Category Archives: Disqualification

“Difficult position”

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The Kentucky Supreme Court affirmed the decision of the Judicial Conduct Commission removing a judge from office for (1) inserting herself into her son’s criminal cases and attempting to influence the outcome of the cases in text messages, meetings, and calls with the county attorney and the judge presiding in the cases; (2) deleting material from her son’s social media accounts after he had been arrested and taken into custody; (3) using her position to arrange semi-private meetings with her son in the jailer’s office, bringing him drinks and food contrary to jail policy, and visiting him outside of normal visiting hours; (4) threatening to fine case workers and supervisors for late reports; (5) removing or threatening to remove attorneys from her guardian ad litem list for arbitrary reasons; (6) having her staff conduct drug tests; (7) failing to be candid with the Commission; and (8) retaining, paying, and directing her son’s attorney, who actively practiced law in her courtroom and regularly received guardian ad litem appointments from her; presiding over cases in which her staff attorney’s brother represented a party; and appointing an attorney with her husband’s law firm as a guardian ad litem.  Gordon v. Judicial Conduct Commission (Kentucky Supreme Court October 20, 2022).).  The Court concluded that removal was warranted by “the pattern and extent” of the judge’s misconduct.

From June 2017 through July 2021, the judge’s adult son Dalton was charged with crimes in several cases in which the judge was the complaining witness or victim, thus placing her, the Court stated, “in the difficult position of concurrently being a parent, victim, and judge in the same county . . . .”

During the hearing, the Commission had listened to recordings of calls between the judge and Dalton while he was incarcerated and found that the calls were “damning,” establishing and confirming much of her misconduct.  “Most shocking,” the Commission stated, was the judge’s “testimony (and argument) that she did not think anyone would ever hear or listen to the calls, the implication being she would not have said the things she said, if she had known anyone would hear them.”

The Court concluded that “the influence Judge Gordon exerted in her son’s case is undeniable,” noting that although the Commission “heard only a few of the hundreds of calls” recorded between the judge and her son while he was in jail “enough were played to prove the allegations.”

For example, in one call, the judge told her son that she had worked out a plan and warned him to leave it up to her.  She said that she had sent a text message to the presiding judge and talked to the county attorney about getting him into a treatment program.  In another call, the judge told Dalton that the county attorney was trying to take one of his cases out of her hands and that she would schedule an in-person meeting with his attorney, Clay Wilkey.

During another phone call, the judge told Dalton that she had sent the county attorney and Wilkey a proposal for resolving Dalton’s criminal charges but found out that the county attorney had already sent Wilkey a plea offer.  On the same call, the judge stated that she had told the county attorney she wanted to make the decisions for her family and her house.

The judge’s ex parte text messages with the county attorney about Dalton’s cases were admitted as evidence during the Commission hearing.  For example, over the course of 12 hours on one day, the judge and the county attorney exchanged 80 text messages, most involving the judge “pushing for information and requesting certain outcomes.”  For example, the judge messaged the county attorney requesting that Dalton receive deferred prosecution and enter an agreement to get treatment, to which the county attorney responded, “Yes I think I can make that happen.”  The judge asked the county attorney to “please please please get things worked out today for Dalton to serve some time as a consequence.”  She also told the county attorney that “[w]e have to get this done quickly….  He’s going to blow it and risk losing his ability to go back to FOS if we don’t get something done.”  (“FOS” stands for Friends of Sinners, a residential substance abuse program.)

In a hearing in one of Dalton’s cases, the judge who was presiding told Dalton that he had spoken with Judge Gordon for at least 45 minutes and got a “heads up” about Dalton, his history, and struggles.

Emphasizing that “the operative facts are that she directly inserted herself into Dalton’s cases and attempted to influence the outcome,” the Court stated that “the outcome or actions Judge Gordon requested are immaterial” and it was “of no consequence” that she was requesting Dalton that be detained or required to attend treatment, rather than “requesting that he receive preferential treatment or be pardoned for his actions.”  The Court acknowledged that the judge had often been confronted with difficult, unplanned, and unpredictable situations that directly impacted her, her son, and her family.  However, it emphasized, “judges, are responsible for exercising sound judgment even when confronted with difficult issues, especially issues that involve loved ones. . . .  Ultimately, Judge Gordon made many decisions over a span of several years, some precipitous and some seemingly more carefully considered, that resulted in numerous and separate violations of the Code of Judicial Conduct.”

“An extra ‘remember me:’”  Serious risk of actual bias on Facebook

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Finding that “the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation,” the Wisconsin Supreme Court held that a serious risk of actual bias had been created in a child custody dispute when, while his decision was pending following a contested hearing, the trial judge accepted a Facebook “friend request” from the mother; she interacted with him, including “liking,” “loving,” or commenting on at least 20 of his Facebook posts; and she “shared” and “liked” several third-party posts about domestic violence, which was an issue in the case.  In re Paternity of B.J.M., 944 N.W.2d 542 (Wisconsin 2020).  The Court affirmed the decision of the court of appeals reversing the trial judge’s denial of a motion for reconsideration of his decision in the mother’s favor and remanding the case with directions that it proceed before a different judge.

5 years after Timothy Miller and Angela Carroll stipulated to joint legal custody and shared physical placement of their minor son, Carroll filed a motion seeking sole legal custody, primary physical placement, child support payments, and a change in residence.  She alleged that Miller engaged in domestic violence against her and failed to adequately parent and discipline their son.  Miller opposed the motion and disputed the allegations of domestic violence.

On June 7-8, 2017, Judge Michael Bitney presided over a highly contested evidentiary hearing that included 15 witnesses.  On June 16, the parties filed briefs.

3 days after the briefs were filed, Carroll sent the judge a “friend request” on Facebook.  The judge “accepted” Carroll’s request.

On July 14, the judge issued a written decision in favor of Carroll.

During the 25 days between the judge’s acceptance of Carroll’s friend request and his decision, Carroll “engaged with and ‘reacted to’ at least 20” of the judge’s Facebook posts.  16 of her reactions were “likes” to prayers and Bible verses that he posted.  She “loved” one of his posts reciting a Bible verse and a second regarding “advice” to children and grandchildren.  In response to 2 of his posts about his knee surgery, she posted:  “Prayers on a healthy recovery Judge!!” and “Hope u get some rest and feel better as the days go on.”

In addition, Carroll posted on her Facebook page about domestic violence.  She posted that she was “interested in” attending a “Stop the Silence Domestic violence awareness bike/car Run.”  She “liked” a third-party post related to domestic violence and reacted “angry” to a third-party post entitled, “Woman dies two years after being set on fire by ex-boyfriend.”  She “shared” a third-party post related to domestic violence.

The same day as the judge’s decision, Carroll posted on her Facebook page:

My boys and a [sic] I have been given a chance at greatness, peace, and safety.

The Honorable Judge has granted everything we requested.  I’m overwhelmed with emotions and as bitter sweet as this is, we will have better from here on out. . . .

Viewing that post, the guardian ad litem appointed to the case discovered that Carroll and the judge were Facebook friends and immediately told Miller’s counsel.

Miller filed a motion for reconsideration of the judge’s decision in favor of Carroll.  The judge confirmed his Facebook friendship with Carroll, but denied the motion, asserting that he had no bias and that no “reasonable person in the circumstances of Mr. Miller or others . . . would seriously call into question the Court’s objectivity or impartiality.”  The judge emphasized that he “did not like any posts, respond to any posts, or conduct any communication ex parte or otherwise with Ms. Carroll, other than simply accepting the Facebook friendship request.”  He also claimed that when he accepted Carroll’s friend request he had already “decided how [he] was going to rule, even though it hadn’t been reduced to writing.”  The judge did not deny seeing Carroll’s reactions, comments, or posts on Facebook.

Although noting that it presumed that the judge acted fairly, impartially, and without prejudice, the Court concluded that the father had “rebutted this presumption by showing ‘a serious risk of actual bias.’”  The Court considered:  “(1) the timing of the Facebook friend request and Judge Bitney’s affirmative acceptance; (2) the volume of Carroll’s Facebook activity and likelihood Judge Bitney viewed her posts and comments; (3) the content of the Facebook activity as it related to the context and nature of the pending proceeding; and (4) Judge Bitney’s lack of disclosure.”

With respect to the timing of the Facebook friendship, the Court explained:

Although Judge Bitney had “thousands” of Facebook friends, Carroll was not an established “friend.”  Instead, she was a current litigant who requested to be Judge Bitney’s friend only after she testified at a contested evidentiary hearing in which he was the sole decision-maker.  Judge Bitney had presided over the case since August of 2016; yet, Carroll friended him after he heard the evidence and the final briefs were submitted, but before he rendered a decision.  The timing of the friend request implied that Carroll wanted to influence Judge Bitney’s decision on her motion to modify legal custody, physical placement, and child support.

The Court emphasized that the judge had taken “the affirmative step of accepting Carroll’s ‘friend request’ prior to issuing a written decision on her motion” and that, by accepting the request, the judge “accepted access to off-the-record facts that were relevant to the dispute, namely information regarding Carroll’s character and parental fitness.”  The Court noted that, “in an affidavit filed with the motion for reconsideration, Miller’s sister asserted that Carroll made a ‘purposeful switch in [her] Facebook persona to support her position in the custody dispute,’ including changing her pictures and posts ‘from party type pictures and posts to family pictures and posts about children and family.’”  The Court concluded that “Carroll’s request, and Judge Bitney’s acceptance, put Carroll in a different position than Miller and caused an improper asymmetry of access.”

With respect to the likelihood that the judge would have seen Carroll’s Facebook activity, the Court noted that Carroll had engaged with and “reacted to” a significant number of the judge’s Facebook posts and that the judge would have received a Facebook notification for each of Carroll’s reactions and comments.  It also noted that the judge could have but did not deny seeing Carroll’s reactions, comments, shares, and reactions.  The Court recognized that the record did not include conclusive evidence that the judge read any of Carroll’s posts, but emphasized that “evidence to the contrary is notably absent.”

With respect to the social media contacts in the context of the litigation, the Court noted that Carroll and Miller had the same opportunity to portray themselves in the best light at the hearing but that “Carroll was provided with additional opportunities to do this for 25 days through her access to Judge Bitney via Facebook.”  It explained

The Facebook activity, including 18 “reactions” and two comments, was relevant to the decision-making process in a proceeding like this one, where Carroll’s character, fitness, and credibility were paramount.  Carroll was allowed the opportunity to give Judge Bitney additional information about herself and an extra “remember me” almost 25 different times during the time period when the matter was under advisement, all unbeknownst to Miller.  By reacting to and engaging with Judge Bitney’s posts, Carroll was effectively signaling to Judge Bitney that they were like-minded and, for that reason, she was trustworthy.  She was conveying to him off-the-record information about her values, character, and parental fitness — additional evidence Miller did not have the opportunity to rebut.  Under a “realistic appraisal of psychological tendencies and human weaknesses,” this off-the-record information about Carroll, created a serious risk of actual bias. . . .

The Court also stated that “a portion of Carroll’s Facebook activity was related to her main allegation against Miller at the contested hearing:  domestic violence” but that, “unlike the information presented at the hearing, Miller was unaware that Judge Bitney had access to this off-the-record information.  Had Carroll sent Judge Bitney a letter containing a domestic violence article, which he then read, he undoubtedly would have had to disclose that information to the parties.”

Finally, the Court emphasized the judge’s failure to disclose “at any point, in any way or form.”

Judge Bitney could have initially ignored or denied Carroll’s friend request and disclosed the request to the parties.  He could have also disclosed the Facebook friendship when he received notification of Carroll’s reactions to his posts, unfriended Carroll on Facebook, or changed his security settings to hide her posts from appearing on his News Feed.  Instead, Judge Bitney failed to disclose the friendship or other Facebook activity, and the friendship was discovered only after Judge Bitney issued his decision.  Because of Judge Bitney’s lack of any means of disclosure, Miller was unable to review the interactions between Judge Bitney and Carroll and have an opportunity to refute what Judge Bitney might have seen Carroll post or share.

Thus, the Court held:  “The totality of the circumstances and the extreme facts of this case, viewed objectively, rise to the level of a serious risk of actual bias, which rebuts the presumption of Judge Bitney’s impartiality.”  The Court also held that, “the serious risk of actual bias is a structural error” and, therefore, that the judge’s decision should be reversed and the matter assigned to a different judge on remand.

Although the Court applied the “serious risk of actual bias” that is the constitutional standard from Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), the factors identified by the Court are also relevant to an “appearance of impartiality” analysis under the code of judicial conduct; if the circumstances of a case are significant enough to require disqualification under the due process clause, they would also raise enough reasonable questions to require disqualification under the lower threshold of the code.

 

Relationship disclosure

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Although a judge is not automatically disqualified from a case involving a social acquaintance, a judge’s duty to disclose a relationship is triggered by ties far short of blood or marriage and far more often than some judges may think, as several recent judicial discipline cases illustrate.

In In re Brennan, 929 N.W.2d 290  (Michigan 2019), the Michigan Supreme Court removed a judge for, in addition to other misconduct, failing to disclose her close, personal relationships (1) with a police detective who was a witness in a murder case over which she was presiding; and (2) with an attorney when the attorney or her law firm appeared in cases over which the judge presided.

In the discipline proceeding, the master had concluded that the judge had a romantic relationship with the detective before and during a murder trial in which he was a witness.  The Court adopted the Judicial Tenure Commission’s conclusion that, regardless whether the judge’s relationship with the detective was romantic, it was “a very close, personal relationship” that required the judge “at a minimum” to disclose the facts so that the parties could determine whether to move for disqualification.  The judge had failed to disclose that:

  • She had socialized with the detective, allowed him to use her cottage, and had him as a guest at her home for dinner,
  • Her husband sometimes gave the detective his University of Michigan football season tickets at her urging,
  • She had told a member of her staff that the detective had persuaded her of the defendant’s guilt before the case was assigned to her in March 2009,
  • She and the detective had had more than 1500 social telephone calls between July 2008 and the start of the trial in January 2013,
  • She had talked on the phone with the detective for 1-2 hours every month in the year or so before the trial, and
  • She had exchanged approximately 400 texts with the detective from 2010 until the start of the trial.

In addition, the judge failed to disclose her close, personal relationship with Shari Pollesch in 5 cases in which Pollesch appeared as counsel and 5 cases in which attorneys from Pollesch’s firm appeared; the judge also denied 2 motions for disqualification based on her relationship with Pollesch.  The judge had failed to disclose that:

  • She considered Pollesch one of her best friends, and they had known each other for about 25 years,
  • She and Pollesch took ski trips together, participated in a book club, took walks during lunch, and were guests at each other’s cottages,
  • She provided her home for Pollesch’s wedding,
  • Pollesch provided legal services to the judge’s husband’s business, to the judge’s husband personally, and to the judge’s sister, and
  • Pollesch was one of 3 friends who had submitted statements to the Commission on the judge’s behalf in 2009.

* * *
In Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019), the California Commission on Judicial Performance publicly censured a former judge and barred him from holding judicial office for, in addition to other misconduct, (1) ordering defendants to use an alcohol monitoring service without disclosing that his son worked for the company and that the owner was a friend and (2) appointing an attorney as a special master without disclosing that the attorney was a personal friend.

In 5 cases, the judge released a defendant charged with an alcohol-related crime on the defendant’s own recognizance on the condition that the defendant participate in a monitoring program; in all of the cases, the judge failed to disclose that his son worked at CHI Monitoring, LLC, the only local provider of the service.  The judge’s son installed the device, monitored for violations, wrote reports for the court, and set up payments, receiving a commission for every participant he worked with.  The Commission concluded that the judge’s son’s employment was reasonably relevant to the question of the judge’s impartiality and, thus, that he was required to disclose the relationship before ordering a defendant to participate in the program.

In addition, the Commission concluded that the judge should have disclosed his relationship with the owner of CHI, Charles Holland.  The Commission accepted the judge’s characterization of the relationship as “more professional than social,” but concluded the relationship “went further than being members of the same professional organization or having contacts at professional events.”  The judge had failed to disclose that:

  • Prior to taking the bench, the judge had represented Holland, and Holland had referred clients to him,
  • Holland had been to his home and attended strategy meetings his judicial campaign, and
  • The judge as one of Holland’s Facebook friends.

Disclosure was required by “the totality of these circumstances,” the Commission concluded, even if each fact taken alone did not require disqualification.

In addition, the judge appointed Bradley Clark as a special master in a matter concerning easements for a development without disclosing that:

  • He and “Clark were friends who socialized together, at times with their spouses,”
  • He had received gifts from Clark,
  • His nephew was employed by Clark, and
  • He had officiated over Clark’s wedding.

The Commission concluded that “knowing these facts, a party might have thought the judge would be more inclined to approve Clark’s findings and recommendations,” and, therefore, the judge had, at minimum, a duty to disclose the relationship before appointing Clark.

The judge sat in a “small legal community,” where most of its members, “are likely to have known about the social relationship between the judge and Clark,” but none of the parties had objected to the appointment.  The Commission concluded, however, that “in determining the need to disclose, the same standard applies regardless of the size of the community.”  It explained:

By their terms, the canons impose uniform statewide standards.  Whenever an assigned case involves a party the judge “knows,” the judge must be particularly vigilant to ensure the appearance and reality of independence and impartiality.  The situation may arise more frequently in a small town than a major metropolitan area, but the judge’s ethical duties are the same irrespective of population statistics.

The risk of applying a different disclosure standard in a small community based on the assumption that the parties and the attorneys know the judge’s relationships “is that there may be someone involved in the proceeding who, in fact, does not know about the relationships.” . . .  Moreover, the purpose of disclosure is not only to inform the attorneys and parties of information that may be relevant to disqualification but to uphold the integrity and impartiality of the judiciary.

* * *
In In the Matter of Kaminski, Final judgment (Alabama Court of the Judiciary August 6, 2019), the judge stipulated that, while he was involved in a romantic relationship with an attorney, he had appointed the attorney to cases, taken judicial action in cases in which she was attorney of record, and entered attorney’s fee declaration orders for her benefit, in addition to other misconduct.  The judge had resigned after the formal complaint was filed and agreed never to seek judicial office in the state again and to pay $2,346.60 in costs.

Small town friendships

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Defining when a judge’s relationship with an attorney or litigant is close enough to raise ethical issues is one of the perpetual issues in judicial conduct, and it was presented twice in the recent case Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

One of the grounds for the sanction was that the judge had ordered defendants in 5 cases to use an alcohol monitoring service without disclosing that his son worked for the company and that the owner was a friend.  With respect to the judge’s relationship with the owner of the monitoring company (Charles Holland), the California Commission on Judicial Performance emphasized several factors that required disclosure:

  • Prior to taking the bench, the judge had represented Holland,
  • Holland had referred clients to the judge prior to his taking the bench,
  • Holland had been to the judge’s home,
  • Holland had attended strategy meetings for the judge’s judicial campaign, and
  • The judge was one of Holland’s Facebook friends.

The Commission stated that, even if it accepted the judge’s characterization of the relationship as “more professional than social,” he and Holland were more than members of the same professional organization and had contact outside professional events.  The Commission concluded that, “[e]ven if each of these facts taken alone did not require disqualification, . . . the totality of these circumstances was reasonably relevant to disqualification and required disclosure.”

A second ground for the sanction was the judge’s appointment of an attorney (Bradley Clark) as a special master without disclosing that Clark personal friend.  The Commission emphasized several factors:

  • The judge and Clark socialized together, sometimes with their spouses,
  • The judge received gifts from Clark,
  • The judge’s nephew was employed by Clark, and
  • The judge officiated over Clark’s wedding.

The special masters in the disciplinary proceeding had found that the appointment was not misconduct because Clark was qualified and, therefore, it had not been proven that the appointment was based on the friendship, rather than competence.  The master also found that disclosure was not necessary because most members of the “small legal community” where the judge sat probably knew about the relationship.  The Commission deferred to the finding about the appointment, but found that the judge did have a duty to disclose the relationship “regardless of the size of the community.”  It explained:

By their terms, the canons impose uniform statewide standards.  Whenever an assigned case involves a party the judge “knows,” the judge must be particularly vigilant to ensure the appearance and reality of independence and impartiality.  The situation may arise more frequently in a small town than a major metropolitan area, but the judge’s ethical duties are the same irrespective of population statistics.

The risk of applying a different disclosure standard in a small community based on the assumption that the parties and the attorneys know the judge’s relationships “is that there may be someone involved in the proceeding who, in fact, does not know about the relationships.” . . .  Moreover, the purpose of disclosure is not only to inform the attorneys and parties of information that may be relevant to disqualification but to uphold the integrity and impartiality of the judiciary.

The fact that there was no objection from the attorneys . . . did not relieve the judge of his obligation to disclose.  There is no evidence that the attorneys and parties were aware of the extent of the judge’s relationship with Clark at the time the judge made the appointment.

A third ground for the sanction, not related to friendships, was the judge’s comment to 2 other judges and an administrative analyst in the courthouse that gay men are “snappy” dressers.  The Commission found that statement was misconduct even though the remark “did not perpetuate invidious or hateful stereotypes.”

As observed by the masters, the judge’s comments “reflect stereotypical attitudes about gay men.”  It is improper for a judge to make remarks that reflect stereotypes based on sexual orientation, whether negative or positive.  We agree with the masters that “[s]uch remarks indicate that the speaker has preconceived ideas about a particular group, a characteristic that is contrary to the qualities of impartiality and propriety required of judges by our Code of Judicial Ethics.”

The judge had made the comment in response to a compliment by another judge about his outfit in an open office area in the court’s administration building:  he explained that he had bought the outfit in France, that the salesperson who put it together for him was gay, and that he knew it looked good because gay men are “snappy” dressers.

The other grounds for the sanction were that the judge had (1) allowed a business to use his testimonial on its web-site without assuring that it did not use his judicial title; (2) received improper gifts from Court Appointed Special Advocates, an attorney he had appointed as a master, and a law school; (3) failed to accurately report travel-related payments or reimbursements for attending judicial education programs; (4) run for California Attorney General without taking a leave of absence and then using his judicial title to raise funds for and promote his campaign; (5) failed to file a candidate intention statement until after his campaign had received campaign contributions, in violation of the Political Reform Act; and (6) permitted a campaign coordinator to use his judicial title on the Facebook page for his campaign for Attorney General and in posts on her law firm’s Facebook page promoting his candidacy.  The Commission publicly censured the now-former judge and barred him from seeking or holding judicial office.

Complaining about “a continuous onslaught of allegations,” the judge had blamed the presiding judge and the “toxic environment in the El Dorado Superior Court” for the charges against him.  However, the Commission emphasized  that it was the judge’s “improper conduct that is the basis of this inquiry, regardless of the motivations of those who brought forth the allegations.  There is no evidence that a toxic environment in the court or any animosity between Judge Bailey and [the presiding judge] resulted in misinformation being provided to the commission or inaccuracies in the evidence presented against the judge.”

 

Standing alone:  Facebook friendship and disqualification

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In the first decision on the issue by any state supreme court, the Florida Supreme Court held that, standing alone, a judge’s Facebook “friendship” with an attorney appearing in a case did not disqualify the judge.  Law Offices of Herssein and Herssein v. United Services Automobile Association (Florida Supreme Court November 15, 2018).

The Court began with the “general principal” that a traditional friendship between a judge and an attorney, standing alone, did not require disqualification, noting that traditional friendship “varies in degree from greatest intimacy to casual acquaintance.”  Facebook friendship, the Court found, “exists on an even broader spectrum,” varying “in degree from greatest intimacy to ‘virtual stranger’ or ‘complete stranger.’”

Therefore, the Court held, disqualification was not required:  no reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on a judge’s Facebook friendship with an attorney that “in and of itself,” provided “no significant information about the nature” of their relationship, indicated only “a relationship of an indeterminate nature” without revealing “the degree or intensity of the relationship,” and did not “signal the existence of a traditional ‘friendship’” much less “a close or intimate relationship.”

The Court disagreed with the reasoning of Florida Advisory Opinion 2009-20, which stated that a judge may not be friends on Facebook with lawyers who may appear before the judge.  (The advisory opinion itself does not mention disqualification or the appearance of partiality.)  That opinion explained that, because a judge’s Facebook friends may see who the judge’s other Facebook friends are, the judge’s selection of some attorneys as friends on Facebook and rejection of others and communication of those choices conveys, or permits others to convey, the impression that they are in a special position to influence the judge, violating the code of judicial conduct.

Citing advisory opinions from other states and noting that the Florida committee’s position was clearly the minority position, the Court stated that focusing on the public nature of Facebook friendship was “unwarranted.”  The Court explained that even “traditional ‘friendship’ involves a ‘selection and communication process,’ albeit one less formalized than the Facebook process,” as people “traditionally ‘select’ their friends by choosing to associate with them to the exclusion of others” and “traditionally ‘communicate’ the existence of their friendships by choosing to spend time with their friends in public, introducing their friends to others, or interacting with them in other ways that have a public dimension.”

The Court did not discuss whether a judge should disclose a Facebook friendship with an attorney in a case under the comment to Canon 3B of the Florida code of judicial conduct that “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”  Cf., Comment 5, Rule 2.11 ABA Model Code of Judicial Conduct (2007) (“A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification”).

In a concurring opinion, 1 justice “strongly urge[d] judges not to participate in Facebook” and encouraged new judges who have existing Facebook accounts to deactivate them.  The concurring justice argued that “judges must avoid situations that could suggest or imply that a ruling is based upon anything” other than the facts and the law even if, as he agreed with the majority, “’friendship’ on Facebook, without more, does not create a legally sufficient basis for disqualification.”  Recognizing that Facebook may be the primary way some judges “stay in touch with family members, actual friends, or people with whom they have reconnected after many years,” the concurring justice suggested that, “at the very least,” judges should carefully “limit their ‘friendships’ to cover only such individuals.”

In a dissent, 1 justice argued that, when the differences between Facebook “friendships” and traditional friendships “are taken into account,” “it is clear that judges’ Facebook ‘friendships’ with attorneys who appear in their courtrooms can easily cause an appearance of impropriety.”  The dissenting justice explained that, contrary to the premise of the majority, “equating friendships in the real world with friendships in cyberspace is a false equivalency.”

The existence of a Facebook “friendship” may reveal far more information regarding the intimacy and the closeness of the relationship than the majority would assign it.  For example, as the majority explains, once a person becomes “friends” with another Facebook user, that person gains access to all of the personal information on the user’s profile page—including photographs, status updates, likes, dislikes, work information, school history, digital images, videos, content from other websites, and a host of other information—even when the user opts to make all of his or her information private to the general public. . . .  Additionally, the ease of access to the “friend’s” information allows Facebook “friends” to be privy to considerably more information, including potentially personal information, on an almost daily basis.

The dissenting justice emphasized that she was not attacking “the responsible use of social media.”  The dissent noted that the Court, The Florida Bar, and many other groups have public Facebook pages that “disseminate information and enhance the role of judges, lawyers, and the judiciary in the public domain” but only allow individuals to “follow” the pages, not become Facebook friends.  The dissent suggested that judges should adopt that model to eliminate the appearance of impropriety caused by the “self-selection” friending process.

Further, the dissent argued, the majority’s standard forced a litigant to engage in “impractical and potentially invasive” discovery “to determine with whom the judge has connected, with whom the judge has declined to connect, and what type of communication the judge engages in” on Facebook, LinkedIn, Instagram, and other sites to determine if there was something more than a mere Facebook “friendship” that could justify filing a motion for recusal.  The dissent urged the Court to “at least adopt parameters for judges to follow when engaging with social media.”  The dissent noted factors listed by a California advisory opinion for a judge to use in determining whether to friend an attorney:  the nature of the judge’s social networking site; the number of “friends” on the judge’s page; the judge’s practice in determining whom to include; and how regularly the attorney appears before the judge.  California Judges’ Association Advisory Opinion 66 (2010).

As the dissent suggests, when disqualification is not automatically required, as the majority held, a judge must still consider whether a Facebook friendship with an attorney — alone or in combination with other factors — raises a reasonable question about the judge’s impartiality whenever the friend appears in a case.  The relevant factors can be extrapolated from opinions regarding disqualification based on a traditional friendship and the list of factors in the California advisory opinion referenced by the dissent.  The list of factors for determining whether there is “something more” than a mere Facebook friendship that requires disqualification include:

  • The frequency of the judge’s social media contacts and communications with the attorney;
  • The substance of the judge’s social media contacts and communications with the attorney;
  • The scope of the social media friendship;
  • The nature of the judge’s social networking page (for example, whether it is more personal or professional);
  • The number of “friends” the judge has on the page;
  • The judge’s practice in deciding whom to “friend” (in other words, whether the judge is very exclusive or more inclusive when deciding whom to add); and
  • Whether the judge and the attorney have frequent, personal contacts in real life as well as on-line.

Thus, for example, a judge’s impartiality is more likely to be reasonably questioned and disqualification is more likely to be required when an attorney/Facebook friend appears in a case if the judge’s Facebook account primarily has posts about personal activities, or if his Facebook friends are mainly his family and close, personal friends, or if he is very selective when adding to his friend list, or if the judge and the attorney comment on each other’s posts, or if the judge and the attorney and their families also socialize in real life.  In contrast, a judge’s impartiality is not likely to be questioned and disqualification is not likely to be required when that friend appears in a case if the judge’s Facebook account is focused more on court business and the judge’s professional activities, if the judge has many friends on the page, if those friends are primarily professional acquaintances, if the judge allows everyone to follow him, and if the judge and the attorney only interact in court or at bar meetings.

 

 

Friendship and favors

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When a judge’s relationship with someone involved in a case is close enough to require disqualification or at least disclosure may sometimes be difficult to pinpoint.  But the question is easy when a judge vacations with a litigant, posts pictures of them together on Facebook, and receives a caution from a conduct commission.  Further, any appearance of partiality becomes an obvious impropriety when the friend gets favorable treatment in court, as a recent discipline case from Indiana illustrates.

Based on a conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for failing to recuse from a case in which his friend had received a ticket and securing favorable treatment for his friend.  In the Matter of Johanningsmeier (Indiana Supreme Court August 10, 2018) .

The judge is close friends with B.K., who received a speeding ticket in April 2015.  In early June 2015, the judge and B.K. vacationed together.  On June 18, B.K. failed to appear in court on the ticket; a default judgment was entered, and his license was suspended.

On June 30, B.K. filed a petition for a trial de novo in the judge’s court.  The judge granted the motion the same day and reinstated B.K.’s license, without disclosing the relationship or giving the prosecutor an opportunity to respond, contrary to the trial de novo rule.

In March 2016, in a private caution letter, the Commission advised the judge that his close friendship with B.K. would cause a reasonable person to question his impartiality.  Nevertheless, the judge did not recuse or set the matter for hearing.  The case remained in limbo.

Shortly before Christmas 2016, the judge posted on Facebook a photo of himself, his sister, and B.K. at a party in the judge’s home.  The photo was visible to the public.  B.K. “liked” the photo.

On March 6, 2017, the prosecutor moved for a bench trial in B.K.’s case.  Instead of recusing, the judge set the motion for hearing on March 20.  At the hearing, he stated on the record that the case involved “a friend of mine” and “I was hoping we could just get the State to dismiss it.”  The prosecutor immediately orally moved to dismiss the case, and the judge granted the motion.

The Court found that the judge’s failure to recuse and other actions were “obvious violations of a judge’s most basic ethical duty—impartiality,” diminished public confidence in the judiciary, and “’erode[d] the public’s perception of the courts as dispensers of impartial justice.’”

New judges’ failure to disqualify

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In 2 recent cases, 2 new judges were disciplined for failing to disqualify from cases related to their pre-bench representation and making comments while presiding in those cases that created the appearance of impartiality.

In 1 case, the judge had become a judge on January 1, 2015.  On January 21, 2015, James Thomas was brought into her courtroom to be arraigned on a petit larceny charge.  Thomas was at the time on parole supervision for a felony on which the judge had represented him approximately 3 years earlier.

When Thomas entered the judge’s courtroom, he smiled and waved at the judge, who was on the bench.  The judge laughed and disclosed to counsel that Thomas was a former client, adding, “And I like him.”  She then said, “Well, I mean, I can … arraign him … but I’m going to transfer it.”  The judge asked her court clerk, “Can it not go to Johnson, please?”, referring to another judge who would usually get a transferred case.  At the hearing, the judge testified that, if Judge Johnson, who was not very “nice to anyone,” got his case, Thomas would get harsher treatment and a less favorable result.

She then commented from the bench:  “[W]hen … you said the name I’m like, ‘Aw, come on”‘; “He freaking just got out.  I represented him … He just, just got out”; and “Aww, I’m so sad about this.”

The judge read Thomas the charge and assigned him counsel, who entered a plea of not guilty.  The judge told Thomas that it was not appropriate for her to preside over his case.  When he asked why, she replied, “I would love to preside over your case, but I don’t … want any conflicts.”  The judge set a “courtesy” bail at $50, as requested by Thomas’ attorney.  In setting bail, the judge stated that because he was being held, “it really doesn’t matter,” but that because he was being held on bail concurrent to the parole hold, he would be “getting time on these charges.”  When the next case was called, the judge commented, “I totally love him.  I’m so sad that he’s in jail right now.”

The New York State Commission on Judicial Conduct found that the judge’s impartiality could reasonably be questioned, not only because of the prior attorney-client relationship, but because of her evident bias.  The Commission explained:

Even if respondent mistakenly believed that conducting the arraignment was permissible as long as she subsequently transferred the case, her handling of the proceeding, including her repeated expressions of fondness for her former client and her misuse of her judicial position to benefit him, created an unmistakable appearance of favoritism.  Her undisguised attempt to benefit the defendant by asking her clerk not to transfer the case to a particular judge whom respondent viewed as harsh was particularly improper.  The defendant, who was being held on a parole violation arising out of the matter in which respondent had represented him, also benefited from her decision to set a $50 “courtesy” bail, which would give him credit for jail time on the current charge.

The Commission emphasized that, “when a conflict with a party requires disqualification, a judge must recuse at the outset of the case and must not handle an arraignment since arraignments are a significant stage in the criminal proceeding requiring the exercise of discretion . . . .”

The Commission removed the judge for arraigning Thomas; making discourteous, undignified, or otherwise inappropriate comments while presiding over 3 other criminal matters; operating a vehicle while under the influence of alcohol; asserting her judicial position in attempting to avoid the consequences of her arrest; and repeatedly violating the terms of her conditional discharge.  In the Matter of Astacio, Determination (New York State Commission on Judicial Conduct April 23, 2018).

* * *
In the second case, the judge had been sworn into office in January 9, 2017.  On February 22, 2017, she accepted a defendant’s guilty plea, and, on March 8, she sentenced the defendant — even though she had appeared in the same case representing the same defendant at the preliminary hearing on November 8, 2016, while serving as the “attorney of the day.”

During the sentencing hearing, after disclosing that she had represented the defendant at the first hearing, the judge asked whether “either party” had “any problem” with her imposing sentence.  There was no objection.

Before imposing sentence, the judge said, “Well, I actually – I remember [this defendant], and I remember thinking he was different than most of the people that I dealt with when I was defense attorney.  I remember telling the judge that I felt like it was outside of his character for him to do something like this.  In my dealings with him he was a very respectful young man.”  The judge then sentenced the defendant in accordance with the agreed recommendation of the parties.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished the judge.  In re O’Rourke, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct March 9, 2018).

In the disciplinary proceedings, the judge stipulated that her comments attesting to the defendant’s character may have reasonably given the impression that she was not impartial even though she followed the agreed recommendation of the parties.

Prior to the disciplinary proceedings, the judge had “mistakenly believed that disclosing her past representation and recusing herself” if requested was sufficient to cure the conflict.  She had done some research on the issue and had spoken to other, more senior, judges, including inquiring informally following a presentation on judicial ethics.”  She had concluded that disclosure was the appropriate remedy based on the limited nature of her prior representation and the potential disruption to the court if she were unable to preside over criminal cases because she had represented virtually every person charged with a crime in the county at their preliminary appearance in 2016.  The Commission noted that others in the local legal community it had contacted in the investigation also had the mistaken belief that the disclosure of prior representation was sufficient.  Noting the “apparent confusion regarding application of this rule,” the Commission clarified that a judge cannot preside over a case in which the judge previously acted as an attorney and that that disqualification cannot be waived.

The code of judicial conduct requires a judge to disqualify when the judge “served as a lawyer in the matter in controversy.”  This Washington code does not allow this disqualification to be waived unlike the model code of judicial conduct and the codes in many other states, but even under those codes, waiver is permitted only if the parties agree, “without participation by the judge or court personnel,” and the agreement is incorporated into the record.

Without more

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Denying a petition for a writ of prohibition, the Florida 3rd District Court of Appeal recently held that a trial court judge’s Facebook “friendship” with a lawyer representing someone involved in litigation did not require the judge’s disqualification from the case.  Law Offices of Herssein and Herssein v. United Services Automobile Association (Florida 3rd District Court of Appeal August 23, 2017).

The plaintiff, a law firm, sued a former corporate client for breach of contract and fraud, accused one of the defendant’s executives of witness tampering, and indicated that the executive was a potential witness and potential defendant.  An ex-circuit court judge was hired to represent the executive.  The plaintiff filed a motion to disqualify the trial judge because the ex-judge was listed as a “friend” on the trial judge’s personal Facebook page.  The test for determining the legal sufficiency of a motion for disqualification in Florida is whether “the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.”

The 3rd District relied on a decision by the Florida 5th District Court of Appeal holding that requiring disqualification in cases involving Facebook friends “does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.”  Chace v. Loisel, 170 So. 3d 802 (Florida 5th District Court of Appeal 2014).  Describing the word “friend” on Facebook as a “term of art,” the 5th District explained that a Facebook friend “could more aptly” be described as an “acquaintance and, sometimes, virtual stranger.”  The court noted that requiring disqualification in cases involving an acquaintance “is unworkable and unnecessary,” “[p]articularly in smaller counties, where everyone in the legal community knows each other, . . .”  (However, in the case before it, the 5th District held that a judge who sent a Facebook friend request to the wife in a dissolution of marriage case had engaged in an ex parte communication and was required to recuse herself.)

The 3rd District agreed that a “Facebook friendship does not necessarily signify the existence of a close relationship,” noting “some people have thousands of Facebook ‘friends,’” “Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends,’” and “many Facebook ‘friends’ are selected based upon Facebook’s datamining technology rather than personal interactions.”  The 3rd District explained:

To be sure, some of a member’s Facebook “friends” are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty.  The point is, however, many are not.  A random name drawn from a list of Facebook “friends” probably belongs to casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a “friend of a friend;” or even a local celebrity like a coach.  An assumption that all Facebook “friends” rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.

The 3rd District “respectfully acknowledge[d]” its “conflict with the opinion of our sister court” in Domville v. State, 103 So. 3d 184 (Florida 4th District Court of Appeal 2012).  In Domville, the 4th  District Court of Appeal had held that recusal was required when a judge was a Facebook “friend” with the prosecutor based on a judicial ethics opinion that advised that judges were prohibited from being “friends” on Facebook with lawyers who appear before them.   Florida Advisory Opinion 2009-20.

“In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion,” the 3rd District stated, “electronic social media is evolving at an exponential rate.  Acceptance as a Facebook ‘friend’ may well once have given the impression of close friendship and affiliation.  Currently, however, the degree of intimacy among Facebook ‘friends’ varies greatly.”  The 3rd District held that, “[b]ecause a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word, . . . the mere fact that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’”  The court did not discuss whether there was something “more” than the “mere” Facebook friendship that might require the judge’s disqualification in that case.

The decisions from the 3rd and 5th District Courts of Appeal in Florida are consistent with other state appellate caselaw holding that a social media connection does not require a judge’s disqualification, although only the Florida cases involve relationships with attorneys.  See State v. Forguson, 2014 WL 631246 (Tennessee Court of Criminal Appeals 2014) (a trial judge is not disqualified despite his status as “Facebook friend” with the state’s confidential informant who was a witness at trial); State v. Madden, 2014 WL 931031 (Tennessee Court of Criminal Appeals 2014) (a judge’s Facebook friendship with one of the witnesses did not require his disqualification from a criminal case); Youkers v. State, 400 S.W.3d 200 (5th District Texas Court of Appeals 2013) (a trial judge did not lack impartiality based on a Facebook friendship and communications with the father of the defendant’s girlfriend).  So far, no state supreme court has had to decide the issue.

In July, rejecting a challenge to a settlement, the U.S. Court of Appeals for the 9th Circuit also rejected the defendants’ argument that the district court judge should have recused himself because of an appearance of bias created by activity on his alleged Twitter account.  U.S. v. Sierra Pacific Industries, 862 F.3d 1157 (U.S 9th Circuit 2017).  The civil action by the U.S. was brought in the Eastern District of California against private forestry operators and individuals to recover damages to 2 national forests caused by a fire.

The court made no findings about whether the judge actually controlled the Twitter account at issue, which was an undeveloped issue in the district court.  (According to the blog “Above the Law,” the Twitter account, “@nostalgist1,” was controlled by Judge William Shubb who was presiding in the case.  The account was public at the time of the relevant tweets, but “[a]fter the government sent Judge Shubb a letter informing him that his Twitter usage was being raised on appeal, Judge Shubb changed his account from ‘public’ to ‘protected,’ meaning that only approved followers can see his tweets.”)

The Twitter account allegedly controlled by the judge followed the Twitter account of the U.S. Attorney for the Eastern District of California.  The day that the district judge denied the defendants’ motion for relief from the settlement, the U.S. Attorney posted 8 tweets about the case on its Twitter account.  That evening, the judge’s alleged Twitter account tweeted a link to “an allegedly erroneous news article” about his decision.  (It was allegedly erroneous because the settlement did not provide that the defendants were “liable” and the title for the article was, “Sierra Pacific still liable for Moonlight Fire damages.”)

The 9th Circuit held that, under the plain error standard, the allegations did not warrant retroactive recusal even if the judge was the owner of the account.  The Court rejected the defendants’ argument that the judge’s “following” of the U.S. Attorney’s office Twitter account created an appearance of bias.  Noting “news organizations, celebrities, and even high-up government officials use Twitter as an official means of communication, with the message intended for wide audiences,” the Court held that, “[w]ithout more, the fact that an account holder ‘follows’ another Twitter user does not evidence a personal relationship and certainly not one that, without more, would require recusal.”

The Court also rejected the defendants’ arguments that disqualification was required because the U.S. Attorney’s tweets about the case were an improper ex parte communication and the judge’s tweet linking to the newspaper article was an inappropriate public comment.  The Court concluded that the U.S. Attorney’s tweets were not ex parte communications because they were not “specifically directed” to the judge, but were “released to the general public, intended for wide distribution to an anonymous public audience.”  Finally, the Court held that a single tweet consisting “only of the title and link to a publicly available news article about the case in a local newspaper, without any further commentary” was not a public comment on the merits of the matter and did not require recusal.

Although concluding that retroactive recusal was not warranted, the 9th Circuit noted that the “case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases” and reiterated “the importance of maintaining the appearance of propriety both on and off the bench.”

As discussed in the spring issue of the Judicial Conduct Reporter, judicial ethics committees also advise that disqualification is not necessarily required when an attorney with whom a judge has an on-line connection appears in a case, but that that connection is one factor a judge should consider in deciding whether her impartiality might reasonably be questioned.  For example, the Arizona committee stated that there is no “per se disqualification requirement in cases where a litigant or lawyer is a ‘friend’ or has a similar status with a judge through social or electronic networks” but that there may be “facts and circumstances” related to the social media relationship that might disqualify the judge.  Arizona Advisory Opinion 2014-1.  See also Maryland Opinion Request 2012-7; Missouri Advisory Opinion 186 (2015); New Mexico Advisory Opinion Concerning Social Media (2016); New York Advisory Opinion 2013-39; Ohio Advisory Opinion 2010-7; Utah Informal Advisory Opinion 2012-1.

Even the Massachusetts committee, which has advised judges not to “friend” attorneys who may appear before them, stated that disqualification may not be required if “[d]espite a judge’s best efforts, . . . unexpectedly, a lawyer whom the judge knows to be a Facebook friend appears before the judge.”  Massachusetts Letter Opinion 2016-1.  But see California Judges’ Association Advisory Opinion 66 (2010) (if a judge approved a connection to a lawyer on a social media site because he believed it was highly unlikely the attorney would ever appear before him, the judge should disqualify himself if that lawyer does appear).  Cf., In the Matter Concerning Ferguson, Public admonishment (California Commission on Judicial Performance May 31, 2017) (public admonishment of judge who was Facebook friends with attorneys who were appearing regularly before him without disclosing the relationship, in addition to other misconduct).

Because disqualification is not automatically required, a judge must consider whether an on-line connection — alone or in combination with other factors — raises a reasonable question about the judge’s impartiality whenever a person with whom a judge has a social media connection appears in a case.  The relevant factors for making that determination include:

  • The frequency of the judge’s social media contacts and communications with the individual;
  • The substance of the judge’s social media contacts and communications with the individual;
  • The scope of the social media friendship;
  • The nature of the social networking page (for example, whether it is more personal or professional);
  • The number of “friends” the judge has on the page;
  • The judge’s practice in deciding whom to “friend” (in other words, whether the judge is very exclusive or more inclusive when deciding whom to add);
  • Whether the social media connection was established before the case came before the judge; and
  • Whether the judge and the friend have frequent, personal contacts in real life, not just on-line.

(Some of those factors identified by California Judges’ Association Advisory Opinion 66 (2010) as relevant to the determination whether a judge should friend an attorney and seem just as pertinent to the question of disqualification.)

Thus, if the judge’s social media page primarily has posts about personal activities, his connections are mainly family and personal friends, the judge is very selective when adding to his “friend” list, the judge and the attorney comment on each other’s posts, and the judge and the “friend” and their families socialize in real life, the judge’s impartiality is more likely to be reasonably questioned and disqualification is more likely to be required when that “friend” appears in a case.  In contrast, if the page is focused more on court business and professional activities, the judge has more “friends” on the page, those friends are primarily professional acquaintances, the judge allows anyone to follow the page, and the judge and the “friend” only interact in court or at bar meetings, the judge’s impartiality is not likely to be questioned, and disqualification is not likely to be required.

 

Disqualification misconceptions

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Recent judicial discipline cases reveal several misconceptions that some judges may have about when they are obligated to disqualify themselves from cases or to at least disclose a disqualifying interest or relationship.

Misconception #1

That a judge’s subjective opinion that he can be fair and impartial determines whether disqualification is necessary.  In re Drazewski, Order (Illinois Courts Commission March 11, 2016) (judge presided over cases in which the husband of the judge with whom he was having an affair represented a party without disclosing the relationship).  See also Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (“In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias”).

Misconception #2

That disqualification does not apply if the judge foresees no problems in the case.  In the Matter of Isaac, Final judgment (Alabama Court of the Judiciary August 8, 2016) (judge failed to disqualify herself from the probate of her father’s estate, stating she would if an issue arose about who was an heir); In re Badeaux, 65 So.3d 1273 (Louisiana 2011) (judge failed to immediately self-recuse from a divorce case despite his long-standing, friendship with both parties because he viewed the matter as amicable).

Misconception #3

That a judge is not disqualified from cases in which a family member represents a party if he will not have to make findings regarding contested facts.  Re Grimes (Tennessee Board of Judicial Conduct January 11, 2016) (judge disposed of numerous cases in which his wife represented criminal and juvenile defendants).

Misconception #4

That disqualification does not apply if a jury will decide the matter.  In the Matter of Underwood (South Carolina Supreme Court September 14, 2016) (magistrate heard matters involving the sheriff’s department even though her husband was the elected sheriff).

Misconception #5

That the absence of an objection following disclosure of a disqualifying relationship constitutes a waiver even if the parties do not have an opportunity to consider waiver outside the judge’s presence and do not affirmatively agree to waive disqualification on the record.  In the Matter of Underwood (South Carolina Supreme Court September 14, 2016) (magistrate heard matters involving the sheriff’s department even though her husband was the elected sheriff).

Misconception #6

That the end of a relationship immediately eliminates the need for disqualification or disclosure.  In the Matter of Howes, 880 N.W.2d 184 (Iowa 2016) (judge signed an ex parte order presented by an attorney who had recently represented her in a personal matter without charge).

Misconception #7

That a judge can rely on the rule of necessity without affirmatively determining that a matter is urgent and no other judge is available.  In the Matter of Howes, 880 N.W.2d 184 (Iowa 2016) (judge signed an ex parte order presented by an attorney who had recently represented her in a personal matter without charge).

Discernment difficulty

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In a 5-3 vote vacating a decision of the Pennsylvania Supreme Court that denied post-conviction relief to a prisoner sentenced to death, the U.S. Supreme Court held that (1) the participation of a justice who had as the district attorney approved seeking the death penalty in the prisoner’s case violated the Due Process Clause of the Fourteenth Amendment and (2) the justice’s failure to recuse was not a harmless error even though his vote was not decisive in the state court’s 6-0 decision.  Williams v. Pennsylvania (U.S. Supreme Court June 9, 2016).

In 1986, Terrance Williams was convicted of first-degree murder and sentenced to death for the murder of Amos Norwood.  At the time, Ronald Castille was the district attorney of Philadelphia.  When the prosecutor had requested permission to seek the death penalty for Williams, Castille wrote at the bottom of the document:  “Approved to proceed on the death penalty.”

For the next 26 years, Williams’s conviction and sentence were upheld on direct appeal, state post-conviction review, and federal habeas review.  In 2012, Williams filed a successive petition pursuant to Pennsylvania’s Post Conviction Relief Act based on new information from a witness who had previously refused to speak with Williams’s attorneys.  The witness now disclosed that before trial he had informed the prosecutors that Norwood’s sexual relationship with Williams was the real motive for the murder but that the prosecutors had instructed him to falsely testify that Williams killed Norwood to rob him.  The witness also admitted that the trial prosecutor had promised in exchange for his testimony to write a letter to the state parole board on his behalf, which was not disclosed at trial.

The post-conviction relief court found that the trial prosecutor had suppressed material, exculpatory evidence and engaged in “prosecutorial gamesmanship.”  That court stayed Williams’s execution and ordered a new sentencing hearing.

The Pennsylvania Supreme Court vacated that order and reinstated the death sentence for Williams.  Chief Justice Castille joined the majority opinion and also authored a concurrence, stating that the post-conviction court had “lost sight of its role as a neutral judicial officer,” stayed Williams’s execution “for no valid reason,” and misapplied Brady and denouncing what he perceived as the “obstructionist anti-death penalty agenda” of Williams’s attorneys from the Federal Community Defender Office.

The U.S. Supreme Court held that “under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.”

Bias is easy to attribute to others and difficult to discern in oneself.  To establish an enforceable and workable framework, the Court’s precedents apply an objective standard that, in the usual case, avoids having to determine whether actual bias is present.  The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, “the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”

* * *

When a judge has served as an advocate for the State in the very case the court is now asked to adjudicate, a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome.  There is, furthermore, a risk that the judge “would be so psychologically wedded” to his or her previous position as a prosecutor that the judge “would consciously or unconsciously avoid the appearance of having erred or changed position.”  In addition, the judge’s “own personal knowledge and impression” of the case, acquired through his or her role in the prosecution, may carry far more weight with the judge than the parties’ arguments to the court.

[Citations are omitted throughout this post.]

Rejecting the state’s characterization of Chief Justice Castille’s prior involvement as a brief administrative act limited to “the time it takes to read a one-and-a-half-page memo,” the Court stated it would “not assume that then-District Attorney Castille treated so major a decision as a perfunctory task requiring little time, judgment, or reflection on his part.”  The Court also noted Chief Justice Castille’s own campaign “statement that he ‘sent 45 people to death rows’ as district attorney,” concluding his “willingness to take personal responsibility for the death sentences obtained during his tenure as district attorney indicate that, in his own view, he played a meaningful role in those sentencing decisions and considered his involvement to be an important duty of his office.”

In his dissent, which Justice Alito joined, Chief Justice Roberts concluded that the Due Process Clause did not require Chief Justice Castille’s recusal because “Williams does not allege that Chief Justice Castille had any previous knowledge of the contested facts at issue in the habeas petition, or that he had previously made any decision on the questions raised by that petition.”  However, the dissent added, the absence of a due process obligation did not mean that it was appropriate for him not to recuse.

In his dissent, Justice Thomas argued that the Due Process Clause did not require Chief Justice Castille’s disqualification because the “petition for state postconviction relief did not continue (or resurrect) . . . [the] already final criminal proceeding.”  Justice Thomas also stated that “[o]fficials in Pennsylvania are fully capable of deciding when their judges have ‘participated personally and substantially’ in a manner that would require disqualification without this Court’s intervention.”

The majority emphasized:

It is important to note that due process “demarks only the outer boundaries of judicial disqualifications.”  Most questions of recusal are addressed by more stringent and detailed ethical rules, which in many jurisdictions already require disqualification under the circumstances of this case.

Pennsylvania does have such a “stringent and detailed” rule; the Pennsylvania code of judicial conduct provides that a judge shall disqualify himself if he “served as a lawyer in the matter in controversy . . . .” and if he “served in governmental employment, and in such capacity participated personally and substantially as a lawyer . . . concerning the proceeding . . . .”  Williams had filed a motion for Chief Justice Castille to recuse himself or, if he declined to do so, to refer the recusal motion to the full court.  As the U.S Supreme Court noted, however, Chief Justice Castille denied the motion – “without explanation.”