Monthly Archives: October 2023

Transcending poor judgment

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Accepting the determination of the State Commission on Judicial Conduct, which was based on an agreed statement of facts, the New York Court of Appeals removed a non-lawyer judge from office for (1) brandishing a loaded firearm at a litigant in the courtroom and repeatedly mentioning the litigant’s race in his retellings of the incident and (2) engaging with 8 Facebook posts promoting non-profit fund-raising events.  In the Matter of Putorti (New York Court of Appeals October 9, 2023). 

(1) Since 2003, the judge has been licensed to carry a firearm, and at a 2013 judicial training course, he had been advised that he could legally carry a concealed firearm on the bench.  The judge’s practice was to keep the firearm attached to the underside of the bench while he was presiding over his courtroom in the Whitehall Village Court.  The courtroom had no assigned security personnel, but it was adjacent to the village police department, an entrance to the police station was several feet from the bench, and a police officer was occasionally present in the courtroom.

One day in late 2015, while presiding in court, the judge brandished a loaded firearm at a litigant, a 6-foot, 165-pound Black man, who was waiting for his case to be called.  Although the judge claims that he “subjectively feared for his safety,” he admits that he had “no reasonable basis” to believe that the litigant “was about to use imminent deadly force,” and that he was “not justified” in brandishing the firearm.

The judge repeatedly recounted his story of the incident to others.  In an interview in the fall of 2015, he described his practice of carrying a firearm on the bench and said that he once brandished his firearm at “‘someone’ who came running up to him at the bench and to whom he said, ‘whoa, whoa, whoa, slow down.’”  He gave the interview to his cousin, a Hofstra University journalism student.  The interview was quoted in an article entitled “Carrying in the courtroom,” published online in the Long Island Report.

In early 2016, Judge Putorti showed the article to another judge, telling her about a time he drew his firearm on an “‘agitated’ ‘big Black man’” when the man approached the bench too quickly.  From his “manner and tone,” the other judge had the “impression” that he “was bragging about his actions and . . . expressing pride about being featured in the article.”  The other judge also overheard him tell other judges about the article and the incident at a 2016 county magistrates association meeting.

At another association meeting in 2018, while seeking advice about courtroom security, Judge Putorti told the judges present that he had once pointed his firearm at a “‘large [B]lack man’” who had passed the stop line and came within “a couple” feet of the bench while a police officer was standing at the bench.  The judge recounted that the litigant stated that he “just wanted to talk,” and he added that the officer made a joke about how quickly the judge had been able to draw the gun.

One of the other judges who was present expressed concern to Judge Putorti’s supervising judge.  In a telephone conversation with his supervising judge, Judge Putorti explained that the incident occurred when he called the litigant’s case, and the litigant “ran quickly to the bench, past a line where defendants are supposed to stand.”  The judge added that an officer who was serving as “security” allowed the litigant to approach “within two feet” of the bench.  The judge described the litigant as “a ‘large [B]lack man,’ about 6’9” tall and ‘built like a football player.’”  The judge told his supervising judge that he drew his firearm and “‘pointed it at’” the litigant, adding that, although a bullet was not in the chamber, it takes “‘a split second’” to load.  The judge further told his supervising judge that the litigant said he “‘just wanted to talk’” to the judge, who said that he would talk once the litigant moved back behind the line; the litigant did move back, and the judge then put his gun away.  After this phone conversation, the judge signed a counseling memorandum agreeing never to display a firearm in court unless confronted with deadly physical force.  He also claims that, after the conversation with his supervising judge, he stopped carrying a firearm in the courtroom.

The judge challenged the Commission’s finding of racial bias.  Noting that the Commission was bound to base its determination on the agreed statement of facts, the Court explained that “the agreed-upon facts included an admission by petitioner that he failed to perform his judicial duties ‘without manifesting in words or conduct bias or prejudice based upon race . . . .”  Stressing that the “appearance of such impropriety is no less to be condemned than is the impropriety itself,” the Court also noted that the judge had acknowledged that his conduct “may have created the appearance of racial bias.”  “Despite these conclusive admissions,” the judge argued that “he was not acting with racial bias” but that “his repeated reference to the litigant as a ‘big Black man’ was meant merely to describe him.”  However, the Court concluded that the judge’s repeated references to the litigant as a “big Black man” were “not a mere physical description of the litigant” but “exploited a classic and common racist trope that Black men are inherently threatening or dangerous,” and, therefore, exhibited “bias or, at least, implicit bias.”  The Court added that “New York’s judicial system recognizes the pernicious effect that implicit bias often has on the fair and equal administration of justice . . . .”

(2) From October 2019 through November 2020, which was after he had learned that the Commission was investigating the gun incident, the judge engaged with 8 Facebook posts promoting nonprofit fundraising events.  His page was viewable by the public, and he had over 1,300 “friends,” many of whom knew he was a judge, including the county district attorney, other attorneys, and police officers.

In October 2019, the judge was “tagged” in a post promoting a spaghetti dinner to raise money to cover medical expenses that he had incurred in a motorcycle accident; rather than delete the post from his page, the judge wrote, “I hope to see as many people as I can.”  Over 500 people attended, raising $9,400.

The judge also shared and commented on Facebook posts promoting 7 events to raise funds for the Elks Lodge, in which he held office.

The Court stated that, although “the extreme sanction of removal is warranted only in “‘truly egregious circumstances’ that extend beyond the limits of ‘even extremely poor judgment’” . . . , we measure this ‘truly egregious’ standard ‘with due regard to the fact that Judges must be held to a higher standard of conduct than the public at large’ . . . .”  Noting that “what constitutes ‘truly egregious’ circumstances is a fact-specific inquiry,” the Court stated that it considers “both the gravity of the wrongdoing and the “’effect of petitioner’s conduct upon public confidence in his character and judicial temperament’ . . . .”  Noting that removal is often reserved for a judge who engages in a pattern of misconduct, the Court concluded that this was one of the “rare cases where the misconduct is so inexcusable that no amount of mitigation can be ‘sufficient to restore the public’s trust’ in the judge’s ability to discharge the responsibilities of judicial office ‘in a fair and just manner’ . . . .”  Finding that “the record amply supports the conclusion that petitioner’s misconduct ‘transcends poor judgment’ and warrants removal,” the Court explained:

While presiding over his courtroom, petitioner brandished a loaded firearm at a litigant who presented no threat to anyone.  Rather than show remorse, he described his conduct in a press interview and boasted about it to his colleagues, while repeatedly, and gratuitously, referring to the litigant’s race.  Also troubling is petitioner’s denial in this Court of facts to which he previously stipulated.

The Court acknowledged that the judge’s fundraising on social media “would not by itself warrant removal” but stated that “its timing and the circumstances under which it occurred,” i.e., when he knew he was under investigation, “evince an unwillingness or inability to abide by the Rules of Judicial Conduct,” further demonstrating his unfitness for office. 

Throwback Thursday

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5 years ago this month:

  • • The California Commission on Judicial Performance publicly admonished a judge for delegating his responsibility to conduct case management conferences to his court clerk. Public Admonishment of Hiroshige (California Commission on Judicial Performance October 24, 2018).
  • As recommended by the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for false and misleading statements that she made about her opponent in an e-mail advertisement and on social media during her election campaign.  Inquiry Concerning Santino, 257 So.3d 25 (Florida 2018).
  • • The Nevada Commission on Judicial Discipline publicly reprimanded a former judge for a photoshopped picture of a herself and an actor that was posted on her campaign Facebook page, which misled the public that the Rock had endorsed her campaign, and for her subsequent comment on the post. In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018).
  • Accepting the recommendation of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) on numerous occasions, acting impatiently, raising his voice, and making demeaning and insulting remarks, often in open court; (2) twice striking witness testimony and dismissing petitions for insufficient proof as a result of counsel’s reflexive use of the word “okay;” (3) awarding counsel fees without providing an opportunity to be heard; and (4) failing to cooperate with the Commission.  In the Matter of O’Connor, 112 N.E.3d 317 (New York 2018).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) her conviction for a misdemeanor offense of driving while intoxicated; (2) being discourteous and seeking preferred treatment from the arresting officers; (3) violating the terms of her conditional discharge by ignoring orders of the court and leaving the country for an extended vacation without notice to the court or her lawyer, resulting in the revocation of her conditional discharge; (4) failing to disqualify herself from the arraignment of a former client and attempting to exercise her discretion to have his case transferred in a manner that she thought might benefit him; and (5) making discourteous, insensitive, and undignified comments before counsel and litigants in court.  In the Matter of Astacio, 112 N.E.3d 851 (New York 2018).
  • Adopting the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court suspended a judge without pay for 30 days for failing to issue a ruling for more than 5 years on a motion for permanent child support.  In re Chapman, 819 S.E.2d 346 (North Carolina 2018).
  • Based on stipulations and a joint recommendation, the Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months for failing to accurately report his work hours and leave on his time card; the suspension was stayed on the condition that he engage in no further misconduct.  Disciplinary Counsel v. Dunn, 116 N.E.3d 1272 (Ohio 2018).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for organizing a school supply drive using court staff and advertising it in Facebook posts, soliciting donations to an individual in a Facebook post, and advertising his donation of a rifle to a charitable organization’s raffle in a Facebook post.  Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018).

“Snowflake,” “saving face,” and “fast and loose”

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The California Commission on Judicial Performance publicly admonished a former judge for (1) stating that the plaintiff in a defamation action was “hypersensitive” and a “snowflake” and needed to “litigate like a grown-up” and offering to dismiss the case so he could appeal; (2) in a second matter, after a court of appeal justice vacated an order that he had issued, sending an email to her about the case; and (3) in an unlawful detainer suit against a commercial tenant, intentionally disregarding the law regarding relief from a default judgment and making discourteous comments.  In the Matter of Hunt, Decision and order (California Commission on Judicial Performance August 31, 2023). 

(1) Mohammad Abuershaid, a deputy public defender, used a fictious name to file a defamation lawsuit alleging that a senior member of the district attorney’s office routinely referred to him as a terrorist.  The judge, sua sponte, set a hearing on an order to show cause why he should not stay the case until the plaintiff amended the complaint to reflect his legal name.

At the hearing, the judge remarked about the plaintiff’s use of a fictitious name:

He did that because he says that if his real name were made public, the alleged defamation, which meant that somebody had called him a “terrorist,” would damage his professional reputation as a deputy public defender.

Now, I bet I’m older than everybody on the line right here, so it’s true, the world has changed since I grew up.  And we have become in my lifetime rather what I consider to be hypersensitive to people’s feelings.  You know, I have even heard about young people being described as “snowflakes” because they are supposedly so insecure that they need to have what are called “safe spaces” if they are confronted with situations or things that they are unfamiliar with.

But I cannot believe that there’s a public policy in the state of California that permits adults to bring lawsuits under fictitious names just because of their transient, personal feelings having been hurt or damaged.  I’m talking about adults here.  Adulthood means a recognition that life routinely brings adversely [sic].  It means self-sufficiency.  It means strength of mind, courage, and wisdom, and resilience.  You’re talking about an old-fashioned person here.  And I believe in those things.  And honestly, I bet those of you who don’t have a case hanging there believe those things, too, about adults.  Adulthood routinely brings adversity.  The law expects—routinely, it expects the characteristics I’ve listed are a normal condition of adulthood.  It is only when those qualities that I’ve just listed are proved to be abnormally lacking, like cases of mental illness or stuff like that, that the law will recreate [sic] some very closely-edged exceptions, all consistent with due process by the way.

He said to the plaintiff’s attorney, “I’ll take your arguments to the contrary, but my tentative ruling will be, as you get to put in your brief an alternative, to give you a week to amend your complaint.  Tell your client to step up to the bar and give his name and litigate like a grown-up.”

Before the Commission, the judge argued that his remarks “reflected ‘a different generation giving advice and insight to a younger generation, each of whom was speaking a different language’ and that his discussion about cultural changes and heightened sensitivities of young people were interpreted negatively.”  However, the Commission stated that his “remarks, on their face . . . insinuated that Mr. Abuershaid was ‘hypersensitive,’ was a ‘snowflake,’ and needed to ‘litigate like a grown-up’” and were “gratuitous and unrelated” to whether he could file under a fictitious name.  The Commission also rejected the judge’s argument that his “snowflake” remark “was collateral, finding that it “was personal, critical, and created the appearance of bias against Mr. Abuershaid.”

When Abuershaid’s counsel, Matthew Murphy, contended that the case was not about his client’s “hurt feelings,” but about defamation per se, the judge stated, “It actually may not be [defamation] per se.  The material that you’ve alleged does not mention that guy’s name.  It doesn’t even mention his name.”  The judge also suggested that Murphy was trying to get the case before the Court of Appeal and offered to make it “easier” on him by dismissing the case as “a catalyst” for getting the “case in front of the DCA.”  The Commission found that the judge’s comments were discourteous, gave the appearance of embroilment, and suggested that he had prejudged the outcome of the case.

(2) In a civil action, the judge granted the defendant’s ex parte request to advance the hearing on their summary judgment motion.  The plaintiff petitioned for a writ of mandate and requested a stay, and the Presiding Justice of the Fourth District Court of Appeal, Kathleen O’Leary, vacated the judge’s decision and issued an alternative writ or order to show cause.

The next day, Judge Hunt sent Justice O’Leary an email that stated:  “I may be stupid, but I know when someone is saving face.”  When Justice O’Leary received the email, she questioned whether it was from a judge and reported it to the presiding judge and the assistant presiding judge.  Believing the email was a spoof, the presiding judge alerted the California Highway Patrol personnel at the appellate court.

Before the Commission, the judge acknowledged that he should not have sent the email, expressed remorse, and said that, upon realizing his error, he immediately apologized to Justice O’Leary.  The Commission concluded that the judge’s email was an improper ex parte communication with the appellate court, gave the appearance of embroilment, and was discourteous and intemperate.

(3) On November 19, 2020, Shapell Socal Rental Properties filed a commercial unlawful detainer action against Chico’s FAS, Inc. for failing to pay rent.  Chico’s requested that Shapell send communications to the law firm it had retained for real estate disputes arising out of the effects of COVID-19.

Instead, Shapell had a registered process server serve the summons and complaint on an employee at the Chico’s store in Laguna Niguel and mailed copies to the store.  On December 11, Shapell requested entry of a default judgment against Chico’s and improperly sent a copy of the request to the store in Laguna Niguel without notifying Chico’s counsel or sending a copy to Chico’s corporate headquarters.  The court entered a default judgment.

Chico’s filed a motion to set aside the default.  At a hearing, Chico’s attorney presented evidence that Shapell did not properly serve the documents at Chico’s corporate headquarters, its registered agent in California, or its law firm.

During the hearing, the judge stated to Chico’s attorney:

  • “I mean, I’ve got very little indication that your client took it seriously.”
  • “I’ve got a lot of indication that your client was just dragging its feet, hoping that this would go away.”
  • “But I’m getting a very uncomfortable position about this tenant playing pretty fast and loose with whether they pay rent or not, or whether they want to be there or not.”

After hearing oral argument, the judge took the matter under submission; subsequently, he issued a minute order denying Chico’s motion.  Chico’s appealed, and the court of appeal reversed the judge’s order.

The Commission determined that when he denied Chico’s relief from the default judgment, the judge had intentionally disregarded the law on default judgments, ignoring the evidence, abusing his authority and discretion, and disregarding Chico’s fundamental right to a hearing on its potential eviction.  The Commission also found that the judge’s accusations about Chico’s reflected poor demeanor and gave the appearance of bias against Chico’s and prejudgment of the underlying action.  Rejecting the judge’s argument that his remarks were “entirely within what is expected and permitted of a judicial officer in colloquy with counsel regarding contested legal matters,” the Commission concluded that his “comments were discourteous and unnecessary;” that his focus on Chico’s failure to pay rent created the appearance of bias and prejudgment; and that, as the court of appeal had also concluded, he “’completely ignored the ethical and statutory violation committed by Shapell’s counsel’.”

Throwback Thursday

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10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for a standing court policy that did not comply with the statutory requirements for waiver of personal service of a citation.  Mapp, Disposition of complaint (Arizona Commission on Judicial Conduct October 22, 2013).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for making sarcastic comments during 2 oral arguments in appeals from justice court convictions.  McClennen, Order (Arizona Commission on Judicial Conduct October 4, 2013).
  • Based on an agreed statement of facts, the Mississippi Supreme Court publicly reprimanded a judge and fined him $500 for failing to disclose on the record in an asbestos case his parents’ asbestosis claims or to disqualify from the case and refusing to identify his father when asked.  Commission on Judicial Performance v. Bowen, 123 So. 3d 381 (Mississippi 2013).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s public censure of a former judge, based on a stipulation, for pleading guilty to 1 felony count of possession of a controlled substance (oxycodone) with intent to distribute.  In re Ward, Order (Utah Supreme Court 2013).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for publicly stating that he would not perform same-sex marriages while he continued to perform opposite-sex marriages.  In re Tabor, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct October 4, 2013).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a commissioner for his argument with a defendant in a hearing and the appearance that he set bail based on his displeasure with the defendant, rather than on the merits of the case.  In re Parise, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct October 4, 2013).

Recent cases

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  • The California Commission on Judicial Performance publicly admonished a judge for (1) unauthorized and undocumented absences and routine unauthorized and undocumented early departures from the courthouse; (2) making disparaging and profane remarks about another judge to a court commissioner that, because of her carelessness, were heard by several judicial colleagues at the beginning of a remote court meeting; (3) displaying hostility and annoyance toward her supervising judge during discussions of her absences; and (4) to extend her vacation, making false representations to her supervising judge and unilaterally manipulating matters on her calendar and then displaying exasperation with the supervising judge when she was being counseled about manipulating her calendar.  In the Matter of Spear, Decision and order imposing public admonishment (California Commission on Judicial Performance September 6, 2023).
  • An inquiry panel of the Kansas Commission on Judicial Conduct ordered a judge to cease and desist from serving as municipal court judge until he meets the statutory requirements of the office.  Inquiry Concerning Ruder, Order (Kansas Commission on Judicial Conduct September 22, 2023).
  • Based on a stipulation of discipline by consent, the New Jersey Supreme Court publicly censured a judge for continuing to serve as administrator of an estate for 13 years after becoming a judge and failing to fulfill her fiduciary duties to the estate.  In the Matter of Thurber, Order (Jersey Supreme Court September 6, 2023).
  • The Tennessee Board of Judicial Conduct publicly reprimanded a judge for appearing in a video posted on a school’s Instagram page about truancy; the judge accepted the reprimand.  Randolph, Public reprimand (Tennessee Board of Judicial Conduct September 19, 2023).
  • Based on a stipulation, the Washington State Commission on Judicial Conduct publicly censured a judge and recommended that he be suspended for 30 days without pay for driving under the influence of alcohol.  In re Tanner, Stipulation, agreement, order, and recommendation (Washington State Commission on Judicial Conduct September 8, 2023).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for, in a non-public area of the court during work hours, personally soliciting endorsements for his judicial campaign from a subordinate court employee and requesting her assistance in passing out campaign materials.  In re Volyn, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 9, 2023).
  • The Judicial Council for the Federal Circuit ordered that a judge will not be permitted to hear any cases, at the panel or en banc level, for 1 year for failing to undergo 2 medical examinations as ordered by a special committee investigating information indicating that the judge may no longer be able to perform the functions of her office.  In re Complaint No. 23-90015 (Newman), Order (Federal Circuit Judicial Council Order September 20, 2023).

Throwback Thursday

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20 years ago this month:

  • Based on stipulated facts and conclusions of law, the Louisiana Supreme Court removed a judge from office for personally selling tickets to a fund-raising event for his re-election campaign; requiring his court staff to sell tickets to the event; instructing his staff to hand-deliver tickets to lawyers and law firms on court time; informing his staff that their activities in support of his campaign were a priority and that if they were unwilling to do what he asked, he would replace them with people who were more “enthusiastic;” and lying to the Judiciary Commission during the investigation.  In re King, 857 So. 2d 432 (Louisiana 2003).
  • Adopting the recommendation of the Judiciary Commission, the Louisiana Supreme Court suspended a judge from office for 60 days for a 4-year delay in deciding a community property partition case.  In re Sharp, 857 So. 2d 432 (Louisiana 2003).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) failing to render timely decisions in numerous small claims matters; (2) failing to file timely quarterly reports of undecided matters and filing reports that were false, misleading, and incomplete; and (3) failing to timely respond to the Commission’s repeated inquiries.  Washington v. State Commission on Judicial Conduct, 800 N.E.2d 348 (New York 2003).
  • Accepting an agreement, the South Carolina Supreme Court suspended a judge for 1 year without pay for, during his trial on traffic charges, making untruthful statements about what the arresting officer had said, attempting to exclude audio and video recordings of the traffic stop that showed the officer did not make the statements the judge attributed to him, and being held in contempt for his gestures and behavior during the prosecution’s closing argument.  In the Matter of Hall, 588 S.E.2d 598 (South Carolina 2003).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for charging litigants inappropriate fees and failing to be patient, dignified, and courteous.  Amended Public Admonition of Lewis (Texas State Commission on Judicial Conduct October 28, 2003).

Constructive criticism

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This post was originally a column in the Court Review, a publication of the American Judges Association.

In addition to the usual declaration that judges may “write, lecture, speak, or teach on legal subjects,” Canon 2L of the new Virginia code of judicial conduct makes clear that a judge “may express and explain his or her disagreement with existing precedent so long as he or she does so in a respectful manner and acknowledges his or her duty to faithfully apply existing precedent notwithstanding the judge’s disagreement with it.”

That explicit permission to disagree, unique to the Commonwealth, may have been prompted by a 2020 opinion from the Virginia Judicial Ethics Advisory Committee nixing a judge’s proposed article about the state supreme court’s interpretation of a criminal law.  Virginia Advisory Opinion 2020-2.  (The Virginia Supreme Court had approved the opinion as a rule requires the committee to “submit any proposed advisory opinion to the Supreme Court of Virginia for approval prior to its release to the inquirer and the public.”)

Noting its assumption that the author would be “scholarly and respectful” and would not discuss pending or impending cases, the committee determined that the article would likely be “a permissible educational or scholarship exercise”—if the judge-author only analyzed the statute and the court’s decisions.  However, the judge also intended “to assert that the Court has interpreted the statute ‘incorrectly’ and to provide an alternative interpretation.”  In the committee’s opinion, readers would likely infer from that analysis that, in ruling as a judge, the author would substitute their preferred interpretation rather than follow the criticized precedent.

Acknowledging the “natural tension” between judges having opinions about legal issues and judges being open-minded, the committee concluded that the proposed article appeared to represent “pre-judging or predisposition that would create in reasonable minds a perception that the judge is partial.”  The committee also rejected the inquiring judge’s suggestion that the article would be permissible if the author included a disclaimer stating that they were not expressing an opinion on any case that may come before them.  The committee noted that it does not have the authority to address First Amendment issues.

One committee member dissented, evoking the Hans Christian Andersen folk tale to argue that judges have the responsibility to respectfully point out “if the emperor has no clothes,” that is, if “an appellate court may have misapplied a rule of construction or applied faulty logic.”  The dissent noted that the inquiring judge was not advocating for nullification of the law, casting “aspersions on the competence or integrity of members of the judiciary,” or suggesting “rebellion and defiance against the appellate court’s ruling.”  It explained:

Barring publication of constructive and scholarly comments by a judge on issues relating to legal analysis would . . . silence those who would be most competent to speak to the issue, . . . inappropriately suggest that decisions of appellate judges are beyond criticism, and . . . inappropriately curtail activities designed to improve administration of justice.

The dissent disagreed with the majority’s conclusion that the article’s constructive criticism implied that the author would “disregard his or her duty to adhere to decisions of higher courts.”  Stating that “improving the law is best done in an environment of robust and honest dialogue,” the dissent argued that “the motherly maxim, ‘if you don’t have something good to say, don’t say it at all!’” should not be added to the code of judicial conduct.

The importance of judicial participation in the “long tradition of vigorous public debate” about judicial decisions was also emphasized by the Judicial Council of the United States Court of Appeals for the Seventh Circuit when it concluded that a judge who wrote an article titled “The Roberts Court’s Assault on Democracy” had not violated the code, at least in most of what he had written.  Resolution of Judicial Misconduct Complaints About Adelman (7th Circuit Judicial Council June 22, 2020).  The article had been published in Harvard Law and Policy Review and was written by a United States District Court judge.  The thesis of the article was, according to the Council, that, in decisions over the last 15 years, the United States Supreme Court has “undermined the rights of poor people and minorities to vote” and “increased the economic and political power of corporations and wealthy individuals,” resulting in “a form of government that is not as responsive as it should be to the will of the majority of the people.”

Following media reports about the article, three individuals filed complaints against the judge-author.  For example, one stated:  “I don’t see how a party with a conservative background appearing before [the judge] could be confident that they would receive fair, evenhanded treatment.”

The Seventh Circuit Judicial Council described the “competing policy considerations.”  On the one hand, judges should be encouraged to “offer the public valuable perspectives on the controversial cases of the day after they have been decided,” “bring[ing] to bear their professional skills, experience, and training to evaluate the debates among Justices over the meaning and scope of precedents and other legal arguments made in those opinions.”  On the other hand, judges “have special responsibilities in their public extrajudicial writings and speaking” not to “interfere with their work as judges” or “with public perceptions that the judges will approach the cases before them fairly and impartially.”

Explaining that the judge had based much of his article on opinions dissenting from the decisions he criticized, the Council concluded that “the vast majority” of his “substantive criticism of Supreme Court decisions” was “well within the boundaries of appropriate discourse,” although it noted it was not “endorsing or disagreeing” with his views.

However, the Council did admonish the judge for parts of the article.  The article began:

By now it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes,” was a masterpiece of disingenuousness.  Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides.

According to the Council, the article also criticized “the Republican Party’s support for measures to restrict voting rights and to enhance the political and economic power of corporations and the wealthy” and described “the party as having become more partisan, more ideological and more uncompromising.”

The Council concluded:

The opening two sentences could reasonably be understood by the public as an attack on the integrity of the Chief Justice rather than disagreement with his votes and opinions in controversial cases.  The attacks on Republican party positions could be interpreted, as the complainants have, as calling into question Judge Adelman’s impartiality in matters implicating partisan or ideological concerns.

The Council noted that its public admonition would remind all judges of their obligations to ensure that their “public speaking and writing do not undermine public confidence in the fair administration of justice.”

How judges can acknowledge disagreement among judges and call for improvements in the administration of justice without undermining public confidence in the judiciary and the courts is not a new debate.

In 1983, a Texas justice of the peace noticed that charges were dismissed or fines were reduced for the great majority of defendants who appealed their traffic offense convictions from justice or municipal courts to the county court-at-law.  He believed this practice “unfairly allowed those ‘in the know’ to violate the traffic laws repeatedly and with impunity while penalizing less sophisticated individuals who committed the same offenses.”  In an “open letter” to county officials, he attacked the prosecutor’s office and the county court-at-law.  If the county refused to change this practice, the judge stated, “the public at least should be made aware of it, and the court-at-law ‘would be really busy then.’”  The judge also told a reporter, “It seems the county court system is not interested in justice,” or words to that effect.  The truth of his claims was not contested.

The Texas State Commission on Judicial Conduct publicly reprimanded the judge for public statements that “were inconsistent with the proper performance of your duties as a justice of the peace and cast public discredit upon the judiciary.”  The judge challenged the reprimand in a federal lawsuit contending that his statements were constitutionally protected speech.

The United States Court of Appeals for the Fifth Circuit agreed with the judge and held that, under the First Amendment, the judge could not be reprimanded for his “truthful public statements critical of the administration of the county judicial system of which he is a part.”  Scott v. Flowers, 910 F.2d 201  (U.S. 5th Circuit 1990).  The federal court emphasized that the judge should be expected, not only to exercise independent judgement in deciding cases, but also to “be willing to speak out against what he perceived to be serious defects in the administration of justice.”  It concluded that the goals of promoting an efficient and impartial judiciary “are ill served by casting a cloak of secrecy around the operations of the courts” and that the judge had in fact furthered those goal “by bringing to light an alleged unfairness in the judicial system.”

A “silence is golden” approach by judges may not promote confidence in the judiciary for a public very aware of the criticism and challenges courts face and sometimes invite.  Judges may join the debate without tarnishing the judiciary’s reputation if they are thoughtful and constructive, requiring the balance judges are accustomed to bringing to all aspects of their role.

Throwback Thursday

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25 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for (1) allowing the large majority of cases on his misdemeanor calendar to be adjudicated in his absence and without his participation; (2) leaving the courthouse before completion of the pretrial calendar one day when no other judge was available to cover the calendar; and (3) occasionally running on the stairs near his chambers during his pretrial calendar.  Inquiry Concerning Sheldon, Decision and order (California Commission on Judicial Performance October 23, 1998).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) a pattern of insistent and unwelcome behavior toward his courtroom clerk and (2) giving his clerk $250 to donate to a candidate for non-judicial office.  Public Admonishment of Hiber (California Commission on Judicial Performance October 23, 1998).
  • Adopting a consent agreement, the California Commission on Judicial Performance publicly admonished a judge for appointing 2 attorneys who rented office space from him and 1 attorney who had a social relationship with him to represent criminal defendants in numerous cases.  Inquiry Concerning Shook, Decision and order (California Commission on Judicial Performance October 29, 1998).
  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for (1) making comments about 2 pending cases to a newspaper reporter, (2) taking a straw poll of the courtroom audience regarding the guilt of a defendant, and (3) chastising a juvenile in the courtroom.  In re Best, 719 So. 2d 432 (Louisiana 1998).
  • Affirming the findings of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge for driving under the influence of intoxicating liquor.  Commission on Judicial Performance v. Thomas, 722 So. 2d 629 (Mississippi 1998).
  • The New York State Commission on Judicial Conduct removed a judge for failing to report dispositions and remit court funds to the comptroller, failing to maintain a docket of motor vehicle cases and a docket of criminal cases, failing to maintain a cashbook, failing to issue duplicate receipts, failing to send fine notices to defendants who had pleaded guilty by mail, failing to schedule trials for defendants who had pleaded not guilty, and failing to suspend the driving privileges of defendants who had not answered summonses, paid fines, or appeared for trial.  In the Matter of Sohns, Determination (New York State Commission on Judicial Conduct October 19, 1998).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge who had pleaded guilty to driving while ability impaired.  In the Matter of Burns, Determination (New York State Commission on Judicial Conduct October 20, 1998)
  • The New York State Commission on Judicial Conduct publicly censured a judge who had reached out to have the criminal charges against a family friend brought before him, knowing that he should not handle the case, then granting a favorable disposition.  In the Matter of Jarvis, Determination (New York State Commission on Judicial Conduct October 20, 1998).

FAQ: Who has statewide employee codes of conduct?

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By Bill Raftery,  Senior Knowledge Management, National Center for State Courts 

Reposted from Trending Topics on the NCSC website.

While states differ in terms of how they manage their judiciary’s human resources functions, many have statewide employee codes of conduct. Roughly half of states and territories have copies of their codes online. While they are not identical, some patterns emerge:

  1. Document – the code of conduct is often a standalone document but may be integrated into another publication. One example of a combined document is Idaho’s Judicial Branch Employee Policy Manual, which includes a section entitled Code of Conduct for Employees of the Judicial Branch.
  2. Title – because some of these documents are standalone versus consolidated, the terms used to describe them vary. The most common are “code of conduct,” “rules of conduct” and “standards of conduct;” however, several do integrate this into “ethics.”
  3. Common terms – there is an emphasis on the independence, integrity, and impartiality of the judiciary in general and of staff in particular. Virginia’s Rules of Conduct for Judicial System Employees puts it this way: “Employees of the Judicial System should personally observe high standards of conduct so that the integrity and independence of this separate branch of government are preserved and the duties performed reflect a devotion to serving the public.”
  4. Applicability – whereas in the past, non-judge employees were simply subjected to the state’s code of judicial conduct, these more modern codes are specific to employees. For example, in 2007 Karl Thoennes’ ICM Fellows paper found in many states the ethics code or code of conduct was adopted for judicial officers and directly or indirectly made applicable to court staff. Today there is often a separate code that applies to court employees. This trend was further examined in 2010 with Amy McDowell’s Courthouse Ethics: Effective Court Administration Codes of Ethics and through the development by the National Association for Court Management’s (NACM) Model Code of Conduct for Court Professionals.

NACM keeps a catalog of such codes that also includes local codes (e.g., Code of Conduct for Non-Judicial Employees of [Florida’s] Seventh Judicial Circuit) or employee-specific such as codes of conduct for court interpreters. Sample statewide or jurisdiction-wide court employee codes of conduct follow.

Do you have a statewide code of conduct for court employees or local ones? Share your experiences with us. For more information, contact Knowledge@ncsc.org or call 800-616-6164. Follow the National Center for State Courts on Facebook, Twitter, and LinkedIn.