Throwback Thursday

10 years ago this month:

  • The Mississippi Supreme Court suspended a judge for 90 days without pay and publicly reprimanded him for ex parte communications with a police officer, taking a criminal defendant for a ride in his car, reducing the defendant’s fine at the request of the officer, and lying to the Commission on Judicial Performance investigator.  Commission on Judicial Performance v. Boone, 60 So. 3d 172 (Mississippi 2011).
  • Based on the presentment of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly reprimanded a judge for involving the police in tracking down the parents of the teen who had damaged his son’s car, his treatment of the teen’s mother on the telephone and in a lawsuit, and being less than forthcoming with the Committee.  In the Matter of Baptista, 15 A.3d 323 (New Jersey 2011). 
  • The Texas State Commission on Judicial Conduct publicly warned a judge for issuing a summons for a citizen to appear in his court when no case was pending against the citizen and no criminal charges had been filed against him.  Public Warning of Perez (Texas State Commission on Judicial Conduct April 6, 2011).
  • Based on stipulated facts and a stipulated recommendation, the Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s public censure of a former judge based on his guilty plea to charges of exposing himself to a police officer in a public restroom.  Inquiry Concerning Hare, Order (Utah Supreme Court April 6, 2011).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a former judge for expressing his support for a candidate for sheriff in a letter to the editor after he had announced his retirement but while he was still a judge.  In the Matter of Votendahl, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 22, 2011).

Facebook fails

Reporting
A judge asked the Massachusetts Committee on Judicial Ethics whether they were required to report that another judge had political posts, memes, links, and exchanges on a Facebook profile.  Massachusetts Advisory Opinion 2021-1.  The inquiring judge had, while on Facebook near the 2020 presidential election, viewed the apparently publicly accessible personal Facebook profile of a person they recognized from the name and photograph as a sitting Massachusetts judge, although the profile did not refer to the other judge’s judicial status.  The posts included:

  • “Expressions of support for one of the major party candidates for president;
  • References and links to negative coverage of the opposing major party’s candidate;
  • Statements that the opposing party’s candidate and his family are ‘corrupt;’
  • Posts ridiculing and demeaning two female politicians of the opposing party;
  • Derogatory comments about immigrant parents who were separated from their children at the southern border; [and]
  • Complaints about media bias in election reporting.”

In a post 10 days after the election, the other judge stated that the election was a “mess” with a link to commentary by a media personality claiming that it had been “fundamentally unfair, compromised by alleged voting irregularities, and manipulated for the political benefit of the opposing party.”

Rule 2.15(A) of the Massachusetts code of judicial conduct provides:

A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, integrity, trustworthiness, or fitness as a judge in other respects shall inform the Chief Justice of the Supreme Judicial Court, the Chief Justice of the court on which the judge sits, and if the judge is a Trial Court judge, the Chief Justice of the Trial Court.

The Massachusetts provision is identical to the model code provision except that it identifies chief judicial officers as the appropriate authority to which misconduct should be reported where the model code designates “the authority having responsibility for initiation of disciplinary process in connection with the violation to be reported.”

The committee concluded that the inquiring judge was required to report the posting judge under Rule 2.15(A).  First, the committee stated, the inquiring judge knew that the other judge had “posted the materials in question to the Facebook profile or, if the materials were posted by someone other than the judge, that the judge permitted the materials to remain on the judge’s Facebook profile.”  Second, the committee concluded that “the content on the judge’s Facebook profile violates several provisions of the Code that require judges to avoid conduct in their personal and professional lives that creates an appearance of bias.”  Third, the opinion found, “the violations raise a substantial question regarding the judge’s fitness as a judge because, by publicly posting and/or tolerating the presence of the materials in question, the judge failed to act in a manner that upholds the public’s confidence in the impartiality of the judiciary and maintains the dignity of judicial office.”  The opinion explained:

The Facebook posts at issue here expressed favor for a specific political candidate and for specific political viewpoints; denigrated and demeaned opposing political figures and viewpoints; contained content that gave the appearance of bias based on gender, ethnicity, and immigration status; and promoted a claim that the election had been manipulated for the political benefit of the opposing party.  The judge’s conduct in posting such materials, regardless of the particular political viewpoints expressed, calls into question the judge’s impartiality and “undermines public confidence in the judiciary,” . . . and therefore raises a substantial question regarding the judge’s fitness as a judge.

Deactivating
2 judges recently deactivated their Facebook accounts in response to complaints about inappropriate activity.

On learning that the Judicial Standards Board was investigating his Facebook posts and reactions endorsing and opposing candidates for U.S. President and U.S. Senate, a Minnesota judge immediately deactivated his Facebook account and admitted that his Facebook activity had been “imprudent, indecorous and contrary to the spirit of the Canons.”  In the Matter of Quinn, Public reprimand (Minnesota Board on Judicial Standards March 9, 2021).

The judge had been tagged on Facebook in numerous photographs showing him wearing a MAGA hat and piloting a boat displaying at least 2 Trump flags in the Trump Boat Parade on the Mississippi River in September 2020.  He also included a screenshot of photographs of himself in the parade published in the St. Cloud Times, with the response, “Here we are!”

The judge also “liked” Donald J. Trump’s Facebook page and on that page:

  • Commented, “Trump will steam roll this election.  Those who’s [sic] eyes are closed move their mouths more to make up for their insecurities.  Stay strong; pray against evil,” on a video captioned, “We’re showing that we can create jobs, safeguard the environment, and keep energy prices low for America.”
  • “Liked” posts that stated:
    • “I will NEVER support Biden ever . . . . he’s been in politics for 49 years no wonder why the U.S. has so many problems.”
    • “I was thrilled to be back in WISCONSIN tonight with thousands of loyal, hardworking American Patriots!  47 days from now, we are going to win Wisconsin, and we are going to win 4 more years in the White House!  #MAGA.”
    • “One of the worst polls in 2016 was the @FoxNewsPoll.  They were so ridiculously wrong.  Fox said they were going to change pollsters, but they didn’t.  They totally over sample Democrats to a point that a child could see what is going on.  Rasmussen, which was accurate, at 52%.”
    • “Joe Biden is a disgrace.  A 47 year career waste.  Wake up people do we need someone like this as president.”
  • “Liked” a post regarding the Duluth News Tribune’s endorsement of Jason Lewis for U.S. Senate and commented on another post regarding the endorsement, “Whoa!  That is a weighty endorsement for Lewis and quite an indictment of [Senator Tina] Smith since she’s had years to work on her platform and record.  Clearly a big difference here.”
  • Commented, “Dips**t Biden.  Oops,” in response to an image that stated, “I’ve decided to cut back on political posts for a bit . . . instead I will share some word scrambles.  MURPT0022.” 

The Board stated that it does not discourage judges from using social media because it recognizes that judges maintain family and social connections through social media and often feel isolated due to their work, especially during the COVID-19 pandemic.  However, it emphasized that judges can and must participate in social media without violating the code of judicial conduct.

The Board found that the judge’s Facebook activity endorsed and opposed candidates for public office and “abuse[d] the prestige of judicial office to advance the personal or economic interests of the judge or others.”  The Board stated that the judge’s posts regarding his participation in the Trump Boat Parade “were the most flagrant example of his endorsement of a candidate for public office.”

The Board noted that, even though the judge “maintained a private Facebook page, not all of his activity remained private;” his “like” of the Trump page was public and his approximately 70 Facebook friends, some of whom are lawyers and judges, were able to view and publicize his Facebook activity.  The Board stated that “maintaining a private Facebook page, especially when a judge has a large group of Facebook friends, does not provide a shield for a judge who violates the Code.”

* * *
The West Virginia Judicial Investigation Commission publicly admonished a judge for comments she made on her Facebook page about a pharmacist arrested for destroying COVID-19 vaccine dosages and about the siege at the U.S. Capitol.  In the Matter of Jackson, Public admonishment (West Virginia Judicial Investigation Commission February 24, 2021).

On January 5, 2021, the judge posted a story on Facebook about the arrest of a Wisconsin pharmacist for allegedly destroying multiple doses of the COVID-19 vaccine by leaving them out a room temperature overnight, and she made negative comments about his alleged actions.  On the same day, Disciplinary Counsel contacted the judge and informed her that the comments violated the prohibition on public comments about pending cases, and the judge agreed to take the comments down.  Reminding the judge that she had previously been asked to take other Facebook posts down, Disciplinary Counsel explained that an ethics complaint would be opened against her if she did it again.

Despite that warning, from January 6-11, the judge repeatedly posted stories and/or inappropriate comments about the siege at the U.S. Capitol in Washington D.C. on her Facebook page.  For example, some of the comments were about former West Virginia House of Delegates member Derrick Evans, who allegedly participated in the siege and was the subject of federal criminal charges.

Facebook friend:          As the video ends, Evans shouts “Our house!  And then, “I don’t know where we’re going, but I’m following the crowd.”  What is he?  12?
Respondent:                  [Name] that is very disrespectful . . . to 12-year olds!
* * *
Facebook friend:          It sad, but I’m glad he was.  No one is above the law!
Respondent:                  [Name] it’s not sad!
Facebook friend:          It’s sad that delegates or any elected official would do this is what I mean.  I’m not sad he was arrested.  I’m sad and mad about what they all did!
Respondent:                  YES

Each of the judge’s posts elicited numerous responses.

In her response to Disciplinary Counsel’s complaint, the judge said:

Please be advised that on January 11, 2021, I deactivated my Facebook account. I am embarrassed by my actions and sincerely apologize. I must point out in my defense that my Facebook page was not accessible to the public but was viewable only by my friends and family. I was expressing my feeling to friends, not the general public. My second point is that nothing on my page identified me as a judge, although of course, my friends know that. You have been more than patient with me, and I regret any inconvenience this has caused you. I have no plans to reactivate my Facebook account until I retire. . . .

The Commission stated that “the concept of a ‘public comment’ applies to Facebook whether a judicial officer opens his or her personal page only to family and friends or to the public at large. For purposes of the term ‘public,’ the [Commission] believes the portion of the definition contained in Black’s Law Dictionary which states that the ‘word does not mean all the people nor most of the people nor very many of the people of a place but so many of them as contradistinguishes them from a few’ is appropriate . . . .” The Commission continued:

At all times when engaged on social media judges should remember the immortal words of industrialist Henry Ford that “[u]nder pressure, the mouth speaks when the brain is disengaged and sometimes unwittingly, the gearshift is in reverse when it should be in neutral.” Judges can never go wrong when they limit their Facebook posts to comments about family, pets, sports or the weather. In all other respects, a judge must maintain his/her impartiality particularly when commenting about issues that may come before the court.

Law enforcement alignment
Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for posting on his Facebook page 2 photographs of himself wearing a sheriff’s uniform and personal comments expressing his appreciation for law enforcement officers and describing his appearance at a “Back the Blue” event.  In the Matter of Peck, Determination (New York State Commission on Judicial Conduct March 19, 2021).

The judge’s Facebook page is viewable by the public.  The judge retired from the Ontario County Sheriff’s Office in December 2017.

On July 19, 2020, the judge attended a “Back the Blue” event in which a procession of motorists drove their vehicles to show support for law enforcement.  For approximately 30 minutes, the judge displayed a sign approximately 2 feet by 3 feet on which he had painted “Thank You” in blue lettering.

On July 21, the judge’s Facebook page displayed a “cover photo” depicting himself in his Ontario County Sheriff’s uniform while standing with 3 other individuals, one of whom was his daughter who was wearing a similar uniform.  The photograph was taken at his daughter’s police academy graduation in August 2018.  By July 21, the judge’s “cover photo” had approximately 277 Facebook “likes,” 2 “shares,” and 37 comments from other Facebook users.  

The judge also posted:

Today, my daughter … and I stood at the side of the road and watched in appreciation as hundreds of motorcycles and other vehicles passed by …  It was the Back the Blue ride in support of law enforcement …

I always tell her that she and her brothers and sisters in blue are still appreciated in OUR community.  Today’s event, and the overwhelming number of participants is a true example of that appreciation.  We both had tears streaming down our cheeks as folks waved and honked, acknowledging our sign thanking them for their support.

It is a tough time for law enforcement.  To those of my friends who served or continue to, always remember that you have chosen the noblest of professions and you ARE making a difference …

With this post was a photograph of the judge and his daughter wearing Ontario County Sheriff’s Office uniforms, taken at his daughter’s police academy graduation in August 2018.  By July 21, this post had approximately 940 Facebook “likes,” 355 “shares,” and 219 comments from other Facebook users.  Among the comments was one that identified him as “Judge!”

In April 2019, the Commission had issued the judge a letter of dismissal and caution for posting a comment criticizing a candidate in an election for county sheriff.

The Commission found that the judge’s “public Facebook post in which he aligned himself with and expressed his strong support for law enforcement personnel, casts doubt on respondent’s ability to act impartially when he presided over matters which involved law enforcement personnel.”

* * *
A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct Reporter.  Part 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

Throwback Thursday

20 years ago this month:

  • The Arizona Supreme Court suspended a former judge from the practice of law for 6 months following his conviction while a judge of federal felony counts of filing false tax returns and structuring currency transactions to avoid treasury reporting requirements.  In the Matter of Scholl, 25 P.3d 710 (Arizona 2001).
  • Pursuant to the judge’s consent, the Michigan Supreme Court publicly censured a judge for delay in 2 cases and failure to respond to inquiries from the Judicial Tenure Commission.  In the Matter of Jelsema, 625 N.W.2d 751 (Michigan 2001).
  • Accepting the recommendation of the Commission on Judicial Tenure and Discipline, the Rhode Island Supreme Court removed a former judge from office and imposed a monetary sanction on him for being regularly absent from his courtroom during normal working hours, gambling in a public casino, and pleading guilty to a federal felony offense for knowingly making a false statement under oath in connection with a personal bankruptcy petition.  In re Lallo, 768 A.2d 921 (Rhode Island 2001).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for failing to decide a summary motion for more than 10 months after the hearing date.  In the Matter of Borst, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct April 6, 2001).

“Salty”

Affirming the findings of fact and conclusions of law of a panel of the Commission on Judicial Conduct following a hearing, the Kansas Supreme Court suspended a judge without pay for 1 year for (1) frequently using the word “f**k” and its derivatives when speaking at the courthouse; (2) using derogatory terms when referring to women; and (3) using the phrase “Kansas boy” to describe a young black male defendant.  In the Matter of Cullins (Kansas Supreme Court February 26, 2021).  The Court stayed the suspension for 60 days for the judge to submit a plan for counseling and training.  If the Court approves the plan, it will stay part or all of the suspension during the plan’s term; if the judge successfully completes the plan, the Court will consider waiving any remaining suspension.

(1) The Court held that the use of “f**k” “is unprofessional and—almost always—undignified for a judge,” violating the rule requiring a judge to treat everyone with patience, dignity, and courtesy.  In response to the panel finding that the judge had also violated the rule requiring a judge to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” the judge argued that the F-word is ubiquitous “in the current culture’s vernacular” and “cussing is so common in Southeast Kansas” that it does not reflect negatively on character.  The Court concluded that the judge’s “offensive conduct went far beyond any undignified and unprofessional use of the word ‘f**k’” and that his “aggressiveness; his reference to a female litigant as ‘crazy’; his overt and public humiliation” of the chief clerk; and “his loud, angry, and expletive-filled reprimand” of a court clerk “collectively” violated the rule.

The judge also argued that his profanity could not have undermined public confidence in the judiciary because the incidents “did not occur in a public forum.”  However, the Court noted that at least 2 incidents had occurred or could be heard in a hallway near members of the public.  Further, the Court explained that the judge’s argument “defies logic” by suggesting that his “conduct has not been discussed in the community by the people who witnessed it.”

The judge also argued in his defense that he was often fair to court staff.  The Court stated that, “while that may be true, good behavior on some—even most—occasions does not disprove misbehavior on other occasions.”  Further, it emphasized that good behavior did not “override” code violations, but at most was relevant as mitigation for discipline.  It explained:  “Frankly, good behavior, while commendable in a judge, is also expected.”

(2) The panel had concluded that the judge’s “use of derogatory words,” particularly “b***ch” and “c**t,” to describe women manifested a clear bias based upon sex and “was hostile toward the individuals about whom he was speaking. . . .  Intentionally gender-based derogatory references toward women have no place in the administration of justice, and have no place in a judge’s vernacular.”  (The Court noted that a minority of the justices believed that there was no showing of bias against females generally but only bias against certain females.)

The judge asserted that his statements did not violate the code because he did not make them while performing judicial duties, that is, “during or in relation to any matter he was adjudicating” or while performing administrative duties.  The Court rejected that argument:

Respondent interprets “judicial duties,” including his administrative duties, too narrowly.  While in the courthouse—when court business of every kind was being addressed—Respondent was present in his official capacity as a district judge, and sometimes also as chief judge.  A judge does not lose his mantle of authority when he steps out of his chambers into a hallway.  A judge’s performance of “judicial duties” occurs constantly in the courthouse during the course of any given day. . . .  Those duties include the times a judge presides over hearings, completes administrative reports, and evaluates employees, but they also include those occasions when a judge discusses employee performance with attorneys and other staff; admonishes persons waiting in the hall to be quieter so as not to disrupt court proceedings; offers to assist a wandering law enforcement officer who needs an application for search warrant reviewed; directs a member of the public to the right courtroom; addresses a complaint; and deals with innumerable other things that require a judge’s professional attention, judgment, and decision throughout the day.

(3) During a bond hearing for a young black male student at a local college, the judge asked, “Can I assume you’re not even a Kansas boy?”  There was a second bond hearing also involving a young black male student immediately afterward.

The judge testified that he did not intend the term “boy” to have any racial connotation, that he considers himself a “Chautauqua County boy,” and that his reference to the young man as “a Kansas boy” was similar.  The panel found that the judge’s testimony was credible and that he did not intend the term as a term of racial derision, noting “geographic origin was relevant for proper administration of the bond hearing, and the men were teenagers.” 

Noting that “words and phrases . . . are important,” the Court concluded that, “regardless of inflection, tone, or local custom,” the judge’s conduct “during these bond hearings created a reasonable perception of racial bias . . . .”  It explained:

Specifically, two adult Black men appeared before the judge during a bond hearing, both presumed innocent of their criminal charges. A reasonable individual might perceive that the following may have shown racial bias:

• Something about the defendants’ appearance caused the judge to believe they were athletes;
• Something about their appearance caused the judge to assume they were not from the area;
• Something about their appearance caused the judge to question—even disbelieve—one defendant’s assertion that he had no felony record; and
• During the judge’s comments he used a term — “boy”— that has been used at times in the past as a common and well-known slur against Black men.

The Court concluded that, “when taken altogether and in context, a reasonable perception of bias cannot be denied.”

In mitigation, the judge stated that he is efficient, fair in his hearings, and “does not mean to hurt or harm” but “is just ‘salty.’”  The Court found that the judge’s conduct “quite troubling.  He has intimidated and publicly humiliated court employees.  He has shown bias and the appearance of bias by his insulting and careless remarks, even while on the bench and presiding over hearings.  By his coarse language in the courthouse, he has sullied the dignity and propriety of the judiciary.”

Throwback Thursday

5 years ago this month:

  • The California Commission on Judicial Conduct publicly admonished a judge for repeatedly continuing post-trial hearings in a criminal case in response to statements a criminal defense attorney made at sidebar during a trial without citing the attorney for contempt or issuing an order to show cause; failing to give the attorney notice of the subject of one of the hearings, improperly excluding the attorney from the hearing, and engaging in improper ex parte communications before the hearing; and contacting another judge to obtain information about another possible contempt matter concerning the attorney.  Public Admonishment of Connolly (California Commission on Judicial Conduct March 23, 2016).
  • Following a hearing on a complaint brought by the Judicial Inquiry Board, the Illinois Courts Commission suspended 1 judge for 4 months without pay for presiding over cases in which the husband of a judge with whom he was having an affair represented a party without disclosing the relationship and for a pattern of deceptive conduct to hide the affair from the chief judge and publicly censured the judge with whom he was having the affair for knowing that he was presiding in cases involving her husband but failing to initiate appropriate disciplinary measures against him.  In re Drazewski and Foley, Order (Illinois Courts Commission March 11, 2016).
  • Adopting the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge for mishandling multiple peace bond proceedings, including failing to timely refund money paid to him after the bonds had expired without forfeiture; extending peace bonds beyond the 6-month maximum term allowed by law; exceeding the $1,000 maximum limit for peace bonds; charging fees in peace bond proceedings that exceeded the amount allowed by law; imposing sentences on peace bond defendants that exceeded the maximum allowed by the code of criminal procedure; issuing peace bonds that interfered with family court proceedings; issuing peace bonds without a hearing as required by law; being rude and discourteous; allowing his staff to be rude and discourteous; and failing to properly notarize peace bond applications.  In re Laiche, 198 So. 3d 86 (Louisiana 2016).
  • With the judge’s consent, the Maryland Commission on Judicial Disabilities released its private reprimand of a judge for appearing in a court where he was assigned as a recall judge for a trial on a ticket he received.  In the Matter of Plitt, Private reprimand (Maryland Commission on Judicial Disabilities March 15, 2016).
  • The Nevada Commission on Judicial Discipline permanently barred a former judge from judicial office in the state based on his federal plea agreement to charges related to a conspiracy to devise and execute a scheme or artifice to defraud and obtain money or property by means of false and fraudulent pretenses, representations, half-truths, and promises.  In the Matter of Jones, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline March 1, 2016).
  • Based on the judge’s consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for independently investigating the father in a paternity case and then holding him in contempt without following procedures required by due process and failing to enter a visitation order in the case for over a year.  In the Matter of Wanker, Stipulation and order of consent (Nevada Commission on Judicial Discipline March 3, 2016).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which were accepted by the judge, the New Jersey Supreme Court publicly reprimanded a former judge and permanently barred him from serving in judicial office for (1) presiding in 4 cases in which he had a conflict of interest; (2) making improper and derogatory remarks during 2 court proceedings; (3) dismissing a parking violation against a litigant using a procedure that conflicted with the rule and guidelines regarding plea agreements; and (4) engaging in plea negotiations with numerous defendants charged with driving while on the suspended or revoked list.  In the Matter of Scattergood, Order (New Jersey Supreme Court March 8, 2016).
  • Based on joint stipulations of fact, violations, and aggravating and mitigating factors, the Ohio Supreme Court suspended a former magistrate for 2 years, with 18 months stayed with conditions, for his sexual relationship with a party in an eviction action over which he presided as a magistrate, his falsification of a loan application for the purchase of a motor vehicle for her, and his misappropriation of wrongful-death proceeds that were intended to finance an annuity for the benefit of a decedent’s minor children.  Disciplinary Counsel v. Williams, 49 N.E.3d 289 (Ohio 2016).
  • • Based on stipulations of fact in lieu of trial, the Pennsylvania Court of Judicial Discipline fined a former supreme court justice $50,000 for participating in an exchange of e-mails with friends and professional acquaintances that were insensitive and contained inappropriate references to gender, race, sexual orientation, and ethnicity, using his Commonwealth-issued computer equipment and a personal web-based e-mail address. In re Eakin, 150 A.3d 1042 (Pennsylvania Court of Judicial Discipline 2016).
  • • Pursuant to an agreement with the judge, the investigative panel of the Tennessee Board of Judicial Conduct publicly reprimanded a judge for an ex parte meeting and e-mail with members of the district attorney general’s office regarding the types of dispositions she would accept in domestic violence court. Reprimand of Walker (Tennessee Board of Judicial Conduct March 23, 2016).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for attempting to pull a driver over for reckless driving, having a police officer pull the driver over, and threatening to have the driver incarcerated without legal justification; the Commission also ordered the judge to receive 2 hours of additional education. Public Warning of Brady and Order of Additional Education (Texas State Commission on Judicial Conduct March 3, 2016).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for regularly interrupting litigants and attorneys and addressing them in an unduly confrontational, loud, and harsh manner; the judge also agreed to participate in ethics training.  In re Canada-Thurston, Stipulation, agreement, order of reprimand (Washington State Commission on Judicial Conduct March 4, 2016).

Gifts, art, pronouns, and ex parte communications

Gifts
In a recent opinion, the California Supreme Court Committee on Judicial Ethics Opinions advised that judges “may exchange modest gifts with their courtroom staff.”  California Expedited Opinion 2021-39. However, it explained ed that judges should “treat all staff equally and maintain proper decorum” should not pressure staff to reciprocate.  Moreover, the opinion added that judges should not give gifts that are “offensive, demeaning, or otherwise inappropriate” or gifts that could “be perceived as harassment.”

The opinion noted that “acknowledging birthdays, holidays and other special occasions can be an appropriate way to build morale among a judge and his or her staff.”  However, it emphasized that, “to the extent reasonably possible, judges should endeavor to treat their staff equally.”  For example, it stated that judges should not give “significantly disproportionate” gifts to different staff members or only “celebrate the birthdays of certain of their staff while ignoring the birthdays of others.”  Moreover, it advised judges to be “sensitive to and respect the fact that staff may come from different faiths and traditions” and “to the extent reasonably possible, . . . tailor any gifts that they give to align with the heritage and belief systems of their staff.”

The opinion advised judges to tell their staff that “there is no obligation or expectation” that they will give the judge a gift in return for the judge’s gift and warned judges not to implicitly pressure their staff for such an exchange, noting that staff are more likely to feel that reciprocation is required if the judge’s gift is expensive or extravagant.  Thus, the committee directed judges to “keep any gifts modest” reflecting “the power and financial imbalances between themselves and their staff.”  Further, it stated that “judges should not solicit staff for a group gift.”

The committee also stated that judges should not “give gifts that are offensive or demeaning,” for example, a gift that is “obscene, profane or degrading in any way to the recipient or to others” or that is a practical joke.  Finally, it stated that judges should not “give gifts that would be perceived as harassing, for example if given in the expectation of fostering a romantic or sexual relationship with a staff person.”

Art
In a recent opinion, the New York Advisory Committee on Judicial Ethics stated that judges may undertake “a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups” in collaboration with a non-profit historical society.  New York Advisory Opinion 2020-202.  The committee noted that the judge should first obtain any required administrative approvals.

The inquiring judges were members of a court’s committee on bias and noted that, “[w]hile the law in the United States has proven to be dynamic, and gradually has changed to include protections for marginalized groups, the art in our courthouse has remained static, and displays aesthetics that reflect a less inclusive, and less just, America.”  To make the courthouse more inclusive and educational, the judges wanted to work with “scholars of legal history and architecture to help create signage and other materials that would ‘interrogate our public art and place it in the context of our nation’s history.’”  The judges would prepare written plans for the project, and the Historical Society of the New York Courts would apply for grants.  After funds were received, the judges would collaborate with the Society in their allocation.

The advisory committee concluded that the project was not only “ethically permissible” but supported the court system’s “efforts to eliminate bias and prejudice and thereby promote public confidence in the judiciary.”

Pronouns
In a recent opinion, the New York Committee stated that, when “a party or attorney has advised the court that their preferred gender pronoun is ‘they,’ a judge may not require them to use ‘he’ or ‘she.’”  New York Advisory Opinion 2021-9.  The inquiring judge was concerned that “the use of ‘they’ could create confusion in the record as to the number of persons to whom a speaker is referring.”

The committee recognized that “a judge may take reasonable steps to ensure the clarity of the record, including courteously referring to an individual by surname and/or their role in the proceeding as appropriate.”  However, it stated, “a judge must be careful to avoid any appearance of hostility to an individual’s gender identity or gender expression.”  The Committee explained:  “Adopting and announcing the sort of rigid policy proposed here could result in transgender, nonbinary or genderfluid individuals feeling pressured to choose between the ill-fitting gender pronouns of “he” or “she.”  This could not only make them feel unwelcome but also distract from the adjudicative process.”  Therefore, it concluded, “the described policy, if adopted, could undermine public confidence in the judiciary’s impartiality.”

It also found that there was “no reason for a judge to pre-emptively adopt a policy barring all court participants, in all circumstances, from being referred to by singular ‘they’. . . .”  It noted that “they” “is one of three personal pronouns in the English language” and has been recognized as a grammatically correct use for an individual, citing Merriam-Webster’s addition of that usage to its dictionary definition in September 2019 and its choice as the 2019 Word-of-the-Year.

The Committee expressed its trust that judges can “handle an expressed preference for the use of singular ‘they’ on a case-by-case basis, adopting reasonable procedures in their discretion to ensure the clarity of the record as needed.”  It also noted that a judge could make “adjustments over the course of a proceeding” if they find that “an initial approach was unsuccessful or confusing.”

Ex parte communications
In a recent opinion, the Illinois Judicial Ethics Committee advised that a judge is not required to recuse from a case after an unsolicited ex parte communication from a litigant if the judge halts the communication as soon as possible, disregards it, and promptly advises all parties.  Illinois Advisory Opinion 2020-1.  The committee did note that judges may “wish to insulate themselves, to the extent possible, from such communications,” for example, “by issuing a standing order to make clear to non-lawyers that such communications are not allowed.”

The inquiry came from a judge who had received an email from a self-represented litigant with “extensive and substantive information about a case.”  The email was sent directly to the judge, and opposing counsel was not copied.  The litigant had learned the judge’s email address when the judge, in order to schedule virtual hearings, communicated by email with the litigant and the attorney representing the other side. 

The committee stated that, after receiving an unsolicited ex parte communication, a judge’s first step was “to ensure that the ex parte communication is disclosed to the other party.”  The opinion noted that “an ex parte communication received via email makes possible a verbatim disclosure of the communication,” which “diminishes the opposing party’s concern about whether it knows the full substance of the communication made to the judge.”  The inquiring judge had “immediately notified the other party of the communication.”

After disclosure, according to the committee, the judge should determine “whether, as a result of the ex parte communication, the judge’s neutrality has been affected; in other words, has the judge become actually biased based on what was learned?,” which would require recusal.  The committee noted that the “inquiring judge did not feel that receipt of the communication affected their neutrality,” adding that “it would be unusual for a judge to be unable to compartmentalize” information they could consider from information they could not consider.

Finally, the committee advised that the judge should analyze whether the ex parte communication raised reasonable questions about the judge’s impartiality, noting that recusal “should be required only ‘if additional circumstances give rise to an appearance of bias,’ such as the ‘judge’s initiation of an ex parte communication.’”  An ex parte communication is less likely to require recusal under that test, the committee explained, if the judge did not initiate it, “shut[] it down” when it was recognized, and promptly disclosed the communication to the other side.  The opinion emphasized that “a judge’s initiation of an ex parte communication might create concerns about the judge’s impartiality, but the same is not true when some other person initiates the communication.  The action of another does not implicitly create any inference about the judge’s impartiality.”  The committee also noted that a rule requiring recusal following any ex parte communication “’would allow a party to remove a judge from a case by initiating an ex parte contact, which would encourage unethical ploys and allow manipulation of the judicial process.’” 

Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for berating defendants, attorneys, and individuals in the courtroom gallery.  Johnson, Order (Arizona Commission on Judicial Conduct March 18, 2011).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for threatening to send a homeowner to jail, take away his house, and give it to the city without authority to do so.  Andress, Order (Arizona Commission on Judicial Conduct March 18, 2011).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for displaying an improper demeanor at a hearing and attempting to alter conditions of release without providing notice to the parties or otherwise following procedure.  Andress, Order (Arizona Commission on Judicial Conduct March 18, 2011).
  • Based on the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission publicly admonished a part-time judge for 2 phone calls he made to police and helping return stolen goods that were taken by an employee of his family’s business.  Letter of Admonishment (Boeckmann) (Arkansas Judicial Discipline and Disability Commission March 18, 2011).
  • The California Commission on Judicial Performance publicly admonished a judge for an insensitive comment about the Ku Klux Klan.  Public Admonishment of Giss (California Commission on Judicial Performance March 16, 2011).
  • The Mississippi Supreme Court suspended a judge without pay for 30 days, publicly reprimanded him, and fined him $1,000 for engaging in ex parte communications; misusing his contempt power; failing to properly notice hearings; granting relief not requested; issuing a search warrant without legal authority; making comments to the local newspaper to explain his actions and justify the defendant’s incarceration in 1 case; and publicly admitting ex parte contact with a litigant.  Commission on Judicial Performance v. Patton, 57 So. 3d 626 (Mississippi 2011).
  • Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly censured a former judge for committing domestic battery against his now ex-wife and having been convicted of the charge arising from the incident; the Commission also prohibited him from seeking and accepting judicial office in Nevada for 4 years.  In the Matter of Abbatangelo, Findings of Fact, Conclusions of Law, Consent Order of Discipline (Nevada Commission on Judicial Discipline March 30, 2011).
  • The New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for personally delivering his co-worker’s traffic ticket to another court.  In the Matter of Daniels, Determination (New York State Commission on Judicial Conduct March 25, 2011).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for taking a treatment court participant for a ride in his personal car over a lunch recess and speaking privately with him about personal issues, including the defendant’s drug use and his mother’s death.  In the Matter of Tarantino, Determination (New York State Commission on Judicial Conduct March 28, 2011).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for (1) representing clients before the village building and zoning department over which his court has jurisdiction; (2) allowing his name to appear on papers filed by his law firm in lawsuits against the village; and (3) permitting his law firm to make political contributions.  In the Matter of Kelly, Determination (New York State Commission on Judicial Conduct March 31, 2011).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for writing a letter on judicial stationery in support of a defendant in a criminal case pending in federal court.  Public Reprimand of Ochoa (Texas State Commission on Judicial Conduct March 31, 2011).

Not a matter of management style

The North Carolina Supreme Court found that a court of appeals judge had committed willful misconduct by allowing his executive assistant/law clerk, who was a close friend, to create a toxic work environment for the female law clerks in his chambers.  In re Inquiry Concerning Murphy, 852 S.E.2d 599 (North Carolina 2020).

After he became a judge in January 2017, the judge hired his close, personal friend from high school, Ben Tuite, to serve as his executive assistant and permanent third law clerk.  The judge gave Tuite “express and implied authority to supervise and manage the term law clerks and the operations of his chambers.”  The judge hired Clark Cooper and Lauren Suber as his term law clerks.  In March 2017, after Cooper suddenly resigned, the judge hired Mary Scruggs.  After Suber completed her clerkship in August 2017, she was replaced by Chelsey Maywalt. 

The Judicial Standards Commission found that Tuite “regularly used profanity during the workday, belittled others,” “used fear and intimidation while interacting with and supervising the law clerks,” “engaged in profane, violent and angry outbursts in the office,” and made “lewd or sexually inappropriate comments in the workplace.”  For example:

  • Tuite frequently used the word “f**k” in the workplace.
  • Tuite referred to the female law clerks more than once as “b***h” or “b***hing.” 
  • Tuite told Suber and Scruggs on separate occasions early in their clerkships that “he likes to have relationships with female co-workers but that they should not misconstrue his efforts to spend time with them.”
  • Tuite told Suber that “he would like to see her in a wife beater’ tank top and shorts on a cold day” and that he “was married but not blind.”
  • While reviewing a law clerk application with the judge, Suber, and Scruggs, Tuite repeated “derogatory and belittling online comments” that called the female applicant’s breasts “fun bags.”
  • On one occasion, Tuite, “after being told of a problem with his work product, yelled ‘f**k’ loud enough for everyone in the judge’s] chambers, including [the judge] who was in his office with the door open, to hear, and slammed his fist on a table hard enough to activate a panic alarm that was attached to that table.”
  • On another occasion, during a meeting, Tuite, in the judge’s presence, got angry at Maywalt, slammed his fist on his chair, said, “Goddamn it, Chelsey,” and told her to shut her mouth and that “her opinion did not f**king matter.”

The judge observed some of Tuite’s conduct, and the law clerks told him about other incidents, but he failed to take any action.  The female clerks “were miserable, felt unsafe and uncomfortable working in [the judge’s] chambers and did not trust [the judge] to accurately portray their reports of workplace misconduct to others or to protect their well-being.”  2 of the clerks resigned before their terms were over; one did not accept the judge’s offer to extend her term. 

Another judge reported his concerns about the environment in Judge Murphy’s chambers to the chief judge.  In subsequent meetings with and emails to the Commission and the human relations department, the judge did not disclose the law clerks’ complaints about Tuite or any of the incidents he had observed and “downplayed, minimized, and mischaracterized” Tuite’s actions.  “The judge dismissed the female clerks’ concerns as complaints about “‘how things are handled’ inside and outside of chambers.”  The judge also regularly assured Tuite and indicated to others that Tuite’s employment at the court of appeals would continue.  However, after a judicial colleague advised him to ensure that “his female law clerks were not uncomfortable” and after learning that Scruggs was interviewing for another position, the judge asked Tuite to resign, which he did in January 2018.

Finding that he had been “influenced by his close personal friendship with and loyalty towards Mr. Tuite,” the Commission concluded that, by failing to act, the judge condoned “Tuite’s workplace misconduct and therefore . . . contributed to and enabled a toxic work environment.”  The Court adopted the findings of the Commission.

The Court rejected the judge’s argument that he could not be held accountable for others’ actions; it noted that the code of judicial conduct specifically states that a judge should require “dignified and courteous’ behavior of his staff” and require “staff and court officials subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge.”  The Court concluded:

The incidents for which respondent was present . . . were sufficient to warrant corrective action with regard to Mr. Tuite.  Instead, respondent continued to turn a blind eye.  This shortcoming is not, as [the judge] contends, simply a matter of managerial style.  Rather, it is a failure to recognize the gravity of Mr. Tuite’s sexually explicit language and profane and suggestive language directed toward [the judge’s] law clerks and the impact on the law clerks of such unprofessional behavior.

Multiple acts of misconduct aggravated by a failure to acknowledge fault or show remorse and by a lack of candor often result in a judge’s removal or suspension without pay in judicial discipline cases.

However, the North Carolina Supreme Court only publicly censured Judge Murphy without explanation except the conclusion that his conduct “did not rise to the level of incurring suspension or removal as contemplated in other decisions of this Court.”  The Court did not cite its other decisions, but since 2008, it has removed 2 judges and suspended 2 judges without pay, in addition to imposing several censures and reprimands.  See In re Chapman, 819 S.E.2d 346 (North Carolina 2018) (30-day suspension without pay for failing to issue a ruling for more than 5 years on a motion for permanent child support); In re Hartsfield, 722 S.E.2d 496 (North Carolina 2012) (based on stipulated facts, 75-day suspension without pay for ticket-fixing); In re Belk, 691 S.E.2d 685 (North Carolina 2010) (removal of former judge for remaining on the board of directors of a corporation and making intentional misrepresentations during the Commission investigation); In re Badgett, 666 S.E.2d 743 (North Carolina 2008) (removal of judge for mishandling a domestic violence protective order case and, during the investigation, making untruthful, deceptive, and inconsistent statements to a State Bureau of Investigation agent and attempting to influence the recollections of a deputy clerk and the plaintiff’s attorney; the judge had been censured and suspended earlier in the year for unrelated misconduct).

Throwback Thursday

20 years ago this month:

  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to implement agreed sentences without giving the prosecution an opportunity to be heard and failing to be patient, dignified, and courteous toward all participants in court proceedings.  Press Release (Campbell) (Minnesota Board on Judicial Standards March 26, 2001).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for firing a handgun several times towards the rear area of his law office near a public intersection to scare a wild turkey off the road that he believed was endangering motorists.  In the Matter of Ciganek, Determination (New York State Commission on Judicial Conduct March 29, 2001).
  • The New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for engaging in improper ex parte communications in a small claims action and failing to afford a plaintiff full opportunity to be heard.  In the Matter of Gori, Determination (New York State Commission on Judicial Conduct March 29, 2001).

Recent cases

  • The California Commission on Judicial Performance publicly admonished a former judge for (1) treating parents and others in a harsh and discourteous manner in 10 dependency hearings; and (2) on consecutive days, yelling at court staff and displaying frustration about an internet outage and discourteously raising her voice to another judge.  Public Admonishment of Roberts (California Commission on Judicial Performance February 18, 2021).
  • With the judge’s approval, the Kansas Commission on Judicial Conduct ordered a judge to cease and desist from failing to perform judicial duties competently and diligently and from delaying his decisions.  Inquiry Concerning Tate, Order (Kansas Commission on Judicial Conduct January 20, 2021).
  • Affirming the findings of fact and conclusions of law of a panel of the Commission on Judicial Conduct following a hearing, the Kansas Supreme Court suspended a judge without pay for 1 year for (1) frequently using the word “f**k” and its derivatives when speaking at the courthouse; (2) using derogatory terms when referring to women; and (3) using the phrase “Kansas boy” to describe a young black male defendant; the Court stayed the suspension for 60 days for the judge to submit a plan for counseling and training.  In the Matter of Cullins (Kansas Supreme Court February 26, 2021).
  • Based on an agreement and stipulated facts, the Kansas Commission on Judicial Conduct ordered that a former judge cease and desist from inappropriately using the prestige of judicial office and acting in a manner that does not promote confidence in the integrity of the judiciary and to continue his retirement and not hold a judicial office in the future; the judge had asked the county sheriff’s office not to service a summons/petition in a divorce case and had a profane and threatening conversation with an undersheriff about the incident.  Inquiry Concerning Smith, Order (Kansas Commission on Judicial Conduct February 25, 2021).
  • Adopting in part the recommendation of the Judiciary Commission based on a statement of stipulated facts and conclusions of law, the Louisiana Supreme Court suspended a judge for 2 years without pay for grabbing the buttocks of a waitress at his bachelor party while intoxicated and failing to cooperate with police, for which he had been convicted of several misdemeanors; the Court deferred all but 6 months of the suspension and the 6 months was made retroactive to the date of his suspension as an attorney; the deferral was subject to the judge successfully completing a 5-year Judges and Lawyers Assistance Programs monitoring agreement.  In re Hardee, Opinion (Louisiana Supreme Court January 27, 2021).
  • Based on the judge’s consent, the Nevada Commission on Judicial Discipline publicly admonished a judge for acting in a manner unbecoming a judicial officer towards court staff and the chief judge on numerous occasions.  In the Matter of Earley, Stipulation and order (Nevada Commission on Judicial Discipline January 21, 2021).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court suspended a judge for 10 months without pay for, during and after a criminal trial, failing to follow fundamental principles of criminal procedure; “fashion[ing] a remedy outside of accepted statutory and ethical norms” without entering guilty findings; using an expletive when the court administrator advised her that there was no authority for her disposition; engaging in “combative” ex parte communications when the defendants did not meet their restitution obligations; and suggesting that the victim file a civil suit against the defendants; the suspension was made retroactive to the date of the judge’s temporary suspension, and her resumption of duties was conditioned on her compliance with a plan regarding professional development.  In the Matter of Rasul, Order (New Jersey Supreme Court February 16, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a non-lawyer judge who had pled guilty to criminal mischief for keying a town official’s vehicle in a parking lot, “apparently in reaction to the town’s denial of his request to provide health insurance.”  In the Matter of Burker, Decision and order (New York State Commission on Judicial Conduct January 28, 2021).
  • Accepting a stipulation based on the judge’s affirmation that she vacated her office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a judge who had been charged in a formal written complaint with, inter alia, presiding “notwithstanding a disqualifying conflict with a party or witness but fail[ing] to disclose and/or recuse herself as required.”  In the Matter of Ward, Decision and order (New York State Commission on Judicial Conduct January 28, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded its investigation of allegations that a non-lawyer judge had, between December 2019 and March 2020, engaged in inappropriate conduct in his courthouse that was inconsistent with his ethical obligations to act in a manner that promotes public confidence in the integrity of the judiciary and to conduct his extra-judicial activities so as not to detract from the dignity of his judicial office and had failed to respond to the Commission inquiry.  In the Matter of Cunningham, Decision and order (New York State Commission on Judicial Conduct January 28, 2021).
  • Based on her agreement to resign and not seek an appointed or elected judicial office in the future, the Tennessee Judicial Conduct Board agreed not to pursue formal charges against a judicial commissioner for discourteously and intemperately injecting herself into a criminal case involving a family member.  In re Tomlinson (Tennessee Judicial Conduct Board February 1, 2021).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for, in a post-judgement collection matter, improperly issuing a show cause order for a defendant based on the plaintiff’s oral motion for contempt and failing to ensure that the defendant had notice and an opportunity to respond to the motion; the Commission also ordered the judge to obtain 4 hours of education with a mentor.  Public Reprimand of Jones and Order of Additional Education (Texas State Commission on Judicial Conduct January 28, 2021), appealed to special court of review.
  • Following a hearing, the Washington State Commission on Judicial Conduct publicly admonished a judge for appearing in bus advertisements for a college that identified him as a judge.  In re Keenan, Decision and order (Washington State Commission on Judicial Conduct February 5, 2021).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for comments she made on her Facebook page about a pharmacist arrested for destroying COVID-19 vaccine dosages and about the siege at the U.S. Capitol.  In the Matter of Jackson, Public admonishment (West Virginia Judicial Investigation Commission February 24, 2021).