Category Archives: Criminal conduct

Criminal conduct

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In 2022, there were 8 dispositions in discipline proceedings involving judges or former judges who had been convicted or charged with crimes.

  1. Adopting the recommendation of the Commission on Judicial Discipline, which was based on a stipulation, the Colorado Supreme Court suspended a judge from office for 30 days without pay and publicly censured him for pointing an AR-15 style rifle at his adult stepson during a confrontation.  In the Matter of Thompson, 516 P.3d 28 (Colorado 2022).  The judge had been placed on paid administrative leave after criminal charges were filed based on the incident.  The judge pled guilty to disorderly conduct, specifically, recklessly displaying a deadly weapon or “any article used or fashioned in a manner to cause a person to reasonably believe [it was] a deadly weapon . . . in a public place, in a manner calculated to alarm,” a misdemeanor.  He was sentenced to 1 year of unsupervised probation with continued anger management treatment. 
  2. Based on the judge’s resignation and agreement not to seek, request, or accept any elected or appointed judicial office, the Georgia Judicial Qualifications Commission resolved its investigation of allegations that a former chief magistrate judge had committed the offenses of criminal trespass, terroristic threats, and violation of his oath of office by entering onto another’s property without permission, taking peas from the garden without the owner’s permission, and threatening to assault the owner when confronted.  In re Anderson, Report of disposition (Georgia Judicial Qualifications Commission August 11, 2022).  According to a press release from the Georgia Bureau of Investigation, in July, the judge had been arrested and charged following the incident.  According to news reports, the judge said he had permission from a relative of the property owner to take the produce but acknowledged that, when the property owner called him, he told the man, “If you meet me out there in the middle of the road, I’ll kick your a**.”
  3. Based on a stipulation and agreement that included the judge’s resignation, affirmation that she will not seek office or accept judicial office or perform judicial duties in Indiana state courts, and relinquishment of her law license for 150 days, the Indiana Commission on Judicial Qualifications concluded its investigation of allegations that had also resulted in the judge being charged with domestic battery in the presence of a child.  In the Matter of Bell, Stipulation and agreement (Indiana Commission on Judicial Qualifications July 25, 2022).  The judge had been suspended with pay after the criminal charges were filed in May 2022. 
  4. Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court permanently disqualified a former judge from judicial service and publicly censured him for offensively touching a client’s representative in his private law office and “pervasive dishonesty” when testifying before the Committee.  In the Matter of Falcone, 278 A.3d 782 (New Jersey 2022).  In September 2019, the Court had suspended the judge without pay following his arrest on a charge of criminal sexual contact and referred the judge to the Committee, which, consistent with its standing policy, held the matter pending the conclusion of the criminal case.  In May 2021, the criminal charges were dismissed after the judge complied with the conditions of the pretrial intervention program. 
  5. Accepting a stipulation based on the judge’s affirmation that she has vacated her office and will not seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a matter against a former judge who had been convicted by a jury on federal charges of conspiracy to obstruct justice, obstruction of justice, and making false statements to a federal agent.  In the Matter of Ash, Decision and order (New York State Commission on Judicial Conduct March 17, 2022).  The stipulation notes that the Commission’s investigation had been held in abeyance pending resolution of the charges.  The judge had served as chair of the board of the Municipal Credit Union while also serving as a judge, and, according to a press release from the U.S. Attorney for the Southern District of New York following her conviction, the judge had attempted to protect the former chief executive officer of the credit union during a federal law enforcement investigation by signing a false and misleading memorandum purporting to justify millions of dollars the CEO had received from the credit union, wiping data from the iPhone and 2 iPads she had received from the credit union, falsely stating that she did not have any materials responsive to a subpoena, and making multiple false statements during an interview with the U.S. Attorney’s Office.
  6. Accepting a stipulation based on the judge’s affirmation that she will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded its investigation of a former non-lawyer judge for failing to report to the State Comptroller moneys that she had received for the town court in connection with her duties as town justice.  In the Matter of Inman, Decision and order (New York State Commission on Judicial Conduct June 16, 2022).  The stipulation noted that the subject of the Commission’s investigation was related to state grand larceny charges filed against the judge in March 2021.
  7. Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a former judge for committing assault in the third degree with sexual motivation and assault in the fourth degree with sexual motivation against subordinate court staff.  In re Gallina, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 9, 2022).  In April 2019, the judge had been arrested on felony charges of rape, assault, and indecent liberties, went on administrative leave, and did not serve as a judge since that date.  The Commission received additional complaints following media accounts of the arrest and charges.  On April 4, 2022, the judge pled guilty to reduced charges. 
  8. Granting a petition for consensual license revocation, the Wisconsin Supreme Court revoked the license of a former judge after he pled guilty to 2 federal felony counts of distributing child pornography while he was serving as a judge in the children’s division of the circuit court.  In the Matter of Blomme, 982 N.W.2d 100 (Wisconsin 2022).

“An unpredictable and unforeseeable situation”

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The D.C. Court of Appeals affirmed an uncontested order of the D.C. Commission on Judicial Disabilities and Tenure involuntarily retiring a judge for extensive and extraordinary delays in cases and a mental and or physical disability that is or is likely to become permanent and that prevents or seriously interferes with the proper performance of his judicial duties. In re Berk, Order (D.C. Court of Appeals November 4, 2021), affirming order. The Commission commended “the public, including litigators and litigants, who brought their concerns regarding Judge Berk’s conduct to the Commission attention” and emphasized that “the Commission cannot serve its mission and protect the public interest without the kind of proactive disclosures, reporting, and cooperation here.” The judge’s misconduct did not directly relate to the COVID-19 pandemic, but the Commission noted that safeguards that might have quickly detected the judge’s problems during “in-person court proceedings were lacking or insufficient” in the “largely virtual environment” necessitated by the public health crisis, “creating “an unpredictable and unforeseeable situation.”

In May 2021, the Commission began receiving complaints about substantial delays by the judge and/or his failure to dispose of matters. In addition to possible violations of the code of judicial conduct, the complaints raised questions about medical, cognitive, confusion, memory, focus, attention, speech, or other issues that could be affecting the judge’s ability to perform his judicial duties. The judge went on administrative leave in June.

Following an investigation, the Commission found extensive and extraordinary delays throughout the judge’s calendar, including cases in which no written rulings were issued for as long as nine months. In some cases, no hearings were set, hearings were continued without resolution for months at a time, trials and hearings were completed but no decision was entered, or no initial status hearings was scheduled. The judge’s clearance rate was 54.4%, approximately 30-50% lower than other judges. The delays involved child custody, childcare, and child support matters, contested divorces, and other family-related matters. In some instances, the Commission noted actual or potential harm to litigants, including particularly vulnerable individuals such as children.

The delays appear to have noticeably increased in the late spring and summer of 2020, when the judge assumed responsibility for the domestic relations calendar, especially after the court resumed hearings in a virtual environment due to the pandemic. The delays significantly worsened in or around late fall 2020 and into 2021.

The Commission found that the judge had reason to believe that he was experiencing increased health issues that were interfering with his duties, including causing issues during court hearings as early as the fall of 2020. However, he did not disclose his medical condition to court leadership until approximately May 2021, request assistance, or notify court leadership of the extent of the delays. The Commission also found that other judges, including judges in leadership, and staff were aware of “red flags” about the judge’s performance but, although they took some action, “those steps were not sufficient to protect the public until after the Commission made inquiries and the judge agreed to take a pause in judicial responsibilities.” The Commission concluded that the challenges of the pandemic “led to a breakdown in the court’s internal processes that periodically assess judicial workloads and calendar activity.”

The Commission described the steps the court had taken to eliminate the judge’s backlog. In addition, to assure the public that these matters would be “addressed differently in the future,” the Commission explained that the court has reinstated internal processes that had been temporarily paused during the pandemic, will enhance oversight and monitoring, and will provide training and guidance on the importance of reporting to and transparency with the Commission if a judge has a medical issue that “may require monitoring, accommodations of disabilities, or action to avoid unnecessary challenges or harm to the public.”

Crimes and schemes: Top stories of 2020

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In 2020, criminal proceedings were followed by discipline proceedings for 9 former judicial officers based on acts committed while they were still on the bench and, in most cases, related to their judicial duties.

Bonding scheme
In West Virginia, 2 former magistrates were sanctioned for their scheme to ensure that bonds for defendants arraigned by one of the magistrates were posted by a bonding company owned by the wife of the other magistrate.  In the Matter of Clem, Order (West Virginia Supreme Court of Appeals January 30, 2020); In the Matter of Skinner, Order (West Virginia Supreme Court of Appeals January 30, 2020).  Based on their agreements and the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly censured them, barred them from serving in public office again, and fined them $1,000 each.

Before their resignations, Alton Skinner and Roger Clem were magistrates in adjoining counties.  The bonding company E-Z Out was operated by Skinner’s spouse and employed Skinner’s son as an authorized bonding agent.  Skinner was also involved in the operation of E-Z Out.

From March 2017 to March 2018, then-magistrate Clem did not present a list of authorized bail bonding companies to defendants at arraignments.  Instead, approximately 200 times, soon after an arraignment, he called E-Z Out, usually to Skinner’s cell phone, and Skinner would ensure that an E-Z Out agent was at the courthouse to post the bonds.

Both magistrates had been indicted for the same scheme by a federal grand jury on charges of wire fraud, mail fraud, and obstruction.  The charges were dismissed after the U.S. Attorney agreed not to prosecute conditioned on their resignations and admissions in the discipline proceedings.

Information disclosure
Agreeing with the recommendation of the Commission on Judicial Discipline based on a stipulation and agreement, the Colorado Supreme Court publicly censured a former judge based on his guilty plea to federal charges and “a pattern of disclosing nonpublic, confidential information to his friends” while serving as a magistrate and later as a district judge.  In the Matter of Kamada (Colorado Supreme Court December 7, 2020).  The Court explained that removal from office would have been the appropriate sanction if the judge had not resigned in August 2019.  The former judge has also been disbarred after conditionally admitting to misconduct as an attorney.

In June 2020, the judge pled guilty to obstructing the proceedings of a federal agency; his sentencing is scheduled for February 2021.  The charges are described in a press release from the U.S. Attorney announcing the judge’s guilty plea.

According to the stipulated facts contained in the plea agreement, beginning in or around October 2018, a federal task force was investigating a drug trafficking organization that was distributing large quantities of cocaine throughout northern Colorado.  One of the members of the organization was a drug trafficker who lived in Greeley, Colorado.  Kamada had known the drug trafficker since high school. . . .

While serving as the “on call” judge one evening in April 2019, Kamada received a phone call from a task force officer who was seeking a search warrant related to the investigation into the drug trafficker.  The task force officer pointed out to Kamada that he was associated with the drug trafficker on social media.  As a result, Kamada recused himself from the case.  But early the next morning, Kamada called his best friend, Geoffrey Chacon, who had also known the drug trafficker since childhood.  Kamada told Chacon that law enforcement was “watching” the drug trafficker’s house, car and phone, and instructed Chacon to “stay away” from the drug trafficker.  Chacon subsequently informed the drug trafficker about the warrant and modified Chacon’s own behavior in order to avoid law enforcement attention.

The information that Chacon provided to the drug trafficker also caused the drug trafficker to change his pattern of conduct and substantially interfered with the task force’s investigation.  After Chacon relayed the information that he received from the judge to the drug trafficker, Chacon destroyed records of his communications with the drug trafficker in order to impair efforts by law enforcement to tie Chacon to the drug trafficker.  In November 2019, Chacon pleaded guilty in federal court to one count of destruction of records with the intent to obstruct a federal investigation.

In its order, the Court describes several other times the judge inappropriately disclosed information to Chacon.

In January 2019, during his first month as a district court judge, in a text to Chacon and another friend, the judge declared that the wife in a divorce proceeding “would be ‘free game tomorrow night’ and that the husband was keeping the family’s Mercedes.”  “In another matter, he sent his friends a photo of a father and child involved in a parenting dispute, commenting ‘check out the dad in my trial today.’”

On one occasion, Chacon asked the judge to get him information about a person being taken into custody by the FBI.  The judge searched Colorado court records and, when he could not find the case, suggested to Chacon that it was likely a federal matter.

In January 2019, Chacon texted the judge that a mutual friend (the drug trafficker referred to in the criminal charges) had been in an altercation with another drug dealer, commenting that the other dealer was “high on coke.”  The judge replied that the friend needed to “grow up” if he wanted “to play big boy stuff.”

Phony and baseless
Based on the decision and recommendation of the Disciplinary Review Board, the New Jersey Supreme Court disbarred a former judge based on his guilty plea to 1 count of falsifying records.  In the Matter of Thompson, Order (New Jersey Supreme Court January 16, 2020).  In his plea allocution in state court, the former judge had admitted that, while serving as a municipal court judge in 9 jurisdictions, he had routinely suspended mandatory motor vehicle fines, which would have been divided between the towns and the county, and substituted “phony, baseless contempt of court charges” to ensure that 100% of the fines would go to the towns.  The judge admitted that “to conceal his wrongdoing, he typically falsified the contempt charges outside of the presence of the defendants and their counsel.”  The judge’s scheme was successful; according to the prosecution, it had diverted $600,000 to the towns from the county in approximately 4,000 cases between 2010 and 2015.  Finally, the judge admitted that he continued his scheme even after discussing his practice with his superiors; after the meeting, he began assessing smaller phony contempt fines, but he continued to steer funds to his preferred jurisdictions until he was suspended from the bench.

Kickback scheme
The Pennsylvania Court of Judicial Discipline removed a former judge from office and barred him from further judicial service based on his guilty plea to federal charges of conspiracy to commit money laundering and extortion under color of official right.  In re Waltman, Opinion and order (Pennsylvania Court of Judicial Discipline May 6, 2020).  In a press release, the U.S. Attorney described the judge’s crimes:

Together with his co-defendants . . . , Bernard Rafferty and Robert Hoopes, Waltman participated in a scheme to extort bribes and kickbacks from Bucks County businessmen.  They also conspired to launder money for individuals they believed were engaged in narcotics trafficking and health care fraud. 

For example, in November 2016, Waltman, Hoopes, and Rafferty accepted a bribe of $1,000, as well as the promise of other fees, in exchange for Waltman, Hoopes, and Rafferty to use their positions as public officials to “fix” a traffic case before Waltman in Bucks County Magisterial District Court.

In addition, from June 2015 to November 2016, Waltman, Hoopes, and Rafferty conspired to launder funds represented to be proceeds from health care fraud, illegal drug trafficking, and bank fraud.  From June 2016 to August 2016, Waltman, Hoopes, and Rafferty laundered $400,000 in cash, represented to be proceeds from health care fraud and illegal drug trafficking, and took money laundering fees totaling $80,000 in cash.

Scheme to defraud
Based on its findings of misconduct, the Pennsylvania Court of Judicial Discipline removed a former judge from office and banned him from serving in office again based on (1) his guilty plea to federal charges of mail fraud and filing a false personal income tax return and (2) his conviction on federal perjury charges.  In re Mulgrew (Pennsylvania Court of Judicial Discipline May 6, 2020).

(1) In August 2012, the judge was indicted on 33 federal counts of mail fraud, wire fraud, and tax-related crimes based on a scheme to misuse state grant funds awarded to non-profit groups.  In September 2013, he pled guilty to 1 count of mail fraud and 1 count of filing a false personal income tax return.  In August 2014, he was sentenced to 30 months of incarceration and 3 years of probation and ordered to pay $199,000 in restitution and $123,000 in back taxes.  The U.S. Attorney’s press release described his crimes:

Between 1996 and 2008, the [Pennsylvania Department of Community and Economic Development] awarded hundreds of thousands of dollars in grants to two community groups with which Mulgrew and [co-defendant Lorraine] Dispaldo were associated.  DCED awarded more than $450,000 in grants to the Friends of Dickinson Square (“FDS”) with the understanding that the grants were to be used to purchase equipment and materials for the maintenance of Dickinson Square Park at 4th & Tasker Streets, Philadelphia, and surrounding neighborhood revitalization.  Mulgrew, the Vice-President of FDS, signed the FDS grant contracts with DCED.  DCED also awarded approximately $397,000 in grants to the Community to Police Communications (“CPC”) with the understanding that the grants were to be used to purchase communications equipment for the police and to purchase materials to secure vacant lots and buildings for the protection of the police.  Dispaldo signed the CPC grant contracts with DCED.

The defendants misrepresented their intentions to DCED, and — contrary to their agreement to spend grant funds solely to purchase equipment and materials for neighborhood revitalization and improved communications with the police — the defendants used thousands of grant dollars to pay Mulgrew’s relatives and associates.  They represented that they were paying for work done on behalf of FDS and CPC.  After distributing grant funds to relatives and associates, the defendants supplied false and misleading information to DCED to conceal the actual amount of grant funds which they paid to the relatives and associates contrary to the express purposes of the grant.

Mulgrew conceded that he received almost $70,000 in grant funds for his own personal uses.  Mulgrew improperly reimbursed himself from FDS funds for thousands of dollars of expenditures which he claimed were incurred by FDS when they were not and for his expenditures for items not authorized under the terms of the FDS grants.  Mulgrew and Dispaldo supplied DCED with false documents to conceal their own use of grant funds and other improper uses of the funds. 

Mulgrew did not report the additional income from the fraud scheme on his tax return and claimed false business deductions which improperly reduced his tax liability.  

(2) In January 2013, Mulgrew was one of 9 judges indicted on wire fraud, mail fraud, and perjury charges related to ticket-fixing on the Philadelphia Traffic Court, described by the U.S. Attorney as “a widespread culture of giving breaks on traffic citations to friends, family, the politically-connected, and business associates.”  In July 2014, a jury convicted the judge of 1 count of perjury before the federal grand jury.  He appealed.  His conviction was affirmed in January 2019.  

Personal conduct
A former magistrate pled guilty to misdemeanor possession of methamphetamine and resisting arrest and was permanently barred from judicial service by the Indiana Supreme Court.  In the Matter of Greenaway (Indiana Supreme Court December 4, 2020).  The Court also suspended him from the practice of law for 1 year with the first 90 days as an active suspension and the balance stayed subject to at least 2 years of probation.  According to the Fort Wayne Journal Gazette, in March 2019, the judge was arrested as part of an Indiana State Police sting operation after he bought 2.5 grams of meth from an undercover informant in a parking lot.  During the arrest, he “put the bag of meth in his mouth and bit an officer’s hand as the officer tried to pry his mouth open, according to court documents.”  He was charged with possession of methamphetamine, resisting arrest, and obstruction of justice, all felonies.  He pled guilty in September 2020.

Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge who had pled guilty to state charges of attempted burglary in the second degree, a felony.  In the Matter of Cicale, Decision and order (New York State Commission on Judicial Conduct April 2, 2020).  According to Newsday, Cicale admitted entering the home of a 23-year-old former intern at the town attorney’s office where he used to work and taking articles of her clothing.  His attorney told the newspaper that the former judge “has dealt with his mental illness issues in a proactive manner and is a better person for doing so.”

Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York Commission concluded a proceeding against a former judge who had pled guilty to federal tax evasion charges.  In the Matter of Seedorf, Decision and order (New York State Commission on Judicial Conduct April 2, 2020).  According to the Journal News, Seedorf did not file income tax returns from 2005 to 2015 and owed more than $487,000, including interest and penalties.

Marijuana and judicial ethics

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According to governing.com, 31 states and D.C. have legalized marijuana to some degree, with Alaska, California, Colorado, D.C., Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington having the most expansive laws for recreational use.  Although that certainly changes the criminal caseloads of judges in those states, it makes no difference in their personal conduct, as a recent judicial ethics opinion from Alaska advises.

The advisory opinion concludes that:  “As long as federal law criminalizes marijuana use, Alaska judges who choose to use marijuana violate the Alaska Code of Judicial Conduct.”  Alaska Advisory Opinion 2018-1.  The opinion relies on the provision in Canon 2A of the Alaska code that states that, “[i]n all activities, a judge shall exhibit respect for the rule of law, comply with the law, and avoid impropriety and the appearance of impropriety, and act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The opinion notes that the “requirement that a judge shall comply with the law includes federal law as well as state law and local laws.”

The opinion states that Alaska law on marijuana use is unique because it is based on a 1975 decision by the Alaska Supreme Court that the right to privacy in the state constitution protects the personal use of marijuana in the home.  See Ravin v. State, 537 P.2d 494 (Alaska 1975).  However, the opinion emphasizes that judges’ personal rights are limited by the code, for example, with respect to “speech, financial endeavors, and political activity to preserve their impartiality and ability to hear cases.”

Further, the opinion explains:

Marijuana use violates federal law and its use by a judge would reflect a lack of respect for the law by showing a selective attitude towards the law suggesting that some are appropriate to follow but others are not.  Public use of marijuana by a judge would further create an appearance of impropriety.

The opinion also states that judges are restricted “even in their personal use in the home” as a “reasonable and necessary” measure to preserve public confidence in the judiciary, noting that, “[o]ne never knows when an iPhone is out and ready to take a picture of a momentary indiscretion.”

Colorado is the only other state that has a judicial ethics advisory opinion on the subject, issued in 2014 in response to a judge who asked “whether a judge who engages in the personal recreational or medical use of marijuana (as opposed to commercial use) in private and in a manner compliant with the Colorado Constitution and all related state and local laws and regulations” violates the code.  Colorado Advisory Opinion 2014-1.

In Rule 1.1(B), the Colorado code states that “[c]onduct by a judge that violates a criminal law may . . . constitute a violation of the requirement that a judge must comply with the law” — “unless the violation is minor,” an exception unique to Colorado.  The advisory committee notes that the Committee to Consider Revisions to the Colorado Code of Judicial Conduct had been concerned that the requirement that a judge comply with the law was “vague and confusing” and “could subject judges to discipline for what typically are regarded as minor infractions, such as receiving a parking ticket or permitting the judge’s dog to run at large.”  Thus, the “minor” violation language was added in 2010.

However, the advisory committee stated that the exemption only applied to “violations of relatively insignificant traffic offenses and local ordinances, not state or federal drug laws.”  The committee recognized that, under federal law, simple possession of marijuana is a misdemeanor or even an infraction punishable only by a civil penalty under some circumstances.  Nevertheless, it concluded that, “while not necessarily a ‘serious’ offense, it is not a ‘minor’ offense within the meaning of Rule 1.1(B).  It is significantly more serious than the parking ticket and dog at large violation . . . .”

The committee emphasized that it is only authorized to provide an opinion on whether “intended, future conduct” complies with the code of judicial conduct, not on whether such conduct is censurable and, therefore, it was not opining on whether a judge who uses marijuana consistent with Colorado law should be disciplined.

Judicial ethics and marijuana

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29 or so states have decriminalized and/or legalized medical and/or recreational marijuana use since 1973.  Whatever effect that may have had on judicial caseloads, that change should not have affected judges’ personal habits.  As the Colorado advisory committee explained, even in a state that has decriminalized the use and possession of medicinal and small amounts of recreational marijuana, a judge who uses marijuana in private still violates the code of judicial conduct because federal law still makes the possession and use of marijuana for any purpose a crime.  Colorado Advisory Opinion 2014-1.

Further, the California judicial ethics committee recently advised that, because of federal laws, a judicial officer should not have an interest in an enterprise involved in the sale or manufacture of medical or recreational marijuana.  California Advisory Opinion 2017-10.  The committee explained that restriction precluded a personal financial investment or private equity fund investment in such an enterprise, ownership of shares in a corporation that invests in marijuana, or an interest in property that is leased for marijuana growth or distribution and included interests owned by a spouse or registered domestic partner.  The Washington advisory committee stated that a judge may not permit a court employee to own a medical marijuana business, even if the business fully complied with state laws and regulations, because federal law prohibits the possession, sale, and distribution of medical marijuana.  Washington Advisory Opinion 2015-2 

Judges have been disciplined for using marijuana although the cases arose when use was still a crime in the state.

The Michigan Supreme Court censured a judge and suspended him for 6 months without pay for using marijuana.  In re Gilbert, 668 N.W.2d 892 (Michigan 2003).  During a Rolling Stones concert, someone had passed a marijuana cigarette down the aisle in which the judge was sitting.  The judge took it, puffed it, and then passed it along.  When the marijuana cigarette was returned back down the aisle, the judge puffed it a second time before passing it along again.  The judge’s actions were well-publicized in the press in western Michigan, received significant attention in the media around metropolitan Detroit, were referenced by national news services, and were the subject of a joke by Jay Leno on The Tonight Show.  The judge took a voluntary leave of absence and reported his conduct to the Judicial Tenure Commission.

 The judge acknowledged that he used marijuana approximately twice a year.  He obtained a substance abuse evaluation by the State Bar of Michigan Lawyers and Judges Assistance Program, completed an in-patient substance abuse treatment program, and entered into a judicial monitoring participation agreement with the assistance program.

Pursuant to the judge’s consent, the Commission had recommended a 90-day suspension without pay.  However, the Court concluded that recommendation was insufficient for a judge who had admitted that he was using marijuana while trying, convicting, and sentencing defendants charged with marijuana offenses.  1 justice dissented, arguing that, in light of the judge’s “hypocrisy,” only removal “would begin to repair the damage to the public’s trust and confidence in the judiciary caused by his criminal misconduct and sufficiently sanction him for it.”

Adopting the findings and recommended sanction of a panel of the Board of Commissioners on Grievance and Discipline based on the judge’s consent, the Ohio Supreme Court publicly reprimanded a judge for using marijuana.  Disciplinary Counsel v. Bowling, 937 N.E.2d 95 (Ohio 2010).  The judge had occasionally used marijuana on weekends, and, in March 2008, began using it daily as self-medication to alleviate the physical and psychological effects of a stroke.  In December 2008, he was cited for possession of marijuana and drug paraphernalia.  By agreement, the drug paraphernalia charge was dismissed, and the marijuana charge was resolved by forfeiture of a $168 bond.  The judge did not plead guilty to and was not convicted of any crime.

After being charged, the judge had not used alcohol or marijuana or any other illegal substance.  He had entered into a 5-year contract with the Ohio Lawyers Assistance Program and completed a detox program, an in-patient program at an addiction-medicine facility, and a 90-day intensive out-patient program.

See also Inquiry Concerning Peters, 715 S.E.2d 56 (Georgia 2011) (removal of judge for obtaining and consuming marijuana at least once a week for several months, in addition to unrelated misconduct); In the Matter of Pepe, 607 A.2d 988 (New Jersey 1992) (removal of a former judge for using marijuana and supplying marijuana to another individual on one occasion, in addition to unrelated misconduct); In re Sherrill, 403 S.E.2d 255 (North Carolina 1991) (removal of a former judge who had been arrested for possessing marijuana, cocaine, and drug paraphernalia and had pled guilty to 3 felony charges); In re Toczydlowski, 853 A.2d 24 (Pennsylvania Court of Judicial Discipline 2004) (public reprimand of a judge for using marijuana); In re Coughenour, Stipulation and Order (Washington Commission on Judicial Conduct September 6, 1991) (public admonishment of a judge who had been charged with driving while under the influence of intoxicating liquor and/or drugs and unlawful possession of marijuana under 40 grams; an order of deferred prosecution had been entered in the traffic matter); In the Matter of Binkoski, 515 S.E.2d 828 (West Virginia 1999) (public censure of a former judge who had pled guilty to driving under the influence of alcohol and possession of less than 15 grams of marijuana and who had attempted to encourage a witness to be less than candid relative to the 2 charges).

Criminal consequences

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8 of the 12 cases initiated by the Pennsylvania Judicial Conduct Board so far in 2015 have been either formal complaints based on the judge’s conviction of a crime or petitions for the interim suspension of a judge pending the outcome of criminal charges.  For example, in June, the Board filed a complaint based on a judge’s guilty plea to state charges related to his dismissal of a criminal complaint against the nephew of the assistant district attorney assigned to his courtroom.  Most recently, the Board filed a petition for the interim suspension with or without pay of a judge charged by state prosecutors with bribery, official oppression, indecent assault, and harassment for non-consensual contact with the victim in a criminal matter over which he had presided and soliciting a female defendant to model lingerie for him in return for his vacating the costs and fines he had imposed on her.

In some states, litigating whether a judge should be suspended or removed based on criminal charges or convictions is unnecessary because suspension with pay is required with the filing of a serious criminal charge, suspension without pay is required following conviction, and removal is required when the conviction becomes final.

For example, the Arizona constitution provides that “a judge is disqualified from acting as a judge, without loss of salary, while there is pending an indictment or an information charging him in the United States with a crime punishable as a felony under Arizona or federal law . . . .”  A Connecticut statute provides:

A judge, compensation commissioner, or family support magistrate is disqualified from acting as a judge, compensation commissioner, or a family support magistrate, as the case may be, while there is pending (1) a charge against him for a crime punishable as a felony under the laws of this state or federal law, or a charge against him in another jurisdiction which would be punishable as a felony under Connecticut or federal law, or (2) a charge against him for a crime under the law of any jurisdiction which involves moral turpitude under Connecticut law . . . .

In Indiana, by rule, “a judicial officer shall be suspended with pay by the Supreme Court without the necessity of action by the Commission [on Judicial Qualifications] upon the filing of an indictment or information charging the judicial officer in any court in the United States with a crime punishable as a felony under the laws of Indiana or the United States.”

Further, a judge’s conviction triggers mandatory suspension without pay in some states, followed by removal if the conviction becomes final.  For example, the Georgia constitution states:

Upon initial conviction of any judge for any felony in a trial court of this state or the United States . . . , such judge shall be immediately and without further action suspended from office.  While a judge is suspended from office under this subparagraph, he shall not be entitled to receive the compensation from his office.  If the conviction is later overturned as a result of any direct appeal or application for a writ of certiorari, the judge shall be immediately reinstated to the office from which he was suspended and shall be entitled to receive any compensation withheld under the provisions of this subparagraph.  For the duration of any suspension under this subparagraph, the Governor shall appoint a replacement judge.  Upon a final conviction with no appeal or review pending, the office shall be declared vacant and a successor to that office shall be chosen as provided in this Constitution or the laws enacted in pursuance thereof.

In Texas, pursuant to the government code, “a judge is automatically removed from the judge’s office if the judge is convicted of or is granted deferred adjudication for:  (1) a felony; or (2) a misdemeanor involving official misconduct.”

In some states, an affirmative act by the supreme court or conduct commission is necessary to suspend or remove a judge convicted of a crime, but the action is mandatory.  For example, the Colorado constitution provides:

Whenever a justice or judge of any court of this state has been convicted in any court of this state or of the United States or of any state, of a felony or other offense involving moral turpitude, the supreme court shall, of its own motion or upon petition filed by any person, and upon finding that such a conviction was had, enter its order suspending said justice or judge from office until such time as said judgment of conviction becomes final, and the payment of salary of said justice or judge shall also be suspended from the date of such order.  If said judgment of conviction becomes final, the supreme court shall enter its order removing said justice or judge from office and declaring his office vacant and his right to salary shall cease from the date of the order of suspension.

The California constitution states:

The Commission on Judicial Performance shall suspend a judge from office without salary when in the United States the judge pleads guilty or no contest or is found guilty of a crime punishable as a felony under California or federal law or of any other crime that involves moral turpitude under that law.  If the conviction is reversed, suspension terminates, and the judge shall be paid the salary for the judicial office held by the judge for the period of suspension.  If the judge is suspended and the conviction becomes final, the Commission on Judicial Performance shall remove the judge from office.

Complying with the law

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The recent legalization of marijuana in several states has apparently not yet prompted many inquiries to advisory committees, but two opinions have been issued on the possible judicial ethics repercussions of that change.

Most recently, the Washington State Ethics Advisory Committee stated that a judge may not permit a court employee to own a medical marijuana business even if the business fully complies with Washington state laws and regulations because federal law prohibits the possession, sale, and distribution of medical marijuana.  Washington Advisory Opinion 2015-2.

The committee concluded that, “even if owning a medical marijuana business may comply with the state statutory scheme, possessing, growing, and distributing marijuana remains illegal under federal law for both recreational and medical use. . . .  Although the Code does not generally prohibit a court employee from engaging in outside businesses or employment, operating a business in knowing violation of law undermines the public’s confidence in the integrity of the judiciary . . . , and is contrary to acting with fidelity and in a diligent manner consistent with the judge’s obligations under the Code.”

Last year, after Colorado decriminalized the use and possession of medicinal and small amounts of recreational marijuana, a judge asked the Judicial Ethics Advisory Board “whether a judge who engages in the personal recreational or medical use of marijuana (as opposed to commercial use) in private and in a manner compliant with the Colorado Constitution and all related state and local laws and regulations” violates the code of judicial conduct.  The board responded:  “Because the use of marijuana is a federal crime, a judge’s use of marijuana for any purpose is not a ‘minor’ violation of criminal law and therefore violates Rule 1.1 of the Code of Judicial Conduct.”  Colorado Advisory Opinion 14-1.

The board considered whether a judge’s personal marijuana use is a “minor” violation of the law because the Colorado code states in Rule 1.1(B) that “conduct by a judge that violates a criminal law may, unless the violation is minor, constitute a violation of the requirement that a judge must comply with the law.”  (This provision is not in the model code or codes in other states, although the model code notes in the preamble that “it is not contemplated that every transgression will result in disciplinary action.”)  Based on the minutes of the Committee to Consider Revisions to the Colorado Code of Judicial Conduct, the advisory board concluded that Rule 1.1(B) exempted “as ‘minor’ only violations of relatively insignificant traffic offenses and local ordinances,” such as receiving a parking ticket or permitting a dog to run at large, “not state or federal drug laws.”  The board rejected the judge’s argument that the determination whether an offense is “minor” should be based on a “moral turpitude” test.

The board concluded:

We recognize that simple possession of marijuana is a misdemeanor under federal law and that, in some circumstances, marijuana use is an infraction punishable only by a civil penalty.  . . .   It is nevertheless a violation of federal criminal law and, in our view, while not necessarily a “serious” offense, it is not a “minor” offense within the meaning of Rule 1.1(B).  It is significantly more serious than the parking ticket and dog at large violation referred to in the Committee minutes, and is no less serious than the unlawful conduct of the judges involved in Sawyer and Vandelinde.

See In re Sawyer, 594 P.2d 805 (Oregon 1979) (temporary suspension of a judge as long as he was employed part-time as a teacher at a state-funded college in violation of a state constitutional prohibition); Matter of Vandelinde, 366 S.E.2d 631 (West Virginia 1988) (reprimand of a judge who had made excessive contributions to a political organization that supported his candidacy, a misdemeanor under the applicable statute, even though he had not been criminally charged).

The Colorado board did note that “even parking tickets can give rise to judicial discipline,” citing In re Harrington, 877 A.2d 570 (Pennsylvania Court of Judicial Discipline 2005), in which a former magistrate who repeatedly parked at expired meters and displayed parking tickets issued to others was banned from judicial office for 5 years.  See also In the Matter of Williams, 701 A.2d 825 (Delaware 1997) (censure and 3-month suspension without pay for a part-time judge who had 29 unpaid parking tickets, in addition to other misconduct); In the Matter of LaPorta, Findings of Fact, Conclusions of Law, and Imposition of Discipline (Nevada Commission on Judicial Discipline July 13, 2004) (removal of pro tempore judge who had accrued over $8,000 in parking tickets, in addition to other misconduct); In re Ballentine, Opinion and order (Pennsylvania Court of Judicial Discipline August 4, 2015) (removal for pleading guilty to 3 misdemeanors for dismissing several of her own parking tickets, not filing state and federal tax returns for 5 years, failing to remit approximately $130 in sales taxes owed by a shoe store she owed, and opening the shoe store without a license).

Dog violations have also led to judicial discipline.  See In the Matter of Post, Determination (New York State Commission on Judicial Conduct October 12, 2010) (admonition for failing to appear for sentencing on dog-running-at-large violation and failing for 7 months to pay the fine imposed, in addition to other misconduct); In the Matter of Van Woeart, Determination (New York State Commission on Judicial Conduct August 20, 2012) (censure for failing to expeditiously transfer tickets issued to herself and her sons for violations of dog-control ordinance, sending messages to the judges of the transferee court, and failing to maintain proper records of the tickets).

The Colorado board noted that other states have disciplined judges for using and possessing marijuana, although it acknowledged marijuana use had been illegal under those states’ laws at the time.  It cited Matter of Marquardt, 778 P.2d 241 (Arizona 1989) (1-year suspension without pay for judge convicted of possession of a small quantity of marijuana); In re Peters, 715 S.E.2d 56 (Georgia 2011) (removal for obtaining and consuming marijuana at least once a week from March to May of 2010, in addition to other misconduct); In re Whitaker, 463 So. 2d 1291 (Louisiana 1985) (1-year suspension without pay for smoking marijuana on 2 occasions, in addition to other misconduct); In re Gilbert, 668 N.W.2d 892 (Michigan 2003) (censure and 6-month suspension for using marijuana at a Rolling Stones concert); In re Sherrill, 403 S.E.2d 255 (North Carolina 1991) (removal of judge who had been arrested for possessing marijuana, cocaine, and drug paraphernalia and had pled guilty to 3 felony charges); In re Toczydlowski, 853 A.2d 20 (Pennsylvania Court of Judicial Discipline 2004) (public reprimand for using marijuana); In re Binkoski, 515 S.E.2d 828 (West Virginia 1999) (public censure of former judge who had pled guilty to driving under the influence of alcohol and possession of less than 15 grams of marijuana and who had attempted to encourage a witness to be less than candid).  There are additional cases as well.  See also In the Matter of Pepe, 607 A.2d 988 (New Jersey 1992) (removal for using marijuana, in addition to other misconduct); Disciplinary Counsel v. Bowling, 937 N.E.2d 95 (Ohio 2010) (publicly reprimand for using marijuana); In re Coughenour, Stipulation and Order (Washington State Commission on Judicial Conduct September 6, 1991) (public admonishment for judge who had been charged with driving while under the influence of intoxicating liquor and/or drugs and unlawful possession of marijuana under 40 grams).

Noting it was only authorized to provide “opinions ‘concerning the compliance of intended, future conduct with the Colorado Code of Judicial Conduct,’ not regarding whether such conduct is censurable,” the Colorado board emphasized it was not addressing whether a judge who uses marijuana consistent with Colorado law should be disciplined.  Finally, the board stated, “having concluded that a judge’s use of marijuana violates Rule 1.1, we need not address whether it also violates the requirement in Rule 1.2 that judges ‘act at all times in a manner that promotes public confidence in the . . . integrity . . . of the judiciary’ and ‘avoid impropriety and the appearance of impropriety.’”

What a difference a year makes

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In January 2014, Michael Maggio was a circuit court judge running for the Arkansas Court of Appeals.  In March, he was exposed as “geauxjudge,” the writer of posts on Tiger Droppings, an LSU fan-site; his posts included comments regarding the closed adoption of a famous actress; inappropriate statements about official duties, pending cases, and independent investigations; and inappropriate gender, race, and sexually related statements.  He dropped out of the race and was removed from office by the Arkansas Supreme Court on September 11, based on the posts and other misconduct.  Today, January 9, 2015, he pled guilty to taking bribes — in the form of campaign contributions — to reduce a $5.2 million jury verdict in favor of a nursing home.

 

Top judicial ethics stories of 2014: Part 4

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Since December 2, this blog has been summarizing the top judicial ethics stories of 2014.  Previous posts are “Commit the oldest sins the newest kind of ways,” sex in chambers, and inappropriate relationships.

The other side of the bench

Every year, there are judges or former judges convicted of and/or disciplined for criminal conduct, both the types of crimes anyone can commit and the types of crimes unique to judges.  See, e.g., Inquiry Concerning Sheehan (Florida 2014) (reprimand of a judge for driving under the influence); Ohio State Bar Association v. McCafferty (Ohio 2014) (indefinite suspension of a former judge’s law license based on her conviction on charges of lying to the FBI during an investigation of corruption among public officials and public employees); Office of Disciplinary Counsel v. Ballentine (Pennsylvania 2014) (one-year suspension of a judge’s law license following her guilty plea to three misdemeanor charges of tampering with public records for dismissing her own parking tickets); In re Carney (Pennsylvania 2014) ) (reprimand of a judge for a road rage incident; the judge had pled guilty to disorderly conduct); In the Matter of Ferguson, 762 S.E.2d 385 (South Carolina 2014) (reprimand of a former judge convicted on charges that, in return for sexual contact, he gave two women money and/or other benefits for the handling and disposition of matters involving them).

But 2014 was the first year a former judge was convicted for murder and sentenced to death.  The murder was committed while he was still a judge, albeit suspended following his indictment on other charges.

May – July 2011:  Kaufman County, Texas Justice of the Peace Eric Williams is arrested and indicted on one count of burglary and one count of theft by a public servant for taking computer monitors from a county facility.  The case is prosecuted by Chief Assistant District Attorney Mark Hasse.  The Texas State Commission on Judicial Conduct suspends Williams without pay.

March 2012:  A jury convicts Williams.  He is sentenced to probation and the loss of his office and law license.  He appeals, and the sentence is stayed.

January 31, 2013:  Hasse is shot and killed while walking from his car to the courthouse.

March 30, 2013:  Kaufman County Criminal District Attorney Michael McClelland and his wife Cynthia are shot and killed in their home.

April – June 2013:  Williams and his wife Kim are charged then indicted for capital murder in the deaths of Hasse and the McLellands.  Kim Williams tells investigators that her husband shot the victims while she sat in the get-away car.  The apparent motive is revenge for the theft and burglary prosecution of Williams by Hasse and McLelland.

July – October, 2013:  An appellate court upholds Williams’ theft and burglary convictions, and the sentencing court permanently removes him from office.

December 2014:  Williams is tried for the murder of Cynthia McLelland, convicted by a jury, and sentenced to death.

* * *
Another major crime story involving judges continued in 2014 when a federal jury acquitted five former judges and one magisterial district judge of charges related to ticket-fixing on the Philadelphia Traffic Court.

November 2012:  A report commissioned by the Chief Justice of the Pennsylvania Supreme (and leaked to the Philadelphia Inquirer) finds that ticket-fixing on the Philadelphia Traffic Court is routine, with “two tracks of justice — one for the connected and another for the unwitting general public” (http://media.philly.com/documents/trafficcourtstudy.pdf).  The report notes federal authorities had been investigating since at least 2011.

January 31, 2013:  Six judges, a traffic court administrator, and two businessmen are indicted on federal wire fraud and mail fraud charges for ticket fixing and favoritism.  Three other judges are charged separately by information and plead guilty in early 2013.

June 2013:  Legislation is passed and signed transferring the duties of the traffic court to a new division of the Philadelphia Municipal Court, although a constitutional amendment is still required to eliminate the traffic court because it is created by the state constitution.

May 27-July 23, 2014:  During their jury trial, the defendants do not deny fixing tickets but claim the practice was not a crime because no money changed hands.  The jury apparently agrees and on July 23 acquits all defendants of the wire fraud and mail fraud charges, although it convicts most of them of perjury before the grand jury or lying to federal investigators.

December 2014:  The first defendant to be sentenced, former judge Robert Mulgrew, is sentenced to 18 years in prison.  During sentencing, U.S. District Judge Lawrence Stengel states, “This case is about more than one lie before the grand jury,” and called it the “capstone on a . . . career marked by regular and willing participation in a pervasive system of corruption.”  The second to be sentenced, former judge Thomasine Tynes, is sentenced to 24 months in prison and fined $5,000.

December 22, 2014:  The Judicial Conduct Board files a complaint against Judge Michael Sullivan, one of the defendants in the federal criminal case, alleging that, based on ex parte communications, he gave special consideration in traffic court cases to defendants who were politically connected, family members and friends of traffic court judges, and family members and friends of court employees.