building and zoning department over which his court has jurisdiction; (2) allowing his name to appear on papers filed by his law firm in lawsuits against the village; and (3) permitting his law firm to make political contributions.  In the Matter of Kelly, Determination (New York State Commission on Judicial Conduct March 31, 2011).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for writing a letter on judicial stationery in support of a defendant in a criminal case pending in federal court.  Public Reprimand of Ochoa (Texas State Commission on Judicial Conduct March 31, 2011).

Not a matter of management style

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The North Carolina Supreme Court found that a court of appeals judge had committed willful misconduct by allowing his executive assistant/law clerk, who was a close friend, to create a toxic work environment for the female law clerks in his chambers.  In re Inquiry Concerning Murphy, 852 S.E.2d 599 (North Carolina 2020).

After he became a judge in January 2017, the judge hired his close, personal friend from high school, Ben Tuite, to serve as his executive assistant and permanent third law clerk.  The judge gave Tuite “express and implied authority to supervise and manage the term law clerks and the operations of his chambers.”  The judge hired Clark Cooper and Lauren Suber as his term law clerks.  In March 2017, after Cooper suddenly resigned, the judge hired Mary Scruggs.  After Suber completed her clerkship in August 2017, she was replaced by Chelsey Maywalt. 

The Judicial Standards Commission found that Tuite “regularly used profanity during the workday, belittled others,” “used fear and intimidation while interacting with and supervising the law clerks,” “engaged in profane, violent and angry outbursts in the office,” and made “lewd or sexually inappropriate comments in the workplace.”  For example:

  • Tuite frequently used the word “f**k” in the workplace.
  • Tuite referred to the female law clerks more than once as “b***h” or “b***hing.” 
  • Tuite told Suber and Scruggs on separate occasions early in their clerkships that “he likes to have relationships with female co-workers but that they should not misconstrue his efforts to spend time with them.”
  • Tuite told Suber that “he would like to see her in a wife beater’ tank top and shorts on a cold day” and that he “was married but not blind.”
  • While reviewing a law clerk application with the judge, Suber, and Scruggs, Tuite repeated “derogatory and belittling online comments” that called the female applicant’s breasts “fun bags.”
  • On one occasion, Tuite, “after being told of a problem with his work product, yelled ‘f**k’ loud enough for everyone in the judge’s] chambers, including [the judge] who was in his office with the door open, to hear, and slammed his fist on a table hard enough to activate a panic alarm that was attached to that table.”
  • On another occasion, during a meeting, Tuite, in the judge’s presence, got angry at Maywalt, slammed his fist on his chair, said, “Goddamn it, Chelsey,” and told her to shut her mouth and that “her opinion did not f**king matter.”

The judge observed some of Tuite’s conduct, and the law clerks told him about other incidents, but he failed to take any action.  The female clerks “were miserable, felt unsafe and uncomfortable working in [the judge’s] chambers and did not trust [the judge] to accurately portray their reports of workplace misconduct to others or to protect their well-being.”  2 of the clerks resigned before their terms were over; one did not accept the judge’s offer to extend her term. 

Another judge reported his concerns about the environment in Judge Murphy’s chambers to the chief judge.  In subsequent meetings with and emails to the Commission and the human relations department, the judge did not disclose the law clerks’ complaints about Tuite or any of the incidents he had observed and “downplayed, minimized, and mischaracterized” Tuite’s actions.  “The judge dismissed the female clerks’ concerns as complaints about “‘how things are handled’ inside and outside of chambers.”  The judge also regularly assured Tuite and indicated to others that Tuite’s employment at the court of appeals would continue.  However, after a judicial colleague advised him to ensure that “his female law clerks were not uncomfortable” and after learning that Scruggs was interviewing for another position, the judge asked Tuite to resign, which he did in January 2018.

Finding that he had been “influenced by his close personal friendship with and loyalty towards Mr. Tuite,” the Commission concluded that, by failing to act, the judge condoned “Tuite’s workplace misconduct and therefore . . . contributed to and enabled a toxic work environment.”  The Court adopted the findings of the Commission.

The Court rejected the judge’s argument that he could not be held accountable for others’ actions; it noted that the code of judicial conduct specifically states that a judge should require “dignified and courteous’ behavior of his staff” and require “staff and court officials subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge.”  The Court concluded:

The incidents for which respondent was present . . . were sufficient to warrant corrective action with regard to Mr. Tuite.  Instead, respondent continued to turn a blind eye.  This shortcoming is not, as [the judge] contends, simply a matter of managerial style.  Rather, it is a failure to recognize the gravity of Mr. Tuite’s sexually explicit language and profane and suggestive language directed toward [the judge’s] law clerks and the impact on the law clerks of such unprofessional behavior.

Multiple acts of misconduct aggravated by a failure to acknowledge fault or show remorse and by a lack of candor often result in a judge’s removal or suspension without pay in judicial discipline cases.

However, the North Carolina Supreme Court only publicly censured Judge Murphy without explanation except the conclusion that his conduct “did not rise to the level of incurring suspension or removal as contemplated in other decisions of this Court.”  The Court did not cite its other decisions, but since 2008, it has removed 2 judges and suspended 2 judges without pay, in addition to imposing several censures and reprimands.  See In re Chapman, 819 S.E.2d 346 (North Carolina 2018) (30-day suspension without pay for failing to issue a ruling for more than 5 years on a motion for permanent child support); In re Hartsfield, 722 S.E.2d 496 (North Carolina 2012) (based on stipulated facts, 75-day suspension without pay for ticket-fixing); In re Belk, 691 S.E.2d 685 (North Carolina 2010) (removal of former judge for remaining on the board of directors of a corporation and making intentional misrepresentations during the Commission investigation); In re Badgett, 666 S.E.2d 743 (North Carolina 2008) (removal of judge for mishandling a domestic violence protective order case and, during the investigation, making untruthful, deceptive, and inconsistent statements to a State Bureau of Investigation agent and attempting to influence the recollections of a deputy clerk and the plaintiff’s attorney; the judge had been censured and suspended earlier in the year for unrelated misconduct).

Throwback Thursday

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20 years ago this month:

  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to implement agreed sentences without giving the prosecution an opportunity to be heard and failing to be patient, dignified, and courteous toward all participants in court proceedings.  Press Release (Campbell) (Minnesota Board on Judicial Standards March 26, 2001).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for firing a handgun several times towards the rear area of his law office near a public intersection to scare a wild turkey off the road that he believed was endangering motorists.  In the Matter of Ciganek, Determination (New York State Commission on Judicial Conduct March 29, 2001).
  • The New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for engaging in improper ex parte communications in a small claims action and failing to afford a plaintiff full opportunity to be heard.  In the Matter of Gori, Determination (New York State Commission on Judicial Conduct March 29, 2001).

Recent cases

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  • The California Commission on Judicial Performance publicly admonished a former judge for (1) treating parents and others in a harsh and discourteous manner in 10 dependency hearings; and (2) on consecutive days, yelling at court staff and displaying frustration about an internet outage and discourteously raising her voice to another judge.  Public Admonishment of Roberts (California Commission on Judicial Performance February 18, 2021).
  • With the judge’s approval, the Kansas Commission on Judicial Conduct ordered a judge to cease and desist from failing to perform judicial duties competently and diligently and from delaying his decisions.  Inquiry Concerning Tate, Order (Kansas Commission on Judicial Conduct January 20, 2021).
  • Affirming the findings of fact and conclusions of law of a panel of the Commission on Judicial Conduct following a hearing, the Kansas Supreme Court suspended a judge without pay for 1 year for (1) frequently using the word “f**k” and its derivatives when speaking at the courthouse; (2) using derogatory terms when referring to women; and (3) using the phrase “Kansas boy” to describe a young black male defendant; the Court stayed the suspension for 60 days for the judge to submit a plan for counseling and training.  In the Matter of Cullins (Kansas Supreme Court February 26, 2021).
  • Based on an agreement and stipulated facts, the Kansas Commission on Judicial Conduct ordered that a former judge cease and desist from inappropriately using the prestige of judicial office and acting in a manner that does not promote confidence in the integrity of the judiciary and to continue his retirement and not hold a judicial office in the future; the judge had asked the county sheriff’s office not to service a summons/petition in a divorce case and had a profane and threatening conversation with an undersheriff about the incident.  Inquiry Concerning Smith, Order (Kansas Commission on Judicial Conduct February 25, 2021).
  • Adopting in part the recommendation of the Judiciary Commission based on a statement of stipulated facts and conclusions of law, the Louisiana Supreme Court suspended a judge for 2 years without pay for grabbing the buttocks of a waitress at his bachelor party while intoxicated and failing to cooperate with police, for which he had been convicted of several misdemeanors; the Court deferred all but 6 months of the suspension and the 6 months was made retroactive to the date of his suspension as an attorney; the deferral was subject to the judge successfully completing a 5-year Judges and Lawyers Assistance Programs monitoring agreement.  In re Hardee, Opinion (Louisiana Supreme Court January 27, 2021).
  • Based on the judge’s consent, the Nevada Commission on Judicial Discipline publicly admonished a judge for acting in a manner unbecoming a judicial officer towards court staff and the chief judge on numerous occasions.  In the Matter of Earley, Stipulation and order (Nevada Commission on Judicial Discipline January 21, 2021).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court suspended a judge for 10 months without pay for, during and after a criminal trial, failing to follow fundamental principles of criminal procedure; “fashion[ing] a remedy outside of accepted statutory and ethical norms” without entering guilty findings; using an expletive when the court administrator advised her that there was no authority for her disposition; engaging in “combative” ex parte communications when the defendants did not meet their restitution obligations; and suggesting that the victim file a civil suit against the defendants; the suspension was made retroactive to the date of the judge’s temporary suspension, and her resumption of duties was conditioned on her compliance with a plan regarding professional development.  In the Matter of Rasul, Order (New Jersey Supreme Court February 16, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a non-lawyer judge who had pled guilty to criminal mischief for keying a town official’s vehicle in a parking lot, “apparently in reaction to the town’s denial of his request to provide health insurance.”  In the Matter of Burker, Decision and order (New York State Commission on Judicial Conduct January 28, 2021).
  • Accepting a stipulation based on the judge’s affirmation that she vacated her office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a judge who had been charged in a formal written complaint with, inter alia, presiding “notwithstanding a disqualifying conflict with a party or witness but fail[ing] to disclose and/or recuse herself as required.”  In the Matter of Ward, Decision and order (New York State Commission on Judicial Conduct January 28, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded its investigation of allegations that a non-lawyer judge had, between December 2019 and March 2020, engaged in inappropriate conduct in his courthouse that was inconsistent with his ethical obligations to act in a manner that promotes public confidence in the integrity of the judiciary and to conduct his extra-judicial activities so as not to detract from the dignity of his judicial office and had failed to respond to the Commission inquiry.  In the Matter of Cunningham, Decision and order (New York State Commission on Judicial Conduct January 28, 2021).
  • Based on her agreement to resign and not seek an appointed or elected judicial office in the future, the Tennessee Judicial Conduct Board agreed not to pursue formal charges against a judicial commissioner for discourteously and intemperately injecting herself into a criminal case involving a family member.  In re Tomlinson (Tennessee Judicial Conduct Board February 1, 2021).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for, in a post-judgement collection matter, improperly issuing a show cause order for a defendant based on the plaintiff’s oral motion for contempt and failing to ensure that the defendant had notice and an opportunity to respond to the motion; the Commission also ordered the judge to obtain 4 hours of education with a mentor.  Public Reprimand of Jones and Order of Additional Education (Texas State Commission on Judicial Conduct January 28, 2021), appealed to special court of review.
  • Following a hearing, the Washington State Commission on Judicial Conduct publicly admonished a judge for appearing in bus advertisements for a college that identified him as a judge.  In re Keenan, Decision and order (Washington State Commission on Judicial Conduct February 5, 2021).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for comments she made on her Facebook page about a pharmacist arrested for destroying COVID-19 vaccine dosages and about the siege at the U.S. Capitol.  In the Matter of Jackson, Public admonishment (West Virginia Judicial Investigation Commission February 24, 2021).

Throwback Thursday

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25 years ago this month:

  • Based on a stipulated disposition and agreed statement of facts, the California Commission on Judicial Performance severely censured a judge for a wide variety of misconduct, including remanding people to custody without following proper contempt procedures for whispering or appearing to fall asleep in court; being rude and insulting to a deputy public defender on 5 occasions; putting inordinate pressure on prosecutors to offer dispositions and on defendants to enter guilty pleas; and frequently and arbitrarily dismissing misdemeanor cases if the prosecution was unable to proceed on the day set for trial without the 10-day grace period allowed by the penal code.  Inquiry Concerning Ormsby, Decision and Order of Public Censure (California Commission on Judicial Performance March 20, 1996).
  • Reviewing a special masters’ report and the record de novo, the Indiana Supreme Court removed a judge from office for participating in harassment directed toward a court employee and her family; the Court also suspended the judge from the practice of law for no less than 2 years.  In the Matter of McClain, 662 N.E.2d 935 (Indiana 1996).
  • The Michigan Supreme Court suspended a judge for 3 days without pay for intemperate and abusive conduct toward an attorney.  In the Matter of Hocking, 546 N.W.2d 234 (Michigan 1996).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for failing over 6 years to advise defendants in traffic cases of a trial date upon receipt of not guilty pleas as required by statute and meeting ex parte with prosecutors to discuss plea reductions negotiated with defendants by the prosecution.  In the Matter of Bregman, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • Pursuant to an agreed statement of facts and recommendation between the Commission administrator and a judge, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for signing as complaining witness and filing with the other judge of his court 30 informations against individuals that the judge had apprehended on the property of a private club where he was superintendent and using judicial stationery in several letters to his fellow judge and to the district attorney in connection with the cases.  In the Matter of Hoag, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • The New York State Commission on Judicial Conduct removed a judge for failing to remit court funds to the state comptroller by the tenth day of the month following collection as required by statute, failing to respond to 3 letters from staff counsel, and failing without explanation to appear to give testimony.  In the Matter of Driscoll, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • Pursuant to an agreed statement of fact and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for stepping off a roadway into some bushes in a park and raising his shorts, exposing himself; informing the arresting police officers that he was a judge even though they had not asked about his occupation; and, stating to a lieutenant at the police station that his arrest would be devastating because of his judicial position.  In the Matter of D’Amico, Determination (New York State Commission on Judicial Conduct March 21, 1996).
  • The New York State Commission on Judicial Conduct publicly admonished a part-time judge for making an improper, ex parte telephone call to the victim in an assault case and conducting night and weekend arraignments in the police station even though a courtroom was available.  In the Matter of Cerbone, Determination (New York State Commission on Judicial Conduct March 21, 1996).
  • Agreeing with the findings of fact, conclusions of law, and recommended sanction of the Board of Commissioners on Judicial Standards, the South Carolina Supreme Court publicly reprimanded a former judge for having sexual intercourse with a litigant in a case before the judge.  In the Matter of Gravely, 467 S.E.2d 924 (South Carolina 1996).

A sampling of recent judicial ethics advisory opinions

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  • The Americans with Disabilities Act does not require a judge to allow nonlawyers to represent litigants with disabilities in court.  A judge may permit accommodations for litigants with disabilities that do not conflict with rules prohibiting the unauthorized practice of law, for example, allowing an individual to sit with a self-represented litigant, but may deny a request for an accommodation that would circumvent procedures essential to the nature of the court’s services, programs, or activities.  A court may encourage a litigant with a disability to seek assistance, but may not exclude them from court services, programs, or activities if they choose not to seek assistance. Arizona Opinion 2020-1. 
  • A judge is not required to recuse from a case after an unsolicited ex parte communication from a litigant if the judge halts the communication as soon as possible, promptly advises all parties, and can disregard it.  Illinois Opinion 2020-1.
  • When a party or attorney has advised the court that their preferred gender pronoun is “they,” a judge may not require them to use “he” or “she.”  New York Opinion 2021-9.
  • An appellate justice may not accept the services of a law firm employee who is an incoming associate to work in the justice’s chambers for 6 to 12 months.  California Expedited Opinion 2021-38.
  • On learning that a law firm has posted screen shots or videos of the court’s oral arguments on its website, a justice should request that the images be removed.  New York Opinion 2020-158.
  • • To celebrate birthdays and holidays, judges may exchange modest gifts with their courtroom staff but should treat all staff members equally and maintain proper decorum and should not give any gifts that might pressure staff to reciprocate, be offensive, demeaning, or otherwise inappropriate, or be perceived as harassment. California Expedited Opinion 2021-39.
  • After receiving any required administrative approvals, judges may collaborate with the Historical Society of the New York Courts on a project to provide historical context for existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups.  New York Opinion 2020-202.
  • A judge is required to report to the State Commission on Judicial Conduct a town justice who filed a letter in support of the town clerk’s pistol permit application.  New York Opinion 2020-181.
  • A judge may not write a letter to the attorney grievance commission attesting to a former employee’s character.  Maryland Opinion Request 2020-22. 
  • A judge may not allow a transition program for formerly incarcerated individuals to list the judge’s name with other supporters in a grant application.  New York Opinion 2020-144.
  • Subject to general limitations on speech and conduct, a judge may write an article for a legal publication outlining what the judge considers are significant flaws in the risk assessment instrument judges are required to use under New York’s Sex Offender Registration Act.  New York Opinion 2020-136.
  • A town justice may not serve on the town’s police reform collaborative.  New York Opinion 2020-183. 
  • A judge may not accept an award for domestic violence awareness month from a not-for-profit entity that provides legal advocacy services and other resources and support for domestic violence victims.  New York Opinion 2020-184. 
  • A judge may donate to a fund established to install a public monument honoring a federal judge and may also solicit contributions from co-equal judicial colleagues.  The judges’ names and titles may be listed with other contributors on a plaque erected with the statue.  New York Opinion 2020-132.
  • A judge who underwent surgery at a not-for-profit hospital may not share their story on a patient education live webinar on the hospital’s website and social media channels.  New York Opinion 2020-108.
  • A municipal judge may not serve on the board of directors of a non-profit corporation that contracts with the city to provide re-entry services to the court as an alternative to incarceration.  Ohio Opinion 2021-1.
  • A judge may serve on a bar association’s internal nominating committee that recommends individuals seeking board and officer seats.  New York Opinion 2020-168.
  • A town justice may not speak at a town board meeting about a proposed resolution opposing extension of the big game hunting season.  New York Opinion 2020-193.
  • A judge may obtain and license a patent.  New York Opinion 2020-102.
  • A judge may volunteer as a participant in a COVID-19 study conducted by a hospital and may accept the same modest per-visit compensation as other participants.  New York Opinion 2021-11,
  • A judge may not form a for-profit company that will provide instruction on diversity, equity, and inclusion topics.  New York Opinion 2020-155.
  • A judge who is leaving office may not authorize a prospective employer to advertise their anticipated post-judicial employment at the firm.  Florida Opinion 2020-26.
  • As often as the judge determines necessary based on the circumstances, a judge must ask her spouse for information on his business arrangements with local attorneys and determine if disqualification or disclosure is necessary.  New York Opinion 2020-126.
  • A judge need not object to his spouse hosting a political fund-raiser for a candidate at their marital home, but the invitations must not refer to the judge, and the judge must not appear or participate in the event.  New York Opinion 2020-157/2020-160.
  • A judicial candidate may pledge to comply with the rules about appointments and fees in fiduciary cases and to make decisions and appointments without regard to political affiliation, cronyism, or nepotism.  A judicial candidate may not pledge to strive to appoint women attorneys and attorneys of color to fiduciary positions but may promise to reach out to various associations to increase participation in the lists.  New York Opinion 2020-114.

Winter issue of the Judicial Conduct Reporter

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The winter issue of the Judicial Conduct Reporter has been published and is available on-line.  The issue reviews judicial ethics and discipline in 2020 with stories on:

  • State judicial discipline in 2020
  • Removal cases in 2020
  • Top judicial ethics and discipline stories of 2020
    • What judges said to women that got them in trouble
    • Judicial participation in demonstrations, protests, marches, and rallies
    • Judicial ethics and discipline during a pandemic
  • What judges said that got them in trouble in 2020
    • What they said to or about litigants that got them in trouble
    • What they said to or about criminal defendants that got them in trouble
    • What they said to or about attorneys that got them in trouble
    • What they said to court staff that got them in trouble
    • What they said in election campaigns that got them in trouble
    • What they said to law enforcement that got them in trouble
    • What they said off-the-bench that got them in trouble
    • What they said on social media that got them in trouble

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.