- A judge who learns that a law firm’s website advertises its experience appearing before particular judges and includes those judges’ biographies on pages that include the firm’s logo, trade dress, and links to its promotional materials must request in writing that the firm take the pages down and remove the links. The judge is not required to report the firm to a grievance committee, but reporting is within their discretion. New York Opinion 2023-25.
- In deciding a lawyer’s motion to withdraw from representing a litigant in a case, a judge should not require the lawyer to reveal confidential information protected under the rules of professional conduct except to the extent reasonably necessary to adjudicate the motion. Michigan Opinion JI-154 (2023).
- At the request of a government entity, private interest group, bar association, or other outside entity, presiding judges or other judicial officers with supervisory responsibilities may circulate to other judges information related to the law, the legal system, and the administration of justice but must ensure that any court-wide communication does not undermine the integrity or impartiality of the judiciary, suggest that any outside entity is in a position of special influence, lend judicial prestige to advance pecuniary or personal interests, engage in partisan politics, or relate to a specific pending or impending matter. Whether a particular communication is permissible depends on the nature, tone, and circumstances under which it is sent. A communication is more likely to be permissible the more it relates to operational or administrative issues, rather than substantive policy. A presiding judge may forward a memorandum from the sheriff’s office advising the court that an anticipated protest may impact security, traffic, or parking around the courthouse. A presiding judge may not forward a newspaper editorial by a criminal defense association in favor of lighter sentences for drug-related crimes. A presiding judge should not circulate an advertisement for goods or services for sale, even if it relates to the law, the legal system, or the administration of justice. A presiding judge should not circulate a flyer for a fundraiser to benefit a school or charitable organization. A presiding judge may circulate information about bar association events even if there are admittance fees to cover the cost of meals but must not add commentary that may be interpreted as coercive or imply that attendance is required to be in the presiding judges’ favor, particularly when the emails will reach subordinate judicial officers and staff. A presiding judge may disseminate information relating to legislation directly impacting the courts and a neutral update on legislation affecting court budgets. A presiding judge may not use the court email system to engage in partisan politics or disseminate a position paper from an outside entity espousing a political view on a substantive policy issue. A presiding judge may not circulate a news article about a specific juvenile matter pending before the court. California Supreme Committee Formal Opinion 2023-22.
- A judge is not per se disqualified when a litigant appearing before them is employed by the same government department that employs the judge’s child, but the judge should conduct a subjective analysis of their impartiality by consulting their “own emotions and conscience.” If they conclude that they can hear the case impartially, the judge should then use a fact-intensive assessment and objective standard to consider whether their impartiality may reasonably be questioned by a fully informed, disinterested observer, considering whether the department’s interests are likely to be affected by the proceeding, and, if so, to what degree; whether their child’s interests are likely to be affected by the proceeding, and, if so, to what degree; whether they know any party to the proceeding by virtue of the party’s relationship or association with their child and, if so, the nature of that relationship or association; whether the judge is independently aware of any information that would be relevant to the proceeding as a result of their associations with the department; and whether any party to the proceeding has direct or indirect supervisory authority over their child. Massachusetts Opinion 2023-1.
- A judge should not lead a running program created for felony drug court participants. Washington Opinion 2023-3.
- A judge may be the keynote speaker for a non-partisan victims’ rights event presented by the state attorney’s office, police departments, the county sheriff, and a victims’ shelter if the judge does not give legal advice or make comments about pending matters and their presentation is dignified, with no suggestion of bias. Florida Opinion 2023-3.
- Absent unusual circumstances, a judge may attend the local bar association’s annual “dinner with the judges,” promoted as an opportunity for members of the bar and judges to gather socially, even if part of the cost is defrayed by law firms and businesses that support and do business with lawyers. Maryland Opinion Request 2023-9.
- A judge who is on the board of directors of a non-profit organization does not have an affirmative duty to stop other board members from referring to them as “judge” during meetings and in the community but should ensure that other board members do not use their title to, for example, recruit members or solicit contributions for the organization. As long as they do not solicit donations, speak, or hold themself out as a judge, a judge may participate in fundraisers for the organization, including donating to them, purchasing dinners and tables for dinners, bidding on auction items, golfing, and assisting in the behind-the-scenes planning. A judge should ensure that any raffle at a fundraising event is conducted in conformity with applicable laws but may purchase tickets for any appropriate raffle. A judge should have her name, photograph, and quote removed from the organization’s website. Nebraska Opinion 2023-1.
- A judge may serve as co-chair of a non-profit social services organization if their court does not make referrals to the organization. A judge may not serve on a bar association committee on corrections and community re-entry. New York Opinion 2022-187.
- A judge who is an officer of a magistrates association may invite prosecutors, defense counsel, probation, law enforcement, and county agencies to attend and speak at monthly meetings if no pending or impending matters are discussed and the speakers are excluded from any portion of the meeting when association business is discussed. New York Opinion 2023-3.
- A new judge may continue to be a life member of the National Rifle Association. New York Opinion 2023-6.
- A judge may create and participate in a series of non-commercial podcasts to highlight individuals whose accomplishments have had an inspirational and positive impact on the community, subject to generally applicable limitations on judicial speech and conduct but should not refer to their judicial status in connection with the podcasts. New York Opinion 2023-1.
- A judge who is the editor of a legal manual used by judges, court personnel, defense attorneys, prosecutors, law enforcement, and others may dedicate the manual to “hard-working individuals that uphold our Criminal Justice System.” New York Opinion 2023-9.
- A judge may not request that federal and state legislators protect the power grids from electromagnetic nuclear attack. New York Opinion 2023-15.
- Subject to the approval of the administrative director of the courts, a magistrate may start a limited liability company to sell items household items, pet supplies, and electronics through Amazon. West Virginia Opinion 2023-8.
Monthly Archives: May 2023
Throwback Thursday
5 years ago this month:
- Following a trial, the Alabama Court of the Judiciary suspended a judge for 180 days without pay and publicly reprimanded her for a pattern of unreasonable and unjustifiable delay in managing her family court docket. In the Matter of Kelly, Final judgment (Alabama Court of the Judiciary May 11, 2018).
- The California Commission on Judicial Performance publicly admonished a judge for (1) criticizing the defendant’s attorney in a criminal case; (2) failing to disclose improper ex parte communications from her bailiff; and (3) telling other judges at a judges’ meeting that she had found that a sheriff’s officer had committed perjury. In the Matter Concerning Novak, Decision and order (California Commission on Judicial Performance May 30, 2018).
- Pursuant to an agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for entering numerous ex parte orders to produce a defendant’s records to his public defender without notifying the commonwealth and for speaking with the public defender on multiple occasions without the commonwealth’s knowledge. In re Cunningham, Public reprimand (Kentucky Judicial Conduct Commission May 22, 2018).
- Accepting a stipulation of facts, the Massachusetts Supreme Judicial Court indefinitely suspended a judge without pay and publicly censured him for his sexual relationship with a member of the drug court team; the Court also ordered that a copy of its order be delivered to the governor and the legislature. In re Estes, Order (Massachusetts Supreme Judicial Court May 24, 2018).
- The Minnesota Board on Judicial Standards publicly reprimanded a judge for driving while impaired and identifying himself as a judge to the arresting officer. In the Matter of Atwal, Public reprimand (Minnesota Board on Judicial Standards May 30, 2018).
- Based on a stipulation and agreement, the Nevada Commission on Judicial Discipline publicly censured a judge for being inattentive to his administrative duties and failing to properly manage and supervise his staff and to oversee the daily operation of his court, resulting in inordinate delays and confusion in the processing of cases; the judge also agreed to complete a National Judicial College course on effective caseflow management. In the Matter of Gunter, Stipulation, order of consent, and agreement (Nevada Commission on Judicial Discipline May 18, 2018).
- Accepting the findings and recommendation of the Judicial Standards Commission, based on a stipulation and the judge’s agreement, the North Carolina Supreme Court publicly reprimanded a judge for failing to rule for more than 2 years on a motion for attorney’s fees and expenses and failing to respond promptly to party and attorney inquiries about the status of the ruling. In re Henderson, 812 S.E.2d 826 (North Carolina 2018).
- Pursuant to an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for (1) dismissing citations issued by the Tennessee Highway Patrol without the request of law enforcement authorities or the district attorneys’ office and without taking proof of the facts and (2) interfering in a traffic stop. Re Hinson (Tennessee Board of Judicial Conduct May 9, 2018).
- Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for, during sentencing in a domestic violence case, addressing the defendant in a confrontational and angry tone, repeatedly calling the defendant “an animal,” and, near the conclusion of the hearing, refusing to let the defendant speak; the judge also agreed to participate in 1 hour of ethics training on courtroom demeanor. In re Wilson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct May 11, 2018).
Judges’ weekends, living rooms, and free speech
In 2 recent judicial discipline cases, courts rejected the judges’ attempts to argue that their conduct was protected by the First Amendment.
Although a West Virginia judge conceded that his traffic offenses violated the code of judicial conduct, he argued that his statements to the police officer and others challenging the stop were constitutionally-protected and could not be sanctioned. However, the Supreme Court of Appeals concluded that the judge had “stepped out of the shoes of an accused contesting a stop and into the shoes of a judge upon identifying himself as ‘Judge Williams’ and repeatedly invoking his office . . . .” In the Matter of Williams (West Virginia Supreme Court of Appeals May 4, 2023).
One Sunday, Moorefield Police Department Officer Deavonta Johnson stopped the judge’s vehicle after observing him with a cellphone phone in his hand on the steering wheel while driving. (West Virginia law prohibits operating a motor vehicle while texting or using a cell phone unless the driver uses hands-free equipment.) Officer Johnson approached the vehicle, but before he said anything, the judge asked, “[w]hat’s the problem?” Officer Johnson said, “How you doing, sir, . . . the reason I’m stopping you is . . . ,” but the judge interrupted him and said “I’m Judge Williams, and, I don’t . . . why are you stopping me?” The judge repeatedly attempted to explain that he had just picked the phone up from between the door and the seat and was only holding it, not using it. The judge also stated several times that the police are often on their cell phones and not on official business, angrily asking Officer Johnson, “you’re never on yours?” The judge was visibly agitated from the beginning of the conversation and became more agitated as it continued, and Officer Johnson asked why the judge was screaming at him. The judge told Officer Johnson several more times to give him a ticket and motioned for Officer Johnson to return to his vehicle.
The judge called Officer Johnson’s supervisor, Lieutenant Melody Burrows, at the scene, and she called Officer Johnson and told him not to write a ticket in order to diffuse the situation. When Officer Johnson returned to the judge’s car and told him that his license had expired, the judge did not answer, grabbed the license, and said “next time I see you . . .” as he drove off.
The judge called Lieutenant Burrows again after driving away and later that evening also called the police chief, the mayor, the former police chief, and the chief judge. He told Lieutenant Burrows, for example, that “he’s never been treated so badly as a Circuit Judge and that he couldn’t believe that my boy would – wouldn’t take his word for it and why he would lie. He’s the Circuit Judge.” Lieutenant Burrows stated that the judge expressed that he was tired of Moorefield police officers “acting like thugs, harassing hardworking people,” and that their cases were sloppy. Lieutenant Burrows also stated that the judge said that “he heard our [Moorefield Police] cases all the time and that if we treated people . . . like we treated him today that it makes him question our cases that he comes across.”
The Court emphasized that this is not “a police state–one is permitted to question why he is being pulled over and to contest a ticket if he believes he has done nothing wrong.” Noting that “judges do not lose all First Amendment protections when taking the robe,” the Court stated:
Protected speech not addressed by the Code of Judicial Conduct, no matter how obnoxious or offensive, is addressed through the ballot box, not disciplinary proceedings. . . . Had Respondent’s conduct been limited to loudly contesting whether Officer Johnson read the cell phone statute correctly, we might agree with his position . . . and would defer to the voters in Respondent’s district to judge his conduct.
However, it added, “inconvenient to Respondent’s argument, . . . the Code of Judicial Conduct has rules aimed at activities and speech both on and off the bench, and the Code of Judicial Conduct works weekends too.” The Court concluded that the judge’s “conduct was not an invocation of his rights as an accused to challenge a ticket he thought he did not deserve, but an invocation of and abuse of the prestige of his office” and that he had “improperly invoked his office, employed coercive tactics in contacting various public officials that evening, and suggested he might change his rulings in cases in retaliation for the traffic stop.”
The Court suspended the judge for 6 months without pay, fined him $5,000, and publicly censured him.
* * *
A Texas judge challenged a private warning she had received for placing a rainbow flag in her courtroom, beneath the county seal behind the bench and next to the U.S. and Texas flags. She had been given the pride flag by a local LGBTQ organization to commemorate her investiture as its first openly gay member to take the bench. The Commission alleged that the “display unambiguously conveyed to the public a perceived partiality on behalf of the partisan interests of the LGBTQ community.” The judge argued that it was “a form of welcoming communication protected by the First Amendment.”
Rejecting the judge’s free speech argument, a Special Court of Review found that she “misapprehends the nature of the forum from which she speaks” and that her display “was government speech subject to government regulation without restriction by the First Amendment.” In re Speedlin-González, Opinion (Texas Special Court of Review January 30, 2023). It explained:
Perhaps from her perspective, the display of the pride flag commemorating her ground-breaking investiture was a personal expression of identity and community, but a judicial bench is an indisputably non-public forum from which only the government may speak and a courtroom participant or observer quite understandably views speech therefrom from a different perspective. Upon entering the courtroom of County Court at Law No. 13, one encounters a typical setting: counsel tables, a jury box, a witness seat, court reporter and clerk’s stations all separated from the gallery by a bar, and a judge’s bench separated and raised above them all. Displayed at and behind the bench are the symbols of government: the American flag, the Texas flag, the seal of Bexar County, and … the pride flag.
The judge (an elected official/employee of the state) presides over misdemeanor domestic violence cases which, much like felony cases, begin with a charge brought, “In the name and by authority of the State of Texas.” . . . When the judge enters the courtroom she performs judicial functions, i.e., impaneling juries, trying cases, pronouncing judgment, and imposing sentences.
The court concluded:
“It is axiomatic that a courtroom is not the judge’s living room for her to decorate as she pleases. It is the taxpayer’s forum for dispensing justice to all citizens – defendants and victims alike.”. . .
A Texas courtroom should remain “terrain neutre” to maximize the perception of equality of all litigants and spectators. Whether one agrees or disagrees with the content of Respondent’s intended message, it is inappropriate for a Texas courtroom.
However, the court dismissed the warning, stating that the Commission had not proven a willful violation of the code because, after receiving a tentative sanction from the Commission, the judge had removed the flag and her explanation that she had intended “to encourage commemoration and community” was credible.
Throwback Thursday
10 years ago this month:
- The Arizona Commission on Judicial Conduct publicly reprimanded a judge for calling a pro se criminal defendant’s legal arguments “stupid” and “screwy” and telling him, “If you don’t like it, move to Mexico.” Holt, Order (Arizona Commission on Judicial Conduct May 31, 2013).
- Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission publicly reprimanded a judge for (1) directing that a subpoena duces tecum be issued to provide an audio tape recording of a traffic stop and documentation, reviewing the tapes, and relying on them to deny a motion to suppress; and (2) directing his case coordinator to contact another court to inquire about a prior conviction and proof of representation. Letter of Reprimand to Crow (Arkansas Judicial Discipline and Disability Commission May 17, 2013).
- Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission publicly censured a judge for filing a complaint with the Committee on Professional Conduct against a public defender after the public defender had filed a complaint against him with the Commission. Letter of Censure to Crow (Arkansas Judicial Discipline and Disability Commission May 17, 2013).
- Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission publicly reprimanded a judge for his statements to a traffic defendant, for example, telling him that he was acting like an idiot and was prejudiced against white people and to “put that in your report,” and for, as the defendant left the courtroom, commenting to the audience “there goes another angry black man.” Letter of Reprimand to Batton (Arkansas Judicial Discipline and Disability Commission May 17, 2013).
- Accepting a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court barred a former judicial candidate from seeking judicial office for 5 years and publicly reprimanded her for failing to ask a newspaper to retract a misstatement about her campaign opponent attributed to her; authorizing a statement on her campaign web-site that her campaign opponent, the incumbent judge, had “worked . . . for free” for a criminal defendant; and posting misinformation on her web-site after she learned it was inaccurate. In the Matter of Davis, Order (Indiana Supreme Court May 7, 2013).
- Accepting a recommendation of the Judicial Tenure Commission based on stipulated facts, the Michigan Supreme Court suspended a judge from office for 30 days and publicly censured him for failing to provide the sheriff’s department with direction on how to transport an attorney he had found in contempt, making improper comments to the attorney, and failing to be patient and dignified toward the attorney. In re Post, 830 N.W.2d 365 (Michigan 2013).
- Based on a stipulation, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for taking possession of 2 pieces of heavy equipment that he knew were subject to a court order in a divorce case that prohibited the man, who was dating the judge’s court clerk, from disposing of community property and making misrepresentations to the Commission investigator. In the Matter of Graham, Findings of fact, conclusions of law, imposition of discipline (Nevada Commission on Judicial Discipline May 17, 2013).
- Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly reprimanded a former judge for, after he became judge of the Montville Township Municipal Court, continuing to represent the mayor of the township in 3 personal matters in violation of a court rule and creating the appearance that he was representing the mayor in a 4th matter. In the Matter of Davenport, 65 A.3d 255 (New Jersey 2013).
- Adopting the Judicial Conduct Commission’s findings, conclusions, and proposed sanctions, based on stipulations, the Utah Supreme Court publicly censured a judge for exceeding the statutory salary cap for justice court judges employed by more than 1 municipality; the Court also ordered him to repay the excess salary. In re Christensen (Utah Supreme Court May 21, 2013).
- Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for (1) signing bench warrants in cases in which he had been disqualified and (2) making a comment that created the appearance that he had relied on unsolicited factual assertions from a court clerk when imposing a sentence for theft and revoking bail without disclosing the ex parte communications. In re Porter, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct May 10, 2013).
- Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a former judge for, during a traffic stop, identifying himself as a judge and mentioning several times that he had been with another judge earlier in the evening. In re Ryan, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct May 10, 2013).
Recent cases
- The Arizona Commission on Judicial Conduct publicly reprimanded a judge for making a mocking gesture with his hand during an attorney’s telephonic appearance during a hearing in a juvenile case and engaging in improper commentary while on the bench. Kelliher, Order (Arizona Commission on Judicial Conduct March 30, 2023).
- The Arkansas Judicial Discipline & Disability Commission issued an informal adjustment to a judge for holding a campaign sign for a mayoral candidate at a busy intersection. Letter of Informal Adjustment (Ohm) (Arkansas Judicial Discipline & Disability Commission March 17, 2023).
- Based on stipulations for resolution of formal proceedings, the Colorado Supreme Court publicly censured a former judge and ordered him to pay $20,658 in attorney fees for making sexual propositions to an attorney at a bar conference. In the Matter of Timbreza, Order (Colorado Supreme Court Special Tribunal April 24, 2023).
- Approving a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for allowing and participating in ex parte communications and failing to take appropriate remedial measures when he received ex parte communications. In the Matter of Day, Order (Indiana Supreme Court April 18, 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 a formal complaint, the Commission had alleged that the judge refused to appear before the Commission to testify about 3 complaints against him and refused to provide the Commission with requested records relevant to its investigation. In the Matter of Rikard, Decision and order (New York State Commission on Judicial Conduct April 20, 2023).
- Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for sharing on her Facebook page a “GoFundMe” account to help a woman cover medical expenses. In re McCroskey, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 21, 2023).
Throwback Thursday
20 years ago this month:
- Approving the findings and recommendation of the Judicial Qualifications Commission, which the judge did not contest, the Florida Supreme Court publicly reprimanded a judge for public intoxication and inappropriate intimate conduct while attending a judicial conference. Inquiry Concerning Cope, 848 So. 2d 301 (Florida 2003).
- Based on a statement of uncontested facts, stipulated conclusions of law, and a stipulated recommendation, the Louisiana Supreme Court publicly censured a judge for, after his niece and goddaughter were charged with felony theft, intervening on their behalf with a prosecuting attorney, the judge presiding in their case, and the victim’s father. In re Parro, 847 So. 2d 1178 (Louisiana 2003).
- The New York State Commission on Judicial Conduct removed a former judge for presiding over 7 cases involving her relatives, making false entries in her official court records to conceal her misconduct, and failing to testify candidly during the Commission’s investigation. In the Matter of Kadur, Determination (New York State Commission on Judicial Conduct May 28, 2003).
- Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for transferring 2 cases from her court based on a third-party’s unsubstantiated allegations that her co-judge had urged the defendants to file complaints against her with the Commission about an unrelated matter. In the Matter of Hooper, Determination (New York State Commission on Judicial Conduct May 28, 2003).
- Based on an agreed statement of fact and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge whose inadequate supervision of his court clerk, who was also his wife, enabled her to falsify entries in court records to conceal that over $3,000 received by the court had not been deposited or remitted as required by rules and statutes. In the Matter of Jarosz, Determination (New York State Commission on Judicial Conduct May 28, 2003).
- Accepting a determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for commingling personal funds with clients’ funds in his attorney escrow account, giving contradictory testimony to the Commission, and failing to respond to the Commission’s requests for information. In the Matter of Mason, 790 N.E.2d 769 (New York 2003).
- Accepting a determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge who had been disbarred for being derelict in the management of his attorney escrow account. In the Matter of Fitzgerald, 790 N.E.2d 767 (New York 2003).
“GoFundMe”
Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for sharing a “GoFundMe” account on her Facebook page. In re McCroskey, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 21, 2023). The Commission noted that “GoFundMe is a for-profit crowdfunding platform that allows people to raise money for events ranging from life events such as celebrations and graduations to challenging circumstances like accidents and illnesses.”
The judge has had a Facebook account since before being elected to the bench. At the time of the posts at issue, her Facebook page clearly identified her as a district court judge.
On January 14, 2022, with the comment “She’s one of a kind,” the judge shared to her Facebook page a “GoFundMe” account for a woman that stated it was to “Help [ ] cover her medical expenses!”
The judge explained to the Commission that she had shared the GoFundMe post not to solicit donations, but “to update local friends about someone who was ill and had moved out of the area” and that she had acted on her own, not in her official capacity. The judge did not believe that she was not violating the code, but accepted the Commission’s determination that a reasonable person would view a GoFundMe post as a request for monetary donations and, therefore, a solicitation that is prohibited by the code.
The judge’s Facebook page also had several posts promoting or advertising specific local businesses.
- In October 2020, the judge shared a photo of a bride and groom with the text: “Thank you Nissa: Floral Traditions, for the beautiful bouquet and boutonnier [sic]! You are so talented!” The judge also subsequently shared this as a memory.
- In May 2021, the judge shared a post from Floral Traditions that highlighted merchandise available for Mother’s Day. One of the photos had a caption that read: “Order for Mother’s Day. We deliver!”
- In October 202, the judge created a post that included a photo of an arm with a bracelet and sweater and text that read, “It is awesome to be able to wear local purchases from years ago and know they are still in business!!!! Bracelet, circa 2012 Shanty. Sweater and jeans, JB Boutique, September.”
The judge explained that she made the posts “simply to express her pride in local businesses that were able to weather the pandemic.” For example, she stated that she had expressed her appreciation of the flower shop because she had been relieved that they were able to find flowers for her daughter’s wedding during the pandemic. The judge also noted that there are no other flower shops in her community and that she received nothing in exchange for any of her posts.
Emphasizing that “the application of the Code to social media is an evolving area of law,” the Commission did not find that these posts violated the prohibition on abusing the prestige of her judicial office. However, it did discuss “potential problems” with posts by judges promoting local businesses. It explained:
The advent of social media has not altered the Code of Judicial Conduct, but the reach of social media and its interactive nature amplifies and thus alters the impact of judges’ comments posted on social media. It is, for example, unlikely that a reasonable person would conclude that a judge was lending the prestige of her office to a local business if she commented in real life to friends or work associates that she had a wonderful meal last weekend at a specific restaurant, even though everyone listening knew she was a judge. The same comment posted on social media can link to the business in question and can be seen by hundreds or thousands of people, especially the people who are “friends” on that social media platform and who can respond and give positive reinforcement to that judge for all to see. Social media has been with us for almost two decades – the platform in question is about 19 years old and has 2.96 billion users. Yet it is still an evolving form of social interaction, and the antecedents of the Code of Judicial Conduct go into antiquity, far before the internet was conceived.
. . . The Code is not only an enforceable set of standards, but is aspirational in nature, directing judges to be conscious that they should strive to maintain public trust and confidence in their independence, integrity, and impartiality in all their actions . . . .”
Thus, the Commission advised, judges should be “particularly thoughtful in what they post online.”
Throwback Thursday
25 years ago this month:
- The Indiana Supreme Court permanently enjoined a former part-time court commissioner from seeking judicial office in the state; disbarred him from the practice of law and permanently enjoined him from seeking reinstatement as a lawyer; and fined him $100,000 for, while a judicial officer, (1) being paid with sexual relations by a client for his representation of her in the dissolution of her marriage; giving her a fake divorce decree; filing a handwritten dissolution petition without his name on it in the same court in which he served as a probate commissioner; and telling 2 judges that he had not represented her; (2) hearing 3 child custody and visitation disputes involving another former client with whom he had a continuing sexual relationship and to whom he often gave $300 to $500 a week; and (3) after being appointed as a full-time judge pro tempore, continuing to serve as a part-time commissioner and part-time deputy city attorney and engaging in the private practice of law. In the Matter Edwards, 694 N.E.2d 701 (Indiana 1998).
- In attorney discipline proceedings, the Ohio Supreme Court permanently disbarred a former judge who had pled guilty to distributing cocaine while a judge. Office of Disciplinary Counsel v. Gallagher, 693 N.E.2d 1078 (Ohio 1998).
- • Accepting a stipulation consenting to the order of the Judicial Conduct Commission, the Utah Supreme Court publicly reprimanded a judge for telling an attorney with whom she was personally at odds that it might not be a good idea for him to practice in her court again. Re Inquiry Concerning Acomb (Utah Supreme Court May 4, 1998).
“Anyone but a judge”
Adopting most of the findings of a 3-judge panel, the New Jersey Supreme Court removed a former judge from office and permanently barred her from holding judicial office in the state for her “defiant trespass” at her children’s school, her untruthful testimony at her criminal trial, and her failure to appear for a court-ordered deposition in her husband’s lawsuit against the school. In the Matter of Mullen, Order (New Jersey Supreme Court March 8, 2023).
In December 2016, the judge’s husband filed suit against St. Theresa School where their 2 daughters attended. On February 1, 2017, the school asked the family to withdraw their children because the lawsuit violated school policy. “In defiance of that request,” the judge and her family arrived at the school the next morning.
The school deacon told the judge that she had to leave or she would be “considered trespassing.” The judge’s own videorecording confirms that she told the officials that they could “bring criminal charges against” her, but she was not going to leave. School officials repeatedly directed the judge to exit the property, and she consistently refused.
The school officials called the police. When Office Sean Kaverick appeared, he asked the judge to leave. Instead of complying, the judge indicated that she wanted to be handcuffed. Officer Kaverick testified that the judge made no effort to leave for 5 minutes, but he persuaded her to go outside rather than be arrested and handcuffed in front of her children.
The panel found that the judge “created a scene for nearly an hour” and her “interactions with police and school administrators took place on a busy morning, in offices, a reception area, and school hallways.”
The judge was charged with defiant trespass. After a 2-day bench trial, Judge Alberto Rivas concluded that the prosecution had proven “beyond a reasonable doubt . . . that [respondent] remained in the school knowing she was not licensed or privileged to do so after actual notice to leave was communicated to her several times.” Explaining in detail why Officer Kaverick’s testimony was credible, Judge Rivas found that Judge Mullen had testified falsely when she “specifically testified that she had absolutely no contact with Officer Kaverick, in direct contravention with the Officer’s unequivocal testimony.”
The judge filed a motion for a new trial “based upon her theories of vindictive prosecution, entrapment, and failure to establish the elements of defiant trespass beyond a reasonable doubt.” The appellate division affirmed her conviction, and the supreme court denied the judge’s petition for certification.
During the discipline hearing, the judge denied speaking with Kaverick and denied giving false testimony at her trial. Instead, she maintained that Kaverick “did not tell the truth” at her trial and to the Committee and had filed a false police report. The judge said that she did not believe that she “cause[d] a scene” at the school and denied refusing to leave the premises.
The panel concluded: “Had anyone but a judge” acted as she had at the school that morning, “that person would have been swiftly and unceremoniously ejected from the building, and/or arrested and removed on the spot.” The panel found that the judge’s “refusal to leave the school building, while in the presence of numerous school officials, law enforcement officers, and students and parents entering and leaving the school, could only erode public confidence in the judiciary.” The panel noted that the judge’s “emotional stress over the conflict with school administrators, which involved her children” did not excuse her violations and that she “knew she had better alternatives than an in-person confrontation.” The panel also stated that “when a judge’s credibility is publicly called into question, there is a patent and significant risk that the public’s confidence in the judiciary will be eroded.”
The panel also found that the judge’s failure to appear for a court-ordered deposition in her husband’s lawsuit against the school was misconduct. Noting that there was no valid reason in the record for the judge’s failure to appear, the panel explained: “Respondent is not entitled—by virtue of her judicial appointment—or for any other reason—to disregard court orders.”
Judicial ethics and discipline 