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.”

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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.

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