Monthly Archives: September 2021

Judges’ associations resolve

Posted on by

In recent opinions, 2 judicial ethics advisory committees responded to inquiries from judges about a resolution that would prohibit a judicial association from holding conferences in states that repeal protections for lesbian, gay, bisexual, transgender, or queer individuals or that enact discriminatory LGBTQ laws.

A judge who is a longtime member of the National Association of Women Judges asked the Florida Judicial Ethics Advisory Committee whether they could participate in NAWJ’s deliberations on a “Resolution Regarding Future NAWJ Conferences in Jurisdictions Where LGBTQ Protections Are Repealed or Where Discriminatory LGBTQ Laws are Enacted.”  Florida Advisory Opinion 2021-11.  The resolution will “be deliberated and potentially adopted by the membership of NAWJ at an upcoming general membership meeting, conference, or vote.”  (According to the association’s website, the 2021 NAWJ annual meeting will be October 6-9, 2021, in Nashville, Tennessee.)

The resolution denounces laws that “void or repeal state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression” and laws that authorize, mandate, or condone that discrimination, including laws that create exemptions from anti-discrimination laws to permit discrimination on that basis.  If the resolution passes, NAWJ may not select “‘any future site for an annual or midyear meeting without first taking into careful consideration’ whether the site is located in a jurisdiction that has enacted the aforementioned laws.”  The resolution lists 12 states that have enacted the kind of measures at issue:  Alabama, Idaho, Iowa, Kansas, Kentucky, Mississippi, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, and Texas.  The inquiring judge noted that Florida would likely be added to the list soon.

The committee noted that NAWJ is clearly an organization “devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice.”  The opinion stated that “such associations do important work to help advance the rule of law, public confidence in the judicial system, and judicial engagement with the communities judges serve,” but noted that, at times, “these same groups may assume political positions or advocate for substantive changes in the law.”

The committee stated that the proposed resolution was plainly “a political statement on a current political issue” and that its “directive to ‘first tak[e] into careful consideration’ whether to schedule future conferences at any of the purportedly offending states appears to be a call for a boycott, which is a widely recognized method of expressing a political view or effectuating a political change.”  However, the committee concluded that no ethics rule prohibits judges “from discuss[ing] and debat[ing] the proposed resolution within the confines of NAWJ’s membership.  Because the inquiring judge assures us that the deliberations and discussion on the resolution’s vote will remain within NAWJ and not be disseminated to the public, the judge is free to voice the judge’s views and opinions among NAWJ’s membership.”

Similarly, the New York Advisory Committee on Judicial Ethics stated that a judge who belongs to a national judicial association may participate in a vote on a resolution that would prohibit the association from holding conferences in jurisdictions that repeal protections for LGBTQ individuals or enact discriminatory LGBTQ laws.  New York Advisory Opinion 2021-81. (The New York opinion does not identify the specific judges’ association that was the subject of the inquiry.)

The committee noted that its previous opinions on diversity issues had advised that a judge may:

  • “Participate in a job fair to encourage members of the LGBTQ community to pursue careers as court officers and promote diversity in the court system” (New York Advisory Opinion 2009-151);
  • “Join with officers of an ethnic bar association to meet with a district attorney-elect’s transition team to discuss increasing diversity at the district attorney’s office, provided there is no impermissible political activity and the judge does not recommend specific individuals be hired” (New York Advisory Opinion 2017-179);
  • “Promote diversity by encouraging litigators to provide knowledgeable junior colleagues significant speaking or leadership roles in the courtroom” (New York Advisory Opinion 2018-36);
  • “Meet with law school deans and various executive and legislative branch officials to express a bar association’s concern about the downward trend of minority representation and to advocate for increased diversity in the legal profession” (New York Advisory Opinion 2007-170);
  • “Establish a judicial mentoring program to help promote diversity in the judiciary” (New York Advisory Opinion 2016-151); and
  • “‘Promote diversity by encouraging individuals from particular backgrounds to enter the legal profession’” (New York Advisory Opinion 2017-12).

The New York committee concluded that, “to the extent the proposed resolution can be seen as political or quasi-political, . . . it relates to the improvement of the law, the legal system and the administration of justice . . . , as it attempts to reduce or eliminate bias based on an individual’s sexual orientation, gender identity, or gender expression, consistent with a judge’s obligations under the Rules . . . .  [V]oting on this issue will not create an appearance of impropriety or cast reasonable doubt on the judge’s ability to perform judicial duties impartially.”

For the same reason, the New York committee also advised that judges can continue to belong to the judicial association if it adopts the resolution and will not have to resign their membership.

In contrast, the Florida committee stated that passage of the resolution “could potentially pose issues for a member judge,” depending on the final wording of the resolution and the publicity about it.  The committee emphasized that “maintaining the appearance of impartiality is a paramount concern when we examine these membership inquiries” and that “‘the changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to re-examine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation.’”

The committee recognized that NAWJ “is obviously not a political organization,” but also stated that “unlike civic groups, bar associations, and other law-related groups, when NAWJ publishes a statement, anyone who hears or reads it will associate the statement with a group of judges.”  It explained:

We would have to believe that NAWJ’s statements about legislation on political topics would likely enjoy a special platform of public consideration.  The inquiring judge would have to carefully monitor the extent to which NAWJ’s resolution, should it pass, becomes a feature of public discussion or awareness, and whether the judge’s membership could be construed as evidence of partiality on topics to which that resolution pertains.

The Florida committee stated, if the “laws that are the subject of the proposed resolution were ever challenged in a court proceeding, any judge who is a member of a judicial group that has actively advocated against such laws would seem to be in a position where the State may legitimately question the appearance of that judge’s impartiality,” requiring the judge to consider whether their “impartiality might reasonably be questioned.”

The Florida committee acknowledged the New York opinion but stated that the other committee’s approval of continued membership rested on the “tacit assumptions that:  (a) the laws in question (whatever their content) are pejorative and discriminatory in their operation and intent; and that, therefore; (b) advocating against such laws would necessarily constitute an improvement in the law or legal system.”  The Florida committee opined:

Framing NAWJ’s potential advocacy in that manner seems a tad stilted and, we fear, could lead an advisory committee such as ours into political waters on political questions (where laws with which the committee may happen to disagree are deemed “ethical” to advocate against, while other laws with which the committee agrees become “unethical” for a judicial officer to publicize any disagreement with).

Update:

At its annual business meeting, the National Association of Women Judges passed a “Resolution in Support of our LGBTQ members” that states:

RESOLVED, That the National Association of Women Judges will not sponsor or hold any mid-year or annual meetings or conferences in states that have voided or repealed state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression, or have enacted laws that authorize or mandate discrimination on the basis of sexual orientation, gender identity or gender expression.

There is a list of 18 states that currently meet those criteria attached to the resolution, and the resolution directs that the list “be updated as necessary” and “conform to the lists maintained by those states which track the enactment of such legislation, including, but not limited to, the State of California Attorney General’s office.”

Throwback Thursday

Posted on by

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to provide a father a full opportunity to explain the nature of his minor child’s disability and the need for the protective order he was seeking on behalf of his child.  Forshey, Order (Arizona Commission on Judicial Conduct September 22, 2016).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission suspended a judge for 14 days without pay for keeping a witness incarcerated for contempt of court for over 2 months without appointing an attorney to represent her, setting bond, or holding a hearing.  In re Miniard, Agreed order of suspension (Kentucky Judicial Conduct Commission September 2, 2016).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission suspended a judge for 7 days without pay for granting an ex parte motion to grant immediate custody to a child’s father.  In re Stein, Agreed order of suspension (Kentucky Judicial Conduct Commission September 12, 2016).
  • The West Virginia Judicial Investigation Commission publicly admonished a former judicial candidate for failing to file a written response to a complaint.  In the Matter of Willett (West Virginia Judicial Investigation Commission September 1, 2016).
  • The West Virginia Judicial Inquiry Commission publicly admonished a magistrate for failing to timely arraign a defendant.  In the Matter of Broce-Kelley, Public admonishment (West Virginia Judicial Investigation Commission September 1, 2016).

Recent cases

Posted on by

  • Pursuant to a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for interfering and failing to cooperate with court officials in the administrative of court business with respect to personnel matters and using inappropriate language around court staff and court officials.  In the Matter of Chelini, Stipulation and order of consent (Nevada Commission on Judicial Discipline August 12, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former non-lawyer judge it was investigating based on the judge’s arrest on criminal charges of harassment and endangering the welfare of a child, his invocation of his judicial office at the time of his arrest when he asked the investigator to recommend a less restrictive order of protection, and his failure for approximately 3 months to comply with a court order to surrender all of his firearms.  In the Matter of Duyssen, Decision and order (New York State Commission on Judicial Conduct August 5, 2021).
  • Based on the report of the Board of Professional Conduct, the Ohio Supreme Court suspended a judge for 6 months without pay for regularly communicating on Facebook messenger and over the phone with a litigant about 4 cases over which the judge was presiding; the Court stayed the suspension conditioned on the judge completing at least 3 hours of continuing judicial education on ex parte communications or use of social media by judicial officers, refraining from further misconduct, and paying the costs of the proceedings.  Disciplinary Counsel v. Winters (Ohio Supreme Court August 18, 2021).
  • 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; the suspension was made retroactive to July 10, 2020, the date of his interim suspension, and the Court also ordered him to complete at least 15 hours of anger management and to pay the costs of the investigation.  In the Matter of Rivers (South Carolina Supreme Court August 11, 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 against a former justice of the peace and associate municipal court judge; in May 2019, the Commission had suspended the judge without pay after she was indicted on state charges of theft of more than $2,500, but less than $30,000, and abuse of official capacity.  Grigsby, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct July 12, 2021).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for her posts on her personal Facebook page that supported judicial candidates, opposed candidates for non-judicial offices, made a negative comment about Scientology, and included a meme about border crossings; the Commission also ordered the judge to obtain 2 hours of instruction on racial sensitivity with a mentor.  Public Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for, after learning that the county attorney sought to dismiss a traffic matter, initiating an ex parte communication about the merits of the case with the officer who issued the citation and directing his clerk to tell the county attorney that the officer was opposed to the dismissal.  Public Admonition of Zander and Order of Additional Education (Texas State Commission on Judicial Conduct August 12, 2021).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for ordering the activation of a criminal defendant’s stun cuff, which resulted in injury to the defendant and his absence from the remainder of the guilt/innocence phase of his trial.  Public Warning of Gallagher (Texas State Commission on Judicial Conduct August 19, 2021).
  • Based on agreements to resign and never to seek judicial office, the West Virginia Judicial Investigation Commission publicly admonished 2 former magistrates for dismissing criminal charges in exchange for donations to a charitable organization by granting motions to dismiss filed by the prosecution.  Public Admonishment of Nutter (West Virginia Judicial Investigation Commission August 27, 2021); Public Admonishment of Taylor (West Virginia Judicial Investigation Commission August 27, 2021).

Throwback Thursday

Posted on by

10 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for abusing his contempt power in response to a report that a member of the public was using her cell phone to take pictures or videos of people in the courthouse lobby involved in dependency court proceedings.  In the Matter Concerning Wagoner, Decision and Order (California Commission on Judicial Performance September 13, 2011).
  • Agreeing with the recommendation of the Judicial Qualifications Commission, the Georgia Supreme Court removed a judge from office for (1) obtaining and consuming marijuana at least once a week from March to May of 2010; (2) showing up at the house of his sister-in-law’s estranged husband, identifying himself as a magistrate judge, and then kicking in 2 interior doors at the man’s home; (3) in the courthouse, pointing a firearm at himself and stating to another magistrate judge, “I am not scared.  Are you all scared?”; (4) while on a local cable television show called “Night Talk,” (a) making derogatory remarks about the Chief Magistrate Judge and calling him “spineless,” (b) publicly disclosing that he had filed a complaint with the Commission against the Chief Magistrate Judge, and (c) exposing the identity of a confidential informant and displaying a photograph of the informant; (5) making a phone call to “Night Talk,” and, after initially trying to disguise his voice with multiple foreign accents, told the sheriff (who was being interviewed on the show) that he had “crapped himself’ and was a “spineless jelly spine;” and (6) refusing to work hours that had been assigned to him by the Chief Magistrate Judge.  Inquiry Concerning Peters, 715 S.E.2d 56 (Georgia 2011).
  • Based on agreed findings of facts, the Mississippi Supreme Court suspended a part-time judge for 30-days without pay, publicly reprimanded her, and fined her $500 for executing a felony arrest warrant for a client’s ex-husband based upon an affidavit submitted by her client.  Commission on Judicial Performance v. Bustin, 71 So. 3d 598 (Mississippi 2011).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for discussing a citation with the game warden who had issued it and unilaterally dismissing the case based on ex parte communications with the defendant and the fear of a potential lawsuit against the county.  Public Admonition of Cox (Texas State Commission on Judicial Conduct September 8, 2011).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for delegating to his law clerk responsibility for presiding over 2 hearings on name change petitions.  In the Matter of Yoder, Public Admonishment (West Virginia Judicial Investigation Commission September 2011).

Virtual National College on Judicial Conduct and Ethics

Posted on by

Registration is now open for the virtual National College on Judicial Conduct and Ethics on Thursday and Friday, October 28 and 29, 2021, from 12 to 3:30 EDT/11 to 2:30 CDT/10 to 1:30 MDT/9 to 12:30 PDT & MST.  Held by the Center for Judicial Ethics of the National Center for State Courts, the College will have three one-hour sessions each day presented via Zoom, with 15-minute breaks in between. The topics to be covered:

  • Determining the appropriate sanction in judicial discipline cases
  • Crossing the line and training to prevent it:  #CourtsToo
  • Abuse of the criminal contempt power and judicial discipline
  • When judges speak up
  • Lessons learned:  A decade plus of judges on social media

The schedule is below. 

  • The registration fee is $95 total for both dates, all sessions.  The fee is non-fundable.
  • If you cannot be present for all or part of the College, you can still register to gain access to a recording of the sessions after the College is over.  Only those who pre-register will have access to the recording.
  • If you are registering multiple people, you must register each attendee individually under their name and email address.
  • Attendees will receive two links, one for each day.  Each attendee’s Zoom links will be unique to them.  Please do not share your links with others.
  • You may not receive the email confirming your registration for up to 24 hours.  The email will come from akim@ncsc.org.  Please check your junk or spam folders.  If you have not received it in after 24 hours, please contact akim@ncsc.org.
  • Attendees will need to apply for continuing legal education certification in their state.

An abridged, remote version of the biennial College, the virtual College will provide a forum for judicial conduct commission members and staff, judges, judicial ethics advisory committees, and others to learn about professional standards for judges and current issues in judicial discipline.

Schedule

Thursday October 28
Determining the appropriate sanction in judicial discipline cases
12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
Examining recent cases, participants will “vote” on what sanctions they would have imposed in actual judicial discipline cases and then discuss what factors influenced their vote.  Moderators:  John Erlick, Former Superior Court Judge, King County, Washington; Former Member, Washington State Commission on Judicial Conduct • David Sachar, Executive Director, Arkansas Judicial Discipline & Disability.

Crossing the line and training to prevent it:  #CourtsToo
2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
When does a joke in the courthouse cross the line into a violation of the code of judicial conduct?  When is a judge responsible for a hostile work environment?  This session will answer these questions and more.  The first part will examine real life examples of sexual harassment by judges, including how humor can be offensive and perceived as unwelcome advances, discrimination, and/or harassment.  Relevant canons will also be discussed.  The second part will address preventative measures and sexual harassment training tailored to judges and court staff.  Moderators:  Kimberly Vanover Riley, Partner, Montgomery Jonson LLP, Cincinnati, Ohio  •  Judge Erica Yew, Judge, Superior Court of California; Member, California Supreme Court Committee on Judicial Ethics Opinions  •  Konstantina Vagenas, Director/Chief Counsel, Access to Justice Initiatives, National Center for State Courts.

Friday October 29

Abuse of the criminal contempt power and judicial discipline
12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
Although courts and judicial conduct commissions are generally reluctant to second-guess a judge’s decision to control the courtroom through use of their criminal contempt power, given the liberty interests at stake, judges have been disciplined for over-reacting and for ignoring the procedures designed to ensure that citizens are not thrown in jail precipitously.  This session will consider when an appealable abuse of the contempt power may also constitute sanctionable judicial misconduct.  Participants will also discuss how judges can control the courtroom without using the contempt power.  Moderators:  Michelle Beaty, Special Counsel, Louisiana Judiciary Commission  •  Judge Louis Frank Dominguez, Presiding Judge, Surprise City Court; Chair, Arizona Commission on Judicial Conduct.

When judges speak up
1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
This session will strive to illuminate the gray area where off-the-bench judicial speech, the code of judicial conduct, and the First Amendment overlap when judges want to criticize court decisions, urge changes in the law, publicly comment on cases, or express their personal views on controversial issues in extra-judicial settings such as social media, law review articles, op-eds, bar association speeches, yard signs, bumper stickers, or t-shirts.  (Campaign speech will not be covered.)  Moderators:  Raymond McKoski, Retired Judge, 19th Judicial Circuit Court; Member, Illinois Judicial Ethics Committee • Robert Tembeckjian, Administrator and Counsel, New York State Commission on Judicial Conduct.

Lessons learned:  A decade plus of judges on social media
2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
The first judicial discipline case involving Facebook was in 2009.  The numerous cases since demonstrate that judges need more guidance on how the code of judicial conduct applies on-line.  This session will consider the ethical best practices for judges using social media.  Moderators:  Jacqueline Habersham, Executive Director, Texas State Commission on Judicial Conduct  •  Cynthia Gray, Director, Center for Judicial Ethics, National Center for State Courts.

More Facebook fails

Posted on by

Based on the report of the Board of Professional Conduct, the Ohio Supreme Court suspended a judge for 6 months without pay for communicating about 4 cases pending before him with a litigant on Facebook Messenger and on the phone.  Disciplinary Counsel v. Winters (Ohio Supreme Court August 18, 2021).  The Court stayed the suspension conditioned on the judge completing at least 3 hours of continuing judicial education on ex parte communications or use of social media by judicial officers, refraining from further misconduct, and paying the costs of the proceedings.

In the 1980’s, the judge had been Keith Blumensaadt’s probation officer.  In 2017, the judge presided as a judge over Keith’s criminal case with the agreement of counsel following his disclosure that he knew Keith.  On June 27, based on a plea agreement, Keith pleaded guilty to a felony count of unlawful possession of dangerous ordnance, a felony count of attempted possession of weapons under disability, and a misdemeanor count of attempted unlawful possession of dangerous ordnance.  The judge sentenced him to time served on the 2 felony counts.  On the misdemeanor count, the judge sentenced him to 180 days in the county detention facility suspended on condition that he not enter Put-In-Bay Township for 1 year unless escorted by the county sheriff’s office to remove his personal belongings. 

Sometime after conclusion of the criminal case, the judge and Keith became “friends” on Facebook.

Between July 22 and December 19, 2019, the judge and Keith exchanged ex parte messages on Facebook messenger about 4 cases over which the judge was presiding:  a drug possession case against a defendant whom Keith claimed had sold heroin to his daughter; Keith’s custody case with his ex-wife; a case in which Keith’s father and brother had obtained protection orders against him; and a criminal case against the other driver in a car accident in which Keith had been injured.  During this time, they also discussed personal and professional matters in several phone conversations.  The judge did not disclose the ex parte communications in any of the cases.

(The Facebook messages had numerous grammatical, spelling, capitalization, and punctuation errors that are not corrected in the summary below.)

For example, in a message via Facebook Messenger, Keith told the judge that Alberto Mendez had sold heroin to Keith’s daughter and requested that the judge not give Mendez a “bond he can make.”  The judge arraigned Mendez and released him on a recognizance bond.  A few days later, Keith messaged the judge, “I see Al Mendez moved in are neighborhood on 14th street, I can’t wait to get out of here.”

On May 20, 2019, the judge finalized the divorce of Keith and Michelle Blumensaadt and granted custody of their minor son, Axel, to Michelle.  On August 30, in a message via Facebook Messenger, Keith advised the judge that Michelle had agreed to transfer custody of their son to Keith.  In a message to the judge on September 5, Keith stated:

I stopped to say hello today, and I have a funny story to tell you about my son Axel, anyway Axel keeps riding his bike down to the court house everyday and I said don’t be in the parking lot it’s a busy place, he said okay So yesterday I went looking for him and he was at the court house again, so I ask him why do you keep going to the court house, and he said to see the judge Bruce Winters so I can tell him I want to live with you, so I can go to school!  I said what?  He said well I heard you talking to mom and he is the judge that has to sign the paperwork so I can go to school Here, so I went to tell him I want to live with you so I can get in school next week, I just cried, because he’s so smart and determined to go to school and live with me.  Anyway I picked up indigent form today to file motion and will file it Monday.  So watch for a kid on a red bike who is tracking you.  I told him not to go down there but I think he’s not listening to that, and I explained that there is a procedure we have to do, to enroll him in school.  I thought you would get a laugh out[.]

The judge replied:  “Yes he is!  That’s funny.  I’ll look for him and for sure talk to him if I see him.  I like his attitude.😊”

Between September 6 and September 30, the judge and Keith exchanged several private messages that included information relevant to Keith’s pending pro se motion for change of parenting time over which the judge was presiding.

For example, on September 7, Keith sent the judge a copy of a criminal judgment entry against Michelle and stated, “Just had to send this to you, Michelle stabbed me with a pen in 2016 and was ordered to take her bipolar meds and was charged with domestic violence, but if you let her tell the story I’m the one who’s on meds.”  Later that same day, in a reply to Keith’s message, the judge stated, “Interesting!”

On September 9, in a message via Facebook Messenger, Keith invited the judge and his family to a private dinner hosted by his brother Bill where oysters, crab, lobster, and ribeye would be served, saying, “Your my guest if your interested.”  The judge replied, “I don’t know what my schedule is tomorrow I’ll be in touch.”  On September 10, the judge declined Keith’s offer, stating, “I guess I really shouldn’t since you have a case pending in my court.  Thanks for asking.  Let get this done. . . .  Before your personal injury case gets filed.😊”

On September 30, in a message via Facebook Messenger, Keith told the judge:

By the way Michelle got a little huffy yesterday about Axel, because he won’t go to her house with her, and I told her he’s scared she won’t bring him back,,, should I bring him to hearing he wants to come and tell magistrate he wants to live with me.  He starts throwing up when she tells him she’s coming to pick him up and has anxiety attracts, and says he’s not going.  I think she has caused axel to be in-fear of her taking him away ,, It’s not good there, but she doesn’t see it, because she believes her lies.

On the same day, Keith sent the judge another message:

It seems Michelle doesn’t want to go to hearing and had attorney send over a agreement to sign, I’m going to have it gone over and everything looks good, I just don’t trust her.  She knows what Axel is going to say in court and it’s not good, so she just wants to see things my way as I said she would, I new she would, she’s lied about everything.

On September 25, in a message via Facebook Messenger, Keith advised the judge that he and Michelle had reached an agreement that would be filed soon.  Keith’s message stated:

Axel is happy with it, because she [Michelle] had to visit him here in Port Clinton, he refuses to go to her house and I don’t blame him, thank you for everything, I don’t think she understand what she had done to Axel mindset on past actions,,.  I’m overlooking a lot of her actions for Axel, because at the end of the day she is his mother and I don’t want him to hate her and I don’t want to hurt her legally, she deserves it but it’s not who I am, its easy to life to be irresponsible, and vindictive but it’s harder to turn the other cheek and move on!

The judge replied to Keith:  “Glad you have it worked out.”

There were additional Facebook Messenger communications between the judge and Keith about the case.  The judge did not disclose any of the communications to Michelle or her attorney.

In 2016, Keith’s father and brother, Todd Sr. and Todd Jr., had obtained civil stalking protection orders that required Keith to stay at least 500 feet away from them.  The orders were in effect until May 2021.

On November, 2019, at 8:22 p.m., in a message via Facebook Messenger, Keith stated to the judge, “Hey I have a question about my mom, when she passes and that protective order, call me when you get a chance please!”  On the same day at 9:09 p.m., the judge called Keith and spoke to him for 44 minutes.  During this call, the judge advised Keith to file a motion requesting that the protection orders be temporarily modified to allow Keith to attend his mother’s funeral even though Todd Sr. and Todd Jr. would also be present.  Subsequently, the judge and Keith exchanged numerous messages via Facebook Messenger and spoke on the phone about the declining health and subsequent death of Keith’s mother and modification of the protection orders.  The judge did not disclose any of the communications to Todd Sr., Todd Jr., or any of the attorneys.

For example, on December 18, at 4:48 p.m., in a message via Facebook Messenger, Keith asked the judge, “Any word on what’s going to happen with funeral[?]”  At 9:25 p.m., the judge replied, “A deputy will accompany you.  No need for consent, no need for a hearing and the Sheriff is onboard.”  Keith immediately replied, “You sure[?]  Thank you Bruce.”

On July 27, Keith was injured in a car accident.  The driver of the other car was Daniel Fishburn.  On September 9, Fishburn was charged with operating while under the influence, failing to maintain space between moving vehicles, and aggravated vehicular assault.  The judge presided over Fishburn’s criminal case.

Between September 9 and January 25, 2020, Keith and the judge exchanged multiple messages concerning Keith’s injuries and Fishburn’s criminal case.  The judge never disclosed the ex parte communications in the criminal case.

For example, on October 17, in a message via Facebook Messenger, Keith told the judge:

Then this guy who hit me wants to plead no contest to ovi felony, not a chance, he doesn’t want to admit guilty so he can get out of liability, over my dead body, [the prosecutor] should no better, I’m waiting to hear what him and [Keith’s attorney] have figured out on that yet, he blows twice over legal limit and admitted to drinking, I don’t think he has a change at jury trial, he’s been offered 1 ovi felony and 1 unasheered clear distance misdemeanor and diversion program, he should be happy with no jail time, but no, he wants his cake and eat it to.

On December 17, the judge granted the joint request for Fishburn to be admitted to the county prosecutor’s pretrial diversion program.  The judge set the matter for a plea change and diversion hearing on January 15, 2020.

On January 15, before Fishburn’s plea and diversion hearing, Keith said to the judge:

Bruce good morning.  I want you know, that I understand being in your position as a judge in a small community is a very hard job, trying to make everyone’s needs just, being put between difficult situations, but at the end of the day I still respect you and don’t dislike you in any way.  I’ve been in a lot of hard situations, and at the end of the day I don’t hold any remorse!  I still think you are great guy and I hope my case doesn’t change anything between us,, it’s a hard spot and it bothers me personally everyday, because I consider you a Good person!  And friend!!  It’s definitely a awkward situation my case, but I still like you, I can tell you don’t have conversations with me anymore and I understand!!!  I don’t have it in me, to not love and respect a good guy as yourself!  I’ve said to much, this dam case of mine has caused such problems in my life and don’t want my appeal to cause hard feeling!!  Dame I hate this whole Pib thing.

* * *
The Texas State Commission on Judicial Conduct publicly warned a judge for posting on Facebook support for judicial candidates, opposition to candidates for other offices, a negative comment about Scientology, and a meme about border crossings.  Public Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).  The Commission also ordered the judge to obtain 2 hours of instruction on racial sensitivity with a mentor.

During the 2018 election cycle, when she was not running, the judge made several posts to her Facebook page lauding the experience and/or qualifications of certain candidates for judicial office, defending those candidates against political attacks from others, or opposing the candidates’ opponents.

The judge posted about the campaign of Judge James Munford, including defending him against accusations that he was a “gun grabber” and a “RINO” and had abused his first wife decades before.  The judge also made negative comments about Judge Munford’s opponent’s voting record and urged the public to ignore the political attacks against Munford and to vote for him because of his superior experience and qualifications.

The judge also posted about the campaign of Judge Cynthia Terry, including posting about attending a “Meet and Greet Luncheon” hosted by Judge Terry, “liking” a post about the event, and sharing screenshots of Judge Terry’s campaign flyers.

The judge also promoted the campaign of Judge Alex Kim on her Facebook page, including sharing Judge Kim’s campaign materials and insinuating in a lengthy post that she had unique knowledge that the Kim’s opponent was unsuited for the position because he left “a baby in danger.”

In addition, the judge posted to Facebook the comment, “Robert Francis O’Rourke.  #fakemexican” about then-candidate for U.S. Senate, Beto O’Rourke.  The judge also remarked “Finally Gone!!!” about the loss in the primaries of State Representative Jason Vallalba and later responded with 2 laughing emojis to the comment, “I’m sure [Vallalba] will find a job, there are lots of local opportunities in both the hotel and food service industry.” 

The judge shared a link on Facebook to an article titled “Scientologist’s Facilities Closed After Police Find People Held Prisoner Inside,” with her comment, “Scientology is not a church.  It is an evil scam.”

The judge posted to her Facebook page a meme with an image of the Looney Tune character Wile E. Coyote reading a book with the title, “How to carry kids across the border . . . ,” followed by an image of Dora the Explorer, a Hispanic cartoon character, tied to a rocket and Wile E. Coyote attempting to light the fuse.  The judge removed the meme from her Facebook page soon afterwards and posted a retraction.

During her appearance before the Commission, the judge acknowledged that posting these materials on her personal Facebook page was inappropriate and stated that she regretted doing so.  The judge represented to the Commission that she has deactivated her personal Facebook page and will no longer participate in social media although she still maintains a campaign Facebook page that is run by a political consultant.

* * *

A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct Reporter.  Part 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

Throwback Thursday

Posted on by

20 years ago this month:

  • The Arkansas Commission on Judicial Discipline & Disability publicly admonished a judge who (1) stated to a young female defendant in a crowded courtroom “Your behavior is that of a common crack whore;” and (2) stated to another female defendant charged with prostitution, “How is business?  Is business good these days?” and “There is no reason to be ashamed.  You were not ashamed jumping in and out of trucks having sex with men.  The men in this courtroom do not want to have sex with you.” Letter of Admonishment of Rainey (Arkansas Commission on Judicial Discipline & Disability September 21, 2001).
  • Approving a joint recommendation based on a stipulation of facts, the Illinois Courts Commission publicly reprimanded a judge who had pled guilty of reckless driving and whose drivers license had been suspended for refusing to take a breathalyzer test.  In re Racculgla, Order (Illinois Courts Commission September 7, 2001).
  • Approving a settlement, the Indiana Supreme Court publicly reprimanded and admonished a judge for a television campaign ad that stated he had kept his promise, “to send more child molesters to jail . . . burglars to jail . . . drug dealers to jail . . . .”  In the Matter of Spencer, 759 N.E.2d 1064 (Indiana 2001).
  • Approving a joint statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court suspended a judge without pay for 15 days for (1) permitting the practice of the clerk or her employees of affixing the judge’s signature stamp to protective orders when petitions were filed and before the judge reviewed them, which led to the appearance that the judge granted his father a protective order; (2) granting several citizens emergency protective orders against a utility despite the property interests of family members in the area; (3) after granting an automatic change of judge in one case and disqualifying himself in several others, sua sponte issuing orders of clarification extending the effectiveness of the emergency protective orders against the utility; and (4) entering orders in another case involving the utility, after having disqualified himself.  In the Matter of Funke, 757 N.E.2d 1013 (Indiana 2001).
  • Granting a joint motion, the Mississippi Supreme Court publicly reprimanded a judge for finding a defendant guilty of disturbing the peace and simple assault based on affidavits without testimony and without giving the defendant an opportunity to defend herself.  Commission on Judicial Performance v. Wells, 794 So. 2d 1030 (Mississippi 2001).

Election meddling

Posted on by

In unrelated cases, 3 judicial officers were recently sanctioned for interfering in judicial elections in which they were not candidates.

In In re Hughes, 319 So. 3d 839 (Louisiana 2021), accepting a motion for consent discipline, the Louisiana Supreme Court publicly censured one of its members for a meeting with a campaign worker for a candidate for another seat on the Court that interfered with or could have interfered with the relationship between the candidate and the campaign worker.

In fall 2019, there was a run-off election between then-Judge William Crain and then-Judge Hans Liljeberg for Louisiana Supreme Court District 1.  Leading up to the election, Justice Hughes received several telephone calls about the amounts being paid to workers on the Crain campaign.  He reviewed finance reports filed by Crain’s campaign and recognized some of the names on the reports, including Johnny Blount, a former city councilman.

Although he had not seen Blount for several years, the justice went to Blount’s home to discuss the race and specifically the amount of money being paid to campaign workers for the Crain campaign.  During their conversation, the judge told Blount that he believed that Blount could receive more money for his services from the Liljeberg campaign.  The justice left his card with Blount.  Blount got the impression from their conversation that the justice was attempting to get him to change his support from Judge Crain to Judge Liljeberg.

In an affidavit after the meeting, Blount attested that the justice had offered him $5,000 to support the Liljeberg campaign.  In early November, several news articles described Blount’s affidavit and “reported negatively on respondent’s conversation with Mr. Blount and portrayed the judiciary in a negative light.”

Crain won the election.  Justice Crain and Justice Hughes recused themselves from the discipline case.

The Commission and the justice stipulated that his discussion with Blount interfered with “and/or had the potential to interfere with the working relationship between a judicial candidate and one of his campaign workers during a highly contested campaign for a seat on the same Court on which respondent serves.”  However, the parties’ joint submission stated that Blount’s allegation that the justice offered him $5,000 was “unsubstantiated.”

Although the parties stipulated that the justice had intended the conversation to be private, the Court concluded that, “given the unusual nature of the conversation,” the justice’s status as a member of the Court that was the subject of the election, and “the contentious nature of the campaign,” the justice should have foreseen that Blount might publicize their conversation.

The parties stipulated that the justice had failed to uphold the integrity and independence of the judiciary, to avoid impropriety and the appearance of impropriety, to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, to maintain the dignity appropriate to judicial office, and to refrain from unauthorized partisan political activity.

In mitigation, the Court noted that the justice was not acting in his official capacity, believed his conversation was private, expressed remorse, cooperated during the disciplinary proceedings, and accepted responsibility.  In aggravation, the Court emphasized the justice’s position as a member of the Court and his lengthy judicial experience.  The Court stressed “the unique nature of this case,” noting that the justice “is the second most senior justice on this Court, which is constitutionally charged with regulating the judiciary.”

* * *
As “persuasive authority” that a public censure was the appropriate sanction, the Louisiana Supreme Court cited the Florida Supreme Court’s public reprimand of a judge for attempting to dissuade a judicial candidate from running against an incumbent judge and to either run against a different incumbent judge or not to run at all.  Inquiry Concerning Howard, 317 So. 3d 1072 (Florida 2021).  The decision was based on a stipulation.

In early April 2019, the husband of a judicial candidate running against a recently appointed judge was told that he should contact Judge Howard so that Judge Howard could explain why his wife should run against a different judge in the same county who was also up for election in 2020.  The judge’s personal phone number was provided to the candidate’s husband.  When the candidate’s husband called the judge, the judge suggested meeting with the candidate and her husband at an event for the local Boy Scouts.  The candidate was unable to attend, but her husband did. 

At the event, the judge explained that the candidate’s current incumbent opponent enjoyed strong support and recommended that the candidate change races to target a second incumbent.  The judge said that he would like to meet and speak with the candidate herself.

On April 17, the judge met with the candidate and her campaign treasurer/law partner at their law office for 20 to 50 minutes.  The judge asked the candidate why she was running for judge, and, after she responded, he told her that her reasons were not good enough.  The judge repeatedly attempted to persuade the candidate not to run against the first incumbent, whom the judge thought was doing a good job and enjoyed the support of the community, and to switch her candidacy to run against the second incumbent, whom the judge perceived as weaker and more vulnerable.  Alternatively, the judge suggested that the candidate drop her candidacy completely and seek appointment to some future seat through the judicial nominating commission process.  When the candidate asked if the judge would be willing to provide a recommendation if the nominating commission contacted him about her, the judge stated that he does not do that.

The candidate did not relinquish her campaign against the first incumbent.

In mitigation, the Commission noted that the judge accepted full responsibility, cooperated throughout the investigation, and acknowledged that his actions were inappropriate and should not have occurred.  The Commission further noted that the judge has no prior discipline as a judge since his appointment in 2000 and no disciplinary history with The Florida Bar.

Although it approved the stipulation, the Court did not agree with the Commission’s conclusion that the judge’s conduct constituted a public endorsement or opposition to judicial candidates.  The Court did approve the Commission’s other findings that the judge’s conduct “failed to uphold the integrity and independence of the judiciary, “created the appearance of impropriety,” “failed to promote public confidence in the impartiality of the judiciary,” and “constituted an improper use of the prestige of his position in favor” of the private interest of the first incumbent.

* * *
Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for (1) contacting individuals to inform them that he was supporting the incumbent judge’s opponent in a judicial election and, in some instances, requesting that the community member support his favored candidate and (2) failing to officially designate a campaign account and treasurer with the Division of Elections before receiving campaign contributions or issuing any funds.  Inquiry Concerning Cupp, 316 So. 3d 675 (Florida 2021).

In the lead up to the 2020 election for Hendry County Court judge, the judge began contacting individuals he knew in the county to inform them that he was supporting the incumbent judge’s opponent because he had heard concerns about the incumbent.  The judge’s preference for the incumbent’s opponent eventually became widely known in the community.  The judge admits that his “unsolicited contact with many influential members of the community, during which he expressed his preference for a certain candidate in a judicial race, and in some instances requested that the community member support his favored candidate” was inappropriate, violated the code of judicial conduct, and “damaged the integrity of the judiciary, by creating the appearance that he was interceding in a judicial election.

Throwback Thursday

Posted on by

25 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a part-time judge and fined him $4,933 for failing to resign as a judge after qualifying to run for the board of supervisors.  Commission on Judicial Performance v. Haltom, 681 So. 2d 1332 (Mississippi 1996).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for failing to timely remit court funds to the state comptroller.  In the Matter of Erway, Determination (New York State Commission on Judicial Conduct September 17, 1996).
  • The New York State Commission on Judicial Conduct removed a judge for failing to remit court funds promptly to the state comptroller, failing to respond to 3 letters sent by staff counsel, and failing to give testimony although she was directed to do so by the letter sent certified mail by staff counsel.  In the Matter of Carney, Determination (New York State Commission on Judicial Conduct September 19, 1996).
  • The West Virginia Judicial Investigation Commission publicly admonished a magistrate for using a court copy machine to make copies of an announcement of a Democrat picnic.  In the Matter of Hull, Public Admonishment (West Virginia Judicial Investigation Commission September 3, 1996).
  • The West Virginia Judicial Investigation Commission publicly admonished a candidate for magistrate for attending a Democratic Executive Committee meeting and voting as proxy for another member of the committee.  In the Matter of Eplin, Public Admonishment (West Virginia Judicial Investigation Commission September 10, 1996).
  • The West Virginia Judicial Investigation Commission publicly admonished a justice of the Supreme Court of Appeals for a campaign letter on a facsimile of letterhead used by the justice in his judicial capacity.  In the Matter of Albright, Public Admonishment (West Virginia Judicial Investigation Commission September 23, 1996).