Without more

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

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

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.”

Objective affairs

Following a hearing on a complaint brought by the Judicial Inquiry Board, the Illinois Courts Commission suspended Judge Scott Drazewski for 4 months without pay and censured Judge Rebecca Foley for conduct related to their extramarital affair.  In re Drazewski, Foley, Order (Illinois Courts Commission March 11, 2016).  The Commission found that Judge Drazewski engaged in misconduct by presiding over cases, including a trial, in which Judge Foley’s husband represented a party without disclosing the relationship and by a pattern of deceptive conduct to hide the affair from the chief judge.  The Commission found that Judge Foley committed misconduct by failing to take or initiate appropriate disciplinary measures against Judge Drazewski even though she knew that he was presiding in cases involving her husband.

On December 5, 2010, the judges began an extramarital affair while attending a conference in Washington D.C.  Between December 5 and February 17, 2011, they had a romantic relationship, and, during part of that time, their relationship was sexually intimate.

On December 13, Judge Drazewski began presiding over a jury trial in a negligence action in which Judge Foley’s husband represented the defendant.  As of February 16, 2011, Judge Drazewski was presiding over approximately 8 cases in which Mr. Foley was the attorney for one of the parties.

On February 17 at the courthouse, Judge Foley told Judge Drazewski that her husband had confronted her about their relationship that morning.  2 days later, Judge Foley informed Judge Drazewski that Mr. Foley was requesting that Judge Drazewski recuse himself from Mr. Foley’s cases and “that if [he] didn’t, [Mr. Foley] was going to notify [Mrs. Drazewski].”  On February 22, Judge Drazewski began recusing himself from Mr. Foley’s cases.  He reported the recusals to the chief judge, citing several reasons but failing to mention that Mr. Foley had requested he recuse himself after learning of the affair.

The Commission found that Judge Drazewski’s subjective opinion that “he could be fair and impartial” was “of no moment.”

Whether a judge’s impartiality might reasonably be questioned is judged by an objective standard, not by the judge’s subjective opinion. . . .  Any objective onlooker with knowledge of the facts could reasonably question whether respondent Drazewski would have been inclined to rule unfavorably toward Mr. Foley due to his ongoing relationship with Mr. Foley’s wife.  Likewise, an objective onlooker could also suspect that respondent Drazewski would be motivated to rule favorably toward Mr. Foley out of guilt, at respondent Foley’s request, or in an attempt to preemptively thwart a later claim of judicial bias.  These scenarios, which need not be established here, nonetheless support the fact that respondent Drazewski’s impartiality could reasonably be questioned.

The Commission found that Judge Drazewski’s misconduct “was egregious.  The ethical dilemma he faced was one of his own making.  The decision to disclose or recuse was an easy and obvious choice to make, but was eschewed for personal and selfish reasons, and his continued deception cannot be ignored.”  Emphasizing that the sanction was “not because of the extramarital affair itself,” the Commission concluded that the affair was not limited to the respondents’ private lives because Judge Drazewski allowed it “to extend into his official capacity when he chose not to recuse himself from Mr. Foley’s cases and later attempted to mislead the chief judge.”

Having found that Judge Drazewski’s “misconduct was a clear violation of the Code,” the Commission determined that Judge Foley, “as a judge and an active participant in the undisclosed affair,” had knowledge that a violation had occurred and an obligation to “take or initiate appropriate disciplinary measures.”  But, the Commission noted, she did not disclose the affair to Mr. Foley, insist that she and Judge Drazewski reveal their relationship, urge Judge Drazewski “to recuse himself, seek help or advise the Chief Judge of the facts,” or take any other action.

The court administrator and several other judges testified that they were aware of the affair based on their observations that, for example, the respondent-judges were spending a lot more time together in each other’s chambers, frequently behind closed doors; that, during meetings, they were texting back and forth (they would “press[] buttons, look up at the other one, the other one would look at their phone, read it, press buttons and so on”); and their flirtatious conduct at a Law Day event sponsored by the bar association.  Attorneys also began talking about a relationship between the respondent-judges to the other judges.  The Commission concluded that, because “[j]udges, attorneys and court personnel were concerned about the respondents’ relationship, and it was a distraction to the administration of justice in McLean and Livingston County . . .  the respondents’ relationship . . . has had a negative effect upon the integrity of, and respect for, the judiciary.”  The Commission also stated that many judges in the circuit “struggled with their own ethical obligations as a direct result” of respondents’ misconduct, noting particularly that the chief judge was investigated by the Board “not because of anything she did—but because she was continually misled by respondent Drazewski” and because of Judge Foley’s lack of candor with Judge Robb.

 

Disqualification reprise

This term, the U.S. Supreme Court will again decide whether a state supreme court justice should have disqualified himself from a case — just over 6 years after it defined the objective and reasonable standard for disqualification necessary to implement due process and noted the difficulty of judges’ inquiring into their own “subjective motives and purposes in the ordinary course of deciding a case.”  In Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), reversing a decision of the West Virginia Supreme Court of Appeals, the Court had held that, where campaign contributions from the principal of one of the parties “had a significant and disproportionate influence” on the election of one of the justices on the state court, the risk of actual bias was “sufficiently substantial” to require that justice’s disqualification under the Due Process Clause of the U.S. Constitution.

Campaign conduct is one of the grounds for the disqualification argument in the new case the Court will hear after granting a petition for writ of certiorari from a decision in a capital criminal case from the Pennsylvania Supreme Court in Williams v. Pennsylvania.  The pleadings before the Court are at http://www.scotusblog.com/case-files/cases/williams-v-pennsylvania/.

In 1986, Ronald Castille was the elected district attorney in Philadelphia where Williams was convicted of murder and robbery and sentenced to death.  In 2012, under the Post-Conviction Relief Act, a trial court granted Williams a stay of execution and awarded a new penalty hearing after finding the trial prosecutors from the district attorney’s office had withheld exculpatory evidence.  The state appealed to the Pennsylvania Supreme Court where Castille was now Chief Justice; he denied Williams’s motion to recuse the same day it was filed and also denied his request that the motion be heard by the full court.  Thus, then-Chief Justice Castille (he retired in 2014) participated in the decision of a unanimous court that vacated the order for a new trial and reinstated the death penalty, finding that the petition for post-conviction relief had been untimely and did not meet the “governmental interference” exception to the timeliness requirement.  Williams v. Commonwealth, 105 A.3d 1234 (Pennsylvania 2014).

In his petition to the U.S. Supreme Court, Williams argued that the Eighth and Fourteenth Amendments are violated when a state supreme court justice declines to recuse himself from a capital case in which he had personally approved the decision to pursue capital punishment in his prior capacity as elected district attorney and even though he had been district attorney through the trial and initial appeal.  In addition, the petition argued, the Chief Justice’s disqualification was required because, during his campaign for the state supreme court, he had “expressed strong support for capital punishment, with reference to the number of defendants he had ‘sent’ to death row,” including Williams.

The Court also agreed to take a second question presented by the petition:  “Are the Eighth and Fourteenth Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive?”

In a completely unrelated development coincidentally involving a member of the same court, the Pennsylvania Judicial Conduct Board confirmed that “it has recently received materials from the Attorney General regarding emails involving Justice [Michael] Eakin and that it has commenced a new investigation in those matters.”  The e-mails, sent or received between Justice Eakin’s Yahoo account and attorneys in the Attorney General’s office, contain, “racial, misogynistic pornography” and a joke about a woman who was beaten by her husband, according to the Attorney General.  The Board’s press release notes that it had already conducted an investigation in 2014 “into allegations regarding inappropriate emails self-reported” by Justice Eakin and that previous complaint had been dismissed “based on information then available to the Board.”

Proceeding

Although the code of judicial conduct uses the term “proceeding” repeatedly, it does not define the term, probably because the meaning seems straightforward and obvious.  However, in recent judicial discipline proceedings, a judge argued that his release of an acquaintance from jail at the request of an attorney/friend did not constitute a “proceeding” within the meaning of the disqualification requirement.  The California Commission on Judicial Performance rejected that argument, defining “proceeding” in the process.  Inquiry Concerning Petrucelli, Decision and order imposing public censure (California Commission on Judicial Performance August 18, 2015).

The judge and Jonathan Netzer, an attorney, had been close friends for several years, through their mutual patronage of a cigar shop, membership in a men’s group referred to as “HBC” (for Having Big Cigars) that congregated at the cigar shop, and international trips together.  Businessman Jay Ghazal and the judge met about 10 years ago and became socially acquainted through their mutual membership in HBC and social gatherings at the homes of HBC members.

Ghazal was arrested one Friday night on charges of felony spousal abuse.  At approximately 9:00 a.m. Saturday morning, Netzer texted the judge, “One of our HBC members was arrested last night on a domestic violence claim.  He’s asked that I bail him out this morning.  In 22 years of practice, th[is] is a first for me.  Do you have any suggestions for me before I head down to jail?  Thanks!”  The judge promptly called Netzer, and Netzer told him that Ghazal had been in custody for 12 hours without being booked and was scared.  The judge called the jail and told a supervisor there that he would like, or would be comfortable with, an own-recognizance release of Ghazal.  As a result, Ghazal was released on his own recognizance.

The Commission found that the judge violated several canons in the code of judicial conduct, including the requirement that a judge disqualify from any proceeding in which his impartiality might reasonably be questioned.  Although the judge did not dispute that he would have been disqualified from Ghazal’s criminal case or any matter in which Netzer represented a party, he maintained that a telephonic own-recognizance release from jail does not constitute a “proceeding” from which he was disqualified.  (He did admit that the release itself, apart from the question of his impartiality, was judicial misconduct.)

Because the canon refers only to “proceeding,” rather than “pending” or “impending” proceeding, the Commission addressed whether a proceeding “includes matters that are expected to occur in court in the near future or is limited to court proceedings.”  Noting that the terminology section of the California code uses “proceeding” and “matter” interchangeably, the Commission concluded that the words “are intended to have the same meaning” and that “the usual or ordinary meaning of proceeding, both in a common and legal context, encompasses judicial action in ordering an OR release from jail.”

The [California] Supreme Court has described the term “proceeding” as malleable, the meaning of which depends on the context and subject to which it relates. . . .   “’[P]roceeding’ in a legal context generally refers to the conduct of judicial business.”. . .  Judge Petrucelli does not dispute that he was taking judicial action when he ordered Ghazal’s release. . . .

To the extent there is ambiguity, we interpret “proceeding” in a manner that effectuates the intent or purpose of the canon.  The purpose of a canon requiring disqualification as required by law is to “assure the parties and the public of the integrity and fairness of the judicial process.”. . .  Thus, disqualification benefits not only the parties, but the public as a whole. . . .  If “proceeding” is limited to actions pending in court, a judge with a disqualifying interest would not be disqualified from making probable cause determinations and signing search and arrest warrants. . . .  A narrow interpretation of “proceeding” that excludes judicial action taken before a criminal case is filed would defeat the intent of canon 3E(1) — to assure the public that judicial action will be exercised impartially.  This purpose is best accomplished through an interpretation of “proceeding” that encompasses pre-filing judicial determinations.

Concluding the judge was disqualified from the question of Ghazal’s release, the Commission found that, although the judge described Ghazal as an “acquaintance,” their relationship was sufficiently close that a person aware of the facts might reasonably entertain a doubt about his impartiality.  The Commission noted that the judge made the determination to release Ghazal based on his personal knowledge and opinion of Ghazal and material information about Ghazal’s relationship with his wife he learned from others in their mutual social circle.

Vexatious tactics

The ethical aspect of the problems that sovereign citizens can cause judges is illustrated by a series of opinions issued by the New York Advisory Committee on Judicial Ethics.  (According to the FBI, “sovereign citizens are anti-government extremists who believe that even though they physically reside in this country, they are separate or ‘sovereign’ from the United States.  As a result, they believe they don’t have to answer to any government authority, including courts, taxing entities, motor vehicle departments, or law enforcement.”)

One ethics inquiry arose when a pro se criminal litigant filed a multi-million dollar lien against a judge’s property based on the judge’s actions in the case.  The committee noted that, “unfortunately, this does not appear to be an entirely isolated incident but one of many instances in which individuals file numerous apparently frivolous complaints and/or incomprehensibly large liens against judges and court personnel, whether due to anarchic malice or disappointment with their litigation results.”  Thus, New York Advisory Opinion 2014-58 stated that the judge may take all lawful steps necessary to clear the title and pursue all lawful avenues to put an end to the vexatious lien filing and could use the court’s clerical and other resources in a pro se expungement proceeding.  A follow-up opinion (New York Advisory Opinion 14-119) added that the judge could use official court stationery in corresponding with the respondent, the court clerk, county clerk, and others in connection with the expungement.

Also in New York Advisory Opinion 2014-58, the committee addressed the issue whether the judge was disqualified from the underlying criminal case.  Noting the purpose of the lien “was ‘merely, to entangle the judge in the time-consuming and expensive legal process,” the committee emphasized that “such vexatious and abusive tactics must not be rewarded.”

They undermine the prompt and efficient operation of the judicial system and are inimical to the rule of law.  The Committee cannot overlook that, under the facts presented, the supposed “conflict” is entirely of the defendant’s own making.  That is, although the inquiry reveals no financial or economic relationship whatsoever between the judge and the defendant, the defendant nonetheless chose to file a lien against the judge as part of his/her litigation strategy.  If disqualification were automatically required here or if the judge were in any way constrained from taking all lawful steps necessary to clear his/her title and from pursuing all lawful avenues to put an end to a vexatious lien filing, it would only encourage and embolden imitators.

Thus, the committee concluded, “absent other factors, the determination whether a judge can be fair and impartial in a case after a party files a baseless multi-million dollar lien against the judge’s property is a matter confined solely to the conscience of the particular judge . . . .  In other words, under the facts presented, the inquiring judge may continue to preside over the criminal case, provided that the judge determines, in his/her sole discretion, that he/she can be fair and impartial.”  See also New York Advisory Opinion 2014-105 (a judge may continue to preside over the criminal case of a defendant who identifies himself as a member of the sovereign citizens group and has commenced a lawsuit against the judge and other public officials and agencies).

A subsequent opinion (New York Advisory Opinion 2014-121) advised that, even if a judge had disqualified herself from a case after a litigant who identified as a “sovereign citizen” filed a complaint about the judge, the judge may preside over new cases involving that litigant after the complaint has been dismissed as unfounded, provided the judge can be fair and impartial.

There is an article in the summer 2008 issue of the Judicial Conduct Reporter explaining that, “in general, a judge is not automatically required to recuse when a party or attorney files a complaint or lawsuit against the judge.”  All issues of the Judicial Conduct Reporter beginning from spring 1999 are available for download on the web-site of the Center for Judicial Ethics where there is also an index.