Monthly Archives: November 2021

More Facebook fails

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The Tennessee Board of Judicial Conduct publicly reprimanded a judge for (1) providing a “legal tip of the day” on Facebook and (2) having his law license suspended twice for failing to comply with continuing legal education requirements.  Webb (Tennessee Board of Judicial Conduct November 5, 2021).

In 1 “legal tip of the day,” the judge advised that “when stealing stealth is key.  You want to blend in with your surroundings.”  As an example, he explained, “You and your 5’10 sister walk in [Walmart] with green hair and green toenails and green flip flops that smack the back of your feet with every step you make and you don’t blend in and you are caught with three steaks shoved into your pants.  You forgot to be stealth.”  In another Facebook post, the judge stated, “remember people, the goal of criminal and bad behavior is to get away with it.”  As an example, he described 2 women arguing outside the courthouse when one “scream[s] out ‘b*tc* what’s hood!’”  The judge added that “screaming and cursing and fighting in front of police officers 10 out of 10 times is detrimental to ones [sic] freedom.”  In another post, the judge wrote that it is “downright damn humiliating when [police are] pulling crack from your crack!  Find someplace else to hide your stash.”

The judge explained that his posts were “designed to get a laugh and to make people think about life choices.”  However, the Board explained that, “regardless of motivation, it is neither dignified nor appropriate for a judge, especially one who hears criminal cases, to be providing legal advice such as ‘when stealing stealth is key’ or urging the public to be mindful that ‘the goal of criminal and bad behavior is to get away with it.’”  Noting that the Tennessee Supreme Court has stated that “’lawyers who choose to post on social media must realize they are handling live ammunition,’” the Board concluded that the judge’s social media posts did not reflect the “caution and reflection” required for judges “choosing to participate in inherently public platforms . . . .”

When the Chattanooga Times Free Press published an article about the second suspension of his law license, the judge posted on Facebook:  “Well damn!  Give me a black hat and a black horse and call me a desperado, I feel like I was in [sic] just busted.”

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Based on the final report of the Board of Professional Conduct, which was based on stipulations, the Ohio Supreme Court suspended a judge for 6 months for communicating inappropriately with a court reporter on Facebook and by text and phone calls, with the entire suspension stayed conditioned on the judge receiving 8 hours of training on sexual harassment and refraining from further misconduct.  Disciplinary Counsel v. Berry, Order (Ohio Supreme Court November 3, 2021).

In October 2019, after the judge posted pictures of the courthouse’s 100-year celebration to his Facebook page, Jane Doe liked some of the pictures.  In a private Facebook message, the judge thanked Doe for “liking” the pictures and asked how she was associated with the courthouse.  Doe replied that she was a court reporter assigned to a different judge’s courtroom.  The judge encouraged her to “stop by [his] Chambers in Room 226 [because he] look[s] forward to meeting [her]!!”  The judge sent Jane Doe another private message that said, “Have a Great Weekend.  You’re ‘Lurking’ and didn’t come down to my Chambers to visit.”  After a lengthy conversation on Facebook, the judge asked Doe for her cell phone number.  The parties stipulated that, if called to testify, Doe would state that she felt she could not refuse to give her personal number to him because he was a judge.

One Saturday, the judge called Doe and talked about his divorce.  If called to testify, Doe would testify that the judge sounded intoxicated during the call and that he used profanity.  The judge denies that he was intoxicated and has no specific recollection regarding whether he used profanity.  During that call, the judge asked Doe out to lunch, but she declined.  On October 30, at 11:24 a.m., the judge sent Doe a private Facebook message saying, “Hey come down to visit today or soon.  I may have an ‘Offer you can’t Refuse!!’”

On November 3, the judge asked Doe out for lunch or drinks after work by Facebook.

Happy Sunday!!  Thank God We don’t have to Watch & Witness our Horrid Bengals today!!  A true Blessing.  FYI, I’m on “Staycation” all this coming week, and Girl do I need it.  The irony of “Staycation” is that you run errands and spend more $$ while off work than while We do while at work.  So, I’ll do all the things, couldn’t do during a normal work week, and I’d like to invite you to accompany me for lunch or for drinks after work.  I Hope I’m not being too forward or pushy in inviting you to do something.  So, simply le me know if you’d like to meet for lunch or drinks this coming week or otherwise.  I’m a “Big boy” so I know how to accept and respect the word, “NO”.  So please be Honest in your response.  Again, I hope you’re not offended because this is not my intent whatsoever.  So, kindly RSVP either way.  TY!!

Doe did not respond.

The Facebook communications between the judge and Doe became increasingly one-sided.  After asking her out, the judge sent her 72 Facebook messages; she replied to only 15.  Most of his message were links to videos, photographs, or quotes on the internet, not personal messages.  Many of the links were to overtly political and partisan content, for example:

  • An edited video from the Late Show with Stephen Colbert showing the crowd at a baseball game singing for the removal of President Donald Trump.
  • An edited video in which Trump begins to smoke and then catches on fire during a prayer session.
  • An image of Trump saying “APPRENHEND THAT CAT!” with an image of a cat responding, “YOU AIN’T GRABBING THIS P***Y, YOU TANGERINE LOOKING MF!”
  • A parody video entitled “The Donald Trump Prayer,” calling for the divine removal of Trump.
  • A video from Trae Crowder, the “Liberal Redneck” in which he graphically and profanely insults Trump supporters.

The judge also sent Doe messages with links to offensive and sexually explicit videos, for example:

  • “How to Build a Resume for a Hoe’” featuring comedian Tiffany Haddish joking about helping female prostitutes build their resume; the video contains profanity and crude, sexually explicit language.
  • “How to End a First Date,” a viral YouTube video with crude, sexually explicit language in which a woman is negotiating sexual favors in exchange for gifts with a man who is seeking commitment-free sex from her, whom he describes as dumb and boring.

Doe did not respond to the judge’s messages but did bring them to the attention of her boss and a co-worker, who informed court administration.  After an investigation, court administration referred the matter to Disciplinary Counsel.

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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

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5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to disqualify himself from a case brought by a family member against the school board, engaging in an ex parte communication with a party’s representative, and making public statements at a school board meeting about the matter; the Commission also directed the judge to attend the judicial ethics sessions at the limited jurisdiction new judge orientation.  Yellowhorse, Order (Arizona Commission on Judicial Conduct November 14, 2016).
  • The Pennsylvania Court of Judicial Discipline removed a former judge based on his no contest plea to 2 state charges of official oppression for taking advantage of his official capacity by demanding that an adult female model lingerie at her residence in exchange for vacating her outstanding fines and costs and having unwanted sexual contact with another woman.  In re Joy, Opinion (October 7, 2016); Order (Pennsylvania Court of Judicial Discipline November 29, 2016).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 6 months without pay for Facebook posts about a case, political matters, and a fund-raiser for a local church.  In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016).
  • The Utah Supreme Court approved implementation of the Judicial Conduct Commission’s order of reprimand, based on a stipulation, of a judge for serving as president of the OCA-Asian Pacific American Advocates.  In re Kwan, Order (Utah Supreme Court November 4, 2016).

Fall Judicial Conduct Reporter

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

• Judges ordering charitable contributions
• Judicial conduct complaint formats
• Business and financial activities
• Recent cases
Celebratory luncheon: Phillips (Texas Commission 2021)
“A guy who wears a costume”: In re Hinson (Tennessee Board 2021)
“My human”: Inquiry Concerning Hatfield (Kansas Commission 2021)
Above the law: In re DiClaudio (Pennsylvania Court 2021)
Election meddling:
In re Hughes, 319 So. 3d 839 (Louisiana 2021)
Inquiry Concerning Howard, 317 So. 3d 1072 (Florida 2021)
Inquiry Concerning Cupp, 316 So. 3d 675 (Florida 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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10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for advertisements for his wedding services on his personal web-site.  Jayne, Order (Arizona Commission on Judicial Conduct November 16, 2011).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for several improper ex parte communications in a case. Jayne, Order (Arizona Commission on Judicial Conduct November 16, 2011).
  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline & Disability Commission publicly reprimanded a judge for driving while intoxicated.  Harper, Letter of Reprimand (Arkansas Judicial Discipline & Disability Commission November 18, 2011).
  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline & Disability Commission publicly censured a judge for presiding while intoxicated and other public incidents in which he was under the influence of alcohol.  Harper, Letter of Censure (Arkansas Judicial Discipline & Disability Commission November 18, 2011).
  • The California Commission on Judicial Performance publicly admonished a former judge for (1) making comments in 1 case about the district attorney’s office that created an appearance of bias and were disparaging, undignified, and discourteous; (2) failing to disclose that he was actively considering running for district attorney in a case in which the conduct of the incumbent was an issue; (3) recommending that the deputy district attorneys’ association delay its endorsement decision in the district attorney campaign; and (4) allowing his judicial title to be used to raise money to retire debt from his campaign for district attorney.  In the Matter of Zellerbach, Decision and Order (California Commission on Judicial Performance November 3, 2011).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge for (1) attempting to force himself into a court employee’s personal and private life; (2) accepting a campaign contribution from his mother that far exceeded the $500 statutory limit; (3) filing a notice of appearance to represent his mother in foreclosure proceedings and communicating with counsel for the mortgagee on her behalf; and (4) offsetting a juvenile’s court costs in exchange for the juvenile’s earring.  Inquiry Concerning Turner, 76 So. 3d 898 (Florida 2011).
  • The Illinois Courts Commission publicly censured a judge for a conversation with another judge about a case involving a shop owner with whom the judge had discussed detailing his car.  In re Simpson, Order (Illinois Courts Commission November 7, 2011).
  • • The Indiana Commission on Judicial Qualifications publicly admonished a judge for an invitation to a campaign fund-raiser that gave the appearance that specific contributions could result in particular rulings. Public Admonition of Pierson-Treacy (Indiana Commission on Judicial Qualifications November 29, 2011).
  • Agreeing with the findings and recommendation of a 3-member hearing panel, the Minnesota Supreme Court suspended a judge without pay for 6 months and publicly censured her for failing to reside within her judicial district for 3 months in 2009 and failing to cooperate and be candid and honest during the Board’s investigation of her residency status.  Inquiry into Karasov, 805 N.W.2d 255 (Minnesota November 2011).
  • The Mississippi Supreme Court suspended a judge without pay for 30 days and publicly reprimanded her for attempting to influence a Florida judge in a matter involving a defendant who was a member of a family with whom the judge was friends.  Commission on Judicial Performance v. Dearman, 73 So.3d 1140 (Mississippi 2011).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for regularly holding court in his chambers for approximately 7 years.  In the Matter of Riordan, Determination (New York State Commission on Judicial Conduct November 9, 2011).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for intervening with a police officer about a friend’s traffic case that was returnable before his co-judge.  In the Matter of Hunt, Determination (New York State Commission on Judicial Conduct November 9, 2011).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for using a palm card in her campaign that could be construed as representing she had been endorsed by the New York Times when she had not received that endorsement.  In the Matter of Michels, Determination (New York State Commission on Judicial Conduct November 17, 2011).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a part-time judge for representing 4 clients in matters in his court in the 7 months following his appointment.  In the Matter of Shanley, Determination (New York State Commission on Judicial Conduct November 14, 2011).

Recent cases

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  • Following a trial on the complaint of the Judicial Inquiry Commission, the Alabama Court of the Judiciary removed a judge from office for (1) engaging in a pattern of racist demeanor; (2) engaging in a pattern of sexually inappropriate demeanor; and (3) abusing the prestige of judicial office to seek early release of a female inmate and to seek aid for a friend’s sale of a life insurance policy.  In the Matter of Jinks, Final judgment (Alabama Court of the Judiciary October 29, 2021). The judge has filed an appeal from the decision.
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for being tardy for court proceedings; frequently failing to issue timely rulings and using pro tem judges to clear her queue; being frequently absent from the court during normal court hours when no matters were on the calendar; and performing weddings during court hours for cash.  Sears, Order (Arizona Commission on Judicial Conduct September 17, 2021).
  • Affirming in part, modifying in part, and reversing in part the findings of a hearing panel, the Michigan Attorney Discipline Board suspended the law license of a former judge for 180 days for engaging in numerous ex parte communications with his friend, an attorney who routinely appeared in front of him; failing to disclose the relationship or disqualify himself in matters in which his friend was involved; and failing to disclose his friendship with the attorney to the city council when advocating for the renewal of the friend’s firm’s indigent representation contract and for the payment of fees billed by the firm.  Grievance Administrator v. Easthope, Opinion (September 17, 2021), Notice of suspension (Michigan Attorney Discipline Board October 19, 2021).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a former judge for making a remark reasonably interpreted as sexual innuendo to a female defendant in response to her inquiry about whether she owed any bail.  In the Matter of Rodriguez, Order (New Jersey Supreme Court October 15, 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; in February and June, a hearing had been held before a referee on the written complaint filed by the Commission in October 2019 alleging that the judge threatened the life of a Black town employee who was in a romantic relationship with the judge’s White daughter, used a racial epithet when discussing the man on multiple occasions, and repeatedly expressed opposition to interracial marriage.  In the Matter of Sucher, Decision and order (New York State Commission on Judicial Conduct October 28, 2021).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for operating his motor vehicle while under the influence of alcohol and refusing to cooperate with police officers after they stopped his car and attempted to arrest him.  In the Matter of Jacobsen, Determination (New York State Commission on Judicial Conduct October 8, 2021).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 18 months without pay for (1) soliciting funds for the Red Cross on his Facebook page and (2) submitting a certification about a party’s character and legal position in litigation; the judge also agreed to complete the National Judicial College’s online judicial ethics course, “Ethics and Judging: Reaching Higher Ground.”  In the Matter of Johns (South Carolina October 13, 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 judge; in a notice of formal proceedings, the Commission had alleged that the justice of the peace (1) dismissed a seat belt citation and speeding citation for a friend without complying with the code of criminal procedure and fabricated a court record with respect to the speed citation; (2) made Facebook posts or allowed posts to appear on her Facebook page that (a) promoted, advertised, and/or expressed her support for consumer products, businesses, and other commercial endeavors; (b) indicated her support for and association with law enforcement, the Blue Lives Matter movement, and the U.S. Border Patrol; (c) expressed her contempt or disdain for criminal defendants; (d) promoted fundraising efforts by civic, charitable, and educational organizations and made directed solicitations for personal and local causes; and (e) promoted the campaigns of several candidates for public office; (3) created and forwarded a naked selfie from her cell phone to one or more persons in her community, which was widely disseminated and shared online, and gave untruthful testimony to the Commission about the selfie; and (4) failed to timely respond to Commission inquiries and failed to provide court records as requested.  Fernandez, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct October 22, 2021).

Throwback Thursday

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20 years ago this month:

  • The Louisiana Supreme Court suspended for 30 days a court of appeal judge who had failed to restrain his temper on 2 days, putting into play events that culminated in a physical fight between him and another judge on the court.  In re Jones, 800 So. 2d 828 (Louisiana 2001).
  • Pursuant to the judge’s waiver of formal hearing, the Nebraska Commission on Judicial Qualifications publicly reprimanded a judge for engaging in communications with litigants in a domestic relations matter pending before him concerning the wife’s failure to exchange certain personal property.  In the Matter of Spethman (Nebraska Commission on Judicial Qualifications November 29, 2001).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for (1) engaging in a course of conduct, arising out of a personal relationship with his law clerk, that detracted from the dignity of his office, seriously disrupted the operations of the court, and constituted an abuse of his judicial and administrative power, and (2) issuing an ex parte order terminating the suspension of the driver’s license of a long-time acquaintance.  In the Matter of Going, 761 N.E.2d 585 (New York 2001).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for, on numerous occasions over several years, urging an attorney to agree to share a substantial legal fee with the judge’s wife.  In the Matter of Ohlig, Determination (New York State Commission on Judicial Conduct November 19, 2001).
  • Approving an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured  a non-lawyer judge for (1) presiding in unrelated cases involving 3 youths the judge believed had vandalized his residence, twice making comments while presiding in cases involving one of the youths that conveyed the appearance that he was biased, and giving the maximum fines to the 3 defendants when they appeared before him in unrelated cases after telling his clerk he intended to do so; and (2) publicly announcing a policy concerning the sentence he would impose in certain drunk-driving cases.  In the Matter of Tracy, Determination (New York State Commission on Judicial Conduct November 19, 2001).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for closing his courtroom for civil and criminal proceedings that should have been open to the public, failing to advise all defendants charged with offenses for which a sentence of a term of imprisonment was authorized of the right to assigned counsel, and failing to assign counsel to eligible defendants charged with non-vehicle and traffic infractions as required by statute.  In the Matter of Shannon, Determination (New York State Commission on Judicial Conduct November 19, 2001).
  • Approving an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for advising the press that he had changed his view of the law with respect to death-threat cases soon after being criticized for a decision in such a case and, while a candidate for another judicial office, stating what position he would take in future death-threat cases.  In the Matter of Dickerson, Determination (New York State Commission on Judicial Conduct November 19, 2001).
  • Approving an agreement statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) failing to advise his administrative judge of his planned absences from the court for most of 31 consecutive days to attend a broadcasting course and attending the classes without approval for 8 days; and (2) presiding over 10 matters involving an attorney with whom he had a romantic relationship and making 2 telephone calls to the attorney’s employer to complain about her supervisor.  In the Matter of DiBlasi, Determination (New York State Commission on Judicial Conduct November 19, 2001).
  • Approving an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) engaging in an improper ex parte conversation with a prosecutor’s supervisor; (2) in 3 cases, misusing bail to attempt to coerce guilty pleas; (3) holding 2 defendants in custody without complying with summary contempt procedures; (4) excluding 2 Legal Aid Society attorneys from the courtroom without complying with the requirements of a summary contempt; (5) telling a defendant’s mother that if she wanted to come to an American courtroom, she could learn to speak English or leave; and (6) telling a defendant to go to her embassy to obtain proof of legal residency as a requisite for access to legal services.  In the Matter of Recant, Determination (New York State Commission on Judicial Conduct November 19, 2001).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for failing to report any cases or remit court funds to the state comptroller.  In the Matter of Hrycun, Determination (New York State Commission on Judicial Conduct November 19, 2001).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for committing a defendant to jail after the defendant stated that he was unable to pay a $100 fine for a traffic infraction and failing to advise the defendant of his right to be resentenced.  In the Matter of Nichols, Determination (New York State Commission on Judicial Conduct November 19, 2001).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for (1) driving his court clerk to a county fair to drop off a candidate’s posters at a political party’s booth; (2) stating in court that he was tired of the district attorney’s office’s refusal to offer an adequate plea bargain and alleging that the district attorney was making prosecutorial decisions for political reasons; (3) ordering a victim’s attorney to leave the courtroom during a public trial; and (4) signing a judgment without holding a hearing on the contested issues or according the pro se defendants full opportunity to be heard.  In the Matter of Williams, Determination (New York State Commission on Judicial Conduct November 19, 2001).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) referring to the daughter of a defendant charged with harassment, stating that he would have “slapped her around” himself, and deciding not to issue an order of protection he had been considering; (2) stating that he could not “do that to a fellow truck driver” in declining to suspend a defendant’s driver’s license pending prosecution; (3) questioning a defendant charged with failure to yield after he pleaded not guilty; (4) failing to advise a defendant charged with contempt of his right to assigned counsel; (5) holding a hearing without administering an oath to the witnesses; (6) failing to promptly disqualify himself from a harassment charge where he had a bias in favor of one of the parties; and (7) as a matter of practice, failing to advise defendants of their right to assigned counsel in violation of a statute.  In the Matter of Moore, Determination (New York State Commission on Judicial Conduct November 19, 2001).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for (1) convicting a defendant of a reduced speeding charge based solely upon receipt of a plea offer from the prosecution, without a trial or guilty plea, and imposing a fine that exceeded the maximum permitted by law; and (2) having a regular practice of imposing fines based on the original charge, rather than the charge for which the defendants had been convicted.  In the Matter of Christie, Determination (New York State Commission on Judicial Conduct November 19, 2001).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) permitting another judge to participate in a conference in chambers and not rebuking him when he made derogatory comments about the complaining witness, (2) failing to report the other judge’s misconduct to the Commission, and (3) failing to maintain complete and accurate records of the receipt and disbursement of court funds and failing to timely deposit all court funds.  In the Matter of Restino, Determination (New York State Commission on Judicial Conduct November 19, 2001).

Tickets to sporting events

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Judges have been disciplined for accepting free tickets to baseball, football, or basketball games because there is no sporting events exception to the gifts rule.

  • Approximately 15 times over 3 years, a judge accepted free tickets to Florida Marlins games with a face value of $16 to $18 each from 2 members of a law firm that were before him in at least 2 cases during that period.  Inquiry Concerning Luzzo, 756 So. 2d 76 (Florida 2000) (public reprimand).
  • A judge accepted and used 4 tickets to a college football game from a husband involved in divorce proceedings pending before him.  In re Daghir, 657 A.2d 1032 (Pennsylvania Court of Judicial Discipline 1995) (public reprimand and 7-day suspension without pay for this and other misconduct).
  • A judge accepted in open court 2 University of Michigan football tickets (worth $92) from an attorney appearing before him.  In re Haley, 720 N.W.2d 246 (Michigan 2006) (public censure).
  • A judge accepted 8 tickets to a Pittsburgh Steelers games from an attorney who appeared in numerous cases before him.  Office of Disciplinary Counsel v. Lisotto, 761 N.E.2d 1037 (Ohio 2002) (public reprimand).
  • A judge accepted at least 1 free San Antonio Spurs ticket, valued at approximately $230, from an attorney who wrote bail bonds and/or practiced in her court, and the judge sat in the attorney’s reserve seats on several occasions.  Public Admonition of Guerrero (Texas State Commission on Judicial Conduct March 26, 2010).
  • A judge accepted 4 Seattle Mariners tickets (with a total face value of $232) from an attorney who regularly appeared before him.  In the Matter of Gaddis, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 10, 2004) (public reprimand for this and other misconduct).

Throwback Thursday

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25 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for using the court’s computer to obtain confidential information from records of the Department of Motor Vehicles and disclosing them to a friend.  Public Admonishment of Smith (California Commission on Judicial Performance November 25, 1996).
  • Agreeing with the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for using campaign materials referring to himself as “THE Qualified “JUDGE” even though he had only sat previously as an ad hoc judge.  In re Cascio, 683 So. 2d 1202 (Louisiana 1996).
  • Adopting the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for delays in 2 cases and for failure to report the cases.  In re Tuck, 683 So. 2d 1214 (Louisiana 1996).
  • Adopting the recommendation of the Judiciary Commission based on a stipulation of uncontested facts, the Louisiana Supreme Court removed a judge from office for owning and operating a company that provided pay telephone service for all inmates in the local parish jail.  In re Johnson, 683 So. 2d 1196 (Louisiana 1996).
  • Agreeing with the findings of the Board of Commissioners on Judicial Standards, the South Carolina Supreme Court removed a judge from office for issuing an arrest warrant at the request of his daughter and releasing the arrested man from jail after the arrestee paid his daughter $500.  In the Matter of McKinney, 478 S.E.2d 51 (South Carolina 1996).

“Alarming insensitivity” and “heightened sensibilities”

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The New Jersey Supreme Court recently sanctioned 2 judges for comments to litigants that had “the clear potential to suggest” bias against women in one case and had been reasonably interpreted as sexual innuendo in the other.

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 during a video hearing on domestic violence charges.  In the Matter of Brister, Order (New Jersey Supreme Court September 16, 2021).  The judge admitted the factual allegations and conceded that his language was injudicious and violated the code of judicial conduct. 

On February 21, 2019, the judge presided over a matter in which an incarcerated defendant with multiple domestic violence charges appeared over a video conference link.  During the proceeding, the judge stated:

I’m going to tell you like I tell a lot of people with this same charge because all of these charges are the same.  We as men – and I can speak to you as man, because I’m a man, as well, we get frustrated with the women human beings because we try to straightened out a creation because they was created with a curve, but we as men, we think we are above creation, and we can straighten it out.  No matter how much you try, or how you try to straighten out that curve, you can never do it.  We get frustrated, and then — but in our frustration you can’t come at them like you’re Mike Tyson, and they’re in the ring like they’re Leon Spinks.  You can’t do it.  You can’t punch, you can’t hit.  At best, you treat as if you’re holding a feather, just to let them know you’re the man, and you’re in control.  But on each one of these five complaints it said you went at ‘em like Mike Tyson.

In response to the Committee’s question “about what exactly he meant,” the judge “described his language as a ‘poor choice of words’ and admitted that his comments stemmed from his personal religious belief concerning ‘creation from a higher power,’” and referenced “the biblical origin story in which Eve was created from the rib of Adam.”

Noting the judge’s claim that he had been trying to provide guidance to the defendant about “how to more appropriately behave when experiencing feelings of frustration,” the Committee explained that, regardless of his intent, the judge’s statements were disparaging toward women, “sexist and misogynistic,” and “had the clear potential to suggest” that the judge was biased against women.  The Committee also found that the “clear religious implications of Respondent’s remarks are equally inappropriate and wholly misplaced in a court of law” and that his “integration of his personal religious beliefs into his judicial conduct” also violated the code of judicial conduct.

In aggravation, the Committee noted that the judge had received a private letter of censure addressing similar concerns about “the appearance of a bias in favor of a litigant of Respondent’s same faith.”  Although he had not received that letter until shortly after he made the current “problematic comments,” the judge had already received the Committee’s request to address the earlier matter.  The Committee found that, in both matters, the judge “demonstrated an alarming insensitivity . . . to the perception of bias . . . .”

In mitigation, the Committee noted the judge’s remorse and attempts at apology and found that his comments, “while unacceptable . . . , were made in good faith to dissuade the defendant from engaging in physical acts of violence.”  However, the Committee concluded that the mitigating factors were outweighed by the judge’s repeated “instances of poor demeanor and the appearance of bias” and that a 1-month suspension was justified.

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Adopting the findings and recommendation of the Committee, the New Jersey Court publicly reprimanded a former judge for making a remark to a female defendant that was reasonably interpreted as sexual innuendo.  In the Matter of Rodriguez, Order (New Jersey Supreme Court October 15, 2021).

During the first appearance of a female defendant charged with multiple drug offenses, after the defendant pled not guilty, the following exchange took place:

Assistant prosecutor:  Do we have to put bail on the record?
Public defender:  Oh, it’s an ROR bail.
Judge:  Your bail is ROR — you’re released on your own recognizance.
Defendant:  Okay.
Judge:  But you do have bail.  You have monetary bail.  You’re released on your own recognizance.
Defendant:  Okay.
Judge:  Okay?
Defendant:  Thank you.
Judge:  Do you understand?  You seem a little —
Defendant:  I’m like a little — ‘cause —
Assistant prosecutor:  Well, it’s confusing –
Defendant:  — I’m like, wait –
Assistant prosecutor:  — saying money bail or saying she doesn’t have to post anything.
Judge:  Yeah.  No.
Defendant:  Is it – do I owe you anything or –
Judge:  Not that you can do in front of all these people, no.

The assistant prosecutor, Lauren Casale, and a court services supervisor, Audra McEvoy discussed the incident and brought it to the attention of court administration.

The judge “consistently denied any impropriety or the appearance of an impropriety in his exchange with the defendant” and maintained that Casale and McEvoy “misunderstood his remark to the defendant as a sexual innuendo.”  The judge argued that he had been simply “’reiterating [to the defendant] that she need not make a payment to secure bail.’”  When testifying at the hearing, the judge “attempted to contextualize the social climate at the time of these events with reference to the ‘Me Too movement, Harvey Weinstein …, [and] Matt Lauer . . . .’”  The Committee described his testimony:

Cognizant that “people’s sensibilities as to sexual innuendos and saying things in the workplace were somewhat heightened,” Respondent maintained that his intent in making the subject remark was innocuous, i.e. to disabuse the defendant of any notion that she was required to post bail before leaving court that day. . . .  The offense expressed by AP Casale and CSS McEvoy, Respondent argued, was unreasonable and engendered by “their sensibilities, . . . their gender sexuality, . . . [and] their interactions with different types of people. . . .”

The Committee also noted that, although he denied it, there was evidence that the judge’s comment “may have been an attempt at humor,” noting that he had earlier in the proceeding joked about the defendant’s last name and that 4 of his character letters described his use of humor.  1 letter stated the judge used “quips” in his courtroom, and another stated that proceedings in his court often “took on a somewhat informal air.”

The Committee found that the judge’s statement was inappropriate, rejecting his defense as “unpersuasive.”  It explained:

The subject statement, on its face, suggests to its intended recipient that there was something she could do for Respondent in private, outside of the presence of those in the courtroom and unrelated to bail, that would satisfy her obligations in respect of the criminal charge.  Given the defendant’s ROR release, we find Respondent’s explanation incongruous and the witnesses’ interpretation of his remark as a sexual innuendo and their subsequent offense reasonable.  Regardless of his intent, Respondent’s statement had the clear potential to suggest to the defendant, as it did to AP Casale and CSS McEvoy, that she could avoid the consequence of her criminal charge if she were to do for Respondent, in private, something of a sexual nature.

Whether Respondent intended his words as a sexually suggestive remark, an attempt at humor, or something else, while Respondent knew or should have known that his choice of words was inappropriate because of the negative inferences which reasonably could, and, in this case, were drawn from the manner in which he phrased his response to the defendant’s inquiry.  Such remarks have no place in our judicial system and must be assiduously avoided by all members of the Judiciary, particularly its jurists.

Respondent’s introduction of sexual innuendo into a courtroom proceeding impugned the integrity of the Judiciary and the judicial process, sullied the dignity of those seeking redress in the court, and tainted the solemnity of the courtroom proceedings . . . .