Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for 3 ex parte contacts with a defense attorney in a capital murder case. Public Admonishment of Maciel (California Commission on Judicial Performance December 1, 1997).
  • The Indiana Commission on Judicial Qualifications publicly admonished a judge for releasing a defendant being held on his own recognizance without giving the prosecution a chance to be heard and making the unsubstantiated entry in the record that the release was due to the state’s failure to proceed. Admonition of Evrard (Indiana Commission on Judicial Qualifications December 31, 1997).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for an intemperate diatribe that included name-calling and dehumanizing remarks during pre-trial plea discussions in a case. In the Matter of Hannigan, Determination (New York State Commission on Judicial Conduct December 17, 1997).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for attempting to coerce guilty pleas in traffic cases, failing to hold public court sessions as required by law, and a practice of receiving ex parte communications from police officers concerning the merits of traffic cases before him, including representations that the actual speed that defendants had been driving was greater than the speed charged. In the Matter of Westcott, Determination (New York State Commission on Judicial Conduct December 17, 1997).
  • The New York Court of Appeals upheld the removal of a judge for displaying bias and improper demeanor in a number of cases, including commenting to his court clerk that “every woman needs a good pounding now and then” and stating to his clerk and another judge that he felt that orders of protection “were not worth anything because they are just a piece of paper,” were “a foolish and unnecessary thing,” and were “useless” and of “no value.” In the Matter of Roberts, 689 N.E.2d 911 (New York 1997).
  • The New York Court of Appeals publicly censured a judge for summarily disposing of 2 criminal cases without affording the prosecution the right to be heard, dismissing 1 charge as a favor to the defendant and his wife who were social acquaintances, and giving evasive and disingenuous testimony before the State Commission on Judicial Conduct. In the Matter of Skinner, 690 N.E.2d 484 (New York 1997).
  • Based on a stipulation of facts, the North Carolina Supreme Court publicly censured a former judge for (1) making handwritten entries of “guilty” in the cases of 2 individuals who had indicated their intent to plead not guilty; (2) attempting to have a defendant plead guilty with the knowledge that the defendant was represented by counsel who was not present in court; (3) refusing to credit a defendant with jail time served as required by law; and (4) making statements and taking actions, in and out of court, that some could consider as less than patient, dignified, and courteous to attorneys, witnesses, litigants, and court personnel. In re Renfer, 493 S.E.2d 434 (North Carolina 1997)

 

Another Facebook fail

The West Virginia Judicial Investigation Commission publicly admonished a judge for posting on his Facebook page a photo showing him conducting an initial appearance.  Public Admonishment of Hall (West Virginia Judicial Investigation Commission October 31, 2017).

On September 5, 2017, the judge arraigned a woman on felony financial exploitation of the elderly and related charges for allegedly forging her dying mother’s will to receive more than $1,000,000.  WSAZ-TV filmed the arraignment and ran a story in which the judge prominently appeared.

The judge posted on his Facebook page a still photo of the video from the TV station’s story.  The photo showed him seated in court conducting the appearance with the caption, “Police:  Woman Exploits over One Million Dollars from Dying Mom.”

The judge’s post elicited several negative posts from members of the public, including “[d]isgusting,” “[h]ang ‘em high Brent,” “[h]opefully you set a high bond,” and “I didn’t think anything could be lower than rescinding DACA.  I was wrong.”  The comments also included statements of support for the judge’s handling of the arraignment, such as “[g]o Brent” and “[g]et ‘em Brent,” and [t]hat face!  Good one.”

The Commission “strongly” disagreed with the judge’s argument that he had not violated the code of judicial conduct because he posted the photo “without any comment, opinion, or statement.”  The admonishment explained:

There is an old maxim that “a picture is worth a thousand words.”  The saying is deigned to convey the concept that a single image often expresses an intricate idea better than any written description.  By placing that still photo on his Facebook page, Respondent expressed to his Facebook friends the woman’s perceived guilt in a louder voice and in a more certain tone then if he had actually written the words himself.

The Commission also found that the post was “designed to elicit responses from his friends because that’s what Facebook is meant to be – an alternate public means of communication,” noting “[t]he fact that the friends’ comments were largely negative is no surprise, and Respondent’s failure to remove them constituted a tacit endorsement of the same.”  The Commission emphasized that the judge’s action “was certainly contrary to the neutral and detached demeanor of all judges but was undoubtedly popular with his friends.”

The concern that a judge may be posting on social media with an eye more to engaging an audience than promoting confidence in the judiciary was also expressed in a 2015 public reprimand from Minnesota.  In the Matter of Bearse, Public reprimand (Minnesota Board on Judicial Standards November 20, 2015).  One of the judge’s Facebook posts described a medical school graduate’s petition to expunge her conviction for disorderly conduct because she could not be licensed with the conviction on her record.  The judge commented, “listen to this and conclude that lawyers have more fun than people.”  He then related that the conviction was based on the woman’s assault on her boyfriend whom she had found having sex with her best friend.  He stated that he granted the petition although “[s]he is about two years early based on our new statute” and if the prosecution appealed, “which they will not, I think I will be reversed.”

Comments on the judge’s post included, “I am always heartened by the application of common sense.  An excellent decision, in my opinion,” and “You’re back in the saddle again Judge.”  The Board found that the favorable comments could create the appearance that the judge’s “decisions on cases could be influenced by the desire to make a good impression of himself on his Facebook page” and noted its concern that the judge was “putting his personal communication preferences above his judicial responsibilities.”

The summer and fall issues of the Judicial Conduct Reporter were devoted to the issue of judicial ethics and social media.

Throwback Thursday

25 years ago this month:

  • Adopting the recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge who, during a hearing in open court, displayed a handgun and loaded it, questioned an unruly and threatening defendant, and then kept the loaded handgun in a zippered pouch on the bench. Inquiry Concerning Fleet, 610 So. 2d 1282 (Florida 1992).
  • Adopting the recommendations and findings of the Judicial Tenure Commission based on a stipulation and the judge’s consent, the Michigan Supreme Court publicly censured a judge who, after being denied access to a flight because he and his wife were not at the gate on time, was verbally abusive to the airline representative and grasped her braided hair when she turned to walk away, causing her head to jerk backwards. In the Matter of O’Brien, 494 N.W.2d 459 (Michigan 1992).
  • Adopting the recommendations and findings of the Judicial Tenure Commission based on a stipulation and the judge’s consent, the Michigan Supreme Court publicly censured a judge who made 7 harassing and obscene telephone calls to a man regarding the man’s relationship with the judge’s ex-wife and became involved in a verbal and physical altercation with the man in public. In the Matter of Thomas, 494 N.W.2d 458 (Michigan 1992).
  • Adopting in part the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly censured a judge who had appeared on a nation-wide television program, and discussed specific facts and issues of a child custody case in which he had presided when an appeal from his decisions was pending. In the Matter of Hey, 425 S.E.2d 221 (West Virginia 1992).

Fall issue of the Judicial Conduct Reporter

The fall issue of the Judicial Conduct Reporter has been published and is available to download.  All past issues of the Reporter are also available on-line as free downloads, and there is an on-line index of Reporter articles.  You can sign up to receive notice when a new issue is available.

The issue has articles on abusing the prestige of office to attempt to obtain a favor, communications by a trial judge with a reviewing court, holiday gifts and parties, and a former judge’s use of the judicial title.  It also has summaries of recent cases in which judges were disciplined for giving interviews about a pending case; failing to disqualify from cases involving an attorney with whom the judge had a support relationship; and directing insulting, demeaning, and humiliating comments and gestures to children.

The article on requesting favors begins:

A judge’s appeal for a favor from police, prosecutors, or other judges is a classic example of “abus[ing] the prestige of judicial office to advance the personal or economic interests of the judge or others” in violation of Rule 1.3 of the American Bar Association 2007 Model Code of Judicial Conduct.  The crux of the misconduct is taking advantage of access not available to non-judges and/or expecting special consideration not accorded to the general public.

Using recent cases involving attempts by judges in person or on telephone calls to influence police officers, prosecutors, court staff, and/or other judges, the article demonstrates that “an explicit request, an express reference to the judicial office, or acquiescence by the other person are not necessary to prove a violation.”

Demonstrating the chronic nature of the problem, several additional cases about favor-seeking have been issued since the article was written.

  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld the removal of a judge for seeking the advice of another judge about her son’s case and acquiescing in his offer to communicate ex parte with the judge who was handling the case. In re Roca (Pennsylvania Supreme Court November 22, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for communicating in an ex parte e-mail and phone call with the judge presiding over her nephew’s criminal case and voluntarily testifying as a character witness on her nephew’s behalf at his probation revocation hearing, in addition to other misconduct. Public Reprimand of Hawthorne (Texas State Commission on Judicial Conduct November 9, 2017).

In addition, 2 judges were recently sanctioned for written communications on behalf of others.

  • The New York State Commission on Judicial Conduct publicly censured a judge for signing his name and judicial title beneath a defendant’s signature on a letter requesting that another judge change a plea for a traffic infraction. In the Matter of Sullivan, Determination (New York State Commission on Judicial Conduct March 13, 2017).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) invoking her judicial title and position in a letter on court stationery she wrote on behalf of her childhood babysitter to be filed in connection with a motion to vacate the babysitter’s conviction and (2) writing 2 affirmations on behalf of her son to be filed in the appellate division in connection with his criminal case. In the Matter of Ramirez, Determination (New York State Commission on Judicial Conduct May 4, 2017).

As the New York Commission explained in Ramirez, “[w]hen a litigant is the beneficiary of influential support from a judge based on personal connections, it creates two systems of justice, one for the average person and one for those with ‘right’ connections, and undermines public confidence in the impartial administration of justice and in the integrity of the judiciary as a whole.”  The Commission emphasized:

When asked to provide a letter or similar communication on behalf of a family member, friend or acquaintance, every judge must be mindful of the importance of adhering to the ethical standards intended to curtail the inappropriate use of the prestige of judicial office . . . .  Difficult as it may be to refuse such requests, the understandable desire to provide assistance and support must be constrained by a judge’s ethical responsibilities, including the duty to act “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” . . . .

Finally, the Virginia Supreme Court removed a judge for contacting 2 potential witnesses prior to his wife’s trial on federal corruption charges.  Judicial Inquiry and Review Commission v. Pomrenke (Virginia Supreme Court November 27, 2017).  The judge had sent his wife’s boss a handwritten note, with his judicial business card, that “was intended to make his wife’s employment secure” and “reflected an intent to influence a potential witness” by suggesting the boss would agree she “is absolutely honest, truthful, ethical, and innocent.”  In an attempt “even more overt in its intent to influence a witness,” the judge also left a voicemail message for another employee 3 days before she was expected to testify, asking her to “slip in” remarks that would be favorable to his wife, “even though it’s not directly in response to the questions.”  The Court found the judge had violated the prohibition on lending the prestige of office to advance private interests.

Throwback Thursday

Delegation resolution admonitions

November’s Throwbacks include a rare group judicial discipline:  25 years ago, in November 1992, 11 town court justices in New York were admonished for the same misconduct – improper delegation of bond decisions to the sheriff.

The 11 judges had signed a resolution passed by the Cayuga County Magistrates’ Association in February 1983 that authorized the county sheriff’s department to review and approve bail bonds presented by certified bondsman at the county jail and authorizing the sheriff to release the defendants on the judges’ behalf.  In accordance with that authority, the sheriff had released approximately 74 defendants who had been committed to jail by the judges.  After the defendants were released, the judges received the bail bonds from the sheriff’s department but, even though the bonds did not comply with statutory requirements, did not revoke bail, demand justifying affidavits, or take any other corrective action.

Emphasizing that, under state statutes, it was the judges’ responsibility to ensure that a bail bond assured that a defendant would return to court, the New York State Commission on Judicial Conduct stated that judicial duties cannot be delegated to jailers or other non-judicial officers.  The Commission concluded that, by authorizing the sheriff’s department to perform a judicial function and permitting a jailer to release defendants on legally insufficient bonds, the judges had not been faithful to the law and had not diligently performed their judicial duties.  New York State Commission on Judicial Conduct 1993 Annual Report, at 10.  See, e.g., In the Matter of Lockwood, Determination (New York State Commission on Judicial Conduct November 4, 1992) (judge permitted jailer to release 20 defendants on legally insufficient bail bonds).

For an additional discussion of “Improper delegation of adjudicative responsibilities,” see the article in the fall 2016 issue of the Judicial Conduct Reporter.  See also In the Matter of Hayes, Final judgment (Alabama Court of the Judiciary January 6, 2017) (delegating judicial authority to a private probation company in addition to other misconduct).

 

Recorded conversations

In 2011 and 2012, the FBI was investigating Philadelphia Municipal Judge Joseph Waters, including wiretapping his telephone communications.  Eventually, he pled guilty to federal mail fraud and honest services wire fraud for asking other judges for favors on behalf of campaign supporters.  In January 2016, the Pennsylvania Court of Judicial Discipline removed him from office.  In October 2016, that court removed former judge Joseph O’Neill based on his guilty plea to lying to a federal agent for denying that he had not been contacted by then-judge Waters about a case.

Last week, the Pennsylvania Supreme Court affirmed the removal of 2 more judges for their conversations with then-judge Waters and related misconduct.  Judge Angeles Roca was removed for seeking his advice about her son’s case and acquiescing in his offer to communicate ex parte with Judge Dawn Segal, who was handling the case.  In re Roca (Pennsylvania Supreme Court November 22, 2017).  Judge Segal was removed for listening to then-judge Waters’ requests for favorable treatment for parties in 3 cases (including that of Judge Roca’s son) and finding in favor of those parties.  In re Segal (Pennsylvania Supreme Court November 22, 2017).  Under the state constitution, the Court reviews whether sanctions imposed by the Court on Judicial Discipline are “lawful.”

The FBI recorded Judge Segal talking with then-judge Waters about 1 criminal case and 2 small claims case.  In the discipline proceedings, the parties stipulated that the recorded telephone conversations demonstrated that then-judge Waters used his position to request special consideration for litigants in an attempt to influence Judge Segal’s decisions; that Judge Segal entertained the ex parte requests for favorable treatment; and that her decisions ultimately favored those litigants.  In each case, the judge had called then-judge Waters and told him that she had complied with his request, for example, stating, “I figured it out and I took care of it” about the small claims case involving Judge Roca’s son.

The Court rejected Judge Segal’s argument that she had not ruled any differently based on the conversations and, therefore, had not committed misconduct.  The Court emphasized that the judge “knew that she had been approached by a corrosive influence, yet she remained in her decisional role while acting as if she was acceding to the improprieties.  Litigants can have little confidence that a judge proceeding in this way is rendering fair and impartial rulings; rather, they may reasonably believe that such a jurist is doing precisely what she said she was doing by engaging in favoritism.”

In June 2012, the FBI recorded Judge Roca asking then-judge Waters for advice after Judge Segal had denied her son’s pro se petition to open a $5,000 default judgment entered against him when he did not appear for a hearing on a complaint for failure to pay a business privilege tax.  Waters offered to talk to Judge Segal if a motion for reconsideration was filed.  After her son filed the motion, Judge Roca called then-judge Waters and, based on their conversation, understood that he would call Judge Segal on behalf of her son.  That day, Judge Segal reviewed the petition for reconsideration, issued a rule to show cause why the relief should not be granted, and then called Waters.  (The default judgment was ultimately vacated, and the case was withdrawn upon payment of $477 in taxes.)

On appeal, Judge Roca did not challenge the finding that she violated the code of judicial conduct, brought the judicial office into disrepute, and prejudiced the proper administration of justice.  However, she argued that removal was not lawful in light of precedent and the facts of this case, relying on decisions in which the Court of Judicial Discipline had imposed a lesser sanction for misconduct that “she views as equivalent to (or worse than) her own.”

The Pennsylvania Supreme Court acknowledged that the “concept that the penalty decided upon by the CJD should be subject to a proportionality requirement is not without some appeal” but stated “no such mandate is contained, or even suggested” in the constitution.  The Court held that the Court of Judicial Discipline “has wide discretion to fashion the appropriate penalty once it finds a predicate violation” and that “[s]imilarity of misconduct does not require identicality of sanction, for there are other factors that bear on that decision, including mitigating and aggravating considerations and how a particular jurist’s misconduct undermines public confidence in the judiciary.”

The Court did hold that, “[b]ecause the CJD may lawfully impose discipline warranted by the record, the unavoidable corollary is that a sanction which is not warranted by the record is not lawful and, as such, may be disapproved by this Court,” permitting the Court “to perform a final check in cases of an infraction met with an unreasonably harsh penalty completely out of proportion to the misconduct involved.”  The Court held that regardless whether it would have removed the judge from office if it were deciding in the first instance, her removal was not unwarranted by the record.

In a dissent, 1 justice acknowledged that no 2 “cases are perfectly identical,” but stated that the challenge of analyzing, analogizing, or distinguishing one case by reference to prior cases does not relieve the Court of Judicial Discipline “from its inherent obligation to do so.”

Absent fidelity to stare decisis, the CJD may arbitrarily sanction a jurist and, without the availability of meaningful appellate review, this Court has no ability to reverse it.  At a minimum, it must be this Court’s function, when reviewing a CJD sanctions ruling, to confirm that in reaching its decision, the lower court has engaged in a lawful judicial process which by necessity involves the application of stare decisis.  In the instant matter, the CJD removed an elected judicial official from office.  It imposed this sanction without any meaningful discussion of prior precedent.  As such, the sanction imposed in this case is ipso facto unlawful.

The dissenting justice argued that the removal order should have been vacated and remanded “for an opinion in which the CJD thoroughly examines its precedent before imposing a sanction in this case (and would require the same in every case it adjudicates).”  The same justice dissented for the same reasons in In re Segal, noting that, although the 2 judges’ misconduct differed materially, the Court of Judicial Discipline imposed the same sanction “while employing substantially identical language . . . .”

Throwback Thursday

5 years ago this month:

  • Based on a joint motion to resolve charges, the Alabama Court of the Judiciary reprimanded and censured a judge for failing to recuse himself from his son’s traffic violation case and dismissing the case. In the Matter of Durward, Reprimand and Censure (Alabama Court of the Judiciary November 21, 2012).
  • Based on the recommendation of the Commission on Judicial Conduct and a stipulated resolution, the Arizona Supreme Court censured a former judge for accompanying his niece while she collected nominating petition signatures for a candidate and for speaking at a political meeting. In the Matter of Pearce, Order (Arizona Supreme Court November 26, 2012).
  • With the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for assuming the role of the prosecutor when she attempted to negotiate a resolution to a defendant’s case after the defendant inquired about the status of his traffic infraction ticket and driver’s license suspension and for several ex parte conversations with the prosecutor about the same case. Public Admonition of Hagerty (Indiana Commission on Judicial Qualifications November 19, 2012).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a judge for telling a defendant, “I’ll beat your ass if you call me a liar.” In the Matter of Martin, 734 S.E.2d 165 (South Carolina 2012).