A sampling of recent judicial ethics advisory opinions

  • A judge may not appoint their personal financial manager to a fiduciary position. New York Opinion 2022-59.
  • A judge who volunteers as a coach for a youth sports team is not required to disqualify when an attorney whose child is on the team appears in a case unless there are other facts that would cause a person to doubt their ability to be impartial, but the judge must disclose on the record information reasonably relevant to their decision not to disqualify. California Formal Opinion 2022-19.
  • A judge may not perform work on an amicus brief that will be filed by the bar association in a high-profile federal appeal. New York Opinion 2022-91.
  • To determine whether to report a gift and, if so, what value to list, a judge should use reasonable diligence to determine its value, for example, asking a bar association the value of a commissioned portrait and crystal gavel given to the judge or contacting an establishment that sells the item or similar items. Florida Opinion 2022-6.
  • A judge who is considering leaving judicial service may apply for jobs while still holding office, but if the judge applies for employment with a party or a law firm appearing before the judge, recusal will likely be necessary. If the judge accepts employment with a law firm, the judge may not authorize the firm to advertise their anticipated post-judicial employment at the firm. Florida Opinion 2022-7.
  • A judge may not serve on a state education department committee that will address how local school districts report student/school-related conduct, communication, and disciplinary matters to the department. Florida Opinion 2022-10.
  • A judge may participate in a group organized by the governor’s office and the Department of Motor Vehicles to propose simpler language and more logical organization for the traffic laws if the membership is balanced with subject experts from relevant state agencies, non-profit organizations, prosecutors, and defense counsel. The judge may be reimbursed for travel and lodging expenses reasonably incurred for their participation but may not be compensated. New York Opinion 2022-89.
  • A judge may write a children’s book about what judges do and what it takes to become a judge, emphasizing that children who are members of minority groups can grow up to become judges. As long as they do not comment on pending cases or legal controversies or give legal advice, and the activities do not conflict with their professional schedule, the judge (1) may give public readings of the book at schools, community centers, and similar institutions, but may not wear a judge’s robe when doing so, (2) may give public readings in conjunction with a “lawyers for literacy” program but may not solicit lawyers to purchase the book or solicit invitations to such events, and (3) may promote the book through media outlets such as radio and be identified as a sitting judge and discuss the role of a judge. Florida Opinion 2022-9.
  • A judge may give a historical presentation to a church on a U.S. Supreme Court decision about abortion and discuss the majority, concurring, and dissenting opinions on the possible ramifications of the case, but may not offer any personal views. Maryland Opinion Request 2022-24.
  • A judge may create and fully fund scholarships at their former elementary school and college. A judge may volunteer with foster youth through a city agency unless their protégé is or becomes involved in court proceedings. New York Opinion 2022-55.
  • A judge may serve on the steering committee of a not-for-profit cultural/religious organization associated with a college and donate at least $1,000 a year as required; may permit their name to be listed on the organization’s regular letterhead, including the title “Honorable,” even if the letterhead might be used for fund-raising events if comparable designations are listed for other committee member; and may permit their name to be listed on an invitation to a fund-raiser unless the formatting reasonably creates an impression that the committee members collectively and/or the judge individually are personally soliciting funds or personally inviting people to the fund-raiser. New York Opinion 2022-73.
  • A judge must object in writing to the use of their name on a flyer announcing a not-for-profit civic organization’s fund-raiser and advise the organization to remove or omit their name from any further promotions. After objecting, the judge may attend the event, be recognized as one of the inductees during the ceremony, and buy a table for friends and family to attend. New York Opinion 2022-84.
  • A judge makes referrals to a not-for-profit entity while presiding in a problem-solving court may not accept complimentary tickets to the entity’s lavish fund-raising gala, but may purchase tickets and attend the event. New York Opinion 2022-72.
  • The judge members of a bench-bar committee should not have their names on advertisements for CLE programs held by the committee to raise funds for charitable organizations, should not be involved in the selection of the charities that will receive the donations, and should not hand a check to the charities. West Virginia Opinion 2022-23.
  • A judge may meet with a commercial television producer and their creative team to discuss a possible television show involving the criminal justice system even if the meeting could result in an employment offer or business opportunity that the judge cannot begin without resigning. New York Opinion 2022-99.
  • A judge may not appear as a judge on a cable TV show similar to Judge Judy. West Virginia Opinion 2022-21.
  • A new judge may submit vouchers for legal fees earned for work performed as assigned counsel prior to assuming the bench. New York Opinion 2022-86.
  • A judicial candidate who learns that their political party is circulating petitions naming them as a candidate for a non-judicial office must request in writing that the party immediately stop and advise that, if elected, they will decline to serve. New York Opinion 2022-61.

Throwback Thursday

5 years ago this month:

  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for 8 instances of unjustified delay in a variety of cases over 3 years. In re Roberts, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 26, 2017).
  • A hearing panel of the Ontario Judicial Council suspended a judge for 30 days without pay and publicly reprimanded him for wearing a “MAKE AMERICA GREAT AGAIN” baseball hat in the courtroom the day after the U.S. presidential election. In the Matter of Zabel, Reasons for decision (Ontario Judicial Council September 11, 2017).

More Facebook fails

In an interlocutory appeal, the Tennessee Court of Appeals found that a trial judge’s Facebook posts and other public statements were “easily construable as indicating partiality” against the manufacturers of prescription opioid medications being sued by local governments in a case over which he was presiding.  Clay County v. Purdue Pharma (Tennessee Court of Appeals April 20, 2022).  The court reversed the judge’s denial of a motion to recuse and remanded the case to be transferred to a different judge.

In an interview with a reporter for Law360.com, the judge said, among other things, that alleged discovery violations by the defendants Endo Health Solutions Inc. and Endo Pharmaceuticals Inc. were “like a plot out of a John Grisham movie, except that it was even worse than what he could dream up.”

In a subsequent post on his personal Facebook page, the judge asked:  “Why is it that national news outlets are contacting my office about a case I preside over and the local news is not interested.”  In response to a comment that, “You’re not trying to ban drunken bridesmaids on peddle carts,” the judge posted:  “[N]ope.  Opioids.”  The judge “liked” the follow-up comment:  “I don’t know if you’re going to get the help or platform you need from those with power/deep pockets.  Many of Tennessee’s powerful have ties to pharmaceuticals.” 

When another commenter asked on Facebook why the case was newsworthy, the judge responded, “Is a $1.2 Billion opioid case.  Our area has been rocked with that drug for decades.  Lots of interesting and new developments about the manufacturers in this case.”  One person commented, “We do not have a serious local news reporting outfit around here. . . .  The Tennessean is a left leaning rag so that leaves the internet to provide people the local ‘news.’”  The judge “liked” this comment and responded:  “This is an earth shattering case, especially for our community.  Fake news is not always what they publish, but what they choose not too also.”  Others commented about who should be held accountable. 

Ordering the judge’s disqualification, the appellate court concluded:

The above Facebook activity can reasonably be construed to suggest that the trial judge has a specific agenda that is antagonistic to the interests of those in the pharmaceutical industry. . . .  In our view, this activity by the trial judge positions himself publicly as an interested community advocate and voice for change in the larger societal controversy over opioids, not an impartial adjudicator presiding over litigation.  This perception is enhanced when considered alongside the trial judge’s ready participation in the Law360.com article and apparent desire, as expressed on his Facebook page, for more local media coverage.

The court noted that the trial judge’s Facebook page appeared “to be devoted in part to his re-election effort given a ‘Re-Elect’ picture banner next to his name” and that the judge appeared “to be motivated to garner interest in this case and draw attention to his stated opposition to opioids.”  It concluded that regardless whether he “is actually personally committed to banning opioids, his public post reflects this sentiment.” 

Subsequently, the Tennessee Board of Judicial Conduct suspended the judge with pay for 30 days for his statements about the opioid case and for his communications and physical relationship with a female litigant in a case pending before him.  In re Young, Order (Tennessee Board of Judicial Conduct July 26, 2022).  The Board noted that the judge’s term was ending August 31, 2022, after which it would no longer have jurisdiction over him. 

The Board found that, even after being removed from the case, the judge “continued his public media campaign by conducting additional interviews about the pending case with local and national publications and authoring additional social media posts,” which, the complaint by the pharmaceutical company’s lawyer alleged, risked tainting the jury pool.  Noting that the opioid case involved “numerous parties and more than a billion dollars,” the Board stated that the judge had not taken responsibility for the conduct that had led to his removal from the case and disrupted the orderly administration of justice, but in his response to the complaint, “blamed the parties and their lawyers,” “attempted to portray himself as a victim,” and “asserted, without citing any legal authority, that as a judge he essentially enjoyed a constitutional right to say and do as he pleased in the media and on social media platforms concerning the cases assigned to his court.”

In October 2020, based on the judge’s consent, the Board had suspended him for 30 days with pay and publicly reprimanded him for sending women inappropriate messages on social media platforms, but it had held the suspension in abeyance provided no meritorious complaints were filed against him during the remainder of his term.  (The Board does not have the authority to suspend a judge without pay.) 

* * *
The Arizona Commission on Judicial Conduct publicly reprimanded a judge for posting on his Facebook page a litigant’s request for an extension of time that claimed his puppy ate his paperwork.  Williams, Order (March 21, 2022).  The judge’s Facebook account identifies him as “Judge Gerald A. Williams.”

On his Facebook page, the judge posted a photograph of a pleading in which a litigant claimed that his puppy had eaten his paperwork and, therefore, he needed an extension of time to complete defensive driving school.  The judge “crudely attempted to redact the pleading by placing torn post-it notes over the litigant’s name,” but he did not cover the case number, and the text underneath the post-it notes was partially visible.  Several of the judge’s followers commented on the post, and the Commission stated that, although none of the comments “were tremendously disparaging or negative,” “the intention was clearly to mock the litigant’s request.”  Screenshots of the post and comments are attached to the Commission’s order.

After receiving notice of the complaint, the judge deleted the post.  In his response to the Commission, the judge “claimed that he was only trying to share an amusing anecdote, and he apologized if he unintentionally insulted the litigant.”

* * *
The West Virginia Judicial Investigation Commission publicly admonished a magistrate for, in addition to other misconduct, serving as one of several administrators/moderators for a neighborhood watch Facebook page.  Public Admonishment of Weiss (West Virginia Judicial Investigation Commission April 25, 2022).  The page states:

This page is the North View Neighborhood Watch Group.  This page is solely intended for North View, Clarksburg, West Virginia residents and past residents who want to make North View what it once was, again.  We are tired of the drugs, the run down houses, and all of the younger generation not caring about our beloved neighborhood.  Please report here, in confidence, to the moderators, any & all illegal activities that you see happening on our streets and in our homes.  It will be reported to the proper authorities & put on blast via our page.  We must do this as a Community!

After an incident in which someone had knocked on the door of the magistrate’s home and run away, the magistrate’s wife posted on the neighborhood watch Facebook page that the teens responsible had been caught.  Several members of the neighborhood, including parents of some of the teens, responded angrily that the teens were innocent, and one of the parents filed a complaint.

The Commission found that the magistrate created at least the appearance that he was pro-prosecution and pro-law enforcement by being the administrator for the neighborhood watch Facebook page, and the magistrate admitted that serving as administrator could lead a reasonable person to think that he was biased toward law enforcement.  The Commission also found that that his wife’s comment “was unseemly in light of the fact that people thought he was the one posting.” 

The Commission noted that it had previously warned the magistrate about posting on his Facebook page that he would dismiss any criminal citations issued for not wearing a mask because he thought it was unconstitutional.  The magistrate had admitted his post was wrong and apologized.

* * *
The Texas State Commission on Judicial Conduct issued a private reprimand and order of additional education to a judge who “made callous and discriminatory comments on social media which cast reasonable doubt on the judge’s capacity to act impartially as a judge.”

The Arizona Commission on Judicial Conduct dismissed a complaint that a judge had posted a racist social media post, but, finding that “certain language” in the post “gave the perception of bias and was an appearance of impropriety,” the Commission reminded the judge “to exercise vigilance over the contents of her social media postings, both personally and professionally.” According to the complaint, the judge’s post read:

VOTE AS IF:
Your skin is not white.
Your son is gay.
Your sister was a victim of gun violence.
Your daughter is transgender.
Your grandparents need medical care.
Your home is on fire.
Your partner is an immigrant.
Your brother is a veteran suffering from PTSD.
Your best friend is a victim of domestic abuse.
Your house is flooded.
Your folks are homeless.
Your daddy is Two Spirit.
Vote as if your family depends on it.

In its annual report for 2021, the Pennsylvania Judicial Conduct Board reported that it had issued:

  1. A letter of counsel to a judge who posted remarks and photographs on their Facebook page expressing support for a particular political party and candidates and expressing a negative opinion about certain U.S. Supreme Court opinions and justices.
  2. A letter of counsel to a judge who posted a photograph on Facebook and made comments to the media about the photograph that manifested a preference for a particular political party; and
  3. A letter of caution to a judge who unintentionally submitted Facebook friend requests to a victim in a criminal proceeding and a defendant in a criminal proceeding while using Facebook to investigate the identity of the victim and the whereabouts of the defendant.

Throwback Thursday

10 years ago this month:

  • • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for submitting a character reference letter on behalf of an attorney in a reinstatement proceeding, without being duly summoned. Barth, Order (Arizona Commission on Judicial Conduct September 7, 2012).
  • Based on the presentment of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly censured a former judge and disqualified him from holding judicial office for 5 years for initiating ex parte conversations with the prosecutor about a speeding case against his daughter’s former speech teacher, attempting to plea bargain the case with the prosecutor, presiding over the trial despite a partiality for the defendant, and allowing his professional relationship with the prosecutor and police officer to influence his judicial conduct.  In the Matter of Solomon, 51 A.3d 836 (New Jersey 2012).
  • Pursuant to the judge’s consent, the North Carolina Judicial Standards publicly reprimanded a judge for failing to enter an equitable distribution judgment for 46 months after the conclusion of the hearing.  Public Reprimand of Edwards (North Carolina Judicial Standards September 17, 2012).
  • Adopting stipulated facts and violations, the Ohio Supreme Court suspended a former magistrate’s law license for 1-year (but stayed the suspension) for treating the litigants and their counsel in a case with disdain, permitting the guardian ad litem to lecture the parties on the record, terminating hearings before the parties had presented all their evidence and made a record of their objections, acting on his own whims rather than inquiring into the best interests of the child, failing to resolve any of the matters for more than a year and a half, and failing to conduct hearings in a manner that would permit the judge assigned to the case to resolve the issues in his stead.  Disciplinary Counsel v. McCormack, 977 N.E.2d 598 (Ohio 2012).
  • The Pennsylvania Supreme Court affirmed the decision of the Court of Judicial Discipline removing a judge for her work habits, her handling of truancy cases, her handling of landlord/tenant cases, and her demeanor in 6 cases.  In re Merlo, 58 A.3d 1 (Pennsylvania 2012).
  • The Texas State Commission on Judicial Conduct publicly warned a judge because the public release of a videotape of him beating his daughter cast reasonable doubt on his capacity to act impartially as a judge and interfered with the proper performance of his judicial duties and for a pattern of incidents in which the judge displayed anger and poor judicial demeanor toward certain attorneys in his courtroom.  Public Warning of Adams (Texas State Commission on Judicial Conduct September 4, 2012).

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for sua sponte dismissing 2 lawsuits in violation of the law and failing to submit a thorough response to the Commission. Cornejo, Order (Arizona Commission on Judicial Conduct May 24, 2022).
  • Based on the recommendation of the Judicial Discipline & Disability Commission pursuant to the judge’s agreement, the Arkansas Supreme Court suspended a judge for 90 days for a pattern of injudicious comments to defendants on irrelevant factors such as their appearance, background, ethnicity, and whether they lived in the county; the Court also ordered that he never again hold judicial office after his current term ends on December 31, 2024, but held 75 days of the suspension in abeyance subject to conditions.  Judicial Discipline & Disability Commission v. Bourne, Per curiam (Arkansas Supreme Court August 9, 2022).
  • Pursuant to the judge’s consent, the Arkansas Judicial Discipline & Disability Commission publicly censured a judge for a pattern of failing to consider the legal standard for appointing the public defender for misdemeanor defendantsBourne, Letter of censure and recommendation of suspension (Arkansas Judicial Discipline & Disability Commission August 1, 2022). 
  • Adopting the recommendation of the Commission on Judicial Discipline, which was based on a stipulation, the Colorado Supreme Court suspended a judge from office for 30 days without pay and publicly censured him for pointing  an AR-15 style rifle at his adult stepson during a confrontation.  In the Matter of Thompson (Colorado Supreme Court August 29, 2022).
  • Accepting a discipline by consent agreement and the recommendation of the hearing panel of the Judicial Qualifications Commission, the Georgia Supreme Court suspended a judge for 90 days without pay and ordered that she be publicly reprimanded for (1) from September 2015 through February 2018, regularly arriving to work at the courthouse much later than when she was scheduled to preside over court matters; (2) being absent from work approximately 40 days in 2016, 63 days in 2017, and 19 days from January 1 through July 17, 2018; and (3) refusing to provide at least 6 in-custody defendants their opportunity to appear in court to which they were entitled by law, resulting in their remaining incarcerated for days after they would have been entitled to release.  Inquiry Concerning Gundy (Georgia Supreme Court August 23, 2022).
  • With the judge’s approval and acceptance, the Kansas Commission on Judicial Conduct has ordered a judge cease and desist from failing to hear and decide matters assigned to her based on an April 2022 complaint alleging that the judge had not ruled on the complainant’s motion to reconsider a memorandum of judgment and decree of divorce after hearing the motion on November 9, 2021.  Inquiry Concerning Kirby, Order (Kansas Commission on Judicial Conduct August 3, 2022).
  • Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for failing to issue a written divorce decree for over 3 years after presiding over the trial and failing to resolve and issue orders on other post-trial matters.  In re Saitta, Stipulation and order of consent (Nevada Commission on Judicial Discipline August 1, 2022).
  • Accepting a stipulation based on the judge’s resignation and affirmation that she has vacated her office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge; in June 2021, the Commission asked the judge to respond to the complaint it was investigating that she had failed to file reports or remit funds to the Office of the State Comptroller in the time required by law for November and December 2019, resulting in her judicial salary being stopped on May 20, 2020.  In the Matter of Matthews, Decision and order (New York State Commission on Judicial Conduct August, 2022).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for appearing at a small claims proceeding as if he were an attorney to advocate for his wife, who was a defendant, referring to his judicial status during the proceeding, and disparaging the plaintiff.  In the Matter of Kennedy, Determination (New York State Commission on Judicial Conduct August 24, 2022).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a magistrate for cursing at an attorney in open court and, in a separate incident, loudly complaining to the chief magistrate and yelling at the scheduling clerk about not receiving timely notice of a jury trial; the Court also ordered that the magistrate complete at least an additional 20 hours of anger management counseling.  In the Matter of Martin (South Carolina Supreme Court August 31, 2022).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for sexually harassing his court clerk, including telling crude jokes of a sexual nature and making comments about her clothes, and creating an intimidating, hostile and offensive work environment.  Public Warning of Grissam (Texas State Commission on Judicial Conduct August 22, 2022).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for, during jury selection in a case, referring to COVID-19 as the “China Virus;” stating, “yeah, I said it!” and “the attorneys would be upset I said that;” calling some of the required questions for potential jurors “stupid;” and commenting, “I don’t know why I have to ask this;” the Commission also ordered the judge to obtain 1 hour of instruction with a mentor about courtroom demeanor.  Public Admonition of Low and Order of Additional Education (Texas State Commission on Judicial Conduct August 22, 2022), on review to special court of review.
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for failing to withdraw as attorney of record in at least 10 cases after becoming a judge.  Public Admonition of Lucas (Texas State Commission on Judicial Conduct August 29, 2022).
  • The Texas State Commission on Judicial Conduct publicly warned a former judge for failing to obtain his required judicial education.  Public Warning of Salinas (Texas State Commission on Judicial Conduct August 10, 2022).
  • The West Virginia Judicial Investigation Commission publicly admonished a magistrate for wearing a law enforcement uniform in advertisements and social media posts for his campaign and appearing in photographs with campaign signs advocating the election of other candidates.  In the Matter of Jeffries (West Virginia Judicial Investigation Commission August 16, 2022).

Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for an approximately 20-month delay in rendering a decision in a civil case.  Letter to Sawyer (Arkansas Judicial Discipline & Disability Commission September 23, 2002).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for a public confrontation with another patron at a bar.  Public Admonition of Keeshan (Texas State Commission on Judicial Conduct September 3, 2002).
  • Pursuant to the recommendation of the Judicial Inquiry and Review Commission, the Virginia Supreme Court publicly censured a judge for enforcing a child custody order that he knew had been stayed by another court.  Judicial Inquiry and Review Commission v. Lewis, 568 S.E.2d 687 (Virginia 2002).

Summer Judicial Conduct Reporter

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

  • Recommendations by judges
  • Anonymous complaints to judicial conduct commissions
    • Recent cases
    • Prejudicial delay: Raye (California Commission 2022)
    • Blurred boundaries: Barker, 875 S.E.2d 44 (South Carolina 2022) and Underwood, 873 S.E.2d 689 (South Carolina 2022)

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.

Supporting or opposing political candidates

In Rule 4.1A(3), the American Bar Association Model Code of Judicial Conduct prohibits judges and judicial candidates from publicly endorsing or opposing a candidate for any public office. Almost all states have a version of this prohibition, and federal and state courts have held that it does not violate the First Amendment. Winter v. Wolnitzek, 834 F.3d 681 (6th Circuit 2016); Platt v. Board of Commissioners on Grievances and Discipline, 894 F.3d 235 (6th Circuit 2018); Siefert v. Alexander, 608 F.3d 974 (7th Circuit 2010); Wersal v. Sexton, 674 F.3d 1010 (8th Circuit); Wolfson v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016); Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007); In the Matter of Raab, 793 N.E.2d 1287 (New York 2003).

As with all of the code, the prohibition on judges’ endorsing or opposing candidates applies on-line and on social media. Liking or sharing a candidate’s social media posts is considered an endorsement, and liking or sharing others’ support or opposition to a candidate is considered support or opposition by the judge or candidate.

Examples of conduct in support of or in opposition to political candidates for which judges have been disciplined:

  • A judge publicly opposed President Barack Obama’s re-election, for example, signing letters from an organization called the United States Justice Foundation that stated, “our effort may be all that stands between four more years of Barack Obama in the White House”; and “[w]e sit back and hope that he is defeated in November at our own peril!” Inquiry Concerning Kreep, Decision and order (California Commission on Judicial Performance August 7, 2017).
  • A judge wore a baseball cap endorsing a judicial candidate. In re Klein, Order (Illinois Courts Commission June 16, 2005).
  • A judge personally opposed a candidate for township trustee, for example, frequently declaring in newspaper interviews that he would run for township trustee against the candidate if no one else did, saying, “Every potentially good candidate has dropped the ball, and I’m the only one who has picked up the ball. And I will not pass the ball unless it’s to someone who can slam dunk the ball.” In the Matter of Katic, 549 N.E.2d 1039 (Indiana 1990).
  • A judge gave permission for a campaign sign supporting the sheriff’s re-election to be placed in the yard of his home. In the Matter of McCormick, 639 P.3d 735 (Iowa 2002).
  • A judge authorized the use of his name in an endorsement for a mayor’s re-election campaign that was published in the local newspaper. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007).
  • A judge participated in a party’s phone bank, making calls on behalf of a candidate for the county legislature. In the Matter of Raab, 793 N.E.2d 1287 (New York 2003).
  • A judge recorded a radio advertisement endorsing a candidate for town justice, authorized the candidate to print the statement in an ad, and sent a letter to the editor of the local newspaper repeating the text of his radio statement. In the Matter of Crnkovich, Determination (New York State Commission on Judicial Conduct November 18, 2002).
  • A judge signed and issued letters endorsing two candidates for the nomination for the town board in the primary election, praising their abilities and qualifications, asking local residents to “support our entire ticket,” and opposing the nomination and criticizing the campaign of a third candidate. In the Matter of Campbell, Determination (New York State Commission on Judicial Conduct November 12, 2004).
  • A judge referred to his judicial position in a telephone message requesting voters to support a candidate for lieutenant governor. In the Matter of Koon, 580 S.E.2d 147 (South Carolina 2003).
  • A judge attended a fund-raising event in support of the county tax assessor’s re-election campaign, introduced the assessor, and urged attendees to vote for her, saying, for example, “She’s the best damn tax assessor collector that we have in this country. And so you’d be making a huge mistake — you’d be making a huge mistake – if you even give any attention to anybody else that runs for that office.” Public Warning of Cox (Texas State Commission on Judicial Conduct December 4, 2020).
  • A judge authorized the use of his name, title, and likeness on a campaign mailer for a state senate candidate. Public Warning of Cano (Texas State Commission on Judicial Conduct December 13, 2018).
  • A judge sat in the campaign tent of candidates for mayor and city commissioners. Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).
  • A judge wrote a letter to the editor expressing support for a candidate for sheriff. In the Matter of Votendahl, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 22, 2011).
  • A judge made two donations, totaling $350, to the campaign of a candidate for mayor and introduced the candidate at a campaign kick-off rally. In re Bennett, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 22, 2022).
  • A judge attended a political function for a congressional candidate where he personally contributed $75 to the campaign. In re Krouse, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct May 5, 2005).
  • A judicial candidate contributed to a candidate for public office. In the Matter of Cohen, Agreed order of public reprimand (Kentucky Judicial Conduct Commission July 21, 2014).
  • A judge contributed $525 to the campaign of a candidate for the state house of representatives. Letter of Informal Adjustment to Bourne (Arkansas Commission on Judicial Discipline and Disability September 19, 2014).
  • A judge conveyed a city council candidate’s request for a contribution to her husband, delivered the campaign literature to him, and personally delivered a check written by her husband on their joint account to the candidate. In the Matter of Prochaska, Reprimand (Nebraska Commission on Judicial Qualifications October 7, 2002).
  • A judge wrote “on behalf” of his wife on a check he gave to the campaign manager for a candidate for secretary of state at the state party office after stating, “Hi. I’m Dick Sallee. I want to give you $100, but, I want you to put it in my wife’s name because I’m a sitting judge and I’m not supposed to be doing this.” In the Matter of Sallee, 579 N.E.2d 75 (Indiana 1991).
  • A judge made contributions from his excess campaign funds to seven candidates for public office. In re Shea, 815 So. 2d 813 (Louisiana 2002).

Examples of conduct on social media in support of or in opposition to political candidates for which judges have been disciplined:

  • A judicial candidate “liked” a Facebook post that endorsed a candidate for public office. In the Matter of Cohen, Agreed order of public reprimand (Kentucky Judicial Conduct Commission July 21, 2014).
  • On his Facebook page, a judge, for example, liked Donald J. Trump’s Facebook page and posts on the page, posted screenshots of newspaper photos of himself piloting a boat in the Trump Boat Parade, and liked a post regarding a newspaper endorsement of a candidate for U.S. Senate and commented on another post regarding the endorsement. In the Matter of Quinn, Public reprimand (Minnesota Board on Judicial Standards March 9, 2021).
  • A judge posted on her Facebook page: “Cast your vote in the Senate District 16 Special Election. I will be voting for Angela Turner Lairy! . . . Let’s not lose this seat!” Commission on Judicial Performance v. Clinkscales, 191 So. 3d 1211 (Mississippi 2016).
  • On her personal Facebook page, a judge publicly endorsed a candidate for county commissioner and the incumbent candidate for the county attorney. Inquiry Concerning Harada, 461 P.3d 869 (Montana 2020).
  • During his campaign, a judge on his personal Facebook page posted a link to the Facebook page for the campaign of a town council candidate and “liked” a comment to the post by another Facebook user that stated that the candidate “is a good man.” In the Matter of Schmidt, Determination (New York State Commission on Judicial Conduct November 3, 2020).
  • A judge appeared to endorse a presidential candidate on a Facebook page that identified him as a judge. In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016).
  • A judge shared posts on Facebook in support of or opposition to presidential candidates. Lammey (Tennessee Board of Judicial Conduct November 15, 2019).
  • A judge posted campaign advertisements for candidates for district attorney, mayor, and city commissioner on his Facebook page. Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).
  • A judge allowed a photo constituting an endorsement of a candidate for county commissioner to be posted on his Facebook page. Public Warning of Madrid (Texas State Commission on Judicial Conduct April 3, 2019).
  • A judge publicly endorsed a candidate for director of an electric cooperative and authorized the use of his name, title, and likeness on materials supporting her candidacy in mailings and on social media. In re Oakley, Opinion (Texas Special Court of Review October 25, 2019).
  • In a Facebook post about then-candidate Donald Trump, a judge asked: “Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say . . . about your business practices?” In re Kwan, 443 P.3d 1228 (Utah 2019).

Throwback Thursday

25 years ago this month:

  • The Nevada Commission on Judicial Discipline publicly reprimanded a judge and fined him $1,000 for 7-20 month delays in decisions in 3 cases.  In the Matter of Marren, Findings of fact, conclusions of law, decision, and imposition of discipline (Nevada Commission on Judicial Discipline September 9, 1997).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for, while a candidate, mailing a brochure to voters that gave the unmistakable impression that he would favor tenants over landlords in housing matters.  In the Matter of Birnbaum, Determination (New York State Commission on Judicial Conduct September 29, 1997).
  • The New York State Commission on Judicial Conduct publicly censured a judge for (1) driving his automobile into a tree and pleading guilty to driving while intoxicated; (2) presiding over an ex parte request for a temporary order of protection while under the influence of alcohol; and (3) after his son, who was the court officer assigned to his court had been removed from the courthouse because he appeared intoxicated, confronting 2 sheriff’s officers while intoxicated, demanding to know why his son had been removed from the courthouse, and stating, loudly and angrily, “How can you do this to me? Why are you doing this to me?  After all the support I’ve given you and your department, this is the way your deputies treat me.”  In the Matter of Purple, Determination (New York State Commission on Judicial Conduct September 29, 1997).

Degrading stereotypes

In a recent case, based on a stipulation and agreement, a judge was publicly admonished for comments implying that a defendant might be raped in prison. In re Amato, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022). The judge also agreed to participate in training focused on appropriate courtroom demeanor.

On August 10, 2021, the judge presided over the arraignment of a defendant charged with misdemeanor assault (domestic violence) and resisting arrest. Addressing the defendant prior to announcing the conditions on his release, the judge pointed out that his conduct occurred while he was on probation for other matters. The judge then told the defendant:

You’re setting yourself up, sir, to be Bubba’s new best girlfriend at the state penitentiary. I hope you realize that. That may hopefully give you a graphic image to think about. . . . And if you think I’m kidding, I’m not.

After the defendant indicated that he understood, the judge continued:

The folks at the penitentiary have mothers and sisters and nieces and cousins that they do not want someone out there abusing. And they will take that out on you, at the penitentiary. So think about that because you’re racking up felonies at this point.

In response to the statement of allegations, the judge assured the Commission that her comments, “while insensitive and thoughtless, were not motivated by bias or ill-will toward the defendant” but were “‘an attempt to communicate to [the defendant] in what were commonly understood terms that would have an impression upon [him] to change his behavior.”

Concluding that the judge’s comments detracted from the dignity of judicial office, the Commission emphasized that the judge could have communicated “the seriousness of the charges and their potential consequences . . . without implying that a defendant may be raped in prison if he continued his unlawful behavior.” It stated:

The words and images chosen were improper, discourteous, and unbecoming a judicial officer. They were degrading to both the defendant and other incarcerated people, playing on stereotypes, and exploiting fears of the criminal justice system. While Respondent’s intentions may have been to inspire law-abiding behavior through fear, the language used here is inappropriate in any court proceeding and is particularly inappropriate in an arraignment proceeding where the defendant is presumed innocent.

The Commission noted that the judge was conscious that “her unfortunate choice of language” could be perceived as a manifestation of bias and had committed to be more cautious in the future.

This is not the first case in which a judge has been sanctioned for comments to defendants about the possibility of violence in prison.

  • After noting that a defendant was smiling, a judge remarked that “they might like your smile in jail,” to which the audience responded with a loud “oooo” and laughter. Inquiry Concerning Salcido (California Commission on Judicial Performance November 10, 2010) (censure for this and other misconduct).
  • • While incarcerating a slightly built white male, the judge asked him if he “knew what they do to skinny little white boys in jail,” or words to that effect. Inquiry Concerning Shaw, Decision and order (California Commission on Judicial Performance June 26, 2000) (admonishment for this and other misconduct).
  • • A judge said to a criminal defendant, “If you get busted for this again, I’ll tell you how amusing you won’t find it. Unless you like those young boys at the jail. I understand they can be very friendly to young boys like you.” In re Popovich, Public reprimand (Kentucky Commission on Judicial Conduct July 7, 2016); notice of formal proceedings and charges.
  • • A judge told a defendant convicted of child abuse, “I hope this follows you to prison.” In the Matter of Smith, Stipulation and order (Nevada Commission on Judicial Discipline July 27, 2018) (censure for this and other misconduct).
  • • During sentencing, a judges said: “[I will] cast [the defendant] down among the [S]odomites . . . in state prison.” In re Tranquilli, Order (Pennsylvania Court of Judicial Discipline November 19, 2020) (ordering permanent resignation for this and other misconduct).