Category Archives: Abuse of power

Unnecessary and extrajudicial

Posted on by

In 2 recent cases, judges were sanctioned for addressing gratuitous, personal matters in court proceedings.

In In the Matter of Rosner (New Mexico Supreme Court January 30, 2023) (), a judge responded in an order to allegations in a newspaper article that she believed was written by and/or at the behest of the father’s counsel in a domestic matter.

In 2017, the judge had appointed Dr. Harold Smith as the parenting coordinator in the matter to reduce conflict between the parties and to assist with the parenting plan.

3 years later, the father retained new counsel.  The new counsel quickly filed a motion to remove Dr. Smith, alleging that he was not a qualified parenting coordinating, and also a motion to recuse the judge for cause, arguing that her recusal was necessary to compel her testimony about why she had appointed Dr. Smith.

A week after the motions were filed and before a hearing was held, an article in the Las Cruces Sun-News reported many of the allegations in the 2 motions.  The article criticized the court’s parenting program, the judge and her involvement in that program, and her appointment of Dr. Smith.

The judge admitted that she “felt personally attacked” and considered the article and the motions to be “personal criticisms, factually inaccurate, and misleading.”  Nevertheless, she continued to preside over the matter because she believed that “she could be impartial, set aside her personal feelings, and continue with her duty to sit.”

Following a hearing, the judge denied the 2 motions.  In paragraph 17 of the order denying the motions, the judge referred to the newspaper article:

Rather than bring to [the c]ourt her claims of alleged misconduct by Harold Smith and this [c]ourt, [Father’s counsel] took her motions to the Las Cruces Sun News, without input from anyone other than herself. . . .  The article, which appeared on the front page of the Las Cruces Sun News on July 21, 2020, sought to damage Harold Smith and this [c]ourt by implying an inappropriate relationship between Harold Smith and the undersigned judge, and bias by this [c]ourt and Harold Smith against [Father].

The judge said in the order that it was “noteworthy” that the motions failed to attack a “damaging” report by another doctor that had been sealed at the request of the father’s counsel.

Following that order, counsel for the father renewed the motion to recuse the judge.  3 days later, the judge recused herself.

Stating that the order cast “a negative light” on the father’s counsel, credibility, and reputation, the Court found that “none of the facts in paragraph 17 were necessary for the disposition of Father’s motions, and their unnecessary inclusion” raised questions about the judge’s impartiality, “notwithstanding any artifices or gamesmanship on the part of Father or his counsel.”  The Court held that the judge should have recused herself from the case because “she knew or should have known that she could no longer be fair and impartial following the publication of the Las Cruces Sun-News article which she believed was written by Father’s counsel.”  The Court emphasized that the accusations that the judge made in the order were “gratuitous” and that it was inappropriate for her to respond to criticism in an order, a tool that she was supposed to use only to carry out her official judicial duties.  In addition, the Court stated that the judge’s reference to the report was inappropriate, “not only because it was sealed, but also because it had no bearing on the disposition of Father’s motions.”

Censuring the judge, the Court explained that “while judges may respond to public or personal criticism, they may not do so in carrying out their official judicial duties.”

We recognize the challenges faced by district court judges, often presiding over emotionally charged cases involving litigants and lawyers who might challenge their authority, insult their integrity, impugn their good names, and even attempt to bait them into losing control.  In those instances, district court judges, no matter how egregious the behavior by counsel or clients, must remain above the fray in order to carry out their official duties.

* * *
In Commission on Judicial Performance v. Moore (Mississippi Supreme Court February 16, 2023), a judge “chose a courtroom where he was the presiding judge as the place to launch a verbal attack on two law enforcement officers for a grievance, unrelated to his judicial duties, that had arisen in his private law practice.”  Based on stipulated facts, the Mississippi Supreme Court suspended the judge without pay for 60 days, fined him $1,500, and publicly reprimanded him.

One of the judge’s clients was the victim of a shooting in November 2020.  On December 4, the client was interviewed in the judge’s private office by Police Detective Sergeant Chris Brown with a Mississippi Bureau of Investigation officer and a district attorney’s investigator.  During the meeting, there was a disagreement about a search warrant that had been issued for the client’s telephone records.  After stating that he would evaluate whether the warrant was valid before advising his client whether to comply, the judge “kicked all three law enforcement officers out of his office,” as he stipulated.  Detective Sergeant Brown said to the judge, “I’ve got your number,” which the judge interpreted as a threat.  The judge called Brown’s superior, Police Chief George Douglas, to complain, but when he was told that the complaint had to be in writing, he chose not to file.

4 days later, the judge presided over the municipal court, which is in the same building as the police headquarters.  Before beginning the proceedings, the judge sent word to Police Chief Douglas and Detective Sergeant Brown to come to his courtroom.

When they arrived, the judge halted court proceedings, had both officers stand before him at the bench, and denied their request to have the discussion in chambers.  Then, he “publicly chastised and embarrassed the two officers in the presence of the entire courtroom.”

The Court stated that, “rather than allowing his anger to subside, the incident at his law office continued to be on Judge Moore’s mind over the next four days and became his first order of business when he convened” court and that “rather than following the appropriate and prescribed procedure for lodging a complaint, Judge Moore contrived a means of doing so publicly, in a crowded courtroom, that was populated in large part by people who were there because of charges brought against them by the local police.”

The Court found that the judge had used “the judicial office with which he had been entrusted as a weapon to secure the presence of an investigating officer before his bench;” publicly disrupted “the regular work of the court to use the courtroom to address a matter related to the judge’s private interest as a practicing attorney;” engaged in “irate criticism [that] . . . was devoid of the decorum judges are required to maintain, especially in court;” and risked interfering with “official duties of the police, as the exchange at the law office concerned their investigation of a violent crime.”  The Court added that “police officers should not have to anticipate or be subjected to retaliation from judges they must deal with in both judicial and extrajudicial capacities.”

Favorite word and adequate funding

Posted on by

Accepting the parties’ proposed resolution and stipulation that the Judicial Inquiry Commission could establish by clear and convincing evidence the allegations in its complaint, the Alabama Court of the Judiciary suspended a judge for 45 days without pay and publicly censured him for (1) before, during, and after court proceedings and in court orders, subjecting attorneys, litigants, jurors, and court staff to inappropriate demeanor and temperament; and (2) declaring statutes regarding court fees unconstitutional and issuing an order redirecting court funds to address budget concerns.  In the Matter of Patterson, Final judgment (Alabama Court of the Judiciary October 27, 2022).

(1) On multiple occasions, the judge made highly inappropriate comments to or in front of attorneys, litigants, jurors, and court staff while on the bench and/or during official court proceedings.

The judge referred to Governor Kay Ivey as “Governor MeMaw” on multiple occasions and often referred to the State’s prison system as “Governor MeMaw’s prison system.”

In front of attorneys and staff, the judge referred to the circuit’s presiding judge as a “G*d d*mn snowflake,” and later as a “snowflake.”

While on the bench during proceedings and in the courtroom, the judge used cuss words and/or profanity before attorneys, litigants, jurors, and court staff.  According to his former court reporter, the judge used “a*s” all the time in court as if it was his favorite word.  After the conclusion of court proceedings, but still in the courtroom, the judge used “sh*t” and “f*cking” in conversation with assistant district attorneys and public defenders although he did not direct the cuss words at them.  The judge constantly referred to the circuit’s financial state as “dead a*s broke” and “broke a*s” even in orders.

While addressing a jury pool that included an Asian American, the judge used an Asian accent and asked if everyone spoke “Engrish.”  The judge immediately apologized to the jury pool, later characterizing the comment as a “stupid, stupid joke.”  He also apologized on Facebook:

Yesterday, while qualifying the jury pool, I made a joke in very poor taste about whether everyone could speak English.  I immediately recognized and apologized for my blunder, and I do so again.

When speaking with attorneys, the judge has referred to himself as “Prison Patterson” and “Judge Hard-a*s.”

In court, the judge referred to defendants being “somebody’s girlfriend” while they are incarcerated.  When covering another judge’s docket, the judge said more than once to defendants that they would be “butt raped in the penitentiary.”

(2) After Mandy Brady did not show up for a jury trial before the judge because she had mistakenly been released from custody, the judge ordered the circuit court clerk and the jail warden to show cause why Brady had been released from custody.  In his order, the judge stated that the circuit is in an “austere funding environment,” the clerk’s office is understaffed, and it costs the judicial system $4,000 for a 300-person jury venire to appear at the courthouse.  He continued:

Thus, when this court ensures that bond is revoked, and when a defendant is already in custody when her bond is revoked, I am wondering why and how she is not here today—and again, we are wasting valuable resources when jurors are here ready to go and the accused is not.

At the show-cause hearing on September 12, the judge found that the circuit court clerk was not reasonably or adequately funded as required by the state constitution, that that underfunding had caused the inadvertent release of a defendant who was a danger to citizens of the circuit, and that the clerk “is in imminent danger of not fulfilling her constitutional and statutory duties to support” the courts.  Therefore, the judge held, “Any state statute or act that charges litigants in Mobile County Alabama any fee involving litigation, which then takes funds away from this county leaving the Clerk and her staff underfunded . . . is unconstitutional as applied.”  The judge ordered the circuit court clerk to withhold 10% of court fees and costs collected until the state adequately and reasonably funded the circuit clerks’ office.

The judge had not given notice to the Alabama Attorney General that the constitutionality of state acts and statutes would be an issue at the show-cause hearing.  On receiving notice of the judge’s order, the attorney general filed a petition for a writ of mandamus.  The Alabama Supreme Court granted the writ, finding that the judge had gone “far beyond [his] authority to conduct a contempt proceeding.”

In addition to the suspension and censure, the judge was ordered to refrain from joking or other inappropriate or offensive colloquies with litigants, attorneys, or court staff while in the courtroom; to refrain from profanity and off-color language in the courthouse including in chambers or other private settings; to complete 15 hours of education on judicial ethics to include at least 3 hours of training focused on cultural sensitivity; to review weekly emails forwarded to him by the Judicial Inquiry Commission from the Center for Judicial Ethics for 6 months; and to meet with another judge as a mentor monthly for 6 months.

“Unprecedented misconduct”

Posted on by

Adopting the findings of the Board of Professional Conduct, which were based on stipulations, the Ohio Supreme Court indefinitely suspended a judge without pay for (1) refusing to comply with an administrative order during the COVID-19 pandemic, issuing capias warrants to defendants who did not appear in court, and lying about issuing the warrants to the press and to the presiding judge; (2) in numerous criminal cases, engaging in ex parte communications and improper plea bargaining with defendants, rendering arbitrary dispositions, unilaterally amending the charges and falsely attributing those amendments to the prosecutor, and falsely stating that she had conducted ability-to-pay hearings; (3) using capias warrants and bonds to compel payment of fines and court costs; (4) exhibiting a lack of decorum and dignity, including in her attire, her “unkempt bench,” and her demeaning treatment of defendants; and (5) abusing her contempt power after becoming personally embroiled with a defendant.  Disciplinary Counsel v. Carr (Ohio Supreme Court October 18, 2022).  The judge’s reinstatement is conditioned on her submission of a report from a healthcare professional stating that she is able to return to the competent, ethical, and professional practice of law and proof of compliance with her Ohio Lawyers Assistant Program contract. 

The Court emphasized:

Carr’s unprecedented misconduct involved more than 100 stipulated incidents that occurred over a period of approximately two years and encompassed repeated acts of dishonesty; the blatant and systematic disregard of due process, the law, court orders, and local rules; the disrespectful treatment of court staff and litigants; and the abuse of capias warrants and the court’s contempt power.

The judge argued that a mental disorder was a contributing cause of her misconduct, specifically, a generalized-anxiety disorder and a mood disorder due to menopause, sleep apnea, and stress.  Although the Board accepted her psychologist’s diagnoses and treatment recommendations, it found that the judge “had failed to establish a causal link between her current mental disorders and her past misconduct. . . .”

(1) For a longer discussion of the judge’s misconduct related to the COVID administrative order, see last week’s post. 

(2) In 34 cases between May 2019 and December 2020, the judge engaged in ex parte communications and improper plea bargaining with defendants and made arbitrary rulings.  In at least 6 of the 34 cases, the judge unilaterally amended the charges against the defendants and in her judgment entries, falsely attributed those amendments to the prosecutor.  In at least 24 of the 34 cases, the judge falsely stated in journal entries that she had conducted ability-to-pay hearings and determined that the defendants were unable to pay fines or costs.

The judge admitted that she routinely conducted hearings without a prosecutor present to avoid complying with procedural safeguards.  In open court, the judge “unabashedly” told her staff one day, “[T]he prosecutor isn’t here.  Let’s see how much we can get away with,” and on another occasion, told a defendant, “Well the prosecutor isn’t here, so we need to get as many of these done before he or she gets here . . . .”  She then offered the defendant a plea deal that he accepted. 

The judge unilaterally recommended pleas to unrepresented defendants when no prosecutor was present and accepted the pleas without explanation or a discussion of the consequences.  After unilaterally entering no-contest pleas, the judge routinely found the defendants not guilty or after finding the defendants guilty, arbitrarily waived fines and costs without any inquiry into the defendant’s ability to pay, falsifying her journal entries to conceal her actions.  The judge frequently stated that she was waiving fines and costs because the defendant’s birth date was close to the date of the hearing, a holiday, her own birthday, or the birth date of a family member or friend.

(3) After being told that the clerk’s office had a very low success rate collecting fines levied by the court, the judge began using capias warrants and incarceration to compel payment, which, as she admitted in the disciplinary hearing, “essentially created a modern-day debtors’ prison.”  The judge would set ability-to-pay hearings for a few days after a defendant’s payment was due without notifying the defendant.  Then when the defendant failed to appear for the hearing, she would issue a capias warrant and set a bond between $2,500 and $25,000 even though the defendant’s fines and costs were typically just hundreds of dollars.  She would write on the journal entry, “Post bond or pay fines and costs in full.  No [Community Work Service]/TTP.”  She would also stamp on the journal entry “DEFENDANT DOES NOT QUALIFY FOR IN THE NEIGHBORHOOD OR OVER THE COUNTER.  JUDGE PINKEY S. CARR.”

(4) The judge’s bench was covered with “dolls, cups, novelty items, and junk.”  She presided over her courtroom wearing workout attire, including tank tops, t-shirts (some with images or slogans), above-the-knee spandex shorts, and sneakers.  The Board found that the judge “reveled in her lack of decorum,” knowing “that “the public took notice of her unconventional appearance.”  For example, when a defendant expressed surprise that he had been found not guilty, the judge responded, “You can trust me.  I know I’m not dressed like a judge, but I’m really the judge.”

The judge was loud and boisterous, used a singsong tone, and on at least one occasion, used a really loud voice when speaking to a defendant.  During a series of proceedings in open court, the judge maintained a dialogue with her staff and defendants about the television series P-Valley, which is set in a strip club. 

The Court noted that, although the judge “frequently behaved as though the rules of courtroom decorum did not apply to her, she did not hesitate to correct defendants for seemingly minor infractions.”  She repeatedly admonished defendants for standing with their hands crossed or in their pockets instead of at their sides and screamed at them when they indicated that they had not heard what she said.  She resented being called “ma’am,” berating defendants who used that honorific and chastising male defendants who referred to her as “ma’am” by calling them “little boy.”

On multiple occasions in open court, the judge joked that she would be open to some form of bribe in return for a lenient sentence and talked with defendants about accepting kickbacks and arranging “hookups” for herself and her staff.  For example, when E.W. appeared before the judge to request reinstatement of his driving privileges, after being informed that E.W. worked for an automotive company, the judge told her staff, “I got us another hookup.  We could get our cars fixed here,” and she stated that she had already gotten them some flooring and carpet.  E.W. told her to bring their cars in and that the company would love to take care of them.  The judge replied, “Always getting us the hookups.  Don’t worry, we don’t have to pay.  It’s on him.”

(5) In May 2019, 20-year-old A.B. and her 19-year-old sister C.B. were arraigned before the judge on misdemeanor counts of assault and disorderly conduct for allegedly assaulting a 16-year-old girl.  The Board found that the video of the arraignment demonstrated that the judge “took an immediate dislike to A.B.”

The judge told the public defender representing the sisters that A.B. “is going to get plenty of time with me.”  While the public defender conferred with her clients, the judge gave a monologue in a singsong voice about how nice it would be to have “company” in her courtroom, and she expressed her hope that A.B.’s case would be assigned to her.  She paused from time to time to laugh or hum a tune.

A.B. muttered something to the deputy, and the judge snapped, “What did she say?  She said this Court is f***ked.  What did she say?  Oh, okay.  Corny as f**k.  Okay, corny as f**k.”  A.B. responded, “I said corny the way you’re treating me.  Like, I didn’t do—.”  The judge interrupted her, saying, “Oh, no problem.  Uh-huh.  Close your mouth.  Don’t interrupt my courtroom.  You don’t want to have a problem with me.  I told you that when—.”  At that point A.B. said something else.  The judge raised her voice and twice told A.B., “Close your mouth.”  As A.B. continued to talk, the judge said, “Say one more thing,” and then to her bailiff, “Take her in the back for me, please.  Uh-huh.  Bye bye.”

A.B. left the courtroom in tears and remained in the lockup area for several hours until the judge had her brought back to the courtroom.  At that time, court staff informed the judge that while in the holding cell, A.B. had repeatedly referred to the judge as a “b**ch” so loudly that another judge had to close his courtroom doors.

When the public defender encouraged A.B. to speak, A.B. said, “It doesn’t matter.  You don’t care.”  The judge asked A.B., “You think it’s acceptable behavior to call me 50 b**ches and say that the courtroom—this is some corny a** sh*t?”  A.B. said, “No, I’m trying to explain myself.  I walked up to the stand.  You read the paper.  You didn’t even let me talk.  You automatically changed your attitude from happy to just anything, like you was just basing me off of what—basically, just reading me off of a piece of paper.”  The judge started to talk and then she accused A.B. of rolling her eyes.  As A.B. was led from the courtroom, the judge told the public defender that she could tell A.B. had a “screw loose.”

The judge charged A.B. with 3 counts of contempt of court.  In an affidavit supporting those charges, the judge stated that A.B. “while in a courtroom, * * * did repeatedly refer to the court as a ‘b**ch,’ and called the courtroom ‘sh*t’” even though she did not personally hear A.B. say anything disrespectful but had heard that from court staff.

On August 13, A.B. appeared in the judge’s courtroom with counsel and pleaded guilty to 1 charge of contempt.  Before imposing a sentence, the judge inaccurately summarized A.B.’s actions at her arraignment, falsely stating that A.B. had said, “I don’t have to look at you.”  The judge sentenced A.B. to 30 days in jail with 15 days suspended and 5 years of active probation; she imposed a $250 fine, which she suspended, and ordered A.B. to complete anger-management classes and read an apology letter aloud in open court on September 4.

During her disciplinary hearing, the judge admitted that charging A.B. with contempt for rolling her eyes in court and cursing in lockup was an abuse of her discretion.  Noting that A.B. had not acted out physically, refused a lawful order, failed to cooperate, or engaged in any conduct that constituted an immediate threat to the administration of justice, the Board found that it was not apparent that A.B. had done anything to warrant the sentence the judge imposed.

On September 4, A.B. appeared in court with her apology letter.  A.B.’s attorney was late, but the judge proceeded with the hearing.  Even though A.B. had completed the sentence imposed on August 13, the judge ordered her to submit to random substance abuse testing and to write an additional letter entitled, “How would you feel if I called your mother a b**ch?”  The judge “continued to torment A.B. before her attorney arrived and gave the courtroom audience her own—not entirely accurate—version of A.B.’s underlying offense and behavior at her May 2019 arraignment.”  A.B. told the courtroom audience that the judge’s recitation of the case was inaccurate and continuously interrupted the judge.  After one interjection, the judge asked, “What did she say?”  Her bailiff responded, “This is bullsh*t.”  The judge responded, “This is some bullsh*t?  Juanita, put her in the holding cell for me.  Uh-hmm.  Contempt charge again.  Thank you.  Appreciate it.  In the holding cell.  Bye-bye.  I’m not finished with this.”  A.B. attempted to interrupt the judge several times to explain that she had not only said, “Oh my goodness.”  A.B., who was then hysterical, was taken to the holding cell.

In October 2020, A.B. pled no contest to the second contempt charge.  The judge sentenced her to 30 days in jail and fined her $250 before suspending that sentence and waiving costs. 

In the disciplinary proceedings, the judge admitted that she had instigated the incident that led her to cite A.B. for contempt the second time by antagonizing A.B. from the bench and being rude and discourteous.  The Board found that because of her embroilment with A.B., the judge should have recused herself from both contempt cases.

Beyond defense of reputation

Posted on by

Another judge has been sanctioned for an inappropriate reaction to public criticism.  For a discussion of 2 other recent cases on the topic, see “Thin Skin.”

Based on the report and recommendation of the hearing panel of the Judicial Qualifications Commission, to which the judge had not filed objections, the Georgia Supreme Court publicly reprimanded a judge for berating a bail bondsman who had criticized the judge on Facebook.  Inquiry Concerning Norris (Georgia Supreme Court June 22, 2022). 

On July 5, 2019, the Athens Banner-Herald published an article about a defendant who had failed to appear in court for the retrial of rape charges after the judge had released him on his own recognizance following a mistrial.  

Nathan Owens, a bail bondsman who works in counties in the judge’s circuit, reposted the story to his personal Facebook page and to a large Facebook group called “Overheard at UGA.”  Owens added his thoughts about the judge’s handling of the case, expressing his opinion that the defendant should not have been released on his own recognizance.  “Owens’s post gained a lot of attention,” and the judge asked another bondsman, John Elliott, about contacting Owens.  On July 9, at Elliott’s suggestion, Owens texted the judge, and the judge told Owens to meet him in his office at 9:00 the following morning.

On the morning of July 10, Owens went to the courthouse with Elliott and another bondsman, Scott Hall.  When they arrived at the judge’s chambers, an armed deputy took their cell phones.  The judge then arrived, visibly upset, and instructed Elliott and Hall to remain in the lobby while Owens went into his office.  A deputy stood in the only apparent doorway.

“With his lip quivering and hands shaking,” the judge instructed Owens to “sit down and listen to what I have to say.”  In a raised voice, he began reading from the statutory bondsman code of conduct, which he had printed out for the meeting.  “Becoming nervous,” Owens requested that his lawyer be present, but the judge ignored his request.  He allowed Elliott and Hall to come into his office, and Owens asked them to witness that he wanted to leave or have his attorney present.

For 30 minutes, the judge chastised, berated, and lectured Owens, implying that Owens did not have “good moral character,” insinuating that he had the power to affect Owens’s livelihood as a bondsman, and reprimanding Owens for attacking him online and spreading “fake news.”  Owens, who felt that he was not free to leave, sat quietly and did not respond.  

Noting the panel’s statement that judges must bear public criticism “with grace (or at least stoicism),” the Court stated that “a judge’s defense of himself and his reputation against public criticism is not necessarily, on its own, a rule violation.  Elected judges are afforded First Amendment protections, at least with regard to their campaign activities.”  However, the Court concluded that the judge “went beyond simply defending his reputation, using his power and authority as a judicial officer to summon Owens to his chambers for a meeting, to threaten and intimidate Owens, and to discuss a pending case.”

The Court noted that the violations “were based on non-habitual conduct, with no evidence that he used vulgar language or engaged in any sort of physical altercation.”  However, it found that the judge “had not fully accepted responsibility,” noting he had “offered various justifications for his meeting with Owens” that the panel found “inconsistent and contradicted by other evidence.”  The Court explained:

Judge Norris’s deliberate and conscious planning of this confrontation is particularly problematic, as his misconduct was not the result of a sudden or brief loss of temper.  In fact, Owens’s Facebook post was posted a full five days before the meeting with Judge Norris, Judge Norris had to reach out to another bondsman to get in contact with Owens, Owens and Judge Norris exchanged multiple texts to arrange the meeting, Judge Norris set the meeting in his chambers, during business hours, Judge Norris printed out the statutory bondsman code of conduct, and then Judge Norris delivered an angry 30-minute monologue in a raised voice while Owens was required to sit and listen with an armed deputy standing in the doorway.  Judge Norris also denied Owens’s request to leave or have an attorney present and intimated that Judge Norris could harm Owens’s position as a bail bondsman.

Bad faith de-escalation

Posted on by

Judicial conduct commissions and supreme courts do not usually second-guess a judge’s decision to hold someone in contempt, but there are exceptions to that rule, and a judge was recently censured for having a mother involved in a visitation dispute handcuffed and escorted out of the courtroom without an opportunity to be heard or any contemptuous behavior in the courtroom.  In re Foster (North Carolina Supreme Court September 27, 2019).  The North Carolina Supreme Court adopted the findings of the Judicial Standards Commission, which were based on a stipulation and agreement for a stated disposition.

The judge presided over a hearing to determine whether the mother of 15-year-old twin sons should be held in contempt after the twins, who reside with their mother, refused to visit their father during the winter holiday.  The mother’s counsel objected because the mother had not received sufficient notice of the hearing.  The judge acknowledged the objection but ordered the mother and the twins to appear in court within 30 minutes, stating:  “I’m not saying that we’re going through with the hearing, but you need to call your client and tell her to get here because I have a few choice words that I need to say to her . . . .”  The judge added that “the boys need to come . . . so that they can hear that their mother can go to jail for their behavior” and “if a child wants their parent to go to jail, I got a problem with that as well.”

When they arrived, the judge asked the 2 boys whether they understood that their mother could be incarcerated if they continued to resist visitation with their father.  After the boys told the judge that they would rather have their mother go to jail than visit with their father, the judge stated:  “my children would never allow me to go to jail for any reason whatsoever . . .  I’m appalled because my children respect me so much they would never allow that to happen.”  After the boys said that they understood the consequences of their refusal, the judge ordered the bailiff to handcuff their mother and place her in a holding cell.  The mother’s counsel objected because the judge had not held a contempt hearing or given his client an opportunity to be heard.  Nevertheless, the judge instructed the bailiff to take the mother out of the courtroom.

After the mother was removed, the judge told the twins that she was “appalled” at their behavior and that they should be “ashamed” for allowing their mother to go to jail.  The judge also shared personal stories about being a parent and “disturbing cases she had presided over where children had suffered unfortunate outcomes.”  She asked the twins whether it made more sense to spend 6 days visiting their father as originally ordered, or 60 days with him while their mother was incarcerated.  The boys relented and agreed to visit their father.

The judge had the mother brought back into the courtroom and then said “as far as your full-blown hearing, it is going to be continued.  You two need to pick a date because I do not believe that you [had] enough time to truly prepare.”  Both parties thanked the judge for trying to resolve the boys’ refusal to visit with their father.

The judge believed that her actions “were appropriate to deescalate an unfortunate situation and resolve the visitation issues without further involving the Court.”  Her conduct in the case reflected her practice of placing litigants in temporary custody for “a short ‘cooling-off period’ without an opportunity to be heard,” which she had found successful in getting litigants to comply with her directives.

The Commission emphasized that it was not reviewing the legal issue whether the judge may have properly held the mother in contempt.  The Commission noted that the judge had specifically intended to avoid a “full-blown hearing,” which she admitted she could not hold because of inadequate notice.  The Court concluded that the judge’s actions were “not a mere ‘error of judgment or mere lack of diligence’” but intentional and part a pattern.

The judge argued that she had acted “with benevolent motives to ‘deescalate an unfortunate situation and resolve the visitation issues without further involving the Court.’”  However, the Commission stated that “‘bad faith’ includes ‘any knowing misuse of the office, whatever the motive,’” and concluded that the judge “acted in bad faith because she had ‘[a] specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of [her] authority.’”

“We do that all the time” is no excuse

Posted on by

Agreeing with the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for (1) ordering the search of a litigant in open court and the seizure of money found on him; (2) misrepresenting facts about his campaign opponent; (3) publicly pledging during a candidate forum to hold no statute unconstitutional; and (4) holding first appearance hearings without counsel present the Saturday of Memorial Day weekend during his re-election campaign.  Inquiry Concerning DuPont (Florida Supreme Court September 6, 2018).

Approximately 4 months into the judge’s first term, during a hearing involving child support, the father explained that he had not completed a parenting class because he did not have the necessary funds.  The judge then ordered his bailiff to search the husband for money.  The search yielded $180, which the man claimed he was holding for someone else.  The judge immediately turned the $180 over to the mother, ordering that it be credited to outstanding child support.

Law enforcement officers reported the search to Judge Terrill LaRue, then administrative judge for the circuit.  Thinking that the judge had simply made a rookie mistake, Judge LaRue explained to Judge DuPont that he had employed “a very poor procedure” that should not be used again.  Judge LaRue was taken aback when Judge DuPont insisted, “I can do that,” and “we do that all the time in St. Johns County.”

During the discipline proceedings, the judge argued that the search and seizure was appropriate because other judges in the circuit employed similar techniques; he testified that he had directed several such searches previously, but did not do so again after this incident.  Emphasizing that the search and seizure was not forceful, he stated that he had been acting in the best interest of children who are in need of support.

The Court concluded that the judge’s “motives in conducting the search may have been ‘pure’ as he claims,” but “condemned such unlawful, judicially ordered seizures in open court.”  The Court noted it had sanctioned similar conduct in a previous case, referring to Inquiry Concerning Turner, 76 So. 3d 898 (Florida 2011).  In that case, the Court had removed a judge for, in addition to other misconduct, offsetting a juvenile’s court costs in exchange for the juvenile’s earring.  While questioning a juvenile appearing before him about the juvenile’s failure to pay costs, the judge noticed that the juvenile was wearing a “nice diamond earring.”  When asked, the juvenile said that it was fake and had cost $7.  The judge offered to give the juvenile a credit of $10 toward his court costs in exchange for the earring.  When the juvenile agreed, the judge instructed the deputy to take the earring from the juvenile and stated that he would credit $10 toward the juvenile’s outstanding court costs.

The Court held that, “although minor compared to his other transgressions, Judge Turner’s inappropriate conduct during a court-cost hearing . . . is further evidence of Judge Turner’s defective judgment. . . .  The courtroom is not a forum in which defendants may be required sua sponte by a judge to trade items of clothing or personal property in order to offset the costs assessed against them pursuant to our rules of court.”

The North Carolina Supreme Court has also sanctioned a judge for ordering a bailiff to search a husband’s wallet and turn his money over to the wife.  In re Badgett, 666 S.E.2d 743 (North Carolina 2008).

Following a hearing in which Floyd Carreon was pro se, the judge indicated that he would grant the domestic violence order of protection against Mr. Carreon sought by Kathy Carreon.  Mrs. Carreon then stated that she had no money, was without electric power, and needed transportation.  The complaint had not sought spousal support, but, without making any findings, the judge ordered Mr. Carreon to pay $150 a week to Mrs. Carreon.

After Mr. Carreon objected, the judge asked how much money he had on his person.  Mr. Carreon replied that he had $140.  The judge then ordered the deputy sheriff to search Mr. Carreon’s wallet; when the deputy hesitated, the judge repeated his order.  The deputy took Mr. Carreon’s wallet, counted his money, and reported that the wallet contained $140, a driver’s license, and a Social Security card.  The judge directed the sheriff’s deputy to turn over Mr. Carreon’s cash to Mrs. Carreon.

In the discipline proceedings, the Court concluded that the judge misused his judicial power by awarding spousal support when none had been requested and by ordering the bailiff to search Mr. Carreon’s wallet and turn his money over to Mrs. Carreon.  The Court stated that it was telling that the deputy clerk, deputy sheriff, and plaintiff’s attorney had recognized that the judge had violated Mr. Carreon’s rights, while the judge, “the only individual in the courtroom who had sworn to justly adjudicate cases involving constitutional rights of our citizens, was the person who deprived Mr. Carreon of his rights without regard to notions of fairness and due process.”  The Court censured and removed the judge for this and other misconduct.

In the DuPont case, the judge had admitted only to “mistakes” and “carelessness” in making representations about his opponent and denied “knowingly” or intentionally disseminating false information, claiming he relied on a campaign consultant and opposition researcher.  However, the Court concluded that, not only did the judge “fail to verify the accuracy of the information he was provided as was his obligation, but it also appears that Judge DuPont actually manufactured some of the facts he disseminated in relation to that information.”  The Court stated that the judge’s assertion that he had no evil intent was irrelevant.

During a televised judicial candidate forum, the moderator asked each candidate to describe their judicial philosophy.  The judge responded:

I know that this sounds cliché, but-uh, my philosophy is to not legislate from the bench.  I don’t believe that the Constitution is living and breathing.  And I don’t believe that it evolves on its own.  I believe that our founders knew exactly what they were doing when they created it—and that they created a mechanism whereby it can be changed.  And to be quite honest with you, uh, there have been numerous [sic] where I have actually been asked by attorneys to find that [a] statute is unconstitutional.  I have refused to do that, because my thought process is there’s another way to do that.  If they don’t like the decision they can appeal it, and it can start going up the food chain to do it that way.  But even though I’ve been asked to find a statute unconstitutional as a sitting judge, I have refused to do so.  Because again, it’s not my job to legislate from the bench.

The Court rejected the judge’s argument that he had not meant that he would never find a statute unconstitutional, only that he does not go into a case looking to overturn a statute but instead presumes statutes are constitutional.  The Court stated that the judge “made the statement in a very public forum and failed to take any steps to correct the statement even after he realized that he ‘screwed up.’”

On May 26, 2016, at the judge’s direction, his judicial assistant notified necessary personnel, including attorneys from the state attorney’s and public defender’s offices, that the time for first appearances on Saturday and Sunday had been moved up from 9 a.m. to 7 a.m. during the upcoming Memorial Day weekend.  The time was changed due to the judge’s campaign-related obligations that weekend.

On Saturday, with no notice to anyone, the judge began the 7 a.m. first appearance hearings at 6:30 a.m. and conducted them without counsel present.  The judge admitted that he ignored the rule that requires the attendance of counsel at first appearance proceedings.  He was unable to explain why he started the proceedings early and admitted that he committed misconduct by holding first appearances without counsel present.