Monthly Archives: August 2021

Summer Judicial Conduct Reporter

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

  • Judicial discipline for abuse of the contempt power
  • Remedy for an ex parte communication
  • Recent cases
    • Judicial touching
      • In the Matter of Cole (West Virginia Commission 2021)
      • In re Wilson (Texas Special Court of Review 2021)
    • “Salty”
      • In the Matter of Cullins, 481 P.3d 774 (Kansas 2021)

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.

Throwback Thursday

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5 years ago this month:

  • Based on an agreement, the Alabama Court of the Judiciary suspended a judge for 6 months without pay for beginning a Facebook relationship with a woman whom he had met in his official capacity and exchanging sexually explicit messages and photos with her, often during office hours and from the court’s offices.  In the Matter of Archer, Final judgment (Alabama Court of the Judiciary August 8, 2016).  
  • Based on an agreement and stipulation, the Alabama Court of the Judiciary ordered a judge to retire immediately and never serve in judicial office again for failing to disqualify herself from the probate of her father’s estate in which she and her siblings were heirs; engaging in ex parte communications about the case with others, including her siblings; obtaining waivers outside the court and outside the presence of all parties or their attorneys; in a personal letter to a 3rd party, misusing her title to give extra weight to a request about a debt owned by an heir’s estate; notarizing documents that she knew or should have known would be filed in a proceeding before her; directing the administratrix (her sister) about who should and should not be included as heirs; directing her attorney to request that a settlement check in a class action case that was an asset in the estate be sent to the probate court office; inserting her personal knowledge of facts and family history into the case; misusing her status as a judge to preempt tasks normally reserved for an estate’s personal representative; and co-mingling her status as party and judge.  In the Matter of Isaac, Final judgment (Alabama Court of the Judiciary August 8, 2016).
  • Accepting the recommendation and findings of the Commission on Judicial Conduct based on the judge’s admission of culpability, the Alaska Supreme Court publicly censured a judge for 5 statements he made in the courtroom.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016).
  • The Illinois Courts Commission publicly censured a judge for deceiving her mortgage lender by making several misrepresentations in her mortgage application that caused the lender to believe she occupied the property as her primary residence when, in fact, the judge resided at another property and had no intention of establishing residence at the property she was re-financing.  In re Santiago, Order (Illinois Courts Commission August 18, 2016).
  • Based on a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge who had been arrested and convicted for operating while intoxicated, endangering a person; had asked a police officer to “just take [him] home and forget about the drinking and driving;” and told the officer that he was a senior judge for the Court of Appeals.  In the Matter of Garrard, 56 N.E.3d 24 (Indiana 2016).
  • Based on an agreement, the Kentucky Judicial Conduct Commission suspended a judge for 90 days without pay for (1) criticizing the victims in a criminal case during a sentencing hearing and on Facebook while the defendant’s probation was still pending; (2) comments on Facebook and in a presentation to the Louisville Bar Association that criticized the county commonwealth attorney and accused him of advocating for all-white jury panels, that criticized the public defender and criminal defense attorneys for not publicly supporting him in his dispute with the commonwealth attorney, and that discussed the motion to certify the law filed on behalf of the commonwealth attorney; and (3) criticizing a court of appeals decision in a public statement.  In re Stevens, Agreed order of suspension (Kentucky Judicial Conduct Commission August 8, 2016).
  • Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for discussing his son’s criminal case with another judge; the judge also agreed to complete a course at the National Judicial College.  In the Matter of Kalleres, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline August 23, 2016).
  • Based on a stipulation and consent, the Nevada Commission on Judicial Discipline publicly reprimanded a former hearing master for unprofessional conduct in a hearing about a bench warrant.  In the Matter of Beller, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline August 23, 2016).
  • Based on a stipulation and consent to discipline, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for (1) informing the other judge on his court that he would not abide by an agreement for her to become chief judge based in part on his belief that the mayor wanted him to continue as chief judge; (2) taking positions or making decisions regarding the administration of the court based on his perception of what the mayor or city administration wanted, not on the best interests of the court (or allowing it to appear that he has done so); (3) failing to cooperate with the other judge regarding administrative matters and refusing to meet or speak with her or to respond to her correspondence; and (4) failing to report to the Commission the other judge’s treatment of court staff and deputies from the city attorney’s office and her improper dismissal of valid warrants.  In the Matter of Hoeffgen, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline August 23, 2016).
  • Based on a stipulation and consent to discipline, the Nevada Commission on Judicial Discipline suspended a judge for 3 months without pay and ordered that she not seek re-election for (1) her treatment of court staff; (2) her handling of cases, including amending or dismissing charges sua sponte; and (3) her improper interactions with and comments about deputies from the city attorney’s office; the judge also agreed to write apologies to 3 of the complainants and to submit to a fitness for duty exam.  In the Matter of Ramsey, Stipulation and consent to discipline (Nevada Commission on Judicial Discipline August 23, 2016).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) making condescending and inappropriate remarks about a teenage sexual assault victim; (2) becoming angry and making loud and derogatory statements to the district attorney in another case for suggesting that the judge place a case ahead of another case that had been pending longer and challenging the judge’s observation about moving cases expeditiously; and (3) making disparaging and provocative comments in a third case regarding the family relationship between the county district attorney and a potential witness.  In the Matter of Hafner, Determination (New York State Commission on Judicial Conduct August 29, 2016).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a magistrate for hearing matters involving the sheriff’s department even though her husband was the elected sheriff. In the Matter of Underwood, 790 S.E.2d 761 (South Carolina 2016).

COVID-19 concerns

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3 more judges have been publicly sanctioned for their conduct related to the COVID-19 pandemic, bringing the total to 7.

Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a magistrate for 6 months for his disruptive behavior during a meeting about the court’s COVID-19 safety plan, his confrontations with another magistrate and the Chief Magistrate after the meeting, and his statement to a clerk about the Chief Magistrate’s complaint to Disciplinary Counsel.  In the Matter of Rivers (South Carolina Supreme Court August 11, 2021).  The magistrate recognized that “his concerns regarding Covid-19 do not excuse his behavior and that his disruptive behavior reflected poorly on his professional judgment and temperament.”  The Court also ordered that the magistrate complete at least 15 hours of anger management counseling and pay the costs of the investigation

On May 14, 2020, the Florence County magistrates and clerks met to discuss the COVID-19 safety plan for re-opening the magistrates’ courts to the public consistent with the Supreme Court’s order on evictions and foreclosures dated April 30, 2020.  During the meeting, Magistrate Rivers repeatedly asked questions, spoke in a loud voice, and challenged the Chief Magistrate’s plan for reopening.  As the meeting continued, the magistrate “became visibly agitated,” read aloud parts of the April 30 order, and challenged the Chief Magistrate’s implementation plan.  Another magistrate told him to follow the Chief Magistrate’s direction.

Because of the magistrate’s “continued disruptions, the Chief Magistrate apologized to the other meeting attendees and adjourned the meeting prematurely without completing the agenda.”

After the meeting, Magistrate Rivers left the room and confronted the magistrate who had suggested he follow the Chief Magistrate’s directions; he expressed his displeasure and told the other magistrate not to disrespect him again.  The magistrate then returned to the meeting room, startling the Chief Magistrate as she turned to leave the room.  Magistrate Rivers hit his hands together and loudly requested that the Chief Magistrate show him respect in the future.  The Chief Magistrate became concerned for her physical safety.  The next day, the Chief Magistrate reported the incident to the Office of Disciplinary Counsel.

Approximately a month later, Magistrate Rivers told a county clerk that the Chief Magistrate “does not know who she is dealing with and she will regret doing this,” referring to the complaint.

***

The Arizona Commission on Judicial Conduct publicly reprimanded a first judge for speaking sharply to court staff when she was disconnected from a Zoom hearing and yelling at court staff when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case; 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).

On September 11, 2020, the judge was presiding over a dependency matter that was conducted remotely via Zoom.  During the hearing, the judge lost her connection to Zoom.  A court clerk, S.H., advised the attorneys and parties that the judge had been disconnected, and the hearing was paused while the judge attempted to get reconnected.  When she rejoined the hearing, the judge stated sharply, “I am incredibly unhappy because this is going to be a pain.  So, I do not understand why I was thrown off Zoom on my laptop, my iPad, and my phone.”  The attorneys and litigants heard her comments, and the clerk felt “embarrassed and belittled.”

On October 16, the judge became upset that parties and lawyers for a scheduled matter had been allowed into the courtroom prior to a designated time and yelled at the clerk, S.H.  After learning that it was another court employee who had allowed the parties to enter the courtroom, the judge went to speak to the elected clerk of the court, and, as she did, her office door slammed shut in front of other clerks and the public.  The judge denied deliberately slamming the door, but other court employees believed that she had slammed the door intentionally.  Court employees also overhead the judge yelling at the elected court clerk about the matter.

In interviews with the Commission’s investigator, 6 court employees confirmed these incidents and also confirmed a pattern of the judge “yelling or using an angry, rapid-fire tone with individuals during the time she has been on the bench” that made them feel disrespected and that created tension in the court.  However, the employees also “reported a recent improvement in the judge’s demeanor.”  The judge disagreed with some of the employees’ perceptions of her conduct but stated that she had “reevaluated my interactions with staff and other elected officials, as well as my overall demeanor with the goal of avoiding any further misunderstandings or hurt feelings.”

***

The Arizona Commission publicly reprimanded a second judge for judge repeatedly failing to wear a face covering when interacting with the public and staff in court facilities as required by administrative orders issued by the Arizona Supreme Court and the Maricopa County Superior Court in response to the COVID-19 pandemic, failing to require individuals in his courtroom to abide by administrative orders regarding the use of face coverings, and appearing “to publicly denigrate those orders.”  Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021).  The complaint had been filed by a presiding judge.

The Commission found that the judge’s failure “caused some court personnel to refuse to enter his courtroom and led to distress among court employees.”  He persisted, “despite counseling and admonitions by two presiding judges.”  The judge was ordered to work only in the courtroom or his office but also “violated that directive, resulting in an order banning him from the courthouse entirely, requiring judges pro tem to preside over matters that could not be handled remotely.”  The Commission found that the judge’s “conduct needlessly consumed judicial time and resources, including an internal investigation, witness interviews, and repeated interventions by two presiding judges,” rejecting his characterization of his conduct as “[s]poradic human omissions.”

The judge also refused to regularly review his court emails, explaining that he opens court emails “maybe once a month.”  The Commission noted that “important court business is conducted via email, particularly during the time period at issue here, when pandemic-related communications and orders were commonplace” and stated that his practice was inconsistent with the judge’s obligation to “cooperate with other judges and court officials in the administration of court business.”

***

4 other judges have previously 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

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10 years ago this month:

  • Based on a stipulated resolution, the Arizona Supreme Court publicly censured a former judge for (1) hearing cases involving an attorney with whom he had an intimate relationship and (2) engaging in unwanted sexual conduct toward an assistant public defender and retaliating against her when she rejected his advances; the Court also permanently enjoined him from serving as a judicial officer in Arizona and suspended him from the practice of law in Arizona for 2 years.  In the Matter of Abrams, 257 P.3d 167 (Arizona 2011).
  • The California Commission on Judicial Performance publicly admonished a judge for revoking a criminal defendant’s pro per status, speaking harshly to the defendant, repeatedly stating that she did not believe him, grilling him on cases he had cited in his motion, and stating 3 times that he was lying.  Public Admonishment of Comparet-Cassani (California Commission on Judicial Performance August 16, 2011).
  • Based on an agreed statement of facts, the Mississippi Supreme Court suspended a judge for 270 days without pay and publicly reprimanded him for interfering with the prosecution of a defendant charged in a crime in which a relative of the judge was the victim and making statements in open court that encouraged others to engage in vigilante justice.  Commission on Judicial Performance v. McGee, 71 So. 3d 578 (Mississippi 2011).
  • Based on a stipulation, the New Hampshire Judicial Conduct Committee publicly reprimanded a part-time judge for angrily confronting a man who was putting up signs opposing his brother’s gubernatorial candidacy and contacting an attorney who was active in politics about the incident.  Stephen, Reprimand (New Hampshire Judicial Conduct Committee August 25, 2011).
  • Adopting in part the presentment of the Advisory Committee on Judicial Conduct, which the judge had accepted, the New Jersey Supreme Court publicly censured a retired judge for failing to recuse from a case based on his relationship with a central witness and then appearing twice in the back of another judge’s courtroom during the trial after recusing himself.  In re Perskie, 24 A.3d 277 (New Jersey 2011).
  • With the judge’s consent, the North Carolina Judicial Standards Commission publicly reprimanded a judge for entering orders striking 5 convictions at the ex parte request of an attorney who represented that the outgoing district attorney had approved the relief.  Public Reprimand of Ammons (North Carolina Judicial Standards Commission August 4, 2011).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 30 days without pay for receiving supplemental payments from the police department who prosecuted cases before her.  In the Matter of McKinney, 714 S.E.2d 284 (South Carolina 2011).

Recent cases

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  • Based on stipulations of fact about the judge’s campaign flyers and digital placards on Facebook, a hearing panel of the Kansas Commission on Judicial Conduct ordered a judge to cease and desist from using photos of himself or his dog in his courtroom in campaign materials and from making misleading statements about his opponent.  Inquiry Concerning Hatfield (Kansas Commission on Judicial Conduct July 16, 2021).
  • The Kentucky Judicial Conduct Commission publicly reprimanded a former master commissioner for (1) misappropriating $81,000 in proceeds from a property sale and (2) routinely failing to timely collect and disburse the proceeds of judicial sales.  In re Schmidt, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission July 13, 2021).
  • Granting a petition based on a stipulation, the New Mexico Supreme Court approved the resignation of a judge; in a notice of formal proceedings, the Judicial Standards Commission had alleged that the judge (1) failed to recuse from cases filed by the police department in which her ex-husband and co-habitant was chief of police and in which police officers over whom he exercises supervisory duties appeared and (2) failed to avoid or minimize conflicts of interest and situations requiring disqualification from cases involving the police department, violated the duty to hear and decide cases filed by the police department, which constitute a substantial portion of the cases the judge was elected to adjudicate, delegated that portion of her docket to an alternate judge, and continued to receive and accept payment of her full regular salary as a municipal court judge while the alternate judge has received a substantially disproportionate salary relative to the workload they were required to handle because of the judge’s conflicts with the police department.  In the Matter of Gates, Order (New Mexico Supreme Court July 2, 2021).
  • The Pennsylvania Court of Judicial Discipline suspended a judge for 2 weeks without pay and placed him on probation until the end of his term for (1) failing to comply with 5 court orders in a case in which a fitness club sued him for dues, resulting in 3 findings of contempt and (2) failing to disclose the Pennsylvania Department of Revenue and the IRS as creditors on his statements of financial interest.  In re DiClaudio, Opinion and order (Pennsylvania Court of Judicial Discipline July 6, 2021).
  • Following a trial de novo, a Texas Special Court of Review affirmed the public reprimand of a judge for (1) issuing a show cause order based on a plaintiff’s oral motion for contempt that had not been served on the alleged contemnor and (2) failing to ensure that parties against whom a contempt motion was filed had notice and an opportunity to respond; the judge was also ordered to obtain 4 hours of education with a mentor.  In re Jones, Opinion (Texas Special Court of Review June 17, 2021).
  • Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings based on complaints that the judge had failed to treat attorneys appearing before him with patience, dignity, and courtesy; failed to require and maintain order and decorum in proceedings before him; exhibited and/or manifested bias or prejudice towards certain litigants and attorneys, including on the basis of race, sex, and/or socioeconomic status; failed to comply with the law and/or maintain professional competence in the law regarding attorney’s fees and/or statutory post-judgment interest; failed to accord a defendant the right to be heard according to law; lent the prestige of judicial office to advance his private interests; and made appointments that violated the state’s nepotism statute.  Barnstone, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct July 19, 2021).
  • Adopting the findings of a 3-judge panel based on stipulations, the Wisconsin Supreme Court suspended a judge for 7 days without pay for (1) in a domestic violence case, mischaracterizing the victim’s in-court statement and castigating her for expressing her opinion of her current relationship with the defendant; (2) during sentencing in a case involving the sexual assault of a 13-year-old girl, using “profane language and imagery to demean what he believed defense counsel’s argument to be,” displaying “irritation with counsel’s attempt simply to make arguments on behalf of his client,” making clear that he did not wish to hear extended arguments, attempting to intimidate the defendant into waiving his right to speak in allocution, and “questioning in open court whether the young girl had really suffered a second-degree sexual assault;” (3) stating when taking a guilty plea in another case, “I would love to have a trial on this issue, I’d love that he get found guilty, and I’d love to give him a year in jail for wasting my time today.  I would love to do that, but unfortunately I can’t;” (4) using undignified, discourteous, and disrespectful language when sentencing a young defendant with cognitive impairments and “essentially” threatening the defendant by displaying a handgun as a “prop;” (5) displaying his handgun to high students visiting his courtroom on Government Day; and (6) impliedly labelling an attorney a “d**k” during a custody/placement modification hearing.  In the Matter of Woldt (Wisconsin Supreme Court July 13, 2021).

Throwback Thursday

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20 years ago this month:

  • Adopting the findings of fact of 3 special masters, the California Commission on Judicial Performance removed a judge from office for (1) misrepresenting his educational background on his personal data questionnaires when he sought judicial appointment; (2) falsely representing that he was a Vietnam veteran to judges who could help him gain his appointment; (3) misrepresenting his educational background, legal experience, and affiliations on his judicial data questionnaire; (4) falsely representing to the judge who was to introduce him at the public enrobing ceremony that he was a Vietnam veteran who had received a Purple Heart; (5) falsely representing to attorneys that he had gone to Vietnam, had a master’s degree in psychology, and had shrapnel in his groin received in military combat; (6) falsely telling a newspaper reporter that he had been in Vietnam; and (7) making false statements about his education and military experience in letters and testimony to the Commission.  Inquiry Concerning Couwenberg, Decision and Order (California Commission on Judicial Performance August 15, 2001).
  • Approving the findings and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for (1) promising in his campaign to favor the state and police and to side against defense and making unfounded attacks on his incumbent opponent and on the local court system and local officials, and (2) presiding over a court case despite a direct personal conflict of interest.  Inquiry Concerning McMillan, 797 So. 2d 560 (Florida 2001).
  • Based on a stipulation of facts and joint recommendation, the Illinois Courts Commission suspended a judge for 3 months without pay for entering an injunction following a hearing that was a “parody of legal procedure,” according to a federal court.  In re Radcliffe, Order (Illinois Courts Commission August 23, 2001).

Need for change

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Adopting the findings of a 3-judge panel based on stipulations, the Wisconsin Supreme Court suspended a judge for 7 days without pay for (1) in a domestic violence case, mischaracterizing the victim’s in-court statement and castigating her for expressing her opinion of her relationship with the defendant, “essentially discouraging her from calling the police in any future domestic violence situations;” (2) during sentencing in a case involving the sexual assault of a 13-year-old girl, using “profane language and imagery” and displaying “irritation” in response to defense counsel’s argument, making clear that he did not wish to hear extended arguments, attempting to intimidate the defendant into waiving his right to speak in allocution, and referring to the girl as the “so-called victim;” (3) stating when taking a guilty plea in another case, “I would love to have a trial on this issue, I’d love that he get found guilty, and I’d love to give him a year in jail for wasting my time today.  I would love to do that, but unfortunately I can’t;” (4) using undignified, discourteous, and disrespectful language when sentencing a young defendant with cognitive impairments and “essentially” threatening the defendant by displaying a handgun as a “prop;” (5) displaying his handgun to high students visiting his courtroom; and (6) impliedly labelling an attorney a “d**k” during a custody/placement modification hearing.  In the Matter of Woldt (Wisconsin Supreme Court July 13, 2021).  The Court concluded that a short suspension was necessary “to assure the members of the public that judges will treat them with dignity, fairness, and respect when they enter the courtrooms of this state, and to impress upon Judge Woldt the seriousness of his misconduct and the need for him to change how he treats the jurors, lawyers, litigants, witnesses, victims, and staff with whom he interacts.” 

2 justices joined an opinion concurring in the 2-week suspension and most of the findings of misconduct but dissenting from the findings that the judge committed misconduct by displaying his handgun during the sentencing hearing and during the students’ visit, attributing the majority findings to political correctness and “its personal policy preferences, which appear to be grounded in ‘hoplophobia,’ i.e., an irrational fear of guns.”  Noting that the preamble to the Wisconsin code of judicial conduct states that, “Care must be taken that the Code’s necessarily general rules do not constitute a trap for the unwary judge or a weapon to be wielded unscrupulously against a judge,” the partial dissent argued that the majority “disregard[s] this prefatory admonition and weaponize[s] the Code, brandishing it as a ‘blunderbuss’ that may be used by ‘any lawyer or any pundit’ with a political agenda.”

The judge was authorized to carry a concealed gun and had a Glock Model 43 handgun in a holster on his right hip under his judicial robe. 

The first incident involving the handgun took place while the judge presided over a sentencing hearing in a case in which the defendant, Shaffer, had pled no contest to stalking.  The defendant was in his mid-20s and suffered from substantial cognitive deficiencies.  He had removed the garage door opener from his neighbors’ car and used the opener to enter the neighbors’ house.  He took some of the wife’s underwear, which he later returned.

During his sentencing comments, the judge told the husband and wife that he understood their fear and then gave “a rather lengthy soliloquy about his views on courthouse security before returning to what an appropriate sentence should be.”  For example, the judge stated to the victims that the courthouse was not “the most safest place in the world,” and “I have tried the County Board, I have tried everything to get people to do something to keep guns out of this courthouse, and nothing happens, so you know, you got to protect yourself.”  At that point, the judge removed the handgun from its holster, ejected the loaded magazine, racked the handgun’s slide to eject the bullet from the chamber, held up his handgun, and said, he kept it “up here on the bench just because I want to protect myself.  Now, I’m not saying you should do that but if I was in your – if I was in your situation, I’d have it on my side all the time.”  To the defendant, he said, for example, “With today’s laws with the Castle Doctrine, you’re lucky you’re not dead because, if you would have come into my house, I keep my gun with me and you’d be dead, plain and simple, but that’s what makes this so scary.”

The Court emphasized that the judge’s misconduct “was not the simple display of a gun; it was the display of the gun “as a ‘prop’” in connection with the comments.”

First, Judge Woldt used undignified, discourteous, and disrespectful language that demeaned the solemnity of the court proceeding and his role as the person imposing a just sentence on behalf of society.  In addition, although that case did not involve any firearm charges or even the use or threat of any firearm, Judge Woldt essentially used his sentencing comments to encourage the victims to take matters into their own hands and use a gun, as he would do.  It was at that point that he brought out the handgun from under his robe to display it for dramatic emphasis.  As the Panel noted, it was not necessary for any valid judicial purpose to display the gun and introduce an element of force into the sentencing hearing.  Most importantly, it was immediately after displaying the gun that Judge Woldt turned to addressing the defendant, who was a young man with substantial cognitive limitations.  Just two sentences after holding up the gun, Judge Woldt told this young man that he was lucky that he had not entered Judge Woldt’s house because Judge Woldt would have shot him dead on the spot with the gun that he always keeps with him (and had just displayed).  That comment in connection with the display of the gun served no purpose other than to menace and frighten the young man.  Finally, as the Panel also noted, “Judge Woldt’s comments about his own personal fear and the display of the handgun served only to personalize the proceeding and detract from his role as an impartial and fair decision maker.”

The Court concluded that the judge’s “comments, when combined with the unnecessary display of his personal handgun during the sentencing proceeding, constituted a failure to observe ‘high standards of conduct’ ‘so that the integrity and independence of the judiciary will be preserved.’” It explained

 A judge who displays a personal gun as a “prop” during a court proceeding and then immediately threatens to use it to kill the defendant if he ever broke into the judge’s residence is not demonstrating the integrity of the judiciary, . . . and is not “promot[ing] public confidence in the integrity and impartiality of the judiciary.” . . .  Such conduct does not show that the judge is conducting himself or herself as a respected judicial officer applying the law in a dispassionate and reasoned manner, as the public expects judges to do.

The Court stated that the fact that the judge was authorized to carry a concealed weapon did not resolve whether his conduct violated the code.  It explained:

The law also does not forbid individuals from engaging in impatient, undignified, and disrespectful conduct.  Indeed, in most circumstances, the First Amendment to the United States Constitution protects from governmental sanction speech that is impatient, undignified, and disrespectful.  That fact, however, does not mean that a judge cannot be disciplined for impatient, undignified, and disrespectful speech when the judge directs that speech to participants in a court proceeding over which the judge is presiding.

In the second incident, during a visit by a group of high school students to the judge’s courtroom during a Government Day event, a student asked the judge a question about court security, which was the topic for a debate before the county board that the students were scheduled to participate in later.  In response, the judge took the fully loaded and concealed gun out of the holster, removed the magazine and the round in the chamber, and briefly displayed the gun to those in the courtroom.

The Court emphasized that the judge displayed the gun “as a ‘prop,’ apparently to make dramatic his ongoing courthouse security complaints” and that “there was no reason to pull out a gun in response to a question from a high school student.”  Although the gun was not loaded when he displayed it, the Court noted that the judge had not disclosed that to the students.  It explained:

All they knew was that an adult judge in a black robe sitting on a judicial bench in a courtroom suddenly pulled out a gun, which for all they knew could have been loaded. . . .  Judge Woldt’s dramatic introduction of the use of force in the form of his personal handgun unnecessarily personalized what should have been an educational discussion about a topic of civic interest.  Drawing a gun in front of a group of teenage high school students when on the bench in one’s capacity as a representative of the judicial branch and when there is no judicial purpose for doing so does not promote confidence in the judge as a dispassionate and impartial arbiter of the law or in the judiciary as a whole.

Throwback Thursday

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25 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court removed a former judge from office for (1) in a dispute between a pastor and several members of his church, issuing an ex parte temporary restraining order against the pastor without notice, having the pastor arrested on several occasions, going to the church during a disturbance, and refusing to allow the pastor to press charges against church members as a result of a disturbance; (2) engaging in ex parte communications about tickets and dismissing cases without a hearing; (3) signing an execution of judgement without authority; (4) handling fine and bond money from litigants contrary to statute and loaning money to litigants; (5) without authority, allowing a defendant charged with driving while his license was suspended and driving under the influence to plead to lesser charges; and (6) circulating an order after being served with a formal complaint by the Commission to the constables and members of the justice staff demanding that they deliver official and unofficial notes and evidence relating to the allegations and threatening punishment for contempt for failure to abide by his orders.  Commission on Judicial Performance v. Dodds, 680 So. 2d 180 (Mississippi 1996).
  • The New York State Commission on Judicial Conduct publicly censured a judge for stating to a woman who had appeared in court to pay a fine the judge had imposed on her son that he did not want “mom or dad” to pay the fine, and, without provocation, loudly and angrily called her a “god-dam, interfering, middle-aged b***h” and her son a “stupid s**t.”  In the Matter of Mahon, Determination (New York State Commission on Judicial Conduct August 8, 1996).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for refusing to release a defendant because he had been required to get out of bed to conduct the arraignment, asking the deputy sheriff who was transporting the defendant whether he was being “black-balled” by the sheriff’s department inasmuch as he had not been contacted to conduct many arraignments recently, and referring to the county sheriff as a “f***ing a*****e.”  In the Matter of McKevitt, Determination (New York State Commission on Judicial Conduct August 8, 1996).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) after another judge with whom she had had a close, personal, and intimate relationship married another women, obtaining confidential records from the matrimonial proceedings of his new wife; (2) mailing approximately 60 anonymous, harassing, malicious, vituperative, and derisive statements about the other judge and his wife to newspapers, businesses, and individuals, including the judge and his wife, their relatives, friends, and neighbors; and (3) accepting a bargained guilty plea from a defendant without advising him or defense counsel that she had received a note from the jury.  In the Matter of Miller, Determination (New York State Commission on Judicial Conduct August 14, 1996).
  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct publicly censured a judge for his consensual sexual relationship with a judicial secretary for 1 or 2 months that affected the workplace “through distractions including social contacts, rumors, and work performance problems.”  In re Fritzler, Stipulation and Order of Censure (Washington State Commission on Judicial Conduct August 9, 1996).

What they said that got them in trouble so far in 2021

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In court proceedings

  • “[I] just can’t.” Judge, apparently tired, in response to information that someone was attempting to appear in court via Zoom at the end of a calendar. In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021).
  • “I know who you are. You’re the lady that likes to flim-flam people,” and “If you mess with my son, I’ll bust your a**. Do you hear me? I’ll bust your a**.” Judge during hearing to pro se traffic defendant who asked the judge to recuse because she was probably going to sue his son to obtain the name of the driver who had struck her vehicle in the parking lot of a Waffle House and left the scene. In the Matter of Price, Final judgment (Alabama Court of the Judiciary June 15, 2021) (3-month suspension without pay and censure).
  • “Don’t lie to me;” “That is a lie;” “Appalling;” “That’s baloney;” “Pathetic;” “Both of you are doing terribly, and there isn’t a chance in the world these children are coming home if you continue doing what you’re doing;” and “You’re clean? And you expect me to believe that?” Judge to parents during dependency hearings in multiple cases. Public Admonishment of Roberts (California Commission on Judicial Performance February 18, 2021).
  • What we’re not going to have in this jury is people coming in overnight and thinking up s*** and try to make s*** up now so they can get out of the jury. That’s not going to happen. All right. All right. Because if I find that someone said something yesterday under oath and changes it because they’re trying to fabricate something to get out of serving on this jury, there’s going to be repercussions.” Judge, during voir dire in a criminal case, berating a prospective juror for expressing her belief that she could not be impartial. In the Matter of Scotti, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline March 15, 2021).
  • “Let me tell you, you’ve been given a gift from God because there’s no question in my mind that you’re guilty of this crime. . . . What you do with it is your choice. Fair enough?” Judge to defendant who had been acquitted by a jury. In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for this and other misconduct).
  • “Okay. I’m going to stop you there. Because we’re done. All right. I am not releasing either of these people, with these charges. There are multiple charges. If you wished to present this evidence, you should have been here or had someone represent you.” Judge to 2 criminal defense attorneys who appeared by phone for an arraignment the day after the governor issued the statewide stay-at-home order due to COVID-19. In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for this and other misconduct).
  • “Kansas boy” and “Can I take a wild guess? Did you have a felony record before [Independence Community College] gave you a scholarship?” Judge to young male African-American defendant college athlete at arraignment. In the Matter of Cullins, 481 P.3d 774 (Kansas 2021) (1-year stayed suspension).
  • “If I was in drug court, I would have stayed my a** in the car,” and “We’re your probation officer.” Judge “fashion[ing] a remedy outside of accepted statutory and ethical norms” for a defendant in an assault case. In the Matter of Rasul, 245 A.3d 535 (New Jersey 2021), adopting presentment (10-month suspension with pay for this and related misconduct).
  • “I would not believe his tongue if it were notarized.” Judge about social worker in family court proceeding. In re Younge, Opinion and order (December 1, 2021), Opinion and order (Pennsylvania Court of Judicial Discipline June 2, 2021) (6-month suspension for this and other misconduct).
  • “Oh, we’re done here. Let me tell you something. Crazy, crazy, crazy. Call me crazy. I’m not paying caregivers to allow hookup here. . . . “I don’t care if she’s eighteen. Not on my watch. This is over. Over, over, over, over, over. That’s it. Not doing it. I mean like really? I’m done. Done, done, done. This is over. Discharged. Discharged.” Judge after learning that a male had spent nights at the foster home of his girlfriend, an 18-year-old female in extended foster care. In re Younge, Opinion and order (December 1, 2021), Opinion and order (Pennsylvania Court of Judicial Discipline June 2, 2021) (6-month suspension for this and other misconduct).

Around the courthouse

  • “Get off [my] f***ing back.” Judge to court administrator who told her there was no such thing as the “in house” probation the judge had imposed on a defendant and that the defendants may not make restitution payments to the victim directly at the courthouse as directed by the judge. In the Matter of Rasul, 245 A.3d 535 (New Jersey 2021), adopting presentment (10-month suspension with pay for this and related misconduct)
  • “This is ridiculous!”; “This isn’t working! This isn’t working!”; and “Fix it immediately!”. Judge yelling about internet outage in courthouse. Public Admonishment of Roberts (California Commission on Judicial Performance February 18, 2021) (admonishment for this and other misconduct).
  • “Thanks for the support.” Judge, derisively, to assistant presiding judge who told the judge that she was going to leave if the judge continued to yell. Public Admonishment of Roberts (California Commission on Judicial Performance February 18, 2021) (admonishment for this and other misconduct).
  • “N-word.” Judge using full word in conversation with court staff on why Black people can use the word but White people cannot. In the Matter of Chase, 485 P.3d 65 (Colorado 2021) (censure of former judge).
  • “F****** b****.” Judge referring to another judge in conversation with her clerk. In the Matter of Chase, 485 P.3d 65 (Colorado 2021) (censure of former judge).
  • “F**k” and its “derivatives. Judge frequently in the courthouse. In the Matter of Cullins, 481 P.3d 774 (Kansas 2021) (1-year suspension, stayed after 60 days with conditions).
  • “B**ch” and “c**t.” Judge describing women. In the Matter of Cullins, 481 P.3d 774 (Kansas 2021) (1-year suspension, stayed after 60 days with conditions).
  • “Hello I’m talking to you. This is your honor speaking.” Judge in text to member of the public who frequented the courthouse and had not responded to the judge’s sexual, homophobic, and racist texts and verbal comments. Public Admonishment of Poe (West Virginia Judicial Investigation Commission March 12, 2021).

On social media

  • “Trump will steam roll this election. Those who’s [sic] eyes are closed move their mouths more to make up for their insecurities. Stay strong; pray against evil.” Judge’s comment on Trump’s Facebook page. In the Matter of Quinn, Public reprimand (Minnesota Board on Judicial Standards March 9, 2021).
  • “Here we are!” Judge commenting on Facebook about a photograph of himself in the Trump Boat Parade published in the St. Cloud Times. In the Matter of Quinn, Public reprimand (Minnesota Board on Judicial Standards March 9, 2021).
  • “I always tell her that she and her brothers and sisters in blue are still appreciated in OUR community. Today’s event, and the overwhelming number of participants is a true example of that appreciation.” Judge in Facebook post about watching a Back the Blue event with his daughter, a police officer. In the Matter of Peck, Determination (New York State Commission on Judicial Conduct March 19, 2021) (admonishment).
  • “It’s not sad!” Judge responding to Facebook friend’s comment about a former member of the House of Delegates charged with participating in the insurrection at the U.S. Capitol. In the Matter of Jackson, Public admonishment (West Virginia Judicial Investigation Commission February 24, 2021).

Abuse of the prestige of office

  • “Do me a big favor;” “And we’ll clear this all up tomorrow, trust me. (Laughs) and you’ve never had Judge Smith call you and say something like that;” and “But you do know who I am don’t ya?” Judge to county sheriff’s dispatcher about throwing papers for a specific person’s divorce in a drawer so that they would not be served. Inquiry Concerning Smith, Order (Kansas Commission on Judicial Conduct February 25, 2021) (cease and desist order).
  • “He and I are gonna lock up before this is all over. . . . I’m gonna f**k him up before this is all over. Trust me. Just stay calm. Because he used to beat his wife like a broom. And it never got turned in. Oh no. He’s a wife beater. I know all this s**t. So I’m gonna f**k him up before this is over.” . . . That smokey the bear hat I pretty sure I can shove that right up his a** but that’s for later. I’ve got to lay and wait – for all this. That’s gonna be a while;” and “I could make all kinds of s**t up. TV would love it. I’m not gonna do that. I’m not that kind of person.” Judge to undersheriff about the county sheriff. Inquiry Concerning Smith, Order (Kansas Commission on Judicial Conduct February 25, 2021) (cease and desist order).
  • “No. I mean, it’s club soda;” “Can I tell you something else? I’m a judge of the Orphans’ Court. So please. I’m serious;” “Losing my whole f—ing life;” and “Because if I lose my job with the courts, I’ll lose my health insurance.” Judge in response to question, “Is there anything in that cup in the center console?” from county sheriff’s sergeant who stopped her for speeding and hitting a cone when turning a corner. In the Matter of Nickerson, 248 A.3d 298 (Maryland 2021).