Monthly Archives: October 2022

Throwback Thursday

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5 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a court commissioner for tolerating offensive and inappropriate comments by court staff and making profane and derogatory comments about a court interpreter.  Public Admonishment of Kliszewski (California Commission on Judicial Performance October 4, 2017).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a non-lawyer judge for (1) multiple efforts to influence the disposition of a traffic ticket received by his daughter and being discourteous to the prosecutor in the case and (2) in connection with the appeal of his order of restitution in a case, sending 8 letters to the county court that contained factual and legal arguments and biased, discourteous statements about the defendant and his attorney.  In the Matter of Ayres, 85 N.E.3d 1011 (New York 2017).
  • Pursuant to an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for being tardy for her court dockets without explanation.  Letter to Little (Tennessee Board of Judicial Conduct October 31, 2017).

Professional connections, reactions, and monitoring on social media

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In an advisory opinion, the Colorado Judicial Ethics Board addresses “to what extent a judge may be active” on LinkedIn, “with whom a judge may connect,” and “the ethical implications of judges using LinkedIn to post, comment on, endorse, connect with, or react to posts made by themselves and others.” Colorado Advisory Opinion 2022-5. The board describes LinkedIn as “an online social media website that focuses on professional networking and career development,” used by millions of professionals and many courts and bar associations. Although the opinion notes some of the unique features of LinkedIn, much if not all of the advice appears just as applicable on other social media platforms.

The opinion states that a judge may have a LinkedIn profile page identifying them as a judicial officer, listing the court that they serve on, and including a profile picture of themself in judicial robes as long as the photo is taken in an appropriate setting, for example, a courtroom or chambers. The board also notes that a judge may choose not to identify as a judicial officer on the platform but warns that even then, the judge “should proceed as if every connection knows that the judge is a judge.” The opinion states that judges may connect with bar associations and law-related groups on LinkedIn.

The opinion also advises that a judge may connect with attorneys on LinkedIn even if the attorney may appear before the judge but that the judge should consider when deciding whether to connect with an attorney the nature of the judge’s page, the number of friends or connections they have on the page, their practice when deciding whom to friend or connect with, and how regularly the attorney appears before the judge. The board cautions that, if an attorney-connection appears before the judge in a case, the judge may have to remove the attorney from their connections based on considerations such as the characteristics of the lawyer’s practice and the jurisdiction of the judge’s court. If the judge and the attorney-connection have a close relationship, the judge should disclose the relationship to the parties and perhaps recuse. The opinion states that a new judge may have to delist a pre-existing attorney-connection based on whether the attorney may appear before them, the judge’s docket type, and the characteristics of the attorney’s practice. “Having a LinkedIn connection,” the board writes, “is just one factor for a judge to consider in determining whether to disclose the relationship.”

The opinion advises that a judge may not endorse any LinkedIn connection’s skills or endorse businesses on LinkedIn but may recommend a connection based on the judge’s personal knowledge, for example, recommending their former clerk for a specific position to a potential employer. New judges with existing LinkedIn accounts should “unendorse” attorneys or businesses they have previously endorsed.

The opinion emphasizes that judges must never post, repost, comment on, or react to anything on LinkedIn that would violate the code of judicial conduct, including posts, comments, or reactions:

• That involve pending cases,
• That disclose non-public information concerning a case,
• That constitute political activity, or
• That demean a person based on their race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status.

For example, the opinion states, “judges should not forward what the judge might regard as an innocuous off-color joke because, for a judge, there is no such thing as an innocuous off-color joke.”

The board states that, in general, judges may post, repost, comment on, and react to topics concerning the law, the legal system, or the administration of justice, that is, issues concerning court administration and procedure. For example, the opinion states, “judges may post or comment on announcements for free legal clinics, new court rules, judicial vacancies, and upcoming meetings for local specialty bars and inns of court because there is nothing controversial or inappropriate about these subjects.”

The opinion also permits judges to post and repost public legal decisions from their own court or any state or federal court and to post and repost neutral news reports on judicial decisions. However, the board warns judges to “think twice about posting, commenting on, or reacting to articles praising or criticizing a legal decision because doing so drifts away from the safe harbor of the law, the legal system, and the administration of justice and wades into sociopolitical waters.” The board further notes that, although a judge could post a link to the U.S. Supreme Court’s recent abortion decision, for example, “some may wonder what the judge’s intention was when making such a post, and what first began as an innocuous post announcing a long-awaited U.S. Supreme Court decision may quickly evolve into a political or biased battleground” if the judge’s connections comment on the post or react with the icons indicating support, celebration, love, or curiosity available on the platform.

Therefore, the opinion concludes, “judges must monitor comments and reactions to anything they post or repost on LinkedIn.” The board cites California Judges’ Association Advisory Opinion 66 (2010). In that opinion, the California Judges Association Judicial Ethics Committee explained that, although “in a traditional social setting, a judge normally has no obligation to respond to comments made by others, no matter how distasteful or offensive,” leaving inappropriate comments on their social media page “may create the impression that the judge has adopted the comments,” which “can become not only permanent but accessible to all of the judge’s friends.” Therefore, the committee concluded: “a judge is obligated to delete, hide from public view or otherwise repudiate demeaning or offensive comments made by others that appear on the judge’s social networking site.” The committee also warned that, “a judge has an obligation to be vigilant in checking his/her network page frequently in order to determine if someone has placed offensive posts there.”

An opinion from the California Supreme Court Committee on Judicial Ethics Opinions also directed judges to continually monitor reactions to the statements they post on social media. California Expedited Opinion 2021-42. The committee described a 2-step process for judges to ensure compliance with the code while they are on social media.

First, they must carefully evaluate their own statements . . . before deciding to post something on social media. . . . Second, they must monitor reactions to their statements and the social media forums they use. For example, if a judge’s social media posts trigger online posts or comments that devolve into discussions undermining the judge’s impartiality or demeaning the judicial office, the judge must use his or her best efforts to delete those posts. Or, just as in physical public forums, if the social media site itself suggests bias or impropriety, a judge may need to leave that site entirely.

The opinion concluded: “While it may not be feasible to track every social media page they have commented on or change the conduct of online contacts, a judge must make reasonable efforts to monitor social media pages or threads associated with the judge and take action to remedy any statements that compromise the integrity of the judiciary.”

In its 2018 annual report, the California Commission on Judicial Performance stated that it had privately admonished a judge who failed to diligently monitor social media associated with their name, in addition to other conduct.

See also Florida Advisory Opinion 2012-7 (suggesting that a judge who writes a blog add a disclaimer that they do not “endorse or vouch for” comments by others and that others’ comments do not represent the judge’s views); Washington Advisory Opinion 2009-5 (suggesting that a judge who writes a blog review others’ comments before they are published if possible, regularly monitor the comments to ensure that the discussion does not move into a prohibited topic, and consider “whether readers might perceive that the judge’s impartiality is impaired by the volume and content” of the comments).

Judicial candidates have also been advised to monitor their social media pages for inappropriate posts by others. In a statement, the Kentucky Judicial Campaign Conduct Committee cautioned candidates that “they are ultimately responsible for material posted on their social-media pages and should remove information that is false or misleading.” The North Carolina Judicial Standards Commission stated that, as a best practice, judicial candidates should monitor comments on social media and remove offensive or profane comments from their public campaign page. North Carolina Political Conduct Memo (2022).

With respect to content on others’ social media pages, the Massachusetts committee stated that a judge cannot “reasonably be expected to monitor all postings and comments” on the social media pages of friends or organizations that the judge follows or likes. Massachusetts Advisory Opinion 2016-1. The committee explained that a reasonable person would not conclude that a judge endorsed a Facebook friend’s communication unless the judge expressly agreed with it, noting that “a Facebook user often has no knowledge concerning the communications made by Facebook friends.” However, the committee added, if a judge becomes aware that a Facebook friend’s communications or the contents of a page the judge likes or follows “negatively impact the integrity or impartiality of the judiciary,” the judge must “unfriend” the person or stop “liking” or “following” that page. Similarly, the Utah committee stated that “a judge is not required to continually monitor” other’s websites, but that, “if a judge happens to review a website with which the judge is associated, and the website contains questionable content, the judge may be required to disassociate from the site.” Utah Informal Advisory Opinion 2012-1. But see Missouri Advisory Opinion 186 (2015) (a judge must make “a reasonable effort to review” social media posts by “friends” and “friends of friends” and must “sever or ‘unfriend’ anyone whose conduct or postings would place the judge in position of appearing to endorse . . . prohibited conduct”).

Throwback Thursday

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10 years ago this month:

  • Accepting the recommendation of the Judicial Discipline and Disability Commission, which the judge did not contest, the Arkansas Supreme Court suspended a judge for 30 days without pay for his confrontation with his estranged wife and her male companion at a Walmart; the Court also ordered the judge to undergo anger management counseling with the Judges & Lawyers Assistance Program and to write an apology letter. Judicial Discipline and Disability Commission v. Pope (Arkansas Supreme Court October 4, 2012).
  • The California Commission on Judicial Performance publicly admonished a judge for violating the Political Reform Act during and after his successful campaign for judicial office. In the Matter Concerning Brehmer, Decision and order (California Commission on Judicial Performance October 25, 2012).
  • Accepting the recommendation of the Judicial Tenure Commission, to which the judge consented, the Michigan Supreme Court publicly censured a judge for bringing “shame and obloquy” to the judiciary by his flippant manner in an interview with a reporter about a digital image of himself he had sent to others. In re McCree, 821 N.W.2d 674 (Michigan 2012).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for disguising the source of funds received by her campaign in order to circumvent contribution limits imposed by law. In the Matter of Anderson, Determination (New York State Commission on Judicial Conduct October 1, 2012).
  • Accepting findings of fact, conclusions of law, and the sanction recommended by the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a judge’s law license for 6 months for (1) using vulgar and intemperate language to litigants in his courtroom and (2) injecting himself into an administrative investigation by the police department and allowing his history of conflicts with the department to cloud his judgment; the Court stayed the sanction on the condition that the judge commit no misconduct during the suspension. Disciplinary Counsel v. Elum, 979 N.E.2d 289 (Ohio 2012).

Recent cases

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  • Based on a stipulated resolution in which the judge agreed not to serve in any judicial capacity in the state after his current term ends on December 31, 2022, the Arizona Commission on Judicial Conduct concluded formal charges alleging that the judge had used profanity and discharged a firearm in the vicinity of an individual and used profanity toward a process server who was serving him with a subpoena to testify at a criminal hearing involving that individual, who was subsequently convicted of stalking the judge. Inquiry Concerning Watters, Final order (Arizona Commission on Judicial Conduct September 7, 2022).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to decide an appeal from a limited jurisdiction court within 60 days as required. Nichols, Order (Arizona Commission on Judicial Conduct May 24, 2022).
  • Based on the judge’s resignation and agreement not to seek, request, or accept any elected or appointed judicial office, the Georgia Judicial Qualifications Commission resolved its investigation of allegations that a former chief magistrate judge had committed the offenses of criminal trespass, terroristic threats, and violation of his oath of office by entering onto another’s property and taking peas without the owner’s permission and threatening to assault the owner when confronted. In re Anderson, Report of disposition (Georgia Judicial Qualifications Commission August 11, 2022).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a part-time judge for including her judicial title in the email address that she used on notices of appearances and emails she submitted to several courts when representing a client and improperly using her judicial title on a consent-to-change attorney form. In the Matter of Robichaud, Determination (New York State Commission on Judicial Conduct August 24, 2022).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct removed a non-lawyer judge from office for (1) brandishing his loaded gun at a litigant in the courtroom, repeatedly mentioning the litigant’s race when recounting the incident, and boasting about the incident and (2) sharing fundraising posts for the Elks Lodge on his personal Facebook page. In the Matter of Putorti, Determination (New York State Commission on Judicial Conduct September 9, 2022), on appeal.
  • Accepting a stipulation based on the judge’s resignation and affirmation that he will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a formal complaint alleging that a former judge had refused to appoint the county public defender’s office to represent indigent criminal defendants because of his animosity toward the public defender and his concern that the office would criticize him and falsely claimed that the public defender had accused him and his court clerk of forging their signatures on court documents. In the Matter of Gumo, Decision and order (New York State Commission on Judicial Conduct September 22, 2022).
  • • Accepting a stipulation based on the judge’s resignation and affirmation that she will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded an investigation of allegations that the former non-lawyer judge had an adversarial relationship with the police department; had violated prohibitions on campaign activity; was discourteous toward and made disrespectful comments about court staff and courtroom spectators; had attempted to implement staffing decisions without involving her co-judge or the town board; and had failed to maintain professional competence in the law. In the Matter of Andreassen, Decision and order (New York State Commission on Judicial Conduct September 22, 2022).
  • • 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) on his LinkedIn profile, liking, sharing, and/or commenting on posts that cast doubt on his ability to be impartial in matters involving law enforcement, that were related to partisan politics, that commented on matters of public controversy, that constituted public comment about a pending or impending proceeding in another court, or that appeared to lend the prestige of his judicial office to advance a fundraising appeal; and (2) served as a “peer support member” of the county sheriff’s critical incident stress management team. In the Matter of Elia, Determination (New York State Commission on Judicial Conduct September 28, 2022).
  • • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) his handling of 3 small claims cases, including engaging in ex parte communications, failing to administer an oath or affirmation to the litigants, and allowing the litigants to interrupt him and each other and argue back and forth; (2) changing the terms of a plea agreement based on an ex parte conversation with the defendant’s attorney and without notice to or the consent of the prosecution; (3) in 4 traffic infraction cases, engaging in ex parte communications with the defendants and, in 2 of the cases, reducing or dismissing the charges without notice to or the consent of the prosecution; and (4) telling a defendant at arraignment in an environmental conservation law case, “So you have been dumping some waste off the side of the road, in streams and so on?”, failing to advise the defendant of his rights, and failing to take any action to accord the defendant an opportunity to exercise those rights. In the Matter of Arndt, Determination (New York State Commission on Judicial Conduct September 28, 2022).
  • • The Texas State Commission on Judicial Conduct publicly warned a judge for failing to recuse herself from 4 cases involving a party with whom she had a relationship or to disclose the relationship; the Commission also ordered the judge to obtain 4 hours of education with a mentor. Public Warning of Morris and Order of Additional Education (Texas State Commission on Judicial Conduct August 29, 2022), on appeal to special court of review.
  • • The Texas State Commission on Judicial Conduct publicly warned a judge for yelling at an assistant district attorney during a hearing, yelling at the defendant’s attorneys during a hearing in a civil case, making comments about a criminal defendant’s medical issues during a hearing, and yelling at a court interpreter during a hearing in a 4th case. Public Warning of Rangel (Texas State Commission on Judicial Conduct August 22, 2022), on appeal to special court of review.
  • • The Texas State Commission on Judicial Conduct publicly admonished a judge for filing a response to a motion to recuse. Public Admonition of Rangel (Texas State Commission on Judicial Conduct August 22, 2022), on appeal to special court of review.
  • • Following a hearing on stipulated facts, the Vermont Judicial Conduct Board publicly reprimanded a former judge for approving his own request for a bonus payment over and above the compensation to which he was entitled by statute. In re Delaney, Disposition report (Vermont Judicial Conduct Board September 19, 2022).
  • • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for making 3 racially insensitive and/or race-based stereotypical comments. In re Mahoney, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 9, 2022).
  • • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a former judge who had pled guilty to assault with sexual motivation on subordinate court staff. In re Gallina, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 9, 2022).

Throwback Thursday

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20 years ago this month:

  • Approving the findings and recommendations of the Judicial Qualifications Commission, the Florida Supreme Court suspended a judge for 4 months without pay, publicly reprimanded her, and fined her $40,000 for misleading statements made in campaign finance reports in violation of state campaign laws.  Inquiry Concerning Rodriguez, 828 So. 2d 1060 (Florida 2002).
  • The Montana Supreme Court suspended a judge without pay until the end of his term for (1) knowingly accessing sexually explicit images on a county computer and monitor; (2) entering a man’s residence uninvited; and (3) advising a man with legal problems, “you know you’re going to be arrested if you attract attention so why don’t you just keep your nose clean and behave.”  Harris v. Smartt, 57 P.3d 58 (Montana 2002).
  • Adopting the findings of fact and recommendation of the Commission on Judicial Qualifications to which the judge consented, the Nebraska Supreme Court suspended a judge for 120 days without pay for ex parte communications and public comments after a sentence the judge had imposed was reversed on appeal.  In re White, 651 N.W.2d 551 (Nebraska 2002).
  • The Nebraska Commission on Judicial Qualifications publicly reprimanded a judge for taking an active role in facilitating a campaign contribution to a candidate for city council by personally communicating the solicitation to her husband, delivering the campaign literature to him, and personally delivering to the candidate a check written by her husband on a joint account.  In the Matter of Prochaska, Reprimand (Nebraska Commission on Judicial Qualifications October 7, 2002) .
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for informing a company’s attorney of an impending search after signing the warrant authorizing investigators to search the premises of a company for environmental violations. In the Matter of Gibbons, 778 N.E.2d 104 (New York 2002).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for making gratuitous, insulting comments in open court about a matrimonial litigant’s former attorney and failing to promptly recuse when the attorney appeared before him shortly afterwards in 2 matters.  In the Matter of Bradley, Determination (New York State Commission on Judicial Conduct October 1, 2002).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for threatening a small claims defendant with arrest to enforce a civil settlement.  In the Matter of Hamm, Determination (New York State Commission on Judicial Conduct October 1, 2002).
  • • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who had shown his official identification card when stopped by the police for traffic offenses. In the Matter of Werner, Determination (New York State Commission on Judicial Conduct October 1, 2002).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge who had pleaded guilty to driving while intoxicated.  In the Matter of Stelling, Determination (New York State Commission on Judicial Conduct October 1, 2002) ().
  • The New York State Commission on Judicial Conduct publicly censured a judge for (1) improperly asserting his judicial office to advance his private interests during a dispute at a comedy club with a woman he was dating, (2) writing a letter to a federal agency seeking personal information about the woman under false pretenses, and (3) interceding with another judge on behalf of the woman to obtain a favorable disposition in a traffic case.  In the Matter of Cipolla, Determination (New York State Commission on Judicial Conduct October 1, 2002).
  • Pursuant to the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for entering 2 ex parte orders dismissing DWI charges against a defendant when the judge knew the cases were before him only on a motion for appropriate relief.  In re Brown, 570 S.E.2d 102  (North Carolina 2002).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge pro tempore for vacating an order finding that a vehicle was improperly impounded after hearing from the towing company without the presence of the vehicle, who had already departed the courthouse.  In re Hurtado, Stipulation, Agreement and order (Washington State Commission on Judicial Conduct October 4, 2002).
  • The Texas State Commission on Judicial Conduct publicly admonished a justice of the peace who had failed to obtain the mandatory 20 hours of judicial education for the year ending August 31, 2001.  Public Admonition of Rodriguez (Texas State Commission on Judicial Conduct October 23, 2002).
  • The Texas State Commission on Judicial Conduct publicly admonished a municipal court judge who had failed to obtain the mandatory 12 hours of judicial education for the year ending August 31, 2001.  Public Admonition of Dodier (Texas State Commission on Judicial Conduct October 23, 2002).

Intent and impact

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Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for making 3 racially insensitive and/or race-based stereotypical comments.  In re Mahoney, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 9, 2022).  The Commission stated:

In assessing whether judges’ words are appropriate or might give offense, judges need to consider not only their intent in uttering those words, but their impact on those hearing them.  Particularly in a situation where, as here, the speaker is a Caucasian person who holds the highest position of power in a large court system, and in one instance, given that the word she uttered was an historically and currently weaponized word used to injure and oppress Black people, the impact on the listeners is of far greater importance than her subjective intention at the time. . . .

(1) On February 9, 2022, the judge, who was then the presiding judge, participated in an online video meeting with several high-level court staff members and the court’s attorney for employment matters.  The purpose of the meeting was to discuss disciplinary options for a court employee who had, among other things, used derogatory terms such as “Nazi” and “Brownshirt,” “with the apparent intent to demean and intimidate others in the workplace who sought to enforce the court’s face mask policy.”

Near the end of the meeting, addressing employee free speech considerations, the judge argued that calling someone a “Nazi,” or using the term “Nazi,” would be unprotected speech just like using the term or calling someone a “n****r.”  Witnesses described “feeling shocked, upset, and offended at the time” and continuing “to experience those feelings when recounting the incident.”  The subject employee’s Department Director, “Ms. A,” is Black and was the only person of color in the meeting.  She was deeply hurt by the judge’s comment, feeling an epithet was being directed at her, in part, because the judge used her name just before or after uttering the word.  Witnesses recall the judge saying, “no offense, [Ms. A]” while the judge recalls saying “as [Ms. A], said to me.”  Ms. A also felt targeted because the judge had been repeatedly giving her the same directives on how to proceed, so she felt she was being treated as incompetent.  “The other witnesses shared Ms. A’s perception.”  Because of this meeting, Ms. A asked that her job be reconfigured so that she no longer had to report directly to the judge.

(2) In February 2021, during an online video to introduce a court employee, who is Black, to a new judge, who is a person of color, the judge smiled and referred to the court employee as someone who “loves watermelon.”  “Both the new judge and the court employee were deeply offended and shocked, . . . as it was their impression that [the judge] was making light of a racist trope. “ Neither responded because they were “caught off guard, embarrassed, and unsure what to say since [she] was the court’s presiding judge at the time.  In the moment, [the judge] did not perceive that she had inflicted harm or offense.”

In her response to the Commission, the judge wrote that she did not have specifically recall making that remark, but acknowledged that something like that could have occurred.  She explained that she considered the non-judicial court employee a long-time friend and that they both liked watermelon and sometimes brought it to the office to share; the

employee agreed that “this was something they had shared in common.”  The judge assured the Commission that she did not intend any racial connotations but “acknowledged she failed to grasp that, as she was the presiding judge introducing a Black employee in a formal work setting to a new judge of color (who was unaware of their relationship), her remark was naïve and insensitive and could raise reminders of a hateful racial stereotype.”  She stated that she was “appalled that her remark” had embarrassed the employee and the other judge and “made things awkward for them.”

(3) In early 2022, in the context of scheduling calendars to handle the court’s backlog of traffic infractions and other cases due to COVID, the judge suggested in the presence of court employees that the backlog was due to Asian women drivers in the area.  “Recollections as to what precisely was said vary, but the employees who heard Respondent’s remarks found them offensive and understood the remarks as referencing racial stereotypes.”  In the moment, the judge did not perceive that she had inflicted harm or offense.

In her response to the Commission, the judge denied making generalized statements about all Asian drivers, but recalled sharing what she thought was instructive, culturally relevant information, based on her prior experience, to encourage staff to have patience with Chinese women drivers appearing in court.

In mitigation, the stipulation noted that the judge had stepped down as presiding judge; apologized; voluntarily attended courses on racial sensitivity; and was remorseful and acknowledged that she had been insensitive and that “her actions, no matter what her intention or the context, ha[ve]the potential to lead someone to reasonably question her impartiality and thus the impartiality of the courts.”  The Commission also noted that the judge has served for over 11 years as a judge, is considered a dedicated and competent judicial officer, has had no prior disciplinary actions, and has not filed to renew her term of office, which expires at the end of 2022.

Throwback Thursday

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25 years ago this month:

  • The Delaware Supreme Court publicly censured a part-time judge and suspended him for 3 months for (1) failing to pay federal, state, and city payroll taxes for his law firm’s employee payroll and to timely file withholding reports; (2) failing to pay property taxes and to pay some of his delinquent property taxes in accordance with a schedule he and the county had agreed on; (3) having 29 unpaid parking tickets; and (4) failing to properly maintain his law office books and records and incorrectly answering questions on the certificate of compliance with client account reconciliation requirements.  In the Matter of Williams, 701 A.2d 825 (Delaware 1997).
  • Accepting the recommendation of the Commission on Judicial Qualifications, the Florida Supreme Court publicly reprimanded a judge for, in her campaign mailers and newspaper advertisements, (1) claiming to have circuit judicial experience, when her service was that of a general master; (2) claiming that her opponent had no circuit judicial experience, when her opponent had extensive experience as a county judge who had been assigned to the circuit court; (3) injecting party politics into a non-partisan election by noting the party affiliation of the governor who had appointed her opponent as county judge; (4) including a photograph of her opponent sitting next to a criminal defendant, noting that her opponent “defend[ed] convicted mass murderer, cop killer, William Cruse,” when at the time of the photograph Cruse had not been convicted and her opponent was an assistant public defender; and (5) including a portion of a newspaper editorial implying that she, not her opponent, had been endorsed by the newspaper.  Inquiry Concerning Alley, 699 So. 2d 1369 (Florida 1997).
  • The Kansas Commission on Judicial Qualifications publicly admonished a judge for having a woman arrested for failing to appear for jury duty without holding a hearing, determining that she was in contempt, or imposing a sentence.  Inquiry Concerning Platt, Findings of fact, conclusions of law, and disposition (Kansas Commission on Judicial Qualifications October 27, 1997).
  • The Mississippi Supreme Court suspended a judge for 30 days without pay, publicly reprimanded her, and fined her $1,500 for (1) issuing an arrest warrant on petit larceny and simple assault charges filed by her friend and distant relative; (2) having license tags from her husband’s car on her car; (3) writing a check she did not have sufficient funds in her checking account to cover; and (4) failing to file reports of contributions or expenditures with the circuit clerk as required by statute.  Commission on Judicial Performance v. Franklin, 704 So. 2d 89 (Mississippi 1997).
  • Affirming the determination of the Commission on Judicial Discipline, the Nevada Supreme Court removed a judge from office for (1) borrowing money from court employees and not always promptly repaying the loans; (2) publicly endorsing and campaigning for a candidate for judicial office and testifying falsely to the Commission that, while going door-to-door campaigning for the candidate, he had only gone to houses where he knew the residents; (3) conducting a personal business from his judicial chambers, storing antiques throughout the courthouse and selling those antiques to persons with whom he came in contact at the courthouse; and directing city employees and jail trustees to move antiques into and out of the courthouse; (4) directing court employees during normal court business hours to go to his mother’s nursery business to provide Spanish translating services, to perform other personal errands for him, and to chauffeur him to and from his home for purposes including shopping for antiques; (5) directing or suggesting to persons appearing before the court who had been found guilty to contribute money to certain charities in lieu of paying fines to the city; and (6) using property he owned in part that was zoned for residential purposes for commercial purposes and causing his agents to trespass on the adjoining property to hook up water and sewer lines.  In the Matter of Davis, 946 P.2d 1033 (Nevada 1997).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for a series of legal and procedural errors in a harassment case and making improper statements that compromised his impartiality and the proper administration of justice. In the Matter of Smith, Determination (New York Commission on Judicial Conduct October 29, 1997).
  • Accepting the findings and conclusions of the Board of Commissioners on Grievances and Discipline and adopting its recommendation, the Ohio Supreme Court publicly reprimanded a judge for appearing in a television commercial for a law firm. Office of Disciplinary Counsel v. Allen, 684 N.E.2d 31 (Ohio 1997).
  • Adopting the recommendation of the Judicial Investigation Commission, the West Virginia Supreme Court of Appeals publicly admonished a judge for creating the appearance that he had agreed to reduce the charges against an acquaintance and accepted gifts in exchange for the deal.  In the Matter of Reese, 495 S.E.2d 548 (West Virginia 1997).

Institutional concerns

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Acknowledging the challenge of overcoming employees’ fears of retaliation if they report a judge’s workplace misconduct, the Judicial Council for the U.S. Court of Appeals for the 10th Circuit stated that “the most effective way” to assuage those fears “is to demonstrate that the Judiciary’s reporting systems are effective at addressing misconduct.”  Therefore, although it concluded an investigation of a former magistrate judge for the District of New Mexico because her term had ended, it released an order that described the allegations and summarized “institutional concerns” the matter illustrated.  In re:  Complaint Under the Judicial Conduct and Disability Act, Order (10th Circuit Judicial Council September 14, 2022).

2 former law clerks and 2 anonymous individuals who had also worked for the judge filed a complaint alleging that the judge’s behavior created an abusive and hostile work environment.  In response, the judge denied that she created a hostile work environment but said that she was willing to take appropriate corrective action.

The Chief Judge of the 10th Circuit appointed a special committee to investigate.  The committee’s investigators interviewed everyone who had worked full-time for the judge in her 16 years on the bench, which included law clerks, judicial assistants, and courtroom deputies.  They also interviewed 4 of her judicial colleagues and 3 other individuals.

The committee concluded, based on “the source, nature, and consistency of the evidence,” that there was “reason to believe” that the judge had engaged in sanctionable misconduct, including “unpredictable and hypercritical outbursts; manipulation of staff to undermine judges and employees; frequent threats of termination or actual terminations; and derogatory and egregious statements about her own staff, other court employees, and judges.”

The investigators reported the committee’s preliminary views to the judge, who informed the district court judges.  She was up for re-appointment, and the judges voted not to reappoint her.  Because of the procedural requirements in the rules, the Council could not issue a final order on the merits before the expiration of the judge’s term and, therefore, concluded the complaint due to intervening events.

However, even when a complaint has been concluded, Judicial Councils have the authority to assess what conditions may “have enabled misconduct or prevented its discovery” and determine “what precautionary or curative steps could be undertaken to prevent its recurrence,” under a comment to Rule 20 of the federal Rules for Judicial Conduct and Judicial Disability Proceedings.

Based on the committee’s recommendation, the Council identified 2 problems:  “1) a lack of awareness about what constitutes abusive conduct and/or a hostile work environment, and 2) widespread fear of retaliation that deterred reporting.”

First, it noted that employees explained that they had never reported the judge “because they did not know if her behavior would constitute abusive conduct or a hostile work environment.”  In addition, other judges who were interviewed “were unaware of the breadth and nature” of her conduct and “questioned whether what little information they had rose to the level of misconduct or implicated their reporting obligations.”

Second and “perhaps more problematic,” the Council stated that even the employees who thought her behavior could constitute misconduct “did not report the conduct because they feared retaliation.”  The employees stated that they have relied on and continue to rely on the judge’s recommendation to secure other positions and advance their careers.  The Council noted that even some employees who had not worked for the judge for years and had moved out of state were still reluctant to participate in the investigation.

The Council described the training the circuit has provided to judges and employees on workplace conduct issues, but “to address the continuing lack of awareness of what specifically constitutes abusive conduct and a hostile work environment,” it announced additional training on “the practical application of these terms,” believing “this will make judges more mindful of their conduct and their colleagues’ conduct and give employees confidence in what behavior should be reported.”  The training for judges will include “appropriate and inappropriate workplace conduct, standards and definitions of abusive conduct and hostile work environment, judges’ reporting obligations . . . , the prohibition against retaliation, and the need to be aware of possible retaliatory efforts by a colleague.”  The training for employees will include those topics plus the many ways an employee can report wrongful conduct and retaliation.

The Council concluded:

Although the District of New Mexico voted not to reappoint Judge Garza before the Judicial Council could take remedial action on the complaint, the district judges’ vote was a direct result of the complainants’ courage in reporting the alleged misconduct, the . . . guidance [from the Director of Workplace Relations], and the Special Committee’s investigation.  The Judiciary, including this Circuit, has made progress in the area of workplace conduct, but it is clear that there is more work to do.  The Judicial Council will work with the Tenth Circuit’s Workplace Conduct Committee to determine what other measures should be taken to make this circuit an exemplary place to work.