Throwback Thursday

25 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court removed from office a judge who had openly lived with a fugitive charged in Georgia with several drug-related felonies, allowed the fugitive to drive her car with a suspended license, actively participated in the felony case in Georgia, and married him after he was convicted; the Court also fined the judge the salary she had received since the date on which she had agreed to resign.  Commission on Judicial Performance v. Milling, 657 So. 2d 531 (Mississippi 1995).
  • Concurring in the determination of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a part-time judge for permitting a fax transmission to be sent from his law office to the judge of another municipal court about a matter pending in that court.  In the Matter of Carton, 658 A.2d 1211 (New Jersey 1995).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a part-time judge for delaying for approximately 13 months in deciding a small claims case and misplacing the file in his law offices.  In re the Matter of Linde, Stipulation and Agreement and Order of Admonishment (Washington State Commission on Judicial Conduct June 1, 1995).

 

Judicial Conduct Reporter

The spring issue of the Judicial Conduct Reporter has been published.  The issue has articles on:

  • Judicial discipline for drunk driving
  • Public hearings in judicial discipline proceedings
  • Why do judicial conduct commissions dismiss so many complaints?
  • Recent cases
    • Intoxicated altercation (In the Matter of Adams, Jacobs, and Bell, 134 N.E.3d 50 (Indiana 2019))
    • Letter of support (Inquiry Concerning Lederman, Caballero, Figarola, Pooler, and Ruiz (Florida Supreme Court 2020))
    • Review and approve (Public Reprimand of Leahy (Minnesota Board on Judicial Standards 2020))
    • “Beyond mere friendly conversation” (Disciplinary Counsel v. Porzio (Ohio Supreme Court 2020))
    • Much more than catching extra fish” (In the Matter of Ferguson (West Virginia Supreme Court of Appeals 2020))

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 judge for having an ex parte conversation about a family law case with a Department of Child Safety caseworker and, without allowing the parties an opportunity to be heard, issuing a ruling that discussed and cited the ex parte conversation as a basis for denying the relief sought by the mother.  Garcia, Order (Arizona Commission on Judicial Conduct May 12, 2015).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) being aggressive and heavy-handed when interacting with a member of court administration regarding the re-assignment of another judge’s courtroom clerk and (2) summoning an attorney to his chambers and suggesting that a declaration should not be filed due to his concerns about the court’s reputation and the other judge’s family.  Public Admonishment of Fielder (California Commission on Judicial Performance May 14, 2015).
  • Based on a stipulation for discipline by consent and the judge’s irrevocable resignation, the California Commission on Judicial Performance publicly censured a former judge and barred him holding judicial office for failing to disclose on financial disclosure forms the $250,000 he had received from the dissolution of a joint venture in a county contract for indigent defense and failing to disclose or disqualify when attorneys who had an interest in the contract appeared before him.  Inquiry Concerning Garcia, Decision and order (California Commission on Judicial Performance May 18, 2015).
  • Agreeing with the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court removed a judge from office and fined him $3,500 for (1) failing to follow the law in drug court; (2) attending a meeting between a suspended bail bondsman and the sheriff; and (3) depriving a drug court participant of her right to counsel of her choosing by threatening to hold her retained counsel in contempt if she did not sit down.  Commission on Judicial Performance v. Thompson, 169 So. 3d 857 (Mississippi 2015).
  • Based on a stipulation and agreement, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for abusing her contempt power and failing to be honest with the Commission; the judge also agreed to take a minimum of 2 courses at the National Judicial College and to familiarize herself with the statutes and rules governing the contempt power.  In the Matter of Leavitt, Stipulation and order (Nevada Commission on Judicial Discipline May 8, 2015).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) holding a “marathon” court session lasting until 4:00 a.m.; (2) describing the district attorney as a “New York Jew;” (3) expelling the district attorney from her courtroom; and (4) telling a prosecutor his beard made him look like a “Muslim;” the Commission also ordered the judge to obtain 4 hours of instruction with a mentor.  Public Admonition of Schildknecht and Order of Additional Education (Texas State Commission on Judicial Conduct May 11, 2015).
  • The Texas State Commission on Judicial Conduct publicly admonished a former judge for failing to provide public documents and information to citizens regarding cases in her court; failing to timely execute the business of the court; failing to hold jury or bench trials; failing to reduce her rulings to final, written, appealable judgments; failing to maintain proper records; and failing to conduct proper fiscal management.  Public Admonition of Johnson (Texas State Commission on Judicial Conduct May 14, 2015).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a former part-time judge for under-reporting income she received as a judge and as a result collecting unemployment benefits to which she was not entitled.  In re Johnson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct May 1, 2015).

 

“A calm steady hand” needed

Based on an agreement, the California Commission on Judicial Performance publicly admonished a judge for, in several hearings in a family law case, making comments that demonstrated embroilment, bias, and pre-judgement and that were discourteous and undignified, including accusing the parents of damaging their child and initiating a discussion about religion with a witness.  In the Matter Concerning Gary, Decision and order (California Commission on Judicial Performance May 14, 2020).  The Commission emphasized:

Family law matters can be particularly fraught with emotion.  These situations are when a calm and steady hand, a respectful demeanor, and the appearance of neutrality are especially needed.  A judge may convey to family law litigants the judge’s concerns about the detrimental effects that high-conflict disputes may have on children, but may not do so by telling parents, in harsh terms, that the judge knows how their children will turn out.  Judges may also express their concerns about counsel’s conduct, but may not do so in a disparaging manner, or in a manner that is likely to interfere with the attorney-client relationship.  Judges may also question witnesses, but must comply with the canons’ mandates of patience, dignity, and courtesy when doing so.

From January 2017 through December 2018, in In re Marriage of Battilana, the judge presided over more than a dozen hearings on the mother’s request to relocate with the parties’ minor child to Oregon and for attorney fees and later an ex parte request about summer visitation and the child’s asthma medication.  On April 17, 2018, the judge issued a decision and order on the relocation/custody issues.  On May 29, the father filed for bankruptcy.

The Commission found that, during those hearings, the judge made comments that demonstrated embroilment, bias, and prejudgment.

  • The judge remarked that he was “picking sides,” “knew where the problems lie,” and “the parties are going to find themselves with nothing in the end.”
  • The judge stated, “I hate it that I have been brought into this personally. I hate it.  That is not the role of a judge, and frankly, it’s not the role of parties to involve a judge like has happened here.”
  • The judge told the parties, “On January 30th you went on my radar. By the time we got to July, I thought about you after work, unusual.  I was always watching for your case.  I even kept your file in my chambers for a while, for a long while.  When pleadings would come in, I would keep the pleadings.  You were always on my radar. . . .  And I had told you guys the path you’re going down, you shouldn’t be going down ad nauseam.  And that in the end what I fully intended was that someone is going to win and someone is going to lose, and it will be big time.  Judgment day is today.  One of you will win.  One of you will lose, and judgment day will be big time.”
  • The judge stated, “Way to go. Way to go.  I’m done.  Go off to trial, burn it all up.  Good luck.”

The Commission also found that the judge’s accusations that the parents were damaging their child were undignified and discourteous, could be reasonably perceived as reflecting bias or prejudice, and failed to promote public confidence in the integrity and impartiality of the judiciary.  The judge had said:

  • “[H]ow bad do you want to ruin your child.”
  • “And good luck to [the child], because it ain’t going to turn out well for her.”
  • “[S]he’s going to get divorced. And your grandkid is going to go through the same things she’s going through because this is all she knows.”

In her testimony, the father’s mother appeared to criticize the mother for not taking the child to the doctor or calling the doctor when she was running a fever.  The following exchange then took place:

THE COURT:  Sure.  How do you think Jillian [the mother] got the prescription?THE WITNESS:  I have no idea, sir.
THE COURT:  Do you know whether Jillian is a pharmacist?

The Commission found that that question was sarcastic.

The grandmother also testified that, although she had heard disagreements between the mother and the father, she had stayed out of them.  Subsequently, the judge, while questioning the mother, made a remark about the grandmother “suffer[ing] a bout of amnesia.”  The Commission found that remark was gratuitous and noted that, although “judges may examine witnesses to elicit or clarify testimony, they must not become an advocate, comment on the evidence, or cast aspersions about, or ridicule, a witness.”

A retired licensed clinical social worker testified that she heard the child say her father was going to die and that a 2-year-old child does not understand death.  The judge then discussed with the social worker the purpose of religion and the promise of everlasting life, referencing the Bible.  For example, he stated:

In fact, it’s healthy for a person [to face death], at least in this trier of fact’s opinion since I’m having to rule on the best interest of your child.  Death is part of life.  In fact, it’s one of the certainties of life.  And the reason I raised religion is not to get into a deep philosophical religious discussion, but to address this witness’s concern with these two parents that a child not understanding the permanence of death, that is true, but parents or adults also struggle with the permanence of death.  And one of the ways they cope with the permanence of death is through religion, through the promise of when you die, somehow you will live again.  The Christian religion — I know dad goes to church, or at least I’ve heard testimony.  The Christian religion, you will have everlasting life, John 3:16.  If you go through that, what is the purpose for that for adults?  This is all commentary on the side.  It’s so that you don’t have to face the permanence of death.  Well, the truth of the matter is we don’t know.  Some of us have strong opinions one way or the other on that.  Wars have been fought over that, are continually fought over religion.  My concern is not as much the statement having been made unless there is solid proof that one of you is running around saying to the child your daddy’s going to die soon.  Your mommy is going to die soon.  If that’s happening, that is way, way out of bounds.  But you should both understand that children pick up on things and say things that sometimes just totally come out of the blue.  It could come from a Disney movie.  It could come from something from a book.  It could come from anywhere.  My bigger concern is not the child’s affect, whether she said it and the fact that she said it, that was easily addressed.  Rather than lawyering up and litigating the issue – let me say that again.  Rather than lawyering up and litigating the issue, you might want to sit down with your daughter, put her on your lap and say, sweetheart, I’m not going to die any time soon.  I love you.  I’m going to be around, but death is part of life.  We have pets that die.  We have flowers that die.  Mr. Cohen, are you listening?  What I want the parties to do i[s] in these situations, rather than blow this up and run to court and point fingers, the answer to this question, the answer to this issue was [to communicate].

The Commission found that these comments “improperly injected religion into court proceedings, and created an appearance of lack of impartiality . . . .  As the commission has previously stated, ‘The bench is not a pulpit nor soapbox for self-expression.  A litigant is entitled to assume that a judge’s attention will be focused entirely upon the relevant facts of his or her case, and that his or her cause will be judged dispassionately – without consideration of anyone’s religion. . . .”

At the first hearing after the father filed a bankruptcy petition, the judge stated that the father’s attorney “burned [him] every time he [could],” was “not professional,” was “undignified,” and “detracts from the quality of the bar.”  The Commission found that these remarks were undignified, discourteous, and reasonably likely to interfere with the attorney-client relationship.

The Commission also found that the judge had been discourteous and undignified by:

  • “Mocking the father’s name (‘it’s a battle’),”
  • “Accusing the parties of engaging in excessive litigation and of ‘churning fees,’”
  • “Remarking that an attorney was about to ‘come out of [his] underwear,’”
  • “Commenting about the parties ‘lawyering up,’ telling the parties they could ‘bleed out’ and to ‘grow up,’”
  • “Repeatedly referring to the case as ‘contrived,’ stating that it was a ‘nothing case,’” and
  • “Responding to the father’s question about whether he should follow the mother’s orders rather than the doctor’s, by stating, ‘What part of that is hard to understand?’ and ‘What you’re doing is bickering. What that was, that was a challenge to my order now masquerading as some sort of valid question.  No, it wasn’t.  It was just a challenge to the order.  It was bickering.’”

The Commission stated that the judge’s “misconduct was significantly aggravated” because, in 2014, he had received an advisory letter for misconduct in 2 family law matters.

 

Throwback Thursday

10 years ago this month:

  • Adopting the findings of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly admonished a judge for releasing a relative on her own recognizance.  In the Matter of Council (New Jersey Supreme Court May 3, 2010).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s order, based on a stipulation, publicly reprimanding a judge for changing a defendant’s sentence after the defendant stated he intended to request a trial de novo.  In re Ridge (Utah Supreme Court May 12, 2010).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for comments to 2 female attorneys.  In re Henry, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct May 14, 2010).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for delay in 2 cases.  In re Sheldon, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct May 14, 2010).

 

A sampling of recent judicial ethics advisory opinions

  • A judge may consult about adjudicative responsibilities with another judge, individually or on a listserv, as long as he does not receive factual information that is not part of the record and makes an independent decision in the matter.  Michigan Opinion JI-149 (2020).
  • As long as the judge does not discuss any pending or impending cases, a judge presiding over a dependency/delinquency docket may meet with attorneys working for Children’s Legal Services, without other stakeholders, to discuss docket management, scheduling issues, and expectations for motion practice, but it would be prudent for the judge to invite all stakeholders to the meeting.  Florida Opinion 2020-5.
  • A judge is not disqualified from cases involving the city prosecutor even though their children are schoolmates and friends outside of school when she and the prosecutor have no interaction other than scheduling visits for their children to see each other.  New York Opinion 2019-161.
  • While a lawsuit challenging the legitimacy of such arrests in New York’s courthouses is pending or impending, a town justice must not lobby the town board to adopt a policy prohibiting civil immigration arrests in the town court.  New York Opinion 2019-135.
  • Judges may attend school programs to generally educate parents and students about truancy-related issues and court processes.  Judges should not participate as volunteer “judges” in school-sponsored truancy intervention programs in which the judge engages directly with specific at-risk families or appears to “preside” over dockets.  Judges may not be members of a “truancy team” to assist a particular family or review the details of truancy issues in specific cases.  North Carolina Opinion 2020-1.
  • A judge may attend an event honoring black female judges if the event is not also a fund-raiser.   Florida Opinion 2020-4.
  • Judges must not publish their own charitable contributions on social media.  Judges may support charitable organizations on social media.  A judge who is on a charitable organization’s boards of directors may permit his position to be listed on the organization’s websites and social media.  If a judge has reservations about being associated with any charitable organization, the judge should avoid the association, including through social media and other digital media used by the organization.  Michigan Advisory Opinion JI-148 (2029).
  • A judge may not participate in a conference call organized by a federal legislator to plan an event on Capitol Hill in which individuals of a particular ethnic/cultural heritage gather and attend workshops on issues such as immigration, education, the workforce, the U.S. economy, and trade.  New York Opinion 2019-138.
  • A judge may personally appeal the denial of claims for health insurance coverage for her dependent child and may seek reversal of charges imposed by the child’s college.  New York Opinion 2020-18.
  • A district court commissioner may not accept a temporary position as a census taker/enumerator.  Maryland Opinion Request 2020-6.
  • A court attorney-referee may participate in a census education drive organized by his fraternity/sorority, provided his participation is strictly neutral, non-partisan, and informational.  New York Opinion 2019-149.
  • A judge may not serve on the executive committee of a regional Boy Scouts Council when several cases have been filed against the organization under the Child Victims Act and a member of the executive committee was recently charged with sexual abuse of children.  New York Opinion 2020-3.
  • A judge may serve as a board member on a local council of the Boy Scouts of America, but must resign if the council becomes involved in litigation.  A judge may mentor high school students through a program organized by a not-for-profit.  A judge may not serve on the board of a network of not-for-profit agencies when some of those agencies engage in advocacy, accept court referrals, or are eligible for appointments in the judge’s court.  New York Opinion 2020-55.
  • A town justice may attend public town board meetings as an observer.  New York Opinion 2019-158.
  • A judge may make a private monetary donation to a non-judicial candidate’s campaign even though the candidate must publish a public financial report of donations.  Michigan Opinion JI-145 (2020).
  • Judicial officers and judicial candidates may advertise their campaigns on personal or professional social media accounts but may not use those accounts to solicit or accept campaign contributions.  A judicial candidate’s campaign committee may solicit contributions through social media platforms.  Michigan Opinion JI-147 (2019).

 

Throwback Thursday

20 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Conduct, the Alaska Supreme Court publicly reprimanded a former judge for going outside the merit selection process to appoint as coroner an individual who had not applied during the application period; whose name was suggested by the chief justice; whom the judge knew to be a friend of the chief justice; on the basis of criteria (legal training and experience) that were not part of the position’s stated qualifications; and on terms that were significantly different from those advertised to the general public.  In the Matter of Johnstone, 2 P.3d 1226 (Alaska 2000).
  • Pursuant to the recommendation of the Judicial Discipline and Disability Commission, the Arkansas Supreme Court removed a judge from office for (1) continuing to represent 2 clients in litigation after becoming a judge; (2) willfully failing to honor a subrogation agreement with a union for medical expenses paid on a client’s behalf; (3) failing to properly report attorney’s fees, referral fees, and income from a trust on the financial interest statement required to be filed with the secretary of state; (4) writing 59 insufficient funds checks between 1993 and 1997; (5) failing to pay federal income taxes in 1994; (6) placing the license tag for his Toyota on his Ford pickup truck; and (7) depositing client funds in a personal account rather than a trust account.  Judicial Discipline and Disability Commission v. Thompson, 16 S.W.2d 212 (Arkansas 2000).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for accepting free tickets to baseball games from members of a law firm whose lawyers appeared before him.  Inquiry Concerning Luzzo, 756 So. 2d 76 (Florida 2000).
  • Pursuant to a stipulation, the Florida Supreme Court publicly reprimanded a former judge who, while a judge, had been routinely abusive, demeaning, and sarcastic to litigants, witnesses, and attorneys.  Inquiry Concerning Newton, 758 So. 2d 107 (Florida 2000).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline suspended a part-time judge for 6 months and publicly reprimanded her for serving as a referee for a township justice court and alternate municipal court judge while her membership status with the State Bar of Nevada was “inactive” because she had failed to obtain the required annual continuing legal education.  In the Matter of the Ungaro, Findings of Fact, Conclusions of Law, Decision and Imposition of Discipline (Nevada Commission on Judicial Discipline May 17, 2000).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline suspended a part-time judge for 6 months and publicly reprimanded him for serving as a referee for a township justice court and alternate municipal court judge while his membership status with the State Bar of Nevada was “inactive” because he had failed to obtain the required annual continuing legal education.  In the Matter of Morrison, Findings of Fact, Conclusions of Law, Decision and Imposition of Discipline (Nevada Commission on Judicial Discipline May 17, 2000).
  • Pursuant to the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for (1) knowingly convicting a defendant who was charged with DWI of careless and reckless driving when the defendant had not been charged with that offense and the offense was not a lesser included offense; and (2) taking a guilty plea in the hallway.  In re Brown, 527 S.E.2d 651 (North Carolina 2000).
  • Adopting the findings and conclusions of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a judge for 6 months without pay for engaging in ex parte communications with employees of the county department of children and family services.  Office of Disciplinary Counsel v. Ferreri, 727 N.E.2d 908 (Ohio 2000).

 

Recent cases

  • With the judge’s agreement, the D.C. Commission on Judicial Disabilities and Tenure determined that a judge violated the code of judicial conduct by (1) making comments that were not germane to the disposition of a case to send messages to attorneys and the public; and (2) in a child custody case, failing to follow established procedures required by clear and unambiguous law and making comments that one of the parties interpreted as a threat and demonstration of his bias against her; the Commission concluded that no further action or sanction was warranted.  Re Christian, Determination and undertaking (D.C. Commission on Judicial Disabilities and Tenure April 20, 2020).
  • Approving a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for, in a dispute with county officials regarding benefit payments for the drug court coordinator, negotiating on the coordinator’s behalf in his capacity as judge and behind the scenes with the coordinator’s attorney and threatening the county auditor with contempt unless the coordinator was offered a substantial settlement.  In the Matter of Miller, Order (Indiana Supreme Court April 30, 2020).
  • Based on the judge’s admissions, the Montana Supreme Court suspended a judge for 30 days without pay for (1) failing to properly report that she employed H.W. as her nanny, babysitter, and/or office worker; denying H.W.’s employment status during the discipline proceedings; and making false and misleading statements to the University of Montana School of Law to preclude H.W.’s admission; (2) publicly endorsing 2 partisan candidates for non-judicial offices on her personal Facebook page; (3) contributing to a partisan candidate; (4) having endorsements from 2 partisan candidates and a political organization had on her campaign Facebook page; and (5) during her campaign, claiming 2 years of experience under the student practice rules as 2 years of law experience and giving herself credit for approximately 80 jury trials while she was a law clerk for a federal judge.  Inquiry Concerning Harada (Montana Supreme Court April 17, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) initiating, engaging in, and considering an ex parte communication with a deputy sheriff concerning a jail policy and practice related to the merits of a motion pending before him in a criminal case and failing to disclose the communication and (2) failing to report 16 cases to his administrative judge on his quarterly reports of cases pending more than 60 days without decision.  In the Matter of Carter, Determination (New York State Commission on Judicial Conduct March 31, 2020).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for, during her 2018 campaign for election, (1) publishing a campaign advertisement and distributing campaign materials that gave the impression that she would consider revenue generation for the town in her judicial decisions and (2) liking or replying to crude Facebook posts by her supporters about her election opponent.  In the Matter of VanWoeart, Determination (New York State Commission on Judicial Conduct March 31, 2020).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge who had pled guilty to attempted burglary in the second degree, a felony.  In the Matter of Cicale, Decision and order (New York State Commission on Judicial Conduct April 2, 2020).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge who had pled guilty to federal tax evasion charges.  In the Matter of Seedorf, Decision and order (New York State Commission on Judicial Conduct April 2, 2020).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge who resigned after the Commission alleged in a formal written complaint that, in September 2018, the judge had operated his motor vehicle while under the influence of alcohol and asserted his judicial office with the police officer at the scene in an attempt to avoid arrest or other adverse consequences.  In the Matter of Rebolini, Decision and order (New York State Commission on Judicial Conduct April 30, 2020).
  • Agreeing with the recommendation of the Board of Professional Conduct, which adopted findings of a panel based on the parties’ stipulations, the Ohio Supreme Court publicly reprimanded a judge for operating a vehicle while under the influence of alcohol and referring to her judicial office during the traffic stop.  Disciplinary Counsel v. Doherty (Ohio Supreme Court April 14, 2020).
  • Adopting the findings and recommendation of the Board of Professional Conduct, the Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months, with the entire suspension stayed conditionally, for having a lengthy ex parte conversation with one party after the other party had left the courtroom following a hearing and discussing the evidence in case and her personal views on the absent party’s integrity, indicating how she intended to rule, making inappropriate comments about the parties’ religions, and using profanity; and failing to disqualify herself from the case after the ex parte communication.  Disciplinary Counsel v. Porzio (Ohio Supreme Court April 23, 2020).
  • Based on the findings and conclusions of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals suspended a magistrate for 90-days without pay, fined him $2,000, and reprimanded him for violating a state fishing regulation, displaying his court identification card to the Department of Natural Resources officers, his “belligerent and coercive behavior” toward the officers, and denying in a sworn statement during the investigation that he had acted in a disrespectful and coercive manner toward the officers.  In the Matter of Ferguson (West Virginia Supreme Court of Appeals April 22, 2020).

 

 

Throwback Thursday

25 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for eliminating the suspended portions of a sentence and immediately remanding a defendant to the custody of the sheriff to punish the defendant for his attorney’s announcement in open court that they would appeal the original sentence.  Letter to Evitts (Arkansas Judicial Discipline & Disability Commission May 24, 1995).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for failing to decide a case for more than a year.  Letter to Reynolds (Arkansas Judicial Discipline & Disability Commission May 24, 1995).
  • The California Commission on Judicial Performance publicly admonished a judge who, at a second judge’s request, had allowed the second judge’s relative to attend traffic school after failing to complete it when first ordered to do so and had dismissed a failure to appear citation received by the same relative after the other judge indicated that he was responsible for the relative’s failure to appear and that he would take care of the inadequate muffler with which the relative had also been charged.  Public Admonishment of Bjork (California Commission on Judicial Performance May 30, 1995).
  • Adopting the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for writing, on his official court stationery, a character reference letter for a personal friend who was awaiting sentencing in federal court.  Inquiry Concerning Ward, 654 So. 2d 549 (Florida 1995).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge who had been charged with DUI.  Inquiry Concerning Esquiroz, 654 So. 2d 558 (Florida 1995).
  • The Kansas Commission on Judicial Qualifications ordered a judge who had been arrested for and charged with driving under the influence of alcohol to cease and desist from any act or acts that could be found to violate the state law, including those relating to the consumption and use of alcoholic beverages.  Inquiry Concerning Beasley, Order (Kansas Commission on Judicial Qualifications May 4, 1995).
  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for (1) for approximately 8 months after taking office, allowing his former law partner to use and/or share the court’s secretary/receptionist, telephone system, post office box, office supplies, and law library; (2) filing a candidate’s report that failed to list cash contributions of $2,300; (3) hiring a law clerk knowing that she was also working as an independent contractor for a private law firm and allowing her to do research for him in a case in which the firm had been counsel for the plaintiff/appellee; and (4) writing a letter on personal judiciary stationery to a U.S. District Court judge recommending leniency in the sentencing of a friend.  In re Decuir, 654 So. 2d 549 (Louisiana 1995).
  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed from office a judge who had pled guilty to 1 misdemeanor count of failing to file a federal income tax return and was sentenced to a 12-month prison term.  In re Huckaby, 656 So.2d 292 (Louisiana 1995).
  • Pursuant to a report filed by the Committee on Judicial Responsibility and Disability, the Maine Supreme Judicial Court disbarred a former judge who had been found liable for fraud committed while a judge.  In re Cox, 658 A.2d 1056 (Maine 1995).
  • Adopting the findings of the Judicial Tenure Commission, the Michigan Supreme Court publicly censured a judge who, during a dispute with another driver over a parking space at a mall, accelerated his car and struck a security officer who had waved a third driver into the parking space.  In re Bradfield, 532 N.E.2d 711 (Michigan 1995).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for, instead of immediately scheduling a trial as the law requires when a defendant in a traffic case pleads not guilty by mail, routinely required those defendants to appear before him for pre-trial “conferences” without notifying the prosecuting authority.  In the Matter of Cavotta, Determination (New York State Commission on Judicial Conduct May 3, 1995).
  • Approving the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for (1) initiating a series of ex parte communications with law enforcement and court personnel concerning a friend’s son who had been taken into custody for breaking and entering a store, informing them that the juvenile was “a good kid,” asking for help on behalf of the juvenile, and stating that the matter was not one for court; and (2) initiating ex parte communications with a law enforcement officer concerning an automobile accident that resulted in charges being filed against the driver of a car in which the daughter of the judge’s friend was a passenger, expressing his opinion that the matter was civil rather than criminal and that if the case came before him he would so declare it, and suggesting to the officer that he reconsider his assessment as to fault.  In re Martin, 456 S.E.2d 527 (North Carolina 1995).
  • Approving the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for comments he made in 2 rape cases.  In re Greene, 456 S.E.2d 878 (North Carolina 1995).
  • The Pennsylvania Court of Judicial Discipline removed a former judge from office and declared him to be ineligible for judicial office for violating laws that prohibit knowingly maintaining devices used for gambling purposes and knowingly permitting premises to be used for unlawful gambling.  In re Chesna, 659 A.2d 1091 (Pennsylvania Court of Judicial Discipline 1995).
  • The Wisconsin Supreme Court suspended a judge for 15 days without pay for remaining as a judge in a criminal case pending against a friend; expressing publicly, from the bench and on the record, his personal views concerning the criminal charge pending against his friend and similar charges pending in other cases; criticizing the gambling investigation in which he himself figured; failing to reveal that the defendant had contacted him; and misrepresenting that the defendant had not contacted him or sought special treatment.  In the Matter of Carver, 531 N.W.2d 62 (Wisconsin 1995).

 

Letter in support

Approving the findings, conclusions, and recommendations of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded in writing 5 judges for submitting a letter encouraging the Florida Department of Children and Families to award a contract to a particular vendor.  Inquiry Concerning Lederman, Caballero, Figarola, Pooler, and Ruiz (Florida Supreme Court March 26, 2020).  (The Court usually orders judges to appear before it for a public reprimand; a written reprimand is a less severe sanction, according to the Court.)

In March 2018, DCF initiated a competitive procurement process to award a contract for the lead agency for community-based care for the southern region of Florida.  The contract was potentially worth more than $500 million over 5 years.  2 non-profit corporations submitted proposals:  Our Kids of Miami-Dade and Monroe, Inc. and Citrus Health Network.  Our Kids had held the contract and served as the lead agency over the preceding several years.

In September 2018, Judge Lederman drafted a letter advocating that Our Kids be selected as the lead agency, which she intended to send to DCF.  She emailed the language to the 4 other judges and others, seeking additional signatories.  Eventually, a letter written on Judge Lederman’s judicial letterhead and signed by the 5 judges was sent to the interim director of DCF and the managing director of the southern region of DCF.  The letter endorsed Our Kids and concluded:  “We have worked with Our Kids and we have complete faith only in the Our Kids model of leadership.  When you select the agency please keep our voices in mind.”

In February 2019, the letter was mentioned in a local newspaper article entitled, “Alleged conflicts of interest roil $500 million child welfare fight.”  DCF terminated the competitive procurement process and restarted it.  There was no evidence that the judges’ letter affected DCF’s decision.  Our Kids and Citrus Health Network were again the only 2 competitors.  In April 2019, DCF awarded the contract to Citrus Health Network.

The Commission recommendation noted that, arguably, the judges could have written a letter “explaining their knowledge working with the provider in a much narrower context,” but concluded that the letter that was sent inappropriately placed the judges and the judiciary “in the position of appearing to advocate on behalf of one private entity over another.”  The Commission found that the language of the letter raised questions about the judges’ impartiality, noting that “the employees and vendors of the Lead Agency regularly appear in court assisting and advocating on behalf of clients of DCF, and the agency” and that “such an enormous and hotly contested contract award will almost certainly result in legal challenges, and likely even court proceedings” in the judges’ circuit.  The Commission emphasized that it did not believe that the judges had not been “motivated by any corrupt intent or design” and had intended “to protect the interests of the children and families served by DCF.“  However, it concluded, as the judges acknowledged, “their actions went too far in this instance.”

It is rare but not unprecedented for judicial discipline cases to involve more than 1 judge.

  • Based on conditional agreements for discipline, the Indiana Supreme Court (a) suspended 2 judges for 30 days without pay for appearing intoxicated in public, behaving in an injudicious manner, and becoming involved in a verbal altercation outside a White Castle restaurant and (b) suspended 1 judge for 60 days for, in addition, becoming involved in a physical altercation for which he was criminally charged and convicted. In the Matter of Adams, Jacobs, and Bell, 134 N.E.3d 50 (Indiana 2019).
  • Following a hearing on a complaint brought by the Judicial Inquiry Board, the Illinois Courts Commission (a) suspended 1 judge for 4 months without pay for presiding over cases in which the husband of a judge with whom he was having an affair represented a party without disclosing the relationship and for a pattern of deceptive conduct to hide the affair from the chief judge and (b) publicly censured the judge with whom he was having the affair for failing to take or initiate any appropriate disciplinary measures against him although she knew he was presiding over her husband’s cases. In re Drazewski and Foley, Order (Illinois Courts Commission March 11, 2016).
  • The New York Court of Appeals (a) removed a judge for delaying repayment of a $250,000 loan from his campaign manager, failing to disclose the loan on financial statements and loan applications, and giving misleading and evasive testimony to the State Commission on Judicial Conduct and (b) publicly censured a second judge, his brother who had co-signed the loan, for omitting it from financial statements and loan applications. In the Matter of Joseph Alessandro, In the Matter of Francis Alessandro, 918 N.E.2d 116 (New York 2009).