Interrupt, advise, end, and notify

Accepting a stipulated agreement and consent to discipline, the New Mexico Supreme Court publicly censured a judge for engaging in 2 ex parte phone calls with a criminal defendant’s father, releasing the defendant following those ex parte calls, and failing to notify the prosecution of the calls. Inquiry Concerning Anaya (New Mexico Supreme Court December 13, 2021).

On Friday, April 3, 2020, the judge received an ex parte phone call on his personal cell phone from Fernando Gallegos, the father of Danielle Gallegos, who had been arrested that day on multiple violent felony offenses. On Saturday, April 4, the judge received and engaged in a second ex parte phone call on his personal cell phone from the father. After receiving the second call, the judge signed an order of release, and Danielle was released that Saturday.

The judge’s release of Danielle disregarded a well-established Santa Fe County Magistrate Court protocol that directed the judge on call over the weekend not to release alleged violent offenders until the next business day to allow the district attorney’s office an opportunity to review the charges and determine if a motion for pre-trial detention was appropriate. The judge had never before violated that protocol.

The Court acknowledged that it was understandable that the judge “might receive an ex parte phone call from a litigant or the representative of a litigant from time to time,” noting that New Mexico judges face challenges when working in the many close-knit communities in the sparsely populated state. The Court emphasized the importance of judges in these close-knit communities maintaining “the independence and integrity of the judiciary to preserve the prestige of the office and the public’s confidence in the judiciary.” It explained:

If a judge receives an attempted ex parte communication, it is the judge’s responsibility to not allow or engage in such communications. The judge should interrupt to advise the person that such communications are prohibited and redirect the person to pursue their matter through proper channels, such as through the filing of motions. The judge must also promptly notify all parties of the communication. By adhering to this requirement, the judge may effectively avoid any appearances of impropriety, as well as actual instances of impropriety.

The Court stated that, when it became apparent Mr. Gallegos’ first call concerned the judge’s upcoming review of Danielle’s conditions of release, the judge should have interrupted the call, told Mr. Gallegos that it was improper to call the judge about the matter, and told him “to consult with an attorney and/or to have the defendant file a motion,” and then the judge should have ended the call and “promptly notified the District Attorney’s Office and the defendant of the ex parte phone call and what was discussed.”

Further, the Court stated, when the judge received the second call, on recognizing the telephone number, the judge should have ignored the call or at least, when he answered it, advised Mr. Gallegos that he could not speak about the case without the prosecutor present and then ended the phone call and notified the prosecutor.

The Court explained why the judge’s release of Danielle after the 2 calls was improper.

The Respondent’s actions deprived the prosecutor of his right to notice and to be heard. He violated his own court’s established protocol concerning weekend arrests based upon these two ex parte calls. Respondent’s actions also created the improper appearance that Respondent abandoned his role as a neutral and detached, independent, fair, and impartial fact finder. Respondent’s conduct furthermore undermined the public’s confidence in our state judiciary by compromising the fundamental integrity, impartiality and independence upon which our judicial system is based. . . .

Although recognizing that the court’s protocol was not a law, the Court explained that the protocol was designed to prevent “the very thing” that the judge had done: deprive “the state’s attorney of the opportunity to review the case before releasing an alleged violent offender into the community. Respondent has an affirmative duty . . . to comply with all court rules and procedures. . . . . Court protocols are set in each court and are specific to each court to help ensure the proper administration of justice. Failing to abide by protocols, policies and/or rules set by a judge’s court threatens to undermine the effective administration of justice in that court and could place the alleged victim(s), witness(es), or the community at risk of harm.”

See “Remedy for an ex parte communication” in the summer 2021 issue of the Judicial Conduct Reporter.

Throwback Thursday

5 years ago this month:

  • The Florida Supreme Court suspended a judge for 6 months without pay and publicly reprimanded him for (1) while a candidate, (a) falsely stating in a televised debate that he had never been accused of a conflict of interest and failing to correct that statement during the debate or publicly thereafter and (b) stating that he is a registered Republican and that his former affiliation with the Democratic Party was an error; and (2) while an attorney, (a) failing to advise opposing counsel that he was representing the judge presiding in an unrelated case; (b) failing to advise 3 clients of the risks and advantages of common representation and to withdraw when conflicts were apparent; and (c) engaging in representation of one client to the detriment of other clients and incorrectly stating the status of his representation on filings with the bankruptcy court.  Inquiry Concerning Decker, 212 So. 3d 291 (Florida 2017).
  • Based on an agreement, the Kentucky Judicial Conduct Commission suspended a judge without pay for 30 days for (1) granting permanent sole custody of a child without requiring the petitioner to provide evidence or giving the respondent an opportunity to obtain counsel, cross-examine witnesses, or introduce evidence and (2) ordering 2 minor children to be immediately placed in foster care without conducting a formal hearing, taking any sworn testimony, or affording the parents basic due process; the Commission also ordered the judge to complete courses and training on substantive and procedural due process.  In re Stein, Agreed order of suspension (Kentucky Judicial Conduct Commission March 21, 2017).
  • Based on the findings of a referee following a hearing, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) dismissing or reducing charges without notice to or the consent of the prosecution; (2) failing to provide a defendant the opportunity to be heard regarding bail; (3) improperly increasing bail; (4) imposing conditions of release on a defendant that were not based in the law; (5) failing to advise a defendant of the right to counsel, asking incriminatory questions, and imposing improper conditions for permitting the defendant to negotiate a plea; and (6) making improper comments about a defendant’s physical appearance.  In the Matter of Clark, Determination (New York State Commission on Judicial Conduct March 13, 2017).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for making public comments about a pending murder case over which he was presiding in 3 media interviews and, in a post-trial proceeding, being discourteous to the prosecutor.  In the Matter of Piampiano, Determination (New York State Commission on Judicial Conduct March 13, 2017).
  • The New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for signing his name and judicial title beneath a defendant’s signature on a letter requesting another judge to change a plea for a traffic infraction.  In the Matter of Sullivan, Determination (New York State Commission on Judicial Conduct March 13, 2017).
  • As recommended by the Judicial Conduct Commission, the North Dakota Supreme Court suspended a judge for 3 months without pay for a pattern of delay and failing to respond to letters from the presiding judge about the timeliness of decisions; the Court also ordered him to attend the course on decision-making at the National Judicial College.  In the Matter of Hagar, 891 N.W.2d 735 (North Dakota 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for failing to provide the plaintiff in a small claims case with adequate written notice of his trial and proceeding to trial without requiring the defendant to file a written answer; communicating with the defendant regarding the merits of the case; failing to treat the plaintiff with patience, dignity, and courtesy; presenting a settlement offer from the defendant to the plaintiff, and using racially insensitive language while in the courthouse; the Commission also required the judge to complete training for new judges and participate in 1 hour of instruction on racial sensitivity with a mentor to be chosen by the Commission.  Public Reprimand of DeLaPaz and Order of Additional Education (Texas State Commission on Judicial Conduct March 17, 2017).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for refusing to allow a member of the public to inspect and copy case files and physically escorting him out of his office.  Public Warning of Alford and Order of Additional Education (Texas State Commission on Judicial Conduct March 28, 2017).
  • The West Virginia Judicial Investigation Commission publicly admonished a former magistrate for (1) wrongly criticizing the pre-trial/bond review program and a circuit court judge while a guest on a radio program, (2) ex parte communications with a public defender, and (3) banning the complainant from the courtroom in retaliation for informing the prosecutor about the magistrate’s ex parte communications with a public defender.  Public Admonishment of Bias (West Virginia Judicial Investigation Commission March 1, 2017).
  • In a de novo review, the Wyoming Supreme Court publicly censured a judge for refusing to perform same-sex marriages and ordered that she either perform no marriage ceremonies or that she perform marriage ceremonies regardless of the couple’s sexual orientation.  Inquiry Concerning Neely, 390 P.3d 728 (Wyoming 2017).

Use of judicial letterhead for letters of recommendation

In most states, whether judges may use judicial stationery for letters of recommendation is expressly addressed in the code of judicial conduct or advisory opinions although the precise rule varies from jurisdiction to jurisdiction.  In this day and age, any rule permitting or prohibiting use of official letterhead logically also applies to use of an official court email address and/or an email “signature” identifying the sender’s title and court.

21 jurisdictions have adopted the model code of judicial conduct comment that states:  “The judge may use official letterhead if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.”  Comment 2, Rule 1.3, American Bar Association 2007 Model Code of Judicial Conduct.  Those 21 jurisdictions are:  Arkansas, Colorado, Connecticut, D.C., Georgia, Hawaii, Idaho, Kentucky, Maryland, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, Pennsylvania, Rhode Island, Washington, and Wyoming.

In addition, New York advisory opinions state that, provided a judge clearly notes “personal and unofficial” on the stationery, a judge may write a letter of recommendation on their official letterhead.  See, e.g., New York Advisory Opinion 1993-26 (for an attorney who appears before them and who is an associate law professor applying for a promotion to a full professorship); New York Advisory Opinion 2013-5 (on behalf of a high school senior with whom they are acquainted for a college scholarship).

A comment to Canon 1F of the Virginia code of judicial conduct states:  “When using court stationery for letters of reference an indication should be made that the opinion expressed is personal and not an opinion of the court.”

In contrast, at least 8 states have code provisions that allow judges to use judicial stationery for any permitted letter of recommendation without requiring an indication that the recommendation is personal.

  • The Arizona and West Virginia codes omit the qualification “if the judge indicates that the reference is personal” from the comment giving permission to use judicial letterhead.
  • Canon 2B(2)(e) of the California code states that written references or letters of recommendation “may include the judge’s title and may be written on stationery that uses the judicial title.”
  • The Florida code states:  “A judge may use judicial letterhead to write character reference letters when such letters are otherwise permitted under this Code.”
  • The Indiana code states:  “A judge may provide a reference or recommendation for an individual based upon the judge’s personal knowledge and may use official letterhead . . . .”
  • The Iowa code states:  “The judge may use official letterhead for such reference or recommendation.”
  • The Kansas code states:  “A judge should only use judicial letterhead when its use could not be reasonably perceived as an attempt to inappropriately use the prestige of judicial office to influence others,” in other words, a judge may use judicial letterhead except when its use could reasonably be perceived as an inappropriate attempt to use the prestige of judicial office to influence others.
  • The Ohio code states:  “The judge may use official letterhead for such reference.”

A comment to the Missouri code states:

[T]he need for every recommendation on official stationery to recite that it is the “personal” act of the judge is questionable.  Recommendation letters of the type authorized by judicial codes are reviewed by sophisticated individuals with a sufficient knowledge that references are private, not official acts.  References sent to educational institutions, governmental agencies, scholarship committees, and businesses are not likely to be misinterpreted as court acts.

That comment seems to imply that official stationery is permitted under all otherwise appropriate circumstances in Missouri although it does not expressly state that.

An Illinois advisory opinion states:  “A judge may recommend a neighbor for a state fellowship or internship if the judge has personal knowledge of the applicant and may use court stationery to send the recommendation.”  Illinois Advisory Opinion 1996-2.  (If Illinois judges are allowed to use judicial stationery under those circumstances, it is reasonable to assume that they can do so for all other appropriate letters of recommendation.)

5 states allow judges to use judicial letterhead for letters of recommendation if the judge knows the person being recommended from their judicial role but require them to use personal stationery for personal contacts.

  • An Alaska advisory opinion states that, “judges may use court letterhead for reference letters when the judge is comfortable providing a reference and has knowledge as a judge relating to the reference, for example, for the judge’s law clerk, other court employees seeking future employment, and lawyers who have appeared before the judge seeking new employment or a judicial office.”  Alaska Advisory Opinion 2020-1.
  • A Maine advisory opinion states that, “a judge may use official stationery when writing a letter of recommendation for someone the judge knows through the judicial department (for example, as an employee of the clerk’s office or a practicing attorney) but if the basis for the reference is unrelated to the judge’s office then use of letterhead is inappropriate.”  Maine Advisory Opinion 1998-3.
  • The Massachusetts code provides:  “The judge may use official letterhead and sign the recommendation using the judicial title if the judge’s knowledge of the applicant’s qualifications arises from observations made in the judge’s judicial capacity.  The recommendation may not be accompanied by conduct that reasonably would be perceived as an attempt to exert pressure on the recipient to hire or admit the applicant.  Where a judge’s knowledge of the applicant’s qualifications does not arise from observations made in the judge’s judicial capacity, the judge may not use official letterhead, court email, or the judicial title, but the judge may send a private letter stating the judge’s personal recommendation.  The judge may refer to the judge’s current position and title in the body of the private letter only if it is relevant to some substantive aspect of the recommendation.”
  • Advice in North Carolina states:  “Official letterhead is generally permitted for recommendations based on the judge’s observations of the individual made in the scope of the judge’s official duties and professional judicial activities; personal stationery should be used for recommendations based on knowledge formed and maintained outside the judicial role.”  North Carolina Tips on the Use of Official Letterhead (2017).
  • A Wisconsin Ethics Commission policy suggests that “the type of stationery to be used depends upon how the public official knows the person for whom the reference letter is being written.  If the official knows the subject through state government business, then state government stationery is appropriate.  If the subject of the letter is known to the official primarily in a social context, e.g., a relative, friend, neighbor or a school or social acquaintance, personal stationery should be used.”  (The Wisconsin Ethics Commission interprets regulations that apply to elected officials in the state, including most judges.)

3 states allow use of judicial letterhead for particular types of subjects (law clerks and interns) and/or in particular contexts (employment and education).

  • The New Jersey code states:  “The New Jersey Supreme Court has determined that in certain limited situations a judge may write a letter of recommendation for a current or former law clerk or intern on judicial letterhead; in all other situations, if a letter of recommendation is appropriate, it should be on the judge’s personal stationery.  The situations in which the judge may use judicial letterhead for letters of recommendation for law clerks or interns are as follows:  (a) when the letter is addressed to another state or federal government official (this would include letters regarding subsequent additional clerkships or internships); (b) when the letter is addressed to a law school, university, or college in connection with a possible teaching position for the law clerk or intern; and (c) when a potential employer requests a recommendation.”
  • A comment to the Tennessee code states:  “A judge may use official letterhead if the judge’s professional knowledge is germane to the purpose of the letter, such as writing a letter of recommendation for a former or current law clerk or a letter of recommendation for admission to law school.”
  • A comment to the Utah code states:  “In making such references or recommendations, the judge may refer to his or her judicial office and use official letterhead only for employment or educational opportunities.”

2 states do not allow use of official letterhead for letters of recommendation under any circumstances.

  • The Louisiana code states:  “Letters of recommendation may be written only on private stationery which does not contain any official designation of the judge’s court, but the judge may use his or her title.”
  • A South Carolina advisory opinion states that a judge’s letter of recommendation “should be written on plain paper, without indicating the writer is a judge.”  South Carolina Advisory Opinion 5-1992

There does not appear to be a specific code provision or advisory opinion addressing the issue in 8 states (Alabama, Delaware, Michigan, Mississippi, Oregon, South Dakota, Texas, and Vermont) and for federal judges.

Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for ruling on petitions for intermediate sanctions filed by the probation department regarding a defendant whom he had represented when the defendant was placed on probation in the same criminal matter. Williams, Order (Arizona Commission on Judicial Conduct March 15, 2012).
  • Based on an agreed statement of facts, stipulation, and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for a series of ex parte communication about an impending sentencing with the defendant’s attorney and the police chief even though a year earlier he had been cautioned by the Commission to avoid ex parte communications. In the Matter of Lamson, Determination (New York State Commission on Judicial Conduct March 20, 2012).
  • Adopting the findings and conclusions of the Judicial Standards Commission, which were based on stipulated facts, the North Carolina Supreme Court suspended a judge for 75 days without pay for a practice of (1) dismissing driving-while-license-revoked cases, on her own motion, without hearings, and without authorization of the prosecuting authority and (2) handling misdemeanors and non-alcohol related traffic citations without following normal court procedures and entering favorable dispositions following ex parte communications. In re Hartsfield, 722 S.E.2d 496 (North Carolina 2012).
  • Adopting the findings of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for signing an order that contained false recitations without reading the order or giving the prosecution notice or an opportunity to make arguments. In re Totten, 722 S.E.2d 783 (North Carolina 2012).
  • Adopting the findings and recommendation of the Commission on Judicial Conduct, to which the judge agreed, the Wyoming Supreme Court publicly censured a judge for comments he made at a city council meeting about towing charges. In the Matter of Lopez, 274 P.3d 405 (Wyoming 2012).

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to grant a continuance requested by an attorney who was experiencing COVID-19 symptoms or to make arrangements to allow the attorney to appear telephonically and then granting a default judgment against the attorney’s client, a defendant in a civil traffic case.  Sears, Order (Arizona Commission on Judicial Conduct January 26, 2022).
  • Accepting an agreement, the Georgia Supreme Court suspended a judge for 30 days without pay and ordered that he be publicly reprimanded for engaging in a verbal altercation with a defendant in the courtroom and grabbing him and pushing him against the wall in the hallway.  Inquiry Concerning Hays (Georgia Supreme Court February 1, 2022).
  • 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 judge; the Commission had been investigating a complaint alleging, inter alia, that the judge had encouraged a minor to have sex with his teenage son, offered her gifts and money in exchange for sexual favors, and provided her with alcoholic beverages.  In the Matter of Wittlinger, Decision and order (New York State Commission on Judicial Conduct February 3, 2022).
  • Accepting a stipulation based on the judge’s affirmation that she has vacated her 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 judge; the Commission had been investigating a complaint alleging that, in her capacity as the Director of the Office of Justice Court Support, she arranged the hiring of the fiancée of a relative and retaliated against another Office employee for failing to vote with her on an interview panel.  In the Matter of Sunukjian, Decision and order (New York State Commission on Judicial Conduct February 3, 2022).
  • Based on the findings of a referee following a hearing, the New York State Commission on Judicial Conduct publicly admonished a judge for, from approximately 2015 to 2017 (1) allowing her secretary to help plan her daughter’s Bat Mitzvah and perform other personal tasks for her and (2) allowing her young daughter to frequent the security checkpoint at the courthouse, which interfered with the duties of the court officers.  In the Matter of Polk, Determination (New York State Commission on Judicial Conduct January 24, 2022).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for, during her campaign (1) posting an invitation to a fundraising event for the county Republican committee 4 times on her campaign Facebook page and (2) approving the content and distribution of campaign literature depicting a sample ballot falsely indicating that one of her opponents in the Republican primary would appear on a ballot line labeled, “Democrat.”  In the Matter of Coffinger, Determination (New York State Commission on Judicial Conduct February 23, 2022).
  • Based on its finding of misconduct, which were based on stipulations of fact, the Pennsylvania Court of Judicial Discipline publicly reprimanded a former judge for engaging in rude, loud outbursts towards counsel and witnesses in 6 cases.  In re Placey, Opinion and order (Pennsylvania Court of Judicial Discipline February 14, 2022).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for filing 12 campaign finance reports late from January 2006 through July 2021.  Public Warning of Slaughter (Texas State Commission on Judicial Conduct February 16, 2022).

Throwback Thursday

20 years ago this month:

  • Granting a joint motion for approval of a recommendation, the Mississippi Supreme Court suspended a judge for 30 days without pay for (1) signing a perfunctory order appointing his daughter as counsel for an indigent murder suspect at an initial appearance; (2) conducting a bond reduction hearing without notice to the prosecuting attorney and then lowering the bond; and (3) sua sponte setting aside a judgment that he had entered following a civil trial without conducting the statutorily required proceeding and without a showing of good cause.  Commission on Judicial Performance v. Peyton, 812 So. 2d 204 (Mississippi 2002).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for ordering a foster father to paddle his foster child.  Public Reprimand of Kleimann (Texas State Commission on Judicial Conduct March 1, 2002).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for sleeping during court proceedings on numerous occasions.  Public Admonition of Kleimann (Texas State Commission on Judicial Conduct March 1, 2002).

“In the performance of their official duties or in the presence of the judge”

In 2020, the Colorado Judicial Ethics Advisory Board issued an advisory opinion stating that judges should instruct staff under their direction and control to conform to the same constraints as the judge and, therefore, to refrain from making political or divisive statements, to refrain from participating in marches or rallies such as those in support of the Black Lives Matter or Blue Lives Matter movements, and to be very cautious in their use of social media.  Colorado Advisory Opinion 2020-2.  That opinion had been based on the requirement in Rule 2.12(A) of the Colorado code that judges “shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.”  Comment 1 to that rule explains that a judge is responsible “for the conduct of others, such as staff, when those persons are acting at the judge’s direction or control.”  (The Colorado code provisions were the identical to those in the 2007 American Bar Association Model Code of Judicial Conduct.)

The committee noted that the language of the rule “appears at odds” with that comment because the rule seems to apply to employee activities both “during and outside of working hours if those employees are subject to the judge’s direction and control,” while the comment seems limited to the conduct of staff only when they “are acting at the judge’s direction or control, which could be interpreted as during working hours only, or pursuant to a judge’s direct command.”  Stating that “when the language of the rule and its comment conflict, the language of the rule governs,” the committee concluded that the “language of Rule 2.12 seems clear — ‘consistent with the judge’s obligations’ means a judge must require staff under his or her direction and control to act as a judge would under the Code” at all times.

In 2021, the Colorado Supreme Court revised Rule 2.12 to provide:  “A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code in the performance of their official duties or in the presence of the judge.”  The comment was not amended.

Based on that amendment, the advisory committee has withdrawn Colorado Advisory Opinion 2020-2 and issued a new opinion.  Colorado Advisory Opinion 2021-3.  In the new opinion, the committee notes that the amended rule narrows and limits the judge’s obligations and is now consistent with the comment.  Thus, the new opinion advises that “judges are not responsible under the Code for comments made by law clerks and externs on political issues or for their participation in political demonstrations, rallies, or marches, as long as the law clerks and externs do not engage in such conduct in the performance of official staff duties or in the presence of the judge.”