Increasing frustration

In a recent advisory opinion, the North Carolina Judicial Standards Commission emphasized that a judge’s repeated or unjustified tardiness in opening court sessions violates ethical rules and can lead to the imposition of judicial discipline.  North Carolina Formal Advisory Opinion 2017-2.  (North Carolina is one of 9 or so states in which the judicial discipline commission also acts as the judicial ethics advisory committee.)  The opinion explained:

Delay is one of the most common complaints of judicial misconduct, whether it arises from excessive grants of continuances, delays in rendering decisions under advisement, lengthy periods of time in issuing written orders, or the judge’s regular tardiness in appearing at scheduled court times.  These delays raise the costs of litigation, increase frustration with the judicial system and diminish public confidence in the courts.

Poor communication about when the judge will arrive and the reasons for the delay heightens frustration among individuals present in the courtroom, many of whom have taken time away from work or traveled long distances to appear at the required time under threat of sanction if late.  In these circumstances, when a judge repeatedly or unjustifiably fails to open court on time, the attending frustration impairs public confidence in the courts.

The opinion added that, “if a recess is required to attend to other official business that must be considered before the court session continues, the judge should as a best practice open court on time and communicate either personally or through court staff to those present in the courtroom when court will be reconvened and the reasons for the recess.”

In January, approving a stipulation for discipline by consent and the judge’s agreement to resign, the California Commission on Judicial Performance publicly admonished a judge for, in addition to other misconduct, frequently arriving to court after the calendar over which she presided was scheduled to start, including 3 times when she arrived 30 minutes late.  In the Matter Concerning Johnson, Decision and order (California Commission on Judicial Performance January 16, 2018).

Between January 1, 2013 and August 10, 2015, on days the judge had calendars set to begin at 9:00 a.m., she arrived at the courthouse (not her courtroom or chambers) after 9:00 a.m. at least 42 times.  While in most of these incidents the judge arrived at the courthouse within 10 minutes of 9:00 a.m., several involved longer periods, and typically there was additional delay between the time the judge entered the courthouse and the time she took the bench.  On each of these occasions, the Commission found, the judge’s tardiness caused numerous people who were at court on time, including parties, attorneys, and court personnel, to have to wait for her to take the bench.

In 2015, a Special Court of Review Appointed by the Texas Supreme Court reprimanded a judge for, in addition to other misconduct, a pattern of leaving the bench and failing to communicate with counsel and defendants about when or whether she would return.  In re Mullin, Opinion (Texas Special Court of Review October 21, 2015).  The judge often “left the bench with matters still to be heard” and “those remaining in the courtroom could not discern whether to go (as waiting would be futile) or stay (because the judge might return, though no one could say when).”

The Court noted that a judge is permitted to leave the bench for many reasons and “taking breaks is a matter within the judge’s discretion.”  However, it explained:

The first principle of courtesy is consideration of others.  Though a judge need not disclose why she is leaving the bench or what she will be doing while she is gone, common courtesy requires a judge to let those waiting to be heard know whether and when she anticipates returning.  By persistently leaving the bench for extended periods of time without communicating this basic information to those in attendance, the respondent showed a lack of consideration for court-goers and thus failed to act with the courtesy expected of a judicial officer. . . .

See also In the Matter of McVay, Judgment and Order (Arizona Supreme Court September 25, 2007) (60-day suspension without pay for, in addition to other misconduct, arriving in the courtroom between 5 and 18 minutes after her calendar was scheduled to begin 20% of the time); Williams, Amended order (Arizona Commission on Judicial Conduct December 9, 2010) (public reprimand for consistently failing to appear for work on Wednesdays and Fridays except to perform weddings in the evenings for a fee); Doan v. Commission on Judicial Performance, 902 P.2d 272 (California 1995) (removal for, in addition to other misconduct, habitual tardiness in commencing court sessions by an hour to an hour and a half); Inquiry Concerning Woodard, 919 So. 2d 389 (Florida 2006) (public reprimand for, in addition to other misconduct, frequently starting scheduled first appearance hearings late); Inquiry Concerning Albritton, 940 So. 2d 1083 (Florida 2006) (reprimand for, in addition to other misconduct, on a continuing basis, being late to hearings and trials and taking purported 15 minutes breaks but not returning for 1-2 hours); Inquiry Concerning Singbush, 93 So. 3d 188 (Florida 2012) (public reprimand for, in addition to other misconduct, being habitually tardy for hearings, first appearances, and trials, often for more than 15 minutes and often without good cause); In re Alford, 977 So.2d 811 (Louisiana 2008) (removal for, in addition to other misconduct, a pattern of absenteeism and appearing late for court); In re Nettles-Nickerson, 750 N.W.2d 560 (Michigan 2008) (removal for, in addition to other misconduct, excessive absences, commencing proceedings late, and untimely adjournments); In the Matter of Cahill, Public reprimand and conditions (Minnesota Board on Judicial Standards April 21, 2014) (public reprimand for, in addition to other misconduct, being chronically late for court); In re Merlo, 58 A.3d 1 (Pennsylvania 2012) (removal for, in addition to other misconduct, repeatedly failing to appear or consistently appearing late for scheduled court proceedings); In re Lokuta, 11 A.3d 427 (Pennsylvania 2011) (removal for, in addition to other misconduct, being habitually and egregiously late for court and frequently absent from the courthouse).

More than mere mistakes

Noting increasing attention “on how fines, fees and bail practices disproportionately impact economically disadvantaged communities,” the National Task Force on Fines, Fees and Bail Practices recently released resources to assist state courts address the issue.  (The Task Force was formed in early 2016 by the Conference of Chief Justices and the Conference of State Court Administrators.)  The resources include a bench card that judges can refer to in the courtroom to ensure no one is jailed for failing to pay court-ordered financial obligations unless the constitutionally-mandated findings regarding willfulness have been made and due process has been followed.  The card also lists alternative sanctions to imprisonment that courts should consider when someone is unable to pay.

Recently in Alabama, two judge were sanctioned for their conduct related to the collection of fines and fees.

Based on an agreement and stipulation, the Alabama Court of the Judiciary censured a judge who said from the bench one day:

For your consideration, there’s a blood drive outside and if you do not have any money and you don’t want to go to jail, as an option to pay it, you can give blood today.  If you do not have any money, go out there and give blood and bring in a receipt indicating that you gave blood.  Consider that as a discount rather than putting you in jail, if you do not have any money.  So, if you do not have any money and you don’t want to go to jail, consider giving blood today and bring your receipt back or the sheriff has enough handcuffs for those who do not have money.

In the Matter of Wiggins, Final judgment (Alabama Court of the Judiciary January 21, 2016).  The judge made the statement while presiding over a docket designed to recover court-ordered costs, fees, fines, and restitution that had previously been imposed.  Approximately 47 individuals donated blood that day at the mobile blood bank; 41 were defendants on the judge’s docket.

The second discipline case addressed a systemic pattern of unlawful incarcerations.

Adopting a disposition based on an agreement and stipulation, the Alabama Court of the Judiciary suspended a judge for 11 months without pay for jailing offenders for non-payment of fines and costs without inquiring into the reasons for non-payment as clearly required by law, incarcerating offenders for months without a written order, and delegating judicial authority to a private probation company.  In the Matter of Hayes, Final judgment (Alabama Court of the Judiciary January 6, 2017).  Stating that it found the allegations “deeply troubling,” the Court noted the judge’s acceptance of responsibility; his apparent efforts, beginning in 2014, to remedy problems that gave rise to the proceeding; his cooperation in resolving the complaint; and the expiration of his current term as presiding judge approximately 4 months after he completes his suspension.

The judge has been presiding judge of the municipal court of the City of Montgomery since 2002.  Montgomery was sued in 3 federal lawsuits alleging that the city essentially operated a “debtors’ prison” that incarcerated people too poor to pay financial obligations without providing them due process.  The suits, with the municipal court judges as defendants in their official capacity, were settled in late 2014 in a joint agreement in which the city agreed to broad protections for defendants and to specific procedures the judges were required to follow.

To exemplify the court’s pattern and practice, the Judicial Inquiry Commission’s complaint in the discipline case included detailed descriptions of the cases of 12 individuals, their struggles to pay the court-imposed obligations, and the lost jobs and other hardships they suffered when they were unlawfully incarcerated by the judge.  The judge and the Commission stipulated that, on many occasions prior to 2014, the judge had incarcerated traffic offenders for failure to pay fines and costs without making a sufficient inquiry into the offender’s financial, employment, and family standing to determine if the offender was able to pay, without determining the reason an offender failed to pay, and/or without considering alternatives as required by the Alabama Rules of Criminal Procedure.  On numerous occasions, the judge also failed to allow an offender to fully explain the reason for his or her failure or inability to pay.

The Alabama Commission’s complaint described how the judge’s conduct implicated “far more than mere mistakes of judgment honestly arrived at or the mere erroneous exercise of discretionary power.”

Though a well-experienced judge, his erroneous legal rulings were consistently repeated.  He consistently ruled without first undergoing a full and fair hearing; he consistently made findings without sufficient evidentiary support; he consistently ruled without ensuring that important procedural requirements were in place to protect fundamental constitutional rights; and he consistently made legal rulings without first making specific determinations and findings.  Judge Hayes is not guilty of mere legal error, as his conduct was contrary to clear and determined law about which there should be no confusion or question.  Furthermore, under the circumstances presented, Judge Hayes’s and the Court’s failure to maintain essential records represents more than poor record keeping or administrative neglect; it is indicative of bad faith.  That his practices and the municipal-court’s practices over which he presides evidence bad faith is underscored by the fact that Judge Hayes did not begin to review the Court’s official procedure and policy regarding incarceration for failure to pay until the federal preliminary injunction and the distinct threat of additional federal action.

Wedding fees

Some states have provisions governing whether a judge may accept an honorarium for performing a wedding ceremony in the code of judicial conduct, a court rule or directive, a statute, or a judicial ethics advisory opinion.

In some states, a judge cannot personally accept a fee for solemnizing a marriage regardless when or where the marriage is performed.

For example, the Illinois judicial ethics committee has advised that a judge may not accept a fee, gift, gratuity, or compensation of any kind for solemnizing a marriage even if the ceremony will be held outside normal working hours and at a location other than the courthouse.  Illinois Advisory Opinion 1995-14.  The committee reasoned that, by accepting such a gift, a judge would be improperly receiving compensation for services in addition to the judge’s salary, which is prohibited by court rule.  Further, the committee concluded, the fee would constitute a “gift” given in return for an act performed in an official capacity, which is prohibited by the code of judicial conduct.

The states that prohibit judges from accepting fees for performing marriages are:  Illinois, Missouri, New Jersey, New Mexico, Ohio, Oklahoma, Pennsylvania, South Carolina, and West Virginia.

Other states, however, distinguish between marriages that take place during regular court hours and those that take place outside of court hours, prohibiting a judge from retaining honorariums for the former but allowing them for the latter.  Rule 3.16 of the Arizona code of judicial conduct, for example, allows a judge to “charge a reasonable fee or honorarium to perform a wedding ceremony during noncourt hours, whether the ceremony is performed in the court or away from the court,” while prohibiting a judge from charging or accepting “a fee, honorarium, gratuity or contribution for performing a wedding ceremony during court hours.”  The states with this type of rule are Arizona, California, Colorado, Florida, Georgia, Indiana, Iowa, Nebraska, New York, Utah, Washington, and Wyoming.

In Wisconsin, the distinction turns on where the marriage is performed; a judge may not accept a fee for marriages performed in the courthouse, regardless what day or time of day.

In Alabama, Louisiana, Mississippi, and Texas, a judge is allowed to receive a fee for performing a marriage regardless when or where the ceremony takes place.

Even in circumstances in which a judge may accept fees, there are restrictions on promoting a judicial wedding “business.”  For example, the Minnesota Board on Judicial Standards privately admonished a judge for promoting his wedding business by maintaining a web-site that identified and pictured him as a judge and by appearing as an exhibitor at a wedding trade show where he personally solicited attendees to hire him.  Minnesota Private Discipline Summaries 2009-113.  See also Rule 3.16(C), Arizona code of judicial conduct (“A judge shall not advertise his or her availability for performing wedding ceremonies”) ; California Judges Association Judicial Ethics Up-date, at 15 (2001) (“A judge may not advertise via a web site or print media to solicit business to perform weddings for a fee”); Colorado Advisory Opinion 2007-5 (a judge may not advertise her availability to perform wedding ceremonies by sending fliers to wedding planners and may not otherwise solicit business as a wedding officiant); Minnesota Summary of Advisory Opinions MN-2004 (it is inappropriate for judges to advertise in newspapers to perform weddings); New York Advisory Opinion 2008-74 (a judge may not engage in the “business” of performing marriages, solicit requests for such services as a for-profit business, or otherwise actively seek to be engaged in such activity); Texas Advisory Opinion 193 (1996) (a justice of the peace may not advertise “justice of the peace weddings” in the telephone book); Texas Advisory Opinion 292 (2006) (a judge may not directly solicit couples as they leave a county clerk’s office with their marriage licenses to perform their ceremony for pay); Washington Advisory Opinion 1991-14 (a court may put wedding information in the white pages of the telephone directory, but the judges should avoid any appearance that they are using the listing to solicit weddings or otherwise personally benefit).

A longer version of this post will appear as an article in the spring issue of the Judicial Conduct Reporter, to be published in May.  You can sign up to receive notice when a new issue of the Reporter is available.

Problem-causing judges

Last month, the Mississippi Supreme Court removed a judge from office and fined him $3,500 for failing to follow the law in drug court and other misconduct.  Commission on Judicial Performance v. Thompson (Mississippi Supreme Court May 5, 2015).  (He has asked for re-consideration.)  Contrary to statute, participants in the judge’s drug court had been routinely kept in the program for more than 2 years, and the judge had enrolled participants from other jurisdictions that did not have drug courts even after receiving an opinion from the attorney general advising him not to do so.  In addition, without adequate notice or hearings, participants were arrested and jailed for “contempt of orders of the drug court” that were discussed at “staffing meetings” at which they were not present and even though they were in the program for offenses that were not punishable with jail time.  The Court noted that the judge’s “apparent defense . . .was that, because it was drug court in which incarceration was a ‘sanction,’ he did not have to use contempt-of-court procedures because ‘drug court is different from regular court.’”

Unfortunately, Judge Thompson is not the only drug court judge who apparently exaggerated the differences between problem-solving courts and traditional courts.  In March, based on his agreement not to serve in judicial office again, the Indiana Commission on Judicial Qualifications concluded its investigation of a former judge’s conduct and supervision of a county drug court program.  In the Matter of Jacobi, Stipulation and agreement (Indiana Commission on Judicial Qualifications March 13, 2015).  The Commission was investigating allegations that the judge had failed to advise participants that they had the right to an attorney before admitting to the violation of a drug court rule that could result in deprivation of liberty; that some drug court participants had spent unnecessary time in jail or were unlawfully detained because the judge had failed to supervise or train court staff; and that the judge had permitted a practice in which initial hearings on alleged drug court rule violations, work release violations, or crimes were not immediately scheduled after participants were arrested.

Last week, according to news reports, a state grand jury indicted now former judge Amanda Williams for making false statements and violating her oath of office by falsely stating during a hearing before the Georgia Judicial Qualifications Commission that she had not given directions to the sheriff’s office regarding the incarceration of a drug court participant.

In March 2011, the National Public Radio program “This American Life” broadcast an episode that concluded the way then-judge Williams ran her drug court violated “the basic philosophy of all drug courts.”  In November 2011, the Commission filed a notice of formal proceedings that alleged Judge Williams, in addition to other misconduct, had a practice of holding drug court participants indefinitely without a hearing and a policy of delaying their placement into treatment; showed favoritism to certain participants; engaged in a pattern of improper ex parte communications with regard to who would be admitted to drug court and acted as a “gatekeeper” for the drug court; expressed bias in criminal matters in the drug court; failed to be patient, dignified, and courteous; and made false representation to the Commission.  For example, the notice alleged that the judge had ordered Lindsey Dills confined “until further order of the court” for violating her drug court contract and directed that she was “not to have any telephone privileges and no one is to contact or visit her except [the drug court counselor]!   Nobody!  Total restriction!”  Dills remained in custody for approximately 73 days and attempted suicide while in solitary confinement.  In December 2011, based on the judge’s resignation and agreement not to serve in judicial office again, the Commission dismissed the notice.  In re Williams, Consent Order (Georgia Judicial Qualifications Commission December 19, 2011).

What happens when a judge on a problem-solving court becomes a judicial discipline problem will be one of the topics discussed in a session on judicial ethics and problem-solving courts at the 24th National College on Judicial Conduct and Ethics, October 28-30, 2015, in Chicago.  Registration is now available.  The session will also consider ethical guidance for judges on problem-solving courts about issues such as ex parte communications, demeanor, fund-raising, and disqualification.

Super-prosecutor

Several recent judicial discipline cases should remind judges that the line between being a judge and being a prosecutor is bright and should never be blurred.

Based on an agreement, the Arkansas Commission on Judicial Discipline & Disability Commission censured a judge for issuing arrest warrants for 4 persons without probable cause presented by any law enforcement officer or the prosecuting attorney, as well as a pattern of rude, impatient, and undignified temperament.

For example, during an appearance on charges of driving on a suspended driver’s license and no proof of liability insurance, Andre Ford requested a continuance and the appointment of a public defender.  With no probable cause documentation presented by any law enforcement officer or the county prosecutor, the judge sua sponte issued a warrant for Ford’s arrest on charges of obstruction of governmental operations.  The judge appeared angry and agitated and verbally berated Ford from the bench.  At trial, the state moved to nolle prosequi the charges, but the judge refused and found Ford guilty of a charge the state offered no evidence to support.  (The public defender’s office appealed, and, ultimately, the charge was dismissed at the request of the state.)

The Commission found that the judge was unable to separate the authority of his “judicial office from that of the local prosecuting attorney or local law enforcement.”

Your conduct of acting as a “super-prosecutor” toward [the 4 defendants] could reasonably be perceived as reflecting bias against those appearing before you.  The concept of a “super-prosecutor” is not a role for the judiciary.  Judges should seek to avoid entering into situations where their actions could be viewed as such.  Acting in disregard of the law and the established limits of your judicial role to pursue a notion of the greater good for Union County violates Rules 1.1, 1.2 and 2.2 through 2.8.  Your role is different from the local prosecutor and the local law enforcement for a reason.  You shall at all times and to the best of your abilities, remain a neutral and detached magistrate.

Based on the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for contacting an attorney to offer a deferral agreement to the attorney’s client, who had received a speeding ticket and engaging in a process whereby she or her court clerk would directly negotiate deferral agreements with defendants, rather than allowing the prosecutor to offer these agreements.

In response to the Commission’s inquiry, the judge had indicated that her court, not the prosecutor, had been evaluating and offering traffic ticket deferrals to eligible defendants, using criteria provided by the prosecutor.  The proffered deferral agreements were entitled “Fremont Town Court, Honorable Judge Hagerty Deferral Agreement” and instructed litigants to remit payment directly to the court, rather than to the prosecutor’s office.  The judge acknowledged that, by communicating (or allowing her clerk to communicate) an offer to a defense attorney to resolve a client’s traffic infraction, she gave the impression that she stood in the role of prosecutor as well as judge.

Top judicial ethics stories of 2014: Part 5

Since December 2, this blog has been summarizing the top judicial ethics stories of 2014.  Previous posts are Commit the oldest sins the newest kind of ways,” sex in chambers, inappropriate relationships, and the other side of the bench.

Grabbing headlines

In 2013, two judges made comments and rulings that attracted national and even international media attention; in 2014, both were disciplined after the judicial systems in the respective states had already corrected their rulings.

The Messiah judge

On or about May 29, 2013, Jaleesa Martin filed a petition to establish paternity of her son, naming Jawaan McCullough as the respondent.  On the birth certificate, the mother listed the child’s name as “Messiah Deshawn Martin.”  The mother requested that the court determine the child’s surname.  On July 18, the petition was heard by Child Support Magistrate Lu Ann Ballew.  During the hearing, the father requested that the child’s name be changed to “Jawaan Paxton McCullough, Jr.”  The magistrate reserved ruling on the name change until August 8.

At the beginning of the hearing on August 8, the father again requested that the child’s name be changed to “Jawaan Paxton McCullough, Jr.”  Later in the hearing, however, both parents agreed to the child retaining “Messiah” as his first name.

Contrary to the agreement of the parties, the magistrate ordered that the child’s name be changed to “Martin Deshawn McCullough.”  In a statement of facts and reasons, the magistrate found that “‘Messiah means Savior, Deliverer, the One who will restore God’s kingdom.  ‘Messiah is a title that is held only by Jesus Christ;’” and that “labeling this child ‘Messiah’ places an undue burden on him that as a human being, he cannot fulfill.”  After the magistrate issued her ruling, the father requested re-hearing before a chancellor.

On August 9, during an interview with WBIR-TV, which was publicly broadcast, the magistrate again stated that “the word ‘Messiah’ is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ;” and “it could put [the child] at odds with a lot of people and, at this point, he has had no choice in what his name is.”

On September 18, Chancellor Telford Forgety vacated the magistrate’s order as it related to the child’s name and ordered that the child’s first name remain “Messiah” and that his last name be changed to “McCullough.”

In October 2013, an investigative panel of the Tennessee Board of Judicial Conduct filed formal charges against Ballew.  In January 2014, the 4th Judicial District terminated Ballew’s employment as child support magistrate.

In April 2014, the Tennessee Board on Judicial Conduct censured the now-former child support magistrate.  The hearing panel concluded:

In ruling that the child’s given name be changed and basing her decision as noted in the Statement supporting her decision, Magistrate Ballew inappropriately injected and applied her own religious beliefs in her decision, thus violating the Code of Judicial Conduct.  We emphasize that Magistrate Ballew has every right to hold the very religious beliefs at issue in the case.  However, the imposition of those beliefs by Magistrate Ballew upon the litigants is the inappropriate conduct involved in this case.

The hearing panel also found that the magistrate’s statements during her TV interview while the case was still pending violated the prohibition on judge’s publicly commenting on pending cases.

 

Chronological age

In October 2008, the state of Montana charged Stacey Rambold, a high school teacher, with sexual intercourse without consent with a 14-year-old freshman girl.  The victim committed suicide in early 2010.  Later that year, the state agreed to defer prosecution if Rambold admitted to one count of sexual intercourse without consent and agreed to enter sex offender treatment.  However, the state reinstated Rambold’s prosecution after he was terminated from the treatment program.

In April 2013, the state and Rambold entered into a plea agreement under which Rambold agreed to plead guilty to one count of sexual intercourse without consent.  The state sought a sentence of 20 years in prison with 10 years suspended.  Rambold asked that all but 30 days be suspended.

In a hearing in August 2013, the judge sentenced Rambold to 15 years in prison with all but 31 days suspended and credit for one day served.  Speaking from the bench about his rationale for the sentence, the judge stated, among other things, that Rambold’s victim was “a troubled youth, but a youth that was probably as much in control of the situation as [Rambold], one that was seemingly, though troubled, older than her chronological age.”

The judge later explained to the press that “it was horrible enough as it is just given her age, but it wasn’t this forcible beat-up rape.”

As later found by the Montana Supreme Court, the judge’s “sentence and rationale, particularly his remarks that the 14-year-old victim was ‘older than her chronological age’ and ‘as much in control of the situation’ as her 47-year-old teacher, sparked immediate public outcry,” and the Judge Standards Commission began receiving hundreds of complaints.

Shortly after sentencing, the judge sought to modify Rambold’s sentence, apparently having concluded that a statute required a minimum of two years in prison.  The Montana Supreme Court blocked the judge’s attempt because he lacked authority to revise a sentence he had already issued, but the judge “nevertheless held a hearing, at which he made additional public remarks on the case and his actions.”

In February 2014, the Commission filed a formal complaint.  The judge waived formal proceedings, admitted that he violated the code of judicial conduct, and consented to a public reprimand or censure.  The Commission recommended censure.  The judge had earlier announced that he would not run for re-election; his term is ending December 31.

In April, the Montana Supreme Court vacated the teacher’s sentence and ordered that the re-sentencing be assigned to a different judge.  The Court held that the legislature clearly intended a four-year mandatory minimum sentence for a person convicted of sexual intercourse without consent when the victim is less than 16 years old and the offender is three or more years older than the victim (absent certain exceptions that did not apply) and that Judge Baugh had lacked statutory authority to suspend all but 31 days of the teacher’s sentence.

In June, the Montana Supreme Court censured the judge and suspended him for 31 days without pay.  The Court held:

 Judge Baugh’s comments in open court in this case disregarded longstanding Montana law that a person under the age of 16 is legally incapable of consenting to sexual intercourse.  His assertion that the victim was “older than her chronological age” is inconsistent with Montana law categorizing child victims of sexual offenses based on their chronological age alone, rather than on subjective perceptions of physical maturity and situational control.  In addition, Judge Baugh’s later attempt to retract his sentence and rationale was inconsistent with Montana law.  Finally, Judge Baugh made additional inappropriate public statements attempting to justify his actions.  Through his unlawful sentence, inappropriate rationale, and subsequent public comments, Judge Baugh has eroded public confidence in the judiciary and created an appearance of impropriety, therefore violating the Montana Code of Judicial Conduct.  He has caused Montana citizens, as well as others, to question the fairness of our justice system and whether prejudice or bias affected the outcome of the Rambold case.  There is no place in the Montana judiciary for perpetuating the stereotype that women and girls are responsible for sexual crimes committed against them.

In September, Rambold was re-sentenced to 15 years in prison with five years suspended; he has appealed.

 

Pro se litigants in the code of judicial conduct

In its 2007 revisions to the Model Code of Judicial Conduct, the American Bar Association added a new comment that explains, “It is not a violation of [Rule 2.2] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.” Rule 2.2 provides that “a judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”

The fall issue of the Judicial Conduct Reporter, a quarterly publication of the Center for Judicial Ethics, will have an article on the adoption and modification of that comment. 14 jurisdictions have adopted the language of the comment exactly or with only minor variations; 14 jurisdictions have revised and/or expanded the model provision.

In 2012, in a joint resolution, the Conference of Chief Justices and the Conference of State Court Administrators supported adding a provision regarding self-represented litigants to the text of the rule (not just a comment) and affirmatively stating a judge’s ability to accommodate self-represented litigants (rather than use the “it is not a violation” formulation of the model code). The version proposed by the resolution is: “A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.” The resolution also suggested that “states modify the comments to Rule 2.2 to reflect local rules and practices regarding specific actions judges can take to exercise their discretion in cases involving self-represented litigants.” The joint resolution explained its impetus was “the importance of access to justice for all,” emphasizing that “access to courts extends both to lawyer-represented and self-represented litigants.”

So far, at least 9 states and D.C. have anticipated or followed those suggestions in whole or in part, including 6 that have listed examples of reasonable accommodations judges may make in cases involving self-represented litigants. For example, in July of this year, the Wisconsin Supreme Court added that rule to the text of its code and published a new comment that provides:

A judge may exercise discretion consistent with the law and court rules to help ensure that all litigants are fairly heard. A judge’s responsibility to promote access to justice, combined with the growth in litigation involving self-represented litigants, may warrant more frequent exercise of such discretion using techniques that enhance the process of reaching a fair determination in the case. Although the appropriate scope of such discretion and how it is exercised will vary with the circumstances of each case, a judge’s exercise of such discretion will not generally raise a reasonable question about the judge’s impartiality. Reasonable steps that a judge may take in the exercise of such discretion include, but are not limited to, the following: 1. Construe pleadings to facilitate consideration of the issues raised. 2. Provide information or explanation about the proceedings. 3. Explain legal concepts in everyday language. 4. Ask neutral questions to elicit or clarify information. 5. Modify the traditional order of taking evidence. 6. Permit narrative testimony. 7. Allow litigants to adopt their pleadings as their sworn testimony. 8. Refer litigants to any resources available to assist in the preparation of the case or enforcement and compliance with any order. 9. Inform litigants what will be happening next in the case and what is expected of them.

(The Court stated the comment “may be consulted for guidance in interpreting and applying the rule” but, curiously, only published it without adopting it. The distinction is not clear but may be based on concerns expressed by a concurring justice that the changes may raise expectations about steps judges will take and may have economic consequences for the legal profession. The Court ordered that the impact of the rule be evaluated in three years.)

The fall issue of the Judicial Conduct Reporter will be published in the next few weeks. For information about a subscription, contact cgray@ncsc.org.

Starting next week on the blog:  The top judicial ethics stories of 2014