Insubordination and lack of candor

Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge for 2 months for surreptitiously recording 3 meetings with her assignment judge and denying what she was doing when she got caught.  In the Matter of Gross-Quatrone, Order (New Jersey Supreme Court January 24, 2019).  The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment.

The judge’s law clerk for the 2015/2016 term began on August 4, 2015.  That clerkship “ended abruptly” on Friday December 10 after the law clerk complained to the county human resources supervisor and the trial court administrator about the judge’s abusive treatment.  The following Monday, County Assignment Judge Bonnie Mizdol met with Judge Gross-Quatrone to discuss the removal of her law clerk and related issues.  Judge Gross-Quatrone acknowledged that she had told the law clerk she considered the clerk’s performance to be deficient, but denied any abusive treatment.

Judge Gross-Quatrone attempted to record this meeting with Judge Mizdol surreptitiously on her cellular telephone although she claims that attempt failed and that there is no recording.

On the morning of December 21, Judge Mizdol scheduled a management meeting in her chambers to discuss providing Judge Gross-Quatrone with administrative support.  She invited Judge Gross-Quatrone, Trial Court Administrator Laura Simoldoni, the family division presiding judge, and the division manager.  Judge Mizdol denied Judge Gross-Quatrone’s request to have her secretary attend the meeting as “her witness,” but agreed to meet privately before the meeting.

During her private meeting with Judge Mizdol, Judge Gross-Quatrone repeated her request to have a “witness” at the meeting or, alternatively, that the meeting take place in a courtroom where it could be recorded; Judge Mizdol denied both requests.  Without Judge Mizdol’s knowledge, the judge recorded this meeting on an Olympus digital voice recorder hidden in her purse.

Judge Gross-Quatrone also recorded the management meeting that followed without the knowledge of the other participants.  The other participants became aware of the judge’s secretive recording when Simoldoni noticed a red light “beaming” from the top of the judge’s purse.  Simoldoni reached into the purse, retrieved the judge’s digital recorder, and pressed the “stop” button.  Simoldoni asked the judge if she was recording the meeting, and the judge replied:  “No!  It was a gift from my parents.  I’m not taping the meeting.  I don’t know how this thing works.”  The judge reiterated her denial when questioned by Judge Mizdol.  In response, Simoldoni replayed a portion of the recording that revealed that the judge had, in fact, recorded the meeting.

Judge Gross-Quatrone demanded the return of her digital recorder, but Simoldoni declined to return the recorder before speaking with counsel to the Acting Administrative Director of the Courts.  The meeting ended shortly thereafter.

Judge Gross-Quatrone requested and was permitted a private meeting with Judge Mizdol.  Judge Mizdol, after confirming that the judge was not also recording that meeting, advised the judge that her conduct was “irretrievable” and constituted a “significant breach of trust.”  The judge maintained that she had done nothing wrong and reiterated her request for the return of her recorder.

Over the next several hours, the judge telephoned Judge Mizdol at least twice and the acting administrative director once seeking the return of her recorder.   In response, Judge Mizdol advised the judge that she would advise the judge of the status of her recorder at that time after hearing from the counsel’s office that afternoon

Judge Gross-Quatrone telephoned Simoldoni and threatened to call the police if she did not return the recorder.  The sheriff’s office received a telephone call from Judge Gross-Quatrone’s courtroom asking about the telephone number for emergencies.  In response, Sergeant Gabriel Soto conducted a ”security check” of the judge’s courtroom and chambers area.  The judge reported to Sergeant Soto that Simoldoni had taken her “personal property” without her permission and had refused to return it.  Sheriff’s Lieutenant James Hague, at Sergeant Soto’s request, went to the judge’s chambers.  The judge recounted for Lieutenant Hague the events leading up to Simoldoni’s retrieval of her recorder, which the judge characterized as a “theft,” and said she wanted to file a report with the police department.

Simoldoni, with the requisite administrative approvals, made a copy of the contents of the judge’s recording and released the recorder to the sheriff’s department that afternoon.  A sheriff’s officer returned it to the judge that same day.

Judge Gross-Quatrone was transferred following these incidents.

There were 3 files on the judge’s recorder:  a recording of the judge saying “testing, testing, one, two, three, testing, testing;” a second that was blank; and the recording of the judge’s private meeting with Judge Mizdol and subsequent management meeting.  The Committed noted that the judge’s evident testing of the recorder contradicted her claim that she did not know how the recorder worked.

The judge argued that she was justified in surreptitiously recording the 3 meetings because she needed “to protect herself from recurring ‘workplace hostilities, belittling in the presence of staff, and verbal abuse’” by Judge Mizdol.  The Committee found that the judge’s defenses did not justify or mitigate her intentional misconduct.  It explained:

While Respondent may have perceived herself to be the subject of hostile treatment, she had available to her several options to address that situation short of engaging in deceptive and insubordinate conduct.  Respondent could have communicated her concerns directly to the Acting Administrative Director of the Courts or the Assistant Director of Human Resources at the Administrative Office of the Courts.  Respondent’s decision to forego these legitimate avenues to address workplace concerns does not constitute a viable defense in this proceeding.

The Committee noted that the judge’s recording and subsequent denials “occurred in full view of subordinate court personnel,” thus undermining Judge Mizdol’s authority.  It explained:

Such insubordination is intolerable in an institution such as the judiciary where the operational fortitude of the organization depends appreciably on its members’ compliance with the mandates of the administrative hierarchy.  Absent such compliance by its most senior members, i.e. jurists, the judiciary risks similar noncompliance from subordinate court personnel and, for that matter, court users who are required to abide by court orders or face potential sanctions.

The Committee concluded that the judge’s defiance of her superior and lack of candor “suggest a disturbing lack of sound judgment and professional integrity that, if left unaddressed, threaten the dignity of the judicial office and the public’s confidence in the judiciary as an institution worthy of deference.”

The Committee also stated that the judge’s misconduct had been aggravated by her multiple calls about the return of her recorder, her threats to have the police intervene, and her “spurious incident report” to the sheriff’s office, which “exacerbated an already tense situation and unnecessarily exposed additional courthouse staff to this incident.”  Also in aggravation, the Committee noted the judge’s attempts to mislead it during its investigation by feigning ignorance about having recorded the first meeting.  In mitigation, the Committee noted that the judge had performed satisfactorily on the bench after her transfer.

The judge argued that her surreptitious recordings were “legal” in New Jersey and she could not be disciplined for legal conduct.  The Committee stated, however, that, regardless of her legal rights, the judge’s “documented insubordination in her interactions with her Assignment Judge and lack of credibility both to her Assignment Judge and this Committee constitute a sharp deviation from the integrity demanded of all jurists under Canons 1 and 2 of the Code of Judicial Conduct and is deserving of public discipline.”

To hear and decide

Recently, the California Commission on Judicial Performance publicly admonished a judge for delegating his responsibility to conduct case management conferences to his court clerk.  Public Admonishment of Hiroshige (California Commission on Judicial Performance October 24, 2018).

Case management conferences are scheduled to address items such as what discovery issues are anticipated, whether discovery is complete, the nature of the injuries, the amount of damages, and any additional relief sought, as well as ministerial issues, such as the setting of a jury trial date.  Counsel for represented parties and each self-represented party must appear by telephone or personally and must be prepared to discuss and commit to the party’s position on the issues unless a judge issues a case management order based on the parties’ written submissions after determining that a conference is not necessary and notifying the parties.

In contrast, the judge’s practice was to review the parties’ written submissions and provide his notes to the court clerk for use during the conference at which the parties were still required to appear.  In 2010, the Commission privately admonished the judge for this practice.

The judge continued the practice despite the private admonishment.  In response to the Commission, the judge explained that, after the private admonishment, he posted a notice in his courtroom advising counsel and parties that he had reviewed all submitted case management conference statements and indicated to the clerk the range of dates that should be scheduled in each case, that “[t]he clerk will meet & confer with counsel/parties and attempt to schedule dates in court that are agreeable to all parties,” and that, if there is any disagreement, “please request to discuss the issue with the court.”

The Commission found that, as noted in the private admonishment, the judge’s practice violates the requirement that a judge “hear and decide all matters assigned to the judge except those in which he or she is disqualified.”  The Commission stated that the judge’s “[i]mproper delegation of judicial responsibilities to the court clerk constitutes misconduct” and “dereliction of duty.”

The Commission explained that the judge’s “practice of having his clerk meet with parties and counsel and convey his decisions in court gives the appearance that the clerk, rather than the judge, is running the court.”  Further, it stated, discussions between the judge and parties or counsel can effectively resolve issues that may not have been apparent from the written submissions, and, therefore, “an appearance before a judge at a case management conference can be more efficient and effective in terms of the disposition and management of a case than issuing an order without an appearance before a judge.”

The fall 2016 issue of the Judicial Conduct Reporter has an article analyzing previous discipline cases involving improper delegation of adjudicative responsibilities.

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.