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.”


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.

Clear lines

Preparing to give a talk to some trial judges on disqualification reminded me of how murky the standards are for economic interests.  The rule in the model code and most states provides that a judge is disqualified if the judge knows that she has an economic interest in a party to the proceeding or in the subject in controversy (or if a spouse, domestic partner, parent, child, or any member of the judge’s family residing in the judge’s household has one).  Then, you look up the definition for “economic interest,” and it is “more than a de minimis legal or equitable interest.”  Then, you look up “de minimis legal or equitable interest,” and it is “an insignificant interest that could not raise a reasonable question regarding the judge’s impartiality.”  In other words, a judge is disqualified if he owns a big enough interest in a party to raise a reasonable question regarding his impartiality.

That does not provide much more guidance than the catch-all “impartiality might reasonably be questioned” standard.  The rule does not explain whether the significance of the interest is determined by the absolute dollar amount or the size relative to the judge’s overall worth, or to the company’s overall worth, or to the community average household worth.  Such ambiguity could result in judges with similar size interests in similar size companies reaching different decisions on when to disqualify.  Cf., Arkansas Advisory Opinion 1994-8 (a judge is not disqualified from a case in which a subsidiary of AT&T is a party when an estate for which the judge is the executor and a beneficiary holds approximately 1,000 shares of an equity income fund about 18% of which is invested in AT&T); Connecticut Advisory Opinion 2011-7 (a judicial official is disqualified from a collection case brought by a bank in which the judge owns approximately $25,000 worth of stock or bonds “despite the fact that the Judicial Official’s investment represented a miniscule percentage of the stock issued”); Virginia Advisory Opinion 2000-5 (1% or less of the outstanding stock in a publicly held corporation is usually de minimis unless the stock is of significance to the judge; “judges should be conscious that the public might view stock ownership as a disqualifying interest”).  See also Huffman v. Judicial Discipline and Disability Commission, 2 S.W.2d 386 (Arkansas 2001) (upholding the admonishment of an judge who entered an ex parte TRO at the request of Wal-Mart while he and his wife owned $700,000 in Wal-Mart stock; a dissenting justice noted the canons regarding disqualification for a financial interest “are confusing”).

The de minimis standard replaced a rule requiring disqualification when a judge owned an economic interest “however small” because the standard was too broad, albeit crystal-clear and easy to apply.  (That is still the standard for federal judges and judges in some states including Delaware and New Jersey.)

There are alternatives to too broad other than too vague, however.  Some states have specified what amounts trigger disqualification rather than making each judge on her own try to calculate what is de minimus.  In California, a disqualifying financial interest is defined as more than 1% or a fair market value exceeding $1,000.  In Colorado, more than a 1% interest or a fair market value exceeding $5,000 is disqualifying.  In Maryland, disqualification is required if the judge owns “(1) an interest as the result of which the owner has received within the past three years, is currently receiving, or in the future is entitled to receive, more than $1,000 per year; (2) more than 3% of a business entity; or (3) a security of any kind that represents, or is convertible into, more than 3% of a business entity.”

Although the “impartiality might reasonably be questioned” standard is necessary and necessarily general to address the myriad of unforeseeable circumstances that might effect a judge’s neutrality, when possible, conflicts that can be anticipated, like economic interests, should be addressed with helpfully specific rules.

Disqualification reform

Last week, the New York University Journal of Legislation and Public Policy, the Brennan Center for Justice, and the American Bar Association’s Center for Professional Responsibility jointly hosted a symposium entitled “Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton.”  There were many interesting discussions about the disqualification challenges facing state courts following not only Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), but alsoCitizens United v. FEC, 558 U.S. 310 (2010).

However, there was little discussion about what reforms states have recently undertaken to their disqualification procedures and standards.

As several speakers mentioned, in August 2014, the American Bar Association House of Delegates did adopt a resolution urging states to adopt judicial disqualification and recusal procedures that “(1) take into account the fact that certain campaign expenditures and contributions, including independent expenditures, made during judicial elections raise concerns about possible effects on judicial impartiality and independence; (2) are transparent; (3) provide for the timely resolution of disqualification and recusal motions; and (4) include a mechanism for the timely review of denials to disqualify or recuse that is independent of the subject judge” and “to provide guidance and training to judges in deciding disqualification/recusal motions.”

The Conference of Chief Justices supported the resolution.

The Center for Judicial Ethics has been keeping track of code and rule revisions related to judicial disqualification based on campaign contributions in a document currently kept on the “learn more about judicial ethics” page of www.ajs.org (but soon to move to the http://www.ncsc.org). It notes that five states have adopted disqualification rules for campaign contributions based on a specific amount or percentage, while 10 state supreme courts have adopted new disqualification rules that do not have specific triggers, but that expressly or impliedly incorporate the decision in Caperton, often by listing factors a judge should consider when faced with a disqualification question based on campaign contributions. For example, it notes that, effective July 1, 2014, the Pennsylvania Supreme Court adopted a new code that includes a Rule 2.11A(4) requiring disqualification when:

The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer.  In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial. There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution . . . is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.

The Center will continue to follow state reforms, both on disqualification standards and procedures in general and on rules related to campaign contributions specifically.  Follow this blog to keep up to date.

Disqualification and campaign contributions

The American Bar Association has adopted a resolution urging states and territories to adopt judicial disqualification and recusal procedures that “(1) take into account the fact that certain campaign expenditures and contributions, including independent expenditures, made during judicial elections raise concerns about possible effects on judicial impartiality and independence; (2) are transparent;
(3) provide for the timely resolution of disqualification and recusal motions; and (4) include a mechanism for the timely review of denials to disqualify or recuse that is independent of the subject judge.” The resolution also urges states “to provide guidance and training to judges in deciding disqualification/recusal motions.”

The Center for Judicial Ethics keeps have been keeping track of disqualification provisions related to campaign contributions in a document available on the “learn more about judicial ethics and discipline page” on the Center web-site.

Disqualification in routine matters

In case there had been any question, the New York Court of Appeals reiterated that a judge’s duty to disqualify applies in all types of proceedings, no matter how routine and even if uncontested. The Court explained:

The Rules Governing Judicial Conduct create no distinction between contested and uncontested/ministerial matters. The perception that these attorneys were in a position to be accorded preferential treatment is based on their relationships to the judge, not the type of proceedings.

The case was In the Matter of Doyle (New York Court of Appeals June 26, 2014), in which the Court, accepting the determination of the State Commission on Judicial Conduct, removed a judge for presiding over nine surrogate matters involving a lawyer who was her close friend and personal attorney; a lawyer who was or had been her campaign manager; and a lawyer who was her former attorney.  The judge had argued that, given the unique nature of surrogate’s court practice, where many proceedings are submitted on consent and the surrogate’s actions are often dictated by statute, she believed that there could be no appearance of impropriety or favoritism. The Court stated that the absence of an opposing party does nothing to lessen the appearance of impropriety and, “in such situations, the judge has an equal obligation to guard against the impression of favoritism.”