Independent investigations

In two recent cases, judges were sanctioned for conducting factual investigations in cases pending before them.

An Ohio judge admitted that he should not inspected a home in response to concerns about the children living there after their father’s arrest and that he should have recused himself from the custody case “triggered” by his inspection. Disciplinary Counsel v. Lemons (Ohio Supreme Court October 13, 2022). The Ohio Supreme Court reprimanded the judge, adopting the findings and recommendation of the Board of Professional Conduct, which were based on stipulations.

On Thursday, January 12, 2017, D.M. was arrested and jailed on a charge of corrupting a juvenile with drugs. D.M. had legal custody of his 3 oldest children while a relative had custody of his 2 youngest children; the children’s mother was incarcerated. On the evening of D.M.’s arrest, a caseworker for the county children services agency visited the home where D.M. had resided with the 3 children and their grandfather. The agency put in place an in-home safety plan for the children rather than removing them from the home.

The following day, a school resource officer expressed concern about the well-being of D.M.’s children to Greg Dunham, a member of the judge’s staff. Dunham and a probation officer visited D.M.’s home. Durham observed that the home was filthy, the water had been turned off, the toilet was overflowing with human waste, the floor was littered with dog feces, the refrigerator was not working, and the children had no beds. Dunham reported his observations to the judge and the children services agency. The agency sent a caseworker to D.M.’s home, but again decided not to remove the children.

After Dunham advised the judge of the agency’s decision, the judge conducted his own investigation of the home, accompanied by law enforcement officers. He confirmed Dunham’s report and also observed a wall heater with an open flame within a few feet of the grandfather’s oxygen tanks; a cooler, presumably a substitute for the broken refrigerator, that only stored dirty dishes; a child who was not dressed appropriately using the oven to warm himself; and mattresses on the floor without box springs in the upstairs bedrooms, which were colder than the rest of the house.

After his visit, the judge found that 2 of D.M.’s children were in imminent danger and ordered the children services agency to take temporary custody and investigate. The agency promptly complied. The judge did not send a copy of the emergency order to the children’s parents. At the request of the children services agency, the judge entered an ex parte order giving the agency custody of the children pending final adjudication and disposition.

At a probable cause hearing on January 19, the children services agency did not present any evidence about the conditions of D.M.’s home, and the judge did not disclose that he had visited the home. However, the judge mentioned the home’s conditions during the hearing. For example, after D.M. asked whether his children would be placed with their grandmother, the judge responded that if the grandmother’s residence looked like D.M.’s home, “that’s a NO” and that any possible home for the children would need to have running water and mattresses with box springs.

The judge continued presiding over the children’s dependency proceedings. In 2019, the judge gave the children services agency permanent custody of the 2 children who were the subject of his January 2017 emergency order.

During the disciplinary case, the judge said that he had investigated D.M.’s home and issued the emergency order because he wanted to force the children services agency “to do their job.” The judge explained that the county was the center of the opioid epidemic and that “every parent[ ] seemed to be high and strung out,” but the agency was not investigating or filing enough cases and the juvenile court was flooded with calls from grandparents, schools, and hospitals asking the court to take action. The judge admitted that he had allowed his frustration to get the better of him.

The Board found that “by conducting the wellness check of D.M.’s residence—which included thoroughly inspecting the house and interacting with the children and their grandfather—. . . [the judge] made an independent investigation of facts pertinent to what became a formal custody case” and that his investigation was the “sole basis” for his emergency order removing 2 of the children from the home. The Board also found that the judge should have recused himself from the case, stating that no matter how well-intentioned, the judge “could not be both the source of a private referral based on his personal knowledge and an impartial arbiter of the issues as a judge.”

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Adopting the findings of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a former judge for conducting an independent factual investigation in a trust case in response to the trustee’s request for reimbursement of expenses allegedly spent for improvements to a house that was one of the assets of the trust. In the Matter of Bergman, Order (New Jersey Supreme Court October 6, 2022). The reprimand was also for the judge’s call to a third-party witness in the case.

The trustee’s brother had objected to the request for reimbursement, arguing that some of the expenses had been for the personal benefit of the trustee and his daughter, who was living in the house, and not for the benefit of the estate. The judge personally researched public real estate tax records to verify when the trustee’s daughter and her husband purchased their marital home. In addition, at the judge’s request, and without notice to the parties, his law clerk spoke with the registrar for vital statistics to determine the dates of the daughter’s marriage and the birth of her child.

The judge denied most of the trustee’s application for reimbursement, finding, for example, based on his research, that the trustee’s daughter “was working on the house as her future residence, and was willing to pay for certain personal choices in exchange for the privilege of living in it rent free.”

The Committee found that the judge demonstrated judicial bias by incorrectly considering it his duty to ascertain additional information concerning the trustee and his daughter. The Committee rejected the judge’s reliance on the doctrine of judicial notice, stating that he had failed to provide the trustee an opportunity to be heard on the matter as required by the state rules of evidence prior to a judge taking judicial notice.

“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.


Independent factual investigation flashback

According to news reports (see one here), a Utah judge removed a child from a foster home because the foster parents were lesbians.  He relied on his own research on the issue of whether children do better when raised by a heterosexual couple in the same home.  No one else had objected to the placement.  The decision was extensively covered in the media, and the judge subsequently amended his order so the infant girl will not be immediately removed from the home.  There will be another hearing in December.  Just Monday, the judge reportedly disqualified himself from the case (see report here).

You can’t believe everything you read on the internet so, unless or until there is a formal fact-finding, it is not appropriate to judge the judge.  With that caveat, the news reports bring to mind a judicial discipline case from 20 years ago.  In re Hutchinson, Commission decision (Washington State Commission on Judicial Conduct February 3, 1995).

Two men petitioned to have their names changed to female names because they were going through gender re-assignment therapy.  After the judge declined to grant the petitions until the surgery was completed, the petitioners filed a motion for reconsideration.  The judge then conducted an ex parte, independent factual investigation about gender re-assignment surgery by communicating with several medical organizations without notice to the petitioners.  During a hearing, the judge reported the results of his investigation, stating that gender re-assignment surgery is probably illegal in most states as “maiming” and is not offered in Washington and that “there is some question in my mind whether or not a physician performing this surgery in the State of Washington might not be guilty of a felony.”  The judge concluded that he should do nothing to encourage the procedure because of its high failure rate.  The judge suggested that the petitioners, if allowed to change their names, would pose a risk to those who “send their daughters into the ladies’ restroom.”  The judge stated:  “I personally feel that this whole procedure is immoral.  It evidences a mentally ill and diseased mind.  I am grateful that the physicians of this state and the rest of the United States apparently have the attitude that this surgical amputation is something beyond the medical pale.”

The Commission found that expert medical testimony clearly established that the judge’s conclusions based on his investigation were incorrect or, at best, disputed.  The Commission also found that the judge’s moral pronouncements and demeaning statements deprived the petitioners of an impartial and unbiased forum.  The Commission censured the judge.

The case illustrates why independent factual investigations, like ex parte communications, are prohibited.  That ban ensures that cases are tried in the courtroom and judicial decisions are based on evidence in the record where the parties can contest its accuracy, reliability, and credibility and appellate courts can review it.  Further, an independent factual inquiry raises questions about a judge’s impartiality.  Thus, the ABA Model Code of Judicial Conduct provides (in a provision adopted by most states):  “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.”  Rule 2.9(C).  A comment added in 2007 states that “the prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.”