Monthly Archives: June 2022

Beyond defense of reputation

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Another judge has been sanctioned for an inappropriate reaction to public criticism.  For a discussion of 2 other recent cases on the topic, see “Thin Skin.”

Based on the report and recommendation of the hearing panel of the Judicial Qualifications Commission, to which the judge had not filed objections, the Georgia Supreme Court publicly reprimanded a judge for berating a bail bondsman who had criticized the judge on Facebook.  Inquiry Concerning Norris (Georgia Supreme Court June 22, 2022). 

On July 5, 2019, the Athens Banner-Herald published an article about a defendant who had failed to appear in court for the retrial of rape charges after the judge had released him on his own recognizance following a mistrial.  

Nathan Owens, a bail bondsman who works in counties in the judge’s circuit, reposted the story to his personal Facebook page and to a large Facebook group called “Overheard at UGA.”  Owens added his thoughts about the judge’s handling of the case, expressing his opinion that the defendant should not have been released on his own recognizance.  “Owens’s post gained a lot of attention,” and the judge asked another bondsman, John Elliott, about contacting Owens.  On July 9, at Elliott’s suggestion, Owens texted the judge, and the judge told Owens to meet him in his office at 9:00 the following morning.

On the morning of July 10, Owens went to the courthouse with Elliott and another bondsman, Scott Hall.  When they arrived at the judge’s chambers, an armed deputy took their cell phones.  The judge then arrived, visibly upset, and instructed Elliott and Hall to remain in the lobby while Owens went into his office.  A deputy stood in the only apparent doorway.

“With his lip quivering and hands shaking,” the judge instructed Owens to “sit down and listen to what I have to say.”  In a raised voice, he began reading from the statutory bondsman code of conduct, which he had printed out for the meeting.  “Becoming nervous,” Owens requested that his lawyer be present, but the judge ignored his request.  He allowed Elliott and Hall to come into his office, and Owens asked them to witness that he wanted to leave or have his attorney present.

For 30 minutes, the judge chastised, berated, and lectured Owens, implying that Owens did not have “good moral character,” insinuating that he had the power to affect Owens’s livelihood as a bondsman, and reprimanding Owens for attacking him online and spreading “fake news.”  Owens, who felt that he was not free to leave, sat quietly and did not respond.  

Noting the panel’s statement that judges must bear public criticism “with grace (or at least stoicism),” the Court stated that “a judge’s defense of himself and his reputation against public criticism is not necessarily, on its own, a rule violation.  Elected judges are afforded First Amendment protections, at least with regard to their campaign activities.”  However, the Court concluded that the judge “went beyond simply defending his reputation, using his power and authority as a judicial officer to summon Owens to his chambers for a meeting, to threaten and intimidate Owens, and to discuss a pending case.”

The Court noted that the violations “were based on non-habitual conduct, with no evidence that he used vulgar language or engaged in any sort of physical altercation.”  However, it found that the judge “had not fully accepted responsibility,” noting he had “offered various justifications for his meeting with Owens” that the panel found “inconsistent and contradicted by other evidence.”  The Court explained:

Judge Norris’s deliberate and conscious planning of this confrontation is particularly problematic, as his misconduct was not the result of a sudden or brief loss of temper.  In fact, Owens’s Facebook post was posted a full five days before the meeting with Judge Norris, Judge Norris had to reach out to another bondsman to get in contact with Owens, Owens and Judge Norris exchanged multiple texts to arrange the meeting, Judge Norris set the meeting in his chambers, during business hours, Judge Norris printed out the statutory bondsman code of conduct, and then Judge Norris delivered an angry 30-minute monologue in a raised voice while Owens was required to sit and listen with an armed deputy standing in the doorway.  Judge Norris also denied Owens’s request to leave or have an attorney present and intimated that Judge Norris could harm Owens’s position as a bail bondsman.

Throwback Thursday

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5 years ago this month:

  • In lieu of filing formal disciplinary proceedings, with the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for participating in an ex parte hearing at which the court clerk was banned from the courthouse without providing the clerk notice of the purpose of the hearing or the opportunity to obtain counsel.  Public Admonition of Barry (Indiana Commission on Judicial Qualifications June 28, 2017).
  • The Maine Supreme Judicial Court ordered that a former probate judge forfeit $5,000 and be suspended from the practice of law in Maine for 2 years for (1) directing that 7 attorneys not be included on the appointments list; (2) removing an attorney from cases to which she had previously been appointed; (3) ordering the destruction of a lawfully obtained public document; (4) issuing orders urging litigants before him to lobby for increased court time; and (5) personally soliciting campaign contributions.  In the Matter of Nadeau, 168 A.3d 746 (Maine 2017).
  • Based on the report of a referee following a hearing, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for seeking special consideration from court officials in connection with an acquaintance’s traffic ticket.  In the Matter of Aluzzi, Determination (New York State Commission on Judicial Conduct June 26, 2017).

Recent cases

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  • Denying a motion for reconsideration, the Arizona Commission on Judicial Conduct publicly reprimanded a judge for writing a letter to the editor of a newspaper defending an attorney from attacks by the county attorney and failing to recuse from a criminal case in which the attorney was a witness.  Bernini, Order (Arizona Commission on Judicial Conduct March 21, 2022).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for questioning an unrepresented defendant and telling him, “I’m pleading you guilty.”  Rummer, Order (Arizona Commission on Judicial Conduct May 24, 2022).
  • Reviewing the findings and recommendations of a hearing panel of the Judicial Qualifications Commission, the Florida Supreme Court suspended a judge for 60 days without pay, fined her $30,000, and ordered her to appear before it to be publicly reprimanded for (1) representing her son at the police station following his arrest and (2) failing to appropriately supervise her judicial assistant, who sat a counsel table during 2 hearings in the judge’s son’s case and gave him her security badge.  Inquiry Concerning Hobbs (Florida Supreme Court May 19, 2022).  The Court also ordered the judge to attend an employee management program.
  • Pursuant to a deferred recommendation of discipline agreement, the Louisiana Judiciary Commission publicly admonished a justice of the peace for improperly charging her constable some expenses attributable solely to the operation of her office, failing to adequately communicate and cooperate with her constable about accounting and fee sharing, and failing to retain in a separate account the filing fees charged for the clerk of court as required by statute; the Commission also ordered the judge to pay $1,929.34 to the constable’s office in restitution.  In re Holmes, Deferred recommendation of discipline agreement (Louisiana Judiciary Commission May 27, 2022).
  • Based on a stipulation of discipline by consent, the New Jersey Supreme Court publicly censured a judge for failing to recuse himself from a matter involving the son of the former mayor and creating the appearance of bias in favor of the former mayor, having an ex parte communication with the former mayor, and amending a search warrant to exclude the former mayor’s firearms without following appropriate procedures.  In the Matter of Killen, Order (New Jersey Supreme Court May 16, 2022).
  • Based on a stipulation of discipline by consent, the New Jersey Supreme Court publicly censured a judge for continuing to sit as a municipal judge for 13 months while she was administratively ineligible to practice law based on her failure to comply with the mandatory IOLTA program.  In the Matter of Guzman, Order (New Jersey Supreme Court May 18, 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 non-lawyer judge; the Commission had informed the judge that it was investigating complaints alleging that he, inter alia, (1) failed to make mandatory reports and remittances to the State Comptroller in a timely manner, (2) failed to record all proceedings, as required by law, and (3) failed to administer his court effectively.  In the Matter of Engle, Decision and order (New York State Commission on Judicial Conduct May 5, 2022).
  • Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a non-lawyer magistrate for 6 months without pay for, while her husband was sheriff, accessing messages with citizen complaints on the sheriff department’s Facebook page and forwarding those complaints to the department using her judicial email account with requests that certain actions be taken, involving herself in sheriff’s department personnel matters, and preparing correspondence on behalf of the sheriff’s department. In the Matter of Underwood (South Carolina Supreme Court May 25, 2022).
  • Pursuant to the judge’s agreement, the Tennessee Board of Judicial Conduct suspended a judge for 30 days for driving under the influence. In re Humphrey, Order (Tennessee Board of Judicial Conduct May 26, 2022).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) summoning several assistant district attorneys to his chambers to express his displeasure with their failure to treat him with sufficient respect and to lecture them that they could be held in criminal contempt for that disrespect, referring to himself as the “king” of his court and calling the ADAs “hang’em high prosecutors” during the meeting; and (2) on at least 1 occasion, threatening on the record to charge an ADA with contempt of court for failing to show him the proper respect. Public Admonition of Jordan and Order of Additional Education (Texas State Commission on Judicial Conduct May 13, 2022). The Commission also ordered the judge to obtain 2 hours of additional education with a mentor on judicial temperament and demeanor and a judge’s role as a public servant.

Throwback Thursday

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10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for saying,  “I know I shouldn’t say it, but I personally did not disagree with what you did” when he accepted a guilty plea from a motorcyclist who had been charged with assault for hitting a driver who had been following him closely, honking, and flipping him off.  Lester, Order (Arizona Commission on Judicial Conduct June 1, 2012).
  • Based on a stipulated resolution, the Arizona Supreme Court publicly censured a judge for taking additional testimony from a plaintiff in a harassment case after disconnecting from the defendant, who was appearing by telephone; failing to cooperate with requests from the Commission on Judicial Conduct; and making affirmative misrepresentations to the Commission.  Inquiry Concerning Parker, Order (Arizona Supreme Court June 4, 2012).
  • Accepting the findings and recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for (1) being habitually tardy for hearings, first appearances, and trials and (2) making a statement introducing his religious beliefs into decision-making; the Court also ordered the judge to submit a letter of apology to the public, his fellow judges, and the legal community and to submit weekly logs for 1 year to special counsel to document his timeliness.  Inquiry Concerning Singbush, 93 So. 3d 188 (Florida 2012).
  • Granting an application filed by the Commission on Judicial Qualifications, the Iowa Supreme Court publicly reprimanded a judge for operating a vehicle while intoxicated.  In the Matter of Block, 816 N.W.2d 362 (Iowa 2012).
  • Based on the judge’s resignation and withdrawal of her request for review, the New York Court of Appeals removed a judge in accordance with the findings of the State Commission on Judicial Conduct that she had (1) improperly intervened in the disposition of a speeding ticket issued to another judge’s wife and (2) accepted special consideration for a speeding ticket that had been issued to herself.  In the Matter of Schilling, Order (New York Court of Appeals June 19, 2012), accepting, Determination (New York State Commission on Judicial Conduct May 8, 2012).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for participating in for-profit poker games and gratuitously referring to his judicial status when the police arrived to execute a search warrant.  In the Matter of Hensley, Determination (New York State Commission on Judicial Conduct June 22, 2012).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for presiding over 8 matters involving his paramour’s relatives without disclosing the conflict; engaging in ex parte communications with his paramour and her relatives concerning 4 of the matters; and making dispositions in 5 of the matters that conveyed an appearance of favoritism.  In the Matter of Young, 974 N.E.2d 658 (New York 2012).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for representing clients in 7 cases before other part-time lawyer-judges in the county in the 17 months after he became a judge.  In the Matter of Mercy, Determination (New York State Commission on Judicial Conduct June 22, 2012).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for telling a group of defendants that he wished he could “pull a trap door” and send them “straight to hell right now.”  Re Houston (Tennessee Court of the Judiciary June 25, 2012).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for conducting a hearing and setting release conditions for a defendant accused of burglarizing the judge’s office.  Re Randolph, Letter of reprimand (Tennessee Court of the Judiciary June 15, 2012).

Prejudicial delay

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Based on stipulations and an agreement that included the justice’s retirement, the California Commission on Judicial Performance publicly admonished an appellate court justice for (1) delays in deciding approximately 200 cases over a 10-year period and (2) failing to properly exercise his authority as administrative presiding justice to prevent chronic delays in cases assigned to other justices on the court.  In the Matter Concerning Raye, Decision and order (California Commission on Judicial Performance June 1, 2022).  The justice retired effective June 1 and agreed not to seek or hold judicial office in the future, except that, “in the interest of justice,” he may conclude matters previously assigned to him that cannot be completed by June 1 and that “would place an undue burden on the other justices if they were reassigned.”  The justice also may respond to any requests from the court for information about cases assigned to him before his retirement.

The justice had been the Administrative Presiding Justice of the Third District Court of Appeal since 2010. 

The Commission noted that from 2011 to 2021, the justice authored opinions in over 1,200 matters, a substantial percentage of which were decided within a year after briefing was completed.  However, it emphasized that, during that same period, “a significant number of cases languished for years,” and more than a year passed between the completion of briefing and the issuance of an opinion or dismissal in approximately 200 matters assigned to him.

  • In the justice’s oldest completed case, the parties dismissed the matter when 7 years and 9 months had passed after it was fully briefed.
  • 2 of his cases were delayed between 6 and 7 years; 5 between 5 and 6 years; 17 between 4 and 5 years; 29 between 3 and 4 years; and 45 between 2 and 3 years.
  • In the justice’s oldest pending case, a criminal matter with youthful offenders, the case has been fully briefed for 8 years and 7 months.

In the Third District, the court does not schedule oral argument or ask the parties if they want to waive oral argument until the justice assigned to the case has written a draft opinion on which at least 2 justices on the panel agree.  The delays at issue in the discipline case were “pre-submission,” that is, between the case being fully briefed and the oral argument being heard or waived or the case being dismissed.

Although acknowledging that the Third District has a high volume of cases, the Commission found that the justice’s delays could not be “attributed solely to an overburdened court” as “virtually all” of the other justices on the court did not have a similar pattern of delay.  Moreover, it noted that, after an inquiry from the Commission, the percentage of cases assigned to the justice that were decided more than a year after being fully briefed declined to approximately 7% from 14-35%, suggesting that the justice could have decided matters in a more timely manner.  The Commission emphasized that the judge “failed to prioritize efforts so that older cases could be resolved before work began on newer ones.”  The Commission found that the evidence did not show that the justice had intentionally disregarded his duties but noted that he had been “aware of his growing backlog of cases.” 

The justice had also known that, throughout the time he served as the administrative presiding justice, “there were chronic delays in cases assigned to some of the other justices on the court.  From January 2011 through March 2021, the decisions in 1,861 matters were delayed for more than one year from the completion of the briefing on the appeal; 768 of those cases were pending for more than two years after the completion of the briefing in the case.”

Although as administrative presiding justice the justice had several times circulated target standards for the timely processing of appeals, “the standards were often excused.”  He “took various steps to reassign cases or pause assignments to chambers that were particularly backlogged,” but, as he knew, “these steps did not resolve the chronic delays,” and at times, “burdened the justices on the court who had fewer older cases.”  The Commission noted that, although the justice repeatedly discussed the issue of delay with the other justices, he did not “propose and advocate changes to court procedure that would ensure the prompt resolution of older cases.”  As a result, it found, he did not fulfill his administrative responsibility and failed “to provide a forum for the expeditious resolution of appellate disputes.”

The Commission further found that the justice’s “conduct caused prejudice to civil litigants and criminal defendants.”  It explained:

Prejudice can occur in civil cases by parties suffering from uncertainty as disputes remain unresolved, or the payments of money judgments are delayed.  In criminal cases, appellants are prejudiced if they have served all or part of a reversed sentence, or when faded memories or lost evidence hamper resentencing hearings or retrials.  Prejudice can also manifest as “increased anxiety, mistrust, hopelessness, fear, and depression” that “results from the very thwarting of the hope that liberty will be restored through a right that the State has guaranteed — the appellate process.”

Citing the Commission’s “confidential investigation and stipulated findings” about case delays in the Third District, the Chief Justice of California has created an appellate caseflow workgroup “to review Courts of Appeal workflow, policies, procedures, and case management processes to promote transparency, accountability, and efficiency in rendering timely judgments.”

Throwback Thursday

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20 years ago this month:

  • Approving an agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for an ex parte conversation with the father’s attorneys in a custody case in which the attorneys told the judge that a psychologist who had counseled the mother and children had committed forgery; at the father’s attorney’s suggestion, referring the matter to law enforcement without telling the mother’s attorney or disqualifying himself from the case; and making comments about the alleged forgery during a hearing in the case.  In the Matter of Morton, 770 N.E.2d 827 (Indiana 2002).
  • The Kentucky Supreme Court affirmed the decision of the Judicial Conduct Commission suspending a judge for 180 days without pay for (1) suspending a 9-day jail sentence in a pending misdemeanor criminal action on the condition that the defendant pay child support to his ex-wife following ex parte communications from the defendant and his attorney and without notice or involvement of the attorney for the state; (2) asking a state trooper, as a personal favor, to be present when a woman retrieved her personal belongings from the residence of an ex-boyfriend in order to move in with the judge; (3) threatening the ex-boyfriend of a woman with whom the judge was having a relationship that he would inform law enforcement authorities that the boyfriend, who was the owner of a used-car dealership, was altering odometer readings; and (4) during an informal appearance before the Commission, representing that he did not have a personal relationship with a woman until November 2000, when the personal relationship began at least as early as August 1998.  Thomas v. Judicial Conduct Commission, 77 S.W.3d 578 (Kentucky 2002).
  • Affirming the decision of the Trial Division, the Appellate Division of the Oklahoma Court on the Judiciary removed a judge from office for (1) threatening a locksmith with contempt if he did not give the judge a key to the clerk’s office; (2) ordering sheriff’s deputies to arrest a defendant without a warrant and hold him without bond; (3) failing to follow proper procedures in terminating a defendant from the drug court program and relying on ex parte communications and inadmissible polygraph results in sentencing the defendant; and (4) issuing a written general order directing all law enforcement agencies to assist a father take physical custody of his minor children based on ex parte communications, without any allegation that the children were in any danger or any written request for relief.  State v. Colcazier, 106 P.3d 138 (Appellate Division Oklahoma Court on the Judiciary 2002).
  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge from office for (1) repeatedly failing to produce transcripts or produce them timely and accurately and (2) willfully and persistently refusing to comply with supervisory orders from the court of appeal directing the production of necessary transcripts, resulting in the commencement of contempt proceedings.  In re Hunter, 823 So. 2d 325 (Louisiana 2002).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for writing a letter on judicial stationery to a school official challenging an administrative determination concerning the judge’s son.  In the Matter of Nesbitt, Determination (New York State Commission on Judicial Conduct June 21, 2002).
  • In an attorney disciplinary proceeding, the Ohio Supreme Court indefinitely suspended an attorney for, while a judge on the court of appeal, receiving loans from attorneys who regularly appeared before him.  Office of Disciplinary Counsel v. Cox, 770 N.E.2d 1007 (Ohio 2002).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate for failing to deposit money received in payment of a fine and spending some of the money on personal items.  In the Matter of Addie, 564 S.E.2d 668 (South Carolina 2002).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate for consistently failing to comply with record-keeping and money-handling requirements.  In the Matter of Sanders, 564 S.E.2d 670 (South Carolina 2002).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a magistrate for making a directed verdict in a criminal case without allowing the defendant to present testimony, call witnesses, or offer any evidence in his defense.  In the Matter of Dash, 564 S.E.2d 672 (South Carolina 2002).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for (1) using official judicial letterhead for a letter to the district attorney concerning the independent audit of the courthouse drug vaults and providing the local newspaper with a copy of the letter; and (2) engaging in a “relentless extra-judicial pursuit of alleged illegal or unethical conduct by the District Attorney, the Texas Rangers, and the Department of Public Safety,” including using official judicial letterhead and providing copies of letters to the state legislature, for their failure to pursue a case against 2 women who allegedly kidnapped a third women at gunpoint, beat her up, and smeared her with cow manure.  Public Warning of Gibson (Texas State Commission on Judicial Conduct June 5, 2002).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for chasing an 11-year-old child who had squirted the judge in the back with a water pistol, placing the boy in a headlock, pulling his head back by the hair, and squirting the child in the face with the water pistol.  Public Admonition of McGee (Texas State Commission on Judicial Conduct June 5, 2002).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) intentionally demeaning a game warden by using the term “bird and turtle” in reference to his work, allowing his court staff to create a hostile atmosphere in connection with the warden’s visits to the judge’s offices to inquire about the disposition of several alcohol-related citations he had issued, conveying that hostility to the warden, and being less than candid about what transpired at his meeting with the warden; and (2) unreasonably and purposefully delaying signing a death certificate for 4 days based on court staff’s statements that the funeral home staff had been rude, demanding, and unreasonable. Public Admonition of Boyett (Texas State Commission on Judicial Conduct June 5, 2002).
  • • The Texas State Commission on Judicial Conduct publicly warned a judge for (1) exhibiting favoritism and partiality in appointments and (2) removing new family law and juvenile cases from the jurisdiction of a new judge, creating an appearance the judge was using his position and authority to advance his own private interest or the private interests of others. Public Warning of Emerson (Texas State Commission on Judicial Conduct June 28, 2002).
  • • The Texas State Commission on Judicial Conduct publicly reprimanded a judge who ordered a bailiff to remove a prospective juror’s 4-year-old child from the courtroom and forcing the tearful mother to remain in the courtroom until the judge had completed qualifying the jurors. Public Admonition of Ott (Texas State Commission on Judicial Conduct June 21, 2002).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a former part-time judge for her conviction of DUI for an incident that took place while she was a judge  and for a delay in ruling on a case from December 21, 1999, until she resigned on October 2, 2000.  In re Lake, Stipulation, agreement, and agreed order of admonishment (Washington State Commission on Judicial Conduct June 7, 2002) ().
  • • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for a delay of over 4 years in rendering a final detailed opinion following a preliminary letter opinion in a case. In re Van Nuys, Stipulation, agreement, and agreed order of admonishment (Washington State Commission on Judicial Conduct June 7, 2002).

Pride

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2 recent judicial ethics advisory opinions addressed judges’ participation in Pride month events.  As noted by the New York Judicial Ethics Advisory Committee, “Pride month typically celebrates a wide range of sexual and gender identities and gender expressions, often including lesbian, gay, bisexual, transgender, queer, intersex, and asexual identities (LGBTQIA+).”  New York Advisory Opinion 2022-75.

The New York committee stated that a judge may speak at a free community celebration of Pride month when the event is not a fund-raiser and subject to generally applicable limitations on speech and conduct.  A non-profit organization had invited the inquiring judge to speak about the judge’s experience as a member of a minority group.  The committee explained that, “in general, judges may publicly discuss their professional and personal background and experience.”  The committee cited previous opinions allowing a judge to speak at a foreign consulate about becoming the first judge of a particular gender and ethnicity in a specific judicial district (New York Advisory Opinion 2015-133) and to speak about their background and experience in becoming a judge at schools and places of worship affiliated with a certain religion (New York Advisory Opinion 2017-12).  The opinion reiterated that sharing “their experiences as a judge and as a member of a particular minority group at a non-fund-raising community event hosted by a not-for-profit organization . . . ‘is clearly compatible with judicial office, and unlikely to cast reasonable doubt on the judge’s impartiality, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties.’”  The committee also noted that “’a judge need not conceal his/her judicial status when engaging in permissible extra-judicial activities’” and added that the judge may allow the organization to use their photo and title in social media promotions for the event.

The Colorado Judicial Ethics Advisory Board stated that a judge, subject to several conditions, may attend and watch the Denver PrideFest festival and parade and may march in the parade with a bar association such as the Colorado LGBT Bar Association.  Colorado Advisory Opinion 2022-1.  The committee noted its advice also applied to similar events such as Cinco de Mayo, the Marade, and Juneteenth.  

“Denver PrideFest is promoted as a ‘celebration of community and culture that is welcoming, inclusive and fun to all attendees, regardless of sexual orientation or gender identity.’  The two-day festival celebrates ‘the heritage and culture of the LGBTQ+ community in Colorado’ and draws more than 450,000 participants.”

The committee concluded:  “Because PrideFest is a community festival intended to promote inclusivity, equal rights, and equal application of the law, there is no concern that a judge’s participation in the event would undermine the public’s confidence in the judiciary or give the appearance of impropriety or bias.”  In support of its conclusion, the committee cited advisory opinions from other states allowing judges to participate in community parades in general (Ohio Advisory Opinion 2017-8), to serve as the grand marshal of a city’s ethnic day parade (Connecticut Informal Opinion 2015-18), to serve as the grand marshal of a St. Patrick’s Day parade (New York Advisory Opinion 2004-144), and to participate in and attend events sponsored by Gay and Lesbian Activist Defenders (Massachusetts Advisory Opinion 1995-8).

As it has for other public events, the committee reminded the judge to continue “to evaluate whether participation is appropriate leading up to and during the event” and not to identify as a judge while participating.  Noting that “although PrideFest is intended to be non-partisan, political candidates tend to participate to show their support for the LGBTQ+ community,” the committee cautioned the judge to “take care not to appear with any political candidates or give the impression that the judge is endorsing a candidate or political organization.”

The committee also advised that a judge “may march in the parade with the LGBT Bar Association as long as the judge’s participation is not construed as an endorsement of a particular political organization but rather as a general celebration of PrideFest’s promotion of diversity, inclusion, and community.”  Although the inquiring judge did not intend to identify as a judge during the parade, the committee noted that, “given its small membership, it is likely that the LGBT Bar Association will know the requesting judge is a judicial official,” and, therefore, the judge should be careful not to abuse the prestige of judicial official or allow the LGBT Bar Association to do so.

The committee reiterated its prior advice that, in evaluating whether to participate in public events such as parades, festivals, and other celebrations, a judge should consider whether:

  1. Participation will cause or likely cause a violation of the law, for example, by violating a curfew;
  2. Participation will undermine the confidence of the judiciary or give the appearance of impartiality or impropriety;
  3. Participation would create the appearance the judge is abusing the prestige of judicial office or allowing others to;
  4. Participation will interfere with the performance of judicial duties;
  5. The event relates to a case pending or impending before the judge, or the event relates to an issue likely to come before the courts;
  6. Participation will result in or is likely to result in judicial disqualification;
  7. The event is sponsored or endorsed by an organization that discriminates on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation; or
  8. Participation creates the appearance the judge is endorsing a political candidate or political organization.

Throwback Thursday

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25 years ago this month:

  • Pursuant to the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for comments to the press on a pending investigation of allegations that over $8,000 was missing from the court probation department funds.  Admonition of Letsinger (Indiana Commission on Judicial Qualifications June 13, 1997).
  • The Kansas Commission on Judicial Qualifications ordered a former senior judge to cease and desist from making rude, undignified, and discourteous comments.  Inquiry Concerning Rohleder, Order (Kansas Commission on Judicial Qualifications June 12, 1997).
  • The Kansas Commission on Judicial Qualifications ordered a judge to cease and desist from touching court employees inappropriately, making inappropriate comments, and having pictures of nude women displayed on a computer screen in the courthouse; the Commission also ordered the judge to obtain counseling regarding sexual harassment and boundary violation issues.  Inquiry Concerning Litson, Order (Kansas Commission on Judicial Qualifications June 20, 1997).
  • The Kentucky Supreme Court suspended a judge for 30 days without pay for a publication distributed by her campaign that portrayed itself as something other than campaign literature and a campaign letter from her cousin that criticized her opponent for letting child abusers off easy.  Summe v. Judicial Retirement and Removal Commission, 947 S.W.2d 42 (Kentucky 1997).
  • The New York State Commission on Judicial Conduct removed a judge from office for intervening on behalf of his daughter with law enforcement officers and another judge in 3 incidents.  In the Matter of Chase, Determination (New York State Commission on Judicial Conduct June 10, 1997).
  • Accepting a judge’s stipulation consenting to the implementation of the findings of fact, conclusions of law, and order of the Judicial Conduct Commission, the Utah Supreme Court publicly reprimanded a judge who had had a large malpractice judgement entered against him for conduct as an attorney prior to appointment to bench, had filed for bankruptcy, and had answered “no” on his application for judicial appointment to questions asking whether he had ever been or was currently a defendant in a malpractice suit and whether he was currently the subject of an investigation that could result in civil or criminal action.  Re Shumate, Order (Utah Supreme Court June 1, 1997).