A virtual National College on Judicial Conduct and Ethics will be held via Zoom on Thursday and Friday, October 28 and 29, 2021, from 11 to 2:30 central. There will be 3 one-hour long sessions each day, with breaks in between. The registration fee will be $95 total for both dates. More details will be posted in this blog and on-line as they are finalized.
Monthly Archives: July 2021
The judge as author
In a recent opinion, the Massachusetts Committee on Judicial Ethics advised that a judge may write, publish, and promote a novel but also described the numerous precautions the judge should take to ensure that promotional activities did not improperly invoke the prestige of the judicial office or otherwise violate the code of judicial conduct. Massachusetts Letter Opinion 2021-2.
The inquiring judge had written “a legal suspense novel set in both real and fictional Massachusetts locations.” The commercial publishing company that wanted to publish the novel “requires its authors to maintain a website and to participate in other promotional activities, including building a mailing list, conducting virtual book club events or readings, attending book signings, and maintaining profiles on social media websites such as Amazon and Goodreads.”
The opinion noted that, “even in a work of fiction,” a judge should not “author materials that may give the impression that the judge is subject to political influence or favors the interests of a political organization or candidate;” “write about or discuss a pending or impending case,” “disclose nonpublic information;” or “convey any predisposition with respect to issues or matters that may come before the judge.”
With those caveats, the committee advised that the code “permits judges to write novels or other works of fiction, contract with commercial publishers, participate in certain promotional activities, and receive reasonable compensation from sales of their books.” However, the committee further cautioned in general that a judge:
- Must ensure that “promotional efforts or other activities related to the publication and sale of a book do not distract from or interfere with the duties of judicial office;”
- Must not use any court resources in writing, publishing, or promoting the novel;
- “Should not directly sell or be involved in financial transactions” for the sales of the book;
- May not use the judge’s judicial title or office for promotional purposes or otherwise exploit the judicial position or permit others to do so;
- Should only agree to publication contracts that allow the judge to “retain sufficient control over the advertising” to avoid such exploitation; and
- Must report any earnings from sales of the novel on the judge’s annual, public extra-judicial income report.
More specifically, the committee stated:
- “A judge may not use judicial email or court mailing lists to promote sales of a novel authored by the judge.”
- At a book signing, the financial transactions for sales of the book “should be handled by someone other than the judge.”
- A judge should not participate in book signings and other promotional activities “at a courthouse or any other location that would lend the prestige of judicial office to efforts to sell the judge’s novel.”
- A judge should take “particular care” when using social media for promotional activities on social media, such as maintaining an author website or author profile on different platforms.
- When “a book has appeal to a wider audience” (in contrast to an educational book intended for lawyers), a judge should not target promotions to lawyers to prevent “impermissibly trad[ing] or appear[ing] to trade on the judge’s status and relationships with lawyers.”
However, the committee stated that judges who are also authors “are not required to hide their judicial identities” despite the prohibition on abusing the prestige of office. Thus, the committee advised:
- A judge “may be identified as a judge or by title in biographical materials that contain only factual statements, including on the jacket of a book authored by the judge, so long as the judge’s position is neither unnecessarily emphasized nor exploited for purposes of promotion.”
- “At book-signing events and in public discussion of the judge’s book, a judge may identify as a judge in response to questions.”
Noting that “the distinction between proper and improper use of a judge’s title may be subtle and highly dependent on circumstances,” the committee explained that “a judge should only state the judge’s judicial position in an incidental way, without relating that position to the work of fiction authored by the judge.” The opinion noted that “additional or different limitations may apply if a judge authors a non-fiction writing that concerns the law, the legal system, or the administration of justice.” The committee encouraged the judge to contact it “if more specific questions arise” during promotion of their novel.
See also “The Judge as Author,” Judicial Conduct Reporter (spring 2013); U.S. Advisory Opinion 114 (2014).
Throwback Thursday
5 years ago this month:
- Approving the findings, conclusions, and recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for sending a letter to a university president and engaging in an ex parte communication with the chief assistant state attorney on behalf of a defendant over whose case he was presiding in veteran’s court. Inquiry Concerning Holder, 195 So. 3d 1133 (Florida 2016).
- Approving a revised consent judgment, the Florida Supreme Court publicly reprimanded a judge for finding the victim in a domestic violence case in contempt for failing to respond to the prosecution’s subpoena to testify at trial and being discourteous and impatient toward the victim; the Court also ordered the judge to complete an anger management course and attend a domestic violence course offered by the Florida Judicial College. Inquiry Concerning Collins, 195 So. 3d 1129 (Florida 2016).
- The Georgia Judicial Qualifications Commission publicly admonished a judge for, in response to a defendant’s obscene remarks and display of utmost contempt for the court, making highly inappropriate remarks in a murder case. Durham (Georgia Judicial Qualifications Commission July 29, 2016).
- Pursuant to the judge’s agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a former judge for making numerous mocking statements to criminal defendants in open court, making numerous inappropriate statements to criminal defendants in an attempt to influence their decisions, making numerous critical statements to defense attorneys, making numerous inappropriate statements regarding fellow judges and court personnel while on the bench, and failing to take adequate steps to apprise criminal defendants of their rights in open court. In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016).
- Based on the finding of a hearing justice after a de novo review of a report of the Committee on Judicial Responsibility and Disability, the Maine Supreme Judicial Court suspended a part-time judge for 30 days and publicly censured him for statements he made in a letter to counsel regarding a court proceeding in which he was a party. In the Matter of Nadeau, 144 A.3d 1161 (Maine 2016).
- Pursuant to the judge’s waiver of his right to demand a formal complaint and public hearing, the Minnesota Board on Judicial Standards publicly reprimanded a judge for accusatory, hostile, and discourteous comments he made in 2 family law cases. Public Reprimand of Stacey (Minnesota Board on Judicial Standards July 26, 2016).
- The Texas State Commission on Judicial Conduct publicly reprimanded a judge for unilaterally amending a charging instrument, negotiating a plea with the defendant, and leaving a threatening, intimidating, and harassing voicemail message for the defendant. Public Reprimand of Scales (Texas State Commission on Judicial Conduct July 18, 2016).
- The Texas State Commission on Judicial Conduct publicly admonished a judge for driving while intoxicated and repeatedly invoking his judicial position during the traffic stop; the Commission also ordered the judge to obtain 2 hours of instruction with a mentor. Public Admonition of Glicker and Order of Additional Education (Texas State Commission on Judicial Conduct July 12, 2016).
- Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a court commissioner for meeting privately with a former judge before a hearing in a case in which the former judge’s daughter was a litigant and failing to disclose that contact; allowing the former judge to argue a motion to the court; and voiding a valid court order despite the daughter’s absence from the hearing. In re Anderson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 15, 2016).
- Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for refusing to allow a defendant to testify when he would not, for religious reasons, raise his hand while affirming he would tell the truth. In re Parise, Stipulation, agreement, and admonishment (Washington State Commission on Judicial Conduct July 15, 2016).
- Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for failing to comply with state campaign reporting laws. In re Tveit, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 15, 2016).
- The West Virginia Judicial Inquiry Commission publicly admonished a magistrate for endorsing a judicial candidate and failing to respond to Disciplinary Counsel’s request for information and to be candid in her reply. In the Matter of Campbell (West Virginia Judicial Inquiry Commission July 11, 2016).
- The West Virginia Judicial Investigation Commission publicly admonished a magistrate for posting bond for her granddaughter, having improper ex parte communications with the special magistrate presiding over the case, and accepting a discount from the bond company. In the Matter of Viderman, Amended public admonishment (West Virginia Judicial Investigation Commission July 5, 2016).
A sampling of recent judicial ethics advisory opinions
- For purposes of the exception to the prohibition on ex parte communications, a mediator is not court staff or a court official whose role is to assist the judge in adjudicative responsibilities. A judge who has referred a case to alternative dispute resolution may not discuss concerns about the case and the parties’ relative bargaining positions with the mediator outside the presence of the parties. After mediation, the mediator may report to the judge whether the mediator has been successful but may not disclose the terms of the settlement, except as the parties may agree or as allowed by the mediation procedures act. New Mexico Opinion 2021-3.
- A judge may not perform a simulated public marriage ceremony for a couple who are keeping private that they already got married in an earlier private ceremony during the pandemic. Maryland Opinion Request 2021-10.
- Judges may serve on the state bar’s Access to Justice Commission and the statutorily-created Child Welfare Council. California Expedited Opinion 2021-43.
- A judge may not serve on the board of trustees of a city’s arts council. Utah Informal Opinion 2021-2.
- A judge may serve as a member of the judiciary board of a church, which interprets policy and practice and is the ultimate authority on church constitutional and ecclesiastical interpretation. Virginia Opinion 2021-1.
- A judge may serve on the board of directors of a local non-profit entity that provides mediation services to litigants who may come before the judge’s court. Maryland Opinion Request 2021-8.
- A judge who sometimes decides ex parte applications for search warrants directed at a particular social media company may not give an in-house address to the company’s employees about how legal process is authorized, the use and purpose of the company’s records in legal proceedings, and the importance of accuracy and vigilance in response to legal process. New York Opinion 2021-65.
- A judge may participate, without compensation, in a commercially produced documentary comparing judicial systems around the world as long as they do not create an appearance that they are an “active participant” in the business that is producing the film and do not promote the program to the public at large. New York Opinion 2021-67.
- A judge may publish through a commercial publisher a legal suspense novel set in both real and fictional Massachusetts locations and engage in promotional activities, including maintaining a website, building a mailing list, conducting virtual book club events or readings, attending book signings, and maintaining profiles on social media websites, as long the promotional activities do not invoke the prestige of the judicial office or otherwise violate the code, taking particular care when promotional activities use social media. A judge may not use judicial email or court mailing lists to promote sales of their novel. A judge should not directly sell or be involved in financial transactions for the sale of copies of their novel; for example, at a book signing, the financial transactions for the sale should be handled by someone other than the judge. A judge should not participate in promotional activities at a courthouse or any other location that would lend the prestige of judicial office to efforts to sell the judge’s novel. When a book has appeal to a wider audience, a judge should not target lawyers in efforts to promote the book. A judge may be identified as a judge or by title in biographical materials that contain only factual statements, including on the book jacket, as long as their position is not unnecessarily emphasized or exploited. At book-signing events and in public discussion of their book, a judge may identify as a judge in response to questions. A judge should only state their judicial position in an incidental way, without relating their position to the novel. Massachusetts Letter Opinion 2021-2.
- A judge may write a chapter of a book about reforms in child welfare in the public and not-for-profit sectors. New York Opinion 2021-71.
- A judge may speak at a bar association’s fund-raising event to introduce a video clip highlighting the bar association’s “Women’s History Project” initiative even though others will solicit funds during the event, provided that they do not personally solicit funds. New York Opinion 2021-75.
- A judge who belongs to a national judicial association may vote on a resolution that would prohibit the association from holding conferences in jurisdictions where protections for lesbian, gay, bisexual, transgender, or queer individuals have been repealed or where discriminatory LGBTQ laws have been enacted and is not required to resign from the association if the resolution passes. New York Opinion 2021-81.
- A judge may serve on a committee for a national judicial association’s local chapter that provides support and assistance to women in prison as they prepare for their transition back into the community. New York Opinion 2021-81.
- A judge cannot nominate the elected prosecutor who is currently running for re-election for the West Virginia State Bar Citizen Soldier Awards. West Virginia Opinion 2020-6.
- A judge who is a poet by avocation may share their poetry at free online creative arts panels organized by a not-for-profit museum and a state university and accept an honorarium that is offered to all participating poets and panelists. New York Opinion 2021-52.
- A judge may not allow their likeness to be used to create a non-fungible token (NFT) that would be auctioned off by a for-profit organization that would donate part of the funds to legal aid societies and other organizations that promote greater access to justice. Tennessee Opinion 2021-1.
- A judge-elect must immediately resign as a bail bondsman. West Virginia Opinion 2020-20.
- A judge-elect may continue to serve as a member of the city council until they take the oath of office as a judge but not after. West Virginia Opinion 2020-21.
- A magistrate cannot simultaneously serve as an EMT or fire fighter. West Virginia Opinion 2020-28.
- A judge may provide limited law-related advice to a family member, similar to the kinds of information that a judge can provide a self-represented party in a hearing, including statements of law, explanations of court procedures and court rules, directions to community resources for finding a lawyer, information about the process for securing witnesses, and guidance about elements of proof or other legal requirements. A judge may provide a family member with advice relating to a matter in which the judge is also personally involved when the judge is acting in their own personal interest or in a representative capacity permitted under the code. California Formal Opinion 2021-17.
- A judge may prepare a deed for a home that they are selling. West Virginia Opinion 2020-15.
- A judge may not organize a virtual fashion show for judges that would showcase robes designed to suit the height, body shape, and style of women judges; would include a display by an artist who makes and sells bracelets in tribute to a trail-blazing female jurist; and would display pins and statement/bib necklaces from judges’ collections and advise where the items were bought or can be purchased. New York Opinion 2021-73.
- A judge may host a make-up party for family members and close personal friends who are not likely to come before the judge and receive credit/percentage off the purchase of an item as a reward. West Virginia Opinion 2020-19.
- A district court commissioner may not obtain and use medical marijuana. Maryland Opinion Request 2021-6.
- A judge may reach out to individuals in their community to discuss the judge’s qualifications and interest in appointive judicial office but may not compensate those individuals for their time or assistance. New York Opinion 2021-64.
- A judge whose spouse is running for governor may attend a fund-raiser on their behalf but only if it is held outside the marital home; cannot appear in a parade with the spouse; and cannot introduce them or speak about them at campaign events. The judge’s name and photograph may appear in their spouses’ campaign literature or other official campaign photographs if they are not identified as a judge. West Virginia Opinion 2019-22.
- A judge may not sign a letter opposing the impeachment of the President of the United States. West Virginia Opinion 2020-5.
- Subject to generally applicable limitations on campaign speech and conduct, a judicial candidate may permit their campaign committee to establish a Twitter account to keep voters and community leaders informed about events, to direct them to the campaign website, and to “follow” the candidate’s opponent and/or other candidates. New York Opinion 2021-40.
- A judge must resign from judicial office if they authorize or knowingly permit their name to appear on a publicly circulated nominating petition as a candidate for a non-judicial office. New York Opinion 2021-50.
Throwback Thursday
10 years ago this month:
- The Arizona Commission on Judicial Conduct publicly reprimanded a judge for numerous improper ex parte communications with the parties on 1 side of a case. Jayne, Order (Arizona Commission on Judicial Conduct July 26, 2011).
- The Arizona Commission on Judicial Conduct publicly reprimanded a judge for making derogatory statements toward a litigant, who was also a hearing officer, and toward another judge on his court. Parker, Order (Arizona Commission on Judicial Conduct July 26, 2011).
- Accepting the recommendation of the Judiciary Commission based on a stipulation, the Louisiana Supreme Court publicly censured a judge for failing to immediately self-recuse from a divorce case despite his long-standing, close friendship with both parties, continuing to socialize with the husband and having ex parte conversations with him when a custody dispute arose, and signing an ex parte order giving the husband interim physical custody of their child that was contrary to statutory requirements. In re Badeaux, 65 So. 3d 1273 (Louisiana 2011).
- Based on a stipulation in which the judge agreed never to serve as a judge against, the Nevada Commission on Judicial Discipline permanently prohibited a former judge from seeking or accepting judicial office in the state for repeatedly engaging in extremely inappropriate and offensive comments and actions with court staff even after being advised that his conduct was unacceptable and offensive. In the Matter of EnEarl, Findings of Fact, Conclusions of Law, Consent Order Imposing Discipline (Nevada Commission on Judicial Discipline July 1, 2011).
- The New Hampshire Judicial Conduct Committee publicly reprimanded a retired judge for his demeanor in 3 criminal cases. Jones, Reprimand (New Hampshire Judicial Conduct Committee July 9, 2011).
- Accepting an agreed statement of acts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for taking judicial action in 9 cases in which a client of the judge’s law firm represented a party. In the Matter of Shults, Determination (New York State Commission on Judicial Conduct July 7, 2011).
- Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for presiding at an arraignment when the defendant was his co-judge’s son and the complaining witness was his co-judge. In the Matter of Ridsdale, Determination (New York State Commission on Judicial Conduct July 20, 2011).
- The North Carolina Judicial Standards Commission publicly reprimanded a judge for asking another judge to remit costs and a fine in traffic case against the county register of deeds; the judge accepted the reprimand and agreed to send a formal letter of apology to the other judge. Public Reprimand of Hayes (North Carolina Judicial Standards Commission July 26, 2011).
- The Texas State Commission on Judicial Conduct publicly reprimanded a judge for, during the magistration of a college student charged with the alleged theft of an Aggie ring, displaying his own Aggie ring, advising the student that he should consider attending another school, and relying on information not in the probable cause affidavit to enhance the standard bond for a state jail felony from $5,000 to $50,000; the Commission also ordered the judge to obtain 10 hours of instruction with a mentor. Public Reprimand and Order of Additional Education of Boyett (Texas State Commission on Judicial Conduct July 11, 2011).
- Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for driving while intoxicated and hit and run. In re Lyman, Stipulation, Agreement, and Order of Reprimand (Washington State Commission on Judicial Conduct July 8, 2011).
- Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for summarily holding a domestic violence complainant in contempt after she recanted a statement she had given to the police; the judge also agreed to attend more training on domestic violence within 1 year. In re Shelton, Stipulation, Agreement, and Order of Reprimand (Washington State Commission on Judicial Conduct July 8, 2011).
Recent cases
- The Alabama Court of the Judiciary suspended a judge’s salary for 3 months and publicly censured him for, while on the bench and dressed in his judicial robe, threatening that he would take action against the defendant in a traffic ticket case if she sued his adult son, losing his temper, yelling profanity, and calling the defendant disparaging names; the Court also ordered the judge to complete 12 hours of judicial education, issue a formal written apology to the defendant, and pay costs. In the Matter of Price, Final judgment (Alabama Court of the Judiciary June 15, 2021).
- The Arizona Commission on Judicial Conduct publicly reprimanded a judge for repeatedly failing to abide by administrative orders regarding the use of face coverings in court facilities during the COVID-19 pandemic and for refusing to regularly review his court emails; the Commission also ordered the judge to review a podcast about pandemic-related issues and the duty to abide by administrative orders presented in August 2020 to justice court judges. Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021).
- The Arizona Commission on Judicial Conduct publicly reprimanded a judge for speaking sharply to court staff when she was disconnected from a Zoom hearing and yelling when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case in a separate incident; the Commission also ordered the judge to complete the courses “Leadership for Judges” and “Mindfulness for Judges” offered by the National Judicial College. Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021).
- The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to issue a timely ruling in 1 case and signing a payroll certification while knowing that the ruling was overdue. Jantzen, Order (Arizona Commission on Judicial Conduct June 11, 2021).
- Accepting the findings and recommendation of the Judicial Discipline & Disability Commission based on an agreement, the Arkansas Supreme Court suspended a judge for 90 days without pay for asking a public defender if she was going to file another complaint against him if he did not accept a plea negotiation; the Court held 60 days of the suspension in abeyance for 1 year conditioned on the judge attending a class on mindfulness, patience, or civility, on the judge consulting with a counselor or life coach about how to treat the professionals appearing in his court, and on the Commission receiving no complaints that result in public charges or agreed discipline. Judicial Discipline & Disability Commission v. Sims (Arkansas Supreme Court June 3, 2021).
- Accepting a motion for consent discipline based on a joint stipulation and memorandum, the Louisiana Supreme Court publicly censured a Supreme Court Justice for a meeting that interfered with and/or had the potential to interfere with the relationship between a candidate in a highly contested campaign for a different seat on the Court and a worker in the candidate’s campaign. In re Hughes (Louisiana Supreme Court June 30, 2021).
- Adopting in part the recommendations, findings, and conclusions of the Judicial Tenure Commission, the Michigan Supreme Court imposed a 6-year suspension without pay on a former judge if he is elected or appointed to judicial office during the next 6 years for (1) while he was a prosecutor, depositing county funds into his and his family’s personal bank accounts and failing to keep any records related to those funds; (2) pleading no-contest to a crime and subsequently making false statements about the plea; (3) failing to disclose his relationships with 3 attorneys when he presided over cases in which they appeared or to disqualify himself from those cases; and (4) testifying falsely before the Commission. In re Konschuh, Order (Michigan Supreme Court June 11, 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 an investigation of allegations that a non-lawyer judge had conveyed the impression of bias against LGBTQ individuals and publicly posted on his personal Facebook page anti-LGBTQ content, expressions of anti-Muslim bias, partisan political content, expressions of bias in favor of law enforcement and against criminal defendants, and commentary on pending cases, including the murder trial of former Minneapolis Police Officer Derek Chauvin. In the Matter of Knutsen, Decision and order (New York State Commission on Judicial Conduct June 10, 2021).
- Accepting a stipulation based on the judge’s affirmation that she has vacated her office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded an investigation of allegations that the judge had (1) pushed a county assistant district attorney outside her courtroom one evening when court was in session and the courtroom was full of lawyers, litigants, and others; (2) accused a different county assistant district attorney of being “anti-Semitic” when they would not offer a lenient plea to an associate of the judge’s husband in a traffic matter; (3) turned court audio recording equipment on and off in the middle of proceedings; (4) presided over and took pleas in traffic matters without an assistant district attorney present; (5) locked the court while she traveled to prevent the associate village court justice from presiding over matters in her absence; (6) exhibited inappropriate demeanor on the bench and in interactions with assistant district attorneys and other attorneys and litigants; and (7) a matter revealed in an audit of the court’s finances. In the Matter of Fishkin, Decision and order (New York State Commission on Judicial Conduct June 10, 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 complaint alleging that a non-lawyer judge, who took office in January 2020, had (1) continued to work as town justice despite failing to attend the Office of Court Administration training program for town and village court judges, failing to pass the required examination, and failing to be certified as required by court rules and (2) failed to cooperate in the Commission investigation. In the Matter of Novak, Decision and order (New York State Commission on Judicial Conduct June 11, 2021).
- Adopting the recommendation of the Judicial Standards Commission, which was based on stipulations, the North Carolina Supreme Court publicly censured a former judge for a pattern of inappropriate and sexual communications on Facebook with numerous women, many of whom were involved in matters pending in his district; engaging in these communications while on the bench in the courtroom; taking frequent breaks, frequently continuing cases, and frequently recusing himself to have conversations or physical encounters with the women he contacted on Facebook; making misrepresentations and misusing the prestige of office to solicit assistance from law enforcement during an investigation of an attempt to extort him by one of the women; and making material misrepresentations to the Commission. In re Pool (North Carolina Supreme Court June 11, 2021).
- Based on its findings of misconduct, the Pennsylvania Court of Judicial Discipline suspended a judge for 6 months without pay for (1) failing to file opinions in 24 appeals within the fast track time limits established by court rule in dependency and termination of parental rights proceedings; (2) incarcerating parents for contempt without a legal basis in 3 cases; detaining parents in holding cells with the threat of longer incarceration without a legal basis in 2 cases; threatening to incarcerate parents in the absence of any evidence of contempt in 1 case; and improperly holding an attorney in civil contempt; (3) in numerous dependency and termination of parental rights proceedings, exhibiting an angry, arrogant, demeaning, rude, dismissive, condescending, callous, and impatient demeanor; (4) repeatedly failing to accord the right to be heard to parents and guardians, to lawyers representing parents and guardians, and to the Department of Human Services; deciding issues without hearing testimony or holding hearings; refusing to admit medical reports; repeatedly interrupting testimony; and rushing a non-placement review hearing; and (5) during several dependency hearings, applying the standard for permanency hearings. In re Younge, Opinion and order (Pennsylvania Court of Judicial Discipline June 2, 2021). The Court also placed the judge on probation until the end of her current term in January 2026; prohibited the judge from serving in the family court division during her probation; ordered the judge to consult with a mentor; and ordered her to write and deliver a letter of apology to each person she wronged.
- The Texas State Commission on Judicial Conduct publicly admonished a judge for setting “no bond” on a misdemeanor motion to revoke probation without addressing the statutory factors for setting bail and for engaging in impermissible ex parte communications with the probationer and others concerning the merits of the proceeding; the Commission also ordered that the judge receive 2 hours of additional education concerning judicial ethics and criminal procedure with a mentor. Public Admonition of Lilly and Order of Additional Education (Texas State Commission on Judicial Conduct June 18, 2021).
Throwback Thursday
20 years ago this month:
- Granting the application by the Commission on Judicial Qualifications, the Iowa Supreme Court suspended a judge for 60 days without pay for (1) being dilatory in filing rulings and in making reports on unfinished rulings as required by a supreme court rule and (2) having an intimate relationship with an assistant county attorney who regularly appeared before him without recusing from or disclosing the relationship in cases in which she appeared. In the Matter of Gerard, 631 N.W.2d 271 (Iowa 2001).
- Modifying the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court suspended a judge for 6 months without pay for (1) inappropriately handling an arraignment; (2) attempting to induce a defendant to waive a jury to expedite a second case; and (3) constantly and repeatedly adjourning trials without good cause; repeated unnecessary and unexcused absences from judicial responsibilities during normal court hours; and overall lack of industry and proper management of her court docket; and an unwillingness to take corrective action or accept constructive suggestions or assistance to improve case management. In re Hathaway, 630 N.W.2d 850 (Michigan 2001).
- Pursuant to an agreed statement of facts and recommendation, the Mississippi Supreme Court publicly reprimanded a judge and fined him $765 for ex parte communications and dismissing speeding tickets without conducting any hearing or notifying the officers who issued the citations. Commission on Judicial Performance v. Warren, 791 So. 2d 194 (Mississippi 2001).
- Pursuant to the presentment of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge for 3 months without pay for publicly confronting a man with whom she had had a romantic relationship and his companion at a saloon, giving false and misleading information to police when she talked to them during the incident, and coming “dangerously close to impersonating a police officer” when she called the saloon. In the Matter of Williams, 777 A.2d 323 (New Jersey 2001).
- Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a part-time non-lawyer commissioner who had publicly endorsed both Republican and Democrat candidates for county commissioner and identified herself as a member of a political party in an advertisement for one of the candidates. In re Walters, Stipulation, Agreement and Order (Washington State Commission on Judicial Conduct July 5, 2001).
- Based on a complaint brought by the Judicial Commission, the Wisconsin Supreme Court suspended a judge for 75 days without pay for threatening to make public his allegations against the county’s chief judge, the chief judge’s daughter (an attorney in the county district attorney’s office), and the district court administrator unless the chief judge dropped his attempts to regulate the judge’s court hours. In the Matter of Crawford, 629 N.W.2d 1 (Wisconsin 2001).
In contravention of protocols
Failing to comply with state court orders regarding proceedings during the coronavirus pandemic was the basis for recent confidential resolutions of complaints against 2 judges.
With the judge’s agreement, the Kentucky Judicial Conduct Commission privately reprimanded a judge for actively discouraging attorneys from electing to appear remotely during the pandemic and suggesting that clients may be directly prejudiced by an attorney’s decision to appear remotely.
In a June 2020 order during the first attempt to re-open the courts during the pandemic, the Kentucky Supreme Court required judges to permit those who were high risk or who had been exposed to COVID-19 to appear remotely. “In contravention” of that directive, a judge “actively discouraged attorneys from appearing remotely.” The judge, in open court, “freely voiced frustrations with remote court appearances to litigants and attorneys . . . .” The judge also required attorneys who chose to appear remotely (1) to verify that they maintained malpractice insurance, which the judge did not require for attorneys appearing in-person, and (2) to sign an agreement that waived the right to request reconsideration of rulings based on technical difficulties or confusion, required attorneys to acknowledge that appearing remotely was solely that attorney’s choice, and warned that the choice to appear remotely may prejudice litigants. These measures were intended to deter attorneys from appearing remotely and penalized high-risk and possibly exposed attorneys.
In mitigation, the Commission noted that the judge had “attempted to rectify the issue with remote appearances” before being contacted by the Commission and fully cooperated in the investigation.
* * *
The Arizona Commission on Judicial Conduct found that a judge had occasionally failed to wear a mask as required by COVID-19 safety protocols promulgated by the state supreme court and touched court papers after licking his fingers. The Commission also found that, when he learned that a complaint had been filed with the human resources department regarding his conduct, the judge spoke tersely to his staff, advised them that he would no longer socialize with them, and temporarily excluded staff from assisting him with weddings. Although it dismissed the complaint against the judge, in a warning letter, the Commission reminded the judge of his obligations to follow administrative orders and to be patient, dignified, and courteous with staff and that his “outburst . . . could be perceived as retaliation and have a chilling effect on staff’s right and duty to report misconduct.”
4 judges have been publicly sanctioned for conduct related to the COVID-19 pandemic. In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for, in addition to other misconduct, displaying improper demeanor toward 2 criminal defense attorneys appearing by phone for an arraignment on the first day after the stay-at-home order was in effect); Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand for stating, “the Grand Wizard of our Supreme Court said we have to wear these masks”); Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand for failing to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commenting that he wished the chief justice “would win an award so that the COVID-19 mandates” would end); In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021) (reprimand for, in addition to other misconduct, declining to determine who was attempting to appear at the end of a calendar via Zoom).
Throwback Thursday
25 years ago this month:
- With the judge’s consent, the California Commission on Judicial Performance publicly admonished a judge for (1) denying a defendant his right to appointed counsel based on the ability of others to pay for counsel and on the possibility of future employment; (2) acting unjudicially in handling peremptory challenges; (3) appearing to exhibit animosity toward the public defender’s office and certain attorneys in that office, making improper, derogatory comments about them and writing to the public defender and accusing his office of taking a case for improper reasons; and (4) acting in excess of his authority in a matter involving the imposition of sanctions. Public Admonishment of Drew (California Commission on Judicial Performance July 1996).
- The Indiana Commission on Judicial Qualifications publicly admonished a judge for appearing to give preferential treatment to attorneys for collection agencies over individual litigants or their lawyers. Admonition of Barnard (Indiana Commission on Judicial Qualifications July 10, 1996).
- The Indiana Commission on Judicial Qualifications publicly admonished a judge for signing an inaccurate affidavit submitted to the court of appeals in an appeal from a case over which he had presided. Public Admonition of Johnson (Indiana Commission on Judicial Qualifications July 11, 1996).
- The Kansas Commission on Judicial Qualifications entered an order requiring a retired judge to cease and desist from violating state laws, including those relating to the consumption and use of alcoholic beverages, after the judge had been charged with driving a motor vehicle while under the influence and entered into a diversion agreement in which he agreed to the facts in the police report. Inquiry Concerning Barbara, Order (Kansas Commission on Judicial Qualifications July 2, 1996).
- Accepting the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for (1) becoming involved in a worthless check case in which the prosecuting witness was a personal friend and (2) entering improper orders in a child custody matter. In re Ammons, 473 S.E.2d 326 (North Carolina 1996).
- Accepting the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly reprimanded a family law master for attempting to get litigants in a case to agree to become sales representatives for Amway. In the Matter of Phalen, 475 S.E.2d 327 (West Virginia 1996).
Judicial ethics and discipline 