Monthly Archives: May 2022

Casting aspersions

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In a recent advisory opinion, the Indiana Judicial Qualifications Commission emphasized that, although judicial candidates may criticize their campaign opponents or republish negative reports, the candidates must be “scrupulously fair and accurate” if they engage in that tactic.  Indiana Advisory Opinion 1-2022.

The opinion directed judicial candidates to ensure that statements expressing subjective views about their opponent’s experience and qualifications were truthful and not misleading.  It explained:

  • A candidate should “corroborate” the information they rely on when criticizing an opponent.
  • A candidate may state that they are “’more qualified’ or ‘more prepared’ than an opponent so long as that opinion is supported by the candidate’s actual experiences and professional background in comparison to their opponent’s.”
  • A candidate may comment on any public disciplinary history their opponent may have, but only in a dignified manner appropriate to the judicial office.
  • A candidate “should avoid attributing a position or policy perspective to an opponent (such as calling an opponent ‘liberal’ or ‘soft on crime’) based solely on the handling of a particular type of case.” 

The opinion also warned against “drawing misleading conclusions” from “incomplete negative statistical or historic data” to, for example, blame an opponent for a rise in crime.  It directed judicial candidates to consider:

  • Whether corroborating evidence is sufficient to establish a link to “an opponent’s actions or inactions,”
  • Whether contrary evidence refutes the supposed connection, and
  • Whether there are “alternative explanations.”

Further, the opinion stated that, in statements about an opponent’s background or qualifications, judicial candidates:

  • Should not engage in “speculation, hyperbole, and innuendo,”
  • Should not omit “salient facts,” and
  • “Should consider the ethical perils of:”
    • “Using emotionally-charged buzzwords that carry misleading connotations;”
    • “Casting negative aspersions on certain roles in the legal system as purported evidence of unfitness;” or
    • “Mischaracterizing or overstating the role and powers of the judiciary.”

Those “ethical perils” are illustrated by the recent public admonishment of a Louisiana judge for a campaign ad that “inappropriately undermine[d] the vital role” of criminal defense attomeys and could “distort the public’s perception regarding the proper role of judges.”  Public Admonishment of Marchman (Louisiana Judiciary Commission April 26, 2022).

In 2018, Judge Marchman, a district court judge, ran for a seat on the 2nd Circuit Court of Appeals against the incumbent, Judge Jimbo Stephens.

In one of the Judge Marchman’s video campaign advertisements posted on Facebook, a narrator stated:

When you vote, the right experience is what matters.  While Sharon Marchman has spent her thirty-three year career protecting you, her opponent Jimbo Stephens’ law firm, Stephens and Stephens, was getting paid to defend Sonny James Caston, convicted of murdering a deputy sheriff.  

The Louisiana Judiciary Commission acknowledged that judicial candidates may contrast their experience with that of their opponents but concluded that this comparison was inappropriate because it “cast[] aspersions on Judge Stephens’ and his father’s fulfillment of fundamental and appropriate functions in our legal system.”  The admonishment stated that, although the ad’s reference to Judge Stephens’ law firm “getting paid to defend” a person convicted of murdering a law enforcement officer “may not contain any false statements,” its omission of the circumstances – Judge Stephens’ father/law partner had been appointed by a court to represent an indigent defendant 30 years ago – misled the public.  Writing to the judge, the Commission explained:

Even ignoring the fact that Judge Stephens’ father was providing an important public service by representing a defendant who could not afford an attorney, as a lawyer and a judge for many years, you are fully aware that all defendants have a fundamental right to counsel, regardless of the crime with which they are charged.  Nonetheless, you chose to air an ad that inappropriately undermines the vital role criminal defense attomeys play in this state’s adversarial system of justice and the basic right of all accused persons to zealous representation.

The ad has also stated:

[Judge Stephens] reversed a jury’s conviction of a burglar with a twelve-page criminal history.  When asked about a crime, Judge Jimbo Stephens stated, “It’s illegal to get caught.”  Vote for the right experience – Judge Sharon Marchman.

The admonishment noted that the ad failed to explain that Judge Stephens had been part of a unanimous panel of judges, that the defendant had been improperly tried by a 6-person jury, rather than the constitutionally and statutorily mandated 12-person jury, and that the 12-page criminal history had not been part of the record on appeal but had been developed by Judge Marchman’s campaign.  Admonishing the judge, the Commission stated:

As an experienced judge, you know that judges are duty-bound to attempt to apply the law faithfully and impartially, regardless of whether a party is particularly sympathetic or unsympathetic, and that any judge, including you, would have been required to reach the same conclusion as Judge Stephens in the . . . case.  Moreover, you also know that a defendant’s criminal record is admissible in a criminal trial only under certain limited circumstances and knew that Mr. Johnston’s criminal history did not and could not play any role in the Second Circuit’s decision in the matter.  Accordingly, your choice to refer to this criminal history could have served no purpose other than to make it appear that Judge Stephens’ decision in this case, which relies strictly on controlling law, was somehow irresponsible or contrary to justice.

The Commission emphasized to the judge:

Your use of this decision as an example of how Judge Stephens does not have the “right experience” to be elected as an appellate judge thus undermines foundational principles of our legal system, has the distinct potential to distort the public’s perception regarding the proper role of judges, and erodes the independence of the judiciary and the public’s confidence in it.  Judges have a duty to be more careful in their express or implied criticism of judicial decisions so as to avoid such potential consequences.

See also Inquiry Concerning Santino, 257 So. 3d 25 (Florida 2018) (removal of judge for campaign ads that accused her opponent of “making a lot of money trying to free Palm Beach County’s worst criminals.  Now he’s running for judge!”).

The Louisiana admonishment also addressed a second ad that stated:  “You can support President Trump and the Republican Party by voting for me, or you can support Bernie Sanders, Jimbo Stephens, and their liberal agenda.”  The Commission found that that ad violated the prohibitions on publicly endorsing another candidate and making speeches on behalf of a political organization or a candidate for public office.

Throwback Thursday

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5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a pro tem judge for promoting the use of a service provided by a company in which she has an ownership interest in settlement discussions in a family law case and including use of that product in the settlement agreement.  Jones-Sheldon, Order (Arizona Commission on Judicial Conduct May 17, 2017).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) posting a statement about a judicial candidate on Facebook with knowing or reckless disregard for the truth of the statement and (2) being Facebook friends with attorneys who were appearing regularly before him in court.  In the Matter Concerning Ferguson, Public admonishment (California Commission on Judicial Performance May 31, 2017).
  • Approving the recommendation of the hearing panel of the Judicial Qualifications Commission, the Florida Supreme Court suspended a judge for 90 days without pay and publicly reprimanded her for knowingly misrepresenting a newspaper endorsement for her 1994 legislative re-election campaign to make it appear that she had received the newspaper’s endorsement for her 2014 judicial campaign.  Inquiry Concerning Shepard, 217 So. 3d 71 (Florida 2017).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) invoking her judicial title and position in a letter she wrote on behalf of her childhood babysitter to be filed in connection with a motion to vacate her conviction and (2) writing 2 affirmations on behalf of her son to be filed in the appellate division in connection with his criminal case.  In the Matter of Ramirez, Determination (New York State Commission on Judicial Conduct May 4, 2017).
  • Adopting the findings and conclusions of the Judicial Standards Commission based on stipulations and accepting its recommendation based on the judge’s agreement, the North Carolina Supreme Court publicly censured a judge for driving while substantially impaired and belligerent, offensive, and denigrating behavior towards law enforcement and emergency personnel.  In re LaBarre, 798 S.E.2d 736 (North Carolina 2017).
  • Adopting the recommendation of the Board of Professional Conduct based on stipulations, the Ohio Supreme Court suspended a former judge from the practice of law for 2 years for soliciting prostitution and falsifying a court record; the second year of the probation was stayed on the condition that he commit no further misconduct.  Ohio State Bar Association v. Jacob, 80 N.E.3d 440 (Ohio 2017).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 45 days without pay for a physical altercation after a meeting of a cotillion club.  In the Matter of Johnson, 800 S.E.2d 781 (South Carolina 2017).
  • Affirming the determination of the State Commission on Judicial Conduct, the Texas Special Court of Review publicly reprimanded a judge for engaging in an improper sexual relationship with his chief clerk.  In re Casey (Special Court of Review Appointed by the Texas Supreme Court May 9, 2017).
  • Adopting the decision of the Judicial Conduct Board as its final order, the Vermont Supreme Court permanently suspended a judge from office, prohibited him from holding judicial office in Vermont, and publicly reprimanded him for (1) collecting and depositing into his personal bank account payments on loans even though the loans had been made with funds from his uncle’s wife and negotiating the forgiveness of the loans; (2) making a facially implausible claim against her estate; (3) failing to protect the assets of the estate; and (4) making false statements during a probate court hearing.  In re Kane, 169 A.3d 180 (Vermont 2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for soliciting written endorsements from court employees in support of his judicial campaign.  In re Federspiel, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct May 12, 2017).

A sampling of recent judicial ethics advisory opinions

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  • A judge may observe other judges’ court sessions for educational purposes, informally or as part of a formal court system mentor program.  New York Opinion 2022-28.
  • After a judge admonished an attorney on the record for an inappropriate attempt at humor referencing a client’s ethnicity or national origin, the judge may take further action, but is not required to do so.  New York Opinion 2022-49.
  • A judge may write a law review article reviewing statutory, regulatory, and administrative efforts to address the intersection of domestic violence and child protection in New York and other states if they do not comment on any pending or impending cases.  New York Opinion 2022-41.
  • A judge may permit a law clerk to publish an article in a law journal that argues that the law does not adequately protect employees who are using or have used medical marijuana, but the judge should review the article before it is published to ensure that the clerk’s relationship to the judge, the judge’s court, and the Maryland judiciary is not identified in any way.  Maryland Opinion Request 2022-8.
  • An administrative assistant for a circuit court judge may not work with a state legislator on proposed legislation that would allow a mother to be charged criminally if she uses drugs while pregnant and the baby dies shortly after birth as a result of the drug use.  West Virginia Opinion 2022-15.
  • A judge may co-chair a committee to educate the judiciary on implicit bias through a volunteer court observation project and may meet with other participating judges and committee members to receive feedback from the observers, but may not privately discuss with observers their feedback on the judge’s own court sessions.  New York Opinion 2021-182.
  • Subject to conditions, a judge may attend and watch the Denver PrideFest festival and parade and similar events like Cinco de Mayo, the Marade, and Juneteenth and may march in the Denver PrideFest parade and similar parades with a bar association such as the Colorado LGBT Bar Association.  Colorado Opinion 2022-1.
  • A judge may be a dues-paying member of and serve as an officer or board member of a bar association for lawyers with disabilities but may not participate in its political or campaign efforts or draft amicus briefs for the association.  Colorado Opinion 2022-2.
  • A judge may serve as chair of a bar association subcommittee that seeks to improve racial equity in the court system.  New York Opinion 2022-13.
  • A judge who has volunteered for several years in a non-profit organization’s mentoring program may not provide a testimonial for use in the organization’s marketing materials, including their website, handbook, and social media pages, if there is no limitation on the organization’s use of the testimonial.  New York Opinion 2022-19.
  • Judges who graduated from a university may appear with the university’s retiring president in a photograph published in the university’s newsletter or magazine as long as the judges advise the university not to use the photograph in conjunction with any advertising directed at advancing student enrollment or fundraising.  Maryland Opinion Request 2022-18.
  • A judge is prohibited from serving as a member of the board of directors for the New York Civil Liberties Union.  New York Opinion 2022-22(A).
  • A university may name its Center for Justice and Society after a sitting South Carolina Supreme Court justice, but the justice should not have access to or knowledge of the donors.  The university may contact county bar associations for contributions.  South Carolina Opinion 5-2022.
  • A judge may not advocate with insurance companies on behalf of a family member.  New Hampshire Opinion 2022-1.
  • A judge may continue to serve as one of many class representatives in a federal lawsuit filed before they took the bench.  New York Opinion 2021-188.
  • A judge may not allow their spouse to place a campaign sign for a friend’s city council campaign in the yard of their jointly owned home.  West Virginia Opinion 2022-12.
  • A magistrate may not place a campaign sign in their yard for a family member in their household who is running for office.  West Virginia Opinion 2022-13.
  • To “test the water” about a possible candidacy for a non-judicial municipal office, a judicial official may speak privately, one-one-on with members of a political party’s town committee or other individuals in the community.  Connecticut Informal Opinion 2022-3.

Spring Judicial Conduct Reporter

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

• Judges and firearms
• Establishment and membership of judicial conduct commissions
• Charitable fundraising
• Recent cases
 Prestige and partiality: Keenan, 502 P.3d 1271 (Washington 2022)
 Dissatisfaction: Baker, 870 S.E.2d 356 (Georgia 2022)
 No exigent circumstances: Polk (New York Commission 2022)
 Mindless action:” Meyer (California Commission on Judicial Performance 2022)

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 California Commission on Judicial Performance publicly admonished a judge for (1) delays of 320 days, 237 days, and 110 days in deciding 3 matters in less than a year, (2) submitting 11 false salary affidavits, (3) failing as presiding judge to circulate a list of cases under submission, and (4) failing to respond to e-mails inquiring about submitted matters.  In the Matter Concerning Kirihara, Decision and order (California Commission on Judicial Performance May 16, 2012).
  • Based on findings by a Board of Examining Officers supported by the judge’s admissions, the Delaware Court on the Judiciary removed a judge from office for advising a young female attorney in an e-mail how to prepare a memorandum in a case before him and hearing cases involving the attorney after developing and expressing romantic feelings for her.  In re Henriksen (Delaware Court on the Judiciary May 3, 2012).
  • The Illinois Courts Commission suspended a judge for 60 days without pay for striking an unattended parked car, then driving his damaged car from the scene at a high rate of speed, disobeying multiple stop signs, causing a 13-year-old girl to move away from the road quickly to avoid being struck, later causing the police to wait when they arrived at his home, and being less than candid before the Commission.  In re Popejoy, Order (Illinois Courts Commission May 9, 2012).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a former judge for (1) in an adoption proceeding, failing to return a child to the child’s biological parent, failing to recognize the mother’s right to revoke her consent, failing to provide the unrepresented biological parents with adequate information about obtaining counsel, and injecting the father’s immigration status into the matter and (2) displaying an impatient, undignified, and discourteous demeanor in a custody case.  In the Matter of Poyfair, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct May 4, 2012).

Recent cases

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  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for posting on his Facebook page a photograph of a litigant’s request for an extension of time because his puppy ate his paperwork. Williams, Order (Arizona Commission on Judicial Conduct March 21, 2022).
  • The California Commission on Judicial Performance publicly admonished a judge for meeting with 2 police detectives who were being investigated for misconduct in a case over which she had presided and sending 2 letters to the police chief on official court stationery about the matter. In the Matter Concerning Meyer, Decision and order (California Commission on Judicial Performance April 5, 2022).
  • Based on the judge’s retirement and agreement not to serve in judicial office in the state, the Georgia Judicial Qualifications Commission resolved its investigation of a former judge for conduct that failed to promote public confidence in the judiciary and for failing to be truthful during the investigation. In re Inquiry Concerning Brown, Report of disposition (Georgia Judicial Qualifications Commission April 4, 2022).
  • Based on the judge’s retirement and agreement not to serve in judicial office in the state, the Georgia Judicial Qualifications Commission resolved its investigation of a former magistrate judge; the investigative panel had authorized formal charges alleging that the judge had engaged in ex parte communications and independently investigated the facts in a criminal matter pending in her court and used her judicial status to influence determinations in a criminal matter pending in her court involving a family member. In re Inquiry Concerning Dowling, Report of disposition (Georgia Judicial Qualifications Commission April 4, 2022).
  • Following a hearing, the Kentucky Judicial Conduct Commission removed a judge for (1) numerous actions to exert her influence to affect the outcome of her son’s criminal proceedings; (2) creating and failing to disclose conflicts of interest in the appointment of guardians ad litem and in cases involving certain attorneys; (3) retaliating against family services case workers who advocated actions contrary to her views; (4) using her court staff to administer drug tests; and (5) a lack of candor and misrepresentations to the Commission. In re the Matter of Gordon, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission April 22, 2022), on appeal.
  • The Louisiana Judiciary Commission publicly admonished a judge for 2 campaign ads, one that criticized her opponent and one that stated that a vote for her showed support for President Trump and the Republican party. Public Admonishment of Marchman (Louisiana Judiciary Commission April 26, 2022).
  • The New York State Commission on Judicial Conduct removed a judge from office for engaging in professional misconduct as an attorney as evidenced by 2 orders that suspended him from the practice of law in New York for a total of 24 months. In the Matter of Gonzalez, Determination (New York State Commission on Judicial Conduct April 13, 2022).
  • Adopting the findings of the Board of Professional Conduct, based on stipulations, the Ohio Supreme Court suspended a judge for 6 months for berating a litigant for nearly an hour during a status conference after the litigant had criticized him at a board of commissioners meeting for not disqualifying himself from cases in which his daughter appeared as an attorney; allowing his daughter “to continue his line of intemperate interrogation;” and appearing at a commissioners’ meeting to accuse the litigant of “publicly disparaging and slandering him and [his daughter];” the suspension was stayed on the conditions that he commit no further misconduct and complete 6 hours of continuing judicial education. Disciplinary Counsel v. O’Diam (Ohio Supreme Court April 28, 2022).
  • The Texas State Commission on Judicial Conduct publicly admonished a former judge for failing to cooperate in the Commission’s investigation of complaints against him. Public Admonition of Nolen (Texas State Commission on Judicial Conduct April 7, 2022).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for (1) posting and reposting racial, ethnic, and religious comments and/or memes on social media; (2) issuing peace bond warrants for President Biden and Dr. Anthony Fauci based on alleged “threats to commit an offense” against multiple anonymous complainants; and (3) lending the prestige of his judicial office to advance the private interests of a charitable organization he had created and soliciting funds for that organization. Public Warning of Black (Texas State Commission on Judicial Conduct April 7, 2022).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) during a protective order hearing, ordering an attorney escorted to the jury box where her bailiff shackled him to a chair and then continuing with the hearing; and (2) just over a week later, having a second attorney escorted to the jury box where her bailiff shackled him to a chair and instructing the attorney’s son, who had arrived to represent him, never to come into her courtroom again. Public Reprimand of Stalder (Texas State Commission on Judicial Conduct April 20, 2022).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for his outbursts during the trial in a divorce case and during an ex parte confrontation with one of the lawyers in his chambers; the Commission also ordered the judge to obtain 2 hours of instruction with a mentor. Public Admonition of Wells (Texas State Commission on Judicial Conduct April 20, 2022).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a former part-time judge for donating to the campaign of a mayoral candidate and introducing the candidate at the campaign kick-off rally. In re Bennett, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 22, 2022).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for reckless driving and telling the arresting officers that an arrest would damage his career. In re Imboden, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 22, 2022).
  • The West Virginia Judicial Investigation Commission publicly admonished a magistrate for (1) making statements to a reporter in response to a police captain’s criticism of his bond in a case and a heated exchange during a meeting with police officers about the criticism; (2) swearing at a police officer during a telephone call about the bond in another case; and (3) asking lawyers who appear before him and a bail bondsman to submit letters in support of him to Judicial Disciplinary Counsel. Public Admonishment of Gaujot (West Virginia Judicial Investigation Commission April 25, 2022).
  • The West Virginia Judicial Investigation Commission publicly admonished a magistrate for (1) when police officers responded to a neighborhood incident, swearing, invoking his position as a magistrate, making a demeaning stereotypical comment about his neighbor’s wife, and denigrating the homeless; and (2) serving as an administrator for a neighborhood watch Facebook page and an unseemly comment by his wife on that page that people thought the magistrate had posted. Public Admonishment of Weiss (West Virginia Judicial Investigation Commission April 25, 2022).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for holding 2 correctional officers in contempt because they asked to contact their supervisor before transporting a prisoner to a different jail. Public Admonition of Murensky (West Virginia Judicial Investigation Commission April 25, 2022).

Throwback Thursday

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20 years ago this month:

  • Pursuant to a stipulation for discipline by consent, the California Commission on Judicial Performance publicly censured a former judge for a pattern of improper financial dealings and fiduciary activities, continuing to serve as a trustee of several trusts after becoming a judge, failing to disqualify from cases involving trusts for which he was trustee, and failing to disclose trustee fees, loans, and property interests on his statements of economic interest.  Inquiry Concerning Sullivan, Decision and Order (California Commission on Judicial Performance May 17, 2002).
  • Approving an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for asking another judge on behalf of a friend to vacate an order of protection he had issued.  In the Matter of Williams, Determination (New York State Commission on Judicial Conduct May 17, 2002).
  • 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 convicting an unrepresented defendant and imposing a jail sentence after the defendant had pleaded not guilty, without a trial, relying on the defendant’s incriminating statements at arraignment, and without the defendant changing his plea to guilty or waiving his right to a trial.  In the Matter of Hise, Determination (New York State Commission on Judicial Conduct May 17, 2002).
  • 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) writing an article for a newsletter in which he attempted to obtain support among local residents for construction of a highway bypass and stating that he had increased the fines on truck drivers to discourage them from using local routes and that he would continue to do so and (2) in 16 cases after accepting guilty pleas, imposing fines that were $20 to $70 in excess of the statutorily authorized maximum fine for the specific convictions.  In the Matter of Reid, Determination (New York State Commission on Judicial Conduct May 17, 2002).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for receiving and considering an ex parte communication from the victim in a criminal case and failing to disclose the communication prior to trial.  In the Matter of Lukevich, Stipulation, Agreement and Order of Admonishment (Washington State Commission on Judicial Conduct May 9, 2002).

Thin skin

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In 2 recent cases, judges were sanctioned for inappropriate reactions to public criticism.

The West Virginia Judicial Investigation Commission publicly admonished a magistrate for (1) making statements to a reporter in response to a police captain’s criticism of his bond in a case and a heated exchange during a meeting with the police about the criticism; (2) swearing at a police officer during a telephone call about the bond in another case; and (3) asking lawyers who appear before him and a bail bondsman to submit letters in support of him to Judicial Disciplinary Counsel.  Public Admonishment of Gaujot (West Virginia Judicial Investigation Commission April 25, 2022).

In early November 2021, the magistrate arraigned a defendant charged with severely damaging several police cruisers.  Police Captain Matthew Solomon told a local newspaper reporter that he was concerned that the magistrate had set the bond too low.  The magistrate told the reporter that he gave the defendant a low bond to make sure “the department gets restitution.”  The magistrate also “insinuated” that the law enforcement officers had beat up the defendant, stating, “He’d taken some knocks.  I mean his face was all swollen and I was kinda like ‘yikes,’ that he’d kinda done, he’d paid for that.”  His comments were reported in the newspaper.

After the article was published, the magistrate met with Captain Solomon and Police Chief Eric Powell.  During the meeting, the magistrate loudly addressed Captain Solomon’s decision to complain to the press about the bond.  According to Captain Solomon, the magistrate was belligerent and shouted vulgarities at him.  The magistrate’s behavior was so bad that Captain Solomon left the meeting to diffuse the situation.  Chief Powell said that he had to threaten to have the magistrate removed before he would calm down.

In his sworn statement, the magistrate admitted that he had a heated verbal exchange at the beginning of the meeting and that he had been “livid.”  The magistrate denied saying the vulgarity claimed but admitted saying that Captain Solomon’s speaking to the reporter was “an a**hole decision.”  The magistrate insisted that the meeting with police, his demeanor, and the use of the phrase “a**hole decision” were appropriate and that it was “just men being blunt in an attempt to work through their differences.”  However, when Judicial Disciplinary Counsel pointed out that the law enforcement officers saw an unequal balance of power between them, the magistrate admitted that the incident was inappropriate.

In November 2021, the magistrate arraigned a mother charged with the felony offense of gross child neglect with risk of serious injury after a single vehicle crash that caused injury to several children.  The prosecuting attorney requested a bond of $250,000.  The magistrate, who sits in Monongalia County, thought that she should be given a personal recognizance bond and called a Preston County Magistrate to discuss the prosecutor’s request.  During the call, the other magistrate put Magistrate Gaujot on hold and then returned to the call with the police captain who had investigated the crash.  Captain Tichnell insisted that the magistrate set the bond requested by the prosecutor and threatened that, if the magistrate set a PR bond, he would dismiss the charge against the mother, file more serious charges, and file a judicial ethics complaint.  According to Captain Tichnell, the magistrate repeatedly responded in a vulgar manner. 

In his sworn statement, the magistrate stated that Captain Tichnell was emotional on the phone and would not let him speak.  The magistrate believed Captain Tichnell’s tone, demands, and threat were out of line but admitted that he swore at Tichnell and that his conduct was inappropriate.

The Commission stated:

A judge must have a thick skin.  Not everyone will agree with the decisions that judges must make in cases on a daily basis.  There will always be at least one party who will disagree with the decision and they are free to openly criticize the judge if they so choose.  However, judges are constrained by the rules from replying to criticisms and shall not do so when they involve a matter that is pending or impending in any court.

Judicial temperament is an absolute requirement.  Not only does a judge set the tone of his/her courtroom but he/she in large part owes his/her reputation to acts of courtesy, civility and consideration.  Judges must also realize that how people view the judge is how they view the court system as a whole.  In order to gain respect, a judge must give respect even in difficult circumstances.

Judges are often perceived as the most powerful person in his/her county.  In other words, the balance of power is never equal where a judge is involved and it is usually heavily tipped in his/her favor.  Therefore, a judge must at all times take into consideration how he/she is viewed by his/her opponent before commenting.  A simple negative comment by a judge may be viewed by his/her opponent as a threat.  Therefore, judges should choose their words wisely.  Respondent failed to follow these precepts.

* * *

The Ohio Supreme Court suspended a judge for 6 months for berating a litigant who had criticized the judge at a board of commissioners meeting because he presided in cases in which his daughter was an attorney, for allowing his daughter to interrogate the litigant, and for subsequently appearing at a commissioners’ meeting to accuse the litigant of “publicly disparaging and slandering” him and his daughter.  Disciplinary Counsel v. O’Diam (Ohio Supreme Court April 28, 2022) ().  The suspension was stayed conditioned on the judge committing no further misconduct and completing 6 hours of continuing judicial education on demeanor, civility, and professionalism.  The Court adopted the findings of the Board of Professional Conduct, which were based on stipulations.

The judge practiced estate-planning, trust, and probate law as a majority shareholder of a law firm.  His daughter, Brittany O’Diam, joined the firm in 2010 and remained at the firm after the judge was appointed Greene County probate judge in 2013.  The firm’s shareholders made regular payments to the judge for his shares until March 2021.

In January 2018, Carolee Buccalo’s granddaughter retained Brittany to represent her in the administration of Carolee’s estate.  In May, Brittany filed an application to probate the will in Greene County.  Brittany also filed 7 waivers of disqualification signed by the beneficiaries of the estate.  3 of the waivers were from Carolee’s son Grant Buccalo, in his personal capacity, as a trustee, and as a guardian for one of his brothers.  The waivers disclosed the judge’s familial relationship to Brittany and his position as a former shareholder and creditor of her law firm, acknowledged that those circumstances may disqualify the judge from presiding over cases in which attorneys from the firm represented the executor, but stated that the signatories trusted that the judge would act impartially and fairly. 

On May 26, 2019, at a public meeting of the Greene County Board of Commissioners, Grant Buccalo expressed his belief that the judge should recuse himself from cases in which his family members represent parties.  Buccalo added that when people leave the courtroom, they need to feel that they “got a fair shake” and that the system “wasn’t rigged.”  Buccalo spoke for approximately 2 ½ minutes and stated that he merely wanted to ensure that the commissioners were aware of the judge’s practice; he did not specifically mention his mother’s estate or express any concern regarding the case, although he did state that he planned to file a grievance with Disciplinary Counsel.

The judge’s chief deputy clerk informed the judge of Buccalo’s statements to the commissioners, and the judge obtained a video recording of the meeting.  The judge then scheduled a status conference in Carolee’s estate case and ordered the executor and the 3 local beneficiaries, including Buccalo, to appear, cautioning that, “Failure to attend this Status Conference will be deemed contempt of court.”

At the status conference, the judge thanked the beneficiaries “for showing up on such short notice,” explained that a “very disturbing incident [had] taken place with the estate,” stated that he needed to get it resolved that day, and played the recording of Buccalo’s comments at the commissioners’ meeting.  He called Buccalo to the stand, placed him under oath, and informed him that any false statements would constitute perjury.  He then cross-examined Buccalo for nearly an hour.

For example, the judge told Buccalo to read the waiver of disqualification into the record and then asked him, “Is there anything in the second paragraph that you don’t understand?”  Becoming emotional as the judge questioned him, Buccalo explained that he was “an emotional mess” when he signed the waiver and had not read it closely.  The judge asked:  “[D]id anybody not ever advise you that before signing your name on a document, you should read it?”  Buccalo answered, “[O]f course.”

When the judge asked Buccalo if he believed that the commissioners were “over” his court, Buccalo testified, “I think they have some influence.  I might be wrong on that.”  The judge replied, “You are.”  He then asked Buccalo whether he had ever read the Ohio Constitution and the U.S. Constitution and whether he was aware of the concept that the 3 branches of government are independent of each other. 

The judge also questioned Buccalo about how he was able to comment on the court and “trash” the judge to the commissioners given that the topic was not related to any item on the meeting agenda.  Buccalo explained that he had contacted the commissioners’ office before the meeting and was told that they would give him time to speak on the issue.  The judge responded, “So the board of commissioners knew what the topic was going to be * * * even though they’re well aware that they have nothing to do on the authority of a court” and “It was a public forum in which you could go make your argument without my knowledge, without me being there.  Seems to me it was basically a free shot.”  Buccalo replied, “Oh, no.  I didn’t look at it that way,” and the judge replied, “I do.”

The judge told Buccalo that he and the commissioners had had a “run-in” before and that they “almost went to blows” over the commissioners’ attempt to interfere with the administration of his court.  (The Court noted that, a month before the status conference, it had issued a peremptory writ prohibiting the judge “from enforcing orders related to a dispute he had had with the commissioners regarding courtroom space.”)  In response to Buccalo’s statement that the commissioners had changed their rules on public comment because people would “demagogue” them, the judge replied, “Isn’t that exactly what you did about me?  That you went in and demagogued me in front of the commissioners * * *.”  Buccalo stated, “I wouldn’t call it demagogue,” to which the judge responded, “I’ll tell you what I would call it.  I would call it slander.”  Although Buccalo attempted to explain, the judge interrupted, saying, “I need to move on * * *.”

After questioning Buccalo for almost an hour, the judge allowed Brittany to question him for more than 15 minutes.  Brittany asked a couple of questions about the waiver of disqualification and then said, “[D]o you expect that I should have known that you had an issue even though I received a signed waiver from you?”  Buccalo attempted to explain his concerns, stating, “I’m not trying to argue with you.”  Brittany replied:  “I am.”  Brittany repeatedly asked Buccalo whether he had ever raised concerns about the waiver to her.  When he said he had not, Brittany stated, “And yet you still thought it was appropriate to impugn my character as an attorney in the public forum of a public county commissioners meeting, as well as the character of the court, which has been addressed?”  Buccalo responded, “We might have differences of opinion,” to which Brittany replied, “We certainly do.”  Buccalo stated, “I’m not trying to be rude, but when I did public comments * * * I make a habit of not trying to make them personal.”  Brittany retorted, “You failed in this account.”

Brittany closed by telling Buccalo:  “You have cost this estate an extensive amount of money, an extensive amount of heartache and an extensive amount of stress that was all completely unnecessary had you just proceeded like an adult.”  Buccalo stated, “And I have no response to that,” to which Brittany replied, “No you do not.  It was not a question.  * * *  It was a statement,” and then claimed, “This is not an adversarial proceeding.”

After Brittany’s interrogation of Buccalo, the judge made remarks similar to his earlier statements.  Later that day, the judge issued a notice of disqualification.

A week after the status conference, the judge and Brittany attended a board of commissioners’ meeting.  After explaining that he and Brittany obtained waivers of disqualification whenever Brittany represents parties in uncontested cases before him, the judge told the board that, “[Buccalo] chose to be untruthful to you and the public, to unjustly smear myself and my daughter.  That is simply despicable.”  The judge then claimed, “We do not have a problem in probate court.  What we have is a problem with people improperly using this Board as a public forum to lodge unfounded and false accusations.”  After expressing his disappointment that the commissioners had permitted Buccalo to speak on the issue, the judge stated that “[t]his is not the proper forum to wage personal vendettas against any public official.”

The Court found that the judge had violated Rule 2.8(B) in 3 ways:  by failing to be patient, dignified, and courteous while interrogating Buccalo, by failing to “require Brittany—an attorney who was under his direction and control—to conduct herself in a patient, dignified, and courteous manner when she questioned Buccalo,” and by failing to be patient, dignified, and courteous while appearing before the county commissioners.  The Court noted that the judge had “planned his course of action against Buccalo—and had more than a week to contemplate whether it was appropriate for him to appear before the commissioners and publicly berate Buccalo for a second time.”  The Court rejected the judge’s argument that he was “carrying out [his] responsibilities as the judge” because “the purpose of the status conference was to determine whether the waivers that Buccalo signed remained valid and whether he could continue to preside over the case.”  The Court concluded that the judge’s “primary concerns were the effects that Buccalo’s public statements had on [his] reputation, his daughter’s reputation, and the reputation of his court and how those statements personally offended him.”

Throwback Thursday

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25 years ago this month:

  • The Arkansas Judicial Discipline and Disability Commission publicly reprimanded a judge for delays in rendering decisions in 13 cases.  In the Matter of King, Final Decision and Order (Arkansas Judicial Discipline & Disability Commission May 21, 1997).
  • Pursuant to the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for (1) addressing an assistant state attorney as she attempted to state an objection in a raised tone of voice and remarking, for example, “Yeah, you’ll be sorry.  Keep your mouth shut while I’m talking to him,” “Well, there’s no objection required here and if you talk any more it’s an order,” and “You don’t open your mouth anymore until I invite you to do so and if you do I’m gonna hold you in contempt;” and (2) during a second case, berating a second assistant state attorney in an improperly raised voice; refusing to allow the victim to make a statement as was her right, addressing the victim in an improperly raised voice, and acting in an overbearing and dictatorial manner; and having the bailiff physically escort the victim to the rear of the courtroom and making gestures and noises mimicking a shooting gun as she was led away.  Re Wright, 694 So. 2d 734 (Florida 1997).
  • Based on a joint statement of circumstances and conditional agreement, the Indiana Supreme Court suspended a judge for 30 days without pay for failing to disqualify himself from a case in which he had submitted written materials highly critical of the defendant and in support of an attorney against whom the defendant had filed a grievance or to disclose that fact to the defendant; imposing a lengthier sentence on the defendant who demanded a jury trial than he would have imposed if she had submitted to a bench trial or pleaded guilty; and  misrepresenting the law to the defendant and forcing her to choose between proceeding without counsel or exercising her right to counsel and facing contempt and incarceration.  In the Matter of Cox, 680 N.E.2d 528 (Indiana 1997).
  • The Kansas Commission on Judicial Qualifications ordered a judge to cease and desist imposition of a probationary condition that prohibited a juvenile offender from associating with Hispanic males under the age of 21 unless in the company of an adult or unless they were family members.  Inquiry Concerning Robertson, Order (Kansas Commission on Judicial Qualifications May 16, 1997).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a court of appeal judge who had sat as a member of a panel that heard the appeal of a party with whom the judge had a close, personal relationship.  In re Cooks, 694 So. 2d 892 (Louisiana 1997).
  • Agreeing with the recommendation of the Commission on Judicial Qualifications, the Nebraska Supreme Court suspended a judge for 6 months without pay for disseminating religious materials to jurors and for offensive and unwelcome conduct that amounted to sexual harassment toward female court personnel, citizens having business in the courts, and student interns  In re Empson, 562 N.W.2d 817 (Nebraska 1997).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for issuing a warrant of eviction based solely on the ex parte request of the landlord, without any notice to the tenant and without conducting any court proceeding.  In the Matter of Holmes, Determination (New York State Commission on Judicial Conduct May 29, 1997).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for stating, “Oh, it’s been a rough day — all those blacks in here” and conditioning his disqualification from a case on the withdrawal of complaints against him.  In the Matter of Jensen, Determination (New York State Commission on Judicial Conduct May 29, 1997).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to enter a decree and judgment on a dissolution case that he had under advisement for more than 11 months, contrary to administrative policies and statute.  Rosas, Press release (Minnesota Board on Judicial Standards May 1997).

More Facebook fails

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Private sanctions

In its 2021 annual report, the California Commission on Judicial Performance stated that it had issued an advisory letter to a judge who “posted remarks on social media, expressing points of view on controversial issues, that conveyed an appearance of bias against prosecutors and law enforcement.” 

In 2022, based on the judge’s agreement, the Kentucky Judicial Conduct Commission privately reprimanded a judge for, after consuming too much alcohol, sending a participant in a court program over which he was presiding a private message on social media that was flirtatious and expressed his desire to meet with the individual at the conclusion of their participation in the program. 

In 2021, Louisiana Judiciary Commission privately cautioned a judge for social media activity that conveyed an appearance of partiality. 

In its 2021 annual report, the Minnesota Board on Judicial Standards stated that it had privately cautioned 2 judges that “‘liking’ the page of a candidate for public office could be construed as support or opposition of a candidate for public office” and “encouraged the judges to monitor and maintain strict privacy settings on their Facebook accounts.” 

In 2021, the Texas State Commission on Judicial Conduct privately admonished a judge who had appeared in a social media video depicting the judge dancing in their courtroom to a song with explicit lyrics, as requested by a person who could use the video to promote their own social media. 

In 2022, the Texas Commission ordered additional education for a judge who made a social media post promoting a conference in which the judge was participating and engaged in improper solicitation of funds for the conference. 

In 2022, the Texas Commission privately warned and ordered additional education for a judge who, in addition to other misconduct, in Facebook posts, recommended a particular attorney and praised the work of particular lawyers appearing in their court. 

COVID orders and memes

The Texas State Commission on Judicial Conduct publicly admonished a justice of the peace for stating in a Facebook post that he would release anyone brought before him charged with violating stay-at-home orders issued during the COVID-19 public health emergency.  Public Admonition of Black (Texas State Commission on Judicial Conduct February 28, 2022).

Just over a month later, the Texas Commissionpublicly warned the same justice of the peace for posting and reposting racial, ethnic, and religious comments and/or memes on social media, in addition to other misconduct.  Public Warning of Black (Texas State Commission on Judicial Conduct April 7, 2022).  For example, some posts contrasted “white folks” and “violent black behavior;” some asserted that “Muslims need to learn to be American;” some claimed, “You’re not Special” because “white slaves were sold for centuries;” and some displayed the Confederate battle flag with the caption, “If we had equal rights … my southern heritage would be just as important as your black history.”

Political fundraiser

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, posting an invitation to a fundraising event for the county Republican committee on Facebook, in addition to other misconduct.  In the Matter of Coffinger, Determination (New York State Commission on Judicial Conduct February 23, 2022).

4 times, the judge posted to her campaign’s Facebook page an invitation to the Hamilton County Republican picnic that read, “You are Invited 2019 Republican Picnic and Meet the Candidates Day!”  The invitation offered food, drinks, “Music, Bingo, Door prizes and more.”  Ticket prices ranged from $12 to $35.  The invitation also read, “Tickets – See any Republican Committee Member.”  All of the judge’s posts advertising the event were viewable by the public.

The event was a fundraiser and generated a profit of nearly $1,800 for the Hamilton County Republican Committee.  The judge spoke at the event.

The judge acknowledged that, although she believed the event was a social occasion held to thank committee members and introduce the candidates, in retrospect, “she should have made inquiries and been aware that it was a fundraiser which would have precluded her from posting the invitation or otherwise advertising the event.”

Sexually charged content and the NRA

A judge has asked for review of the decision of the New York State Commission on Judicial Conduct removing him from office for (1) posting and disseminating sexually charged content on social media when he used his Facebook account to publicly promote and/or approvingly comment on posts and images that were demeaning toward women or otherwise offensive and (2) using his Facebook account to publicly engage in fundraising for the National Rifle Association.  In the Matter of Stilson, Determination (New York State Commission on Judicial Conduct January 7, 2022), review requested.  The Commission also found that the judge exacerbated his misconduct by failing to respond to the Commission proceedings. 

Ex parte communications

Reviewing the findings and recommendation of the Judiciary Commission, which were based on stipulations, the Louisiana Supreme Court suspended a judge from office for 4 months without pay for, while he was presiding over a child custody case, engaging in improper ex parte communications on Facebook Messenger with the children’s maternal grandmother for over a 6-month period and related misconduct.  In re Denton (Louisiana Supreme Court March 25, 2022).

The case underlying the discipline proceeding involved 2 children.  Their mother had a history of substance abuse and mental health issues.  Their father was not involved in their lives for the first several years after they were born.  As a result, the children were primarily cared for by their maternal grandmother, Stephanie Bardeau-Marse.

In September 2017, the Department of Children and Family Services received a report of erratic behavior and suspected drug use by the mother in the presence of one of the children.  At the request of DCFS, the judge granted an order placing the 2 children in the temporary custody of DCFS.  In October 2017, the State filed a petition to adjudicate the children in need of care.

In December 2017, Bardeau-Marse filed a petition to intervene in the proceeding and requested custody of the children.  In January 2018, the judge denied the petition.  Following a hearing, the judge granted custody of the children to the father with monitoring by DCFS; ordered visitation for the mother and the grandparents to be facilitated by a relative; and set a case review hearing for April 12, 2018.

Approximately 3 weeks before the case review hearing, in a private message on Facebook Instant Messenger, Bardeau-Marse mentioned a “small circle of friends that we share and both consider friends” to the judge and stated, “I’m begging for someone to listen to me . . . since my attorney was pretty much thrown out of the courtroom and my pleading petition was not heard. . . .  I’m asking to please let me have a heart to heart conversation with you, again on a personal level, I want to explain my situation/self how those babies are loved how they are our heart . . . .”  Bardeau-Marse also said that “anyone who knows me and my family know[s] what kind of people we are and how we live . . . including Ex-mayor Jimmy Durbin. . . .  May I please have an hour of your private time at your convenience on that personal level?”

The judge did not know Bardeau-Marse and did not respond to her message.

In the case hearing On April 12, the judge denied Bardeau-Marse’s second petition to intervene and request for custody of the children and granted sole custody of the children to the father, with supervised visitation to the mother but no specific visitation rights for Bardeau-Marse.  At the urging of the attorneys for the children and DCFS, the judge retained jurisdiction over the case.

At 7:49 p.m. that day, the judge called Bardeau-Marse; the call lasted for 100 minutes.  In the call, the judge told Bardeau-Marse that he would keep his eyes on the children’s father and gave her the name and number of a private investigator.

The judge communicated frequently with Bardeau-Marse by Messenger for 6 months (March 2018 to August 2018).

For example, in a message to the judge on April 30, at 6:05 a.m., Bardeau-Marse discussed her difficulty in seeing her grandchildren.  The judge replied at 6:32 a.m.:  “I am so sorry for your continued pain.  I don’t have the answer, but I am working on the entire situation.  I assure you because I am not happy with the current exigencies as currently exist.  Keep praying and I will do the same.”

On May 11, Mother’s Day weekend, at 11:43 p.m., Bardeau-Marse sent the judge a lengthy message about her grandchildren, her daughter, and their conflict with the father over visitation/custody, the father’s alleged drinking and drug abuse, and his alleged mental and emotional abuse of the mother and her side of the family.  The judge responded with a “thumbs-up” emoji.

In July, Bardeau-Marse messaged the judge:  “[The mother] received this letter today . . . does this mean [the father] has full custody now?  And the case is over?  The letter is incorrect . . . these kids were NEVER neglected or abused NEVER . . . .”  At 6:31 p.m., the judge advised her:  “No it does not necessarily mean that it’s over. . . . I do strenuously suggest you go hire the best lawyer you can afford[,] get legal advice and go to court where jurisdiction over custody can be fought over.  I wish I could do more but I have a court of limited jurisdiction.”  A few minutes later the judge messaged:  “I wish I could do more to help[.]  But as it currently sits my hands are tied.  I wish you the very best!  I will continue to pray for you and your family.”  Then, Bardeau-Marse replied:  “I understand . . . I just appreciate you listening . . . .”

Bardeau-Marse informed her attorney, Maria Finley, that she had been communicating with the judge by Messenger texts and telephone calls.  She showed Finley the messages, including the judge’s advice to file a custody suit in another court.  On August 10, Finley filed suit against the father on behalf of Bardeau-Marse, seeking custody or visitation.  The suit was filed in family court and was assigned to Judge Lisa Woodruff-White.

Judge Denton called and then emailed Judge Woodruff-White and suggested that Finley was forum shopping and asked that he be allowed to retain jurisdiction as a “professional courtesy.”  After briefing by the parties, Judge Woodruff-White dismissed the suit against the father, stating that Judge Denton’s court was the more appropriate forum.

The Commission found that the judge had “offered no satisfactory explanation for why he engaged in the conduct” except that he was “sympathetic to the plight of the grandmother,” which may have “impacted and overshadowed some of [his] judgment” and that he had been receptive to her initially because they both had a connection to the former mayor.

Discussing the appropriate sanction, the Court emphasized that the judge “adversely affected the integrity and the respect of the judiciary.”  It explained:

The Commission succinctly summed up the impact of Judge Denton’s actions:  “Judge Denton’s actions resulted in chaotic and contentious proceedings before Judge Woodruff-White and during the writ process that followed, which understandably caused Ms. Finley great distress, deprived or significantly delayed Ms. Bardeau-Marse her day in court, left her feeling confined, betrayed, and devastated.”