Throwback Thursday

10 years ago this month:

  • Pursuant to the judge’s agreement, the Maryland Commission on Judicial Disabilities made public its private reprimand of a judge for misleading attorneys that a case would be tried in less than 24 hours and directing the assignment clerk to create and post a false document setting the case for a jury trial.  In the Matter of McDowell, Private Reprimand (Maryland Commission on Judicial Disabilities October 24, 2011).

Recent cases

  • The California Commission on Judicial Performance publicly admonished a judge for (1) participating in a Facebook group called “Recall George Gascón,” referring to the county district attorney, and (2) posting tweets, re-tweeting content, and liking tweets by other users that contained partisan viewpoints on controversial issues, suggested bias against particular classes of people, and were “undignified and indecorous.”  In the Matter Concerning O’Gara, Decision and order imposing public admonishment (California Commission on Judicial Performance September 14, 2021).
  • Adopting the findings and recommendation of the Commission on Judicial Performance based on a stipulation, the Mississippi Supreme Court publicly reprimanded a judge and fined him $2,500 for making appearances or filing motions in 9 cases more than 6 months after assuming office.  Commission on Judicial Performance v. Watts (Mississippi Supreme Court September 9, 2021).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge without pay for 1 month for making sexist and misogynistic comments that reflected his religious beliefs to a male defendant charged with domestic violence.  In the Matter of Brister, Order (New Jersey Supreme Court September 16, 2021).
  • Based on the judge’s agreement, the Tennessee Board of Judicial Conduct suspended a judge for 30 days with pay for undignified and discourteous comments made in 2 cases on the same day; the judge was also ordered to complete a judicial ethics program addressing demeanor from the bench.  In re Hinson, Order of suspension (Tennessee Board of Judicial Conduct September 7, 2021).
  • The Texas State Commission on Judicial Conduct publicly admonished an appellate justice for, after a jury found a defendant guilty of murdering a little girl in a trial over which the judge had presided while still a trial judge, telling the defendant that he “should die in a locked closet.”  Public Admonition of Burns (Texas State Commission on Judicial Conduct August 19, 2021), appealed to a Special Court of Review.
  • Based on the judge’s consent, a settlement agreement, and a stipulated formal complaint, the Vermont Judicial Conduct Board publicly reprimanded a judge for using her position as assistant judge to approve and receive a $2,000 merit bonus, creating the appearance of impropriety.  In re Ramsey, Stipulated public reprimand with order (Vermont Judicial Conduct Board August 21, 2021).

Virtual National College on Judicial Conduct and Ethics

Remember to register 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

See the schedule below.  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.

  • 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.

Schedule

Thursday October 28

12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
Determining the appropriate sanction in judicial discipline cases – Part 1

1:00-1:15 EDT/12:00-12:15 CDT/11:00-11:15 MDT/10:00-10:15 PDT & MST Break

1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
Determining the appropriate sanction in judicial discipline cases – Part 2

2:15-2:30 EDT/1:15-1:30 CDT/12:15-12:30 MDT/11:15-11:30 PDT & MST      Break

2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
Crossing the line and training to prevent it:  #CourtsToo

Friday October 29

12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
Abuse of the criminal contempt power and judicial discipline

1:00-1:15 EDT/12:00-12:15 CDT/11:00-11:15 MDT/10:00-10:15 PDT & MST Break

1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
When judges speak up

2:15-2:30 EDT/1:15-1:30 CDT/12:15-12:30 MDT/11:15-11:30 PDT & MST                    Break

2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
Lessons learned:  A decade plus of judges on social media

Session descriptions

Determining the appropriate sanction in judicial discipline cases
Thursday October 28
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.  ModeratorsJohn 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
Thursday October 28
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.  ModeratorsKimberly 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.

Abuse of the criminal contempt power and judicial discipline
Friday October 29
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
Friday October 29
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.)  ModeratorsRaymond 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
Friday October 29
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.  ModeratorsJacqueline Habersham, Executive Director, Texas State Commission on Judicial Conduct  •  Cynthia Gray, Director, Center for Judicial Ethics, National Center for State Courts.

Throwback Thursday

20 years ago this month:

  • Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a part-time municipal court judge and fined him $1,500 for (1) his conduct during the representation of a client charged with assaulting his wife and using his official capacity to have a National Crime Information Center criminal history run on the client’s ex-wife’s current husband to use in a child custody hearing subsequent to the divorce; and (2) treating a 17-year-old girl who was a defendant in a traffic case and her mother intemperately and having the mother arrested for contempt.  Commission on Judicial Performance v. Gunter, 797 So. 2d 988 (Mississippi 2001).
  • Based on the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a former judge for soliciting support and votes for his re-election from defendants and attorneys appearing before him during court.  In re Stephenson, 552 S.E.2d 137 (North Carolina 2001).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate for (1) purchasing items from a distraint sale conducted by his office; (2) personally serving documents on parties to actions pending in his court and falsifying the affidavit of service; (3) failing to respond to several circuit court orders requiring him to file returns in appeals from his court; (4) failing to monitor his official accounts, review his official bank statements, or supervise his clerks to ensure that they were properly executing their financial and accounting duties; and (5) misplacing documents in a matter pending before him, causing an unreasonable delay in the disposition of the case.  In the Matter of Thompson, 553 S.E.2d 449 (South Carolina 2001).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for calling an attorney ex parte to ask whether the attorney had told the defendant in a civil case she could charge a management fee for certain properties.  In re McCulloch, Stipulation, Agreement and Order (Washington State Commission on Judicial Conduct October 5, 2001).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for (1) engaging in a pattern or practice of accepting guilty pleas without obtaining proper written statements from the defendants as required by law, and (2) banishing defendants from the municipality in at least 3 cases.  In re Reid, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct October 5, 2001).

“Secondary judicial system for select defendants”

Based on their agreements to resign and never to seek judicial office, the West Virginia Judicial Investigation Commission publicly admonished two former magistrates for dismissing criminal charges in exchange for donations to a charitable organization pursuant to motions from 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).  The Commission found that, by dismissing criminal charges in exchange for donations to a charitable organization, the magistrates “created the appearance of selling justice” in their courtrooms and that, by going along with the prosecutor’s office, the magistrates “created a secondary judicial system for select defendants.”

The St. Marys Police Department had a non-profit program called “Slow Down for the Holidays” to raise money to provide Christmas presents for children in the community.  During the final 2 or 3 months of the year, during a traffic stop, police had the option of giving a driver a flyer that indicated that the driver could face their criminal charges or make a $50 donation to the program.  If the driver chose the donation, the municipal court would dismiss the citation, and the driver would avoid criminal fines, court costs, and a conviction on their record.  All of the citations were for non-serious traffic offenses such as speeding, and none involved jail time.  In 2018, the Pleasants County Sheriff’s Office joined the “Slow Down for the Holidays” program.

Also in 2018, the county prosecutor’s office decided to offer a few defendants charged with misdemeanors the opportunity to donate to the program in exchange for dismissal of their charges.  During the holiday months in 2018, 2019, and 2020, the prosecutor’s office offered at least 19 defendants the opportunity to avoid the consequences of their charges by donating to the program.  The cases involved more serious charges than traffic charges, and the defendants were required to donate $200 to $5,000, not $50 a charge.  Upon proof of a donation, the prosecutor’s office would make a motion to dismiss the charges to one the magistrates, and the magistrates would grant the motion.

The 2 magistrates dismissed 17 cases in total in which donations had been made to the program.  Of those, 12 involved criminal charges that would have resulted in an enhanced penalty if the defendant had been charged again; by dismissing the charges, the magistrates had ensured that the defendants would not receive a judgment of guilty that could later have been used to enhance criminal penalties.  Similarly, in 16 of the cases, the dismissals allowed the defendants to avoid receiving points on their license or a possible license suspension.

The magistrates were aware that there were no legal defects in the cases and that the only reason for the motions to dismiss was that the defendants had donated money to the police department charity.  As the magistrates admitted, no law, court rule, or caselaw allowed them to dismiss cases because the defendants donated to charity; they had not investigated whether there was any authority for the dismissals or asked for advice from other magistrates, judges, or the Commission, but had relied on the representations of the prosecutor’s office. 

Throwback Thursday

25 years ago this month:

  • Pursuant to an agreement, the Massachusetts Commission on Judicial Conduct publicly reprimanded a judge and suspended him for 2 months without pay for communicating ex parte with a judge presiding over an action seeking to evict a tenant from a unit in a condominium building where the respondent judge was a trustee of the condominium association and owned 2 units; the judge also agreed to the assignment of a mentor judge and training.  In the Matter of Jarasitis, Press Release (Massachusetts Commission on Judicial Conduct October 31, 1996).
  • Adopting the recommendation of the Commission on Judicial Performance, the California Supreme Court publicly censured a judge for (1) as a matter of routine practice during the in-custody misdemeanor arraignment calendar, failing to consider release of defendants on their own recognizance or to consider probation or concurrent sentencing for defendants pleading guilty or no contest at arraignment; (2) refusing to appoint counsel to assist defendants; and (3) failing as required by law to inform defendants pleading guilty or no contest of the negative consequences a conviction could have on a non-citizen with regard to immigration.  In re Whitney, 922 P.2d 868 (California 1996).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) sending numerous harassing, threatening, and disparaging anonymous communications to a lawyer with whom he had a personal feud; (2) publicly disseminating a list of “13 suggestions for confrontational or intentionally offensive criminal defense attorneys;” (3) publicly criticizing a defense being raised in a pending proceeding before his court; (4) filing a false report to a police official; and (5) giving testimony during the Commission’s investigation that was false, misleading, and lacking in candor.  In the Matter of Mogil, 673 N.E.2d 896 (New York 1996).

A sampling of recent judicial ethics advisory opinions

  • A court that has partnered with a local mediation center to create a voluntary, neutral mediation program intended to help manage an anticipated influx of eviction cases may provide information about the program to both landlords and tenants in eviction cases and may display that information in highly visible locations near courtrooms and elsewhere in the courthouse.  Nebraska Opinion 2021-2.
  • A judge may complete a survey from a social services agency about the number of eviction petitions, proceedings, and warrants filed or pending in the judge’s court to allow the agency to assess the likely impacts of lifting a moratorium on evictions, but such participation is voluntary and in the judge’s discretion.  New York Opinion 2021-89.
  • A court administrator may accept an unsolicited one-time cash gift from a bar association to fund incentive gifts in problem-solving courts.  Florida Opinion 2021-12.
  • A judge may provide a sworn statement in response to a written request from the office of inspector general for a law enforcement department investigating the conduct of a police officer during a trial in the judge’s court.  Florida Opinion 2021-13.
  • A judge may not monitor police communications on police scanners or police scanner apps to learn who has been arrested and will likely come before the judge’s court.  New York Opinion 2021-99.
  • Unless the judge is currently the presiding judge or assistant presiding judge, a superior court judge’s child may be included on the court’s list of pro tem commissioners and pro tem judges if the judge will not be involved in deciding whether their child will be included on the list or called to serve, will not review their child’s rulings, and will not supervise their child in their role as a pro tem.  Washington Opinion 2021-3.
  • Remittal of a judge’s disqualification requires on-the-record, individual, and specific consent by all parties that have appeared and not defaulted.  New York Opinion 2021-85.
  • A judge may contact their legislators to ascertain what steps are necessary to initiate legislation that would create an additional judgeship in their court to handle an increased caseload and may enlist the legislator’s support for such legislation.  New York Opinion 2021-91.
  • A judge may appear in a video sponsored by a bar foundation that describes the services provided by and through the local legal aid society and another pro bono legal services organization.  Florida Opinion 2021-9.
  • A judge who is a member of the National Association of Women Judges may express an opinion among the membership about a proposed resolution calling for what appears to be a boycott of states where laws have “voided or repealed protections against discrimination on the basis of sexual orientation, gender identity or gender expression, or have enacted laws that authorize or mandate [such] discrimination.”  A judge’s continued membership in an organization that issues a resolution calling for such a boycott may pose problems under the code of judicial conduct.  Florida Opinion 2021-11.
  • A judge may sell raffle ticket to members of their family to raise funds for a not-for-profit charitable or civic entity that is renovating a historic building for community use.  New York Opinion 2021-88.
  • A judge may serve on the board of directors of a local not-for-profit organization that provides educational programs to children and adults with autism if the judge does not have the authority to make referrals to the organization.  New York Opinion 2021-109.
  • A family division judge may speak on subjects related to family law on a podcast hosted by their spouse, for which the spouse receives compensation from a sponsor, provided the number of appearances by the judge is limited and their comments are purely informational, do not constitute legal advice, and do not include commentary on pending cases or legal controversies.  A judge may not post a congratulatory message on LinkedIn when a book written by the judge’s spouse is released.  Florida Opinion 2021-14.
  • A judge may, as a guest of their spouse, attend a multi-day annual conference for prosecutors, located in a different part of the state from where they preside, and may attend the association’s annual dinner, a social event at which the only business conducted is the installation of new officers.  New York Opinion 2021-95.
  • A judge who is in a contested election may continue to be a regular guest on a public radio station’s local news talk show to discuss courthouse administration and law-related activities in the community when no questions are taken from the public, the station does not promote the judge’s appearances, and the judge does not give legal advice, discuss pending cases, or receive financial compensation.  Florida Opinion 2021-10.
  • A judge may be named as a trustee of a friend’s trust if the judge would not be required to serve until the death of both the friend and the friend’s spouse, but the judge should tell the friend that the judge would be ineligible to serve as trustee if they are a member of the judiciary at the time the appointment takes effect.  Florida Opinion 2021-8.
  • A judge may not prepare an uncontested divorce package for a former client for whom they had prepared a separation agreement while in private practice.  New York Opinion 2021-87.
  • At the request of a lawyer representing the estate of a former client, a judge may provide a “family tree affidavit” required in a surrogate court from a non-family member possessing personal knowledge of the deceased’s marital status, heirs, and family tree.  New York Opinion 2021-96.
  • A new judge transitioning from private practice may accept payments from their former firm reflecting a flat fee or the number of hours billed at an agreed-upon hourly rate for legal services performed and may accept contingent fees once the contingency occurs based on quantum meruit for services performed prior to leaving the former law firm.  The judge must report on their annual financial disclosure statement any income from a former law firm.  A judge must recuse themself from cases in which lawyers from their former law firm appear as long as the judge is receiving or anticipates receiving fees or other payments from the firm.  A judge cannot receive in perpetuity from their former firm retirement benefits based on a percentage of fees earned on legal services provided by other lawyers to the judge’s former clients during an agreed-upon time after retirement.  A judge may not continue to participate in a law firm’s partnership for purposes of receiving fees or other payments from the firm.  Ohio Opinion 2021-6.