A sampling of recent judicial ethics advisory opinions

  • A judge may not employ their spouse as their judicial assistant. Florida Advisory Opinion 2022-12.
  • A judge is not disqualified from cases involving a subject that is the same as or similar to a subject involved in a criminal case in which their spouse is representing the defendant. Colorado Advisory Opinion 2022-6.
  • An appellate jurist who has a personal residential tax appeal pending before the tax appeals session should disqualify themself from all matters appealed from the tax appeals session. Connecticut Informal Advisory Opinion 2022-6.
  • A judge may teach a law school clinic that will draft legislation to create civil liability for encouraging, assisting, or facilitating racially motivated crimes and propose the legislation to legislators. New York Advisory Opinion 2022-97.
  • A judge may speak in a free, virtual seminar for law students entitled “Diverse Pathways: Exploring Avenues to a Meaningful Legal Career,” presented by a statewide law firm, and the firm may advertise the judge’s participation. Florida Advisory Opinion 2022-11.
  • A judge should not attend a training course regarding speed detection devices that is offered by a law enforcement agency and open only to judicial officers, prosecutors, and members of law enforcement. Ohio Advisory Opinion 2022-8.
  • A magistrate may serve as a trustee of a condominium association but may not engage in the resolution of disputes between residents and should not use their position or title in connection with service on the board. Ohio Advisory Opinion 2022-10.
  • A supreme court justice who is chair of a church council may inform other council members and inquiring church members about the procedure for disaffiliation from the national church organization. South Carolina Advisory Opinion 14-2022.
  • A judge may serve as a member of the board of directors on the long-range planning committee of a not-for-profit hospital when the committee is not involved in fundraising and the hospital is rarely, if ever, a party to litigation in the judge’s court. Florida Advisory Opinion 2022-13.
  • Judges may not perform as actors and play judges or mediators presiding over fictional disputes on a television show. Alabama Advisory Opinion 2022-950.
  • If character testimony is being a sought, absent a subpoena, a judicial officer may not at the request of a criminal defendant’s attorney submit a declaration in a habeas corpus action regarding their prior representation of the defendant. If the judicial officer has any question regarding whether the testimony may be construed as character testimony, they should err on the side of requiring a subpoena. Even if the declaration only contains factual testimony, the judicial officer is advised to require a subpoena. California Expedited Opinion 2022-49.
  • A judge may maintain a profile on a dating website and communicate online for the purpose of dating. New York Advisory Opinion 2022-119.
  • A judge may have a LinkedIn profile page that identifies them as a judicial officer and identifies the court on which they serve and may be pictured in robes in their profile picture as long as the photo is taken in an appropriate setting, for example, a courtroom or chambers. Colorado Advisory Opinion 2022-5.
  • A full-time or part-time magistrate may not seek election to, or serve on, a local, city, or state board of education, city council, or county board of commissioners. Ohio Advisory Opinion 2022-9.
  • A judge or a judicial candidate may be a member of the committee planning the strategies for their own campaign for judicial office but may not be a member of a committee that primarily solicits and accepts campaign contributions, and the committees must be separate, and the distinction clearly delineated. Michigan Advisory Opinion JI-152 (2022).
  • A judicial candidate or their campaign committee may post photographs on social media of the candidate with sitting judges at a public or professional event, such as a bar association function, if the judges consent, there is nothing that indicates an endorsement, and a caption makes clear that the judges do not endorse the candidate. New York Advisory Opinion 2022-96.

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for rude and inappropriate statements during a sentencing hearing, for example, stating “to some extent I think ‘dumb-a**’ should be engraved on his forehead.”  Ditsworth, Order (Arizona Commission on Judicial Conduct November 13, 2017).
  • The Nevada Commission on Judicial Discipline suspended a judge for 60 days without pay, fined him $5,000, to be paid to an anti-bullying organization, and ordered him to submit to a psychiatric exam for (1) making comments to a reporter about 2 pending cases to protect his re-election bid; (2) refusing to vacate a hearing in a case in which a motion for recusal was pending and advising a party to file a complaint against opposing counsel with the State Bar; and (3) failing to accord plaintiff’s counsel the right to be heard during a hearing, repeatedly using intemperate language and yelling at her, directing that she be handcuffed, and holding her in contempt.  In the Matter of Potter, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline November 22, 2017).  The Commission also ordered the judge to complete a judicial education course on dealing with difficult parties and attorneys, to write letters of apology to 2 attorneys, and to perform 10 hours of community service with the Southern Nevada Antibullying Council, which supports the school district’s anti-bulling program, or with a similar organization.
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for, after arraigning a defendant and entering an order of protection, receiving unsolicited ex parte information from 2 sources claiming that the defendant had violated the order of protection, failing to disclose the communications, repeating the information as fact during a pre-trial conference, and reiterating the accusations when he accepted a plea agreement, sentenced the defendant, and issued a 6-month order of protection.  In the Matter of Curran, Determination (New York State Commission on Judicial Conduct November 14, 2017).
  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld the removal of a judge for seeking the advice of another judge about her son’s case and acquiescing in his offer to communicate ex parte with the judge who was handling the case.  In re Roca, 173 A.3d 1176 (Pennsylvania 2017).
  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld a judge’s removal for listening to another judge’s requests for favorable treatment for parties in 3 cases.  In re Segal, 173 A.3d 603 (Pennsylvania 2017).
  • Pursuant to the judge’s agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for (1) threatening to end a house arrest program if a defendant’s attorney did not withdraw an objection and (2) entering an order giving 30 days credit toward completion of a sentence to any male inmate who received a vasectomy and any female inmate who received a birth control implant.  Letter to Benningfield (Tennessee Board of Judicial Conduct November 15, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for his treatment of prospective jurors and his use of the contempt power against lawyers; the Commission also ordered the judge to take 8 hours of additional education.  Public Reprimand of Aguilar and Order of Additional Education (Texas State Commission on Judicial Conduct November 6, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) communicating ex parte with the judge presiding over her nephew’s criminal case and voluntarily testifying as a character witness at his probation revocation hearing and (2) shaming and reprimanding jurors for their guilty verdict.  Public Reprimand of Hawthorne (Texas State Commission on Judicial Conduct November 9, 2017).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for his exchange with an umpire at his son’s baseball game in which he inappropriately and unnecessarily injected his judicial position; the Commission also ordered the judge to obtain 2 hours of instruction with a mentor.  Public Warning of Warren and Order of Additional Education (Texas State Commission on Judicial Conduct November 10, 2017).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for (1) failing to give a defendant a jury trial as he had timely requested and to respond to the allegations and (2) publicly endorsing a candidate for appointment for magistrate and commenting on an impending matter against a former magistrate.  Public Admonishment of Halloran (West Virginia Judicial Investigation Commission November 2, 2017).
  • The West Virginia Judicial Investigation Commission publicly admonished a former magistrate for ex parte communications with assistant prosecutors about cases in which she was presiding and for failing to ensure that her staff complied with the restraints on communication with law enforcement and potential witnesses.  In the Matter of Yeager (West Virginia Judicial Investigation Commission November 30, 2017).

Recent cases

  • The Alabama Court of the Judiciary suspended a judge for 120 days without pay for refusing to return to work on December 6, 2021, as the Court had ordered in a previous decision in which it had suspended her for 90 days.  In the Matter of Todd, Final judgment (Alabama Court of the Judiciary October 18, 2022).
  • The Alabama Supreme Court affirmed the decision of the Court of the Judiciary removing a judge from office for (1) engaging in a pattern of racist demeanor; (2) engaging in a pattern of sexually inappropriate demeanor; (3) expressing anger inappropriately and using profanity in the court office; and (4) abusing the prestige of judicial office to seek early release of a female inmate and to seek aid for a friend’s sale of a life insurance policy.  Jinks v. Judicial Inquiry Commission (Alabama Supreme Court October 21, 2022).
  • Accepting an agreement in which the judge stipulated that the Judicial Inquiry Commission could prove the allegations in its complaint, the Alabama Court of the Judiciary suspended a judge without pay for 45 days and publicly censured him for (1) making denigrating comments about the Governor and the presiding judge of the circuit, using cuss words and/or profanity, and making other highly inappropriate comments; and (2) declaring acts and statutes regarding court fees unconstitutional and issuing an order redirecting court funds to address budgetary concerns.  In the Matter of Patterson, Final judgment (Alabama Court of the Judiciary October 27, 2022).  The judge was also ordered to complete 15 hours of education on judicial ethics to include at least 3 hours of training focused on cultural sensitivity; to read weekly emails forwarded to him by the Judicial Inquiry Commission from the Center for Judicial Ethics for 6 months; to consult and meet with another judge as a mentor monthly for 6 months; to refrain from joking or other inappropriate or offensive colloquies with litigants, attorneys, or court staff while in the courtroom; and to refrain from profanity or off-color language in the courthouse including in chambers or other private settings.
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for authorizing an individual to be transported for psychiatric admission for medication management and stabilization at an out-of-county facility based on ex parte communications and without following the law.  Slayton, Order (Arizona Commission on Judicial Conduct September 19, 2022).
  • Approving a stipulation, the California Commission on Judicial Performance publicly censured a judge for (1) driving under the influence with a blood alcohol content of 0.25%, causing an accident, attempting to leave the scene of the accident, falsely informing bystanders that he was a truck driver to try to persuade them to let him leave the scene, misleading law enforcement officers about the cause of the accident, and underreporting to law enforcement the amount of alcohol he had consumed; and (2) during a proceeding, calling a litigant a “smart aleck,” accusing her of being “smart-alecky,” criticizing her tone of voice, and stating, sarcastically:  “I understand what they were going to testify about, ma’am, I’m not an idiot, okay.”  In the Matter of Mulvihill, Decision and order (California Commission on Judicial Performance October 27, 2022).
  • The Kentucky Supreme Court affirmed the decision of the Judicial Conduct Commission removing a judge from office for (1) inserting herself into her son’s criminal cases and attempting to influence the outcome of the cases in text messages, meetings, and calls with the county attorney and the judge presiding in the cases; (2) deleting material from her son’s social media accounts after he had been arrested; (3) using her position to arrange semi-private meetings with her son in the jailer’s office, bringing him drinks and food contrary to jail policy, and visiting him outside of normal visiting hours; (4) threatening to impose monetary fines on case workers and supervisors for late reports; (5) removing or threatening to remove attorneys from her guardian ad litem list for arbitrary reasons; (6) having her staff conduct drug testing; (7) failing to be candid with the Commission; and (8) failing to avoid or disclose conflicts of interest by retaining, paying, and directing the actions of her son’s attorney, who practices law in her courtroom and regularly receives guardian ad litem appointments from her, by presiding over cases in which her staff attorney’s brother represented a party, and by appointing an attorney with her husband’s law firm as a guardian ad litem.  Gordon v. Judicial Conduct Commission (Kentucky Supreme Court October 20, 2022).
  • Agreeing with the recommendation of the Judiciary Commission, the Louisiana Supreme Court suspended a judge from office for 180 days for abusing her contempt power by ordering the arrest of a women for failing to appear to sign a notice of a new hearing even though the women was not a party in the proceeding, had not been served with a subpoena or summons to appear for the prior hearing, had not been in court or on the phone when the judge ordered her to sign the hearing notice, and had not been served a subpoena or summons to appear in court to sign the noticeIn re Day (Louisiana Supreme Court October 21, 2022).
  • Adopting the findings of the Advisory Committee on Judicial Conduct and denying the judge’s motion to dismiss, the New Jersey Supreme Court publicly reprimanded a former judge for calling a third-party witness in a trust case and conducting an independent factual investigation to obtain personal information about the trustee and his daughter and then relying on that information to draw negative inferences about the trustee’s credibility.  In the Matter of Bergman, Order (New Jersey Supreme Court October 6, 2022).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) failing to disclose that the plaintiff in a small claims case was a customer of his auto business or to disqualify himself; failing to administer an oath or affirmation to the litigants and witnesses; making rude and undignified comments to the defendant; allowing the plaintiff to interject repeatedly; failing to admonish a spectator who interjected in the proceeding; and denigrating the defendant in an ex parte conversation about the substance of the case with the plaintiff’s witness and a spectator; (2) failing to disclose that the owner of the defendant business in a small claims case was a town council member and his business associate; failing to disqualify himself; and failing to administer an oath or affirmation to the litigants and witnesses as required by law; and (3) failing to timely report the receipt of court funds to the State Comptroller as required by law.  In the Matter of Kraker, Determination (New York State Commission on Judicial Conduct October 6, 2022).
  • Adopting the findings and recommendation of the Board of Professional Conduct, based on stipulations, the Ohio Supreme Court publicly reprimanded a judge for, in a child welfare case, inspecting the house where the children were living and failing to recuse himself from the case.  Disciplinary Counsel v. Lemons (Ohio Supreme Court October 13, 2022).
  • Adopting the findings of Board of Professional Conduct, which were based on stipulations, but rejecting its recommendation of a 2-year suspension, the Ohio Supreme Court indefinitely suspended a judge without pay for (1) refusing to comply with an administrative order during the COVID-19 pandemic, issuing capias warrants to defendants who followed the administrative order and did not appear, and lying about issuing the warrants to the press and to the presiding administrative judge; (2) in numerous criminal cases, engaging in ex parte communications and improper plea bargaining, rendering arbitrary dispositions, unilaterally amending the charges and falsely attributing those amendments to the prosecutor in judgment entries, and falsely stating in journal entries that she had conducted ability-to-pay hearings and had determined that the defendants were unable to pay fines or costs; (3) using capias warrants and bonds to compel payment of fines and court costs; (4) exhibiting a lack of decorum and dignity, including, the way she dressed, “her unkempt bench,” her undignified and demeaning treatment of defendants, and her efforts to obtain free or discounted goods and services from defendants; and (5) becoming personally embroiled with a defendant, abusing her discretion by holding the defendant in contempt for rolling her eyes in court and cursing in lockup, instigating the incident that led her to cite the defendant in contempt for a second time, and failing to recuse herself from the 2 contempt cases.  Disciplinary Counsel v. Carr (Ohio Supreme Court October 18, 2022).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for ordering a defendant handcuffed and detained for a few hours for allegedly violating the conditions of his community supervision by not attending a specific retreat, which had not been ordered.  Public Reprimand of Uzomba (Texas State Commission on Judicial Conduct October 24, 2022).
  • The Vermont Supreme Court suspended a judge without pay for the remainder of his term based on its order adopting a decision of the Professional Responsibility Board, to suspend his law license for 15 months for disclosing confidential juvenile records, failing to seek to modify a client’s conditions of release, disclosing confidential information relating to the representation of a client, falsifying records submitted in response to a disciplinary investigation, and aggravating factors; the Court had also reprimanded him for failing to provide competent representation to a DUI client.  In re Cobb, Entry order (Vermont Supreme Court October 24, 2022).
  • Accepting the recommendation of the Judicial Hearing Board based on a joint stipulation and agreement between the judge and Judicial Disciplinary Counsel and the formal statement of charges filed by the Judicial Investigation Commission, the West Virginia Supreme Court of Appeals suspended a judge for 12 months without pay, with 11 months held in abeyance, publicly reprimanded him, and ordered that he undergo counseling for (1) failing to treat litigants in his courtroom with respect and dignity, as demonstrated in hearings in 10 family court cases from January 2020 through August 2021, and (2) showing a lack of courtesy, civility, decorum, and judicial comportment, failing to control his anger and emotions, and expressing a clear disrespect for authority in dealing with technicians from the Supreme Court’s IT Department.  In the Matter of Camilletti, Order (West Virginia Supreme Court of Appeals September 20, 2022).

Fall Judicial Conduct Reporter

The fall issue of the Judicial Conduct Reporter has been published on-line.  The issue has articles on:

• Ex parte communications and independent investigations: Recent cases
• Letters in adjudicative proceedings
• Time limits on complaints about judicial misconduct
• Recent cases
 Legal error and injudicious conduct: Bourne (Arkansas 2022)
 Tardiness, absence, and refusing to follow the law: Gundy, 877 S.E.2d 612 (Georgia 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

10 years ago this month:

  • Based on a joint motion to resolve charges, the Alabama Court of the Judiciary publicly reprimanded and censured a judge for failing to recuse himself from a traffic violation case in which his son was the defendant and dismissing the case.  In the Matter of Durward, Reprimand and Censure (Alabama Court of the Judiciary November 21, 2012).
  • Based on the recommendation of the Commission on Judicial Conduct and a stipulated resolution, the Arizona Supreme Court publicly censured a former judge for accompanying his niece while she collected nominating petition signatures for a candidate and for speaking at a political meeting at which one of the subjects was whether to adopt a resolution supporting the recall of his brother, a state senator.  In the Matter of Pearce, Order (Arizona Supreme Court November 26, 2012).
  • With the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for assuming the role of the prosecutor when she attempted to negotiate a resolution to a defendant’s case after the defendant inquired about the status of his traffic infraction ticket and driver’s license suspension and for several ex parte conversations with the prosecutor about the case.  Public Admonition of Hagerty (Indiana Commission on Judicial Qualifications November 19, 2012).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court reprimanded a judge for telling a defendant who had questioned the bond the judge set, “I’ll beat you’re a** if you call me a liar.”  In the Matter of Martin, 734 S.E.2d 165 (South Carolina 2012).

“Unprecedented misconduct”

Adopting the findings of the Board of Professional Conduct, which were based on stipulations, the Ohio Supreme Court indefinitely suspended a judge without pay for (1) refusing to comply with an administrative order during the COVID-19 pandemic, issuing capias warrants to defendants who did not appear in court, and lying about issuing the warrants to the press and to the presiding judge; (2) in numerous criminal cases, engaging in ex parte communications and improper plea bargaining with defendants, rendering arbitrary dispositions, unilaterally amending the charges and falsely attributing those amendments to the prosecutor, and falsely stating that she had conducted ability-to-pay hearings; (3) using capias warrants and bonds to compel payment of fines and court costs; (4) exhibiting a lack of decorum and dignity, including in her attire, her “unkempt bench,” and her demeaning treatment of defendants; and (5) abusing her contempt power after becoming personally embroiled with a defendant.  Disciplinary Counsel v. Carr (Ohio Supreme Court October 18, 2022).  The judge’s reinstatement is conditioned on her submission of a report from a healthcare professional stating that she is able to return to the competent, ethical, and professional practice of law and proof of compliance with her Ohio Lawyers Assistant Program contract. 

The Court emphasized:

Carr’s unprecedented misconduct involved more than 100 stipulated incidents that occurred over a period of approximately two years and encompassed repeated acts of dishonesty; the blatant and systematic disregard of due process, the law, court orders, and local rules; the disrespectful treatment of court staff and litigants; and the abuse of capias warrants and the court’s contempt power.

The judge argued that a mental disorder was a contributing cause of her misconduct, specifically, a generalized-anxiety disorder and a mood disorder due to menopause, sleep apnea, and stress.  Although the Board accepted her psychologist’s diagnoses and treatment recommendations, it found that the judge “had failed to establish a causal link between her current mental disorders and her past misconduct. . . .”

(1) For a longer discussion of the judge’s misconduct related to the COVID administrative order, see last week’s post

(2) In 34 cases between May 2019 and December 2020, the judge engaged in ex parte communications and improper plea bargaining with defendants and made arbitrary rulings.  In at least 6 of the 34 cases, the judge unilaterally amended the charges against the defendants and in her judgment entries, falsely attributed those amendments to the prosecutor.  In at least 24 of the 34 cases, the judge falsely stated in journal entries that she had conducted ability-to-pay hearings and determined that the defendants were unable to pay fines or costs.

The judge admitted that she routinely conducted hearings without a prosecutor present to avoid complying with procedural safeguards.  In open court, the judge “unabashedly” told her staff one day, “[T]he prosecutor isn’t here.  Let’s see how much we can get away with,” and on another occasion, told a defendant, “Well the prosecutor isn’t here, so we need to get as many of these done before he or she gets here . . . .”  She then offered the defendant a plea deal that he accepted. 

The judge unilaterally recommended pleas to unrepresented defendants when no prosecutor was present and accepted the pleas without explanation or a discussion of the consequences.  After unilaterally entering no-contest pleas, the judge routinely found the defendants not guilty or after finding the defendants guilty, arbitrarily waived fines and costs without any inquiry into the defendant’s ability to pay, falsifying her journal entries to conceal her actions.  The judge frequently stated that she was waiving fines and costs because the defendant’s birth date was close to the date of the hearing, a holiday, her own birthday, or the birth date of a family member or friend.

(3) After being told that the clerk’s office had a very low success rate collecting fines levied by the court, the judge began using capias warrants and incarceration to compel payment, which, as she admitted in the disciplinary hearing, “essentially created a modern-day debtors’ prison.”  The judge would set ability-to-pay hearings for a few days after a defendant’s payment was due without notifying the defendant.  Then when the defendant failed to appear for the hearing, she would issue a capias warrant and set a bond between $2,500 and $25,000 even though the defendant’s fines and costs were typically just hundreds of dollars.  She would write on the journal entry, “Post bond or pay fines and costs in full.  No [Community Work Service]/TTP.”  She would also stamp on the journal entry “DEFENDANT DOES NOT QUALIFY FOR IN THE NEIGHBORHOOD OR OVER THE COUNTER.  JUDGE PINKEY S. CARR.”

(4) The judge’s bench was covered with “dolls, cups, novelty items, and junk.”  She presided over her courtroom wearing workout attire, including tank tops, t-shirts (some with images or slogans), above-the-knee spandex shorts, and sneakers.  The Board found that the judge “reveled in her lack of decorum,” knowing “that “the public took notice of her unconventional appearance.”  For example, when a defendant expressed surprise that he had been found not guilty, the judge responded, “You can trust me.  I know I’m not dressed like a judge, but I’m really the judge.”

The judge was loud and boisterous, used a singsong tone, and on at least one occasion, used a really loud voice when speaking to a defendant.  During a series of proceedings in open court, the judge maintained a dialogue with her staff and defendants about the television series P-Valley, which is set in a strip club. 

The Court noted that, although the judge “frequently behaved as though the rules of courtroom decorum did not apply to her, she did not hesitate to correct defendants for seemingly minor infractions.”  She repeatedly admonished defendants for standing with their hands crossed or in their pockets instead of at their sides and screamed at them when they indicated that they had not heard what she said.  She resented being called “ma’am,” berating defendants who used that honorific and chastising male defendants who referred to her as “ma’am” by calling them “little boy.”

On multiple occasions in open court, the judge joked that she would be open to some form of bribe in return for a lenient sentence and talked with defendants about accepting kickbacks and arranging “hookups” for herself and her staff.  For example, when E.W. appeared before the judge to request reinstatement of his driving privileges, after being informed that E.W. worked for an automotive company, the judge told her staff, “I got us another hookup.  We could get our cars fixed here,” and she stated that she had already gotten them some flooring and carpet.  E.W. told her to bring their cars in and that the company would love to take care of them.  The judge replied, “Always getting us the hookups.  Don’t worry, we don’t have to pay.  It’s on him.”

(5) In May 2019, 20-year-old A.B. and her 19-year-old sister C.B. were arraigned before the judge on misdemeanor counts of assault and disorderly conduct for allegedly assaulting a 16-year-old girl.  The Board found that the video of the arraignment demonstrated that the judge “took an immediate dislike to A.B.”

The judge told the public defender representing the sisters that A.B. “is going to get plenty of time with me.”  While the public defender conferred with her clients, the judge gave a monologue in a singsong voice about how nice it would be to have “company” in her courtroom, and she expressed her hope that A.B.’s case would be assigned to her.  She paused from time to time to laugh or hum a tune.

A.B. muttered something to the deputy, and the judge snapped, “What did she say?  She said this Court is f***ked.  What did she say?  Oh, okay.  Corny as f**k.  Okay, corny as f**k.”  A.B. responded, “I said corny the way you’re treating me.  Like, I didn’t do—.”  The judge interrupted her, saying, “Oh, no problem.  Uh-huh.  Close your mouth.  Don’t interrupt my courtroom.  You don’t want to have a problem with me.  I told you that when—.”  At that point A.B. said something else.  The judge raised her voice and twice told A.B., “Close your mouth.”  As A.B. continued to talk, the judge said, “Say one more thing,” and then to her bailiff, “Take her in the back for me, please.  Uh-huh.  Bye bye.”

A.B. left the courtroom in tears and remained in the lockup area for several hours until the judge had her brought back to the courtroom.  At that time, court staff informed the judge that while in the holding cell, A.B. had repeatedly referred to the judge as a “b**ch” so loudly that another judge had to close his courtroom doors.

When the public defender encouraged A.B. to speak, A.B. said, “It doesn’t matter.  You don’t care.”  The judge asked A.B., “You think it’s acceptable behavior to call me 50 b**ches and say that the courtroom—this is some corny a** sh*t?”  A.B. said, “No, I’m trying to explain myself.  I walked up to the stand.  You read the paper.  You didn’t even let me talk.  You automatically changed your attitude from happy to just anything, like you was just basing me off of what—basically, just reading me off of a piece of paper.”  The judge started to talk and then she accused A.B. of rolling her eyes.  As A.B. was led from the courtroom, the judge told the public defender that she could tell A.B. had a “screw loose.”

The judge charged A.B. with 3 counts of contempt of court.  In an affidavit supporting those charges, the judge stated that A.B. “while in a courtroom, * * * did repeatedly refer to the court as a ‘b**ch,’ and called the courtroom ‘sh*t’” even though she did not personally hear A.B. say anything disrespectful but had heard that from court staff.

On August 13, A.B. appeared in the judge’s courtroom with counsel and pleaded guilty to 1 charge of contempt.  Before imposing a sentence, the judge inaccurately summarized A.B.’s actions at her arraignment, falsely stating that A.B. had said, “I don’t have to look at you.”  The judge sentenced A.B. to 30 days in jail with 15 days suspended and 5 years of active probation; she imposed a $250 fine, which she suspended, and ordered A.B. to complete anger-management classes and read an apology letter aloud in open court on September 4.

During her disciplinary hearing, the judge admitted that charging A.B. with contempt for rolling her eyes in court and cursing in lockup was an abuse of her discretion.  Noting that A.B. had not acted out physically, refused a lawful order, failed to cooperate, or engaged in any conduct that constituted an immediate threat to the administration of justice, the Board found that it was not apparent that A.B. had done anything to warrant the sentence the judge imposed.

On September 4, A.B. appeared in court with her apology letter.  A.B.’s attorney was late, but the judge proceeded with the hearing.  Even though A.B. had completed the sentence imposed on August 13, the judge ordered her to submit to random substance abuse testing and to write an additional letter entitled, “How would you feel if I called your mother a b**ch?”  The judge “continued to torment A.B. before her attorney arrived and gave the courtroom audience her own—not entirely accurate—version of A.B.’s underlying offense and behavior at her May 2019 arraignment.”  A.B. told the courtroom audience that the judge’s recitation of the case was inaccurate and continuously interrupted the judge.  After one interjection, the judge asked, “What did she say?”  Her bailiff responded, “This is bullsh*t.”  The judge responded, “This is some bullsh*t?  Juanita, put her in the holding cell for me.  Uh-hmm.  Contempt charge again.  Thank you.  Appreciate it.  In the holding cell.  Bye-bye.  I’m not finished with this.”  A.B. attempted to interrupt the judge several times to explain that she had not only said, “Oh my goodness.”  A.B., who was then hysterical, was taken to the holding cell.

In October 2020, A.B. pled no contest to the second contempt charge.  The judge sentenced her to 30 days in jail and fined her $250 before suspending that sentence and waiving costs. 

In the disciplinary proceedings, the judge admitted that she had instigated the incident that led her to cite A.B. for contempt the second time by antagonizing A.B. from the bench and being rude and discourteous.  The Board found that because of her embroilment with A.B., the judge should have recused herself from both contempt cases.

Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline and Disability Commission publicly admonished a judge for (1) displaying injudicious temperament during a hearing, (2) directing that his son be placed on 6-months probation and attend defensive driving school, and (3) without prior notification to the prosecuting attorney, rescinding mandatory driver’s licenses suspensions contrary to a statute.  Letter of Admonishment to Shoffner (Arkansas Judicial Discipline and Disability Commission November 19, 2002).
  • The Arkansas Judicial Discipline and Disability Commission informally adjusted a complaint alleging that in response to a phone call from a suspect’s mother, a judge advised the arresting officer that he should seek a warrant for the defendant because the alleged crime did not take place in the officer’s presence; the officer had perceived the conversation as judicial advice and released the defendant from custody.  Letter to Roberts (Arkansas Judicial Discipline and Disability Commission November 18, 2002).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court suspended a judge from office for 30 days without pay and publicly reprimanded her for (1) angrily engaging in an ex parte discussion with another judge in that judge’s hearing room; (2) making materially incomplete and misleading statements in her deposition in the underlying case and in an errata sheet; and (3) requesting a scheduling favor for a family member from another judge. Inquiry Concerning Holloway, 832 So. 2d 716 (Florida 2002).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for, in 3 of the last 5 years, failing to file his financial disclosure statements by the required date, filing them only after the Ethics Commission sent him a notice to cure; the delays were almost 4 weeks, almost 2 months, and more than 7 months.  In the Matter of Elliott, Determination (New York State Commission on Judicial Conduct November 18, 2002).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for making a public statement on behalf of a candidate for another judicial office in a radio advertisement, sending the statement to a newspaper, and authorizing the candidate to use it in a campaign advertisement.  In the Matter of Crnkovich, Determination (New York State Commission on Judicial Conduct November 18, 2002).
  • Pursuant to a stipulation agreeing that a determination be made based on the referee’s findings of fact and conclusions and a joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for widely disseminating a letter he had sent to the Commission that contained inaccurate, unsubstantiated allegations denigrating a fellow judge.  In the Matter of Fiechter, Determination (New York State Commission on Judicial Conduct November 18, 2002).
  • Accepting an agreement and affidavit, the North Dakota Supreme Court publicly censured a former judge (1) for failing to properly supervise the municipal court clerk in the performance of her duties, allowing the clerk to steal over $10,000 from funds held by the court; and (2) for the court’s failure (a) to forward demands for change of judge to the district court, resulting in several criminal cases being dismissed for lack of speedy trial, (b) to take action on a number of demands for change of judge made by the city in early 2002, (c) to process approximately 19 other municipal court cases between September 2001 and February 2002, (d) to notify the police department of dispositions of traffic citations and to report violations to the State licensing authority, and (e) failing to dispose of approximately 145 cases involving “long form” complaints processed by the police department for 2001.  In the Matter of Berg, 653 N.W.2d 32 (North Dakota 2002).

COVID comments, likes, and warrants

4 judges were recently sanctioned for misconduct related to the COVID-19 pandemic.

  • 1 judge has asked for review of the admonishment he received from the Texas State Commission on Judicial Conduct for, during jury selection in a case, referring to COVID-19 as the “China Virus;” stating, “yeah, I said it!” and “the attorneys would be upset I said that;” and calling some of the pre-requisite questions for jurors “stupid” and commenting “I don’t know why I have to ask this.”  Public Admonition of Low and Order of Additional Education (Texas State Commission on Judicial Conduct August 22, 2022).  Some of the potential jurors whooped and clapped their hands after the judge’s comment about the virus, and he encouraged their behavior by laughing and nodding.  A potential juror who was Asian American stated that she felt unsafe and uncomfortable after the judge’s comment, especially in light of recent hate crimes directed against Asian Americans.  The judge testified that he was trying to expose the bias of the potential jurors and that he knew it could offend some of them, but he was doing it for a higher purpose.
  • In an order issued at the beginning of COVID-19 pandemic, a judge explained that he was cancelling a hearing scheduled to be held over Zoom “because that may require someone (staff person/IT person/lawyer who doesn’t have access to the technology?) to leave home and violate Gov. MeMaw’s order,” a reference to Governor Kay Ivey’s stay-at-home order.  The judge’s order went “viral,” and the other judges in the state were concerned it would affect upcoming budget discussions.  In a letter of apology to the Governor, the judge stated that “the idiotic comment in that order was mine alone, and a poor attempt at humor in the midst of this Covid-10 mess.”  Pursuant to his agreement, he was suspended for 45 days without pay and censured for this and similar references to the Governor, other comments, using cuss words and profanity, and declaring laws regarding court fees unconstitutional and redirecting funds from the state to the circuit clerk’s office.  In the Matter of Patterson, Final judgment (Alabama Court of the Judiciary October 27, 2022).
  • A judge liked a LinkedIn post that shared a post stating, “Biden’s been in office 2 days and Democrat cities across the country are reducing Covid restrictions and opening indoor dining.  YOU LITERALLY CAN’T MAKE THIS STUFF UP!  They ruined American businesses, livelihoods and lives for an election.  This should repulse you.”  In the Matter of Elia, Determination (New York State Commission on Judicial Conduct September 28, 2022). Pursuant to his agreement, he was publicly censured for this and other misconduct).

Finally, a judge did not comply with an administrative order postponing hearings during the COVID-19 pandemic and then issued capias warrants to defendants who followed the administrative order and did not appear and lied about the warrants to the press and the presiding administrative judge.  Disciplinary Counsel v. Carr (Ohio Supreme Court October 18, 2022).  The Ohio Supreme Court suspended the judge without pay indefinitely for this and other misconduct.  

On March 13, 2020, in an administrative order entered to help prevent the spread of COVID-19, Judge Michelle Earley, the administrative and presiding judge of the Cleveland Municipal Court, ordered that all civil and criminal cases set for hearing between March 16 and April 3, 2020, be rescheduled for 3 weeks after the originally scheduled date.

However, Judge Carr did not reschedule cases, and, on Monday, March 16, she presided over her regular docket.  In 8 criminal cases, the defendants did not appear, and the judge issued capias warrants for each of those defendants, setting bonds from $2,500 to $10,000.  In contrast, for defendants who were “brave enough” to appear despite the potential for exposure to COVID-19, the judge waived fines and court costs.  The judge informed the public defender assigned to her courtroom that defendants represented by that office should continue to appear in court, contrary to the administrative order.

On Tuesday, March 17, the judge presided over her regular docket as though the administrative order had never been issued.  Only a few non-jailed defendants and their counsel appeared.  The judge issued capias warrants and set bonds for 7 defendants who did not appear.  When the public defender asked whether his clients should plan to be in court the following day, the judge stated that they should.  When the public defender mentioned the administrative order and asked if there was any concern regarding COVID-19, the judge replied that not everyone watches the news and that she would be in court and the public defender should not tell people not to show up.  After the public defender left the courtroom, the judge mocked him to her staff, calling him a “little idiot.”

Pursuant to the administrative order, Matthew Woyma, the person responsible for scheduling the court’s cases, cancelled the judge’s civil docket for March 26 and sent written notices to all parties.  In open court, the judge instructed her bailiff to tell Woyma “to get his a** back on that phone and put all [her] civil cases back on.”  As a result, Woyma had to notify every party to appear in court as originally scheduled.

On March 17, The Plain Dealer published an article on its website, Cleveland.com, with the headline “Cleveland judge flouts court’s postponements amid coronavirus pandemic, issues warrants for no-shows.” 

Throughout the morning docket of March 18, the judge criticized Cleveland.com for the article.  Between proceedings, in an interview with a reporter from a local TV station, she claimed that the article was “untrue” and “reckless” and denied issuing arrest warrants for defendants who had failed to appear for proceedings in her courtroom that week.

In a text exchange later that day, Judge Earley asked Judge Carr if she was issuing warrants for people who failed to appear, and Judge Carr responded, “Too late to ask that ridiculous question.  My [journal entries] reflect corona day 1, 2, or 3.  Time case was called and no defendant or [failed to appear] in which my journalizer notes NO WARRANT TO ISSUE.”  The Court emphasized that that “statement was patently false because none of Carr’s journal entries included the phrase ‘no warrant to issue.’”

When Judge Earley learned that Judge Carr had, in fact, issued arrest warrants, Judge Earley had to review all of Judge Carr’s entries, recall the warrants, set bonds, and issue summonses for the next court appearances.  She also had to reschedule the civil cases that Judge Carr had reset for March 26.

In response to a complaint and motion from the public defender, the court of appeals ordered the judge to comply with the administrative order and stayed all orders and capias warrants she had issued after March 13.  In addition, the chief justice disqualified the judge from criminal and traffic cases of non-jailed defendants as long as Judge Earley’s administrative order was in effect.

The Board on Professional Conduct found that the judge had “very publicly flouted her disregard of a court order that was designed to ensure the safety of the public and the court’s personnel during the pandemic,” that she had punished members of the public who followed the administrative order and lied about it to the press and to the presiding judge, and that she had “created the very danger that the order sought to prevent—the spread of the coronavirus in open court.” 

Conduct related to the pandemic has previously resulted in 15 public sanctions.

  • A judge failed to grant a continuance requested by an attorney who had COVID-19 symptoms or to make arrangements to allow the attorney to appear telephonically and then granted a default judgment against the attorney’s client, a defendant in a civil traffic case.  Sears, Order (Arizona Commission on Judicial Conduct January 26, 2022) (admonishment).
  • A judge spoke sharply to court staff when disconnected from a Zoom hearing and yelled at court staff when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case.  Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021) (reprimand).
  • A judge repeatedly failed to wear a face covering when interacting with the public and staff in court facilities as required by administrative orders, failed to require individuals in his courtroom to abide by administrative orders, and appeared “to publicly denigrate those orders.”  Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021) (reprimand).
  • A judge displayed improper demeanor toward 2 criminal defense attorneys appearing by phone for an arraignment on the first day after the stay-at-home order was in effectIn the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for this and other misconduct).
  • A judge failed to wear a protective face covering at all times while on court premises as required by the New Mexico Supreme Court’s COVID-19 order and asked a clerk if they minded if he did not wear a mask, and, after the court began conducting telephonic hearings due to the pandemic, issued bench warrants when 11 defendants failed to call the court on their appearance date without determining if the defendants had been properly summoned.  In the Matter of Guthrie, Order (New Mexico Supreme Court April 25, 2022) (permanent resignation pursuant to agreement for this and other misconduct).
  • A judge failed to always wear a protective face covering while on court premises and told attorneys appearing before him for trial that they did not need to wear masks during proceedings, contrary to the New Mexico Supreme Court’s COVID-19 order.  In the Matter of Ionta, Order (New Mexico Supreme Court August 1, 2022) (permanent retirement pursuant to agreement for this and other misconduct).
  • A judge engaged in disruptive behavior during a meeting about the court’s COVID-19 safety plan, confronted another magistrate and the Chief Magistrate after the meeting, and made an inappropriate statement to a clerk about the Chief Magistrate’s complaint to Disciplinary Counsel.  In the Matter of Rivers, 862 S.E.2d 449 (South Carolina 2021) (6-month suspension without pay).
  • A judge stated in the courtroom:  “The Grand Wizard of our Supreme Court said we have to wear these masks.”  Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand).
  • A judge failed to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commented in the courtroom that he wished the chief justice “would win an award so that the COVID-19 mandates” would end.  Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand).
  • A judge stated in a post on the county’s Facebook page 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).
  • A judge issued peace bond warrants for President Biden and Dr. Anthony Fauci alleging their COVID-19 health restrictions, immigration policies, and firearms policies constituted threats to commit offenses under Texas law against multiple anonymous complainants.  Public Warning of Black (Texas State Commission on Judicial Conduct April 7, 2022).
  • A judge declined to determine who was attempting to appear at the end of a calendar via Zoom.  In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021) (reprimand for this and other misconduct).
  • A judge criticized the prosecution of a case in comments that he thought could only be heard by the court employees in the courtroom but that were being broadcast through the court’s YouTube channel.  In re Antush, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 19, 2021) (admonishment).
  • A judge said, “kicked that mother f***er’s a**,” when he believed he was no longer on the line after a telephonic hearing had adjourned but, in fact, the attorneys could still hear him and the courtroom’s audio recording was still activated.  In re Dixon, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022) (admonishment).
  • A judge significantly delayed issuing decisions after hearings in 3 small claims cases, which the judge attributed in part to the difficulty of maintaining court operations during the pandemic.  In re Howson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022) (admonishment).

Throwback Thursday

25 years ago this month:

  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed from office a part-time judge who had been disbarred for conduct involving dishonesty, fraud, and deceit in his handling of an estate in his capacity as a private attorney.  In the Matter of Embser, 688 N.E.2d 238 (New York 1997).
  • The New York Court of Appeals publicly censured a judge for (1) dismissing a charge as a favor to a defendant whom the judge had known for over 40 years; (2) summarily sentencing a defendant to 30 days in jail without asking him to enter a plea or advising him that he had the right to assigned counsel if he could not afford a lawyer; and (3) giving evasive and disingenuous testimony before the Commission.  In the Matter of Skinner, 690 N.E.2d 484 (New York 1997).
  • Accepting a stipulation, the Utah Supreme Court publicly reprimanded a judge who had presided over a criminal proceeding in which he knew that his mother-in-law would likely be a material witness.  Inquiry Concerning Herring (Utah Supreme Court November 17, 1997).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for telling a defendant during his arraignment that if he wanted appointed counsel, his jail time, fine, and costs would be stiffer, and advising a second defendant during 2 arraignments that if he asked for appointed counsel, he could expect the maximum jail time.  In the Matter of Jarrell (West Virginia Judicial Investigation Commission April 21, 1997).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge who had conducted a trial in a civil action in August 1994, but did not render a decision until January 1997, after the Supreme Court of Appeals had issued a writ of mandamus directing him to render a decision.  In the Matter of Irons (West Virginia Judicial Investigation Commission February 18, 1997).

Independent investigations

In two recent cases, judges were sanctioned for conducting factual investigations in cases pending before them.

An Ohio judge admitted that he should not inspected a home in response to concerns about the children living there after their father’s arrest and that he should have recused himself from the custody case “triggered” by his inspection. Disciplinary Counsel v. Lemons (Ohio Supreme Court October 13, 2022). The Ohio Supreme Court reprimanded the judge, adopting the findings and recommendation of the Board of Professional Conduct, which were based on stipulations.

On Thursday, January 12, 2017, D.M. was arrested and jailed on a charge of corrupting a juvenile with drugs. D.M. had legal custody of his 3 oldest children while a relative had custody of his 2 youngest children; the children’s mother was incarcerated. On the evening of D.M.’s arrest, a caseworker for the county children services agency visited the home where D.M. had resided with the 3 children and their grandfather. The agency put in place an in-home safety plan for the children rather than removing them from the home.

The following day, a school resource officer expressed concern about the well-being of D.M.’s children to Greg Dunham, a member of the judge’s staff. Dunham and a probation officer visited D.M.’s home. Durham observed that the home was filthy, the water had been turned off, the toilet was overflowing with human waste, the floor was littered with dog feces, the refrigerator was not working, and the children had no beds. Dunham reported his observations to the judge and the children services agency. The agency sent a caseworker to D.M.’s home, but again decided not to remove the children.

After Dunham advised the judge of the agency’s decision, the judge conducted his own investigation of the home, accompanied by law enforcement officers. He confirmed Dunham’s report and also observed a wall heater with an open flame within a few feet of the grandfather’s oxygen tanks; a cooler, presumably a substitute for the broken refrigerator, that only stored dirty dishes; a child who was not dressed appropriately using the oven to warm himself; and mattresses on the floor without box springs in the upstairs bedrooms, which were colder than the rest of the house.

After his visit, the judge found that 2 of D.M.’s children were in imminent danger and ordered the children services agency to take temporary custody and investigate. The agency promptly complied. The judge did not send a copy of the emergency order to the children’s parents. At the request of the children services agency, the judge entered an ex parte order giving the agency custody of the children pending final adjudication and disposition.

At a probable cause hearing on January 19, the children services agency did not present any evidence about the conditions of D.M.’s home, and the judge did not disclose that he had visited the home. However, the judge mentioned the home’s conditions during the hearing. For example, after D.M. asked whether his children would be placed with their grandmother, the judge responded that if the grandmother’s residence looked like D.M.’s home, “that’s a NO” and that any possible home for the children would need to have running water and mattresses with box springs.

The judge continued presiding over the children’s dependency proceedings. In 2019, the judge gave the children services agency permanent custody of the 2 children who were the subject of his January 2017 emergency order.

During the disciplinary case, the judge said that he had investigated D.M.’s home and issued the emergency order because he wanted to force the children services agency “to do their job.” The judge explained that the county was the center of the opioid epidemic and that “every parent[ ] seemed to be high and strung out,” but the agency was not investigating or filing enough cases and the juvenile court was flooded with calls from grandparents, schools, and hospitals asking the court to take action. The judge admitted that he had allowed his frustration to get the better of him.

The Board found that “by conducting the wellness check of D.M.’s residence—which included thoroughly inspecting the house and interacting with the children and their grandfather—. . . [the judge] made an independent investigation of facts pertinent to what became a formal custody case” and that his investigation was the “sole basis” for his emergency order removing 2 of the children from the home. The Board also found that the judge should have recused himself from the case, stating that no matter how well-intentioned, the judge “could not be both the source of a private referral based on his personal knowledge and an impartial arbiter of the issues as a judge.”

* * *
Adopting the findings of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a former judge for conducting an independent factual investigation in a trust case in response to the trustee’s request for reimbursement of expenses allegedly spent for improvements to a house that was one of the assets of the trust. In the Matter of Bergman, Order (New Jersey Supreme Court October 6, 2022). The reprimand was also for the judge’s call to a third-party witness in the case.

The trustee’s brother had objected to the request for reimbursement, arguing that some of the expenses had been for the personal benefit of the trustee and his daughter, who was living in the house, and not for the benefit of the estate. The judge personally researched public real estate tax records to verify when the trustee’s daughter and her husband purchased their marital home. In addition, at the judge’s request, and without notice to the parties, his law clerk spoke with the registrar for vital statistics to determine the dates of the daughter’s marriage and the birth of her child.

The judge denied most of the trustee’s application for reimbursement, finding, for example, based on his research, that the trustee’s daughter “was working on the house as her future residence, and was willing to pay for certain personal choices in exchange for the privilege of living in it rent free.”

The Committee found that the judge demonstrated judicial bias by incorrectly considering it his duty to ascertain additional information concerning the trustee and his daughter. The Committee rejected the judge’s reliance on the doctrine of judicial notice, stating that he had failed to provide the trustee an opportunity to be heard on the matter as required by the state rules of evidence prior to a judge taking judicial notice.