Fall issue of the Judicial Conduct Reporter

The fall issue of the Judicial Conduct Reporter has been published and is available to download.  All past issues of the Reporter are also available on-line as free downloads, and there is an on-line index of Reporter articles.  You can sign up to receive notice when a new issue is available.

The issue has articles on abusing the prestige of office to attempt to obtain a favor, communications by a trial judge with a reviewing court, holiday gifts and parties, and a former judge’s use of the judicial title.  It also has summaries of recent cases in which judges were disciplined for giving interviews about a pending case; failing to disqualify from cases involving an attorney with whom the judge had a support relationship; and directing insulting, demeaning, and humiliating comments and gestures to children.

The article on requesting favors begins:

A judge’s appeal for a favor from police, prosecutors, or other judges is a classic example of “abus[ing] the prestige of judicial office to advance the personal or economic interests of the judge or others” in violation of Rule 1.3 of the American Bar Association 2007 Model Code of Judicial Conduct.  The crux of the misconduct is taking advantage of access not available to non-judges and/or expecting special consideration not accorded to the general public.

Using recent cases involving attempts by judges in person or on telephone calls to influence police officers, prosecutors, court staff, and/or other judges, the article demonstrates that “an explicit request, an express reference to the judicial office, or acquiescence by the other person are not necessary to prove a violation.”

Demonstrating the chronic nature of the problem, several additional cases about favor-seeking have been issued since the article was written.

  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld the removal of a judge for seeking the advice of another judge about her son’s case and acquiescing in his offer to communicate ex parte with the judge who was handling the case. In re Roca (Pennsylvania Supreme Court November 22, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for communicating in an ex parte e-mail and phone call with the judge presiding over her nephew’s criminal case and voluntarily testifying as a character witness on her nephew’s behalf at his probation revocation hearing, in addition to other misconduct. Public Reprimand of Hawthorne (Texas State Commission on Judicial Conduct November 9, 2017).

In addition, 2 judges were recently sanctioned for written communications on behalf of others.

  • The New York State Commission on Judicial Conduct publicly censured a judge for signing his name and judicial title beneath a defendant’s signature on a letter requesting that another judge change a plea for a traffic infraction. In the Matter of Sullivan, Determination (New York State Commission on Judicial Conduct March 13, 2017).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) invoking her judicial title and position in a letter on court stationery she wrote on behalf of her childhood babysitter to be filed in connection with a motion to vacate the babysitter’s conviction and (2) writing 2 affirmations on behalf of her son to be filed in the appellate division in connection with his criminal case. In the Matter of Ramirez, Determination (New York State Commission on Judicial Conduct May 4, 2017).

As the New York Commission explained in Ramirez, “[w]hen a litigant is the beneficiary of influential support from a judge based on personal connections, it creates two systems of justice, one for the average person and one for those with ‘right’ connections, and undermines public confidence in the impartial administration of justice and in the integrity of the judiciary as a whole.”  The Commission emphasized:

When asked to provide a letter or similar communication on behalf of a family member, friend or acquaintance, every judge must be mindful of the importance of adhering to the ethical standards intended to curtail the inappropriate use of the prestige of judicial office . . . .  Difficult as it may be to refuse such requests, the understandable desire to provide assistance and support must be constrained by a judge’s ethical responsibilities, including the duty to act “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” . . . .

Finally, the Virginia Supreme Court removed a judge for contacting 2 potential witnesses prior to his wife’s trial on federal corruption charges.  Judicial Inquiry and Review Commission v. Pomrenke (Virginia Supreme Court November 27, 2017).  The judge had sent his wife’s boss a handwritten note, with his judicial business card, that “was intended to make his wife’s employment secure” and “reflected an intent to influence a potential witness” by suggesting the boss would agree she “is absolutely honest, truthful, ethical, and innocent.”  In an attempt “even more overt in its intent to influence a witness,” the judge also left a voicemail message for another employee 3 days before she was expected to testify, asking her to “slip in” remarks that would be favorable to his wife, “even though it’s not directly in response to the questions.”  The Court found the judge had violated the prohibition on lending the prestige of office to advance private interests.

New issue of the Judicial Conduct Reporter on judicial ethics and social media

The spring issue of the Judicial Conduct Reporter is now available to be downloaded.

The issue is Part 1 of a 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics.  Part 1 describes the advice judicial ethics advisory committees have given judges regarding social media in general and the rules related to judicial duties in particular.  Relevant caselaw is also used to illustrate the principles discussed.

In response to inquiries from judges, committees have allowed judges to join the millions of others using social media but have also emphasized that the code of judicial conduct applies on networks and warned judges to be very careful while socializing on-line.  Opinions advise judges to implement the services’ privacy protections but to assume all social media activity may become public and be attributed to the judge.  Judges have also been cautioned not to make any statements indicating bias or prejudice, not to allow such comments on their page, and not to “like” such comments by others.  Further, the committees remind judges that the requirement that they maintain the dignity of the judicial office applies to every social media post and photo.

With respect to making social connections on networks, some advisory committees prohibit judges from “friending” attorneys who may appear before them while others reject that bright line for a friend-by-friend analysis of appropriateness.  Disqualification is not automatically required when a “friend” appears in a case, but such an appearance requires a judge to consider the nature and scope of the social media relationship and other relevant factors to determine whether the judge’s impartiality could reasonably be questioned.  Further, committees recommend or even require disclosure of a social media relationship in a case involving a “friend.”

In addition, the opinions note there is no social media exception to the prohibitions on ex parte communications and independent investigations.  Finally, the committees remind judges that all comments on pending cases are “public” when made on social media and suggest that a broad interpretation of the prohibition on public comments is the best way for judges to maintain public confidence in the judiciary.

Part 2, which will be the summer issue of the Reporter, will cover off-bench conduct:  abuse of the prestige of office, disclosing non-public information, providing legal advice, charitable activities, including fund-raising, commenting on issues, political activity, and campaign conduct.  Both parts will contain links to additional materials on the Center for Judicial Ethics web-site.  The 2 parts and the supplemental materials will be combined in a comprehensive paper that will be posted on the Center’s web-site in late 2017.

Anyone can sign up to receive notice when a new issue is available.  All past issues of the Reporter are also available on-line as free downloads.  There is an index of Reporter articles.

Winter issue of the Judicial Conduct Reporter

The most recent issue of the Judicial Conduct Reporter is now available to be downloaded at no charge.

The winter issue reviews the top judicial ethics and discipline stories of 2016, has statistics on the judicial discipline sanctions for the year, summarizes all removal cases, and quotes “what they said that got them in trouble” in 2016.  The issue introduces format changes, including external and internal links, designed to make the Judicial Conduct Reporter easier to read on a screen while still very readable when printed out.  To provide feedback on these changes and help determine whether more changes are needed, please complete the survey at https://www.research.net/r/CRS2NT9 after you have had a chance to review the issue.

Free downloads of past issues of the Reporter and an index of Reporter articles are available on the Center for Judicial Ethics web-site.  You can sign up to receive notice when a new issue of the Reporter is available.

Fall issue of the Judicial Conduct Reporter

The fall issue of the Judicial Conduct Reporter is now available to be downloaded at no charge.

The issue has an article on charitable contributions as part of sentences that states “[a]bsent statutory authority . . . advisory committees agree that a judge may not require a contribution to a charity as part of a sentence. . . .  In addition, judges have been disciplined for requiring a charitable contribution as part of a criminal disposition.”  The article then explains the rationale for the rule and describes its applications to situations such as plea bargains and contributions in exchange for dismissal of charges or in lieu of community service.

Also in the issue is an article on improper delegation of adjudicative responsibilities that discusses cases in which “[j]udges have been disciplined for inappropriately entrusting their judicial duties to court staff, prosecutors, and law enforcement officers.”  The cases fall into categories such as pre-signed bail orders, turning over a docket to the prosecutor, use of a signature stamp by court staff, and court staff presiding over court proceedings.  There is also a section on judges’ delegating to court staff the setting of fines pursuant to a schedule.

In addition, the issue has an article on judges’ attendance at inaugural events for elected public officials, summaries of selected recent advisory opinions, and summaries of selected recent judicial discipline cases on incivility and asserting the prestige of judicial office.

Free downloads of past issues of the Reporter and an index of Reporter articles are available on the Center for Judicial Ethics web-site.  You can sign up to receive notice when a new issue of the Reporter is available.

New issue of the Judicial Conduct Reporter

The summer issue of the Judicial Conduct Reporter is available for download at no charge.  In the issue:

  • An article on 3 cases (including 2 this year) in which judges were disciplined for jailing complaining witnesses in domestic violence cases
  • A comparison of cases upholding the prohibition on false statements in judicial election campaigns and cases overturning the prohibition on misleading statements on First Amendment grounds
  • Summaries of several recent cases about disqualification including a U.S. Supreme Court case about due process standards for disqualification when a justice served as a lawyer in the case and cases involving an attorney who had represented the judge without charge in a personal case (which includes a discussion of the rule of necessity), an attorney who is the judge’s close friend, and the judge’s own divorce, with brief summaries of 7 additional cases in which judges were sanctioned for failing to disqualify
  • Summaries of recent advisory opinions on judicial duties and on off-bench activities
  • Summaries of recent judicial discipline cases in which judges were sanctioned for revoking probation based on observations of the probationer at church; for creating the appearance of favoritism by meeting with a litigant’s father, a former judge, before a hearing; for researching the facts of a case on the internet; and for refusing to allow a defendant to testify when he would not, for religious reasons, raise his hand while affirming he would tell the truth

All past issues of the Reporter are also available on-line as free downloads on the Center for Judicial Ethics web-site.  Anyone can sign up to receive notice when a new issue is available.  There is an index of Reporter articles on the Center web-site.

 

 

New issue of the Judicial Conduct Reporter

The spring issue of the Judicial Conduct Reporter has been published and can be downloaded for free on the Center for Judicial Ethics web-site.  The issue has articles on wedding fees, recent cases on failing to speak up, and misrepresentations about incumbency in judicial election campaigns, in addition to summaries of over 20 recent judicial ethics advisory opinions.

The article on wedding fees notes that some states prohibit judges from personally accepting all fees for solemnizing marriages, while others only prohibit fees for ceremonies performed during normal court hours.  The relevant provisions are replicated in boxes accompanying the article.

“What judges say or write—intemperate comments, ex parte conversations, gratuitous references to the judicial office, and, increasingly, injudicious social media posts, for example—is a frequent basis for judicial discipline,” the next articles explains.  But, its adds, several recent cases demonstrate that “failing to say something can also lead to a finding of judicial misconduct.”  The article then discusses cases in which judges were sanctioned for failing to disclose their affair or take other appropriate action, failing to communicate when or even if she would return to the courtroom, failing to make appropriate inquiries before disbursing funds from a trust, and failing to inform an ex-wife of a retirement that would entitle her to benefits under their dissolution agreement.

The final article explains:

Whether a judicial candidate may use the title “judge” in a campaign has been addressed numerous times, suggesting incumbency gives an elective edge or at least that judicial candidates perceive such an advantage.  The person currently occupying the bench that is the subject of an election can use the title “judge” in campaign literature. . . .  Caselaw and advisory opinions are clear, however, that the incumbent is the only candidate who can call himself or herself “judge,” at least without clarification, and that other candidates (including former judges and judges in other positions) must make it clear when they are not the incumbent.

The article then discusses relevant advisory opinions and caselaw on the use of the title “judge,” robes, and the term “re-election” in campaign materials.

All past issues of the Reporter are available on-line as free downloads on the Center for Judicial Ethics web-site.  You can sign up to receive notice when a new issue is available and for other National Center for State Courts newsletters.  There is also an index of Reporter articles.