More social media fails

Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 18 months without pay for soliciting funds for the Red Cross on his Facebook page, in addition to other misconduct.  In the Matter of Johns (South Carolina Supreme Court October 13, 2021).

In September 2018, the judge posted on his Facebook page:  “For my birthday this year, I’m asking for donations to American Red Cross.  I’ve chosen this nonprofit because of food, water, and much more provided for those affected by Hurricane Florence in NC & SC.”  In the introduction to his Facebook page, the judge identified himself as a probate judge and stated that he managed the Oconee County Probate Court.

In 2016, the Court had suspended the judge for 6 months based on his social media posts commenting on a pending matter, endorsing a presidential candidate, and fundraising for a local church.  In re Johns, 793 S.E.2d 296 (2016).  The Court noted that, at the time of the previous sanction , the judge had removed any reference to himself as a judge from his Facebook page, stated that he was “deeply embarrassed,” and assured the Court that, in the future, on Facebook or any other social media, he would not refer “to anything involving his court,” make political posts, or post fundraising information.  In the current case, the Court stated:  “Despite these assurances, Respondent restored the reference in his Facebook profile identifying himself as a Probate Judge with the Oconee County Probate Court and again used social media for fundraising purposes.  In light of Respondent’s prior misconduct, we find a substantial suspension from judicial duties is appropriate.”

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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 justice of the peace; in a notice of formal proceedings, the Commission had alleged that the judge, in addition to other misconduct, made Facebook posts or allowed posts to appear on her Facebook page that (a) promoted, advertised, and/or expressed her support for consumer products, businesses, and other commercial endeavors; (b) indicated her support for and association with law enforcement, the Blue Lives Matter movement, and the U.S. Border Patrol; (c) expressed her contempt or disdain for criminal defendants; (d) promoted fundraising efforts by civic, charitable, and educational organizations and made directed solicitations for personal and local causes; and (e) promoted the campaigns of several candidates for public office.  Fernandez, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct October 22, 2021).

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The California Commission on Judicial Performance publicly admonished a judge for (1) participating in a Facebook group called “Recall George Gascón,” referring to the county district attorney, and (2) posting tweets, re-tweeting content, and liking tweets by others that expressed partisan views on controversial issues, suggested bias against particular classes of people, and were “undignified and indecorous.”  In the Matter Concerning O’Gara, Decision and order imposing public admonishment (California Commission on Judicial Performance September 14, 2021).

3 days after George Gascón was sworn in as the new District Attorney of Los Angeles County, the judge used his personal Facebook account to join a recently created Facebook group called “Recall George Gascón.”  Subsequently, he posted comments that engaged with group members in response to other members’ posts and “liked” 2 comments by other group members. 

Finding that the judge’s Facebook activity gave the appearance of bias against the District Attorney, the Commission concluded:  “The judge was an active participant in a group with more than 16,000 members, formed to oppose an elected official, giving the appearance that he endorsed the group’s stated goals and activity.  Judge O’Gara posted remarks expressing a partisan viewpoint, and ‘liked’ other users’ comments expressing similarly partisan viewpoints.”  The Commission also found that because the judge heard cases prosecuted by the district attorney’s office while he participated in the group, the judge’s “Facebook activity constituted making public comments about pending or impending proceedings in a court.”

The judge maintained a public Twitter account, with the username @mjogara and the display name “Michael J. O’Gara.”  The Commission’s decision includes screenshots of the judge’s tweets, re-tweets, and likes between 2014 and 2021.  Some of the judge’s tweets or likes were in response to tweets by comedian John Cleese, comedian Jim Gaffigan, actor George Takei, and actor James Woods.

The Commission found that the judge’s Twitter activity gave the appearance of bias and that he “posted undignified, indecorous remarks in response to public figures, and appeared to espouse partisan and controversial viewpoints.”  The Commission also found that the judge liked tweets by other users that “appeared to reflect strong political points of view and opinions on controversial issues” such as immigration, the death penalty, and police reform; suggested bias against people of Chinese descent, victims of sexual assault, Muslims, and immigrants; and “were seemingly critical of those exercising their First Amendment right to protest, such as supporters of the Black Lives Matter movement” and participants in the Women’s March.

In his response to the Commission, the judge expressed contrition and acknowledged that his actions on social media were “inappropriate.” The judge has removed himself from the Facebook group and deleted the Twitter app from his phone and deactivated his account.

Rejecting the judge’s defense that he did not intend his social media activity to act as an endorsement of any specific partisan positions, the Commission stated that, “‘Likes’ are, on their face, indicia that a person likes content.”  The Commission noted that, “Facebook is a forum with over one billion active monthly users” and that “Twitter is a forum with over three hundred million active monthly users, each of whom may, if they wish, screenshot or share content generated by another user.”  By commenting on a Facebook post or tweeting or re-tweeting content, the Commission stated, the judge “effectively distributed material to an unlimited number of persons, over whose actions he had no control.”  The Commission noted that the harm done by the judge’s social media activity was compounded because the judge’s followers “included the official account for the City of Glendale, at least one Los Angeles deputy district attorney, and multiple private attorneys.”

The Commission quoted the California Judicial Conduct Handbook:

Public involvement on either side in ongoing debates about controversial social and political issues is improper.  Such issues (e.g., abortion and same-sex marriage) are frequently the subject of public debate and litigation.  A judge who is politically active may be perceived to have prejudged issues that may come before the courts.  Public involvement politicizes the judicial institution, demeans the judiciary, and impairs judicial independence and impartiality.

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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 ReporterPart 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

10 years ago this month:

  • Pursuant to the judge’s agreement, the Maryland Commission on Judicial Disabilities made public its private reprimand of a judge for misleading attorneys that a case would be tried in less than 24 hours and directing the assignment clerk to create and post a false document setting the case for a jury trial.  In the Matter of McDowell, Private Reprimand (Maryland Commission on Judicial Disabilities October 24, 2011).

Recent cases

  • The California Commission on Judicial Performance publicly admonished a judge for (1) participating in a Facebook group called “Recall George Gascón,” referring to the county district attorney, and (2) posting tweets, re-tweeting content, and liking tweets by other users that contained partisan viewpoints on controversial issues, suggested bias against particular classes of people, and were “undignified and indecorous.”  In the Matter Concerning O’Gara, Decision and order imposing public admonishment (California Commission on Judicial Performance September 14, 2021).
  • Adopting the findings and recommendation of the Commission on Judicial Performance based on a stipulation, the Mississippi Supreme Court publicly reprimanded a judge and fined him $2,500 for making appearances or filing motions in 9 cases more than 6 months after assuming office.  Commission on Judicial Performance v. Watts (Mississippi Supreme Court September 9, 2021).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge without pay for 1 month for making sexist and misogynistic comments that reflected his religious beliefs to a male defendant charged with domestic violence.  In the Matter of Brister, Order (New Jersey Supreme Court September 16, 2021).
  • Based on the judge’s agreement, the Tennessee Board of Judicial Conduct suspended a judge for 30 days with pay for undignified and discourteous comments made in 2 cases on the same day; the judge was also ordered to complete a judicial ethics program addressing demeanor from the bench.  In re Hinson, Order of suspension (Tennessee Board of Judicial Conduct September 7, 2021).
  • The Texas State Commission on Judicial Conduct publicly admonished an appellate justice for, after a jury found a defendant guilty of murdering a little girl in a trial over which the judge had presided while still a trial judge, telling the defendant that he “should die in a locked closet.”  Public Admonition of Burns (Texas State Commission on Judicial Conduct August 19, 2021), appealed to a Special Court of Review.
  • Based on the judge’s consent, a settlement agreement, and a stipulated formal complaint, the Vermont Judicial Conduct Board publicly reprimanded a judge for using her position as assistant judge to approve and receive a $2,000 merit bonus, creating the appearance of impropriety.  In re Ramsey, Stipulated public reprimand with order (Vermont Judicial Conduct Board August 21, 2021).

Virtual National College on Judicial Conduct and Ethics

Remember to register for the virtual National College on Judicial Conduct and Ethics on Thursday and Friday, October 28 and 29, 2021, from 12 to 3:30 EDT/11 to 2:30 CDT/10 to 1:30 MDT/9 to 12:30 PDT & MST.  Held by the Center for Judicial Ethics of the National Center for State Courts, the College will have three one-hour sessions each day presented via Zoom, with 15-minute breaks in between.  The topics to be covered:

  • Determining the appropriate sanction in judicial discipline cases
  • Crossing the line and training to prevent it:  #CourtsToo
  • Abuse of the criminal contempt power and judicial discipline
  • When judges speak up
  • Lessons learned:  A decade plus of judges on social media

See the schedule below.  An abridged, remote version of the biennial College, the virtual College will provide a forum for judicial conduct commission members and staff, judges, judicial ethics advisory committees, and others to learn about professional standards for judges and current issues in judicial discipline.

  • The registration fee is $95 total for both dates, all sessions.  The fee is non-fundable.
  • If you cannot be present for all or part of the College, you can still register to gain access to a recording of the sessions after the College is over.  Only those who pre-register will have access to the recording.
  • If you are registering multiple people, you must register each attendee individually under their name and email address.
  • Attendees will receive two links, one for each day.  Each attendee’s Zoom links will be unique to them.  Please do not share your links with others.
  • You may not receive the email confirming your registration for up to 24 hours.  The email will come from akim@ncsc.org.  Please check your junk or spam folders.  If you have not received it in after 24 hours, please contact akim@ncsc.org.
  • Attendees will need to apply for continuing legal education certification in their state.

Schedule

Thursday October 28

12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
Determining the appropriate sanction in judicial discipline cases – Part 1

1:00-1:15 EDT/12:00-12:15 CDT/11:00-11:15 MDT/10:00-10:15 PDT & MST Break

1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
Determining the appropriate sanction in judicial discipline cases – Part 2

2:15-2:30 EDT/1:15-1:30 CDT/12:15-12:30 MDT/11:15-11:30 PDT & MST      Break

2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
Crossing the line and training to prevent it:  #CourtsToo

Friday October 29

12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
Abuse of the criminal contempt power and judicial discipline

1:00-1:15 EDT/12:00-12:15 CDT/11:00-11:15 MDT/10:00-10:15 PDT & MST Break

1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
When judges speak up

2:15-2:30 EDT/1:15-1:30 CDT/12:15-12:30 MDT/11:15-11:30 PDT & MST                    Break

2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
Lessons learned:  A decade plus of judges on social media

Session descriptions

Determining the appropriate sanction in judicial discipline cases
Thursday October 28
12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
Examining recent cases, participants will “vote” on what sanctions they would have imposed in actual judicial discipline cases and then discuss what factors influenced their vote.  ModeratorsJohn Erlick, Former Superior Court Judge, King County, Washington; Former Member, Washington State Commission on Judicial Conduct • David Sachar, Executive Director, Arkansas Judicial Discipline & Disability.

Crossing the line and training to prevent it:  #CourtsToo
Thursday October 28
2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
When does a joke in the courthouse cross the line into a violation of the code of judicial conduct?  When is a judge responsible for a hostile work environment?  This session will answer these questions and more.  The first part will examine real life examples of sexual harassment by judges, including how humor can be offensive and perceived as unwelcome advances, discrimination, and/or harassment.  Relevant canons will also be discussed.  The second part will address preventative measures and sexual harassment training tailored to judges and court staff.  ModeratorsKimberly Vanover Riley, Partner, Montgomery Jonson LLP, Cincinnati, Ohio  •  Judge Erica Yew, Judge, Superior Court of California; Member, California Supreme Court Committee on Judicial Ethics Opinions  •  Konstantina Vagenas, Director/Chief Counsel, Access to Justice Initiatives, National Center for State Courts.

Abuse of the criminal contempt power and judicial discipline
Friday October 29
12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
Although courts and judicial conduct commissions are generally reluctant to second-guess a judge’s decision to control the courtroom through use of their criminal contempt power, given the liberty interests at stake, judges have been disciplined for over-reacting and for ignoring the procedures designed to ensure that citizens are not thrown in jail precipitously.  This session will consider when an appealable abuse of the contempt power may also constitute sanctionable judicial misconduct.  Participants will also discuss how judges can control the courtroom without using the contempt power.  Moderators:  Michelle Beaty, Special Counsel, Louisiana Judiciary Commission  •  Judge Louis Frank Dominguez, Presiding Judge, Surprise City Court; Chair, Arizona Commission on Judicial Conduct.

When judges speak up
Friday October 29
1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
This session will strive to illuminate the gray area where off-the-bench judicial speech, the code of judicial conduct, and the First Amendment overlap when judges want to criticize court decisions, urge changes in the law, publicly comment on cases, or express their personal views on controversial issues in extra-judicial settings such as social media, law review articles, op-eds, bar association speeches, yard signs, bumper stickers, or t-shirts.  (Campaign speech will not be covered.)  ModeratorsRaymond McKoski, Retired Judge, 19th Judicial Circuit Court; Member, Illinois Judicial Ethics Committee • Robert Tembeckjian, Administrator and Counsel, New York State Commission on Judicial Conduct.

Lessons learned:  A decade plus of judges on social media
Friday October 29
2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
The first judicial discipline case involving Facebook was in 2009.  The numerous cases since demonstrate that judges need more guidance on how the code of judicial conduct applies on-line.  This session will consider the ethical best practices for judges using social media.  ModeratorsJacqueline Habersham, Executive Director, Texas State Commission on Judicial Conduct  •  Cynthia Gray, Director, Center for Judicial Ethics, National Center for State Courts.

Throwback Thursday

20 years ago this month:

  • Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a part-time municipal court judge and fined him $1,500 for (1) his conduct during the representation of a client charged with assaulting his wife and using his official capacity to have a National Crime Information Center criminal history run on the client’s ex-wife’s current husband to use in a child custody hearing subsequent to the divorce; and (2) treating a 17-year-old girl who was a defendant in a traffic case and her mother intemperately and having the mother arrested for contempt.  Commission on Judicial Performance v. Gunter, 797 So. 2d 988 (Mississippi 2001).
  • Based on the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a former judge for soliciting support and votes for his re-election from defendants and attorneys appearing before him during court.  In re Stephenson, 552 S.E.2d 137 (North Carolina 2001).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate for (1) purchasing items from a distraint sale conducted by his office; (2) personally serving documents on parties to actions pending in his court and falsifying the affidavit of service; (3) failing to respond to several circuit court orders requiring him to file returns in appeals from his court; (4) failing to monitor his official accounts, review his official bank statements, or supervise his clerks to ensure that they were properly executing their financial and accounting duties; and (5) misplacing documents in a matter pending before him, causing an unreasonable delay in the disposition of the case.  In the Matter of Thompson, 553 S.E.2d 449 (South Carolina 2001).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for calling an attorney ex parte to ask whether the attorney had told the defendant in a civil case she could charge a management fee for certain properties.  In re McCulloch, Stipulation, Agreement and Order (Washington State Commission on Judicial Conduct October 5, 2001).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for (1) engaging in a pattern or practice of accepting guilty pleas without obtaining proper written statements from the defendants as required by law, and (2) banishing defendants from the municipality in at least 3 cases.  In re Reid, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct October 5, 2001).

“Secondary judicial system for select defendants”

Based on their agreements to resign and never to seek judicial office, the West Virginia Judicial Investigation Commission publicly admonished two former magistrates for dismissing criminal charges in exchange for donations to a charitable organization pursuant to motions from the prosecution.  Public Admonishment of Nutter (West Virginia Judicial Investigation Commission August 27, 2021); Public Admonishment of Taylor (West Virginia Judicial Investigation Commission August 27, 2021).  The Commission found that, by dismissing criminal charges in exchange for donations to a charitable organization, the magistrates “created the appearance of selling justice” in their courtrooms and that, by going along with the prosecutor’s office, the magistrates “created a secondary judicial system for select defendants.”

The St. Marys Police Department had a non-profit program called “Slow Down for the Holidays” to raise money to provide Christmas presents for children in the community.  During the final 2 or 3 months of the year, during a traffic stop, police had the option of giving a driver a flyer that indicated that the driver could face their criminal charges or make a $50 donation to the program.  If the driver chose the donation, the municipal court would dismiss the citation, and the driver would avoid criminal fines, court costs, and a conviction on their record.  All of the citations were for non-serious traffic offenses such as speeding, and none involved jail time.  In 2018, the Pleasants County Sheriff’s Office joined the “Slow Down for the Holidays” program.

Also in 2018, the county prosecutor’s office decided to offer a few defendants charged with misdemeanors the opportunity to donate to the program in exchange for dismissal of their charges.  During the holiday months in 2018, 2019, and 2020, the prosecutor’s office offered at least 19 defendants the opportunity to avoid the consequences of their charges by donating to the program.  The cases involved more serious charges than traffic charges, and the defendants were required to donate $200 to $5,000, not $50 a charge.  Upon proof of a donation, the prosecutor’s office would make a motion to dismiss the charges to one the magistrates, and the magistrates would grant the motion.

The 2 magistrates dismissed 17 cases in total in which donations had been made to the program.  Of those, 12 involved criminal charges that would have resulted in an enhanced penalty if the defendant had been charged again; by dismissing the charges, the magistrates had ensured that the defendants would not receive a judgment of guilty that could later have been used to enhance criminal penalties.  Similarly, in 16 of the cases, the dismissals allowed the defendants to avoid receiving points on their license or a possible license suspension.

The magistrates were aware that there were no legal defects in the cases and that the only reason for the motions to dismiss was that the defendants had donated money to the police department charity.  As the magistrates admitted, no law, court rule, or caselaw allowed them to dismiss cases because the defendants donated to charity; they had not investigated whether there was any authority for the dismissals or asked for advice from other magistrates, judges, or the Commission, but had relied on the representations of the prosecutor’s office. 

Throwback Thursday

25 years ago this month:

  • Pursuant to an agreement, the Massachusetts Commission on Judicial Conduct publicly reprimanded a judge and suspended him for 2 months without pay for communicating ex parte with a judge presiding over an action seeking to evict a tenant from a unit in a condominium building where the respondent judge was a trustee of the condominium association and owned 2 units; the judge also agreed to the assignment of a mentor judge and training.  In the Matter of Jarasitis, Press Release (Massachusetts Commission on Judicial Conduct October 31, 1996).
  • Adopting the recommendation of the Commission on Judicial Performance, the California Supreme Court publicly censured a judge for (1) as a matter of routine practice during the in-custody misdemeanor arraignment calendar, failing to consider release of defendants on their own recognizance or to consider probation or concurrent sentencing for defendants pleading guilty or no contest at arraignment; (2) refusing to appoint counsel to assist defendants; and (3) failing as required by law to inform defendants pleading guilty or no contest of the negative consequences a conviction could have on a non-citizen with regard to immigration.  In re Whitney, 922 P.2d 868 (California 1996).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) sending numerous harassing, threatening, and disparaging anonymous communications to a lawyer with whom he had a personal feud; (2) publicly disseminating a list of “13 suggestions for confrontational or intentionally offensive criminal defense attorneys;” (3) publicly criticizing a defense being raised in a pending proceeding before his court; (4) filing a false report to a police official; and (5) giving testimony during the Commission’s investigation that was false, misleading, and lacking in candor.  In the Matter of Mogil, 673 N.E.2d 896 (New York 1996).

A sampling of recent judicial ethics advisory opinions

  • A court that has partnered with a local mediation center to create a voluntary, neutral mediation program intended to help manage an anticipated influx of eviction cases may provide information about the program to both landlords and tenants in eviction cases and may display that information in highly visible locations near courtrooms and elsewhere in the courthouse.  Nebraska Opinion 2021-2.
  • A judge may complete a survey from a social services agency about the number of eviction petitions, proceedings, and warrants filed or pending in the judge’s court to allow the agency to assess the likely impacts of lifting a moratorium on evictions, but such participation is voluntary and in the judge’s discretion.  New York Opinion 2021-89.
  • A court administrator may accept an unsolicited one-time cash gift from a bar association to fund incentive gifts in problem-solving courts.  Florida Opinion 2021-12.
  • A judge may provide a sworn statement in response to a written request from the office of inspector general for a law enforcement department investigating the conduct of a police officer during a trial in the judge’s court.  Florida Opinion 2021-13.
  • A judge may not monitor police communications on police scanners or police scanner apps to learn who has been arrested and will likely come before the judge’s court.  New York Opinion 2021-99.
  • Unless the judge is currently the presiding judge or assistant presiding judge, a superior court judge’s child may be included on the court’s list of pro tem commissioners and pro tem judges if the judge will not be involved in deciding whether their child will be included on the list or called to serve, will not review their child’s rulings, and will not supervise their child in their role as a pro tem.  Washington Opinion 2021-3.
  • Remittal of a judge’s disqualification requires on-the-record, individual, and specific consent by all parties that have appeared and not defaulted.  New York Opinion 2021-85.
  • A judge may contact their legislators to ascertain what steps are necessary to initiate legislation that would create an additional judgeship in their court to handle an increased caseload and may enlist the legislator’s support for such legislation.  New York Opinion 2021-91.
  • A judge may appear in a video sponsored by a bar foundation that describes the services provided by and through the local legal aid society and another pro bono legal services organization.  Florida Opinion 2021-9.
  • A judge who is a member of the National Association of Women Judges may express an opinion among the membership about a proposed resolution calling for what appears to be a boycott of states where laws have “voided or repealed protections against discrimination on the basis of sexual orientation, gender identity or gender expression, or have enacted laws that authorize or mandate [such] discrimination.”  A judge’s continued membership in an organization that issues a resolution calling for such a boycott may pose problems under the code of judicial conduct.  Florida Opinion 2021-11.
  • A judge may sell raffle ticket to members of their family to raise funds for a not-for-profit charitable or civic entity that is renovating a historic building for community use.  New York Opinion 2021-88.
  • A judge may serve on the board of directors of a local not-for-profit organization that provides educational programs to children and adults with autism if the judge does not have the authority to make referrals to the organization.  New York Opinion 2021-109.
  • A family division judge may speak on subjects related to family law on a podcast hosted by their spouse, for which the spouse receives compensation from a sponsor, provided the number of appearances by the judge is limited and their comments are purely informational, do not constitute legal advice, and do not include commentary on pending cases or legal controversies.  A judge may not post a congratulatory message on LinkedIn when a book written by the judge’s spouse is released.  Florida Opinion 2021-14.
  • A judge may, as a guest of their spouse, attend a multi-day annual conference for prosecutors, located in a different part of the state from where they preside, and may attend the association’s annual dinner, a social event at which the only business conducted is the installation of new officers.  New York Opinion 2021-95.
  • A judge who is in a contested election may continue to be a regular guest on a public radio station’s local news talk show to discuss courthouse administration and law-related activities in the community when no questions are taken from the public, the station does not promote the judge’s appearances, and the judge does not give legal advice, discuss pending cases, or receive financial compensation.  Florida Opinion 2021-10.
  • A judge may be named as a trustee of a friend’s trust if the judge would not be required to serve until the death of both the friend and the friend’s spouse, but the judge should tell the friend that the judge would be ineligible to serve as trustee if they are a member of the judiciary at the time the appointment takes effect.  Florida Opinion 2021-8.
  • A judge may not prepare an uncontested divorce package for a former client for whom they had prepared a separation agreement while in private practice.  New York Opinion 2021-87.
  • At the request of a lawyer representing the estate of a former client, a judge may provide a “family tree affidavit” required in a surrogate court from a non-family member possessing personal knowledge of the deceased’s marital status, heirs, and family tree.  New York Opinion 2021-96.
  • A new judge transitioning from private practice may accept payments from their former firm reflecting a flat fee or the number of hours billed at an agreed-upon hourly rate for legal services performed and may accept contingent fees once the contingency occurs based on quantum meruit for services performed prior to leaving the former law firm.  The judge must report on their annual financial disclosure statement any income from a former law firm.  A judge must recuse themself from cases in which lawyers from their former law firm appear as long as the judge is receiving or anticipates receiving fees or other payments from the firm.  A judge cannot receive in perpetuity from their former firm retirement benefits based on a percentage of fees earned on legal services provided by other lawyers to the judge’s former clients during an agreed-upon time after retirement.  A judge may not continue to participate in a law firm’s partnership for purposes of receiving fees or other payments from the firm.  Ohio Opinion 2021-6.

Judges’ associations resolve

In recent opinions, 2 judicial ethics advisory committees responded to inquiries from judges about a resolution that would prohibit a judicial association from holding conferences in states that repeal protections for lesbian, gay, bisexual, transgender, or queer individuals or that enact discriminatory LGBTQ laws.

A judge who is a longtime member of the National Association of Women Judges asked the Florida Judicial Ethics Advisory Committee whether they could participate in NAWJ’s deliberations on a “Resolution Regarding Future NAWJ Conferences in Jurisdictions Where LGBTQ Protections Are Repealed or Where Discriminatory LGBTQ Laws are Enacted.”  Florida Advisory Opinion 2021-11The resolution will “be deliberated and potentially adopted by the membership of NAWJ at an upcoming general membership meeting, conference, or vote.”  (According to the association’s website, the 2021 NAWJ annual meeting will be October 6-9, 2021, in Nashville, Tennessee.)

The resolution denounces laws that “void or repeal state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression” and laws that authorize, mandate, or condone that discrimination, including laws that create exemptions from anti-discrimination laws to permit discrimination on that basis.  If the resolution passes, NAWJ may not select “‘any future site for an annual or midyear meeting without first taking into careful consideration’ whether the site is located in a jurisdiction that has enacted the aforementioned laws.”  The resolution lists 12 states that have enacted the kind of measures at issue:  Alabama, Idaho, Iowa, Kansas, Kentucky, Mississippi, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, and Texas.  The inquiring judge noted that Florida would likely be added to the list soon.

The committee noted that NAWJ is clearly an organization “devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice.”  The opinion stated that “such associations do important work to help advance the rule of law, public confidence in the judicial system, and judicial engagement with the communities judges serve,” but noted that, at times, “these same groups may assume political positions or advocate for substantive changes in the law.”

The committee stated that the proposed resolution was plainly “a political statement on a current political issue” and that its “directive to ‘first tak[e] into careful consideration’ whether to schedule future conferences at any of the purportedly offending states appears to be a call for a boycott, which is a widely recognized method of expressing a political view or effectuating a political change.”  However, the committee concluded that no ethics rule prohibits judges “from discuss[ing] and debat[ing] the proposed resolution within the confines of NAWJ’s membership.  Because the inquiring judge assures us that the deliberations and discussion on the resolution’s vote will remain within NAWJ and not be disseminated to the public, the judge is free to voice the judge’s views and opinions among NAWJ’s membership.”

Similarly, the New York Advisory Committee on Judicial Ethics stated that a judge who belongs to a national judicial association may participate in a vote on a resolution that would prohibit the association from holding conferences in jurisdictions that repeal protections for LGBTQ individuals or enact discriminatory LGBTQ laws.  New York Advisory Opinion 2021-81. (The New York opinion does not identify the specific judges’ association that was the subject of the inquiry.)

The committee noted that its previous opinions on diversity issues had advised that a judge may:

  • “Participate in a job fair to encourage members of the LGBTQ community to pursue careers as court officers and promote diversity in the court system” (New York Advisory Opinion 2009-151);
  • “Join with officers of an ethnic bar association to meet with a district attorney-elect’s transition team to discuss increasing diversity at the district attorney’s office, provided there is no impermissible political activity and the judge does not recommend specific individuals be hired” (New York Advisory Opinion 2017-179);
  • “Promote diversity by encouraging litigators to provide knowledgeable junior colleagues significant speaking or leadership roles in the courtroom” (New York Advisory Opinion 2018-36);
  • “Meet with law school deans and various executive and legislative branch officials to express a bar association’s concern about the downward trend of minority representation and to advocate for increased diversity in the legal profession” (New York Advisory Opinion 2007-170);
  • “Establish a judicial mentoring program to help promote diversity in the judiciary” (New York Advisory Opinion 2016-151); and
  • “‘Promote diversity by encouraging individuals from particular backgrounds to enter the legal profession’” (New York Advisory Opinion 2017-12).

The New York committee concluded that, “to the extent the proposed resolution can be seen as political or quasi-political, . . . it relates to the improvement of the law, the legal system and the administration of justice . . . , as it attempts to reduce or eliminate bias based on an individual’s sexual orientation, gender identity, or gender expression, consistent with a judge’s obligations under the Rules . . . .  [V]oting on this issue will not create an appearance of impropriety or cast reasonable doubt on the judge’s ability to perform judicial duties impartially.”

For the same reason, the New York committee also advised that judges can continue to belong to the judicial association if it adopts the resolution and will not have to resign their membership.

In contrast, the Florida committee stated that passage of the resolution “could potentially pose issues for a member judge,” depending on the final wording of the resolution and the publicity about it.  The committee emphasized that “maintaining the appearance of impartiality is a paramount concern when we examine these membership inquiries” and that “‘the changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to re-examine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation.’”

The committee recognized that NAWJ “is obviously not a political organization,” but also stated that “unlike civic groups, bar associations, and other law-related groups, when NAWJ publishes a statement, anyone who hears or reads it will associate the statement with a group of judges.”  It explained:

We would have to believe that NAWJ’s statements about legislation on political topics would likely enjoy a special platform of public consideration.  The inquiring judge would have to carefully monitor the extent to which NAWJ’s resolution, should it pass, becomes a feature of public discussion or awareness, and whether the judge’s membership could be construed as evidence of partiality on topics to which that resolution pertains.

The Florida committee stated, if the “laws that are the subject of the proposed resolution were ever challenged in a court proceeding, any judge who is a member of a judicial group that has actively advocated against such laws would seem to be in a position where the State may legitimately question the appearance of that judge’s impartiality,” requiring the judge to consider whether their “impartiality might reasonably be questioned.”

The Florida committee acknowledged the New York opinion but stated that the other committee’s approval of continued membership rested on the “tacit assumptions that:  (a) the laws in question (whatever their content) are pejorative and discriminatory in their operation and intent; and that, therefore; (b) advocating against such laws would necessarily constitute an improvement in the law or legal system.”  The Florida committee opined:

Framing NAWJ’s potential advocacy in that manner seems a tad stilted and, we fear, could lead an advisory committee such as ours into political waters on political questions (where laws with which the committee may happen to disagree are deemed “ethical” to advocate against, while other laws with which the committee agrees become “unethical” for a judicial officer to publicize any disagreement with).

Update:

At its annual business meeting, the National Association of Women Judges passed a “Resolution in Support of our LGBTQ members” that states:

RESOLVED, That the National Association of Women Judges will not sponsor or hold any mid-year or annual meetings or conferences in states that have voided or repealed state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression, or have enacted laws that authorize or mandate discrimination on the basis of sexual orientation, gender identity or gender expression.

There is a list of 18 states that currently meet those criteria attached to the resolution, and the resolution directs that the list “be updated as necessary” and “conform to the lists maintained by those states which track the enactment of such legislation, including, but not limited to, the State of California Attorney General’s office.”

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to provide a father a full opportunity to explain the nature of his minor child’s disability and the need for the protective order he was seeking on behalf of his child.  Forshey, Order (Arizona Commission on Judicial Conduct September 22, 2016).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission suspended a judge for 14 days without pay for keeping a witness incarcerated for contempt of court for over 2 months without appointing an attorney to represent her, setting bond, or holding a hearing.  In re Miniard, Agreed order of suspension (Kentucky Judicial Conduct Commission September 2, 2016).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission suspended a judge for 7 days without pay for granting an ex parte motion to grant immediate custody to a child’s father.  In re Stein, Agreed order of suspension (Kentucky Judicial Conduct Commission September 12, 2016).
  • The West Virginia Judicial Investigation Commission publicly admonished a former judicial candidate for failing to file a written response to a complaint.  In the Matter of Willett (West Virginia Judicial Investigation Commission September 1, 2016).
  • The West Virginia Judicial Inquiry Commission publicly admonished a magistrate for failing to timely arraign a defendant.  In the Matter of Broce-Kelley, Public admonishment (West Virginia Judicial Investigation Commission September 1, 2016).