Category Archives: Diligence

Timely justice

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Canon 3B(8) in the 1990 American Bar Association Model Code of Judicial Conduct required a judge to “dispose of all judicial matters promptly, efficiently and fairly.”  Rule 2.5(A) of the 2007 model code requires judges “to perform judicial and administrative duties competently and diligently,” omitting “promptly” from the text but referring in comments to “prompt” and “expeditious” disposition of court business.

Many states have statutes, court rules, or constitutional provisions that set deadlines for judges’ decisions or motions and that require judges to submit reports on cases pending beyond those limits.

In 2023, 7 judges were publicly sanctioned for not issuing prompt rulings in 1 or more cases.  Some of those sanctions also included remedial actions for the judge to take.

For example, accepting an offer of discipline by consent and the recommendation of a Board of Examining Officer, the Delaware Court on the Judiciary publicly censured a judge for having cases under advisement for more than 90 days throughout 2020, 2021, and 2022.  In re Vari, Order (Delaware Court on the Judiciary June 7, 2023).  The Court also ordered the judge:

  • To maintain direct control over her docket and be diligent in promptly disposing of all matters assigned to her;
  • To comply with her duty to provide accurate and complete monthly reports on her disposition of matters;
  • To continue to address on a monthly basis the underlying reasons for her tardy decisions; and
  • For 2 years, to cooperate with the chief judge to review and monitor her disposition of matters, the timeliness of decisions, and her monthly reports.

The Washington State Constitution requires that a judge issue a decision within 90 days from when a matter is finally submitted.  Based on stipulations and agreements, in 2023, the Washington State Commission on Judicial Conduct publicly admonished 2 judges for decisional delays.

One of the admonishments was for delay in 2 cases, a custody modification action and a request for attorneys fees and costs.  In re Matter of Roberts, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 23, 2023).

In a petition to change a parenting plan or custody order, the judge did not issue her final order and findings until approximately 6½ months after the final day of trial.  Interested parties had written to the judge several times asking about the status of her decision; each time, they had been assured a final decision would be forthcoming.

In the discipline proceeding, the judge said that she was ashamed of her lack of diligence in the custody matter and the impact on the parties.  She called the case one of the most difficult she has dealt with in her 20 years as a judge, describing in detail its long and complicated history, in which both parents struggled with mental health and substance abuse issues, and the challenges the court faced in developing an evidentiary basis to make a well-informed, reasonable custody decision.  The judge revealed that during the relevant time, she was dealing with her own very difficult situation, addressing her adult child’s dire, potentially life-threatening circumstances.  The judge said that she offered this information not as an excuse but so the Commission would have a better understanding of her situation.

The judge did not issue her decision in a post-trial attorneys fees and costs matter until 97 days after it was submitted for decision.  In response to the statement of allegations, the judge said that she was not sure why her decision on the motion for attorney fees and costs was untimely.

The Commission noted that historically it had vigilantly enforced the code provision requiring diligent performance of judicial duties and that “this type of misconduct is serious because rendering decisions is a core basic function for any judicial officer, and decisional delay potentially deprives litigants of timely justice which often cannot be remedied through the appellate process.”  The Commission stated that the judge’s “decision delay in the custody matter was particularly aggravated because the lack of resolution caused added uncertainty and disruption in the context of an already very tenuous parent-child relationship.”  The Commission also noted that the delay was not isolated; in 2017, based on the judge’s agreement, the Commission had publicly censured the same judge for 8 instances of unjustified decisional delay in a variety of cases over 3 years.

The Commission also noted compelling mitigating factors, including the judge’s cooperation and extreme candor, sincere understanding of the impact of the delays on the litigants, her profound regret, and her recognition that “her own life circumstances as a parent of a person in crisis complicated and compromised the prompt resolution of the parties’ case.”  The Commission explained:  “Judges are asked and expected to rise above their own personal challenges to meet the heavy responsibilities and expectations of their work, and the Commission is not insensitive to the challenges Respondent has faced and the excellent work she typically produces.”  The Commission noted that the judge has resolved all outstanding matters under advisement and has implemented internal procedures to help ensure she is diligently getting her work done.  The Commission found that her conduct is unlikely to reoccur because the judge is currently assigned to therapeutic court, which typically does not require matters to be taken under advisement; she has resigned her position as the court’s assistant presiding judge; and she has stated that she intends to retire from the bench in January 2024.  Finally, the Commission noted that the judge’s colleagues describe her as an extremely dedicated and thoughtful jurist, whose “ contributions as Assistant President Judge were invaluable to the court, particularly under the heightened challenges of the Covid pandemic.”

The Washington Commission issued the second admonishment in 2023 to a judge who delayed for approximately 1-year before issuing a decision after hearing oral argument and taking under advisement the review of a county hearing examiner’s decision regarding fee waivers relating to 5 commercial developments projects in a Land Use Petition Act case.  In re Fairgrieve, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 23, 2023).  There had been no intervening motions, hearings, or judicial actions.

The judge accepted responsibility and expressed regret for the delayed decision.  He noted that the appeal was relatively complex and identified additional factors that contributed to the delay, including a backlog of cases and the burdens of maintaining court operations during the pandemic.

The Commission noted that “although this disciplinary matter involves a single instance of delay, the delay was excessive, particularly since the statutory objective of land use petition cases is to provide expedited judicial review of local land use decisions.”  In mitigation, the Commission noted that the judge has no history of discipline and fully cooperated with the investigation and proceeding.  It also noted that it was “mindful of the difficulty and stresses caused by the pandemic and other court disruptions” and that the judge “has a reputation as a very careful and thoughtful jurist.”

See also Goodman, Order (Arizona Commission on Judicial Conduct May 31, 2023) (public reprimand of pro tem justice of the peace for failing to issue a ruling in a civil case within 60 days or anytime afterward, failing to respond to court staff regarding the overdue ruling, and failing to respond to Commission staff); In the Matter of Cutter, Stipulation and order of consent (Nevada Commission on Judicial Discipline July 18, 2023) (public reprimand of judge for failing to issue a decision in a divorce action involving child custody for nearly 13 months); In the Matter of Saitta, Stipulation and order of consent (Nevada Commission on Judicial Discipline December 20, 2023) (public reprimand of former senior judge for failing to timely resolve 6 matters in a breach of contract case for approximately 19 months despite 24 requests from the parties’ counsel); Perkins (Tennessee Board of Judicial Conduct November 8, 2023) (public reprimand for failing to timely rule on 6 motions in a case for almost 11 months).

“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.

No “carte blanche” for judicial speech

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In a recent judicial discipline case, the Michigan Supreme Court rejected a judge’s argument that part of her conduct was protected by the First Amendment, as 2 other courts did for other judges’ speech earlier this year.  See Judges’ weekends, living rooms, and free speech. 

As found by the Judicial Tenure Commission in its report and recommendation, under a performance-improvement plan imposed by the Chief Judge of her district, the judge was required to report when she got to work.  The Court found that, “purportedly” to comply with that requirement, the judge sent “ominous Bible verses” to the Chief Judge and court administrators when she arrived at the courthouse.  For example, the judge sent emails to her supervisors and colleagues that stated:

  • “Sovereign Lord, my strong deliverer, you shield my head in the day of battle.  Do not grant the wicked their desires, Lord; do not let their plans succeed.  Those who surround me proudly rear their heads; may the mischief of their lips engulf them.  May burning coals fall on them; may they be thrown into fire, into miry pits, never to rise.  Psalm 140:7-10.”
  • “But the cowardly, the unbelieving, the vile, the murderers, the sexually immoral, those who practice magic arts, the idolaters and all liars – they will be consigned to the fiery lake of burning sulfur.  This is the second death.  Revelation 21:8.”

When a court administrator asked her to stop sending these messages, the judge replied in an email:  “You brood of vipers, how can you who are evil say anything good?”

The judge argued that she was exercising her rights to free speech and religion when she sent the Bible verses.  Rejecting that argument, the Court explained:

The Bible verses quoted by respondent were, in the context of respondent’s e-mails, clearly intended to be insulting, discourteous, disrespectful, and menacing toward the recipients.  The e-mails also reflect a failure to demonstrate the professionalism demanded of judges.

The right of free speech generally entitles a person to, among other things, protection from government persecution based on speech. . . .  The goal of disciplinary proceedings is not punitive; rather, it is to “restore and maintain the dignity and impartiality of the judiciary and to protect the public.” . . .  Freedom of speech is not the freedom from all consequences for one’s actions.  Moreover, a “judge must . . . accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” . . .  The First Amendment does not provide government employees carte blanche to engage in conduct that amounts to “insubordination” that “interfere[s] with working relationships.” . . .  This type of conduct is certainly beyond the pale for a member of our judiciary.  Respondent’s refusal to simply convey that she had arrived at work as required by the Chief Judge’s order amounted to insubordination and clearly interfered with multiple working relationships.

The Court concluded that sending the emails was part of the judge’s obstruction of court administration that also included her failure to comply with the performance plan and her intentional refusal to follow the Chief Judge’s orders.

In addition, the Court found that the judge committed misconduct by:

  • Abusing her contempt powers in 2 summary eviction proceedings by failing to hold proper hearings, forcing parties to pay illegal sanctions in civil actions, and unlawfully jailing a process server for civil contempt;
  • Summarily dismissing or adjourning cases because a party had used a process server that she believed was dishonest without making factual findings that process had not been served, and, when the Chief Judge admonished her to stop dismissing cases, “pretextually dismiss[ing] cases, misapplying the law to get to the result she wanted—not the result that was just or required;”
  • Intentionally disconnecting the videorecording equipment in her courtroom, purposefully failing to maintain a record of proceedings in her courtroom for weeks, using her personal cell phone to record proceedings, and lying to the Commission about disconnecting the equipment; and
  • Parking in a handicap loading zone at a gym, blocking in another car, placing an “official business” placard in her vehicle window that said, “this vehicle shall not be cited or impounded under penalty of law,” and flashing her judge’s badge when a police officer arrived.

In aggravation, the Court found that the judge committed much of the misconduct while she was “on the bench,” noting that “whether something occurs ‘on the bench’ is not literal, but rather depends on whether the conduct occurs in that person’s capacity as a judge. . . .”  The Court concluded:  “Respondent engaged in repeated, deliberate misconduct that besmirched the judiciary’s reputation and prejudiced the administration of justice.  The nature and pervasiveness of respondent’s misconduct requires the highest condemnation and harshest sanction.”

Because the judge’s term ended at the end of 2023, the Court rejected as moot the Commission’s recommendation that she be removed from office.  (As the Court noted, the judge had been taken off the 2022 ballot because she incorrectly stated on her affidavit of identity that she had paid all outstanding late filing fees under the state campaign finance act.)  Instead, the Court imposed a “conditional” 6-year suspension without pay that will only take effect if the now-former judge is elected or appointed to the bench within 6 years; if that happens, she will be suspended without pay until 6 years after the date of the discipline decision.  In re Davis (Michigan Supreme Court June 23, 2023).

Repeated failure to address and decide issues

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For the second time in 2019, a judge, or in the second case a former judge, has been disciplined for mishandling an estate case.  The first sanction was imposed on a judge who appointed an unqualified friend as a trustee and personal representative in a case without disclosing their friendship and financial relationship and failed to respond promptly to evidence of his friend’s mismanagement and embezzlement.  In the Matter of Freese, 123 N.E.3d 683 (Indiana 2019).  That case was discussed in the post, “Willful ignorance, unreasonable credulity, and misappropriation” published on July 2.

More recently, based on stipulated facts and conclusions of law, the Vermont Judicial Conduct Board publicly reprimanded a former judge for failing in a probate case to complete all hearings as noticed, to follow-up and enforce orders, or to hold the guardian accountable.  In re Lewis, Public reprimand (Vermont Judicial Conduct Board September 6, 2019).

In February 2010, the judge appointed 1 of 5 siblings as the financial and medical guardian for their mother, who had dementia.  The estate was valued at $2,433,058, with significant real estate holdings, personal property, and accounts in 10 financial institutions.

The guardian filed each annual accounting late, and 3 of his siblings objected to each accounting, noting that the guardian was paying himself prior to filing.

In September 2016, following numerous hearings, 3 of the siblings filed a 67(b) notice and a motion for contempt.  (Rule 67(b) provides for proceedings “when it appears to the court that a fiduciary has failed to comply with procedures required by law or court rule, or that the estate is not being promptly and properly administered . . . .”)  In a hearing, the judge stated that he may have “been too permissive about allowing things to go on” and expressed his displeasure and frustration with the guardian’s failure to comply with his orders and apparent inability do what he told him to do.  However, the judge did not take any action but encouraged the parties to engage in mediation.

In March 2018, the parties reported that the mediation had not been successful.  The judge entered an order “taken in large part” from a document submitted by the attorney for the 3 siblings in September 2016.  The judge had had all of the evidence about the guardian’s failures by August 25, 2016, at which time there had already been over 5 years of complaints about the guardian’s accounting and behavior.  By 2018, the guardian had paid himself over $250,000.

The stipulation concluded that the judge had not done “everything a Judge should and could have done to dispose of the matters before the Court promptly, efficiently, and fairly.”  The reprimand stated that the judge’s “repeated failure to address and decide issues” related to the guardian’s conduct caused the other siblings “to incur significant attorney fees and resulted in inefficient use of both parties’ and the Court’s resources . . . .”  The Board emphasized the judge’s “chronic failure to hold the guardian accountable for his actions . . . while allowing him to pay himself enormous amounts of money over 7½ years, despite repeated filings that brought such issues to the Court’s attention . . . .”  The Board noted that the facts suggest, although not conclusively, that the judge’s failure to dispose of the matter “promptly, efficiently and fairly may have also resulted in the unnecessary depletion of assets to the detriment of [the siblings].”

To hear and decide

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Recently, the California Commission on Judicial Performance publicly admonished a judge for delegating his responsibility to conduct case management conferences to his court clerk.  Public Admonishment of Hiroshige (California Commission on Judicial Performance October 24, 2018).

Case management conferences are scheduled to address items such as what discovery issues are anticipated, whether discovery is complete, the nature of the injuries, the amount of damages, and any additional relief sought, as well as ministerial issues, such as the setting of a jury trial date.  Counsel for represented parties and each self-represented party must appear by telephone or personally and must be prepared to discuss and commit to the party’s position on the issues unless a judge issues a case management order based on the parties’ written submissions after determining that a conference is not necessary and notifying the parties.

In contrast, the judge’s practice was to review the parties’ written submissions and provide his notes to the court clerk for use during the conference at which the parties were still required to appear.  In 2010, the Commission privately admonished the judge for this practice.

The judge continued the practice despite the private admonishment.  In response to the Commission, the judge explained that, after the private admonishment, he posted a notice in his courtroom advising counsel and parties that he had reviewed all submitted case management conference statements and indicated to the clerk the range of dates that should be scheduled in each case, that “[t]he clerk will meet & confer with counsel/parties and attempt to schedule dates in court that are agreeable to all parties,” and that, if there is any disagreement, “please request to discuss the issue with the court.”

The Commission found that, as noted in the private admonishment, the judge’s practice violates the requirement that a judge “hear and decide all matters assigned to the judge except those in which he or she is disqualified.”  The Commission stated that the judge’s “[i]mproper delegation of judicial responsibilities to the court clerk constitutes misconduct” and “dereliction of duty.”

The Commission explained that the judge’s “practice of having his clerk meet with parties and counsel and convey his decisions in court gives the appearance that the clerk, rather than the judge, is running the court.”  Further, it stated, discussions between the judge and parties or counsel can effectively resolve issues that may not have been apparent from the written submissions, and, therefore, “an appearance before a judge at a case management conference can be more efficient and effective in terms of the disposition and management of a case than issuing an order without an appearance before a judge.”

The fall 2016 issue of the Judicial Conduct Reporter has an article analyzing previous discipline cases involving improper delegation of adjudicative responsibilities.