Monthly Archives: February 2023

Unnecessary and extrajudicial

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In 2 recent cases, judges were sanctioned for addressing gratuitous, personal matters in court proceedings.

In In the Matter of Rosner (New Mexico Supreme Court January 30, 2023) (), a judge responded in an order to allegations in a newspaper article that she believed was written by and/or at the behest of the father’s counsel in a domestic matter.

In 2017, the judge had appointed Dr. Harold Smith as the parenting coordinator in the matter to reduce conflict between the parties and to assist with the parenting plan.

3 years later, the father retained new counsel.  The new counsel quickly filed a motion to remove Dr. Smith, alleging that he was not a qualified parenting coordinating, and also a motion to recuse the judge for cause, arguing that her recusal was necessary to compel her testimony about why she had appointed Dr. Smith.

A week after the motions were filed and before a hearing was held, an article in the Las Cruces Sun-News reported many of the allegations in the 2 motions.  The article criticized the court’s parenting program, the judge and her involvement in that program, and her appointment of Dr. Smith.

The judge admitted that she “felt personally attacked” and considered the article and the motions to be “personal criticisms, factually inaccurate, and misleading.”  Nevertheless, she continued to preside over the matter because she believed that “she could be impartial, set aside her personal feelings, and continue with her duty to sit.”

Following a hearing, the judge denied the 2 motions.  In paragraph 17 of the order denying the motions, the judge referred to the newspaper article:

Rather than bring to [the c]ourt her claims of alleged misconduct by Harold Smith and this [c]ourt, [Father’s counsel] took her motions to the Las Cruces Sun News, without input from anyone other than herself. . . .  The article, which appeared on the front page of the Las Cruces Sun News on July 21, 2020, sought to damage Harold Smith and this [c]ourt by implying an inappropriate relationship between Harold Smith and the undersigned judge, and bias by this [c]ourt and Harold Smith against [Father].

The judge said in the order that it was “noteworthy” that the motions failed to attack a “damaging” report by another doctor that had been sealed at the request of the father’s counsel.

Following that order, counsel for the father renewed the motion to recuse the judge.  3 days later, the judge recused herself.

Stating that the order cast “a negative light” on the father’s counsel, credibility, and reputation, the Court found that “none of the facts in paragraph 17 were necessary for the disposition of Father’s motions, and their unnecessary inclusion” raised questions about the judge’s impartiality, “notwithstanding any artifices or gamesmanship on the part of Father or his counsel.”  The Court held that the judge should have recused herself from the case because “she knew or should have known that she could no longer be fair and impartial following the publication of the Las Cruces Sun-News article which she believed was written by Father’s counsel.”  The Court emphasized that the accusations that the judge made in the order were “gratuitous” and that it was inappropriate for her to respond to criticism in an order, a tool that she was supposed to use only to carry out her official judicial duties.  In addition, the Court stated that the judge’s reference to the report was inappropriate, “not only because it was sealed, but also because it had no bearing on the disposition of Father’s motions.”

Censuring the judge, the Court explained that “while judges may respond to public or personal criticism, they may not do so in carrying out their official judicial duties.”

We recognize the challenges faced by district court judges, often presiding over emotionally charged cases involving litigants and lawyers who might challenge their authority, insult their integrity, impugn their good names, and even attempt to bait them into losing control.  In those instances, district court judges, no matter how egregious the behavior by counsel or clients, must remain above the fray in order to carry out their official duties.

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In Commission on Judicial Performance v. Moore (Mississippi Supreme Court February 16, 2023), a judge “chose a courtroom where he was the presiding judge as the place to launch a verbal attack on two law enforcement officers for a grievance, unrelated to his judicial duties, that had arisen in his private law practice.”  Based on stipulated facts, the Mississippi Supreme Court suspended the judge without pay for 60 days, fined him $1,500, and publicly reprimanded him.

One of the judge’s clients was the victim of a shooting in November 2020.  On December 4, the client was interviewed in the judge’s private office by Police Detective Sergeant Chris Brown with a Mississippi Bureau of Investigation officer and a district attorney’s investigator.  During the meeting, there was a disagreement about a search warrant that had been issued for the client’s telephone records.  After stating that he would evaluate whether the warrant was valid before advising his client whether to comply, the judge “kicked all three law enforcement officers out of his office,” as he stipulated.  Detective Sergeant Brown said to the judge, “I’ve got your number,” which the judge interpreted as a threat.  The judge called Brown’s superior, Police Chief George Douglas, to complain, but when he was told that the complaint had to be in writing, he chose not to file.

4 days later, the judge presided over the municipal court, which is in the same building as the police headquarters.  Before beginning the proceedings, the judge sent word to Police Chief Douglas and Detective Sergeant Brown to come to his courtroom.

When they arrived, the judge halted court proceedings, had both officers stand before him at the bench, and denied their request to have the discussion in chambers.  Then, he “publicly chastised and embarrassed the two officers in the presence of the entire courtroom.”

The Court stated that, “rather than allowing his anger to subside, the incident at his law office continued to be on Judge Moore’s mind over the next four days and became his first order of business when he convened” court and that “rather than following the appropriate and prescribed procedure for lodging a complaint, Judge Moore contrived a means of doing so publicly, in a crowded courtroom, that was populated in large part by people who were there because of charges brought against them by the local police.”

The Court found that the judge had used “the judicial office with which he had been entrusted as a weapon to secure the presence of an investigating officer before his bench;” publicly disrupted “the regular work of the court to use the courtroom to address a matter related to the judge’s private interest as a practicing attorney;” engaged in “irate criticism [that] . . . was devoid of the decorum judges are required to maintain, especially in court;” and risked interfering with “official duties of the police, as the exchange at the law office concerned their investigation of a violent crime.”  The Court added that “police officers should not have to anticipate or be subjected to retaliation from judges they must deal with in both judicial and extrajudicial capacities.”

New director for the Center for Judicial Ethics

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Arkansas disciplinary counsel to lead judicial ethics effort at the National Center for State Courts

Williamsburg, Va. (Feb. 24, 2023) – The National Center for State Courts (NCSC) has appointed David J. Sachar as the new director of its Center for Judicial Ethics.

Sachar, who has been the executive director of the Arkansas Judicial Discipline & Disability Commission since 2013, will begin the new position on April 3.  He will succeed the center’s longtime director, Cynthia Gray, who will continue to provide an important supporting role.

NCSC’s Center for Judicial Ethics is a national clearinghouse for information about judicial ethics and discipline.  Sachar’s appointment will build on the center’s existing work by expanding training opportunities for state judicial ethics staff and support for judges and court systems in other countries as part of NCSC’s rule of law work.

“We know David Sachar will provide dynamic leadership in this expanding area of our work, both here in the United States and internationally,” said Mary C. McQueen, president of NCSC.

Sachar is a frequent presenter on judicial ethics and an active member of the national and international judicial ethics community. He serves on the board of directors of the Association of Judicial Disciplinary Counsel and is a longtime advisory committee member for NCSC’s Center for Judicial Ethics.

“Keeping fundamental promises to citizens, promoting the rule of law, and providing equality in the court system are hallmarks of the governments of free people,” Sachar said.  “The work of the Center for Judicial Ethics can enhance our judiciary and others around the world.”

Sachar’s legal career includes work as a prosecutor, litigator and special circuit court judge.  He has also served as an adjunct law professor at the William Bowen School of Law at the University of Arkansas at Little Rock.

Molly Justice
Director of Communications & Online Media
mjustice@ncsc.org
(757) 259-1564

Throwback Thursday

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5 years ago this month:

  • Adopting the recommendation of the Judicial Hearing Board based on an agreement, the West Virginia Supreme Court of Appeals publicly censured a magistrate and fined him $2,000 for inappropriate comments he made about the victim in a domestic assault and battery case after finding a defendant not guilty following a bench trial. In the Matter of Summers, Order (West Virginia Supreme Court of Appeals February 25, 2018).
  • The Kansas Commission on Judicial Qualifications ordered a former judge to cease and desist from verbal and/or physical conduct that is offensive and demeaning to female court reporters and judges and to continue his retirement without seeking election or accepting appointment to any judicial office.  Inquiry Concerning Yeoman, Order (Kansas Commission on Judicial Qualifications February 7, 2018).
  • • Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for failing to rule on an application for a temporary protection order filed against a sheriff’s deputy within 1 day as required by statute and denying the application without a hearing after an independent investigation. In the Matter of Sullivan, Stipulation and order of consent (Nevada Commission on Judicial Discipline February 23, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for engaging in an intimate relationship with the city’s prosecutor; the Commission also ordered that he obtain 2 hours of instruction with a mentor.  Public Reprimand of Berry and Order of Additional Education (Texas State Commission on Judicial Conduct February 21, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for sending a letter on official letterhead notifying the defendant in a public nuisance case filed by his brother that he was in violation of non-existent laws and ordering him to abate the nuisance; the Commission also ordered the judge to complete 2 hours of instruction with a mentor.   Public Reprimand of English and Order of Additional Education (Texas State Commission on Judicial Conduct February 8, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for posting on his Facebook page a meme endorsing the extermination of Muslims and statements “railing” against liberals.  Public Reprimand of Burkeen (Texas State Commission on Judicial Conduct February 21, 2018).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for refusing to allow a man to inspect and copy case files and for engaging in a heated conversation with the man; the Commission also ordered the judge to obtain 4 hours of instruction with a mentor.  Public Warning of Smith and Order of Additional Education (Texas State Commission on Judicial Conduct February 21, 2018).

Winter Judicial Conduct Reporter

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The winter 2023 issue of the Judicial Conduct Reporter has been published. The issue has articles on:

  • State judicial discipline in 2022
  • Removal cases in 2022
  • Top judicial ethics and discipline stories of 2022
    • What they said and did in the pandemic that got them in trouble
    • Federal judicial discipline
    • Judicial confrontations
  • What judges said that got them in trouble in 2022
    • What they said in criminal cases
    • What they said in civil and family law cases
    • What they said to or about court staff and other judges
    • What they said that abused the prestige of office
    • What they said outside the courthouse

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.

Recent cases

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  • Based on the judge’s retirement and agreement not to seek, request, or accept any judicial office, the Georgia Judicial Qualifications Commission resolved its investigation of a former judge; the investigative panel had authorized a full investigation of allegations that the judge had made inappropriate and undignified remarks to a colleague regarding how he intended to handle an issue with a courthouse employee, and an investigation revealed that the judge was residing in Tennessee and did not have the hours of training required for magistrate judges.  In re Inquiry Concerning Bain, Report of disposition (Georgia Judicial Qualifications Commission January 31, 2023).
  • On a motion to approve the report and recommendation of the hearing board of the Attorney Registration and Disciplinary Commissio, the Illinois Supreme Court disbarred a former judge for sexually harassing a police officer, a court reporter, and an assistant state’s attorney while he was a judge.  In re Araujo, Order (Illinois Supreme Court January 17, 2023).
  • Based on a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court suspended a judge for 7 days without pay for (1) in 3 hearings in a juvenile paternity case, being impatient, undignified, and discourteous and (2) in 3 related children-in-need-of-services cases, holding an off-the-record hearing in chambers without all parties represented in which he ruled on substantive motions and considered oral motions on substantive issues that were outside the noticed purpose of the hearing, and then allowing only one party to assist in creating a court entry.  In the Matter of Meade, Per curiam opinion (Indiana Supreme Court January 12, 2023).
  • Accepting a final submission upon agreed facts, the Massachusetts Supreme Judicial Court publicly reprimanded a judge for posts on his Facebook account that expressed views on political candidates, political figures, and issues and posts that could create the appearance of bias based on gender, ethnicity, or immigration status.  In the Matter of Michaud, Order (Massachusetts Supreme Judicial Court December 22, 2022).
  • Following a hearing on charges filed by the Office of Chief Disciplinary Counsel, the Missouri Supreme Court suspended a former judge from the practice of law for 2 years for, during his unsuccessful 2018 campaign to retain his judicial position, threatening to file an ethics complaint against a potential opponent if she decided to run against him and threatening to disclose a former client’s confidences.  In re Prewitt (Missouri Supreme Court January 31, 2023).
  • Granting a petition to accept a stipulation agreement and consent to discipline, the New Mexico Supreme Court publicly censured a former judge for failing to disqualify herself from a domestic matter when she knew or should have known that she could not be fair and impartial following a newspaper article that she believed was written by and/or because of the father’s counsel; using an order denying the father’s motions to directly respond to allegations in the article; and noting in the order that a sealed doctor’s report was unfavorable to the father.  In the Matter of Rosner (New Mexico Supreme Court January 30, 2023).
  • 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 proceeding against a former judge; in July, the Commission had filed a formal complaint alleging that, while presiding over 5 emergency applications for temporary orders of protection and other relief, the judge had been disrespectful, disparaging, sarcastic, and discourteous in words and tone towards the unrepresented petitioners.  In the Matter of DeProspo, Decision and order (New York State Commission on Judicial Conduct January 26, 2023).
  • 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 proceeding against a former judge; in January, the Commission had notified the judge that it was investigating a complaint that, in a code enforcement case, he had been biased in favor of the defendant with whom he engaged in ex parte communications and against the code enforcement officer, whom he berated in court.  In the Matter of Coursen, Decision and order (New York State Commission on Judicial Conduct January 26, 2023).
  • 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 a proceeding against a former judge; in May 2022, the Commission had served the judge with 4 charges of misconduct alleging, inter alia, that she made inappropriate comments to and about court employees and judges; displayed bias against various individuals and ethnicities; failed to timely administer surrogate court matters, leading to substantial delays; and, as a candidate for surrogate in 2018, failed to timely complete mandatory campaign ethics education.  In the Matter of Thompson, Decision and order (New York State Commission on Judicial Conduct January 26, 2023).
  • he Pennsylvania Court of Judicial Discipline suspended a judge for 200 days without pay for calling the police commissioner when her son was stopped by police, appearing at the scene of the stop, and failing to report to the Judicial Conduct Board and the Chief Justice that she had been interviewed by the Office of the Attorney General about the incident as required by rule; the Court also placed her on probation for 1 year.  In re McKnight, Opinion and order (Pennsylvania Court of Judicial Discipline January 31, 2023).  
  • The Pennsylvania Court of Judicial Discipline severely reprimanded a former judge for, while a candidate, failing to file accurate campaign finance reports and using $3,000 in campaign funds for personal expenses; the judge had pled guilty to 4 misdemeanors based on the same conduct.  In re Cabry, Opinion and order (Pennsylvania Court of Judicial Discipline January 31, 2023).
  • The Tennessee Board of Judicial Conduct publicly reprimanded a judge for calling a litigant a “tough guy,” telling the litigant the judge hoped the litigant would meet someone like the litigant, and telling the litigant’s daughter to shut up; the judge accepted the reprimand.  Stokes, Public reprimand (Tennessee Board of Judicial Conduct January 4, 2023).

Throwback Thursday

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10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for taking a motorcycle ride with a woman who had appeared before him in court as a criminal defendant multiple times, was on intensive probation for felony convictions, and should not have been in the county where they were riding based on the terms of her probation, and for being profane and disrespectful with the law enforcement and emergency response personnel who attended the scene of an accident he and the woman had on the ride.  Gunnels, Order (Arizona Commission on Judicial Conduct February 27, 2013).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for displaying an improper demeanor during a hearing in an injunction against harassment case.  King, Order (Arizona Commission on Judicial Conduct February 21, 2013).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to disclose an ex parte communication from court security regarding an incident involving a criminal defendant that caused her to alter how she would normally have sentenced the defendant and failing to disqualify herself from the case.  Segal, Order (Arizona Commission on Judicial Conduct February 27, 2013).
  • • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for stating during a staff meeting that “some of the most profane, manipulative and backstabbing people I’ve worked with have been women. Men tend to get physical and just hit you,” and, during another staff meeting, slamming his hand against the table in anger. Goettemann, Order (Arizona Commission on Judicial Conduct February 27, 2013).
  • • The Illinois Courts Commission suspended a judge for 60 days without pay for using his work computer to access pornographic websites during work hours in his chambers, contrary to the county policy. In re Polito, Order (Illinois Courts Commission February 1, 2013).
  • The Mississippi Supreme Court publicly reprimanded a judge for an ex parte communication with a man who had been ticketed for oyster-harvesting violations and the man’s brother-in-law and dismissing the tickets under the pretense that the prosecutor and officers were not in court when the case was called.  Commission on Judicial Performance v. Carver, 107 So. 3d 964 (Mississippi 2013).
  • Based on a stipulation and consent, the Oregon Supreme Court publicly censured a judge for referring to a defendant convicted of 21 sex crimes involving children as a “piece of sh*t,” repeatedly ask the defendant if he wanted to salvage his soul, commenting that community members might ask why the defendant is not “hanging from a tree,” and stating that he personally hopes that the defendant rots in prison.  Inquiry re Barnack 299 P.3d 525 (Oregon 2013).
  • Based on the judge’s agreement with an investigative panel, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for, after the state department of children’s services presented the judge with an alleged emergency situation involving a child, altering the child’s custody without requiring a petition or hearing or making sufficient findings and for having an ex parte telephone conversation with the child’s grandfather.  Letter to Baliles (Tennessee Board of Judicial Conduct February 13, 2013).

State judicial discipline in 2022

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2 sanctions from 2022 that have been newly unsealed or discovered require the revision of the count of state judicial discipline sanctions that was originally posted on January 31. The revised count is below.

In 2022, there were approximately 138 public dispositions in state judicial discipline proceedings.

  • 6 judges were removed from office.
  • 27 judges publicly agreed to resign or retire and never serve in judicial office again; in 3 of those cases, the now-former judges also agreed to a public admonishment; in 1 case, the former judge also agreed to go on inactive status as a lawyer.
  • 3 former judges were barred from judicial office; in 2 of those cases, the former judges were also publicly censured or reprimanded.
  • 18 judges were suspended without pay as a final sanction.
    • 1 suspension was indefinite.
    • 1 was until the end of the part-time judge’s term based on the suspension of his law license for misconduct as an attorney.
    • 1 was for “a reasonable time to permit the executive and legislative branches to consider” whether the judge should remain in office.
    • 1 suspension was for 18 months, with 6 months held in abeyance with remedial measures.
    • 1 suspension was for 12 months, with 11 months held in abeyance, and also included a reprimand and a requirement that the judge undergo counseling.
    • 4 suspensions were for 6 months or 180 days; 1 of those was stayed with conditions; 1 also included a censure.
    • 2 suspensions were for 120 days or 4 months.
    • 2 suspensions were for 90 days; 1 of those also included a reprimand; in 1 case, 75 days of the suspension was held in abeyance subject to conditions and the judge was barred from serving in judicial office again after his term expires in December 2024.
    • 1 suspension was for 60 days and also included a $30,000 fine, a reprimand, and a requirement that the judge receive training.
    • 1 suspension was for 45 days and also included a censure and training and other conditions.
    • 2 suspensions were for 30 days and also included a censure or reprimand.
    • 1 suspension was for 10 days.
  • 72  judges (or former judges in approximately 9 cases) received public censures, reprimands, admonishments, or warnings, with training, counseling, mentoring, or other remedial measures required in 9 of the cases.
    • There were 14 censures.
    • There were 31 reprimands (in addition, 1 pro tem judge agreed not to serve again).
    • There were 21 admonishments.
    • There were 6 warnings.
  • 1 judge was ordered to cease and desist certain conduct.
  • 3 judges were suspended with pay for 30 days each in a state that does not have suspension without pay.
  • 4 former judges were disciplined in attorney discipline proceedings for conduct while they were judges; 1 had his law license revoked, 1 had his law license suspended for 1 year and 1 day, 1 was publicly reprimanded, and 1 was publicly admonished.
  • 1 judge was ordered to complete a mentorship and be on unsupervised probation until the end of his term.
  • 3 judges or former judges were found to have committed misconduct, but no sanction was imposed, although 1 of the former judges was ordered to pay over $12,680 in costs.

Approximately 46% of the cases were resolved pursuant to an agreement.  This count does not include at least 6 cases currently pending on review, including 2 removal decisions.  “Judge” refers to any type of judicial officer, whether full-time or part-time, including supreme court and appellate court justices, justices of the peace, magistrates, pro tem judges, referees, court commissioners, and hearing officers.

The bar and prejudice to the administration of justice

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In most states, a former judge remains subject to judicial discipline authorities for their conduct on the bench; approximately 8% of public sanctions in 2022 involved former judges.  However, a judicial conduct commission may sometimes decide not to exercise its jurisdiction over a former judge, and in some states, the commission’s jurisdiction ends when a judge’s time on the bench is over.  See “Before and after the bench:  Part 2,” Judicial Conduct Reporter (NCSC fall 2015).

Former judges may be sanctioned in bar discipline proceedings for misconduct while they were judges.  Those cases usually cite the state’s equivalent of Rule 8.4(d) of the American Bar Association’s Model Rules of Professional Conduct:  “It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.”

4 public dispositions in 2022 were attorney discipline sanctions of former judges, and there have been 2 so far in 2023.

  • Based on an agreement, the Arizona Supreme Court Attorney Discipline Probable Cause Committee publicly admonished a former judge for contacting the county attorney’s office regarding potential employment while still a judge, failing to supervise court staff, and engaging in unprofessional communications with court staff.  In the Matter of Otis, Order of admonition and costs (Arizona Supreme Court Attorney Discipline Probable Cause Committee October 20, 2022).
  • Granting a petition for consensual license revocation, the Wisconsin Supreme Court revoked the license of a former judge based on his conviction, entered following a guilty plea, on 2 federal felony counts of distribution of child pornography.  In the Matter of Blomme, 982 N.W.2d 100 (Wisconsin 2022).  The judge had resigned shortly after pleading guilty.
  • Accepting a joint petition for consent discipline, the Louisiana Supreme Court suspended a former judge from the practice of law for 1 year and 1 day based on an investigation of allegations that, while he was a judge, he touched several women and acted inappropriately in the courtroom.  In re Williams, 341 So. 3d 527 (Louisiana 2022).  The Court noted that, in July 2018, it had disqualified the judge from performing judicial functions pending complaints made to the Judiciary Commission but that jurisdiction had “passed” to the Office of Disciplinary Counsel when the judge resigned in February 2020 before judicial discipline proceedings concluded.
  • Based on a decision by the Alabama Supreme Court, the State Bar publicly reprimanded a former judge and an attorney for engaging in an affair while the attorney was routinely appearing before the judge. Alabama Bar v. Kaminski (Alabama Supreme Court February 25, 2022). In 2019, the Judicial Inquiry Commission had filed a complaint against the judge based on the affair, but, after the judge resigned, the Court of the Judiciary accepted a stipulation in which the now-former judge agreed to never again seek judicial office in the state and the Commission agreed to dismiss its complaint.  In the Matter of Kaminski, Final judgment (Alabama Court of the Judiciary August 6, 2019).

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Based on a report and recommendation of the hearing board of the Attorney Registration and Disciplinary Commission, the Illinois Supreme Court disbarred a former judge for sexually harassing a police officer, a court reporter, and an assistant state’s attorney while he was a judge.  In re Araujo, Order (Illinois Supreme Court January 17, 2023).  In 2020, the judge had resigned after the Courts Commission found following a hearing that the judge had engaged in a pattern of inappropriate and harassing behavior toward the same three women referred to in the bar discipline case, but continued the question of sanction to allow more argument

While a female Chicago police officer was getting his signature on a search warrant, the then-judge had attempted to kiss her on the lips, grabbed her hand, and told her, “Touch my butt.”  On another occasion, he made lewd comments to the same officer when they met at her squad car about another search warrant.  On 2 occasions, the judge had suggestively approached a female court reporter when they were alone in a courthouse elevator and asked how much money it would take for her to have sex with him.  In addition, in a conversation with an assistant state’s attorney in his chambers, the judge had called another female assistant state’s attorney, who had been his law school classmate, a “bitch” because she had failed to congratulate him on his promotion to a new courtroom or to say hello to him.  He added:  “Maybe it’s because I didn’t have sex with her.  Or maybe it’s because I did have sex with her.”

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Following a hearing on charges filed by the Office of Chief Disciplinary Counsel, the Missouri Supreme Court suspended a former judge from the practice of law for 2 years for, during his unsuccessful 2018 re-election campaign, threatening to file an ethics complaint against a potential opponent if she decided to run against him and threatening to disclose a former client’s confidences.  In re Prewitt (Missouri Supreme Court January 31, 2023).  After he lost the election, the judge had resigned “to protect his judicial pension and save attorney fees” prior to a hearing on allegations filed by the Commission on Retirement, Removal and Discipline, although it is not clear whether those allegations were related to his conduct in the 2018 election.

In 2014, Kristen Burk ran against the judge, who was the incumbent.  Directly before the election, Burks distributed a flier with the heading:  “PREWITT…WORKING TO MISLEAD VOTERS.”  The judge won re-election.

In 2018, after deciding to run against the judge again, Burks had conversations with her pastor, her law partner, and a former police chief that caused her to believe that the judge planned to use her husband’s infidelities as an issue in the campaign.  For example, she was told that the judge had said that if she ran against him, “things were going to come out in this next election that maybe hadn’t before,” that the campaign would be “a bloodbath,” and that he did not believe Burks wanted her children to find out about her husband’s affairs.

Burks also found an anonymous letter addressed to her daughter that crudely described her husband’s infidelities.  Burks believed the judge was responsible for the letter.  After contacting authorities, she met with the judge at a restaurant and recorded their discussion with a device provided by the FBI.

Their conversation was heated.  The judge denied knowing about the letter, and there is no evidence that he was involved. 

But the Court found that the judge had attempted to coerce Burks not to run against him during their meeting.  It explained:

First, he threatened that Burks’ filing would result in him filing an ethics complaint against her based on the previous campaign.  Second, he threatened to give speeches and send out fliers in which he would call her husband a “predator.”  Intertwined in this threat was Prewitt’s intention of making a point that Burks’ children, who were unaware of the affair, would be certain to learn of it.

The judge had said to Burks, “You file against me, next day, [the flier] goes down to the ethics commission,” and the Court held that a judge’s “threat to file an ethics complaint against a lawyer, if and only if that lawyer decides to oppose him in an election, is impermissible.”  It stated:

Prewitt’s intention to file the complaint showed either (1) he believed Burks’ prior campaign information violated the Rules or (2) he meant to harass her with a complaint that did not rise to a Rules violation.  If Prewitt believed the prior campaign material warranted reporting . . . , he had an obligation to file the complaint.  Yet he held it in abeyance. . . .  A judge’s threat to file a required ethics complaint, at his discretion and for his benefit, destroys public confidence in the independence, integrity, and impartiality of the judiciary; is an abuse of the prestige of judicial office for personal benefit; and is prejudicial to the administration of justice.

The judge had told Burks at the restaurant “I know a lot of things” when referring to his representation of one of the women with whom her husband had had an affair.  The Court found that this was a threat to disclose a former client’s confidences to help his campaign and violated the rules of professional conduct.

Throwback Thursday

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20 years ago this month:

  • Adopting the findings of the 3 masters, the California Commission on Judicial Performance removed a judge from office for (1) making a statement to an assistant prosecutor that gave the appearance that he had ruled against her on a legal issue to teach her how to handle adversity; (2) making disparaging comments about a defendant’s attorney in front of the jury; (3) questioning a prosecutor’s motives for seeking to introduce certain evidence, ridiculing her perspective, and threatening to declare a mistrial; (4) telling a public defender, in the presence of his client, that he should lose his accent; (5) in front of a jury, a defendant, and opposing counsel, unnecessarily attacking a prosecutor’s legal training, professional competence, and motives and accusing her of breaking the law; (6) belittling a prosecutor and ordering her to admit to the jury that relevant evidence did “not mean anything;” (7) badgering a prosecutor into agreeing that certain evidence to which she had objected was relevant; (8) throwing a stack of files over the ledge of the bench in anger at a fill-in clerk; (9) telling a clerk that she had wasted 20 seconds of the court’s time by swearing in the bailiff on the record; (10) telling a deputy sheriff in a belittling tone when a prisoner had not been transported to his court that she needed to learn how to do her job; and (11) after a jury sent a written question during deliberations, saying “one of the things you can help me to do is to make your questions as precise as possible, which means look them over several times, because an English teacher would object to the wording of that question.”  Inquiry Concerning VanVoorhis, Decision and order (California Commission on Judicial Performance February 27, 2003).
  • Approving a joint recommendation and stipulation of facts, the Illinois Courts Commission suspended a judge for 1 month without pay for (1) showing a star-shaped badge that said “judge” (which he had made by a private company) to a police officer who stopped him for a traffic violation and telling the officer that he was a judge; (2) calling a police officer and demanding that another motorist be arrested and later complaining to the police chief when the other driver had not been ticketed; and (3) calling another judge, identifying himself as a judge, and asking that an arrest warrant against his daughter for failing to pay a fine be quashed.  In re Travis, Order (Illinois Courts Commission February 21, 2003).
  • Accepting a conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for signing a faxed order form releasing an ex-husband who had been incarcerated for contempt for non-payment of support without prior notice to the ex-wife or her attorney or requiring the ex-husband to post bond and for signing a re-typed version of the original order. In the Matter of Danikolas, 783 N.E.2d 687 (Indiana 2003).
  • Pursuant to a stipulation and agreement, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for presiding over a probable cause and suppression hearing involving an individual whom the judge had paid to perform odd jobs and for seeking ex parte advice from a prosecutor as to the lawfulness of the defendant’s arrest.  In the Matter of Valentino, Determination (New York State Commission on Judicial Conduct February 3, 2003).
  • Pursuant to an agreed statements of facts and joint recommendation, the New York State Commission on Judicial Conduct removed a judge who had been convicted of endangering the welfare of a developmentally disabled person by engaging in sexual relations with a woman who had been entrusted to his care.  In the Matter of Westcott, Determination (New York State Commission on Judicial Conduct February 3, 2003).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for, at the beginning of each traffic mitigation calendar, informing the respondents that he would base his decision whether to grant a reduction in penalty solely on their traffic record and not on any statement that the respondent might make.  In re Wisman, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct February 7, 2003).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for delays in 4 cases for from 6 to 14 months.  In re Clark, Stipulation, agreement and order (Washington State Commission on Judicial Conduct February 7, 2003).

A sampling of recent judicial ethics advisory opinions

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  • To fall within the exception to the prohibition on ex parte communications that allows judges to consult with other judges, a consultation need not be a question or request for advice or follow a particular format but is any conversation that assists a judicial officer carry out judicial functions and facilitates independent decision-making and may include a discussion of the facts or legal issues in a case.  California Formal Opinion 2022-20.
  • A prosecutor may prepare a judgment entry at a judge’s direction on the record in the presence of opposing counsel, but the prosecutor should not subsequently communicate with the judge or court staff about substantive changes or the merits unless opposing counsel is included in the communications.  Ohio Opinion 2022-12.
  • A judicial officer must disclose whenever their former spouse or a lawyer whom they previously dated appears in a case regardless how much time has elapsed since the divorce or the termination of the relationship.  When a judicial officer and an attorney have a child in common through birth, adoption, or legal authority over a child as authorized by the probate or family court, the judicial officer must disclose the relationship to the parties regardless of the child’s age.  Michigan Opinion JI-153 (2022).
  • A judge should not participate in a program to distribute gift cards to kinship guardians but may inform them of the program.  New Mexico Opinion 2022-3.
  • A judge who saw another judge’s comment on a social media post praising a local law enforcement agency for “solving” a high-profile crime must report the other judge to the State Commission on Judicial Conduct even if they have already reported the judge to a supervising or administrative judge.  New York Opinion 2022-115.
  • When an attorney is disrespectful toward the court and staff, is uncooperative, refuses to discuss settlement of cases, and is often unprepared, a judge may not bar the attorney from the court but may take appropriate action to address the attorney’s disruption of the court’s docket, including communicating in writing with the law firms for which the attorney appears of counsel and requiring that the attorney comply with the rules.  New York Opinion 2022-143.
  • A law clerk may engage in pro bono activities such as training, writing, or speaking about the law, but may not undertake any pro bono legal services or representation that would be considered the practice of law even on uncontested matters that are not pending in the jurisdiction of their clerkship.  Maryland Opinion Request 2022-44.
  • A judge may attend the swearing in and/or gala for a new governor but must not use their attendance as an opportunity to seek elevation by the governor to a higher bench; must not be seated on the dais with the governor or position themself in a way that suggests a particular allegiance with the governor unless they are officiating or playing a formal role in the inauguration ceremony; and should be identified, to the extent possible, only by their name, without reference to their judicial title.  Unless Maryland courts are closed on inauguration day, a judge must comply with any requirements for securing leave needed to attend the ceremony.  Maryland Opinion Request 2022-52.
  • A judge who has been noticed to serve on a grand jury panel must report for service unless excused by the presiding judge even though many assistant district attorneys appear before them. If the judge serves as a grand juror, they may not preside in that case if it comes before their court. New York Opinion 2022-141.
  • To provide emotional support, a judge may attend proceedings in a case involving criminal charges against their adult daughter.  New Mexico Opinion 2022-2.
  • A judge may attend as a guest of their partner a fund-raising gala benefiting a 501(c)(3) organization “committed to reforming New York City and State government by fostering accountability, accessibility, transparency, honesty and the highest ethical standards” and its “lobbying arm,” a 501(c)(4) organization.  New York Opinion 2022-124.
  • A judge may donate to Vote.org, which describes itself as the “largest 501(c)(3) nonprofit, nonpartisan voting registration and get-out-the-vote (GOTV) technology platform in America, with the goal of reaching historically underserved voters of color and underrepresented young voters.”  New York Opinion 2022-150.
  • A magistrate court judge may serve as a board member of a non-profit organization that provides information and resources on pregnancy, sexual health, and relationships.  South Carolina Opinion 19-2022.
  • A judge may not participate in a silent demonstration organized by a local not-for-profit civic organization at which community members will hold hands to show their opposition to gun violence in reaction to the recent death of a local child and an increase in local gun violence.  New York Opinion 2022-160.