Obsession, fixation, intimidation, and retaliation

Based on the findings of a judicial conduct panel, the Wisconsin Supreme Court suspended a former municipal court judge for 3 years from eligibility for appointment as a reserve judge for a “pattern of obsessive conduct about whether [the court manager] liked him as a friend” and trying to intimidate her or retaliate against her for reporting him.  Judicial Commission v. Kachinsky (Wisconsin Supreme Court July 9, 2019).

The judge was the part-time, elected judge for the Village of Fox Crossing Municipal Court, which holds sessions approximately 3 Thursday evenings a month for 90-120 minutes.  In the spring of 2016, the judge hired M.B. as the full-time court manager.  The judge and M.B. shared a small office in the municipal building.  Even before M.B. was hired, she and the judge had been “friends” on Facebook; each had hundreds of friends on Facebook, including a number of mutual friends.  At the beginning of M.B.’s employment, they had occasional conversations about their personal lives, developed a friendship, and engaged in occasional joint activities outside of work.

Beginning in March 2017, however, their relationship became strained after “a couple of incidents that M.B. found concerning.”  First, in a public comment to a post on M.B.’s Facebook page, the judge stated that M.B. was “on her second honeymoon” at “an undisclosed location.”  M.B. informed him that this was incorrect, and he apologized.  A few days later, the judge hid behind a counter at the court office, and, when M.B. walked in, he popped up and shouted “roar,” startling M.B.  During that visit, the judge’s “loud and boisterous” conduct disturbed village employees.  In an e-mail after the visit, the judge told M.B. that he hoped his visit had made her day and that it was something he was “more than happy to do for my best friends.”  M.B. told the judge in an e-mail that “it would help her focus on her job if they kept their relationship work-related.”  In an e-mail in response, the judge agreed to minimize discussion of non-business matters during business hours but indicated that he wanted to continue to discuss their everyday personal lives.

After the judge sent numerous other e-mails to her about personal matters, M.B. filed a complaint with the village’s human resources manager.  In a meeting the next day, the human resources manager explained to the judge the concerns about his behavior and developed guidelines, including that no personal information about colleagues would be shared on social media, that all phone and e-mail communications would relate to business matters, and that the judge would only visit the office once a week.

However, the panel found, the judge “was upset as a result of the meeting and was determined to express his displeasure to M.B. and to reject any limitation on communications to work-related matters.”  The judge sent M.B. several e-mails that included personal matters, insisted that he needed to have a personal friendship with her, and invited her to participate in a non-work activity.

On 3 occasions, the judge went to the municipal court office, sat close to M.B.’s desk, facing her, and did nothing except tap his pen and make “cat noises;” on 1 visit, the judge “continued this extremely odd behavior for 45 minutes.”  During one of the visits, the judge told M.B. a story about a dog being raped and then repeated the story.

In a telephone call, the village manager and the village attorney explained to the judge his potential violations of the village’s policy prohibiting harassment in the workplace, advised him to maintain professional decorum at work, and told him to stop communicating with M.B. about personal matters.

Over the following weekend, the judge told M.B. in an e-mail that he wanted to “hit the reset button,” claiming that it had not been clear to him that she wished to avoid after-hours activities with him but that he now understood.  However, he also chastised M.B. for not telling him directly and said:

My main concern is that a “work only” discussion policy should not preclude normal “water cooler” discussion of things like the Packers, Badgers, child graduations, children having children, recent vacation adventures, etc.  I need to know what you consider to be “over the line.” . . .  Walking on eggshells during what should be relaxed casual conversations is not good for productivity or mental health.  Your ideas on this are welcome.

The judge also complained that M.B. had “defriended” him on Facebook and encouraged her to reverse that decision.

After that e-mail, the village manager sent the judge a letter pointing out that he had violated the village’s direction not to discuss the personal relationship with M.B. and reminding him that he was not to engage in any communications with her beyond work matters.

Approximately 2 weeks later, the judge sent M.B. an e-mail that, he acknowledged, “violate[d] every principle we have talked about regarding office conduct the last few weeks” but continued, “Feel free to report me to HR.  I feel spunky this morning.”  The judge sent her other e-mails about having “a beer or wine summit” and ending “the strict restrictions on no nonwork related discussions and replace it with use of respect and common sense.”

In an e-mail to the human resources manager in June 2017, the judge claimed that the incidents about which M.B. had complained were “minor” and that her unwillingness to accept his view of how their relationship should work was detrimental to the municipal court office.  He stated that he preferred not to work with “such a person any longer than possible,” suggested that the human resources manager advise M.B. to “give a little bit on the work-only thing,” and explained that the alternative was for him to terminate her employment.  In a subsequent e-mail, the judge told the human resources manager that, although he had not made a final decision on whether to fire M.B., she had until 5:00 p.m. that day to decide if she accepted his “rules” for their professional and personal relationship.  Later that day, the village attorney informed the judge that his conduct violated the village’s policy against harassment and that his threats to terminate M.B. constituted retaliatory conduct that, if carried out, would violate the law.

After receiving the letter, the judge “elevated his conduct.”  He posted to his Facebook page that “[t]he sh— is not over.  I might have an employee termination today.  Not mine.”  The panel found that, although “the post did not explicitly name M.B., the only conclusion a reader could draw was that M.B. was about to be fired because she was the only employee he supervised either at the municipal court or in his private law practice.”

On July 17, while alone with M.B. in the municipal court office, the judge lunged over her desk, knocking some items off and whispering to her:  “Are you afraid of me now?”  The panel found that the judge was attempting “to intimidate M.B. into acquiescing in his fixation on a personal relationship with her.”

That evening, the judge ran into something on his way out of the courtroom, and his arm began to bleed.  He used his pay stub envelop to stop the bleeding then left the blood-stained envelope on his desk in the office where M.B. could observe it.  The panel found that this “was an attempt either to intimidate M.B. or to elicit sympathy from her . . . , an intentional non-verbal communication that had nothing to do with work.”

In an e-mail later that evening, the judge told M.B.:  “[I]f you want to restore a happy workplace, the first step is to stand up on your own and not use the Administration as a crutch. . . .  I can overlook what I consider poor judgment in handling a situation.  I cannot tolerate a weakling unwilling to have free and open discussions with the boss (or insubordination).”

On July 21, the Judicial Commission notified the judge that it was investigating allegations against him and advised him to “scrupulously avoid retaliatory conduct or witness intimidation.”

On July 26, the village manager held another meeting with the judge about keeping his relationship with M.B. work-related.  After that meeting, the judge dropped a white flag he had fashioned from office supplies on M.B.’s desk and said, “Here you go, I surrender, you win.”

However, the Court stated, the judge “was far from ending his campaign.”  For example, on October 27, the judge wrote a letter to M.B. reprimanding her for forwarding to the village manager e-mails that the judge had written to her.  On November 2, in the presence of M.B. and the human resources manager, the judge mentioned Harvey Weinstein and Bill O’Reilly and stated loudly, “I don’t do that crap and you should get that through your thick head.”

The next day, the judge sent a letter to M.B. that stated:  “By this time next week some things are going to happen that will cause a lot of fire and fury at the Municipal Building.  No, I am not resigning.  Just be psychologically prepared.  Have a good weekend.”  M.B. and villages officials were so disturbed by that e-mail that the village police were notified.  When the police chief interviewed him about the e-mail, the judge giggled more than once.

On Saturday, November 25, the judge sent an e-mail scolding M.B. for ignoring a previous e-mail in which he had wished her and her family a happy holiday.  The e-mail also stated:  “Will not spend the next 1.5 years or 5.5 years working with someone who actively despises me.  I have told you this many times.  We are approaching the end of the line on this.”  The e-mail concluded that, “There was an allegation missing from the additional letter from the [Judicial Commission]” and a picture of a kitchen sink was attached.

The next day, the judge dropped off a reprimand letter alleging that M.B. had falsely stated that he was stalking or tracking her in her complaint to the village 6 months earlier.

On Saturday, December 23, the judge wrote another letter of reprimand to M.B. based on her alleged refusal to return his Christmas greetings and her failure to respond positively to his efforts to improve workplace rapport.  On his Facebook page, the judge posted a sad face emoji with:  “Len Kachinsky was feeling sad.  Few things are sadder than a co-worker who refuses to return a Merry Christmas greeting out of spite.”

Following additional e-mails and meetings, M.B. sought and received a harassment injunction against the judge.

Less than 2 weeks later, the judge left on his desk where M.B. would see it a poster with a picture of the village manager’s face and the caption:  “I am from the government and I am here to help you.  WWRD #notmetoo.”  The judge also posted on his desk facing M.B.’s desk a copy of a page from the village personnel manual, entitled “Sexual Harassment,” with the word “sexual” highlighted 7 times in yellow marker.  M.B. believed that the poster and the copy of the sexual harassment policy violated the terms of the harassment injunction.  The police were contacted, and the judge was arrested.

On July 11, the state filed a criminal complaint charging the judge with 1 count of felony stalking and 2 misdemeanor counts of violating a harassment injunction.  Shortly before the trial, the district attorney’s office dropped the misdemeanor counts.  A jury found the judge not guilty on the felony charge.

The judge’s primary argument was that the village officials did not have the authority to regulate his “supervision of a resistant employee in an effort to ‘restore a level of personal rapport,’” which he believed was “a legitimate and laudable objective that is necessary for a workplace to perform effectively.”  The Court concluded, however, that, regardless whether “he was legally obligated to abide by the directives given by representatives of the village, he was obligated by the relevant provisions of the Code of Judicial Conduct to maintain high standards of personal conduct and to act in a manner that promotes the integrity of the judiciary.”  The Court explained:

We fail to see how staring at a court employee for 45 minutes while tapping a pencil and making cat noises constitutes the maintenance of high standards of personal conduct or promotes the integrity of the judiciary.  Indeed, it does just the opposite.  Serving the people as a judicial officer does not allow a judge to impose his/her every opinion about personal interactions on subordinate court personnel or to force those subordinates to be the judge’s personal friends.

Judges are entitled to ensure that their subordinate employees perform their work responsibilities in appropriate manners.  Judge Kachinsky’s pattern of obsessive conduct about whether M.B. liked him as a friend clearly passed well over the line and brought the municipal court he administered into public disrepute. . . .  The notoriety that resulted from his insistence that M.B. had to be not only his court clerk, but also his friend, certainly caused the residents of the Village of Fox Crossing who appeared in his court to question whether he had the temperament and stability to preside over their cases in a proper manner.

The Court stated that “M.B. was required to process case files and deal with the public as a manager of the municipal court, not to satisfy Judge Kachinsky’s personal opinion that employees must also be personal friends.”  The Court noted that his acquittal on the felony stalking charge did not mean that he was innocent of the ethical violations.

An article on “Professional boundaries in the courthouse” about other judicial discipline cases involving attempts by a judge to force a close personal relationship with a court staff member was published in the summer 2018 issue of the Judicial Conduct Reporter.

 

Willful ignorance, unreasonable credulity, and misappropriation

Two recent judicial discipline cases involved misappropriation of money – over $11,000 by a judge from a DWI fund in 1 case and over $265,000 by a judge’s friend from an estate in the second.

The New Jersey Supreme Court censured a former judge for directing that money from a municipal DWI fund be disbursed to himself without the required pre-approval from his assignment judge; the Court also permanently barred him from judicial office and ordered that he pay restitution of $11,995.85 to the state.  In the Matter of Corradino (June 5, 2019).  The Court’s order does not describe the judge’s misconduct; this summary is based on the presentment of the Advisory Committee on Judicial Conduct.

To help municipal courts promptly dispose of DWI matters, a state statute creates a fund to defray the costs of additional court sessions needed to expeditiously address pending and backlogged DWI cases.  Acceptable expenditures include “payments to municipal court judges, municipal prosecutors and other municipal court personnel for work performed in addition to regular employment hours.”  Guidelines require written approval from the assignment judge of the vicinage in which a municipality is located prior to any disbursements from the DWI fund.

From 2009 through 2013 and in 2015, the judge, without advising his assignment judge, verbally directed the township treasurer to disburse funds “mostly to himself and, for a few years, to the municipal prosecutor and other municipal court personnel.”  The judge received between $647 to $3,001 from the DWI fund in each of those years.

The Committee noted that the judge “has asserted, at various times, inconsistent defenses,” for example, that he did not receive the annual memorandum about the DWI fund or the related guidelines, that he received them but failed to read them, and that he started reading but stopped because he “mistakenly believed he was already sufficiently educated.”  The judge also claimed that “the checks and balances of the court system should have earlier detected and more explicitly alerted him to his procedural noncompliance. . . .”  The Committee rejected those  defenses.

The Committee also concluded that the judge’s “assertion that he would have been entitled to receive at least some of the DWI Fund monies if he had filled out the appropriate form is not supported by the evidence,” noting that there was no evidence that the judge held special sessions or that his court had a backlog requiring special sessions.  The Committee also stated that the extra work the judge claimed he performed outside of court, such as legal research and drafting opinions, would not qualify as an acceptable expenditures from the DWI fund.  “More importantly,” the Committee stated, the judge should not have “usurped” the assignment judge’s role in determining “what would qualify as a compensable event under the DWI Fund Guidelines.”

The Committee concluded that the judge’s “purported lack of willfulness or intentionality” was not a sufficient basis to withhold discipline.

Respondent, by virtue of his judicial office, was duty-bound to know and adhere his conduct to the rules and statutes that govern the municipal court, including the strictures pertaining to the operation of the DWI Fund and the attendant requirements for receipt of expenditures from same. . . .  Willful ignorance of these strictures cannot reasonably serve as a defense to Respondent’s unauthorized receipt of state funds.

* * *
Based on a joint statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court suspended a judge without pay for 45 days for appointing an unqualified friend as trustee of a trust and personal representative of a related estate, failing to disclose their friendship and financial relationship, and “failing to act promptly when faced with mounting evidence of the friend’s mismanagement and embezzlement of the funds entrusted to him.”  In the Matter of Freese, Per curiam opinion (Indiana Supreme Court June 4, 2019).

The judge has known Stephen Scott since about 1990, having worked with him in the county prosecutor’s office where Scott supervised adult protective services.  The judge lunched regularly with Scott and considered him one of his closest friends.

In 2004, Scott needed $122,400 to buy a home but had poor credit after a bankruptcy.  The judge used his line of credit to lend Scott the funds.  On January 13, 2005, they executed and recorded a mortgage in that amount, and Scott gave the judge a promissory note.

17 days later, the judge appointed Scott as trustee over the Herbert Hochreiter Living Trust.  None of the parties objected; the judge never disclosed his financial arrangement with Scott.

Later in 2005, Hochreiter died, and an estate was opened with an estimated $2.3 million in real and personal property.  On October 24, the judge appointed Scott as personal representative of the estate.  None of the parties objected; the judge did not disclose his financial arrangement with Scott.

On June 12, 2007, when the estate had been pending for nearly 2 years, the judge advised Scott that a final report and accounting was due.  Although the judge granted Scott’s request for a 180-day extension, Scott never filed a final report and accounting.  Through 2009, Scott repeatedly disregarded the judge’s directives to file accountings in the 2 cases.  In December 2009, Scott filed a partial, defective trust accounting and then sought an extension to January 29, 2010.  The judge granted the extension over the objection of a beneficiary who was concerned that gold bars might be missing from the trust and that Scott had disregarded accounting requirements from the beginning.

In January 2010, Scott asked to withdraw as trustee.  The beneficiaries objected to Scott resigning without submitting a complete accounting and filing tax returns and other legal documents.  The judge gave Scott 30 days to respond to the objection.

Scott relocated to Florida and never responded.

The Court found that, from August 2010 through July 2012, the judge “had multiple indications of Scott’s poor performance:  summonses sent to Scott were returned to sender;” Scott’s counsel reported that Scott was unresponsive and that the trust checking account contained only $8.27 and its savings account had been closed when it should have $50,000 to $60,000 in cash; and a beneficiary “filed a detailed objection and multiple rules to show cause or contempt citations against Scott.”  The Court also found that the judge “‘took no action or minimal action’ on those reports.”  The judge did leave Scott a phone message when Scott was living in Florida that stated “he was concerned that Scott was behaving bizarrely, and that he ‘would never have thought [Scott] would have stolen anything.’”

On July 31, 2012, when the cases had been pending nearly 7 years, the judge ordered Scott to appear in person and bring all financial records to a show cause hearing in September.  The hearing was later rescheduled to November, but Scott failed to appear.  The judge held him in contempt and found that he had permitted substantial amounts of money to be removed from the trust for non-trust purposes.

In January 2013, after a damages hearing, the judge entered judgment against Scott for nearly $580,000, finding that (1) between September 2007 and August 2011, there were disbursements totaling $140,550 from trust accounts to Scott’s personal accounts, plus another $101,217 in wire transfers or cash withdrawals not corresponding to legitimate disbursements and (2) in January 2010, $16,800 was transferred from estate accounts to Scott’s personal account, and the estate’s remaining bank balance of $6,517.08 was taken by unexplained cash withdrawal.  The Court also held that the amounts directed to Scott’s accounts should be trebled as punitive damages, for a total judgment, including the remaining un-trebled sums, of $579,784.08.

The judge never referred those findings to the local prosecutor or to the U.S. Attorney.  However, in 2017, Scott pleaded guilty to federal charges related to his embezzlement.  The stolen funds remain unrecovered.

The Court noted that the judge’s misconduct was mostly negligent, not willful, and involved 1 case, not “systemic neglect.”  However, it emphasized that the judge’s “misconduct ultimately enabled a massive theft.”  It held that the judge violated the duty to make “appointments . . . impartially and on the basis of merit” because Scott “lacked fiduciary experience and had been bankrupt recently enough to have poor credit.”  The Court noted that, although, “subjectively, the Judge trusted Scott, as his loan shows,” “objectively, Scott was utterly unqualified to be entrusted with a third party’s money; appointing him seems to have been driven by friendship, not merit.”  In addition, the Court concluded, “that friendship clouded the Judge’s objectivity through seven years of warning signs—making him unreasonably credulous of, and lenient towards, Scott in the face of growing evidence of serious financial misconduct.  If not for the Judge’s inaction, Scott’s theft likely could have been largely prevented.”

 

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.