Category Archives: Bias

“Salty”

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Affirming the findings of fact and conclusions of law of a panel of the Commission on Judicial Conduct following a hearing, the Kansas Supreme Court suspended a judge without pay for 1 year for (1) frequently using the word “f**k” and its derivatives when speaking at the courthouse; (2) using derogatory terms when referring to women; and (3) using the phrase “Kansas boy” to describe a young black male defendant.  In the Matter of Cullins (Kansas Supreme Court February 26, 2021).  The Court stayed the suspension for 60 days for the judge to submit a plan for counseling and training.  If the Court approves the plan, it will stay part or all of the suspension during the plan’s term; if the judge successfully completes the plan, the Court will consider waiving any remaining suspension.

(1) The Court held that the use of “f**k” “is unprofessional and—almost always—undignified for a judge,” violating the rule requiring a judge to treat everyone with patience, dignity, and courtesy.  In response to the panel finding that the judge had also violated the rule requiring a judge to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” the judge argued that the F-word is ubiquitous “in the current culture’s vernacular” and “cussing is so common in Southeast Kansas” that it does not reflect negatively on character.  The Court concluded that the judge’s “offensive conduct went far beyond any undignified and unprofessional use of the word ‘f**k’” and that his “aggressiveness; his reference to a female litigant as ‘crazy’; his overt and public humiliation” of the chief clerk; and “his loud, angry, and expletive-filled reprimand” of a court clerk “collectively” violated the rule.

The judge also argued that his profanity could not have undermined public confidence in the judiciary because the incidents “did not occur in a public forum.”  However, the Court noted that at least 2 incidents had occurred or could be heard in a hallway near members of the public.  Further, the Court explained that the judge’s argument “defies logic” by suggesting that his “conduct has not been discussed in the community by the people who witnessed it.”

The judge also argued in his defense that he was often fair to court staff.  The Court stated that, “while that may be true, good behavior on some—even most—occasions does not disprove misbehavior on other occasions.”  Further, it emphasized that good behavior did not “override” code violations, but at most was relevant as mitigation for discipline.  It explained:  “Frankly, good behavior, while commendable in a judge, is also expected.”

(2) The panel had concluded that the judge’s “use of derogatory words,” particularly “b***ch” and “c**t,” to describe women manifested a clear bias based upon sex and “was hostile toward the individuals about whom he was speaking. . . .  Intentionally gender-based derogatory references toward women have no place in the administration of justice, and have no place in a judge’s vernacular.”  (The Court noted that a minority of the justices believed that there was no showing of bias against females generally but only bias against certain females.)

The judge asserted that his statements did not violate the code because he did not make them while performing judicial duties, that is, “during or in relation to any matter he was adjudicating” or while performing administrative duties.  The Court rejected that argument:

Respondent interprets “judicial duties,” including his administrative duties, too narrowly.  While in the courthouse—when court business of every kind was being addressed—Respondent was present in his official capacity as a district judge, and sometimes also as chief judge.  A judge does not lose his mantle of authority when he steps out of his chambers into a hallway.  A judge’s performance of “judicial duties” occurs constantly in the courthouse during the course of any given day. . . .  Those duties include the times a judge presides over hearings, completes administrative reports, and evaluates employees, but they also include those occasions when a judge discusses employee performance with attorneys and other staff; admonishes persons waiting in the hall to be quieter so as not to disrupt court proceedings; offers to assist a wandering law enforcement officer who needs an application for search warrant reviewed; directs a member of the public to the right courtroom; addresses a complaint; and deals with innumerable other things that require a judge’s professional attention, judgment, and decision throughout the day.

(3) During a bond hearing for a young black male student at a local college, the judge asked, “Can I assume you’re not even a Kansas boy?”  There was a second bond hearing also involving a young black male student immediately afterward.

The judge testified that he did not intend the term “boy” to have any racial connotation, that he considers himself a “Chautauqua County boy,” and that his reference to the young man as “a Kansas boy” was similar.  The panel found that the judge’s testimony was credible and that he did not intend the term as a term of racial derision, noting “geographic origin was relevant for proper administration of the bond hearing, and the men were teenagers.” 

Noting that “words and phrases . . . are important,” the Court concluded that, “regardless of inflection, tone, or local custom,” the judge’s conduct “during these bond hearings created a reasonable perception of racial bias . . . .”  It explained:

Specifically, two adult Black men appeared before the judge during a bond hearing, both presumed innocent of their criminal charges. A reasonable individual might perceive that the following may have shown racial bias:

• Something about the defendants’ appearance caused the judge to believe they were athletes;
• Something about their appearance caused the judge to assume they were not from the area;
• Something about their appearance caused the judge to question—even disbelieve—one defendant’s assertion that he had no felony record; and
• During the judge’s comments he used a term — “boy”— that has been used at times in the past as a common and well-known slur against Black men.

The Court concluded that, “when taken altogether and in context, a reasonable perception of bias cannot be denied.”

In mitigation, the judge stated that he is efficient, fair in his hearings, and “does not mean to hurt or harm” but “is just ‘salty.’”  The Court found that the judge’s conduct “quite troubling.  He has intimidated and publicly humiliated court employees.  He has shown bias and the appearance of bias by his insulting and careless remarks, even while on the bench and presiding over hearings.  By his coarse language in the courthouse, he has sullied the dignity and propriety of the judiciary.”

Gifts, art, pronouns, and ex parte communications

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Gifts
In a recent opinion, the California Supreme Court Committee on Judicial Ethics Opinions advised that judges “may exchange modest gifts with their courtroom staff.”  California Expedited Opinion 2021-39. However, it explained ed that judges should “treat all staff equally and maintain proper decorum” should not pressure staff to reciprocate.  Moreover, the opinion added that judges should not give gifts that are “offensive, demeaning, or otherwise inappropriate” or gifts that could “be perceived as harassment.”

The opinion noted that “acknowledging birthdays, holidays and other special occasions can be an appropriate way to build morale among a judge and his or her staff.”  However, it emphasized that, “to the extent reasonably possible, judges should endeavor to treat their staff equally.”  For example, it stated that judges should not give “significantly disproportionate” gifts to different staff members or only “celebrate the birthdays of certain of their staff while ignoring the birthdays of others.”  Moreover, it advised judges to be “sensitive to and respect the fact that staff may come from different faiths and traditions” and “to the extent reasonably possible, . . . tailor any gifts that they give to align with the heritage and belief systems of their staff.”

The opinion advised judges to tell their staff that “there is no obligation or expectation” that they will give the judge a gift in return for the judge’s gift and warned judges not to implicitly pressure their staff for such an exchange, noting that staff are more likely to feel that reciprocation is required if the judge’s gift is expensive or extravagant.  Thus, the committee directed judges to “keep any gifts modest” reflecting “the power and financial imbalances between themselves and their staff.”  Further, it stated that “judges should not solicit staff for a group gift.”

The committee also stated that judges should not “give gifts that are offensive or demeaning,” for example, a gift that is “obscene, profane or degrading in any way to the recipient or to others” or that is a practical joke.  Finally, it stated that judges should not “give gifts that would be perceived as harassing, for example if given in the expectation of fostering a romantic or sexual relationship with a staff person.”

Art
In a recent opinion, the New York Advisory Committee on Judicial Ethics stated that judges may undertake “a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups” in collaboration with a non-profit historical society.  New York Advisory Opinion 2020-202.  The committee noted that the judge should first obtain any required administrative approvals.

The inquiring judges were members of a court’s committee on bias and noted that, “[w]hile the law in the United States has proven to be dynamic, and gradually has changed to include protections for marginalized groups, the art in our courthouse has remained static, and displays aesthetics that reflect a less inclusive, and less just, America.”  To make the courthouse more inclusive and educational, the judges wanted to work with “scholars of legal history and architecture to help create signage and other materials that would ‘interrogate our public art and place it in the context of our nation’s history.’”  The judges would prepare written plans for the project, and the Historical Society of the New York Courts would apply for grants.  After funds were received, the judges would collaborate with the Society in their allocation.

The advisory committee concluded that the project was not only “ethically permissible” but supported the court system’s “efforts to eliminate bias and prejudice and thereby promote public confidence in the judiciary.”

Pronouns
In a recent opinion, the New York Committee stated that, when “a party or attorney has advised the court that their preferred gender pronoun is ‘they,’ a judge may not require them to use ‘he’ or ‘she.’”  New York Advisory Opinion 2021-9.  The inquiring judge was concerned that “the use of ‘they’ could create confusion in the record as to the number of persons to whom a speaker is referring.”

The committee recognized that “a judge may take reasonable steps to ensure the clarity of the record, including courteously referring to an individual by surname and/or their role in the proceeding as appropriate.”  However, it stated, “a judge must be careful to avoid any appearance of hostility to an individual’s gender identity or gender expression.”  The Committee explained:  “Adopting and announcing the sort of rigid policy proposed here could result in transgender, nonbinary or genderfluid individuals feeling pressured to choose between the ill-fitting gender pronouns of “he” or “she.”  This could not only make them feel unwelcome but also distract from the adjudicative process.”  Therefore, it concluded, “the described policy, if adopted, could undermine public confidence in the judiciary’s impartiality.”

It also found that there was “no reason for a judge to pre-emptively adopt a policy barring all court participants, in all circumstances, from being referred to by singular ‘they’. . . .”  It noted that “they” “is one of three personal pronouns in the English language” and has been recognized as a grammatically correct use for an individual, citing Merriam-Webster’s addition of that usage to its dictionary definition in September 2019 and its choice as the 2019 Word-of-the-Year.

The Committee expressed its trust that judges can “handle an expressed preference for the use of singular ‘they’ on a case-by-case basis, adopting reasonable procedures in their discretion to ensure the clarity of the record as needed.”  It also noted that a judge could make “adjustments over the course of a proceeding” if they find that “an initial approach was unsuccessful or confusing.”

Ex parte communications
In a recent opinion, the Illinois Judicial Ethics Committee advised that a judge is not required to recuse from a case after an unsolicited ex parte communication from a litigant if the judge halts the communication as soon as possible, disregards it, and promptly advises all parties.  Illinois Advisory Opinion 2020-1.  The committee did note that judges may “wish to insulate themselves, to the extent possible, from such communications,” for example, “by issuing a standing order to make clear to non-lawyers that such communications are not allowed.”

The inquiry came from a judge who had received an email from a self-represented litigant with “extensive and substantive information about a case.”  The email was sent directly to the judge, and opposing counsel was not copied.  The litigant had learned the judge’s email address when the judge, in order to schedule virtual hearings, communicated by email with the litigant and the attorney representing the other side. 

The committee stated that, after receiving an unsolicited ex parte communication, a judge’s first step was “to ensure that the ex parte communication is disclosed to the other party.”  The opinion noted that “an ex parte communication received via email makes possible a verbatim disclosure of the communication,” which “diminishes the opposing party’s concern about whether it knows the full substance of the communication made to the judge.”  The inquiring judge had “immediately notified the other party of the communication.”

After disclosure, according to the committee, the judge should determine “whether, as a result of the ex parte communication, the judge’s neutrality has been affected; in other words, has the judge become actually biased based on what was learned?,” which would require recusal.  The committee noted that the “inquiring judge did not feel that receipt of the communication affected their neutrality,” adding that “it would be unusual for a judge to be unable to compartmentalize” information they could consider from information they could not consider.

Finally, the committee advised that the judge should analyze whether the ex parte communication raised reasonable questions about the judge’s impartiality, noting that recusal “should be required only ‘if additional circumstances give rise to an appearance of bias,’ such as the ‘judge’s initiation of an ex parte communication.’”  An ex parte communication is less likely to require recusal under that test, the committee explained, if the judge did not initiate it, “shut[] it down” when it was recognized, and promptly disclosed the communication to the other side.  The opinion emphasized that “a judge’s initiation of an ex parte communication might create concerns about the judge’s impartiality, but the same is not true when some other person initiates the communication.  The action of another does not implicitly create any inference about the judge’s impartiality.”  The committee also noted that a rule requiring recusal following any ex parte communication “’would allow a party to remove a judge from a case by initiating an ex parte contact, which would encourage unethical ploys and allow manipulation of the judicial process.’” 

A universe of worthy messages:  Symbols on robes and signs in the courthouse

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In a recent opinion, the Arizona judicial ethics committee advised that:

  • Judicial robes should be free of adornments,
  • Courts may display signs stating that harassment, bias, or prejudice on the basis of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or affiliation are strictly prohibited in the courthouse, but
  • Courts and judicial officers should not “single out any particular category of citizens in offering such assurances.”

Arizona Advisory Opinion 2018-3.

A judge had asked the committee “whether judicial officers in the juvenile court may wear small rainbow-flag pins (or similar symbols) on their robes and post ‘safe place’ placards on courtroom doors that convey acceptance to LGBTQ youth.”  Those measures had been proposed by a court working group on the needs of lesbian, gay, bisexual, transgender, and questioning youth in the child welfare and juvenile justice systems.  Noting that “one barrier to LGBTQ youth seeking services is their reticence to trust those involved in the systems,” the working group suggested that certain symbols and signs may reassure “LGBTQ youth that they are in a safe place and dealing with safe people” when at the court.

The judicial ethics committee concluded, however, that, “[n]o matter how worthy the cause suggested by items such as a rainbow pin, domestic violence awareness ribbon, cross, or military veteran’s insignia, the judicial robe should not serve as a platform for conveying messages or for communicating a judge’s personal beliefs or extrajudicial activities.”

The judicial robe powerfully and unmistakably invokes the prestige of judicial office.  Using that prestige to express support for any particular message, organization, cause, or category of citizens necessarily excludes a large universe of equally worthy messages, organizations, causes, and citizens who might feel reassured upon encountering a judge displaying symbols meaningful to them. . . .

Promoting confidence in the independence, integrity, and impartiality of the judiciary requires that judicial robes be free of symbols, pins, or messages, instead conveying the singular and uniform message that a judge’s fidelity is to the law and to equal justice for all who come before the court.

The opinion cited Michigan Advisory Opinion JI-68 (1993) (a judge may participate in health education and social awareness activities such as AIDS prevention and encourage other persons to support the same cause but should not wear on the judicial robe a symbol indicating the judge’s support or opposition to a particular political, social, or charitable/civic cause, for example, a red AIDS awareness ribbon) and Rule 2.340 of the Florida Rules of Judicial Administration (“During any judicial proceeding, robes worn by a judge must be solid black with no embellishment”).

Similarly, the opinion advised that, “[c]oncerns regarding impartiality and avoiding the appearance of bias likewise control the question about displaying ‘safe place’ signs or symbols in court facilities.  Courthouses should be safe venues for everyone, and they should also be perceived in that fashion.”

Judges may communicate the judiciary’s commitment to prohibiting bias, prejudice, and harassment by posting signs or placards in courthouses that communicate Rule 2.3’s message.  But . . . signs or placards should not single out a subset of the groups enumerated in Rule 2.3 when offering such assurances.

Rule 2.3(B) of the code of judicial conduct provides:  “A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.”