COVID-19 concerns

3 more judges have been publicly sanctioned for their conduct related to the COVID-19 pandemic, bringing the total to 7.

Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a magistrate for 6 months for his disruptive behavior during a meeting about the court’s COVID-19 safety plan, his confrontations with another magistrate and the Chief Magistrate after the meeting, and his statement to a clerk about the Chief Magistrate’s complaint to Disciplinary Counsel.  In the Matter of Rivers (South Carolina Supreme Court August 11, 2021).  The magistrate recognized that “his concerns regarding Covid-19 do not excuse his behavior and that his disruptive behavior reflected poorly on his professional judgment and temperament.”  The Court also ordered that the magistrate complete at least 15 hours of anger management counseling and pay the costs of the investigation

On May 14, 2020, the Florence County magistrates and clerks met to discuss the COVID-19 safety plan for re-opening the magistrates’ courts to the public consistent with the Supreme Court’s order on evictions and foreclosures dated April 30, 2020.  During the meeting, Magistrate Rivers repeatedly asked questions, spoke in a loud voice, and challenged the Chief Magistrate’s plan for reopening.  As the meeting continued, the magistrate “became visibly agitated,” read aloud parts of the April 30 order, and challenged the Chief Magistrate’s implementation plan.  Another magistrate told him to follow the Chief Magistrate’s direction.

Because of the magistrate’s “continued disruptions, the Chief Magistrate apologized to the other meeting attendees and adjourned the meeting prematurely without completing the agenda.”

After the meeting, Magistrate Rivers left the room and confronted the magistrate who had suggested he follow the Chief Magistrate’s directions; he expressed his displeasure and told the other magistrate not to disrespect him again.  The magistrate then returned to the meeting room, startling the Chief Magistrate as she turned to leave the room.  Magistrate Rivers hit his hands together and loudly requested that the Chief Magistrate show him respect in the future.  The Chief Magistrate became concerned for her physical safety.  The next day, the Chief Magistrate reported the incident to the Office of Disciplinary Counsel.

Approximately a month later, Magistrate Rivers told a county clerk that the Chief Magistrate “does not know who she is dealing with and she will regret doing this,” referring to the complaint.

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The Arizona Commission on Judicial Conduct publicly reprimanded a first judge for speaking sharply to court staff when she was disconnected from a Zoom hearing and yelling at court staff when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case; the Commission also ordered the judge to complete the courses “Leadership for Judges” and “Mindfulness for Judges” offered by the National Judicial College.  Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021).

On September 11, 2020, the judge was presiding over a dependency matter that was conducted remotely via Zoom.  During the hearing, the judge lost her connection to Zoom.  A court clerk, S.H., advised the attorneys and parties that the judge had been disconnected, and the hearing was paused while the judge attempted to get reconnected.  When she rejoined the hearing, the judge stated sharply, “I am incredibly unhappy because this is going to be a pain.  So, I do not understand why I was thrown off Zoom on my laptop, my iPad, and my phone.”  The attorneys and litigants heard her comments, and the clerk felt “embarrassed and belittled.”

On October 16, the judge became upset that parties and lawyers for a scheduled matter had been allowed into the courtroom prior to a designated time and yelled at the clerk, S.H.  After learning that it was another court employee who had allowed the parties to enter the courtroom, the judge went to speak to the elected clerk of the court, and, as she did, her office door slammed shut in front of other clerks and the public.  The judge denied deliberately slamming the door, but other court employees believed that she had slammed the door intentionally.  Court employees also overhead the judge yelling at the elected court clerk about the matter.

In interviews with the Commission’s investigator, 6 court employees confirmed these incidents and also confirmed a pattern of the judge “yelling or using an angry, rapid-fire tone with individuals during the time she has been on the bench” that made them feel disrespected and that created tension in the court.  However, the employees also “reported a recent improvement in the judge’s demeanor.”  The judge disagreed with some of the employees’ perceptions of her conduct but stated that she had “reevaluated my interactions with staff and other elected officials, as well as my overall demeanor with the goal of avoiding any further misunderstandings or hurt feelings.”

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The Arizona Commission publicly reprimanded a second judge for judge repeatedly failing to wear a face covering when interacting with the public and staff in court facilities as required by administrative orders issued by the Arizona Supreme Court and the Maricopa County Superior Court in response to the COVID-19 pandemic, failing to require individuals in his courtroom to abide by administrative orders regarding the use of face coverings, and appearing “to publicly denigrate those orders.”  Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021).  The complaint had been filed by a presiding judge.

The Commission found that the judge’s failure “caused some court personnel to refuse to enter his courtroom and led to distress among court employees.”  He persisted, “despite counseling and admonitions by two presiding judges.”  The judge was ordered to work only in the courtroom or his office but also “violated that directive, resulting in an order banning him from the courthouse entirely, requiring judges pro tem to preside over matters that could not be handled remotely.”  The Commission found that the judge’s “conduct needlessly consumed judicial time and resources, including an internal investigation, witness interviews, and repeated interventions by two presiding judges,” rejecting his characterization of his conduct as “[s]poradic human omissions.”

The judge also refused to regularly review his court emails, explaining that he opens court emails “maybe once a month.”  The Commission noted that “important court business is conducted via email, particularly during the time period at issue here, when pandemic-related communications and orders were commonplace” and stated that his practice was inconsistent with the judge’s obligation to “cooperate with other judges and court officials in the administration of court business.”

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4 other judges have previously been publicly sanctioned for conduct related to the COVID-19 pandemic.  In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for, in addition to other misconduct, displaying improper demeanor toward 2 criminal defense attorneys appearing by phone for an arraignment on the first day after the stay-at-home order was in effect); Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand for stating, “the Grand Wizard of our Supreme Court said we have to wear these masks”); Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand for failing to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commenting that he wished the chief justice “would win an award so that the COVID-19 mandates” would end); In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021) (reprimand for, in addition to other misconduct, declining to determine who was attempting to appear at the end of a calendar via Zoom).

In contravention of protocols

Failing to comply with state court orders regarding proceedings during the coronavirus pandemic was the basis for recent confidential resolutions of complaints against 2 judges.

With the judge’s agreement, the Kentucky Judicial Conduct Commission privately reprimanded a judge for actively discouraging attorneys from electing to appear remotely during the pandemic and suggesting that clients may be directly prejudiced by an attorney’s decision to appear remotely.

In a June 2020 order during the first attempt to re-open the courts during the pandemic, the Kentucky Supreme Court required judges to permit those who were high risk or who had been exposed to COVID-19 to appear remotely.  “In contravention” of that directive, a judge “actively discouraged attorneys from appearing remotely.”  The judge, in open court, “freely voiced frustrations with remote court appearances to litigants and attorneys . . . .”  The judge also required attorneys who chose to appear remotely (1) to verify that they maintained malpractice insurance, which the judge did not require for attorneys appearing in-person, and (2) to sign an agreement that waived the right to request reconsideration of rulings based on technical difficulties or confusion, required attorneys to acknowledge that appearing remotely was solely that attorney’s choice, and warned that the choice to appear remotely may prejudice litigants.  These measures were intended to deter attorneys from appearing remotely and penalized high-risk and possibly exposed attorneys.

In mitigation, the Commission noted that the judge had “attempted to rectify the issue with remote appearances” before being contacted by the Commission and fully cooperated in the investigation.

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The Arizona Commission on Judicial Conduct found that a judge had occasionally failed to wear a mask as required by COVID-19 safety protocols promulgated by the state supreme court and touched court papers after licking his fingers.  The Commission also found that, when he learned that a complaint had been filed with the human resources department regarding his conduct, the judge spoke tersely to his staff, advised them that he would no longer socialize with them, and temporarily excluded staff from assisting him with weddings.  Although it dismissed the complaint against the judge, in a warning letter, the Commission reminded the judge of his obligations to follow administrative orders and to be patient, dignified, and courteous with staff and that his “outburst . . . could be perceived as retaliation and have a chilling effect on staff’s right and duty to report misconduct.”

4 judges have been publicly sanctioned for conduct related to the COVID-19 pandemic.  In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for, in addition to other misconduct, displaying improper demeanor toward 2 criminal defense attorneys appearing by phone for an arraignment on the first day after the stay-at-home order was in effect); Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand for stating, “the Grand Wizard of our Supreme Court said we have to wear these masks”); Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand for failing to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commenting that he wished the chief justice “would win an award so that the COVID-19 mandates” would end); In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021) (reprimand for, in addition to other misconduct, declining to determine who was attempting to appear at the end of a calendar via Zoom).

Zoom problems

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for, in addition to other misconduct, declining to determine who was attempting to appear at the end of a calendar via Zoom.  In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021).  The judge also agreed to continue to work with a mentor judge and to participate in at least 4 hours of ethics training.

At the conclusion of the afternoon calendar one day in February 2021, just after 3:15 p.m., the court clerk told the judge that there was 1 more person in the Zoom “waiting room” and asked if they should be “let in” so that the judge could speak with them.  Apparently tired, the judge said that she “just can’t.”  The clerk indicated that they needed to see who it was and set the case over.  The person in the Zoom waiting room had renamed themselves “Help I couldn’t log in at 2 p.m.,” and the clerk surmised that it could be the 1 person from the 2 p.m. docket who had failed to appear and for whom a warrant had been issued.  The judge said, “You almost hate to not talk to them if they can figure that out,” referring to the way the person had renamed themselves, but the judge again declined the clerk’s request to bring the person in from the waiting room and said that they “would have to do the bench warrant docket.”

The Commission found that the judge had displayed a “disregard for an individual attempting to navigate technology and appear in court” that violated the rules requiring a judge to “accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law;” to “comply with the law, including the Code of Judicial Conduct;” and to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and . . . avoid impropriety and the appearance of impropriety.”

The reprimand was also for the judge’s failure to advise defendants at probation review hearings of their rights; for conducting an ex parte investigation into whether a defendant had performed community service hours and stating on the record that she intended to recommend significant jail time and further charges; for asking 2 defendants when they were arraigned in traffic offense cases whether they had a valid driver’s license; for regularly recommending specific businesses to defendants for re-licensing and insurance purposes related to their charges; and for regularly presiding over cases in which a notice of disqualification had been filed against her.

The judge is the fourth judge to be publicly sanctioned for conduct related to the COVID-19 pandemic.  See also In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for, in addition to other misconduct, displaying improper demeanor toward 2 criminal defense attorneys appearing by phone for an arraignment on the first day after the stay-at-home order); Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand for stating, “the Grand Wizard of our Supreme Court said we have to wear these masks”); Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand for failing to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commenting that he wished the chief justice “would win an award so that the COVID-19 mandates” would end).

Pandemic advice

Judicial ethics committees have responded to judges’ inquiries about the challenge of managing courts and hearing cases while coping with the threat of transmitting the virus.

Judges in a Nebraska district were asked to meet with a coalition of agencies “formed to provide low-income tenants in eviction cases with representation in light of the current COVID-19 pandemic.”  The coalition wanted to discuss with the judges the public health risks in eviction proceedings, scheduling, modifications of the court’s calendaring procedure, and substantive procedural changes. 

The Nebraska judicial ethics committee advised the judges that they or their designee could meet with the coalition, noting that the proposed topics were “appropriate matters for discussion given that no advantage can be reasonably assumed to adhere to the coalition or its potential clients from the conversations.”  Nebraska Advisory Opinion 2020-1.  The committee added that, although the judges were not required to notify others who might be interested in the discussion, “it would be appropriate, efficient, and in keeping with the spirit of the Nebraska Revised Code of Judicial Conduct to encourage other attorneys or interested parties to participate in the meeting.”  The committee noted that the coalition’s request was not a prohibited ex parte communication about pending or impending cases that had to be disclosed to other counsel or parties or to disciplinary authorities. 

The coalition had also asked the judges to notify self-represented litigants about the coalition “from the bench.”  The committee advised that the judges could not “refer persons to a specific organization for legal assistance” but could inform “an unrepresented litigant that he or she has a general right to seek the assistance of counsel and that there are organizations which may be able to assist on a reduced or a no-fee basis.”  The committee also disapproved of the suggestion that information about legal services be included with the summons in eviction cases, concluding that “extraneous materials promoting one specific group of service providers” should not be included with the documents that statutes specify must be provided.  The opinion did add that the court could post information about the coalition’s services in “highly visible” locations near courtrooms and throughout the courthouse.

The coalition had also asked the judges to consider “liberally granting continuances,” but the judicial ethics committee warned that “any such promise or consideration by the court would be improper.  All continuances are subject to objection and controlled by rules of law.  It is inappropriate to have a blanket rule that all continuances should be either granted or denied in any type of case.”

The New York advisory committee addressed several inquiries from town and village justices who wanted to work with prosecutors to facilitate plea agreements in traffic cases to limit in-person court appearances due to public health concerns, particularly given significant staff reductions for prosecutorial agencies and courts.  Emphasizing the importance of maintaining judicial independence, the committee disapproved all four proposals, although it noted that it was “not unsympathetic to the challenges facing prosecutors and courts ….”

For example, in New York Advisory Opinion 2020-99, the committee stated that a town or village justice court must not “collaborate” with prosecutors to develop procedures to process pleas on paper and establish a mail-in plea bargain process for vehicle and traffic law infractions.  The opinion emphasized that a court must not promote or favor mail-in pleas and/or plea bargaining over other options even to mitigate the effects of the COVID-19 outbreak.  However, the committee did suggest that the court could meet with defense bar representatives and the prosecutor’s office together to discuss procedures for handling mail-in pleas on traffic infractions and authorized the court to distribute, as a convenience to defendants, a court-prepared form that impartially listed all options and included a link to the district attorney’s website and/or email address. 

The committee also disapproved of a proposed plea reduction form “designed to limit foot traffic in the courtroom” because it did not present all of a motorist’s options neutrally, it had the court’s name at the top, and it significantly downplayed the motorist’s rights.  New York Advisory Opinion 2020-206.  The opinion did suggest that “it may be helpful for court administrators, working with the Office of Justice Court Support, to develop and circulate a new form, consistent with applicable ethical and legal considerations, for use in these circumstances.  Such a form could help protect well-intentioned judges across the state from inadvertent missteps.  We note that other potential solutions might be technological in nature (e.g. if defendant motorists could interact directly with the prosecuting agency online to request plea reductions) or even legislative (e.g. if statutory changes could be made to facilitate plea bargaining in matters where defendants mail in “not guilty” pleas pursuant . . .).”

See also New York Advisory Opinion 2020-97 (courts must not distribute the district attorney’s “informational document” to defendant motorists or otherwise implement the DA’s procedure for facilitating defendants’ pleas to lesser charges in vehicle and traffic law matters); New York Advisory Opinion 2020-94 (judge may not permit the clerk to use the court’s database access or other digital platform to enter data in the village attorney’s plea bargain letters sent to defendant motorists).

Not all pandemic operation issues are ethical ones, of course.  The California Supreme Court advisory committee, for example, explained that it did not have the authority to decide whether judges may require a witness or a party who is afraid to remove a mask, as that is a question of law.  California Oral Advisory Summary 2020-32.  It also advised that whether judges must be allowed to continue to work remotely if they are concerned that their age or preexisting medical conditions would place them at great risk if they were required to be physically present in a courtroom was not an ethics issue, but a court management issue.  California Supreme Court Committee Advisory Opinion 2020-34.

Outside the parameters

With the judge’s acceptance, the Tennessee Board of Judicial Conduct publicly reprimanded Judge Michael Hinson for “conducting judicial business outside the parameters of the COVID-19” plan for his judicial district as approved by the Tennessee Supreme Court and making a discourteous remark about the Chief Justice.  Hinson (Tennessee Board of Judicial Conduct December 15, 2020).

The judge failed to limit the number of persons in his courtroom and has not been enforcing social distancing requirements; at times, his courtroom “has been filled to capacity, even to the point of members of the public having to stand shoulder to shoulder along the walls because all the seats are taken.”  In addition, referring to the Court’s pandemic-related guidelines, the judge commented to a court audience that he “wished Chief Justice Jeff Bivens would win an award so that the COVID-19 mandates” would end.

The judge acknowledged that “failing to abide by the directives of a higher court is unacceptable and reflects poorly” on him as a judge and admitted that his comment was wrong, although he stated that he “intended no disrespect.”

The Board acknowledged that the judge’s courtroom was small and that he has been trying to avoid a backlog of cases, but it emphasized that the COVID-19 guidelines adopted by the Court “are not mere suggestions.  Conducting judicial business within those guidelines, which have been expressed in court orders, is not optional. . . .  By requiring all judicial districts to adopt measures designed to protect users and employees of the court system from the risks associated with COVID-19, the Supreme Court has recognized that the health and safety of litigants, witnesses, attorneys, court staff, and others is of utmost importance.  Thus, regardless of how logistically or administratively inconvenient, and no matter a judge’s personal views concerning the pandemic generally, all judges are obligated to comply with and enforce the pertinent guidelines.” 

The Board also stated that the judge’s comment regarding the Chief Justice was “neither dignified nor courteous” and did not inspire public confidence in the judiciary “even if off-the-cuff and with no intent to be offensive.”  It acknowledged that there was no evidence to doubt the judge’s assertion that he had not 5“to cast aspersions on any member of the Supreme Court,” but emphasized that those who heard the comment had no way of determining his “intent apart from the words used.  Once such comments are made, the damage is done.” 

See also In re Disqualification of Fleegle (Chief Justice Ohio Supreme Court December 10, 2020) (disqualification of judge from 2 criminal cases because he could not prove that he had taken steps to protect the safety of individuals in the courtroom and could not articulated “the necessity of proceeding with jury trials during a dangerous stage of a pandemic”).