Category Archives: COVID-19

“The character assassination game”

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Based on the Utah Supreme Court’s approval of an order of the Judicial Conduct Commission, a former judge has been publicly censured for sending court staff an email before he retired stating:

Just so all of you are on the same page, I am not retiring because I want to, I am leaving because several staff members here at the court filed complaints against me.  The judicial conduct commission acted on those complaints and are requiring that I retire.  Those staff members know who they are and I know too because their names were listed in the report.  Thanks for playing the character assassination game, appreciate ya.

The Commission noted that removal would have been the appropriate sanction if the judge had not retired.  In re Ridge (Utah Supreme Court July 3, 2023) ().

The judge sent the email after he had agreed to retire and to be publicly censured to resolve a  complaint.  Based on that agreement, the judge was also publicly censured for (1) taking prescribed medication while he presided in court and appearing groggy and tired; (2) engaging in inappropriate conduct and making inappropriate comments during WebEx hearings; (3) being impatient with defendants; (4) being impatient and discourteous to court staff and failing to be diligent in his administrative duties; and (5) questioning Hispanic defendants who requested an interpreter, entering pleas without counsel or an interpreter, and not allowing a defendant to enter a not guilty plea.  In re Ridge (Utah Supreme Court July 3, 2023). 

In June 2021, the judge was prescribed and took medication to relieve numbness of his feet caused by back problems.  He took the medication while presiding in court and appeared tired and groggy.  Defendants, attorneys, court personnel, and witnesses observed his state while on the medication.

Sometimes during WebEx court hearings in 2021, the judge did not turn on his camera; did not wear judicial robes and/or was dressed very casually when the camera was on; babysat his grandson; and had his TV on.  Also during 2021, the judge had his dog—an emotional support animal—with him during court proceedings at home and at the courthouse.  (Approving the censure, the Court stated that it was relying on the judge’s stipulation that he had violated the code of judicial conduct and offered no opinion on whether all of the conduct related to the WebEx hearings violated the code.)

At the end of a court day in November 2021, when everyone was off a WebEx hearing except for one defendant, the prosecutor, and court staff, the following comments were made:

Judge:  Okay, I’m going to go shoot myself.  You guys have a good afternoon.
Bailiff:  I have valium in my desk Judge.  I’m gonna go take some.  (laughing).
Judge:  I wish you had some here, I’d take some with you.
Prosecutor:  You guys have to be careful what you admit in front of the prosecutors.  (laughing).
Bailiff:  Yeah, I ain’t afraid of you.  (laughing).
Prosecutor:  I’ll come down harder on you guys.  I’m going to ask for prison time for you.  (laughing).

The Commission found that the comments were clearly jokes and everyone was laughing but that the defendant was able to see and hear the conversation.

During a hearing held via WebEx, the judge had the following exchange with a defendant who asked if counsel could be appointed in his case.

Judge:  Since there is no threat of incarceration, your request is denied.  The court is going to give you time to hire counsel.
Defendant:  [Is silent]
Judge:  Hello?
Defendant:  Can you say that one more time, about to hire counsel, um can you explain that end part, hire counsel?
Judge:  I’ll give you time to hire an attorney.  [exasperated]
Defendant:  Okay.
Judge:  What are you going to do
Defendant:  Hire an attorney, look for an attorney, I’m not sure how to go about this
Judge:  We’ll set it over for pre-trial conference.
Clerk:  Would like a date judge?  We can schedule you for January 4 . . .
Judge:  Thank you.  Ah stupid  [sighed].

The judge’s microphone was still on when he said “stupid.”

Throughout 2021, the judge came to the courthouse less and less, was not available to follow through on matters, did not respond to or communicate with staff, and did not attend all the administrative meetings.  The judge agrees that he made comments and sent emails to staff that had an impatient and angry tone.

“Unprecedented misconduct”

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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.

COVID comments, likes, and warrants

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4 judges were recently sanctioned for misconduct related to the COVID-19 pandemic.

  • 1 judge has asked for review of the admonishment he received from the Texas State Commission on Judicial Conduct for, during jury selection in a case, referring to COVID-19 as the “China Virus;” stating, “yeah, I said it!” and “the attorneys would be upset I said that;” and calling some of the pre-requisite questions for jurors “stupid” and commenting “I don’t know why I have to ask this.”  Public Admonition of Low and Order of Additional Education (Texas State Commission on Judicial Conduct August 22, 2022).  Some of the potential jurors whooped and clapped their hands after the judge’s comment about the virus, and he encouraged their behavior by laughing and nodding.  A potential juror who was Asian American stated that she felt unsafe and uncomfortable after the judge’s comment, especially in light of recent hate crimes directed against Asian Americans.  The judge testified that he was trying to expose the bias of the potential jurors and that he knew it could offend some of them, but he was doing it for a higher purpose.
  • In an order issued at the beginning of COVID-19 pandemic, a judge explained that he was cancelling a hearing scheduled to be held over Zoom “because that may require someone (staff person/IT person/lawyer who doesn’t have access to the technology?) to leave home and violate Gov. MeMaw’s order,” a reference to Governor Kay Ivey’s stay-at-home order.  The judge’s order went “viral,” and the other judges in the state were concerned it would affect upcoming budget discussions.  In a letter of apology to the Governor, the judge stated that “the idiotic comment in that order was mine alone, and a poor attempt at humor in the midst of this Covid-10 mess.”  Pursuant to his agreement, he was suspended for 45 days without pay and censured for this and similar references to the Governor, other comments, using cuss words and profanity, and declaring laws regarding court fees unconstitutional and redirecting funds from the state to the circuit clerk’s office.  In the Matter of Patterson, Final judgment (Alabama Court of the Judiciary October 27, 2022).
  • A judge liked a LinkedIn post that shared a post stating, “Biden’s been in office 2 days and Democrat cities across the country are reducing Covid restrictions and opening indoor dining.  YOU LITERALLY CAN’T MAKE THIS STUFF UP!  They ruined American businesses, livelihoods and lives for an election.  This should repulse you.”  In the Matter of Elia, Determination (New York State Commission on Judicial Conduct September 28, 2022). Pursuant to his agreement, he was publicly censured for this and other misconduct).

Finally, a judge did not comply with an administrative order postponing hearings during the COVID-19 pandemic and then issued capias warrants to defendants who followed the administrative order and did not appear and lied about the warrants to the press and the presiding administrative judge.  Disciplinary Counsel v. Carr (Ohio Supreme Court October 18, 2022).  The Ohio Supreme Court suspended the judge without pay indefinitely for this and other misconduct.  

On March 13, 2020, in an administrative order entered to help prevent the spread of COVID-19, Judge Michelle Earley, the administrative and presiding judge of the Cleveland Municipal Court, ordered that all civil and criminal cases set for hearing between March 16 and April 3, 2020, be rescheduled for 3 weeks after the originally scheduled date.

However, Judge Carr did not reschedule cases, and, on Monday, March 16, she presided over her regular docket.  In 8 criminal cases, the defendants did not appear, and the judge issued capias warrants for each of those defendants, setting bonds from $2,500 to $10,000.  In contrast, for defendants who were “brave enough” to appear despite the potential for exposure to COVID-19, the judge waived fines and court costs.  The judge informed the public defender assigned to her courtroom that defendants represented by that office should continue to appear in court, contrary to the administrative order.

On Tuesday, March 17, the judge presided over her regular docket as though the administrative order had never been issued.  Only a few non-jailed defendants and their counsel appeared.  The judge issued capias warrants and set bonds for 7 defendants who did not appear.  When the public defender asked whether his clients should plan to be in court the following day, the judge stated that they should.  When the public defender mentioned the administrative order and asked if there was any concern regarding COVID-19, the judge replied that not everyone watches the news and that she would be in court and the public defender should not tell people not to show up.  After the public defender left the courtroom, the judge mocked him to her staff, calling him a “little idiot.”

Pursuant to the administrative order, Matthew Woyma, the person responsible for scheduling the court’s cases, cancelled the judge’s civil docket for March 26 and sent written notices to all parties.  In open court, the judge instructed her bailiff to tell Woyma “to get his a** back on that phone and put all [her] civil cases back on.”  As a result, Woyma had to notify every party to appear in court as originally scheduled.

On March 17, The Plain Dealer published an article on its website, Cleveland.com, with the headline “Cleveland judge flouts court’s postponements amid coronavirus pandemic, issues warrants for no-shows.” 

Throughout the morning docket of March 18, the judge criticized Cleveland.com for the article.  Between proceedings, in an interview with a reporter from a local TV station, she claimed that the article was “untrue” and “reckless” and denied issuing arrest warrants for defendants who had failed to appear for proceedings in her courtroom that week.

In a text exchange later that day, Judge Earley asked Judge Carr if she was issuing warrants for people who failed to appear, and Judge Carr responded, “Too late to ask that ridiculous question.  My [journal entries] reflect corona day 1, 2, or 3.  Time case was called and no defendant or [failed to appear] in which my journalizer notes NO WARRANT TO ISSUE.”  The Court emphasized that that “statement was patently false because none of Carr’s journal entries included the phrase ‘no warrant to issue.’”

When Judge Earley learned that Judge Carr had, in fact, issued arrest warrants, Judge Earley had to review all of Judge Carr’s entries, recall the warrants, set bonds, and issue summonses for the next court appearances.  She also had to reschedule the civil cases that Judge Carr had reset for March 26.

In response to a complaint and motion from the public defender, the court of appeals ordered the judge to comply with the administrative order and stayed all orders and capias warrants she had issued after March 13.  In addition, the chief justice disqualified the judge from criminal and traffic cases of non-jailed defendants as long as Judge Earley’s administrative order was in effect.

The Board on Professional Conduct found that the judge had “very publicly flouted her disregard of a court order that was designed to ensure the safety of the public and the court’s personnel during the pandemic,” that she had punished members of the public who followed the administrative order and lied about it to the press and to the presiding judge, and that she had “created the very danger that the order sought to prevent—the spread of the coronavirus in open court.” 

Conduct related to the pandemic has previously resulted in 15 public sanctions.

  • A judge failed to grant a continuance requested by an attorney who had COVID-19 symptoms or to make arrangements to allow the attorney to appear telephonically and then granted a default judgment against the attorney’s client, a defendant in a civil traffic case.  Sears, Order (Arizona Commission on Judicial Conduct January 26, 2022) (admonishment).
  • A judge spoke sharply to court staff when disconnected from a Zoom hearing and yelled at court staff when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case.  Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021) (reprimand).
  • A judge repeatedly failed to wear a face covering when interacting with the public and staff in court facilities as required by administrative orders, failed to require individuals in his courtroom to abide by administrative orders, and appeared “to publicly denigrate those orders.”  Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021) (reprimand).
  • A judge displayed 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.  In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for this and other misconduct).
  • A judge failed to wear a protective face covering at all times while on court premises as required by the New Mexico Supreme Court’s COVID-19 order and asked a clerk if they minded if he did not wear a mask, and, after the court began conducting telephonic hearings due to the pandemic, issued bench warrants when 11 defendants failed to call the court on their appearance date without determining if the defendants had been properly summoned.  In the Matter of Guthrie, Order (New Mexico Supreme Court April 25, 2022) (permanent resignation pursuant to agreement for this and other misconduct).
  • A judge failed to always wear a protective face covering while on court premises and told attorneys appearing before him for trial that they did not need to wear masks during proceedings, contrary to the New Mexico Supreme Court’s COVID-19 order.  In the Matter of Ionta, Order (New Mexico Supreme Court August 1, 2022) (permanent retirement pursuant to agreement for this and other misconduct).
  • A judge engaged in disruptive behavior during a meeting about the court’s COVID-19 safety plan, confronted another magistrate and the Chief Magistrate after the meeting, and made an inappropriate statement to a clerk about the Chief Magistrate’s complaint to Disciplinary Counsel.  In the Matter of Rivers, 862 S.E.2d 449 (South Carolina 2021) (6-month suspension without pay).
  • A judge stated in the courtroom:  “The Grand Wizard of our Supreme Court said we have to wear these masks.”  Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand).
  • A judge failed to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commented in the courtroom that he wished the chief justice “would win an award so that the COVID-19 mandates” would end.  Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand).
  • A judge stated in a post on the county’s Facebook page that he would release anyone brought before him charged with violating stay-at-home orders issued during the COVID-19 public health emergency.  Public Admonition of Black (Texas State Commission on Judicial Conduct February 28, 2022).
  • A judge issued peace bond warrants for President Biden and Dr. Anthony Fauci alleging their COVID-19 health restrictions, immigration policies, and firearms policies constituted threats to commit offenses under Texas law against multiple anonymous complainants.  Public Warning of Black (Texas State Commission on Judicial Conduct April 7, 2022).
  • A judge declined 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) (reprimand for this and other misconduct).
  • A judge criticized the prosecution of a case in comments that he thought could only be heard by the court employees in the courtroom but that were being broadcast through the court’s YouTube channel.  In re Antush, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 19, 2021) (admonishment).
  • A judge said, “kicked that mother f***er’s a**,” when he believed he was no longer on the line after a telephonic hearing had adjourned but, in fact, the attorneys could still hear him and the courtroom’s audio recording was still activated.  In re Dixon, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022) (admonishment).
  • A judge significantly delayed issuing decisions after hearings in 3 small claims cases, which the judge attributed in part to the difficulty of maintaining court operations during the pandemic.  In re Howson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022) (admonishment).

Hot mic and disruptions

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2 judges were recently disciplined for misconduct related to the COVID-19 pandemic.

On June 8, 2021, after a telephonic hearing in a civil case in which he had sanctioned one of the parties, a judge said that the hearing was adjourned.  Then, believing he was no longer on the line with the parties or on the record, the judge, who was alone in his chambers, said, “Kicked that motherf***er’s a**.”  In fact, he had not disconnected, the attorneys were still on the line, and the courtroom’s audio recording was still activated.  The attorney whose client had been sanctioned believed the comment was directed at him. 

Immediately after the hearing, the judge realized what had happened, called both attorneys to apologize, and called the Commission to self-report.  Later that week, he recused himself from the case.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished him.  In re Dixon, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022).

During the Commission investigation, the judge explained that he sometimes uses crude language in private and his comment had not been directed at a particular person or party but was an expression of relief at finishing the hearing, which he had not intended the attorneys to hear.  The Commission found that because the comment was made after a hearing in which one side was sanctioned, “the comment was reasonably interpreted to be directed at a particular attorney creating an appearance of bias or prejudice against that attorney.” The Commission noted that, after the incident, the judge had put reminders to use appropriate language by the equipment used for remote meetings.

The Commission stated:

[J]udges are the embodiment of the justice system, and they are directed by the Code to “aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, and integrity, and competence,” and regardless of his intention, the impact on the listeners was demeaning and upsetting.  It created the impression the judge was disrespectful and disdainful of counsel. . . .  Language that manifests bias or prejudice, or profanity, has no place in a court proceeding.  Discourteous and disrespectful behavior by a judge erodes confidence in the quality of justice administered by that judge, not only for the direct targets of such behavior, but also for all those who witness it.

* * *

A judge explained that the difficulty of maintaining court operations during the pandemic contributed to the significant delays in deciding 3 small claims cases for which she agreed to be was publicly admonished.  In re Howson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022).  She also noted that she had been covering the caseloads of judicial officers with health issues and had been displaced from her chambers while the courthouse was being repaired.  The delays were for approximately 722 days, 406 days, and 115 days between the trial of the case and entry of the judge’s decision.

The Commission stated that it was “mindful of the difficulty and stresses caused by the pandemic and other court disruptions” and noted that the judge “has a reputation as a very careful and thoughtful jurist.”  But the Commission emphasized:  “The nature of this type of misconduct – decisional delay – is inherently problematic because it deprives litigants of timely justice, which often cannot be remedied through the appellate process.  Issuing timely decisions is a core function for any judicial officer and the misconduct here was not isolated.” 

* * *

12 other prior public sanctions and 2 private sanctions have addressed misconduct related to the pandemic.

  • Judge failed to grant a continuance requested by an attorney who had COVID-19 symptoms or to make arrangements to allow the attorney to appear telephonically and then granted a default judgment against the attorney’s client, a defendant in a civil traffic case.  Sears, Order (Arizona Commission on Judicial Conduct January 26, 2022) (admonishment).
  • Judge spoke sharply to court staff when disconnected from a Zoom hearing and yelled at court staff when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case.  Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021) (reprimand).
  • Judge repeatedly failed to wear a face covering when interacting with the public and staff in court facilities as required by administrative orders, failed to require individuals in his courtroom to abide by administrative orders, and appeared “to publicly denigrate those orders.”  Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021) (reprimand).
  • Judge displayed 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.  In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for this and other misconduct).
  • , in addition to other misconduct.  In the Matter of Guthrie, Order (New Mexico Supreme Court April 25, 2022) (permanent resignation).
  • Judge engaged in disruptive behavior during a meeting about the court’s COVID-19 safety plan, confronted another magistrate and the Chief Magistrate after the meeting, and made an inappropriate statement to a clerk about the Chief Magistrate’s complaint to Disciplinary Counsel.  In the Matter of Rivers, 862 S.E.2d 449 (South Carolina 2021) (6-month suspension without pay).
  • Judge stated in the courtroom:  “The Grand Wizard of our Supreme Court said we have to wear these masks.”  Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020).
  • Judge failed to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commented in the courtroom that he wished the chief justice “would win an award so that the COVID-19 mandates” would end.  Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand).
  • Judge stated in a post on the county’s Facebook page that he would release anyone brought before him charged with violating stay-at-home orders issued during the COVID-19 public health emergency.  Public Admonition of Black (Texas State Commission on Judicial Conduct February 28, 2022).
  • Judge, in addition to other misconduct, issued peace bond warrants for President Biden and Dr. Anthony Fauci, alleging that their immigration policies, COVID-19 health restrictions, and firearms policies constituted threats to commit offenses under Texas law against multiple anonymous complainants; the warrants were the subject of national news coverage, and the judge participated in media interviews concerning the warrants.  Public Warning of Black (Texas State Commission on Judicial Conduct April 7, 2022).
  • Judge declined 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) (reprimand for this and other misconduct).
  • Judge criticized the prosecution of a case in comments that he thought could only be heard by the court employees in the courtroom but that were being broadcast through the court’s YouTube channel.  In re Antush, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 19, 2021) (admonishment).
  • Magistrate posted on Facebook that if a citizen were criminally cited for not wearing a mask and appeared before him, he would dismiss the citation because he thought it was unconstitutional.  Described in Public Admonishment of Weiss (West Virginia Judicial Investigation Commission April 25, 2022).

Zoom, Facebook, and symptoms

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Judicial conduct related to the COVID-19 pandemic has recently resulted in 1 private admonishment and 2 public sanctions.

The Minnesota Board on Judicial Standards privately admonished a judge who, before “a hearing by Zoom, . . . not realizing others had joined the meeting, used a derogatory word to refer to a party.  The comment was overheard by others at the Zoom hearing, including the party’s attorney.  The judge showed remorse, immediately apologized, and self-reported his conduct to the Board.”

The Texas State Commission on Judicial Conduct publicly admonished a judge for stating in a post on the county’s Facebook page that he would release anyone brought before him charged with violating stay-at-home orders issued during the COVID-19 public health emergency.  Public Admonition of Black (Texas State Commission on Judicial Conduct February 28, 2022).

The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to grant a continuance requested by an attorney who had COVID-19 symptoms or to make arrangements to allow the attorney to appear telephonically and then granting a default judgment against the attorney’s client, a defendant in a civil traffic case.  Sears, Order (Arizona Commission on Judicial Conduct January 26, 2022).

On the morning of April 28, 2021, the attorney for the defendant in a scheduled civil traffic hearing experienced COVID-19 symptoms and filed an emergency motion to continue the hearing.  The attorney’s staff also informed the court’s staff, and the court staff assured them that the motion to continue would be given to the hearing officer scheduled to preside over the hearing. 

The judge denied the motion to continue, and a default judgment was entered against the defendant.  The court file “clearly showed” that the defendant’s presence was waived for that hearing.  The defendant’s attorney filed a motion to reconsider/set-aside, but the judge also denied that motion.

The Commission found that the judge’s “failure to liberally grant a continuance or make arrangements to allow the attorney to appear telephonically detrimentally affected the Complainant through the default judgment entered and fine imposed.”  The Commission concluded that, in addition to violating the code of judicial conduct, the judge had violated administrative orders issued by the Arizona Supreme Court, providing, for example, that “Judicial officers shall liberally grant continuances and make accommodations, if necessary and possible, for attorneys, parties, victims, witnesses, jurors, and others with business before the courts who are at a high risk of illness from COVID-19 or who report any COVID-19 diagnosis, symptoms, or exposure notification by public health authorities.”

9 other judges have previously been publicly sanctioned for conduct related to the COVID-19 pandemic.

  • Judge spoke sharply to court staff when disconnected from a Zoom hearing and yelled at court staff when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case.  Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021) (reprimand).
  • Judge repeatedly failed to wear a face covering when interacting with the public and staff in court facilities as required by administrative orders, failed to require individuals in his courtroom to abide by administrative orders, and appeared “to publicly denigrate those orders.”  Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021) (reprimand).
  • Judge displayed 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.  In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for this and other misconduct).
  • Judge failed to wear a protective face covering at all times while on court premises as required by a state supreme court order and asked a clerk if they minded if he did not wear a mask; and, after the court began conducting telephonic hearings due to the pandemic, issued bench warrants when 11 defendants failed to call the court on their appearance date without determining if the defendants had been properly summonsed.  In the Matter of Guthrie, Order (New Mexico Supreme Court October 29, 2021) (30-day suspension without pay for this and other misconduct).
  • Judge engaged in disruptive behavior during a meeting about the court’s COVID-19 safety plan, confronted another magistrate and the Chief Magistrate after the meeting, and made an inappropriate statement to a clerk about the Chief Magistrate’s complaint to Disciplinary Counsel.  In the Matter of Rivers, 862 S.E.2d 449 (South Carolina 2021) (6-month suspension without pay).
  • Judge stated in the courtroom:  “The Grand Wizard of our Supreme Court said we have to wear these masks.”  Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand).
  • Judge failed to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commented in the courtroom that he wished the chief justice “would win an award so that the COVID-19 mandates” would end.  Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand).
  • Judge declined to determine who was attempting to appear at the end of a calendar via Zoom.  In re Burchett, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 23, 2021) (reprimand for this and other misconduct).
  • Judge criticized the prosecution of a case in comments that he thought could only be heard by the court employees in the courtroom but that were being broadcast through the court’s YouTube channel.  In re Antush, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 19, 2021) (admonishment).

“Understandable, though ill-advised”

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2 more judges have been publicly sanctioned for their conduct related to the COVID-19 pandemic, bringing the total to 9.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for making comments criticizing the prosecution of a case that he thought could only be heard by the court employees in the courtroom but that were being broadcast through the court’s YouTube channel. In re Antush, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 19, 2021).

During the Covid-19 pandemic, the Spokane Municipal Court, like many courts in Washington, provided live stream coverage of court proceedings on YouTube to allow the public to observe proceedings. The live stream typically ended at the conclusion of the court proceedings.

On November 12, 2020, the judge presided over a criminal jury trial on charges of disorderly conduct and failure to disperse. After the prosecution and defense had rested their cases, the judge dismissed the jury for the day, planning to have closing arguments, jury instructions, and deliberations the next morning. Shortly after everyone but the judge and 2 clerks had left the courtroom, the judge stated:

It’s frustrating because I don’t think this ever should have been tried. It’s a simple misdemeanor. The guy has no record. Best case scenario, he got carried away. I mean this is the best possible case scenario is that he got carried away in the moment. Do you really want to f*** with someone’s life like that? Apparently. Worst case scenario … The thing is, like I didn’t hear anybody say they saw the guy throw jack. Did you hear that … [recording stops].

Although the judge reasonably believed he could only be heard by the 2 court employees, the courtroom’s audio recording was still activated and being broadcast to the public through the court’s live stream YouTube channel. The prosecution learned of the judge’s comments that evening via the broadcast.

The following morning, the city moved for a mistrial based on the judge’s comments. After hearing argument from the parties and reviewing his comments, the judge “agreed with the City that, while judges are human and have opinions, it was wrong for him to verbalize them in a way that undermined public confidence in the fairness and impartiality of the rulings he had made in the case before him.” He granted the motion for a mistrial, apologized to the parties, and expressed his regret for the waste of time and resources.

In mitigation, the Commission noted that this was an isolated incident, the judge has had no prior judicial discipline history, he had been a judge for less than 3 years when he made the comment, those who know him professionally describe him as very competent, conscientious, and compassionate, and, “importantly, his response to this matter, both at the time it was first brought to his attention, and in this disciplinary proceeding, has been exemplary.” The agreement also stated:

Respondent’s actions were careless, but there is no basis to believe he flagrantly or intentionally violated his oath of office. At the time he made the comments at issue, Respondent was unaware that anyone other than court staff could hear the comments. There are many pressures upon a trial judge, and it is understandable, though ill-advised, for a judge to vent to trusted court associates even in private. Respondent credibly stated that he did not intend to impair the case before him.

On the other hand, Respondent revealed his strong opinion about the merits of a case about to go to a jury and that opinion became public (although Respondent did not intend those comments to be public). In this context, presiding over a pending jury trial, Respondent’s comments caused actual injury by affecting the outcome of a criminal case and consequently damaged the perceived integrity of the justice system to anyone who may have heard the comments.

The Commission noted that the admonishment “may help to alert other judges to the risks of unguarded comments damaging public confidence in the impartiality, integrity and independence of the judiciary, at a time when courts are using more varied technological broadcast means than ever before in conducting the courts’ business.”

Statements inadvertently broadcast live via YouTube by a second judge are also the basis for a statement of charges filed by the Washington Commission. The second judge’s statements were about the fatal shooting of a Black man by local law enforcement and were made after the end of unrelated court proceedings during a conversation between the judge and a fellow judicial officer. The Commission alleges that the statements “displayed overt racial bias, indicated a lack of impartiality, and implied that Respondent has a personal channel of communication with the Sheriff’s Department regarding pending and impending cases.” The charges note that “the Commission received dozens of complaints about this incident,” including a self-report. The judge retired effective June 30, 2021.

Accepting a stipulation agreement and consent to discipline, the New Mexico Supreme Court suspended a judge for 30 days without pay for, in addition to other misconduct, failing to wear a protective face covering at all times while on court premises as required by a state supreme court order and asking a clerk if they minded if he did not wear a mask; and after the court began conducting telephonic hearings due to the pandemic, issuing bench warrants when 11 defendants failed to call the court on their appearance date without determining if the defendants had been properly summonsed. In the Matter of Guthrie, Order (New Mexico Supreme Court October 29, 2021).

The judge failed to wear a protective face covering at all times while on court premises and placed a court clerk in a difficult position when he asked the clerk if they minded if he did not wear a mask. The magistrate failed to follow the New Mexico Supreme Court’s order on the safe and effective administration of the judiciary during the COVID-19 public health emergency and put the health and safety of court staff at risk.

Due to the COVID-19 pandemic, the county magistrate court began conducting telephonic hearings, but the magistrate issued summonses for defendants to appear in person and/or did not include contact information for the court on the summonses. When 11 defendants failed to call the court on their appearance date, the magistrate issued bench warrants and assessed $100 bench warrant fees without determining if the defendants had been properly summonsed.

7 other judges have previously been publicly sanctioned for conduct related to the COVID-19 pandemic. Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021) () (public reprimand for speaking sharply to court staff when 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); Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021) (public reprimand for 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”); 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”); In the Matter of Rivers, 862 S.E.2d 449 (South Carolina 2021) (6-month suspension for 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); 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).

COVID-19 concerns

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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.

***

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.”

***

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.”

***

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

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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.

* * *

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

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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

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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.