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.

Two-tiered injustice

The report released last week by the Civil Rights Division of the U.S. Department of Justice revealed many disturbing aspects about the municipal court in Ferguson, Missouri, with troubling implications for other municipal courts in St. Louis County and maybe even other states.  First, the report, prompted by the shooting death of Michael Brown by a police officer last August, found that Ferguson law enforcement efforts are focused on generating revenue and its practices violate the law and undermine community trust, especially among African Americans.

Then the report concluded that the focus on revenue generation has also fundamentally compromised the role of the municipal court — without any resistance by the court and even with its complicity.  The report stated:

The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct.  Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests.  This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements.  The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. . . .

[T]hese court practices exacerbate the harm of Ferguson’s unconstitutional police practices.  They impose a particular hardship upon Ferguson’s most vulnerable residents, especially upon those living in or near poverty.  Minor offenses can generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver’s license, employment, or housing.

(In 2012, the Conference of State Court Administrators produced a position paper entitled Courts are Not Revenue Centers,” and the National Center for State Courts has developed Principles of Judicial Administration reflecting that policy).

On Monday, “to help restore public trust and confidence in the Ferguson municipal court division,” the Missouri Supreme Court transferred a court of appeals judge to the St. Louis County Circuit Court where he will be assigned to hear all of Ferguson’s pending and future municipal division cases.  He will also have “the authority to revise court policies and procedures to ensure the rights of defendants and to help restore the integrity of the system.”  In its press release, the Court stated it is also is examining what reforms are needed state-wide.

According to news reports, the judge mentioned in the DOJ report has resigned from his Ferguson position, but not from another municipal judgeship.

City officials blamed a pervasive lack of “personal responsibility” among “certain segments” of the community for the high numbers of violations, escalating fines, and jail time but condoned “a striking lack of personal responsibility among themselves and their friends,” the DOJ report notes.  The report found that city officials, including the judge and court clerk, routinely assisted friends, colleagues, acquaintances, and themselves in eliminating citations, fines, and fees in the Ferguson court and surrounding municipalities.  One local judge is quoted in news stories as saying ticket-fixing “goes on in every city, every state.  It just does.”

That is unfortunately true, but it does not have to be tolerated and is a sanctionable, even removable offense for judges with several cases each year.

For example, in 2012, the California Commission on Judicial Performance removed a judge for diverting to his own court and acting on traffic tickets issued to his son-in-law, friends, and the pastor of his church, improperly waiving or suspending all or practically all fines and fees or granting a continuance.  Emphasizing that, “in the public’s eye, ticket fixing is the quintessential bad act of a judge,” the Commission explained that the judge’s pattern of misconduct “created both the appearance and the reality of a two-track system of justice—one for his friends and family and another for all others.”

Also in 2012, the Michigan Supreme Court removed a judge for dismissing cases and inappropriately disposing of cases without holding hearings and without notice to or the authorization of the prosecuting attorney, including fixing traffic citations issued to himself, his spouse, and his staff, in addition to other misconduct.  The Court rejected the judge’s argument that he was just providing “optimum, convenient service.”  The Court noted that, “while some citizens received the ‘optimum, convenient service’ of having their tickets and charges summarily dismissed, other citizens were forced to endure the inconvenience and burden of countless adjournments and delays, requiring frequent court appearances.  It is unclear how this latter group fit into respondent’s theory of providing ‘optimum, convenient service.’”

In 2014, in response to a former judge’s defense to disciplinary charges that he had fixed tickets “out of fear of losing his job” and in response to “other political pressures,” the Texas State Commission on Judicial Conduct emphasized:

Given that the foundation of the justice system in a modern democratic society rests on the guarantee of an independent and impartial judiciary, a judge who disposes of cases out of fear that those in power will terminate him, or to satisfy the political or financial interests of an entirely separate branch of government, cannot be — nor can he be seen to be — independent.  By definition, a judge who is not independent cannot be impartial.

That explanation has particular significance following the DOJ report.

Reminders

A recent judicial discipline case is a reminder of the importance of the prohibition on ex parte communications.

In the case, the North Carolina Supreme Court publicly reprimanded a judge who had entered a default judgment against the defendant in a civil complaint for child custody, child support, alimony, etc. without first appointing counsel for him — despite knowing that he was a soldier stationed in Korea and contrary to the Servicemember’s Civil Relief Act of 2003. The Act provides “in plain language,” the Court explained, that, if it appears that a defendant is in military service, a court may not enter a default judgment until it appoints an attorney to represent the defendant. The soldier and his commanding officer had informed the judge in letters that he could not participate in proceedings before he returned.

The judge entered the default judgment when the defendant did not comply with an order entered after a hearing on the plaintiff’s request for additional information concerning the soldier’s status and future availability. The soldier had not been served with the motion, had no notice of objections to a stay, and was not present or represented at the hearing. At the hearing, plaintiff’s attorney provided the judge with Crossing the Military Minefield: A Judge’s Guide to Military Divorce in North Carolina. The publication details ways that a judge could deny a stay by finding that a servicemember did not show “good faith and diligence” when responding to a court action. The Judicial Standards Commission found that the judge “imprudently” relied on plaintiff’s counsel and failed to “sufficiently perform[] her own independent inquiry and research.” The judge had consented to the reprimand.

The case is also a reminder of the unfortunate action taken by the North Carolina legislature in 2013 eliminating the Commission’s ability to publicly reprimand judges with their consent and without a formal proceeding and eliminating public judicial discipline proceedings, keeping the charges, hearing, and recommendation confidential unless and until the Court decides a judge should be publicly sanctioned. The 2013 bill placed North Carolina in the minority within a minority, joining only 16 other jurisdictions with closed formal hearings and only three jurisdictions (Delaware, Hawaii, and D.C.) in which recommendations are also confidential and proceedings become public only if a court decides on public discipline.

This is the first public discipline in North Carolina since the change was made. (There had been one public sanction in 2013, four in 2012, three in 2011, three in 2010, and three in 2009.) Because of the unjustified extra secrecy imposed in 2013, it is impossible to tell how many recommendations are currently pending before the Court, how many may have been rejected, and why. Therefore, the public cannot evaluate whether the Commission and the Court are diligently protecting the integrity of the judiciary. It is reasonable of the public not to have much confidence in a process that hides so much from its view, particularly when the information used to be available.