Monthly Archives: December 2021

Property issues

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Discipline cases have held that it undermines public confidence in the judiciary for a judge to purchase property that is involved in litigation pending before the judge.

  • A judge signed an order authorizing the sale of a conservatee’s home, entered into an agreement to purchase the property, and approved an accounting that included the sale of the property to himself.  Inquiry Concerning Sullivan, Decision and order (California Commission on Judicial Performance May 17, 2002) (public censure for this and other misconduct).
  • A judge purchased real property from an estate being settled in his court and subsequently approved the executor’s final accounting.  Patterson v. Council on Probate Judicial Conduct, 577 A.2d 701 (Connecticut 1990) (public reprimand).
  • A judge made an offer to buy a condominium from an estate only 18 days after he signed the orders admitting the will to probate and purchased a home that was the subject of a foreclosure action pending before him.  In the Matter of Handy, 867 P.2d 341 (Kansas 1994) (public censure for this and other misconduct).
  • A judge tried to buy property that was one of the assets at issue in litigation pending before him involving the distribution of corporate assets.  In re Yaccarino, 502 A.2d 3 (New Jersey 1985) (removal for this and other misconduct).
  • A magistrate purchased items seized from tenants to satisfy rental debts at a distraint sale conducted by his office.  In the Matter of Thompson, 553 S.E.2d 449 (South Carolina 2001) (public reprimand for this and other misconduct).

Advisory committees have also addressed the issue.

  • A judge should not purchase property subject to a foreclosure proceeding over which the judge is currently presiding, but, after the foreclosure proceeding is concluded, may purchase the property from the foreclosure purchaser on the terms that are available to the general public unless the judge acquired information during the proceeding that gives them an advantage or they will be treated preferentially because of their previous involvement.  Colorado Advisory Opinion 2012-4.
  • A judge may be a shareholder of a corporation organized to purchase real estate at foreclosure sales unless the judge presides over mortgage foreclosure actions and the corporation purchases foreclosure properties within the judge’s jurisdiction or the judge’s involvement would result in frequent transactions with individuals likely to appear before the judge.  Illinois Advisory Opinion 2006-4.
  • A judge may not purchase assets from the estate of a minor while proceedings are pending before their court even if the matter has been reassigned to another judge and the attorney for the owners assures the judge that any conflict will be waived.  Kansas Advisory Opinion JE-81 (1998).
  • A judge should not buy assets from an estate that is pending in their court at either a private sale or public auction, directly or through an agent.  Kansas Advisory Opinion JE-124 (2004).
  • A judge may bid at public auction to buy a tract of land being sold at sheriff’s sale as the result of a foreclosure action if the judge had nothing to do with the foreclosure action, has no jurisdiction over the action, and did not know of the action until reading the published notice of sheriff’s sale.  Kansas Advisory Opinion JE-135 (2005).
  • A judge may purchase bank-owned property that was foreclosed in a closed case that was uncontested even though the judge signed the order confirming the sale.  Kansas Advisory Opinion 184 (2015).
  • A judge and their spouse may purchase foreclosed property at a scheduled judicial sale when the judge had no involvement in the case, learned of the sale from the newspaper, and read the court file by checking it out at the clerk’s office in the same manner as any person could, the judge would not attend or personally participate in the bidding, and the judge does not know the special master responsible for conducting the sale.  New Mexico Advisory Opinion 2011-3.
  • If a surrogate entered into a contract to purchase real property in good faith but later learned the property was part of a decedent’s estate, the surrogate must disqualify themself from any further involvement in the probate proceeding but is not required to repudiate the contract.  New York Advisory Opinion 2014-187.
  • A judge may purchase a home at a foreclosure sale in the judge’s court if they have had no judicial involvement in the sale but must not lend, or appear to lend, the prestige of the judicial office to influence the sale and should not alert their co-judge or court personnel that they are interested in purchasing a home at the sale, other than in the same time, place, and manner as other members of the public or voluntarily disclose their judicial status during the sale unless they must do so pursuant to law or administrative rule.  New York Advisory Opinion 2009-134.

Throwback Thursday

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5 years ago this month:

  • Based on the judge’s resignation and agreement, the Arkansas Judicial Discipline and Disabilities Commission removed a judge from office for performing probable cause determinations in cases involving friends or former clients following ex parte communications, lowering their bail, and releasing them on their own recognizance.  Parker, Letter of removal from office (Arkansas Judicial Discipline and Disabilities Commission December 31, 2016).
  • Approving the Judicial Qualifications Commission’s findings and recommendations, which the judge accepted, the Florida Supreme Court publicly reprimanded a judge for sending an ex parte e-mail to the public defenders’ office, failing to seek a recusal or transfer when an appeal of his denial of a motion to recuse based on the e-mail effectively froze his division, and making impertinent and belittling remarks in open court about that appeal; the Court also ordered the judge to send a letter of apology, continue judicial mentoring for 3 years, and complete a mental health program.  Inquiry re Contini, 205 So. 3d 1281 (Florida 2016).
  • Pursuant to the judge’s agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for telling 2 girls she would send them to foster care if they did not go on vacation with their father after an ex parte discussion with the father’s attorney.   In re Matter of Embry (Kentucky Judicial Conduct Commission December 27, 2016).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for circulating a designating petition for another candidate for elective office and improperly attesting to the signatures on 2 other designating petitions.  In the Matter of Rumenapp, Determination (New York State Commission on Judicial Conduct December 30, 2016).
  • Accepting a stipulation and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for making improper public comments on her Facebook account about a matter pending in another court and failing to delete public comments about the matter made by her court clerk.  In the Matter of Whitmarsh, Determination (New York State Commission on Judicial Conduct December 28, 2016).
  • Accepting the recommendation of the Judicial Standards Commission based on a stipulation, the North Carolina Supreme Court publicly reprimanded a judge for (1) failing to report income from extra-judicial sources and (2) presiding over a session of district court in which a criminal defendant appeared on his calendar for criminal charges that he had initiated as the complaining witness and agreeing that the charges should be dismissed after the defendant paid him restitution of $3,000 cash in the judge’s chambers.  In re Mack, 794 S.E.2d 266 (North Carolina 2016).
  • • Adopting the sanction recommended by the Board on Professional Conduct, the Ohio Supreme Court suspended a former judicial candidate from the practice of law for 1 year for knowingly or with reckless disregard for the truth running 2 campaign advertisements that contained patently false statements about his opponent; the Court stayed the final 6 months of the suspension on the conditions that he commit no further misconduct and attend a 6-hour CLE course regarding judicial campaigns. Disciplinary Counsel v. Tamburrino, 87 N.E.3d 158 (Ohio 2016).
  • Accepting the sanction recommended by the Board of Professional Conduct based on stipulations of fact and misconduct, the Ohio Supreme Court suspended a judge for 1 year for contacting a landlord on behalf of a tenant; the Court stayed the suspension on condition he commit no further misconduct.  Disciplinary Counsel v. Elum, 71 N.E.3d 1085 (Ohio 2016).

“Understandable, though ill-advised”

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2 more judges have been publicly sanctioned for their conduct related to the COVID-19 pandemic, bringing the total to 9.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for making comments criticizing the prosecution of a case that he thought could only be heard by the court employees in the courtroom but that were being broadcast through the court’s YouTube channel. In re Antush, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 19, 2021).

During the Covid-19 pandemic, the Spokane Municipal Court, like many courts in Washington, provided live stream coverage of court proceedings on YouTube to allow the public to observe proceedings. The live stream typically ended at the conclusion of the court proceedings.

On November 12, 2020, the judge presided over a criminal jury trial on charges of disorderly conduct and failure to disperse. After the prosecution and defense had rested their cases, the judge dismissed the jury for the day, planning to have closing arguments, jury instructions, and deliberations the next morning. Shortly after everyone but the judge and 2 clerks had left the courtroom, the judge stated:

It’s frustrating because I don’t think this ever should have been tried. It’s a simple misdemeanor. The guy has no record. Best case scenario, he got carried away. I mean this is the best possible case scenario is that he got carried away in the moment. Do you really want to f*** with someone’s life like that? Apparently. Worst case scenario … The thing is, like I didn’t hear anybody say they saw the guy throw jack. Did you hear that … [recording stops].

Although the judge reasonably believed he could only be heard by the 2 court employees, the courtroom’s audio recording was still activated and being broadcast to the public through the court’s live stream YouTube channel. The prosecution learned of the judge’s comments that evening via the broadcast.

The following morning, the city moved for a mistrial based on the judge’s comments. After hearing argument from the parties and reviewing his comments, the judge “agreed with the City that, while judges are human and have opinions, it was wrong for him to verbalize them in a way that undermined public confidence in the fairness and impartiality of the rulings he had made in the case before him.” He granted the motion for a mistrial, apologized to the parties, and expressed his regret for the waste of time and resources.

In mitigation, the Commission noted that this was an isolated incident, the judge has had no prior judicial discipline history, he had been a judge for less than 3 years when he made the comment, those who know him professionally describe him as very competent, conscientious, and compassionate, and, “importantly, his response to this matter, both at the time it was first brought to his attention, and in this disciplinary proceeding, has been exemplary.” The agreement also stated:

Respondent’s actions were careless, but there is no basis to believe he flagrantly or intentionally violated his oath of office. At the time he made the comments at issue, Respondent was unaware that anyone other than court staff could hear the comments. There are many pressures upon a trial judge, and it is understandable, though ill-advised, for a judge to vent to trusted court associates even in private. Respondent credibly stated that he did not intend to impair the case before him.

On the other hand, Respondent revealed his strong opinion about the merits of a case about to go to a jury and that opinion became public (although Respondent did not intend those comments to be public). In this context, presiding over a pending jury trial, Respondent’s comments caused actual injury by affecting the outcome of a criminal case and consequently damaged the perceived integrity of the justice system to anyone who may have heard the comments.

The Commission noted that the admonishment “may help to alert other judges to the risks of unguarded comments damaging public confidence in the impartiality, integrity and independence of the judiciary, at a time when courts are using more varied technological broadcast means than ever before in conducting the courts’ business.”

Statements inadvertently broadcast live via YouTube by a second judge are also the basis for a statement of charges filed by the Washington Commission. The second judge’s statements were about the fatal shooting of a Black man by local law enforcement and were made after the end of unrelated court proceedings during a conversation between the judge and a fellow judicial officer. The Commission alleges that the statements “displayed overt racial bias, indicated a lack of impartiality, and implied that Respondent has a personal channel of communication with the Sheriff’s Department regarding pending and impending cases.” The charges note that “the Commission received dozens of complaints about this incident,” including a self-report. The judge retired effective June 30, 2021.

Accepting a stipulation agreement and consent to discipline, the New Mexico Supreme Court suspended a judge for 30 days without pay for, in addition to other misconduct, failing to wear a protective face covering at all times while on court premises as required by a state supreme court order and asking a clerk if they minded if he did not wear a mask; and after the court began conducting telephonic hearings due to the pandemic, issuing bench warrants when 11 defendants failed to call the court on their appearance date without determining if the defendants had been properly summonsed. In the Matter of Guthrie, Order (New Mexico Supreme Court October 29, 2021).

The judge failed to wear a protective face covering at all times while on court premises and placed a court clerk in a difficult position when he asked the clerk if they minded if he did not wear a mask. The magistrate failed to follow the New Mexico Supreme Court’s order on the safe and effective administration of the judiciary during the COVID-19 public health emergency and put the health and safety of court staff at risk.

Due to the COVID-19 pandemic, the county magistrate court began conducting telephonic hearings, but the magistrate issued summonses for defendants to appear in person and/or did not include contact information for the court on the summonses. When 11 defendants failed to call the court on their appearance date, the magistrate issued bench warrants and assessed $100 bench warrant fees without determining if the defendants had been properly summonsed.

7 other judges have previously been publicly sanctioned for conduct related to the COVID-19 pandemic. Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021) () (public reprimand for speaking sharply to court staff when disconnected from a Zoom hearing and yelling at court staff when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case); Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021) (public reprimand for repeatedly failing to wear a face covering when interacting with the public and staff in court facilities as required by administrative orders issued by the Arizona Supreme Court and the Maricopa County Superior Court in response to the COVID-19 pandemic, failing to require individuals in his courtroom to abide by administrative orders regarding the use of face coverings, and appearing “to publicly denigrate those orders”); In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for, in addition to other misconduct, displaying improper demeanor toward 2 criminal defense attorneys appearing by phone for an arraignment on the first day after the stay-at-home order was in effect); Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand for stating, “the Grand Wizard of our Supreme Court said we have to wear these masks”); In the Matter of Rivers, 862 S.E.2d 449 (South Carolina 2021) (6-month suspension for 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); Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand for failing to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commenting that he wished the chief justice “would win an award so that the COVID-19 mandates” would end); In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021) (reprimand for, in addition to other misconduct, declining to determine who was attempting to appear at the end of a calendar via Zoom).

Throwback Thursday

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10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for asking 2 other judges about a case on behalf of family friends.  Pollard, Order (Arizona Commission on Judicial Conduct December 20, 2011). 
  • Accepting a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court suspended a judge for 60 days without pay for (1) without legal authority, referring traffic infraction litigants to a traffic school program and dismissing their cases upon their completion of the program without any request from the prosecutor and (2) his statements in a case that coerced a traffic litigant into pleading guilty.  In the Matter of Harkin, 958 N.E.2d 788 (Indiana 2011).
  • Based on a report from the Committee on Judicial Responsibility and Disability, the Maine Supreme Judicial Court publicly reprimanded a judge for a pattern of unacceptable delays in managing and resolving at least 5 cases.  In the Matter of Holmes, 32 A.3d 1011 (Maine 2011).
  • Based on an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court publicly reprimanded a judge and fined her $500 for jailing a mother for criminal contempt, without first affording her due process, for failing to obtain mental health treatment for her daughter.  Commission on Judicial Performance v. Darby, 75 So. 3d 1037 (Mississippi 2011).
  • Based on an agreed statement of facts and recommendation, the Mississippi Supreme Court publicly reprimanded a judge and fined him $1,000 for telling a defendant “if you’re convicted, I’m gonna get you;” discourteously addressing a bail bondsman and 2 lawyers; and wrongly imposing contempt sanctions against the bondsman and lawyers.  Commission on Judicial Performance v. Smith, 78 So. 3d 889 (Mississippi 2011).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly reprimanded a former judge for repeatedly and unnecessarily referring to her judicial office when talking to police officers in an attempt to convince them to arrest a state investigator who had entered her home to serve a subpoena on her husband and, when they refused, belittling and disrespecting their work and competence.  In the Matter of Muller, Order (New Jersey Supreme Court December 12, 2011).
  • Pursuant to an agreement with the judge, the Tennessee Court of the Judiciary publicly reprimanded a judge for twice publicly criticizing other judges’ decisions to lower bonds he had set.  Letter to Bales (Tennessee Court of the Judiciary December 6, 2011).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for handcuffing a father to a son as a punishment in a case.  Letter to Zachary (Tennessee Court of the Judiciary December 27, 2011).
  • Reviewing the complainant’s petition from an order of the 6th Circuit Judicial Council dismissing a complaint, the U.S. Judicial Conference Committee on Judicial Conduct and Disability publicly reprimanded a judge for holding membership in a country club that practices invidious discrimination on the bases of race and sex.  In re Complaint of Judicial Misconduct (Paine), Amended Memorandum of Decision (U.S. Judicial Conference Committee on Judicial Conduct and Disability December 1, 2011).

Recent cases

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  • Approving a stipulation, the Florida Supreme Court suspended a judge for 10 days without pay, publicly reprimanded her, and fined her $37,500 for being absent from the courthouse beyond the permitted number of days for judicial leave, failing to notify court management of some of the absences, and being at the courthouse below the number of hours expected of trial judges on some days when she was there.  Inquiry Concerning Bryson (Florida Supreme Court November 24, 2021).
  • In lieu of formal disciplinary proceedings and with the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for sua sponte revoking defendants’ bonds without a motion from the prosecution or notice to the defendants and contrary to statutory guidelines for at least 8 individuals in 13 matters between 2016 and 2020.  Public Admonition of Buckley (Indiana Commission on Judicial Qualifications November 8, 2021).
  • Accepting a stipulation agreement and consent to discipline, the New Mexico Supreme Court suspended a judge for 30 days without pay for (1) failing to wear a protective face covering at all times while on court premises as required by the Court’s pandemic order and asking a clerk if they minded if he did not wear a mask; (2) using chewing tobacco while on court premises contrary to an administrative order; (3) after the court began conducting telephonic hearings due to the pandemic, issuing bench warrants to 11 defendants who failed to call the court on their appearance dates without determining if they had been properly summoned; (4) based on an ex parte communication with an assistant district attorney, recalling a defendant’s case and ordering the defendant held without bond; (5) in 4 cases, issuing an order setting conditions of release when he knew or should have known that the district attorney’s office had filed an expedited motion for pretrial detention that divested him of jurisdiction; (6) in 13 driving under the influence of intoxicating liquor or drugs cases, issuing illegal and/or improper sentences and/or failing to ensure that judgment and sentencing orders were accurate; (7) dismissing a case with prejudice when a preliminary hearing was not held in a timely manner contrary to rule; (8) failing to give a litigant 15 days to respond to a notice of intent to enter judgment on the pleadings as required by rule; (9) granting a competency motion orally contrary to rule; (10) determining a defendant to be a flight risk because they “didn’t live in the U.S,” ordering the defendant held on an $8,000 bond, and failing to make written findings of facts justifying the secured bond as required by rule; (11) sentencing a defendant to 90 days of incarceration and imposing 364 days of probation without ordering the sentence deferred or suspended contrary to statute; (12) signing an order for judgment on the pleadings that stated that he had reviewed the defendant’s response to the plaintiff’s motion for judgment on the pleadings when a response had not yet been filed; (13) assisting a state police officer in the prosecution of a case; (14) in 2 cases on the same day, accepting a guilty plea and improperly dismissing charges without proof of compliance; and (15) in 2 cases on the same day, failing to fully advise the defendants of all of their constitutional rights. The judge also agreed to attend at his own expense and successfully complete the National Judicial College general jurisdiction course, to have a mentor, and to be on unsupervised probation until the end of his term. In the Matter of Guthrie, Order (New Mexico Supreme Court October 29, 2021).
  • Based on the report of the Board of Professional Conduct, which was based on stipulations, the Ohio Supreme Court suspended a judge for 6 months without pay for communicating inappropriately with a court reporter on Facebook and by text and phone calls; the entire suspension was 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).
  • Adopting the findings and recommendation of the Board of Profession Conduct based on stipulations, the Ohio Supreme Court suspended a judge for 1 year without pay for (1) his undignified, improper, and discourteous demeanor toward a criminal defendant and the defendant’s girlfriend in his courtroom; ordering the defendant’s girlfriend, who was quietly observing the proceedings, to be drug tested; and finding the defendant’s girlfriend in direct contempt of court and sentencing her to 10 days in jail for her refusal to submit to a drug test.  Disciplinary Counsel v. Repp (Ohio Supreme Court November 9, 2021).
  • The Tennessee Board of Judicial Conduct publicly reprimanded a judge for (1) providing a “legal tip of the day” on Facebook, such as “when stealing stealth is key” or “the goal of criminal and bad behavior is to get away with it” and (2) having his law license suspended twice for failing to comply with mandatory continuing legal education requirements.  Webb (Tennessee Board of Judicial Conduct November 5, 2021).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for issuing a search warrant for firearms in the possession of the husband in a divorce case without complying with the law, failing to be patient, dignified, and courteous with the husband, and manifesting bias and prejudice against the husband.  Public Warning of Bailey (Texas State Commission on Judicial Conduct October 29, 2021), on appeal.
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for falsely stating to other court employees that his former court clerk was being investigated by the county human resources department, provoking an altercation with the former clerk’s husband, a constable, and giving inaccurate and misleading testimony in a civil removal action against the constable.  The Commission also ordered the judge to receive 4 hours of instruction with a mentor particularly on sensitivity and diversity training, human resources, and personnel management.  Public Reprimand of Egan and Order of Additional Education (Texas State Commission on Judicial Conduct October 29, 2021).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for holding the mother in a case affecting the parent-child relationship in contempt and jailing her without proper notice or advising her of her right to counsel.  Public Reprimand of Fletcher (Texas State Commission on Judicial Conduct October 29, 2021).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) producing and erecting signs advertising his wife’s campaign for county commissioner, discussing her candidacy with others at campaign events and elsewhere, and maintaining a Facebook page on which materials supporting his wife’s campaign appeared; (2) producing and erecting signs advertising his services as a justice of the peace and as a private attorney; (3) disseminating business cards with the contact information for his judicial office on one side and his private practice on the other; and (4) acting as an attorney for a defendant in a case in which he had previously performed the magistration in his judicial capacity.  The Commission also ordered that he receive 2 hours of instruction with a mentor on campaign ethics, conflicts of interest, and performing magistrations.  Public Reprimand of Alvarez and Order of Additional Education (Texas State Commission on Judicial Conduct October 29, 2021).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) posting on Facebook concerning a death inquest she had conducted and commenting to the media about the inquest; (2) in her divorce proceedings, providing false testimony under oath about her possession and knowledge of firearms awarded to her ex-husband, for which she was held in contempt and served 15 days in confinement; and (3) striking an unattended vehicle.  Public Reprimand of Thomson (Texas State Commission on Judicial Conduct October 29, 2021).
  • The Texas State Commission on Judicial Conduct publicly admonished a former judge for failing to complete any of his 16 hours of judicial education for 2018-2019 and any of his 16 hours of judicial education for 2019-2020.  Public Admonition of Valdez (Texas State Commission on Judicial Conduct October 29, 2021).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for making comments critical of the city’s decision to file and try a case that he thought could only be heard by the 2 court employees in the courtroom but that were being broadcast through the court’s YouTube channel.  In re Antush, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 19, 2021).
  • The West Virginia Judicial Investigation Commission publicly admonished a magistrate for failing to provide a sign language interpreter for a litigant despite the litigant’s request.  In the Matter of D’Angelo, Public admonishment (West Virginia Judicial Investigation Commission October 28, 2021).
  • The West Virginia Supreme Court of Appeals publicly censured a judge and fined her $1,000 for searching a self-represented ex-husband’s home for marital property and threatening him with contempt when he protested.  In the Matter of Goldston (West Virginia Supreme Court of Appeals November 18, 2021).

Throwback Thursday

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20 years ago this month:

  • Based on a complaint brought by the Judicial Inquiry Board, the Illinois Courts Commission removed a judge who had engaged in “intimidating and sexually inappropriate behavior” in the courtroom and chambers toward 4 assistant state’s attorneys and twice had sexual intercourse in his chambers with a court reporter.  In re Spurlock, Order (Illinois Courts Commission December 3, 2001).
  • Affirming the findings of the Judicial Tenure Commission, the Michigan Supreme Court suspended a judge or 6 months without pay for appointing an attorney with whom she had an intimate relationship to represent indigent defendants in 56 cases and presiding over the cases, presiding over a criminal case in which the attorney was retained counsel, without disclosing the relationship, and making false statements to police officers investigating the attorney for the murder of his wife.   In re Chrzanowski, 636 N.W.2d 758 (Michigan 2001).
  • Adopting the recommendation of the Commission on Judicial Performance pursuant to an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court publicly reprimanded a judge for ex parte communications with alcoholic beverage control agents in 5 cases, remanding charges to the file in cases placed on other judges’ dockets, requiring those before him to pay court costs or forfeit confiscated alcohol prior to a final disposition of their cases, and continuing to hear cases involving the alcoholic beverage control division during the Commission’s investigation of him that was initiated by the alcohol beverage control agents.  Commission on Judicial Performance v. Lewis, 801 So. 2d 704 (Mississippi 2001).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for participating in litigation on behalf of his residential cooperative board against a restaurant that was a commercial tenant.  In re Huttner, Determination (New York State Commission on Judicial Conduct December 26, 2001).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for personally intervening in a business dispute involving his spouse by contacting an attorney 3 times within 5 days to urge the attorney to convince his clients to pay a bill related to a real estate transaction handled by the judge’s spouse, a real estate agent.  In the Matter of Whelan, Determination (New York State Commission on Judicial Conduct December 27, 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) engaging in an ex parte discussion with the defendant in a small claims case, rendering a judgment based on the discussion, and advising the plaintiff that the plaintiff did not have a right to confront the defendant; (2) advising the defendant in a traffic case that she was not entitled to a supporting deposition because she had been offered a plea reduction, effectively coercing the defendant’s plea to a reduced charge; and (3) holding court in his chambers and allowing the prosecutor to call cases and offer plea bargains in the courtroom.  In the Matter of Fuller, Determination (New York State Commission on Judicial Conduct December 26, 2001).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for engaging in a verbal altercation with defense counsel, failing to maintain proper order and decorum and directly contributing to an undignified atmosphere in a high-profile criminal case against a veteran police officer charged with aggravated sexual assault of a child.  Public Warning of Angelini (Texas State Commission on Judicial Conduct December 17, 2001).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for failing to provide contemnors in 10 cases with full and unambiguous notification of when, how, and by what means they had been guilty of contempt and failing to advise them at the contempt hearing of their right to counsel, to admonish them about proceeding without counsel, and to obtain their knowing and voluntary waiver of counsel.  Public Admonition of Dulin and Order of Additional Education (Texas State Commission on Judicial Conduct December 17, 2001).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for, following her public contact at a service station with a driver, using court resources to obtain the motorist’s traffic infraction record; and sending a letter to the state patrol, county sheriff, court staff, and the motorist describing her experience, providing information about the motorist, and advising the recipients that she would recuse herself on any traffic-related matter involving the motorist.  In re Meadows, Stipulation, Agreement, Order of Admonishment (Washington State Commission on Judicial Conduct December 7, 2001).

A sampling of recent judicial ethics advisory opinions

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  • A judge may not use the court’s electronic case management system to independently investigate adjudicative facts in a case unless the investigation is authorized by law or the information is the proper subject of judicial notice.  California Formal Opinion 2021-16.
  • A judge may disclose the judge’s own preferred gender pronouns in the judge’s email signature block and orally during a virtual proceeding in which the judge presides.  New York Opinion 2021-114(A).
  • A judicial officer who participates in judiciary programs that partner with schools to bring civics-based education to students is not disqualified from cases against school districts regarding COVID-19-related mask and vaccine mandates, but judicial officers must consider whether additional facts require disqualification, for example, if the judge has gained personal knowledge about the reasons for a school district’s mask or vaccine policies; if a case against a school district names as a defendant someone a judicial officer worked closely with, extensively communicated with, or publicly associated with; or if the judicial officer made a statement during a program that a person would reasonably believe commits the judicial officer to a particular outcome in a case challenging mandates.  California Expedited Opinion 2021-44.
  • A judge who was the prosecutor in a case may comment on an application for clemency and on the applicant’s character if requested to do so by the body making the clemency decision but should respond solely in their capacity as the former prosecutor and should not identify themself as a judge or use judicial letterhead.  Colorado Opinion 2021-1.
  • A judge may be part of the judicial system workgroup of the National Substance Use Disorder Strategic Advisory Panel when their role would be “to assist in identifying supportive policies within the judicial system, addressing both criminal and civil legal problems for individuals with substance use disorders and their families.”  Florida Opinion 2021-15.
  • A family court judge may not accept an appointment to the Judicial Leadership Council of the National Court Appointed Special Advocate/Guardian Ad Litem Association for Children or permit the organization to “promote” the judge on social media and its website.  New York Opinion 2021-115.
  • A judicial officer may not serve as the chair of a sorority’s regional conference sponsorship committee because her name would be on conference letterhead as a member of the leadership task force and her role would include identifying corporate sponsors and partners, participating in event marketing, overseeing the solicitation of potential regional donors, and assisting committee members with grants and closing key sponsorship packages.  South Carolina Opinion 14-2021.
  • A judge may be on a panel of community leaders for an entry level training program for police recruits but should be open to appropriate requests from other groups or organizations with interests that may not be aligned with those of a police training academy.  The judge may only speak about the law and may not offer “tips” on demeanor, decorum, or other aspects of witness credibility; criticize the law or otherwise comment on topics from the perspective of a police officer; discuss community policing principles that go beyond principles of law; or comment on topics related to police reform.  The judge should disclose the ethical restrictions to attendees so that, if the judge declines to comment or answer a question or remains silent while others speak, the attendees will understand.  Maryland Opinion Request 2021-19.
  • A judge may attend an online “launch party” hosted by an attorney and law firm that do not appear before the judge.  New York Opinion 2021-114(B).
  • A judge may not write comments about how an expert witness’s book would contribute to the legal profession from a judge’s perspective that are intended to be included in the book and that may be used in advertisements.  Florida Opinion 2021-17.
  • A judge may write a book review for a legal textbook and retain the reviewed book in their personal library.  New York Opinion 2021-117.
  • A village justice may send mailers to village residents at the judge’s own expense explaining the functions and jurisdiction of the justice court, including the monetary limits and residency requirements for small claims and civil cases and other matters the village court handles, such as orders of protection and landlord/tenant disputes.  New York Opinion 2021-134.
  • In response to a recent incident in which an individual deliberately released a sitting judge’s residential address without authorization in response to the judge’s performance of their official duties and encouraged others to make use of the address, if a court proceeding is not reasonably foreseeable, a judicial association may release a generic statement with little identifying detail publicly condemning the “doxing,” urging the public not to engage in such conduct, and seeking legislative action.  New York Opinion 2021-147.
  • • Subject to several limitations, a specialized docket court judge may permit a documentary filmmaker to record court proceedings and interview the judge and court personnel as part of a grant-funded documentary film about community support of persons with serious mental illness. Ohio Opinion 2021-8.
  • A judge or judicial candidate cannot serve on a host committee for a campaign fundraiser for another judge or judicial candidate.  Tennessee Opinion 2021-3.
  • Candidates for judicial election or retention may respond to questionnaires from media sources, public interest groups, or advocacy groups about their views on controversial moral, legal, or political issues as long as they do not make statements that commit or appear to commit the candidate with respect to cases, controversies, or issues within cases that are likely to come before the court.  Illinois Opinion 2021-3.

Throwback Thursday

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25 years ago this month:

  • Approving a conditional agreement for discipline, the Indiana Supreme Court suspended a judge without pay for 7 days for meeting ex parte with a defendant in a case pending before him and failing to disqualify himself from a case in which that defendant was a key witness.  In the Matter of Sanders, 674 N.E.2d 165 (Indiana 1996).
  • The Massachusetts Commission on Judicial Conduct disclosed its private reprimand of a judge for, during an informal, off-the-record conference with lawyers in a criminal case, in response to a defense attorney’s claim that statements about the 7 Cambodian defendants made by the assistant attorney general were racist, responding “I don’t think that’s racist at all.  We ought to send them right back to the Killing Fields.”  The judge also apologized and agreed to participate in an educational program and to meet regularly with a mentor judge.  In re Mori, Agreed Disposition (Massachusetts Commission on Judicial Conduct December 26, 1996). 
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to conclude a dissolution matter within 90 days as directed by administrative policy and statute.  Press Release (Seibel) (Minnesota Board on Judicial Standards December 23, 1996).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for writing a letter published in a local newspaper addressing community reaction to the arrest of 5 Native Americans charged with a murder and speaking out against the dynamics that feed racism.  Press Release (Wolf) (Minnesota Board on Judicial Standards December 1996).
  • Concurring with a joint resolution and affirming the findings of fact and the agreed sanctions, the Mississippi Supreme Court publicly reprimanded a former judge for incarcerating a defendant without notice or hearing, sentencing a second defendant to more jail time than allowed by law, and finding the same defendant guilty of perjury based on his own affidavit and warrant even though perjury is a felony and beyond the jurisdiction of his court.  Commission on Judicial Performance v. Fletcher, 686 So. 2d 1075 (Mississippi 1996).
  • Granting the joint motion for approval of a recommendation, the Mississippi Supreme Court publicly reprimanded a judge and fined him $2,628 for irregularities in the disposition of traffic-related offenses, including reducing 3 DUIs in violation of a statute, assessing costs or fines in excess of the statutory maximum in 6 cases, failing to require affidavits in 4 cases, issuing orders without authority, and allowing cameras in the courtroom.  Commission on Judicial Performance v. Emmanuel, 688 So. 2d 222 (Mississippi 1996).
  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct publicly censured a judge for (1) acting on an ex parte communication, quashing a warrant lawfully issued by another judge; (2) in a second case, unilaterally assuming jurisdiction over a dissolution of marriage action, ex parte, at the request of the husband based on a personal relationship even though the judge knew that a dissolution action was pending in Arizona and that the minor child of the parties was residing with the mother in Arizona; improperly issuing an arrest warrant and writ of extradition for the mother and advising the father about the proper method to seek enforcement of the writ in Arizona; and refusing to consult with the judge in Arizona regarding the case pending in Arizona and refusing to respond to the Arizona judge’s efforts to do so; (3) in a third case, discussing the specifics of a plea bargain in an ex parte communication with the prosecutor; (4) conduct that repeatedly gave the appearance of having had ex parte contacts with both parties and counsel outside of the court, off the record, and to the exclusion of opposing parties and counsel where issues in controversy were discussed and matters of substance appeared to be decided without notice to opposing counsel; (5) demeanor that on multiple occasions gave the impression to both parties and attorneys that he was failing to be attentive to the matters pending before him; (6) a level of competency below that demanded of a superior court judge in civil matters involving, but not limited to general jurisdiction, evidence, domestic relations, and ethics; (7) failing to avail himself of educational assistance programs for judges that relate to duties and responsibilities; and (8) giving the appearance that he was swayed by personal affiliations and relationships with members of organizations to which he belonged.  The judge also agreed to successfully complete courses at the National Judicial College; to attend not less than 15 hours of CLE a year for 2 years; to meet with a judicial mentor; and to disclose to opposing parties and counsel any personal relationship, excluding those involving merely name and facial familiarity, based upon the judge’s common membership in a club or congregation with a party or attorney.  In re Jorgensen, Stipulation (Washington State Commission on Judicial Conduct December 6, 1996).