Interrupt, advise, end, and notify

Accepting a stipulated agreement and consent to discipline, the New Mexico Supreme Court publicly censured a judge for engaging in 2 ex parte phone calls with a criminal defendant’s father, releasing the defendant following those ex parte calls, and failing to notify the prosecution of the calls. Inquiry Concerning Anaya (New Mexico Supreme Court December 13, 2021).

On Friday, April 3, 2020, the judge received an ex parte phone call on his personal cell phone from Fernando Gallegos, the father of Danielle Gallegos, who had been arrested that day on multiple violent felony offenses. On Saturday, April 4, the judge received and engaged in a second ex parte phone call on his personal cell phone from the father. After receiving the second call, the judge signed an order of release, and Danielle was released that Saturday.

The judge’s release of Danielle disregarded a well-established Santa Fe County Magistrate Court protocol that directed the judge on call over the weekend not to release alleged violent offenders until the next business day to allow the district attorney’s office an opportunity to review the charges and determine if a motion for pre-trial detention was appropriate. The judge had never before violated that protocol.

The Court acknowledged that it was understandable that the judge “might receive an ex parte phone call from a litigant or the representative of a litigant from time to time,” noting that New Mexico judges face challenges when working in the many close-knit communities in the sparsely populated state. The Court emphasized the importance of judges in these close-knit communities maintaining “the independence and integrity of the judiciary to preserve the prestige of the office and the public’s confidence in the judiciary.” It explained:

If a judge receives an attempted ex parte communication, it is the judge’s responsibility to not allow or engage in such communications. The judge should interrupt to advise the person that such communications are prohibited and redirect the person to pursue their matter through proper channels, such as through the filing of motions. The judge must also promptly notify all parties of the communication. By adhering to this requirement, the judge may effectively avoid any appearances of impropriety, as well as actual instances of impropriety.

The Court stated that, when it became apparent Mr. Gallegos’ first call concerned the judge’s upcoming review of Danielle’s conditions of release, the judge should have interrupted the call, told Mr. Gallegos that it was improper to call the judge about the matter, and told him “to consult with an attorney and/or to have the defendant file a motion,” and then the judge should have ended the call and “promptly notified the District Attorney’s Office and the defendant of the ex parte phone call and what was discussed.”

Further, the Court stated, when the judge received the second call, on recognizing the telephone number, the judge should have ignored the call or at least, when he answered it, advised Mr. Gallegos that he could not speak about the case without the prosecutor present and then ended the phone call and notified the prosecutor.

The Court explained why the judge’s release of Danielle after the 2 calls was improper.

The Respondent’s actions deprived the prosecutor of his right to notice and to be heard. He violated his own court’s established protocol concerning weekend arrests based upon these two ex parte calls. Respondent’s actions also created the improper appearance that Respondent abandoned his role as a neutral and detached, independent, fair, and impartial fact finder. Respondent’s conduct furthermore undermined the public’s confidence in our state judiciary by compromising the fundamental integrity, impartiality and independence upon which our judicial system is based. . . .

Although recognizing that the court’s protocol was not a law, the Court explained that the protocol was designed to prevent “the very thing” that the judge had done: deprive “the state’s attorney of the opportunity to review the case before releasing an alleged violent offender into the community. Respondent has an affirmative duty . . . to comply with all court rules and procedures. . . . . Court protocols are set in each court and are specific to each court to help ensure the proper administration of justice. Failing to abide by protocols, policies and/or rules set by a judge’s court threatens to undermine the effective administration of justice in that court and could place the alleged victim(s), witness(es), or the community at risk of harm.”

See “Remedy for an ex parte communication” in the summer 2021 issue of the Judicial Conduct Reporter.

Gifts, art, pronouns, and ex parte communications

In a recent opinion, the California Supreme Court Committee on Judicial Ethics Opinions advised that judges “may exchange modest gifts with their courtroom staff.”  California Expedited Opinion 2021-39. However, it explained ed that judges should “treat all staff equally and maintain proper decorum” should not pressure staff to reciprocate.  Moreover, the opinion added that judges should not give gifts that are “offensive, demeaning, or otherwise inappropriate” or gifts that could “be perceived as harassment.”

The opinion noted that “acknowledging birthdays, holidays and other special occasions can be an appropriate way to build morale among a judge and his or her staff.”  However, it emphasized that, “to the extent reasonably possible, judges should endeavor to treat their staff equally.”  For example, it stated that judges should not give “significantly disproportionate” gifts to different staff members or only “celebrate the birthdays of certain of their staff while ignoring the birthdays of others.”  Moreover, it advised judges to be “sensitive to and respect the fact that staff may come from different faiths and traditions” and “to the extent reasonably possible, . . . tailor any gifts that they give to align with the heritage and belief systems of their staff.”

The opinion advised judges to tell their staff that “there is no obligation or expectation” that they will give the judge a gift in return for the judge’s gift and warned judges not to implicitly pressure their staff for such an exchange, noting that staff are more likely to feel that reciprocation is required if the judge’s gift is expensive or extravagant.  Thus, the committee directed judges to “keep any gifts modest” reflecting “the power and financial imbalances between themselves and their staff.”  Further, it stated that “judges should not solicit staff for a group gift.”

The committee also stated that judges should not “give gifts that are offensive or demeaning,” for example, a gift that is “obscene, profane or degrading in any way to the recipient or to others” or that is a practical joke.  Finally, it stated that judges should not “give gifts that would be perceived as harassing, for example if given in the expectation of fostering a romantic or sexual relationship with a staff person.”

In a recent opinion, the New York Advisory Committee on Judicial Ethics stated that judges may undertake “a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups” in collaboration with a non-profit historical society.  New York Advisory Opinion 2020-202.  The committee noted that the judge should first obtain any required administrative approvals.

The inquiring judges were members of a court’s committee on bias and noted that, “[w]hile the law in the United States has proven to be dynamic, and gradually has changed to include protections for marginalized groups, the art in our courthouse has remained static, and displays aesthetics that reflect a less inclusive, and less just, America.”  To make the courthouse more inclusive and educational, the judges wanted to work with “scholars of legal history and architecture to help create signage and other materials that would ‘interrogate our public art and place it in the context of our nation’s history.’”  The judges would prepare written plans for the project, and the Historical Society of the New York Courts would apply for grants.  After funds were received, the judges would collaborate with the Society in their allocation.

The advisory committee concluded that the project was not only “ethically permissible” but supported the court system’s “efforts to eliminate bias and prejudice and thereby promote public confidence in the judiciary.”

In a recent opinion, the New York Committee stated that, when “a party or attorney has advised the court that their preferred gender pronoun is ‘they,’ a judge may not require them to use ‘he’ or ‘she.’”  New York Advisory Opinion 2021-9.  The inquiring judge was concerned that “the use of ‘they’ could create confusion in the record as to the number of persons to whom a speaker is referring.”

The committee recognized that “a judge may take reasonable steps to ensure the clarity of the record, including courteously referring to an individual by surname and/or their role in the proceeding as appropriate.”  However, it stated, “a judge must be careful to avoid any appearance of hostility to an individual’s gender identity or gender expression.”  The Committee explained:  “Adopting and announcing the sort of rigid policy proposed here could result in transgender, nonbinary or genderfluid individuals feeling pressured to choose between the ill-fitting gender pronouns of “he” or “she.”  This could not only make them feel unwelcome but also distract from the adjudicative process.”  Therefore, it concluded, “the described policy, if adopted, could undermine public confidence in the judiciary’s impartiality.”

It also found that there was “no reason for a judge to pre-emptively adopt a policy barring all court participants, in all circumstances, from being referred to by singular ‘they’. . . .”  It noted that “they” “is one of three personal pronouns in the English language” and has been recognized as a grammatically correct use for an individual, citing Merriam-Webster’s addition of that usage to its dictionary definition in September 2019 and its choice as the 2019 Word-of-the-Year.

The Committee expressed its trust that judges can “handle an expressed preference for the use of singular ‘they’ on a case-by-case basis, adopting reasonable procedures in their discretion to ensure the clarity of the record as needed.”  It also noted that a judge could make “adjustments over the course of a proceeding” if they find that “an initial approach was unsuccessful or confusing.”

Ex parte communications
In a recent opinion, the Illinois Judicial Ethics Committee advised that a judge is not required to recuse from a case after an unsolicited ex parte communication from a litigant if the judge halts the communication as soon as possible, disregards it, and promptly advises all parties.  Illinois Advisory Opinion 2020-1.  The committee did note that judges may “wish to insulate themselves, to the extent possible, from such communications,” for example, “by issuing a standing order to make clear to non-lawyers that such communications are not allowed.”

The inquiry came from a judge who had received an email from a self-represented litigant with “extensive and substantive information about a case.”  The email was sent directly to the judge, and opposing counsel was not copied.  The litigant had learned the judge’s email address when the judge, in order to schedule virtual hearings, communicated by email with the litigant and the attorney representing the other side. 

The committee stated that, after receiving an unsolicited ex parte communication, a judge’s first step was “to ensure that the ex parte communication is disclosed to the other party.”  The opinion noted that “an ex parte communication received via email makes possible a verbatim disclosure of the communication,” which “diminishes the opposing party’s concern about whether it knows the full substance of the communication made to the judge.”  The inquiring judge had “immediately notified the other party of the communication.”

After disclosure, according to the committee, the judge should determine “whether, as a result of the ex parte communication, the judge’s neutrality has been affected; in other words, has the judge become actually biased based on what was learned?,” which would require recusal.  The committee noted that the “inquiring judge did not feel that receipt of the communication affected their neutrality,” adding that “it would be unusual for a judge to be unable to compartmentalize” information they could consider from information they could not consider.

Finally, the committee advised that the judge should analyze whether the ex parte communication raised reasonable questions about the judge’s impartiality, noting that recusal “should be required only ‘if additional circumstances give rise to an appearance of bias,’ such as the ‘judge’s initiation of an ex parte communication.’”  An ex parte communication is less likely to require recusal under that test, the committee explained, if the judge did not initiate it, “shut[] it down” when it was recognized, and promptly disclosed the communication to the other side.  The opinion emphasized that “a judge’s initiation of an ex parte communication might create concerns about the judge’s impartiality, but the same is not true when some other person initiates the communication.  The action of another does not implicitly create any inference about the judge’s impartiality.”  The committee also noted that a rule requiring recusal following any ex parte communication “’would allow a party to remove a judge from a case by initiating an ex parte contact, which would encourage unethical ploys and allow manipulation of the judicial process.’” 

Ex parte communication:  “Basic judicial obligation to act as a neutral arbiter” 

Two recent judicial discipline cases illustrate the temptation for judges to take ex parte shortcuts around the justice system’s requirements of openness and orderly procedures.

The Washington State Commission on Judicial Conduct publicly reprimanded a judge who, based on his suspicions that 2 attorneys were trying to commit a fraud on the court, entered an order unsealing documents in a case without notice or a reasonable evidentiary basis.  In re Spanner, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 22, 2019).

On March 14, 2018, the judge was assigned to hear a guardianship/probate docket.  One of the cases was a guardianship of a minor who had suffered a significant injury from medical malpractice.  Prior to the hearing, the minor’s attorney filed a motion disqualifying the judge from the guardianship case, and the hearing was stricken from the calendar and rescheduled to be heard by a different judicial officer.

Before the judge was informed of his disqualification, he had reviewed the guardianship case file and the file in the same minor’s separate medical malpractice action in which another judge had approved the settlement.  In reviewing the minor settlement file, the judge noticed that parts of the settlement and supporting documentation were filed under seal through a procedure that did not appear to apply.

The judge “surmised, based in part on ‘back hall’ talk he had heard at the courthouse among court personnel, and in the community,” that the minor’s attorneys in the malpractice case were improperly trying to keep the settlement confidential to avoid disclosing the amount in a pending dissolution case involving one of the attorneys, in other words, they wanted “to keep earnings from the settlement secret from one of the attorney’s estranged husband.”  In August 2016, the judge had disqualified himself from that divorce case.  Although the minor settlement case was not before the judge, he ordered, “on his own initiative and without notice to any party,” that the documents be unsealed.  In the order, he found that the documents had been filed under seal to prevent the attorney’s estranged spouse from learning “the extremely large fee granted to plaintiffs’ attorneys” and concluded that the documents were sealed “without lawful authority” and “with perhaps nefarious motivations.”  The judge stayed the order for 14 days to allow an opportunity to address his decision to unseal.

The Commission emphasized that the judge’s order was “not based on a motion, evidence or argument presented to him, but on mere speculation and conjecture he gathered from extrajudicial sources . . . .”  Despite the judge’s argument that his motivation was proper, the Commission concluded that he had “betrayed that basic judicial obligation to act as a neutral arbiter” and “gratuitously impugned the attorneys’ integrity, which created a perception of partiality and unfairness.”

* * *
Based on a presentment by the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a judge for a series of aggressive, ex parte emails on New Year’s Eve to a prosecutor about scheduling a trial and related misconduct.  In the Matter of Jones-Tucker, Order (New Jersey Supreme Court November 20, 2019).

The judge was presiding over the case State v. Heimstra.  Kristina Bryant was the municipal prosecutor; John Sitlzer represented the defendant.

On Wednesday, December 27, 2016, Bryant emailed the judge the dates her witnesses and the defendant’s expert witness were available for trial.  That same day, the judge advised Bryant by email that the trial was scheduled for February 24, 2017.  Bryant notified Sitzler of the trial date by email.

On Friday, December 30, the judge rescheduled the trial for February 22 because she was not available on February 24.  She notified Bryant by email.  On Saturday, December 31, in an email to the judge, Bryant said that the defendant’s expert was not available on February 24 and provided the judge with 4 alternate dates.

The judge replied in 4 closely timed emails, beginning at 10: 54 p.m. and “continuing in quick succession” at 10:56 p.m., 10:59 p.m. and 11:09 p.m.  Her responses were:

  • “We need a certification as to unavailability with reference to the designated trial counsel and experts b4 changing the date. thank you.  I am not scheduling a special date like last Friday which was a complete waste of court resource time.  Too bad.  That is the trial date.  Get with the program.”
  • “Court rules say duis have priority. Follow the rules.”
  • “Your last message was you would send the appropriate subpoenas. What changed?”
  • “Not a game. Trial is 2/22/17.  You agreed to send subpoenaed trial date.  Not a game.  Not a game.  That is the trial date.  Not a game.  This is the trial date.  No more repeats of what happened this past Friday.  Not a game.  That is the date.  You agreed to send revised dates.  That is the scheduled trial date.  Sick of this.  Respect for the city if [sic] Camden.  Respect for our court.”

After a response from Bryant, on January 2, at 4:25 a.m., the judge replied:  “Not having a repeat of last week.  This is it [sic] a game in have already scheduled the trial for Wed 2/22.  Last time I am sending you this message.  This is is [sic] not a game.  Respect for this court.  Respect for the city.”

Questioning the judge’s “mindset in choosing to engage in this excessive fashion with counsel, over email, late in the evening on New Year’s Eve,”  the Committee found that the judge’s “overtly aggressive emails” berating Bryant about a scheduling issue Bryant had not created “depict a judge in an intemperate state responding belligerently to the municipal prosecutor, after-hours, about a simple scheduling issue . . . .”  The Committee agreed with Bryant’s characterization of the emails as “’disrespectful and condescending.’”

On Friday, January 6, Bryant and Sitzler appeared, as directed, before the judge.  Following a protracted colloquy about the trial date, Sitzler requested that the judge give him copies of the emails between her and Bryant.  The judge disclaimed any knowledge of the emails and directed Sitzler to seek such “confidential” emails from the court director.  Following this exchange, the judge instructed Sitzler to provide to the court, within 10 days, a list of possible dates for the Heimstra trial and then concluded Heimstra for the day.

After hearing several unrelated matters, the judge directed Bryant to return to the courtroom.  Although acknowledging that Sitzler was absent, the judge addressed Bryant about the Heimstra matter, stating:

The Court has grave concerns about Mr. Sitlzer’s requests and why he would even make such a request considering they are from my personal emails to you.  Have grave concerns about that and I believe this puts me in both a conflict of interest with him and with you.  I do not expect you to prosecute any further cases in my Court until this matter’s resolved.  You and Mr. Sitzler will hear from the Court Director as to which judge this case will be assigned to.  You’re excused.

The Committee found that the judge addressed Bryant ex parte in a “demeaning and patronizing tone” in the courtroom and accused Bryant of behaving inappropriately by telling Sitzler about the ex parte emails.  The Committee concluded that the judge’s prohibition on Bryant appearing before her until the matter was resolved was “an unjustified and exaggerated reaction to a perceived transgression.”

Ex parte communications

Several recent judicial ethics advisory opinions illustrate the breadth of the prohibition on ex parte communications and the narrowness of its exceptions, highlighting the importance of transparency in the justice system.

For example, in Nebraska Advisory Opinion 2019-1, the Nebraska committee advised that a judge may not communicate ex parte with a county attorney to get information to use in setting an appearance bond for the defendants arrested without a warrant when the courts are closed on weekends and holidays.  The committee noted that a judge’s ex parte review of an affidavit for a warrantless arrest “is not problematic” because it is expressly authorized by state law.

However, the committee stated, the interaction described by the inquiring judge went beyond reviewing an affidavit.

The communication is between the judge and a prosecuting attorney, outside the presence of the arrestee or his counsel, so it is clearly an “ex parte communication.”  The issues being discussed are the persons who have been arrested over the weekend.  Presumably, a criminal complaint will soon be filed regarding these persons.  Therefore, the discussions would clearly be “concerning a pending or impending matter” and . . . such communication would only be allowed pursuant to one of the enumerated exceptions to the prohibition on ex parte communications.

The committee concluded that none of the exceptions applied.  First, it stated, the communication was not for “scheduling” or “administrative” purposes.  Second, the committee acknowledged that the communication could be considered for “emergency” purposes “given the time constraints on reviewing probable cause affidavits and setting bond,” but stated that exception only allows emergency ex parte communications that do not address “substantive matters.”  The committee concluded that a discussion about an arrestee’s criminal history and other matters relevant to the amount of the appearance bond is clearly “substantive” and, therefore, prohibited even under in circumstances.

* * *
In Washington Advisory Opinion 2018-4, the Washington committee stated that court staff may not interview a defendant ex parte to collect information as part of a pre-trial dynamic risk assessment for a judge to use in setting pretrial conditions of release.

The opinion explained that defendants are interviewed prior to their first appearance about employment status, residential stability, any history of drug abuse, or any recent use of illegal drugs that may have caused family, social, or work issues.  After the interview, a staff person reviews the defendant’s criminal history, data on pending charges, and record of appearing on any previous charges and then, based on the interview and that information, uses a “statistically based risk assessment tool to categorize the defendant’s likelihood of reappearing and complying with pretrial release conditions.”  The staff person assigns a category of low, medium, or high risk, and that result is presented on the record at the defendant’s first appearance.

The inquiring judge asked whether the interview part of the risk assessment process, which takes place off the record, without counsel and without any signed waiver of counsel, can be conducted by court staff who are under the judge’s direction and control without violating the prohibition on ex parte communications.

The opinion noted that the code of judicial conduct “prohibits judicial officers from investigating facts in a pending matter” and that prohibition extends to court staff who are under a judge’s direction and control.  The committee emphasized that “current law and court rules do not expressly authorize judges or court staff to conduct off-the-record interviews of unrepresented defendants with pending matters to gather information for use in a pre-trial risk assessment” and concluded that “neither a judge nor court staff under the judge’s direction and control may conduct off-the-record pre-trial risk assessment interviews.”

Although acknowledging “the value of the information that can be gained through a dynamic pre-trial risk assessment,” the committee explained that achieving that “laudable” goal “must not come at the cost of the underpinnings of a fair and impartial justice system. . . .  [U]ntil and unless there is an amendment to the or court rules, the pre-trial risk assessment conducted by court employees described in the question posed is prohibited.”

* * *
In California Judges Association Advisory Opinion 77 (2019), the advisory committee discussed ex parte communications between judges and professionals or volunteers who do not represent either party in a pending case but do provide the court “with important information about pending litigation,” usually in written reports.  As examples, the committee noted CASA volunteers or staff, probation officers, probate investigators, social workers, and investigators with the district attorney’s office appointed by the judge to search for a child who has been abducted by a parent in a custody case.

The committee stated that sometimes people in these positions may want to talk with the judge about issues that were not covered in a written report, believing that “the law permits verbal exchanges with the judge.”  As an example, the committee noted that a publication of the child abduction division of the Los Angeles District Attorney’s Office suggested that investigators contact judges to clarify a court order, to request an additional order based on the investigation, for example, if the child is out-of-state or out-of-country, and to inform the judge about “a serious fact relevant to the enforcement of the court’s order.”

The judicial ethics committee warned against such discussions, stating that, except in specified circumstances, those communications would be improper ex parte communications even if the investigator “has a special need to talk with the court.”  The proper method of communication, the committee stated, was a written report that must be shared with all of the parties in the case.

Addressing specific situations, the committee advised:

  • A judge should not receive an oral up-date from a district attorney investigator in a child abduction cases but may receive a written up-date.
  • A judge should not permit a deputy probation officer to explain portions of a report in chambers and should ask that any explanations take place with all the parties or their attorneys present or in a supplemental written report.
  • When police officers come to a judge’s house with an affidavit in support of a search warrant, the judge should read the affidavit alone so that the officers cannot add to the facts or explain them and should decline the officers’ offer of additional information.
  • A judge may listen when a family court mediator, pursuant to a statute, tells the judge that a restraining order is necessary to address an imminent risk to the safety of a child involved in a custody dispute.
  • A judge may discuss with the director of the CASA program administrative issues such as the quality of reports and the role of the advocates in court if the judge is careful not to discuss individual cases.

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).