Educating and assisting

10 or so judicial conduct commissions summarize private actions in their annual reports, in addition to reporting statistics and describing public cases.

The California Commission on Judicial Performance explains that it summarizes its confidential dispositions “to educate judges and the public, and to assist judges in avoiding inappropriate conduct.”  Although the summaries omit or obscure the facts to maintain confidentiality, which makes them “less informative than they otherwise might be,” the Commission believes, “it is better to describe the conduct in abbreviated form than to omit the summaries altogether.”

The summaries are included in each annual report, and there is an on-line compilation that begins in 1998.  The California Commission’s most recent report summarizes the 13 private admonishments and 21 advisory letters that became final in 2017.  The Commission privately admonished, for example:

  • A judge who made an appointment not permitted by law and in violation of a litigant’s rights without affording the litigant notice and an opportunity to be heard and failed to comply with disclosure requirements for judicial campaign contributions,
  • A judge who acted as an arbitrator or mediator or otherwise performed judicial functions in a private capacity,
  • A judge who, without any matter pending before the court, issued an order purporting to exempt an individual from a particular regulation, and
  • A judge who used the court’s e-mail and mailing address in connection with business activities unrelated to court business and misused the prestige of office in communicating with law enforcement about a matter not related to official court business.

* * *
The 2017 report of the Massachusetts Commission on Judicial Conduct includes descriptions of 2 private sanctions.

  • The Commission privately reprimanded a judge for treating parties discourteously in 2 matters; the judge also agreed to retire voluntarily after unsuccessfully struggling to overcome health difficulties.
  • The Commission privately admonished a judge for treating a party discourteously and behaving in a manner unbecoming a judicial officer; the judge agreed to be monitored by the Commission and to meet with a mentor judge for 1 year.

In addition, the report describes several complaints dismissed by the Commission, including the  3 summarized below.

  • Referencing a hearing that occurred approximately 32 months before he filed his complaint, a self-represented litigant in a restraining order matter alleged that a judge had an improper ex parte communication with the opposing party and denied the litigant a full opportunity to be heard. The preliminary inquiry, which consisted of reviewing the materials submitted by the litigant, reviewing the relevant docket sheet, and asking the litigant for any additional evidence, yielded no credible evidence to support the allegations.  The Commission voted there was no good cause to investigate the stale complaint.
  • An anonymous complainant alleged that a judge had engaged in a pattern of treating lawyers and other parties appearing before him discourteously. After reviewing the complaint, the Commission voted to investigate because the seriousness or notoriety of the alleged misconduct outweighed the potential prejudicial effect of an investigation.  The investigation, which included a review of audio records from the judge’s courtroom, revealed no evidence of discourtesy, and the Commission dismissed the complaint.
  • A self-represented plaintiff in a civil matter alleged that a judge treated him discourteously, created an appearance of bias because of his disability and/or because he was self-represented, and denied him due process during a pretrial conference. The investigation included reviewing the materials submitted by the plaintiff, reviewing the audio record of the hearing, and interviewing a witness.  The investigation revealed that the judge treated the plaintiff patiently and courteously throughout the hearing, granted him full due process, and did not do or say anything that would cause a reasonable person to believe that the judge was biased against the plaintiff.  The Commission dismissed the complaint.


* * *
The annual report for the Michigan Judicial Tenure Commission summarizes 3 letters of admonition and 2 cautionary letters in 2017.  For example:

  • The Commission cautioned that a judge’s demeanor had aggravated rather than eased a situation in which the judge had become angry with a criminal defendant for failing to follow directions, dared the defendant to “say another word” in exchange for a year in prison, and, after the defendant became agitated, left the bench to help physically restrain the defendant.
  • The Commission privately admonished a judge for writing an op-ed for a newspaper concerning pending criminal charges stemming from the high profile Flint water issue, which was not assigned to the judge.

* * *
The Pennsylvania Judicial Conduct Board annual report gives examples of the letters of counsel and the letters of caution issued in 2017.  For example, letters were sent to:

  • A judge who failed to recuse at the appropriate time from criminal matters involving a former sexual partner,
  • A judge who engaged in a clandestine emotional support relationship with a governmental official while the official and the official’s staff presented cases before the judge,
  • A judge who was charged with driving under the influence of alcohol and identified himself as a judge to the arresting officer,
  • A judge who forwarded an e-mail with racially insensitive content to court employees,
  • A judge who utilized his court office as a forum for a political discussion and utilized the prestige of the judicial office to assist the career prospects of a then-potential opponent to lessen the chances that the potential opponent would run against the judge,
  • A judge who addressed the father of a litigant in a condescending and arrogant manner in open court, calling him “stupid,”
  • A judge who told a witness to “suck it up, cupcake,” in open court when many members of the public were present, and
  • A judge who publicly misrepresented the procedural history of a case and refused to allow counsel to correct the record.

 * * *
The Utah Judicial Conduct Commission 2017 annual report summarizes the 4 dismissals with warning the Commission issued, finding in each matter that “the misconduct was troubling but relatively minor misbehavior for which no public sanction was warranted.”  The Commission dismissed with a warning:

  • A self-report by a part-time justice court judge who had represented a juvenile in a criminal case in violation of a statute,
  • A complaint that a judge made 2 offensive statements about an excused juror during sidebar discussions with the prosecutor and defense counsel,
  • A complaint that a judge had revoked the appointment of counsel when an indigent criminal defendant failed to appear, and
  • A complaint that a juvenile court judge had failed to ensure notice and an adequate record of permitted ex parte communications.

* * *
The New York State Commission on Judicial Conduct annual report describes the 30 confidential cautionary letters issued in 2017.  For example, the Commission cautioned:

  • 1 judge for beginning court proceedings with a prayer from the bench,
  • 1 part-time judge for linking his law firm web-site to a personal web-site detailing his judicial position,
  • 5 judges for failing to properly supervise court clerks, which resulted in misappropriated court funds,
  • 1 part-time judge for filing frivolous lawsuits as an attorney, and
  • 1 judge for circulating nominating petitions for someone other than himself and participating in town board budget sessions on matters not involving court operations.

* * *
The Minnesota Board on Judicial Standards annual report for 2017 describes the 3 private admonitions and a sampling of the 6 letters of caution the Board issued.  For example, the Board:

  • Cautioned 1 judge about signing proposed orders without providing the opposing party an opportunity to respond,
  • Cautioned 1 judge about yelling or swearing during an in-chambers meeting, and
  • Cautioned 1 judge about statements made during a third-party visitation hearing, such as, “I didn’t know parenting was optional?” and “I’m just saying some people who are scared to death shouldn’t have children.”

* * *
The Colorado Commission on Judicial Discipline 2017 annual report explains that it:

  • Privately admonished 1 judge for statements during an in-chambers meeting with counsel that disparaged the defendant and interfered with the defendant’s attorney/client relationship, and
  • Privately reprimanded a second judge for failing to timely resolve permanent orders after being placed on a deferral program regarding delays in finalizing permanent orders in an earlier case, also requiring the judge to make periodic docket management reports.

The report also lists the misconduct at which private disciplinary action has been directed in recent years, for example:

  • Failure to respond to Commission letters and disciplinary measures,
  • Delays in docket management caused by medical conditions requiring diversion programs for treatment,
  • Disrespectful remarks to the media or through e-mails regarding the conduct of a litigant, a witness, an attorney, or another judge,
  • Intemperance or verbal abuse toward an employee, a person dealing with court staff, or a customer of a business establishment,
  • Undue reliance on staff for matters in which the judge should be fully competent,
  • Driving while impaired or under the influence of alcohol,
  • Sexual harassment or other inappropriate personal conduct involving a court employee, witness, attorney, or litigant,
  • Irrelevant, misleading, or incoherent statements during arraignments and sentencing,
  • Rulings from the bench involving unprofessional terminology, including expressions that are viewed as offensive in civilized discourse,
  • A pattern of errors in handling trials or issuing rulings that indicated a lack of competence,
  • Making public statements about another judge’s case,
  • Arbitrary rulings in contempt proceedings that resulted in incarceration without due process,
  • Failure to comply with rules applicable to retention elections,
  • Disregard of court-imposed gag orders,
  • Prohibiting a process server from subsequent cases without an opportunity to be heard,
  • Discourtesy toward judicial colleagues, administrative staff, and sheriff deputies,
  • Behavior that the judge may not recognize as a symptom of a medical condition that affects judicial performance, and
  • Advocating for a self-represented party by providing legal advice or failing to treat all self-represented parties to a case impartially.

* * *
In its 2017 annual report, the New Mexico Judicial Standards Commission summarizes the 18 complaints involving 14 judges it resolved with cautionary letters and the 4 inquiries disposed of through informal remedial measures.  For example, 1 judge successfully completed an informal mentorship that addressed concerns the judge allegedly (a) abused discretion by issuing bench warrants to defendants who were sometimes only minutes late to court, then cancelling the bench warrants, but imposing the $100 bench warrant fee and (b) demonstrated inappropriate demeanor with fellow judges and court staff.   A second judge completed an informal mentorship assisting the judge comply with the Inspection of Public Records Act.

* * *
The Texas State Commission on Judicial Conduct annual report for fiscal year 2017 summarizes private dispositions.  For example, the Commission:

  • Privately warned and ordered additional education for a judge who participated in a ride-along with law enforcement during a “no-refusal” weekend while serving as the on-call magistrate for blood search warrants arising from the ride-along,
  • Privately warned and ordered additional education for a judge who wore a Halloween costume during the performance of her judicial duties,
  • Privately ordered additional education for a judge who used the contempt power to pressure a witness into providing specific testimony, and
  • Privately warned a judge who represented that his opponent did not vote between 1996 and 2012, although publicly available voting records showed that his opponent voted 7 times during that period.

Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for holding in criminal contempt of court a woman who had posted on his office door a letter that said his daughter was responsible for the woman’s husband being convicted of sexually abusing 2 girls. Letter to Lewis (Arkansas Judicial Discipline & Disability Commission July 20, 1998).
  • The California Commission on Judicial Performance publicly admonished a judge for ex parte e-mails with an attorney about a pending case. Public Admonishment of Caskey (California Commission on Judicial Performance July 6, 1998).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court suspended a judge for 60 days without pay for having an extra-marital affair with a felon who was on parole from a prison sentence she had imposed. In re Harris, 713 So. 2d 1138 (Louisiana 1998).
  • Agreeing with the recommendation of the Commission on Judicial Conduct, the Massachusetts Supreme Judicial Court suspended a judge for 3 months without pay and publicly reprimanded him for (1) routinely failing to properly advise defendants during plea colloquies even though he knew the legal requirements and (2) an ex parte communication to another judge that caused the other judge to dismiss an abuse prevention order she had issued. In the Matter of Markey, 696 N.E.2d 523 (Massachusetts 1998).
  • Adopting the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge from office for making public misrepresentations at a press conference, attempting to introduce a fraudulent letter into evidence in a Commission hearing, and, throughout the proceedings, engaging in conduct that was inappropriate, unprofessional, and demonstrated a lack of respect for the proceedings. In re Ferrara, 582 N.W.2d 817 (Michigan 1998).
  • Following the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court suspended a non-lawyer judge for 90 days without pay and fined him $1,500 for assaulting a defendant in the courtroom and directing profane language at the defendant during the altercation. Commission on Judicial Performance v. Guest, 717 So. 2d 325 (Mississippi 1998).
  • Accepting the recommendation of the Commission on Judicial Qualifications, the Nebraska Supreme Court removed a judge from office for consistently using intemperate, threatening language over a long period; sending a death threat to another judge and igniting firecrackers in that judge’s office; using false signatures and odd bond amounts on court documents; and consistently having close contacts with people placed on probation. In re Jones, 581 N.W.2d 876 (Nebraska 1998).
  • The New York State Commission on Judicial Conduct publicly censured a judge for conveying the impression of bias in favor of the prosecution and against defendants, failing to effectuate the rights of defendants at arraignment, having ex parte communications with prosecutors, and displaying intemperate demeanor. In the Matter of McKevitt, Determination (New York State Commission on Judicial Conduct July 27, 1998).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for entering a judgement in a case without holding a trial, administering an oath to the witnesses, or receiving evidence that would support his judgment and even though he knew that the defendant had no legal obligation to pay the amount claimed and that the decision was contrary to law. In the Matter of Degenhardt, Determination (New York State Commission on Judicial Conduct July 27, 1998).

Recent cases

  • Based on a stipulated resolution and the recommendation of the Commission on Judicial Conduct, the Arizona Supreme Court publicly censured a judge for failing to decide a petition for post-conviction relief for over 2 years and filing statements falsely certifying that he did not have any matters under submission that were pending and undetermined for more than 60 days. Inquiry Concerning Jantzen, Order (Arizona Supreme Court June 15, 2018).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for mocking a litigant in posts on his Facebook page; the Commission also ordered the judge to delete the posts and to review an Arizona advisory opinion about social media. Urie, Order (Arizona Commission on Judicial Conduct June 12, 2018).
  • Based on an agreement, the Georgia Supreme Court publicly reprimanded a judge for demanding in a telephone call that a car dealership return a repossessed car and advising the woman from whom the vehicle was repossessed to file a lawsuit that was inconsistent with the law. Inquiry Concerning Anderson (Georgia Supreme Court June 29, 2018).
  • Based on a stipulation and the judge’s resignation and agreement not to serve in judicial office, the Indiana Commission on Judicial Qualifications concluded its investigation of allegations that a judge had inappropriate relationships with court employees and attorneys during court hours and on court property. In the Matter of Shoulders, Stipulation and agreement for resolution of investigation (Indiana Commission on Judicial Qualifications May 2, 2018).
  • Based on an agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for sharing a news story on her Facebook account with the comment, “This murder suspect was RELEASED FROM JAIL just hours after killing a man and confessing to police.” In re the Matter of McLaughlin, Agreed order of public reprimand (Kentucky Judicial Conduct Commission June 12, 2018).
  • Based on an agreement, the Nevada Commission on Judicial Discipline suspended a judge for 3 months without pay, publicly censured him, and fined him $1,000 for failing to supervise a judicial assistant who was not performing duties; failing to follow established court practice and procedure and cooperate with other judges and court staff by hiring the judicial assistant; failing to perform his own administrative duties and to answer his phone when on call; and failing to timely respond to phone calls from the Commission’s investigator; the Commission also ordered that the judge attend a National Judicial College course on effective case management. In re Humke, Stipulation and order of consent to discipline (Nevada Commission on Judicial Discipline June 8, 2018).
  • Following a hearing, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for holding a mother in contempt of court without notice and an opportunity to be heard and changing custody of a child to sanction the mother; the Commission also ordered that the judge attend a course on managing challenging family law cases at the National Judicial College. In the Matter of Hughes, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline June 18, 2018), appeal filed.
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for entering a property without the owner’s permission, taking photographs, posting the photos on Facebook with disparaging comments about the owner, and failing to promptly remove the offensive Facebook post despite assuring the Commission that he would do so. In the Matter of Fisher, Determination (New York State Commission on Judicial Conduct June 26, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a complaint alleging that a non-lawyer judge had been rude to the defendant in a civil case and engaged in an ex parte conversation with the claimant. In the Matter of Kline, Decision and order (New York State Commission on Judicial Conduct June 13, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded (1) its investigation of a complaint that a judge had failed to re-register as an attorney or to pay the required biennial registration fee and (2) a proceeding in which there was a pending recommendation that the judge be removed for failing to timely report or remit court funds to the comptroller and the town and failing to cooperate in the Commission investigation. In the Matter of Siegal, Decision and order (New York State Commission on Judicial Conduct June 14, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded an investigation of a complaint that a non-lawyer judge was not maintaining a residence in the town where he presides, as required, but was residing in his mother’s former house. In the Matter of Brooks, Decision and order (New York State Commission on Judicial Conduct June 13, 2018).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate based on his arrest for possession of a substance that he believed was oxycodone. In the Matter of Drose (South Carolina Supreme Court June 13, 2018).
  • Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against a former judge; the Commission had initiated formal proceedings alleging that the judge had intentionally or knowingly possessed Tussinonex, ecstasy, and marijuana; facilitated the purchase of Tussinonex without a prescription; knowingly engaged in sexual misconduct based on the payment of a fee; and failed to cooperate with Commission investigations. Green, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct April 18, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for posting campaign advertisements for other candidates on his Facebook page and sitting in the campaign tent of 3 candidates during the election. Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for participating in a joint campaign fund-raising event with the elected district attorney and authorizing the use of his name, title, and photograph on advertisements for the event. Public Warning of Duhon (Texas State Commission on Judicial Conduct June 28, 2018)
  • Adopting a judicial conduct panel’s undisputed findings of fact and conclusions of law, the Wisconsin Supreme Court suspended a court commissioner for 15 days without pay for speaking with the police chief about a petition for a harassment injunction and reviewing the police file about the conflict between the parties, who are neighbors, and falsely telling the parties that law enforcement and the municipal court judge had agreed that any further calls to the police would result in disorderly conduct tickets to all involved that would be sustained by the judicial system regardless of the circumstances. In the Matter of Calvert (Wisconsin Supreme Court June 15, 2018).

Throwback Thursday

25 years ago this month:

  • Granting the application for discipline filed by the Judicial Qualifications Commission, the Iowa Supreme Court publicly reprimanded a judge for a series of inappropriate and unnecessary characterizations of persons appearing before him, for example, describing a witness as a “beer-bellied, full-bearded, unemployed, seedy, coverall-clad lout.” In the Matter of Jenkins, 503 N.W.2d 425 (Iowa 1993).
  • Adopting the recommendation of the Judiciary Commission, the Louisiana Supreme Court involuntarily retired a judge who had continued to hold office beyond the mandatory judicial retirement age of 70. In re Wingerter, 621 So. 2d 1098 (Louisiana 1993).
  • The New Jersey Supreme Court suspended a judge for 60 days without pay for a pattern of sexually harassing behavior that was personally offensive to an employee. In the Matter of Seaman, 627 A.2d 106 (New Jersey 1993).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for twice signing his dead mother’s name to a credit card application to procure a user’s card for himself and, when questioned by bank investigators, repeatedly implying his mother was alive. In the Matter of Mazzei, 618 N.E.2d 123 (New York 1993).
  • The New York State Commission on Judicial Conduct removed a judge who used a shotgun, physical threats, vulgarities, and verbal intimidation in a personal dispute over property rights, which led to his convic­tion on menacing, trespass, and criminal mischief charges. In the Matter of Gloss, Determination (New York State Commission on Judicial Conduct July 27, 1993).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for (1) filing his 1990 financial disclosure statement 10 months late despite 2 notices from the Ethics Commission, (2) filing an incomplete 1991 statement and failing to complete it for over 6 months even after 2 notices and even though he knew the Commission was investigating him, (3) failing to answer letters from Commission staff about his financial disclosure statement, (4) failing to open a letter from the Commission and, consequently, failing to appear as requested, and (5) failing to open 9 letters received in his chambers from attorneys, litigants, and witnesses concerning matters pending before him and failing to have his staff open the letters.  In the Matter of Burstein, Determination (New York State Commission on Judicial Conduct July 27, 1993).
  • Agreeing with the findings of the Board of Commissioners on Judicial Standards, the South Carolina Supreme Court publicly reprimanded a judge for (1) twice disclosing to newspapers confidential correspondence from the Board regarding its investigation; (2) allowing signs favoring 2 candidates for the Republican nomination to the state senate to be placed on his property, sponsoring and attending a barbecue for one of the candidates, and allowing his photo to appear in a newspaper endorsement for the second candidate; and (3) interrupting a town council meeting, levying accusations of criminal conduct against the town police chief, and calling on the council to suspend the chief. In the Matter of Martin, 434 S.E.2d 262 (South Carolina 1993).

Independent factual investigations IRL

Although judges’ using the internet or social media to independently investigate facts at issue in cases has been a hot topic recently (see discussion here, for example), judges still violate the prohibition the old-fashioned way as a recent judicial discipline case demonstrates.

The Wisconsin Supreme Court suspended a court commissioner for 15 days without pay for speaking with the police chief and reviewing the police file about the conflict between neighbors behind a pending case and then falsely telling the parties that law enforcement and the courts had agreed that any further calls to the police would result in all involved receiving disorderly conduct tickets that would be sustained regardless of the circumstances.  In the Matter of Calvert (Wisconsin Supreme Court June 15, 2018).

In September 2015, as part of an ongoing dispute between next-door neighbors, a petition for a harassment injunction and a request for a temporary restraining order was filed alleging that the respondents had repeatedly harassed the petitioners, including pointing surveillance cameras at their house.  Before holding a hearing or deciding whether to enter a TRO, the commissioner, on his own initiative, went to the police station and obtained from the police chief a summary of the conflicts between the parties and their contacts with the police department.  The police chief told the commissioner that he had visited the respondents’ residence and that there were no cameras pointed at the petitioners’ property.  The commissioner also reviewed the neighbors’ “contact file” kept by the police department, including police statements, and asked the police chief if there was any basis for a citation.

In denying the petitioners’ request for a temporary restraining order, the commissioner considered the information provided by the police chief and in the police file.

At a hearing regarding the preliminary injunction, after the testimony of several witnesses and arguments from both sides, the commissioner denied the request without first disclosing his contact with the police.  The commissioner then stated:

What is going to happen, though, is that anything between these two neighbors is going to stop as of today.  Period.  End of story.  And how it’s going to stop is this:  I’ve already talked to [the police] chief [ . . . ] as of yesterday.  What’s going to happen is, if you call the Oconto Police Department, or the Sheriffs Department, or, you call them, they are going to come out, they are not going to have to listen as to what took place because if they get called out to either of your places, complaining about each other, what’s going to happen—they’re going to issue mutual disorderly conduct tickets.  So, I don’t care who calls.  You call, either of you call, they are going to come out, they are going to issue a disorderly conduct to you and they are going to issue a disorderly conduct to you.  Alright?

Now, if you wish to take that ticket into municipal court, and argue about whether you were disorderly or not, go ahead because I’ve already talked to [the municipal judge] in Oconto [ . . . ] and I’ve told him the problem with this situation, enough is enough, it’s been going on for twelve/thirteen years, I’m putting an end to it, and I told him, “I don’t care what either one of you say.”  He’s going to find you guilty and issue you a fine.  He knows that, he’s with it, he’s tired of it, the Police Department’s tired of it, alright?  If you want to de novo his decision, which you have a right to do[,] under the statute[,] upon finding you guilty, that’s fine because it’ll get de novo’d and it’ll get de novo’d up here to me and guess what’s going to happen?  I’m going to uphold it and you’re both going to pay a fine.

Now, with regard to a court commissioner, you have a right to de novo that, too.  Go ahead because I’m gonna tell either one of these circuit court judges, “Enough is enough.  This is how we’re going to handle it.”  I want nothing further going on.

In fact, the commissioner had not directed the police chief to issue mutual disorderly conduct citations to the neighbors regardless of fault and the municipal judge had not agreed to find the neighbors guilty regardless of fault.

The Court emphasized that the misconduct was “undeniably serious,” stating “a judge’s objectivity and impartiality are critical to the proper functioning of the judicial system.”  It explained:

[The commissioner’s] behavior was far from objective and impartial.  He independently investigated the facts of a case pending before him—an effort that included engaging in an ex parte communication with the police chief.  He then lied to the parties in a particularly manipulative manner, falsely claiming that he had communicated with individuals in the judicial and law enforcement systems in such a way that the parties were doomed to failure and future legal troubles should they ever seek additional recourse.  We cannot abide such assurances by a judge to rig the judicial and criminal justice systems against its participants.

 

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a hearing officer for berating a litigant for attempting to cite Arizona law in a small claims proceeding, advising the parties against “quoting any of the rules or regulations of Arizona law,” and employing a bullying tone and demeanor throughout the hearing. Madanick, Order (Arizona Commission on Judicial Conduct June 27, 2013).
  • The Kentucky Judicial Conduct Commission publicly reprimanded a judge for granting an ex parte verbal request by a paternal grandmother to take children involved in a domestic matter to a family gathering without notice to the parties or a hearing, even though he was aware that a domestic violence order prohibited the father from having visitation with the children. In re Langford, Findings of Fact, Conclusions of Law, and Final Order (Kentucky Judicial Conduct Commission June 17, 2013).
  • Affirming the Judicial Tenure Commission’s findings of fact and conclusions of law, the Michigan Supreme Court removed a judge from office for (1) committing perjury in a hearing in her divorce case; (2) signing her former attorney’s name on legal documents and filing those documents without the attorney’s permission; and (3) making numerous misrepresentations under oath during the Commission proceedings. In re Adams, 833 N.W.2d 897 (Michigan 2013).
  • Accepting an agreed statement of facts and stipulation, the New York State Commission on Judicial Conduct publicly admonished a judge for sending an unsolicited letter on judicial stationery to the division of parole on behalf of the son of a family acquaintance. In the Matter of Smith, Determination (New York State Commission on Judicial Conduct June 19, 2013).
  • Based on an agreed statement of facts and stipulation, the New York State Commission on Judicial Conduct publicly censured a judge for filing his 2010 financial disclosure statement 11 months late and failing to cooperate with the Commission investigation. In the Matter of McAndrews, Determination (New York State Commission on Judicial Conduct June 18, 2013).

A universe of worthy messages:  Symbols on robes and signs in the courthouse

In a recent opinion, the Arizona judicial ethics committee advised that:

  • Judicial robes should be free of adornments,
  • Courts may display signs stating that harassment, bias, or prejudice on the basis of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or affiliation are strictly prohibited in the courthouse, but
  • Courts and judicial officers should not “single out any particular category of citizens in offering such assurances.”

Arizona Advisory Opinion 2018-3.

A judge had asked the committee “whether judicial officers in the juvenile court may wear small rainbow-flag pins (or similar symbols) on their robes and post ‘safe place’ placards on courtroom doors that convey acceptance to LGBTQ youth.”  Those measures had been proposed by a court working group on the needs of lesbian, gay, bisexual, transgender, and questioning youth in the child welfare and juvenile justice systems.  Noting that “one barrier to LGBTQ youth seeking services is their reticence to trust those involved in the systems,” the working group suggested that certain symbols and signs may reassure “LGBTQ youth that they are in a safe place and dealing with safe people” when at the court.

The judicial ethics committee concluded, however, that, “[n]o matter how worthy the cause suggested by items such as a rainbow pin, domestic violence awareness ribbon, cross, or military veteran’s insignia, the judicial robe should not serve as a platform for conveying messages or for communicating a judge’s personal beliefs or extrajudicial activities.”

The judicial robe powerfully and unmistakably invokes the prestige of judicial office.  Using that prestige to express support for any particular message, organization, cause, or category of citizens necessarily excludes a large universe of equally worthy messages, organizations, causes, and citizens who might feel reassured upon encountering a judge displaying symbols meaningful to them. . . .

Promoting confidence in the independence, integrity, and impartiality of the judiciary requires that judicial robes be free of symbols, pins, or messages, instead conveying the singular and uniform message that a judge’s fidelity is to the law and to equal justice for all who come before the court.

The opinion cited Michigan Advisory Opinion JI-68 (1993) (a judge may participate in health education and social awareness activities such as AIDS prevention and encourage other persons to support the same cause but should not wear on the judicial robe a symbol indicating the judge’s support or opposition to a particular political, social, or charitable/civic cause, for example, a red AIDS awareness ribbon) and Rule 2.340 of the Florida Rules of Judicial Administration (“During any judicial proceeding, robes worn by a judge must be solid black with no embellishment”).

Similarly, the opinion advised that, “[c]oncerns regarding impartiality and avoiding the appearance of bias likewise control the question about displaying ‘safe place’ signs or symbols in court facilities.  Courthouses should be safe venues for everyone, and they should also be perceived in that fashion.”

Judges may communicate the judiciary’s commitment to prohibiting bias, prejudice, and harassment by posting signs or placards in courthouses that communicate Rule 2.3’s message.  But . . . signs or placards should not single out a subset of the groups enumerated in Rule 2.3 when offering such assurances.

Rule 2.3(B) of the code of judicial conduct provides:  “A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.”