Ex parte communications:  “Convenience, happenstance, and habit”

Based on a special committee report, the Judicial Council of the U.S. Court of Appeals for the 7th Circuit publicly admonished a judge of the U.S. District Court for the Central District of Illinois for his practice of exchanging ex parte communications with the U.S. Attorney’s Office.  In re Bruce, Memorandum (7th Circuit Judicial Council May 14, 2019).  The Council also ordered that the judge remain unassigned to any matters involving the Office until September 1, watch a Federal Judicial Center training video, and read excerpts of the Code of Conduct for U.S. Judges.

Before being appointed in 2013 to the U.S. District Court for the Central District of Illinois, the judge worked for 24 years in the U.S. Attorney’s Office in the Central District of Illinois and had “unsurprisingly” formed friendships with several people working in that office.  After being appointed, the judge remained friendly with many people in the office, including paralegal Lisa Hopps.

In December 2016, Hopps complained in an e-mail to the judge about his absence from a going-away party for U.S. Attorney Jim Lewis, and the judge responded that he had missed the party because he was presiding over the trial in U.S. v. Nixon.  The judge said one of the Assistant U.S. Attorneys in the case was “entirely inexperienced” and criticized that attorney for repeating “the bull***t” from the defendant’s testimony and turning a “slam-dunk” case into a “60-40” one for the defendant.  The judge mentioned his boredom and added that he “work[s] hard not to try” cases, which he testified referred to not acting as an advocate even when a case is being poorly tried.

In late 2017, Hopps shared these e-mails with Assistant U.S. Attorney Timothy Bass after the judge found that Bass had misled the court in a high profile criminal case in which the defendant was a former member of Congress.  Bass then notified other personnel in the U.S. Attorney’s Office about the e-mails, and the Office disclosed the e-mails to Nixon’s counsel.  Nixon filed a motion for a new trial based on the e-mails, which is still pending.

After a review, the U.S. Attorney’s Office discovered additional e-mails between the judge and members of the Office in other cases and disclosed the e-mails to the defense in those cases.  The Federal Defender in the Central District, whose office represented the defendants in many of the cases, filed a complaint.

In August 2018, the Illinois Times published an article titled, “Federal judge engaged in ex parte talk.”  Other news outlets also reported the story, and the “coverage and its aftermath prompted” the Chief Judge of the 7th Circuit to file a complaint and prompted the Central District’s Chief Judge to remove the judge from all cases involving the U.S. Attorney’s Office.

The special committee found that the judge frequently had ex parte communications with employees of the U.S. Attorney’s Office about requests for warrant approvals, draft plea agreements, jury instructions, docketing issues, scheduling matters, and criticisms of individual Assistant U.S. Attorneys.  The special committee also found that probation officers regularly contacted the judge directly and copied the Office but not defense counsel on those e-mails.  The committee also found that the judge occasionally had ex parte communications with the Office after he had entered judgment in a criminal case, for example, congratulating Assistant U.S. Attorneys when they prevailed on appeal in cases over which he had presided.  Most of the communications were by e-mail, but some were in person or over the phone.

Further, in addition to the Nixon-related e-mails, the committee found that the judge had communicated ex parte about a second pending trial with the U.S. Attorney’s Office.  After the judge and Assistant U.S. Attorney Elly Perison had a misunderstanding during a pretrial-conference about what documents had been filed in U.S. v. Gmoser, Peirson sent the judge a series of docket entries, copying his clerk and defense counsel.  In a private response, the judge stated, “My bad.  You’re doing fine.  Let’s get this thing done.”  During the hearing, the judge explained that his comment was only intended to comfort Peirson after the misunderstanding.  Disclosure of this e-mail  prompted a defense motion for a new trial, which remains pending.

The committee noted that there was no evidence that the judge’s ex parte communications with the U.S. Attorney’s Office “impacted any of his rulings or advantaged either party” or were on the merits of cases, with the exception of the Nixon-related and appeal-related e-mails.  The judge “admitted that some of his communications were flatly inappropriate and others were unwise.”  However, he initially claimed that the e-mails about scheduling and other ministerial matters were not objectionable, arguing that ex parte communications about minor matters were “‘permissible for the efficient operation of the court,’” were the “default,” and were part of the “culture” of the courthouse that went back at least to his predecessor as district judge.

However, although the code allows an ex parte communication for scheduling “when circumstances require it,” the special committee emphasized that, “’when circumstances require it’ is key.  As Judge Bruce now concedes, the majority of his ex parte communications did not ‘require’ the exclusion of defense counsel; they were often a matter of simple convenience, happenstance, and habit.”  The committee acknowledged that “certain circumstances will require ex parte communications, including genuine emergencies and emails relating to warrant applications,” but stated that no good reason had been provided why defense counsel should not have been included in “the routine scheduling and ministerial discussions” the judge had had with the Office and that the communications violated the code even if the practice was attributable to courthouse culture.

The special committee disagreed with the judge’s argument that his sanction should be private, concluding that a public response was required given the “public criticism of Judge Bruce’s ex parte communications, found in news reports and defense motions for new trials.”  The committee stated that “the public heeds the judiciary’s decisions on the belief that it operates independently and with integrity, and this case suggests that such belief in Judge Bruce’s work on cases involving the Office may have waned.”

However, the committee also emphasized that it was not condemning the judge’s “ongoing friendships with members of the Office.  Such relationships are normal, . . . and there is ample guidance on when recusal or disqualification based on friendship is appropriate . . . .  The bottom line is that a judge’s closeness to individuals having cases before him simply does not excuse ex parte communications prohibited by judicial norms and the Code of Conduct.”  Although the committee noted that “some interviewees expressed a concern that Judge Bruce remained too friendly with members of the Office,” it concluded that “no evidence suggested that Judge Bruce had an inappropriate relationship with anyone at the Office.”

 

“Misguided and serious” ex parte communications and independent investigations

Based on the recommendation of a judicial conduct panel, the Wisconsin Supreme Court suspended a judge for 5 days without pay for (1) initiating an ex parte communication with a prosecutor about plea negotiations in 1 case and (2) using the internet to independently investigate a defendant prior to sentencing in a second case.  Judicial Commission v. Piontek, Opinion (Wisconsin Supreme Court May 21, 2019).  The judge had admitted the allegations in the complaint filed by the Judicial Commission.

(1) The judge set a criminal case against S.S. for trial on March 4, 2015.  Sometime before December 3, 2014, the prosecutor visited the judge in his chambers seeking an adjournment of the trial.  On December 3, the judge telephoned the prosecutor, without including defense counsel or giving defense counsel notice.  During the 3-minute-and-7-second phone call, the judge told the prosecutor that he wanted S.S.’s trial to go forward on the scheduled trial date; that any plea negotiation should include S.S. being convicted of a felony; and that people like S.S. involved “in scams like this” need to be stopped.  The judge never disclosed this conversation to S.S. or S.S.’s attorney.

In a letter to defense counsel on January 29, the prosecutor summarized his phone call with the judge.  Shortly thereafter, the prosecutor gave the judge a copy of the letter.  Only after receiving the prosecutor’s letter did the judge recuse himself from the case.

During the Commission’s investigation, the judge at least twice denied the assertions made in the prosecutor’s letter.  In a response letter, the judge denied that he initiated the phone call to the prosecutor and denied making the statements the prosecutor attributed to him.  In response to the notice of formal proceedings, the judge denied that his ex parte conversation with the prosecutor involved discussions of plea negotiations.  Only later, when he filed his response to the complaint, did the judge admit that he initiated the phone call and that he made “off-handed comments about the manner in which he believed the case should be resolved.”

(2) In June 2014, P.E., a former nurse, pled guilty before another judicial official to 3 counts of delivery of non-narcotic controlled substances.  A pre-sentence investigation was ordered, and the matter was scheduled for sentencing before Judge Piontek on October 6, 2014.

Because he believed that P.E. was untruthful in her comments to the presentence investigation writer, the judge independently investigated on the internet P.E.’s nursing licenses and related matters in several states.  From that research, the judge incorrectly deduced that P.E. had never been licensed as a nurse in Illinois.  The judge did not provide the parties or their attorneys with notice of his intent to conduct the investigation, the nature of his investigation, or its results.

When sentencing P.E., the judge relied on the incorrect information he had obtained from the internet regarding P.E.’s Illinois nursing license.  When P.E. attempted to provide information about her Illinois license, the judge told her that her “lies are getting [her] in trouble,” suggested that she “close [her] mouth,” stated that her “license in the State of Illinois does not exist,” and said that he did not want any further comment from her.

Reversing the judge’s order denying resentencing, the court of appeals concluded that the record was inconsistent with the judge’s assertion that he did not rely on the misinformation from his independent investigation and, therefore, that the judge had denied P.E. her right to be sentenced based on accurate information.  The court remanded for resentencing before a different judge.

In his brief to the panel, the judge stated that “long before his formal appearance before the Judicial Commission, [he had] ceased conducting any independent factual research in cases before him.”  Based on that statement, the panel found that the judge had “implicitly conceded” that his independent factual investigation in the P.E. case was not isolated.

The Court concluded that a suspension was appropriate, rather than a reprimand as requested by the judge.  At the time of his misconduct, he had been a judge for 2 years.  The Court explained:

Regardless of his newness to the bench or the weight of his caseload, Judge Piontek’s ex parte communication with the prosecutor on the merits of a criminal case was obviously unethical; even the newest and busiest judge must know as much.  In addition, Judge Piontek’s independent investigation concerning P.E.’s nursing licenses plainly violated his duty of neutrality; it is clearly improper for a judge to both conduct an independent investigation and to fail to give a party a chance to respond to the judge’s misinformed allegations based on that investigation.

The Court also noted its concern that the judge’s “initial denials and later defenses of his conduct suggest that, for much of these proceedings, he failed to fully appreciate the seriousness of his misconduct and its impact on the judicial system.  Simply put, this was not a close case under the undisputed facts, and a reprimand, as Judge Piontek requests, would be an insufficient response.”

The Court concluded that a suspension at the low end of the 5-15 day range recommended by the panel was warranted, “acknowledging that the imposition of discipline is not an exact science” but finding that the judge’s conduct, “while misguided and serious” was not as egregious as conduct that had resulted in 15-day suspensions in previous cases.

Independent factual investigations IRL

Although judges’ using the internet or social media to independently investigate facts at issue in cases has been a hot topic recently (see discussion here, for example), judges still violate the prohibition the old-fashioned way as a recent judicial discipline case demonstrates.

The Wisconsin Supreme Court suspended a court commissioner for 15 days without pay for speaking with the police chief and reviewing the police file about the conflict between neighbors behind a pending case and then falsely telling the parties that law enforcement and the courts had agreed that any further calls to the police would result in all involved receiving disorderly conduct tickets that would be sustained regardless of the circumstances.  In the Matter of Calvert (Wisconsin Supreme Court June 15, 2018).

In September 2015, as part of an ongoing dispute between next-door neighbors, a petition for a harassment injunction and a request for a temporary restraining order was filed alleging that the respondents had repeatedly harassed the petitioners, including pointing surveillance cameras at their house.  Before holding a hearing or deciding whether to enter a TRO, the commissioner, on his own initiative, went to the police station and obtained from the police chief a summary of the conflicts between the parties and their contacts with the police department.  The police chief told the commissioner that he had visited the respondents’ residence and that there were no cameras pointed at the petitioners’ property.  The commissioner also reviewed the neighbors’ “contact file” kept by the police department, including police statements, and asked the police chief if there was any basis for a citation.

In denying the petitioners’ request for a temporary restraining order, the commissioner considered the information provided by the police chief and in the police file.

At a hearing regarding the preliminary injunction, after the testimony of several witnesses and arguments from both sides, the commissioner denied the request without first disclosing his contact with the police.  The commissioner then stated:

What is going to happen, though, is that anything between these two neighbors is going to stop as of today.  Period.  End of story.  And how it’s going to stop is this:  I’ve already talked to [the police] chief [ . . . ] as of yesterday.  What’s going to happen is, if you call the Oconto Police Department, or the Sheriffs Department, or, you call them, they are going to come out, they are not going to have to listen as to what took place because if they get called out to either of your places, complaining about each other, what’s going to happen—they’re going to issue mutual disorderly conduct tickets.  So, I don’t care who calls.  You call, either of you call, they are going to come out, they are going to issue a disorderly conduct to you and they are going to issue a disorderly conduct to you.  Alright?

Now, if you wish to take that ticket into municipal court, and argue about whether you were disorderly or not, go ahead because I’ve already talked to [the municipal judge] in Oconto [ . . . ] and I’ve told him the problem with this situation, enough is enough, it’s been going on for twelve/thirteen years, I’m putting an end to it, and I told him, “I don’t care what either one of you say.”  He’s going to find you guilty and issue you a fine.  He knows that, he’s with it, he’s tired of it, the Police Department’s tired of it, alright?  If you want to de novo his decision, which you have a right to do[,] under the statute[,] upon finding you guilty, that’s fine because it’ll get de novo’d and it’ll get de novo’d up here to me and guess what’s going to happen?  I’m going to uphold it and you’re both going to pay a fine.

Now, with regard to a court commissioner, you have a right to de novo that, too.  Go ahead because I’m gonna tell either one of these circuit court judges, “Enough is enough.  This is how we’re going to handle it.”  I want nothing further going on.

In fact, the commissioner had not directed the police chief to issue mutual disorderly conduct citations to the neighbors regardless of fault and the municipal judge had not agreed to find the neighbors guilty regardless of fault.

The Court emphasized that the misconduct was “undeniably serious,” stating “a judge’s objectivity and impartiality are critical to the proper functioning of the judicial system.”  It explained:

[The commissioner’s] behavior was far from objective and impartial.  He independently investigated the facts of a case pending before him—an effort that included engaging in an ex parte communication with the police chief.  He then lied to the parties in a particularly manipulative manner, falsely claiming that he had communicated with individuals in the judicial and law enforcement systems in such a way that the parties were doomed to failure and future legal troubles should they ever seek additional recourse.  We cannot abide such assurances by a judge to rig the judicial and criminal justice systems against its participants.

 

Notice and opportunity: draft orders

The Iowa Supreme Court recently issued a supervisory order stating that “no judge or magistrate shall communicate with an attorney about preparing a proposed order or decree without including all other attorneys or self-represented litigants in the case in the communication.”  The order noted that it “does not change permitted practices, but ensures that the rules and principles regarding ex parte communications are followed.”

The Court explained:

Ex parte judicial communications include a judge’s request to an attorney to prepare a proposed decree or ruling without including all opposing counsel or parties in the communication.  The practice of attorneys, as officers of the court, providing proposed findings of fact and conclusions of law can greatly assist judges in the preparation of orders, particularly in complex or technical cases.  Yet, knowledge of and notice to all parties or attorneys is the touchstone that permits that practice to occur. . . .   The overarching prohibition against ex parte communications must be carefully followed.

The Court emphasized that “just a single violation of this admonition by one judge in one case threatens not only the fair resolution of that case but the reputation of the bench, bar and entire system of justice.  All judges are obligated to conduct their work in a way that preserves this reputation.”

The order followed a report in the Des Moines Register that a now-retired judge had admitted that “a couple hundred” of his rulings were written by attorneys on the winning side without the knowledge of opposing counsel.  He made that admission during a deposition in one of the cases in which he had apparently followed that practice.

In the 1990 version of the American Bar Association’s Model Code of Judicial Conduct, a comment stated that “[a] judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.”  In the 2007 code revisions (which Iowa and many other states have adopted), the ABA deleted that comment because, according to the reporters’ notes, “the permissibility of the practice was so free from doubt as to render the Comment unnecessary.”  However, by deleting the comment, the revision omitted the conditions that validate the practice and need to be emphasized:  providing all parties with notice and an opportunity to respond.

The Indiana Judicial Qualifications Commission issued an advisory opinion after receiving a complaint about a judge who, in a contested support hearing, telephoned the attorney whose client had prevailed, outlined his decision, instructed him to prepare an order reflecting that decision, and then signed the order drafted by the attorney after making some minor changes.  Indiana Advisory Opinion 1-1998.   The attorney for the other party was unaware of the judge’s decision and his instruction to opposing counsel until after the order was signed.

The Commission explained that the judge’s conduct had given one party’s lawyer an advantage.

Even assuming the judge’s decision was firm, and the conversation involved only its announcement and instructions to prepare an order, the party whose lawyer was not asked to participate justifiably would question the fairness of the conduct and might question whether the conversation, from which his or her attorney was excluded, went beyond a simple announcement and might have involved further argument or comment on the merits.  Then, subsequent to the ex parte conversation, for a period of time, one party only was privy to the outcome.  The potential for abuse is great and, even where the informed party has no occasion or reason to exploit that information, the negative impact on the other party’s perception of the judge’s neutrality and impartiality is rightfully compromised.

The Commission concluded:

A judge must never announce his or her decisions to one party, to the exclusion of others, except in extraordinary circumstances.  A judge who is not inclined to ask for proposed orders from all parties prior to rendering the decision, and who, instead, prefers to instruct only the prevailing party to prepare a proposed order conforming with the judge’s decision, must give that instruction under circumstances in which both parties are made aware of the decision at the same time.

See also South Carolina Advisory Opinion 1-1994 (after a judge has ruled in open court and directed one attorney to prepare an order in accordance with instructions, a copy of the proposed order must be sent to opposing counsel at the same time and by the same means as to the judge, and the judge may not discuss the order with the drafting attorney ex parte except for minor, non-substantive corrections).

In Disciplinary Counsel v. Stuard, 901 N.E.2d 788 (Ohio 2009), the Ohio Supreme Court publicly reprimanded a judge for entering a sentencing order drafted by an assistant prosecutor following ex parte communications; the Court also publicly reprimanded the assistant prosecutor.

The judge had presided over a capital murder trial in which a jury found the defendant guilty of 2 counts of aggravated murder, among other crimes, and recommended a sentence of death.  Between the penalty-phase hearing and the sentencing hearing, the judge engaged in 4 ex parte communications with Kenneth Becker, one of the prosecutors.

In the first communication, the judge asked Becker to prepare an opinion sentencing the defendant to death and gave him 2 pages of notes on the aggravating and mitigating factors.  The second ex parte communication occurred the next day when the judge found on his desk a 17-page draft of a sentencing opinion.  In a third ex parte communication later that day, the judge asked Becker to make several corrections.  Becker made the corrections and also incorporated  editorial suggestions from another prosecutor in the case.  In the fourth communication, the judge received the corrected version of what became his opinion.

During the sentencing hearing, as the judge read his opinion from the bench, defense counsel, who did not have a copy of the sentencing order, noticed that one of the prosecutors seemed to be silently “reading along” with the judge, turning pages of a document in unison.  In a sidebar discussion, the judge acknowledged that he had given his notes to Becker and instructed him to draft the sentencing order.

On appeal, the Ohio Supreme Court held that the judge committed prejudicial error by delegating responsibility for the content and analysis of his sentencing opinion to prosecutor; the Court  vacated the death sentence, and remanded the case with instructions for the judge to personally review and evaluate the appropriateness of the death penalty.

Recorded conversations

In 2011 and 2012, the FBI was investigating Philadelphia Municipal Judge Joseph Waters, including wiretapping his telephone communications.  Eventually, he pled guilty to federal mail fraud and honest services wire fraud for asking other judges for favors on behalf of campaign supporters.  In January 2016, the Pennsylvania Court of Judicial Discipline removed him from office.  In October 2016, that court removed former judge Joseph O’Neill based on his guilty plea to lying to a federal agent for denying that he had not been contacted by then-judge Waters about a case.

Last week, the Pennsylvania Supreme Court affirmed the removal of 2 more judges for their conversations with then-judge Waters and related misconduct.  Judge Angeles Roca was removed for seeking his advice about her son’s case and acquiescing in his offer to communicate ex parte with Judge Dawn Segal, who was handling the case.  In re Roca (Pennsylvania Supreme Court November 22, 2017).  Judge Segal was removed for listening to then-judge Waters’ requests for favorable treatment for parties in 3 cases (including that of Judge Roca’s son) and finding in favor of those parties.  In re Segal (Pennsylvania Supreme Court November 22, 2017).  Under the state constitution, the Court reviews whether sanctions imposed by the Court on Judicial Discipline are “lawful.”

The FBI recorded Judge Segal talking with then-judge Waters about 1 criminal case and 2 small claims case.  In the discipline proceedings, the parties stipulated that the recorded telephone conversations demonstrated that then-judge Waters used his position to request special consideration for litigants in an attempt to influence Judge Segal’s decisions; that Judge Segal entertained the ex parte requests for favorable treatment; and that her decisions ultimately favored those litigants.  In each case, the judge had called then-judge Waters and told him that she had complied with his request, for example, stating, “I figured it out and I took care of it” about the small claims case involving Judge Roca’s son.

The Court rejected Judge Segal’s argument that she had not ruled any differently based on the conversations and, therefore, had not committed misconduct.  The Court emphasized that the judge “knew that she had been approached by a corrosive influence, yet she remained in her decisional role while acting as if she was acceding to the improprieties.  Litigants can have little confidence that a judge proceeding in this way is rendering fair and impartial rulings; rather, they may reasonably believe that such a jurist is doing precisely what she said she was doing by engaging in favoritism.”

In June 2012, the FBI recorded Judge Roca asking then-judge Waters for advice after Judge Segal had denied her son’s pro se petition to open a $5,000 default judgment entered against him when he did not appear for a hearing on a complaint for failure to pay a business privilege tax.  Waters offered to talk to Judge Segal if a motion for reconsideration was filed.  After her son filed the motion, Judge Roca called then-judge Waters and, based on their conversation, understood that he would call Judge Segal on behalf of her son.  That day, Judge Segal reviewed the petition for reconsideration, issued a rule to show cause why the relief should not be granted, and then called Waters.  (The default judgment was ultimately vacated, and the case was withdrawn upon payment of $477 in taxes.)

On appeal, Judge Roca did not challenge the finding that she violated the code of judicial conduct, brought the judicial office into disrepute, and prejudiced the proper administration of justice.  However, she argued that removal was not lawful in light of precedent and the facts of this case, relying on decisions in which the Court of Judicial Discipline had imposed a lesser sanction for misconduct that “she views as equivalent to (or worse than) her own.”

The Pennsylvania Supreme Court acknowledged that the “concept that the penalty decided upon by the CJD should be subject to a proportionality requirement is not without some appeal” but stated “no such mandate is contained, or even suggested” in the constitution.  The Court held that the Court of Judicial Discipline “has wide discretion to fashion the appropriate penalty once it finds a predicate violation” and that “[s]imilarity of misconduct does not require identicality of sanction, for there are other factors that bear on that decision, including mitigating and aggravating considerations and how a particular jurist’s misconduct undermines public confidence in the judiciary.”

The Court did hold that, “[b]ecause the CJD may lawfully impose discipline warranted by the record, the unavoidable corollary is that a sanction which is not warranted by the record is not lawful and, as such, may be disapproved by this Court,” permitting the Court “to perform a final check in cases of an infraction met with an unreasonably harsh penalty completely out of proportion to the misconduct involved.”  The Court held that regardless whether it would have removed the judge from office if it were deciding in the first instance, her removal was not unwarranted by the record.

In a dissent, 1 justice acknowledged that no 2 “cases are perfectly identical,” but stated that the challenge of analyzing, analogizing, or distinguishing one case by reference to prior cases does not relieve the Court of Judicial Discipline “from its inherent obligation to do so.”

Absent fidelity to stare decisis, the CJD may arbitrarily sanction a jurist and, without the availability of meaningful appellate review, this Court has no ability to reverse it.  At a minimum, it must be this Court’s function, when reviewing a CJD sanctions ruling, to confirm that in reaching its decision, the lower court has engaged in a lawful judicial process which by necessity involves the application of stare decisis.  In the instant matter, the CJD removed an elected judicial official from office.  It imposed this sanction without any meaningful discussion of prior precedent.  As such, the sanction imposed in this case is ipso facto unlawful.

The dissenting justice argued that the removal order should have been vacated and remanded “for an opinion in which the CJD thoroughly examines its precedent before imposing a sanction in this case (and would require the same in every case it adjudicates).”  The same justice dissented for the same reasons in In re Segal, noting that, although the 2 judges’ misconduct differed materially, the Court of Judicial Discipline imposed the same sanction “while employing substantially identical language . . . .”

The trouble with trust

One of the many problems with ex parte communications is that judges are exposed to information or arguments that are by definition one-sided.  Judges rely on such communications at their peril – and to the detriment of the parties and the judicial process.

This inherent untrustworthiness was demonstrated in a recent judicial discipline case from Mississippi involving a chancellor (Chancellor Shoemake) who had signed ex parte orders that resulted in the dissipation of assets from a ward’s estate.  The orders were entered at the request of the conservator’s attorney (McNulty), who was also the chancery court’s law clerk and the guardian ad litem for the ward and who was appointed by Chancellor Walker.  Contrary to chancery court rules, the requests for relief were not sworn to by McNulty or signed by the conservator (the ward’s mother).  The orders benefited the contractor who was building a handicapped-accessible home for the ward; the contractor was Chancellor Walker’s nephew.

The Mississippi Supreme Court acknowledged that, “in ex parte chancery court proceedings, it is common, and usually legitimate, for attorneys to confer with chancellors concerning the routine management of the business of wards.”  However, noting that an attorney’s signature alone, without additional notarization, was insufficient support, the Court concluded that Chancellor Shoemake erred by granting “the relief requested without further investigation into the matters beyond what McNulty presented to him.”  Commission on Judicial Performance v. Shoemake, Opinion (Mississippi Supreme Court April 14, 2016).

For Shoemake to sign orders without further consideration of the facts at hand was a disservice to the ward and conservatorship.  That the conservatorship was originally assigned to Walker is beside the point.  When Shoemake signed the orders, he affected Victoria’s estate.  Had Shoemake made a basic inquiry into who was representing the ward’s interests, and not just the Conservator’s interests, he quickly would have discovered McNulty’s dual roles as both Victoria’s guardian ad litem and as the attorney for the conservator for the conservatorship.

The Court concluded that Chancellor “Shoemake contributed to the overall mismanagement of Victoria’s conservatorship and was directly responsible for the unchecked dissipation of $23,000 from her accounts.  Because chancellors serve as the ultimate guardians of their wards’ estates, his negligent management of the petitions and orders has eroded the confidence the public should hold in the judiciary.”

On the question whether the chancellor’s conduct was willful, the Court included the Commission’s “excellent response” from its findings of fact.

Respondent testified that he was influenced by another judge to involve himself in the Newsome Conservatorship.  Respondent’s actions when signing the orders presented to him by McNulty may not have been intended to commit harm to the ward, but they did; and his actions were not performed with the degree of diligence required of a chancellor overseeing a ward’s estate.  Respondent testified that he trusted and had faith that lawyers presented him with documents that were truthful and in the best interest of their clients.  However, by relying on lawyers to be ethical and forthright, and failing to follow the Uniform Chancery Court Rules, and his responsibilities as a “superior guardian,” Respondent failed in one of his most important roles as a chancellor.

The Court suspended Chancellor Shoemake without pay for 30 days, fined him $2,500, and reprimanded him.  The Court removed Walker last year after he pled guilty to felony obstruction of justice for attempting to influence a witness before a federal grand jury investigating his handling of the conservatorship.  Commission on Judicial Performance v. Walker, 172 So. 3d 1165 (Mississippi 2015).

Unpleasant position

A recent judicial discipline decision is a reminder that, in addition to rebuffing attempts by attorneys and parties to communicate privately, a judge must resist the temptation to initiate an ex parte communication.  The California Commission on Judicial Performance admonished a judge for instigating a conversation with a deputy district attorney about a case just after the trial but before sentencing.  In the Matter of Scott, Decision and order (February 17, 2016).  The Commission noted that the judge placed the deputy district attorney “in the unpleasant position of having to report the conversation to her supervisor.”

Shortly before noon on February 27, 2015, a jury found a defendant guilty in a case tried before the judge by Deputy District Attorney Kelly Meeker.  That afternoon, Meeker returned to the courtroom to pick up equipment she had left there; the judge was seated at the court reporter’s desk, chatting with the bailiff and a court clerk.  Meeker said hello to everyone and began to gather her things.  The judge stood to leave and asked Meeker to come speak to him when she had a second.  Meeker asked when he would like her to drop by.  The judge responded, “Right now.”  Meeker put down her equipment and walked to the judge’s chambers.  While standing in the doorway, she told the judge that she was really looking forward to getting his feedback on her performance in trial, but that several people in her office had told her that it was necessary to wait until after sentencing.  The judge told Meeker not to worry and that they would be “discreet,” or words to that effect.  The judge then closed his chambers door and told her to sit down.

Despite several hints by Meeker that she wanted to leave (for example, that she needed to attend conferences in another courtroom), the judge continued to talk to her, told her that she had done a great job in the trial, and gave her feedback on her trial technique, for example, suggesting that she make her direct examinations shorter and be aggressive on rebuttal.  The judge and Meeker also critiqued the deputy public defender’s performance.  Finally, they discussed what sentence might be imposed.

As Meeker left the judge’s chambers, he said, “This conversation never happened.”

Shortly afterward, Meeker reported the conversation to her supervisor.  A news article about the matter appeared in the San Jose Mercury News on March 17.  The judge sent a self-report to the Commission that it received on March 27.

The judge had urged the Commission to take into consideration that he was a new judge at the time of the misconduct having just taken the bench in January 2015.  However, the Commission noted that the judge’s statements demonstrated that he knew that his conversation was improper and that he was aware from his experience as an attorney that ex parte communications with judges are improper pursuant to the State Bar Rules of Professional Conduct.