Bad faith de-escalation

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

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.