Unnecessary and extrajudicial

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.”

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