Throwback Thursday

25 years ago this month:

  • Based on a stipulated disposition and agreed statement of facts, the California Commission on Judicial Performance severely censured a judge for a wide variety of misconduct, including remanding people to custody without following proper contempt procedures for whispering or appearing to fall asleep in court; being rude and insulting to a deputy public defender on 5 occasions; putting inordinate pressure on prosecutors to offer dispositions and on defendants to enter guilty pleas; and frequently and arbitrarily dismissing misdemeanor cases if the prosecution was unable to proceed on the day set for trial without the 10-day grace period allowed by the penal code.  Inquiry Concerning Ormsby, Decision and Order of Public Censure (California Commission on Judicial Performance March 20, 1996).
  • Reviewing a special masters’ report and the record de novo, the Indiana Supreme Court removed a judge from office for participating in harassment directed toward a court employee and her family; the Court also suspended the judge from the practice of law for no less than 2 years.  In the Matter of McClain, 662 N.E.2d 935 (Indiana 1996).
  • The Michigan Supreme Court suspended a judge for 3 days without pay for intemperate and abusive conduct toward an attorney.  In the Matter of Hocking, 546 N.W.2d 234 (Michigan 1996).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for failing over 6 years to advise defendants in traffic cases of a trial date upon receipt of not guilty pleas as required by statute and meeting ex parte with prosecutors to discuss plea reductions negotiated with defendants by the prosecution.  In the Matter of Bregman, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • Pursuant to an agreed statement of facts and recommendation between the Commission administrator and a judge, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for signing as complaining witness and filing with the other judge of his court 30 informations against individuals that the judge had apprehended on the property of a private club where he was superintendent and using judicial stationery in several letters to his fellow judge and to the district attorney in connection with the cases.  In the Matter of Hoag, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • The New York State Commission on Judicial Conduct removed a judge for failing to remit court funds to the state comptroller by the tenth day of the month following collection as required by statute, failing to respond to 3 letters from staff counsel, and failing without explanation to appear to give testimony.  In the Matter of Driscoll, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • Pursuant to an agreed statement of fact and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for stepping off a roadway into some bushes in a park and raising his shorts, exposing himself; informing the arresting police officers that he was a judge even though they had not asked about his occupation; and, stating to a lieutenant at the police station that his arrest would be devastating because of his judicial position.  In the Matter of D’Amico, Determination (New York State Commission on Judicial Conduct March 21, 1996).
  • The New York State Commission on Judicial Conduct publicly admonished a part-time judge for making an improper, ex parte telephone call to the victim in an assault case and conducting night and weekend arraignments in the police station even though a courtroom was available.  In the Matter of Cerbone, Determination (New York State Commission on Judicial Conduct March 21, 1996).
  • Agreeing with the findings of fact, conclusions of law, and recommended sanction of the Board of Commissioners on Judicial Standards, the South Carolina Supreme Court publicly reprimanded a former judge for having sexual intercourse with a litigant in a case before the judge.  In the Matter of Gravely, 467 S.E.2d 924 (South Carolina 1996).

A sampling of recent judicial ethics advisory opinions

  • The Americans with Disabilities Act does not require a judge to allow nonlawyers to represent litigants with disabilities in court.  A judge may permit accommodations for litigants with disabilities that do not conflict with rules prohibiting the unauthorized practice of law, for example, allowing an individual to sit with a self-represented litigant, but may deny a request for an accommodation that would circumvent procedures essential to the nature of the court’s services, programs, or activities.  A court may encourage a litigant with a disability to seek assistance, but may not exclude them from court services, programs, or activities if they choose not to seek assistance. Arizona Opinion 2020-1. 
  • A judge is not required to recuse from a case after an unsolicited ex parte communication from a litigant if the judge halts the communication as soon as possible, promptly advises all parties, and can disregard it.  Illinois Opinion 2020-1.
  • When a party or attorney has advised the court that their preferred gender pronoun is “they,” a judge may not require them to use “he” or “she.”  New York Opinion 2021-9.
  • An appellate justice may not accept the services of a law firm employee who is an incoming associate to work in the justice’s chambers for 6 to 12 months.  California Expedited Opinion 2021-38.
  • On learning that a law firm has posted screen shots or videos of the court’s oral arguments on its website, a justice should request that the images be removed.  New York Opinion 2020-158.
  • • To celebrate birthdays and holidays, judges may exchange modest gifts with their courtroom staff but should treat all staff members equally and maintain proper decorum and should not give any gifts that might pressure staff to reciprocate, be offensive, demeaning, or otherwise inappropriate, or be perceived as harassment. California Expedited Opinion 2021-39.
  • After receiving any required administrative approvals, judges may collaborate with the Historical Society of the New York Courts on a project to provide historical context for existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups.  New York Opinion 2020-202.
  • A judge is required to report to the State Commission on Judicial Conduct a town justice who filed a letter in support of the town clerk’s pistol permit application.  New York Opinion 2020-181.
  • A judge may not write a letter to the attorney grievance commission attesting to a former employee’s character.  Maryland Opinion Request 2020-22
  • A judge may not allow a transition program for formerly incarcerated individuals to list the judge’s name with other supporters in a grant application.  New York Opinion 2020-144.
  • Subject to general limitations on speech and conduct, a judge may write an article for a legal publication outlining what the judge considers are significant flaws in the risk assessment instrument judges are required to use under New York’s Sex Offender Registration Act.  New York Opinion 2020-136.
  • A town justice may not serve on the town’s police reform collaborative.  New York Opinion 2020-183
  • A judge may not accept an award for domestic violence awareness month from a not-for-profit entity that provides legal advocacy services and other resources and support for domestic violence victims.  New York Opinion 2020-184
  • A judge may donate to a fund established to install a public monument honoring a federal judge and may also solicit contributions from co-equal judicial colleagues.  The judges’ names and titles may be listed with other contributors on a plaque erected with the statue.  New York Opinion 2020-132.
  • A judge who underwent surgery at a not-for-profit hospital may not share their story on a patient education live webinar on the hospital’s website and social media channels.  New York Opinion 2020-108.
  • A municipal judge may not serve on the board of directors of a non-profit corporation that contracts with the city to provide re-entry services to the court as an alternative to incarceration.  Ohio Opinion 2021-1.
  • A judge may serve on a bar association’s internal nominating committee that recommends individuals seeking board and officer seats.  New York Opinion 2020-168.
  • A town justice may not speak at a town board meeting about a proposed resolution opposing extension of the big game hunting season.  New York Opinion 2020-193.
  • A judge may obtain and license a patent.  New York Opinion 2020-102.
  • A judge may volunteer as a participant in a COVID-19 study conducted by a hospital and may accept the same modest per-visit compensation as other participants.  New York Opinion 2021-11,
  • A judge may not form a for-profit company that will provide instruction on diversity, equity, and inclusion topics.  New York Opinion 2020-155.
  • A judge who is leaving office may not authorize a prospective employer to advertise their anticipated post-judicial employment at the firm.  Florida Opinion 2020-26.
  • As often as the judge determines necessary based on the circumstances, a judge must ask her spouse for information on his business arrangements with local attorneys and determine if disqualification or disclosure is necessary.  New York Opinion 2020-126.
  • A judge need not object to his spouse hosting a political fund-raiser for a candidate at their marital home, but the invitations must not refer to the judge, and the judge must not appear or participate in the event.  New York Opinion 2020-157/2020-160.
  • A judicial candidate may pledge to comply with the rules about appointments and fees in fiduciary cases and to make decisions and appointments without regard to political affiliation, cronyism, or nepotism.  A judicial candidate may not pledge to strive to appoint women attorneys and attorneys of color to fiduciary positions but may promise to reach out to various associations to increase participation in the lists.  New York Opinion 2020-114.

Winter issue of the Judicial Conduct Reporter

The winter issue of the Judicial Conduct Reporter has been published and is available on-line.  The issue reviews judicial ethics and discipline in 2020 with stories on:

  • State judicial discipline in 2020
  • Removal cases in 2020
  • Top judicial ethics and discipline stories of 2020
    • What judges said to women that got them in trouble
    • Judicial participation in demonstrations, protests, marches, and rallies
    • Judicial ethics and discipline during a pandemic
  • What judges said that got them in trouble in 2020
    • What they said to or about litigants that got them in trouble
    • What they said to or about criminal defendants that got them in trouble
    • What they said to or about attorneys that got them in trouble
    • What they said to court staff that got them in trouble
    • What they said in election campaigns that got them in trouble
    • What they said to law enforcement that got them in trouble
    • What they said off-the-bench that got them in trouble
    • What they said on social media that got them in trouble

The Judicial Conduct Reporter is published electronically, and an index and current and past issues of the Reporter are available on-line.  Anyone can sign up to receive notice when a new issue is available.

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for, in open court, telling an attorney, in part:  “I remember you . . . I recuse myself from your cases . . . you are the gentleman who yelled at the lady who is now my wife;” stating that the attorney was disrespectful to other women based on rumors he had heard in the community; stating that he was concerned the attorney was a “misogynist;” and brusquely ordering the attorney from his courtroom.  Castillo, Order (Arizona Commission on Judicial Conduct February 5, 2016).
  • Based on a stipulation for discipline by consent, the California Commission on Judicial Performance publicly censured a judge for (1)(a) failing to make pension payments to his ex-wife for nearly 2 years and deliberately failing to inform her that he was retired and receiving his military pension; (b) making false statements that impugned the integrity of his ex-wife’s former attorney; (c) directing which judge on his court would handle the stipulation and order settling the pension issue with his ex-wife; (2)(a) sending a disparaging, undignified, and discourteous e-mail response to the assistant presiding judge’s inquiry about his availability to help cover the court’s calendar; (b) responding intemperately to the rotation of a particular court reporter to his courtroom; and (3) failing to disqualify himself when a close personal friend appeared as an attorney in cases and failing to disclose the relationship.  Inquiry Concerning Trice (California Commission on Judicial Performance February 4, 2016).
  • The California Commission on Judicial Performance publicly admonished a judge for a pattern of failing to disclose the campaign contributions of attorneys who appeared before him after the election.  In the Matter Concerning Walsh, Decision and order (California Commission on Judicial Performance February 10, 2016).
  • The California Commission on Judicial Performance publicly admonished a judge for deliberately engaging a deputy district attorney in an ex parte communication about a case that was pending sentencing before him.  In the Matter of Scott, Decision and order (California Commission on Judicial Performance February 17, 2016).
  • Based on the judge’s stipulation and consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for an ex parte telephone conversation with the deputy district attorney assigned to a criminal case regarding the contested issue of the release of the defendant from jail on his own recognizance and the judge’s disqualification; releasing the defendant on his own recognizance before receiving the deputy district attorney’s motion contesting the release and then disqualifying himself without sufficient reason; and failing to disqualify himself before ruling on the defendant’s release.  In the Matter of Fletcher, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline February 12, 2016).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly reprimanded a part-time judge for representing a woman in a divorce proceeding after taking action on mutual harassment complaints filed by her and her husband and while those actions were pending in his court and failing to immediately disqualify himself from harassment complaints after undertaking the representation.  In the Matter of Bowkley, Order (New Jersey Supreme Court February 3, 2016).
  • Granting a petition to accept a stipulation agreement and consent to discipline, the New Mexico Supreme Court publicly censured a judge for permitting and engaging in an impermissible ex parte phone conversation with the plaintiff’s attorney that involved substantive matters in a civil case.  In the Matter of Singleton, Order and public censure (New Mexico Supreme Court February 11, 2016).
  • Adopting findings of fact and misconduct, which the parties had stipulated, the Ohio Supreme Court permanently disbarred a former judge who was convicted in federal court of honest-services mail fraud and conspiracy to commit mail fraud related to his judicial duties.  Disciplinary Counsel v. Terry, 63 N.E.3d 88 (Ohio 2016).
  • Without an opinion, the Pennsylvania Supreme Court affirmed the order of the Court of Judicial Discipline removing a judge from office for not filing state and federal tax returns for 5 years, failing to remit approximately $130 in sales tax owed by a shoe store she owned, opening the shoe store without a license, and pleading guilty to 3 misdemeanors (for dismissing several of her own tickets) and 1 summary offense (the business license violation).  In re Ballentine, 132 A.3d 454 (Pennsylvania 2016), affirming In re Ballentine, Opinion and order (Pennsylvania Court of Judicial Discipline August 4, 2015).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) failing to take immediate steps to disqualify himself and/or transfer his own divorce case out of his court and filing motions in his own court in connection with the pending divorce action and (2) failing to timely rule on or refer the recusal motions filed by the attorney representing his wife in other matters, attempting to intervene in proceedings relating to his own recusal, and displaying a personal animus against the attorney representing his wife; the Commission also ordered the judge to complete 6 additional hours of instruction.  Public Reprimand of Herrera and Order of Additional Education (Texas State Commission on Judicial Conduct February 24, 2016).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for entering judgments finding defendants guilty of illegal parking violations that were not supported by a proper complaint or probable cause and imposing fines for these offenses in excess of amounts allowed by law; the Commission also ordered the judge to obtain 10 hours of instruction with a mentor.  Public Warning of Jones and Order of Additional Education (Texas State Commission on Judicial Conduct February 29, 2016).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a former justice of the peace for dismissing criminal cases without a motion from the prosecutor; frequent and extended absences from the court; delays and confusion caused by his handling of a case; and using court funds for his personal financial benefit.  Public Reprimand of Stringer (Texas State Commission on Judicial Conduct February 29, 2016).

More Facebook fails

Independent investigation

The Arizona Commission on Judicial Conduct publicly reprimanded a judge for discussing in a minute order a social medial post criticizing him, in addition to other misconduct.  Staggs, Order (Arizona Commission on Judicial Conduct November 17, 2020).

B.W. was a defendant in a criminal case.  B.W.’s spouse criticized the judge in a post on social media, and the judge’s wife brought it to his attention.  In a minute order in B.W.’s case, the judge discussed the post, described its alleged inaccuracies, and requested that it be corrected.  The Commission found that the judge’s review of the post was an improper independent investigation and that “his choice to respond to social media criticism in an official public record did not inspire confidence in the judiciary.”

Public support

Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for publicly supporting the teachers at her daughter’s school in litigation with the board of education by making repeated public comments about issues and individuals in person, by email, and on social media platforms in which she was publicly identified as a judge; providing legal information and advice to parents at the school; signing advocacy letters; speaking with members of the board of education; joining teachers’ union counsel outside the courtroom prior to a case conference; and executing an affidavit that was filed in the litigation.  In the Matter of Panepinto, Determination (New York State Commission on Judicial Conduct December 9, 2020).

The judge sits on the Eric County Supreme Court.  In March 9, 2017, confirming an arbitration award, a different judge on the same court directed the Buffalo City School District to immediately stop assigning supervisory, non-instructional duties to teachers at Buffalo City Honors School.  The judge’s daughter attended Buffalo City Honors School during the 2017-2018 school year.

In a contempt motion filed in September 2017, the Buffalo Teachers Federation alleged that the Board of Education was not complying with the order and judgment.  In a separate petition filed in February 2018, the teachers’ federation sought an injunction to prevent the transfer of 5.5 teachers from the school and to prevent 16 teachers’ aides from being hired to perform non-instructional duties.

In January 2018, the judge joined a Facebook group comprised of City Honors School parents who publicly supported the teachers’ opposition to the transfer of teachers.  The judge also communicated with parents in support of the teachers using email and Twitter.  The judge posted on Facebook:  “We can go to Court appearance.  I will find out when it is.”  Using email and social media platforms, the judge provided legal information and advice to parents who were sending letters to the board of education and the teachers’ federation.  On Facebook, the judge posted:  “FYI if letter hast [sic] gone yet – include phrase ‘irreparable harm’ and/or send separate [sic] letters as that is legal standard to stop teachers transfers at least in short term.”  By email, the judge stated:  “Has the letter been sent yet?  It needs to state there will be irreparable harm to justify Court ordering stay of lay offs set for February 27.  If already sent we can do second one and/or individual ones describing irreparable harm.”  On Twitter, the judge posted:  “Write short letters stating the ‘irreparable harm’ cutting teachers at CHS will cause to your children.  Students should write as well.  Post on Twitter & send to BPS & BTF!”

The judge publicly criticized City Honors School principal William Kresse on Facebook, posting:  “Let’s not kid ourselves our beloved IB school hired these aids [sic] To punish teachers who won at arbitration & in Court.  If Dr. Kresse didn’t hire these aids [sic], not a single teacher would be transferred.  100% Kresse decision.  Ask him Why?”  Also on Facebook, the judge characterized the proposed transfer of teachers as “pure retaliation” and stated, “We don’t need aides … napping in hallway.”

On or about February 1, in response to a Buffalo News editorial, the judge posted a Facebook comment that identified her as “Catherine Nugent Panepinto – Works at Elected New York Supreme Court Judge Nov, 2010.”  The judge stated that she did not know that Facebook settings would automatically identify her by her judicial title but conceded that she should have familiarized herself with Facebook protocols prior to posting the comments.

The judge posted on Facebook:  “FYI I met with Paulette Woods today.  She is the Central representative on School Board whose district includes City Honors …  I also had a similar positive conversation with [BBOE representatives] Hope Jay & Sharon Cottman & plan to talk w [BBOE representative] Jennifer M[ecozzi] tomorrow.  I think we’re making great progress & looking forward to meeting tomorrow.”

The Commission concluded that the judge violated the rules when she commented about cases in which she was not a litigant.  The Commission explained:

Rather than being circumspect and focusing narrowly on her direct personal interest in her daughter’s education, respondent generally advocated for and supported the CHS teachers.  She attended meetings and spoke critically of the school’s plan to transfer teachers.  In addition, respondent was publicly critical of the CHS principal and described the transfer of teachers as “pure retaliation” which detracted from the dignity of her judicial office.  Furthermore, respondent admittedly violated the Rule which prohibits a full-time judge from practicing law. . . .  In that regard, respondent improperly and repeatedly advised other CHS parents as to the specific language to include in letters in order to meet the legal standard for injunctive relief.

The stipulation stated that the judge invoked the prestige of her office “when her Facebook comment in response to an editorial regarding CHS identified her as a Supreme Court judge.” 

The Commission concluded that the judge’s conduct over these 3 months “was improper and went beyond appropriate action specifically concerning her personal interest in her daughter’s education.”  In mitigation, the Commission considered that the judge admitted that her conduct warrants public discipline and that her sole motivation was to protect the interests of her daughter.

* * *

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:

  • Accepting a conditional agreement for discipline, the Indiana Supreme Court suspended a judge for 30 days without pay for (1) exhibiting impatience and frustration with a defendant and her attorney and making sarcastic remarks during a bench trial on traffic charges; (2) a practice of imposing substantially higher penalties on infraction litigants who exercised their trial rights; (3) routinely failing to consider the specific circumstances when imposing penalties in traffic cases; and (4) routinely giving general advisements to defendants that understated the state’s burden of proof and frequently speculating to indecisive defendants about what the state’s evidence might be.  In the Matter of Young, 943 N.E.2d 1276 (Indiana 2011).
  • Granting a joint motion for approval of the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge for, to determine who was upset about his appointment of the youth public defender and who had released the information to the media, issuing subpoenas to county commissioners without complying with the law.  Commission on Judicial Performance v. Buffington, 55 So. 3d 167 (Mississippi 2011).
  • Based on findings by the Judicial Conduct Board, the Vermont Supreme Court publicly reprimanded a judge for failing to resign as assistant judge upon becoming a candidate for probate judge.  In re Hodgdon, 19 A.3d 598 (Vermont 2011).

“A one-second scream”

The Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months for summarily holding a woman who screamed in the hallway outside his courtroom in contempt and, when she protested, increasing her jail sentence.  Disciplinary Counsel v. Bachman (Ohio Supreme Court December 18, 2020).  The Court adopted the findings of the Board of Professional Conduct, which were based on stipulations and evidence presented at a hearing.

On September 4, 2018, at approximately 7:45 a.m., K.J. arrived at the court to file a petition for a civil protection order.  After she completed the paperwork, a clerk’s office employee told her that she had missed the 8:10 a.m. filing deadline to be heard that day and that she would have to return the following day.

K.J. went to the magistrate’s courtroom, apparently hoping to have her case heard that day.  The magistrate was conducting an asset-forfeiture trial.  After speaking with the magistrate’s clerks in the hallway, K.J. turned away.

As she walked toward the exit, K.J. screamed so loudly that she was heard in the courtroom.  The magistrate immediately said, “Okay, time-out,” and stopped the trial.

The Court described the video footage of what followed as “revealing and disturbing.”

It shows Bachman exiting the courtroom in his robe and running down the hallway in pursuit of K.J.  He accosts her at the elevators and returns her to his courtroom.  Once there, Bachman walks her through the crowded courtroom with his hand on her shoulder, places her in a seat in his jury box, and orders her not to move just before summoning the sheriff.  Multiple sheriff’s deputies soon arrive, and Bachman orders them to take K.J. into custody and to jail her for three days for contempt, causing her to cry and attempt to leave the jury box.

The Court stated that “the next 20 minutes of the video are difficult to watch.”

While K.J. resists being arrested and pleads with Bachman to explain why she is being jailed for three days, she is physically subdued by two deputies, threatened with being tased, and ultimately dragged from the jury box by several deputies.  Bachman’s only response is to increase her jail sentence to ten days. . . .  Bachman then congratulates a deputy on an award the deputy had recently received and resumes the proceeding as if nothing out of the ordinary has just transpired.  Meanwhile, the video footage shows, while K.J. continues protesting her arrest, she is dragged, yanked, pinned to a wall, and handcuffed to a chair.  Before the video ends, over 20 deputies and members of the court staff are involved in jailing K.J.—all because of a scream of frustration in the hallway that lasted one second.

2 days later, the administrative judge watched the video of the incident and ordered that K.J. be released from custody.  Approximately 4 days later, the magistrate was told that the “general sentiment” of the judges on the court was that he should be let go.  He resigned because, as he testified at his disciplinary hearing, he had been told that if he did, “this would be quiet and that would be it.”

Noting that a judicial officer has authority to summarily punish a person whose misbehavior in or near the courtroom “obstruct[s] the administration of justice,” the Court emphasized that K.J.’s scream outside the magistrate’s courtroom was only “a distraction at best or a momentary interruption to the proceedings at worst.  The only obstruction to the administration of justice that day occurred due to Bachman’s misconduct.”

Noting that it considers injury caused by professional misconduct when determining a sanction, the Court stated that “the chain of events set in motion by Bachman’s misconduct” physically and emotionally harmed K.J.  It noted that the magistrate’s conduct also “exposed the sheriff’s deputies and other court personnel to harm from a violent and unnecessary arrest on full display in front of a courtroom full of people who have no other choice but to sit silently and witness such a disturbing sight.”

The Court noted the Board’s finding that the magistrate defended his action as an appropriate exercise of the contempt power and “demonstrated a lack of insight as to the inappropriateness of his actions,” showing no “remorse for the effects of the incident on [K.J.],” and focusing on the impact “on his career and his resulting financial loss,” and.  The Court found:

Bachman’s sentencing K.J. to ten days in jail for a one-second scream in the hallway as she was leaving his courtroom area and for questioning why she was being jailed is outrageous.  The spectacle his conduct created was even more appalling and demonstrates his utter indifference to the harm he caused K.J. and the integrity of the judiciary. . . .

Sending someone to jail is not the adult equivalent to sending a child to his or her room for a time-out.  Yet Bachman and other judicial officers who have been sanctioned for similar conduct seem to equate the two.  Not only was Bachman’s jailing of K.J. unauthorized under the contempt statute, but he exhibited a total disregard for the reason she was at the courthouse in the first place — to get a civil protection order.  He also showed a complete indifference to the circumstances of her life (e.g., whether she had children or other family members to care for, employment she might lose, or any other harm she could suffer), to the indignity she endured by being physically restrained in a crowded courtroom, and ultimately, to the loss of her liberty.

The Board had recommended that the 6-month suspension be stayed with conditions.  The Court stated that an actual suspension was warranted “when a judicial officer’s misconduct causes harm in the form of incarceration” and “to send a strong message to members of the judiciary, to deter similar violations in the future, and to make crystal clear to the public that this type of judicial misconduct will not be tolerated.”

Throwback Thursday

20 years ago this month:

  • Accepting a stipulation, the California Commission on Judicial Performance publicly censured a former judge for intentionally altering a court record; the Commission also barred him from receiving any assignment or reference from any California state court.  Inquiry Concerning Judge Hermo, Decision and order (California Commission on Judicial Performance February 20, 2001).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals upheld the public censure of a judge for “inappropriate and demeaning” conduct toward his secretary.  In the Matter of Shaw, 747 N.E.2d 1272 (New York 2001).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) in 1 divorce case, finding both parties guilty of contempt and sentencing them to jail, based on the other party’s unsworn statements, without holding a hearing, and instructing the attorneys to submit ex parte affidavits concerning the exchange personal property at the marital residence; (2) in a second case, repeatedly violating the rights of a third-party defendant and conveying an appearance of bias; (3) in a third case, using “colorful” language and exerting pressure in an “injudicious and indiscriminate manner” to force a settlement; and (4) in a fourth case, while exerting pressure to achieve a settlement, stating that the parties were wasting the court’s time on matters that should have been settled, and disparaging the attorneys, in the presence of their clients.  In the Matter of Teresi, Determination (New York State Commission on Judicial Conduct February 8, 2001).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for, while a candidate for nomination to the supreme court, making improper, inflammatory, taunting, and provocative comments to and about a defendant while presiding over his arraignment for a crime that had resulted in the death of a police officer that conveyed the impression that he was using the judicial proceeding as a political forum.  In the Matter of Brennan, Determination (New York State Commission on Judicial Conduct February 8, 2001).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for retaining unexpended campaign funds after his unsuccessful campaigns for the nomination to another judicial office rather than returning them to his contributors pro rata.  In the Matter of Mullen, Determination (New York State Commission on Judicial Conduct February 8, 2001).
  • The New York Commission on Judicial Conduct publicly censured a judge for (1) soliciting and receiving ex parte information about the owner of a mobile home park and relying on the information to the owner’s detriment; and (2) writing a letter on judicial stationery notifying a property owner of code violations and writing to the codes enforcement officer suggesting that he issue an appearance ticket to the property owner’s tenants.  In the Matter of MacLaughlin, Determination (New York State Commission on Judicial Conduct February 8, 2001).

Pandemic advice

Judicial ethics committees have responded to judges’ inquiries about the challenge of managing courts and hearing cases while coping with the threat of transmitting the virus.

Judges in a Nebraska district were asked to meet with a coalition of agencies “formed to provide low-income tenants in eviction cases with representation in light of the current COVID-19 pandemic.”  The coalition wanted to discuss with the judges the public health risks in eviction proceedings, scheduling, modifications of the court’s calendaring procedure, and substantive procedural changes. 

The Nebraska judicial ethics committee advised the judges that they or their designee could meet with the coalition, noting that the proposed topics were “appropriate matters for discussion given that no advantage can be reasonably assumed to adhere to the coalition or its potential clients from the conversations.”  Nebraska Advisory Opinion 2020-1.  The committee added that, although the judges were not required to notify others who might be interested in the discussion, “it would be appropriate, efficient, and in keeping with the spirit of the Nebraska Revised Code of Judicial Conduct to encourage other attorneys or interested parties to participate in the meeting.”  The committee noted that the coalition’s request was not a prohibited ex parte communication about pending or impending cases that had to be disclosed to other counsel or parties or to disciplinary authorities. 

The coalition had also asked the judges to notify self-represented litigants about the coalition “from the bench.”  The committee advised that the judges could not “refer persons to a specific organization for legal assistance” but could inform “an unrepresented litigant that he or she has a general right to seek the assistance of counsel and that there are organizations which may be able to assist on a reduced or a no-fee basis.”  The committee also disapproved of the suggestion that information about legal services be included with the summons in eviction cases, concluding that “extraneous materials promoting one specific group of service providers” should not be included with the documents that statutes specify must be provided.  The opinion did add that the court could post information about the coalition’s services in “highly visible” locations near courtrooms and throughout the courthouse.

The coalition had also asked the judges to consider “liberally granting continuances,” but the judicial ethics committee warned that “any such promise or consideration by the court would be improper.  All continuances are subject to objection and controlled by rules of law.  It is inappropriate to have a blanket rule that all continuances should be either granted or denied in any type of case.”

The New York advisory committee addressed several inquiries from town and village justices who wanted to work with prosecutors to facilitate plea agreements in traffic cases to limit in-person court appearances due to public health concerns, particularly given significant staff reductions for prosecutorial agencies and courts.  Emphasizing the importance of maintaining judicial independence, the committee disapproved all four proposals, although it noted that it was “not unsympathetic to the challenges facing prosecutors and courts ….”

For example, in New York Advisory Opinion 2020-99, the committee stated that a town or village justice court must not “collaborate” with prosecutors to develop procedures to process pleas on paper and establish a mail-in plea bargain process for vehicle and traffic law infractions.  The opinion emphasized that a court must not promote or favor mail-in pleas and/or plea bargaining over other options even to mitigate the effects of the COVID-19 outbreak.  However, the committee did suggest that the court could meet with defense bar representatives and the prosecutor’s office together to discuss procedures for handling mail-in pleas on traffic infractions and authorized the court to distribute, as a convenience to defendants, a court-prepared form that impartially listed all options and included a link to the district attorney’s website and/or email address. 

The committee also disapproved of a proposed plea reduction form “designed to limit foot traffic in the courtroom” because it did not present all of a motorist’s options neutrally, it had the court’s name at the top, and it significantly downplayed the motorist’s rights.  New York Advisory Opinion 2020-206.  The opinion did suggest that “it may be helpful for court administrators, working with the Office of Justice Court Support, to develop and circulate a new form, consistent with applicable ethical and legal considerations, for use in these circumstances.  Such a form could help protect well-intentioned judges across the state from inadvertent missteps.  We note that other potential solutions might be technological in nature (e.g. if defendant motorists could interact directly with the prosecuting agency online to request plea reductions) or even legislative (e.g. if statutory changes could be made to facilitate plea bargaining in matters where defendants mail in “not guilty” pleas pursuant . . .).”

See also New York Advisory Opinion 2020-97 (courts must not distribute the district attorney’s “informational document” to defendant motorists or otherwise implement the DA’s procedure for facilitating defendants’ pleas to lesser charges in vehicle and traffic law matters); New York Advisory Opinion 2020-94 (judge may not permit the clerk to use the court’s database access or other digital platform to enter data in the village attorney’s plea bargain letters sent to defendant motorists).

Not all pandemic operation issues are ethical ones, of course.  The California Supreme Court advisory committee, for example, explained that it did not have the authority to decide whether judges may require a witness or a party who is afraid to remove a mask, as that is a question of law.  California Oral Advisory Summary 2020-32.  It also advised that whether judges must be allowed to continue to work remotely if they are concerned that their age or preexisting medical conditions would place them at great risk if they were required to be physically present in a courtroom was not an ethics issue, but a court management issue.  California Supreme Court Committee Advisory Opinion 2020-34.

Throwback Thursday

25 years ago this month:

  • Accepting the recommendation of the Committee on Judicial Conduct, the New Hampshire Supreme Court suspended for 6 months without pay and publicly censured a judge for calling a police officer he knew personally after the officer had ticketed the judge’s brother; the Court conditioned the judge’s reinstatement on his completion of a comprehensive judicial ethics course.  In re Snow, 674 A.2d 573 (New Hampshire 1996).
  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct publicly admonished a judge for appearing on behalf of his sister-in-law at a motion hearing before a family law commissioner during regular court hours and at the courthouse in which he performed his judicial duties; the judge also agreed to attend a judicial ethics course.  In re Chow, Stipulation and Order of Admonishment (Washington State Commission on Judicial Conduct February 2, 1996).