Throwback Thursday

10 years ago this month:

  • The California Commission on Judicial Performance removed a judge for (1) failing to dispose of matters promptly and executing false salary affidavits; (2) becoming embroiled in 3 criminal cases; and (3) failing to respond to a letter from the Commission. Inquiry Concerning Spitzer, Decision and Order (California Commission on Judicial Performance October 2, 2007).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to decide a case within the 90 days permitted by law. Public Reprimand of Roue (Minnesota Board on Judicial Standards October 4, 2007).
  • Based on an agreed statement of facts, the Mississippi Supreme Court suspended a judge for 30 days without pay and publicly reprimanded him for ex parte communications with and giving legal advice to a litigant. Commission on Judicial Performance v. Fowlkes, 967 So.2d 12 (Mississippi 2007).
  • Granting a stipulated petition for discipline, the New Mexico Supreme Court suspended a judge for 2 weeks without pay for (1) living in a housing authority home for 20 months without paying rent and (2) dismissing 3 traffic citations issued to the director of the housing authority. In the Matter of Gomez (New Mexico Supreme Court October 25, 2007).
  • Granting a petition filed by the Commission on Judicial Standards based on stipulated findings of fact, the New Mexico Supreme Court publicly reprimanded a judge for endorsing a mayor for re-election and authorizing the use of his name in an endorsement that was published in the newspaper. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007).
  • Adopting the findings of fact, conclusions of law, and recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a former judge from the practice of law for 2 years for her conduct in 2 civil protection order cases, 2 divorce cases, and 1 case involving a complaint that a child was abused and neglected; the Court stayed 12 months of the suspension on condition that the former judge commit no further violations. Disciplinary Counsel v. Squire, 876 N.E.2d 933 (Ohio 2007).
  • Adopting the findings and recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a judge’s license to practice law for 18 months, with 6 months stayed with conditions, for (1) jailing a gallery spectator for contempt without cause; (2) presiding over a defendant’s plea and sentencing even though he had accompanied the police officer after signing a search warrant for the defendant’s apartment; (3) attempting to coerce plea agreements in 2 criminal cases; (4) insisting that a domestic violence victim’s facial injuries be photographed; (5) calling 911 to have a police officer sent to his chambers to transport a prisoner to court; (6) telephoning a defendant’s alleged drug dealer in open court; and (7) repeatedly mistreating defendants and other participants in court proceedings. Disciplinary Counsel v. Parker, 876 N.E.2d 556 (Ohio 2007).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for (1) stating, “I would if you pulled it out but you can’t find it,” in response to a vulgar statement by a defendant and (2) referring to the ethnicity of 2 defendants while presiding over mental health court. In the Matter of Chow, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct October 24, 2007).

Parsing truth

A lack of candor can be misconduct and/or an aggravating factor in determining the appropriate sanction in judicial discipline proceedings, sometimes leading to removal when the underlying misconduct otherwise might not.  But courts and judicial conduct commissions have identified different degrees of dishonesty with different consequences.  In 2 recent cases, for example, the Michigan Supreme Court and Judicial Tenure Commission discussed actionable falsehoods, statements “unworthy of belief,” selective or incorrect memories, imprecise expressions, intentional misrepresentations, inaccurate or careless answers, lying under oath, guesses, and speculation.

The Court publicly censured 1 judge for directing insulting, demeaning, and humiliating comments and gestures to 3 children during a contempt proceeding in a protracted and highly contentious divorce and custody case.  In re Gorcyca (Michigan Supreme Court July 28, 2017).  The Commission had also found that the judge committed misconduct by holding the oldest child in contempt for refusing to participate in parenting time with his father and ordering the 3 children confined to a children’s residential center until their father determined they had purged themselves of contempt.  The Court agreed that the judge committed legal error but concluded that error did not constitute judicial misconduct because she had acted with due diligence (appointing attorneys for the children and holding a hearing) and her error could not be fairly characterized as willful failure to observe the law (no one in the courtroom offered alternatives for handling the difficult circumstances or suggested that she was crossing a line).

In addition to other inappropriate comments, the judge had said to the father with respect to the oldest child, 13-year-old LT, “Dad, if you ever think that he has changed and therapy has helped him and he’s no longer like Charlie Manson’s cult, then you let us know and we can do it.”  While making that statement, she made a circular gesture with her finger near her temple.

In response to the Commission inquiry, the judge denied that she had circled her temple with her finger “to indicate or even imply that [LT] was crazy,” explaining that she believed the motion simulated “a wheel moving forward” to indicate that the father should let her know if LT made any forward movement as a result of therapy.

The master had found that answer was false.  The Commission disagreed, stating that knowledge that a statement is false and an intention to deceive are required.  It explained:

The fact that a statement may be incorrect does not, by itself, render the statement “false” within the context of a legal proceeding.  It may be discredited, or deemed unworthy of belief, but given the limits of human memory and perception, as well as the limitations of language, it would be unfair to impute motives of deception or falsehood to everyone who says something that someone else finds incredible, or that proves to be incorrect.  Selective memory does not equal falsehood; incorrect memory does not equal falsehood; imprecision in expression does not equal falsehood; even an answer that one chooses to disbelieve does not equal a falsehood.

The Commission noted that, during the hearing, the judge had “clarified that she did not recall making the gesture and was unaware she had done so until she viewed the video recording of the proceedings,” but that, when she gave her response, she had felt “obligated to provide her best guess about what she intended.”  The Commission emphasized that “the simple answer — ‘I do not remember what was in my mind at the time’ — would have been both accurate and helpful” but concluded that, “as long as she was candid about her lack of memory,” her “speculation about her motives or intentions in performing actions months earlier — actions that she could not even recall” were not “actionable falsehoods.”

However, noting the judge’s response was sufficiently misleading to require a hearing, the Commission requested over $12,500 in costs pursuant to a rule that authorizes costs “if the judge engaged in conduct involving fraud, deceit, or intentional misrepresentation, or if the judge made misleading statements to the [C]ommission, the [C]ommission’s investigators, the [M]aster, or the Supreme Court.”

Disagreeing on review, the Michigan Supreme Court stated that a misleading statement required an actual intent to deceive or at least some showing of wrongful intent.  It concluded that the judge had “merely speculated as to her intent” and that a guess was not akin to a misrepresentation or misleading statement.

* * *
In the second case, the Court suspended a judge for 9 months without pay for interfering with a police investigation at the scene of an accident involving his intern, interfering with the prosecution of the intern, and making an intentional misrepresentation to the Commission; the Court also ordered that the judge pay over $7,500 in costs.  In re Simpson (Michigan Supreme Court July 25, 2017).

In July 2013, Crystal Vargas accepted an internship with the judge.  Within days, the judge and Vargas began communicating with each other frequently by telephone call and text message, exchanging several thousand communications in 4 months, at all times of the day and night and on weekends.

On September 8, the judge and Vargas exchanged 6 text messages between 1:25 a.m. and 2:29 a.m. and 6 text messages between 4:20 a.m. and 4:23 a.m.  At about the time of the latter messages, Vargas was involved in a motor vehicle accident less than 2 miles from the judge’s home.  Vargas called the judge at 4:24 a.m., shortly after the accident.

While Vargas was still on the phone with the judge, Officer Robert Cole arrived at the scene.  As Cole was administering field sobriety tests to Vargas, the judge arrived.

Concluding that the judge’s “behavior at the accident scene constitutes judicial misconduct,” the Court found that the judge “used his position as a judge in an effort to scuttle a criminal investigation of his intern.”

[R]espondent exited his vehicle and approached Ms. Vargas and Officer Cole as sobriety tests were being performed.  Indeed, respondent interrupted the sobriety-testing process.  Respondent, who had prosecuted numerous drunk-driving cases on behalf of Superior Township before he became a judge, was certainly aware that Officer Cole was investigating whether Ms. Vargas was under the influence of alcohol or a controlled substance.  Given these circumstances, when respondent began his interaction with Officer Cole by introducing himself as “Judge Simpson,” he appears at best to have failed to prudently guard against influencing the investigation and at worst to have used his judicial office in a not-so-subtle effort to interfere with the investigation.  Indeed, but for respondent’s status as a judge, Officer Cole would not have spoken to respondent until Officer Cole completed his investigation.  Next, respondent spoke to Ms. Vargas during the investigation without Officer Cole’s permission — another action an ordinary citizen would not have been permitted to take.  Finally, respondent’s question — “Well, does she just need a ride or something?”— was a transparent suggestion to Officer Cole to end his investigation and allow respondent to drive Ms. Vargas away from the scene.

Subsequently, the judge twice contacted the township prosecutor, describing Vargas as a “good kid” who was in a “pretty bad relationship,” noting that the prosecutor had met Vargas in the past and would be working with her in the future, raising an evidentiary issue, and discussing potential defense attorneys.  The Court concluded that the judge “improperly acted as a legal advocate for Ms. Vargas and used his position as a judge to thwart the township’s criminal prosecution of his intern,” succeeding for a time in delaying the charges, and that his “actions—individually and taken together” constituted judicial misconduct.

In his answer to the Commission complaint, the judge had stated that “the vast bulk” of his communications with Vargas “related to a complex, sensitive project” she was working on for him in People v. Nassif.  The Court agreed with the Commission finding that that statement was “an intentional misrepresentation or a misleading statement.”  The Court explained:

The sheer number of communications—which were frequently exchanged during the night and on weekends—is inconsistent with respondent’s explanation that the communications related to court business, including an in camera review of evidence in the Nassif case.  Moreover, respondent testified that he learned that the Nassif case was assigned to him on August 11 or 12, and that his court did not receive the evidence for the in camera review until September 12.  Yet respondent and Ms. Vargas had already exchanged a surfeit of communications by then.  In addition, this explanation was inconsistent with another explanation advanced by respondent—that the communications were attributable to the “problems” that Ms. Vargas was having with her former boyfriend, who allegedly had been violent toward her.

However, the Court disagreed with the Commission’s additional finding that the judge made a separate intentional misrepresentation or misleading statement while testifying under oath at the hearing.  In response to the question whether he had any contact with Vargas between midnight and 3:30 that morning, the judge had answered “no” but then added, “I don’t believe there were any text messages.  I don’t believe that there was any contact.”  In fact, telephone records indicated that the judge and Vargas exchanged 6 text messages between 1:25 a.m. and 2:29 a.m.

The Court concluded that the judge had not made an intentional misrepresentation because he had “equivocated by adding that he did not ‘believe’ that there was any communication.”

[C]onsidering this context, it appears that respondent simply may not have recalled the precise timing of a few of the many communications he had with Ms. Vargas—communications that were not central to the allegations of misconduct in this case.  We find that respondent’s testimony on this point was careless and that he provided inaccurate information.  However, we do not believe that the JTC has sustained its burden of proving by a preponderance of the evidence that respondent made an intentional misrepresentation or misleading statement regarding his contacts with Ms. Vargas before 4:00 a.m. on September 8, 2013.

The Court noted that the Commission had also “equivocated” by finding that the judge made “an intentional misrepresentation or misleading statement,” and the Court stated that, if the Commission intended to find that the judge made an ‘”intentional misrepresentation,’ it should not have expressed its finding in the alternative.”  The Court emphasized that “it is far from clear that a ‘misleading statement’ is equivalent to a ‘lie under oath,’” noting it has not addressed “whether materiality or an intention to deceive are necessary to prove that a judge testified falsely under oath.”  Finally, stating that the judge should not receive a more serious sanction simply because he denied the allegations of misconduct, the Court explained that a contrary rule “would create immense pressure on judges to stipulate to the charges or risk removal for fighting them.”

Throwback Thursday

20 years ago this month:

  • The Delaware Supreme Court suspended for 3 months without pay and publicly censured a part-time judge for (1) failing to pay federal, state, and city payroll taxes for his law firm’s payroll and to timely file withholding reports; (2) failing to pay property taxes and to pay delinquent property taxes in accordance with a schedule he and the county had agreed upon; (3) having 29 unpaid parking tickets; and (4) failing to properly maintain his law office records and to correctly answer questions on the certificate of compliance with client account reconciliation requirements. In the Matter of Williams, 701 A.2d 825 (Delaware 1997).
  • Accepting the recommendation of the Commission on Judicial Qualifications, the Florida Supreme Court publicly reprimanded a judge for, as a candidate, (1) claiming to have circuit judicial experience, when her service was that of a general master; (2) claiming that her opponent had no circuit judicial experience, when she had extensive experience as a county judge who had been assigned to the circuit court; (3) injecting party politics into a non-partisan election by noting the party affiliation of the governor who had appointed her opponent as county judge; (4) including a photograph of her opponent sitting next to a criminal defendant, noting that her opponent “defend[ed] convicted mass murderer, cop killer, William Cruse,” when at the time of the photograph Cruse had not been convicted and her opponent was an assistant public defender; and (5) including a portion of a newspaper editorial implying that she, not her opponent, had been endorsed by the newspaper. Inquiry Concerning Alley, 699 So. 2d 1369 (Florida 1997).
  • The Mississippi Supreme Court suspended a judge for 30 days without pay, fined her $1,500, and publicly reprimanded her for (1) issuing an arrest warrant on petit larceny and simple assault charges filed by a friend and distant relative; (2) having license tags from her husband’s car on her car; (3) writing a check she did not have sufficient funds in her checking account to cover; and (4) failing to file with the circuit clerk reports of contributions or expenditures required by statute. Commission on Judicial Performance v. Franklin, 704 So. 2d 89 (Mississippi 1997).
  • Affirming the determination of the Commission on Judicial Discipline, the Nevada Supreme Court removed a judge from office for (1) borrowing money from court employees and not always promptly repaying the loans, forcing the employees to make oral and/or written demands for payment; (2) publicly endorsing and campaigning for a judicial candidate and testifying falsely to the Commission that he had only gone to houses where he knew the residents while going door-to-door campaigning for the candidate; (3) storing antiques throughout the courthouse, selling those antiques to persons with whom he came in contact at the courthouse, and directing city employees and jail trustees to move antiques into and out of the courthouse; (4) directing court employees during normal business hours to go to the nursery business owned by his mother to provide Spanish translating services and to perform other personal errands for him, including antique shopping; (5) directing or suggesting to persons appearing before the court who had been found guilty to contribute money to certain charities in lieu of paying fines to the city, diverting approximately $405,916 from the city treasury to his selected charities; and (6) using property he owned in part that was zoned for residential purposes for commercial purposes after been advised by the community planning department of the proper zoning for the property and causing his agents to trespass on adjoining property to hook up water and sewer lines. In the Matter of Davis, 946 P.2d 1033 (Nevada 1997).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct censured a judge for a series of legal and procedural errors in a harassment case and making improper statements that compromised his impartiality and the proper administration of justice. In the Matter of Smith, Determination (New York Commission on Judicial Conduct October 29, 1997).
  • Accepting the findings and conclusions of the Board of Commissioners on Grievances and Discipline and adopting its recommendation, the Ohio Supreme Court publicly reprimanded a judge for appearing in a television commercial for a law firm. Office of Disciplinary Counsel v. Allen, 684 N.E.2d 31 (Ohio 1997).
  • Adopting the recommendation of the Judicial Investigation Commission, the West Virginia Supreme Court of Appeals publicly admonished a judge for discussing the reduction of DUI charges against a distance relative with the police officer, communicating ex parte with the relative and other family members about the case at least 3 times, creating the appearance that he had struck a deal to reduce the charge, and accepting gifts of china and an ashtray in appreciation for his assistance. In the Matter of Reese, 495 S.E.2d 548 (West Virginia 1997).

Recent judicial discipline cases

  • The California Commission on Judicial Performance publicly admonished a court commissioner for tolerating offensive and inappropriate comments by court staff and making profane and derogatory comments about a court interpreter. Public Admonishment of Kliszewski (California Commission on Judicial Performance October 4, 2017).
  • Based on a stipulation and consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for giving an interview about a pending case on which he had served as prosecutor. In the Matter of Kephart, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline August 31, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for comments she made criticizing the district attorney during 4 habeas corpus hearings on the same date. Public Reprimand of Schildknecht (Texas State Commission on Judicial Conduct August 22, 2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct censured a judge for 8 instances of unjustified decisional delay in a variety of cases over 3 years. In re Roberts, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 26, 2017).
  • A hearing panel of the Ontario Judicial Council suspended a judge for 30 days without pay and reprimanded him for wearing a “MAKE AMERICA GREAT AGAIN” baseball cap in the courtroom the day after the U.S. presidential election. In the Matter of 81 Complaints Respecting Zabel, Reasons for decision (Ontario Judicial Council September 11, 2017).


Throwback Thursday

25 years ago this month:

  • The Indiana Supreme Court removed a judge who had (1) solicited and accepted a $2,000 loan from an attorney, failed to report the loan on his statement of economic interest, and presided in cases involving that attorney’s law firm without disclosing the loan; (2) solicited a large loan from his court reporter; (3) falsely represented on his statement of economic interest the source of a loan from one of his girlfriends; (4) failed to report loans from one of his girlfriends and her mother; and (5) to intimidate and retaliate against his ex-girlfriend and her mother for cooperating in the investigation by the Commission on Judicial Qualifications, assisted his son in preparing an anonymous, misleading letter that claimed his ex-girlfriend had been convicted of a felony and mailing the letter to the state agency that regulated the day care center that employed his ex-girlfriend and that her mother owns. In the Matter of Drury, 602 N.E.2d 1000 (Indiana 1992).
  • Pursuant to a stipulation and agreement with the judge, the Washington State Commission on Judicial Conduct censured a judge for tossing a coin to decide a traffic infraction and entering a finding against the defendant when the defendant lost the coin toss. In re Turco, Stipulation (Washington State Commission on Judicial Conduct October 2, 1992).
  • Pursuant to a stipulation and agreement with the judge, the Washington State Commission on Judicial Conduct admonished a judge who did not enter a decision in a small claims case within 15 days from the end of the hearing as required by court rules. In re Monson, Stipulation and Agreement (Washington State Commission on Judicial Conduct October 2, 1992).
  • Pursuant to a stipulation and agreement with a judge, the Washington State Commission on Judicial Conduct admonished a judge for failing in 5 cases to enter judgement within 15 days as required by court rules. In re Feutz, Stipulation and Agreement (Washington State Commission on Judicial Conduct October 2, 1992).


Things that should go without saying

The Nevada Commission on Judicial Discipline recently found it necessary to state the obvious: a “court should not be used as an investigative dating service for [a judge’s] personal friends.”  The judge at issue had had a bailiff run a criminal history on the boyfriend of the judge’s friend through the National Crime Information Center system.  In her answer, the judge said she and her staff had done “a small favor” that may have saved her friend “tens of thousands of dollars and considerable grief and heartache.”  (The friend had lost $65,000 in a previous relationship.)  The Commission found that this was “neither the proper use of the NCIC system nor of the court’s judicial resources and staff,” noting the judge’s actions constituted a misdemeanor.

The Commission suspended the judge for 1 year without pay for, in addition to the inappropriate NCIC search, other actions demonstrating a “proclivity towards following her own moral compass in administering her version of justice irrespective of the law.”  The Commission also found that the judge had sealed her then son-in-law’s criminal records relating to his arrests for domestic battery of her daughter; sentenced an unrepresented man to 8 months in jail in violation of due process; referred to men as “sperm donors;” run a juvenile diversion program that did not comply with the law; and issued orders in small claims cases regarding titles for abandoned vehicles.  In the Matter of Haviland, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline August 29, 2017).  In aggravation, the Commission noted that the judge was not new to the bench, had shown no remorse, and did not admit any wrongdoing.  The judge is not a lawyer and sits as a justice of the peace in a community with a population of less than 250.

In a case involving a law-trained judge in San Diego County, the California Commission on Judicial Performance also had to emphasize the basics.  For example:

  • The Commission explained that the judge “should have realized that sharing a gratuitous personal anecdote about sleeping and showering with a friend, with a reference to sex, was likely to make people in the courtroom uncomfortable and diminish the dignity of the judicial office.” Telling someone in his courtroom that he took care of a friend with whom he traveled because the friend had seizures, the judge had shared that he showered and slept with the friend but added “[t]here was no sex involved.  We were just — we were just friends.  It was purely platonic.”
  • The Commission explained that “it was disrespectful and undignified for a judge to suggest or imply that an attorney appearing before the court was a prostitute,” even in jest. When a deputy city attorney entered the courtroom, the judge had said, “Speaking of prostitution, here’s Miss Westfall,” while on the bench and with court staff and other attorneys present.
  • The Commission explained that “the degree of informality permitted in small claims proceedings does not include the gratuitous creation of undignified and discourteous nicknames.” In a small claims case, the judge had repeatedly referred to a representative of the defendant’s insurance company as “Mr. Insurance Man.”

These were 3 of the 15 incidents of improper courtroom demeanor found by the Commission.

The Commission severely censured the judge for, in addition to his improper courtroom demeanor, misconduct during his campaign; after becoming a judge, remaining as counsel of record in a federal action and giving the impression of practicing law by using checks from his law firm account; improperly responding to a “blanket” challenge from the city attorney’s office; telling an African-American court employee that she should not say she did not win a Halloween costume contest “due to racism;” stating during a proceeding, “I had a Filipino teacher who always used to ask for a shit of paper;” improperly soliciting the legal opinion of attorneys who did not represent a party in the case before him; mishandling a small claims case; and repeatedly interjecting views based on his personal experience into a small claims case.  Inquiry Concerning Kreep, Decision and order (California Commission on Judicial Performance August 7, 2017).


Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for submitting a character reference letter on behalf of an attorney in a reinstatement proceeding without being duly summoned. Barth, Order (Arizona Commission on Judicial Conduct September 7, 2012).
  • Pursuant to the judge’s consent, the North Carolina Judicial Standards publicly reprimanded a judge for failing to enter an equitable distribution judgment for 46 months after the conclusion of the hearing. Public Reprimand of Edwards (North Carolina Judicial Standards September 17, 2012).
  • Adopting stipulated facts and violations, the Ohio Supreme Court suspended a former magistrate’s law license for 1-year (but stayed the suspension) for treating litigants and counsel in a divorce case with disdain, permitting the guardian ad litem to lecture the parties on the record, terminating hearings before the parties had presented all their evidence and made a record of their objections, acting on his own whims rather than inquiring into the best interests of the child, failing to resolve the matters for more than a year and a half, and failing to conduct hearings in a manner that would permit the judge assigned to the case to resolve the issues in his stead. Disciplinary Counsel v. McCormack, 977 N.E.2d 598 (Ohio 2012).
  • The Pennsylvania Supreme Court affirmed the decision of the Court of Judicial Discipline removing a judge for her work habits, her handling of truancy cases, her handling of landlord/tenant cases, and her demeanor in 6 cases. In re Merlo, 58 A.3d 1 (Pennsylvania 2012).
  • The Texas State Commission on Judicial Conduct publicly warned a judge because the public release of a videotape of him beating his daughter cast reasonable doubt on his capacity to act impartially as a judge and interfered with the proper performance of his judicial duties and for a pattern of incidents in which the judge displayed anger and poor judicial demeanor toward certain attorneys in his courtroom. Public Warning of Adams (Texas State Commission on Judicial Conduct September 4, 2012).