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

Same-sex ethics

As the legal question of same-sex marriage is being decided across the country, the question whether a judge may ethically decline to perform such marriages is beginning to be addressed.

Noting that same-sex marriages are now permitted and recognized in the state as a result of several federal court decisions, the general counsel for the North Carolina Administrative Office of the Courts advised in a memo last week that a magistrate who conducts other marriages may not — regardless of the reason — refuse to perform the ceremony for a same-sex couple for whom a marriage license has been issued by the register of deeds.  Emphasizing that “performing marriage ceremonies is a ministerial act authorized as an official ‘additional power’ of magistrates,” the memo concludes that, if a valid marriage license is presented, a magistrate has the statutory duty “to conduct the marriage between the persons named in the license in the same manner as the magistrate would conduct any other marriage.” The memo states that a failure to do so would violate the equal protection clause of the U.S. Constitution and the oath the magistrate swore upon taking office to uphold the constitution and laws of the U.S. and would constitute a failure to perform a duty of the office. The memo cites Canon 2A of the North Carolina code of judicial conduct (“a judge should respect and comply with the law and should conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”) and Canon 3 (“a judge should perform the duties of the judge’s office impartially and diligently”).

Citing the corresponding provisions in its state code, the Washington State Commission on Judicial Conduct admonished a judge for, after same-sex marriage was approved by voters, publicly stating that he would not perform same-sex marriages but continuing to perform opposite-sex marriages. The judge accepted “the Commission’s determination that, by announcing he would not solemnize same-sex marriage due to his philosophical and religious concerns while continuing to solemnize opposite-sex marriages, he appeared to express a discriminatory intent against a statutorily protected class of people thereby undermining public confidence in his impartiality . . . .” The Commission stated:

Respondent is not required as a judicial officer to solemnize marriages. Having chosen to make himself available to solemnize some weddings, however, he is bound by the Code of Judicial Conduct to do so in a way that does not discriminate or appear to discriminate against a statutorily protected class of people.

The Code of Judicial Conduct imposes on judicial officers a specific, enforceable obligation to avoid bias and the appearance of bias. These obligations go beyond those imposed on others who serve the general public, reflecting the unique and integral role judicial officers play in our constitutional scheme of justice honoring the rule of law. Judges must not only be impartial, but must also be perceived as impartial, in order to properly fulfill that role . . . .

By even temporarily acting in a discriminatory fashion toward gay men and lesbians, in stating that he would not solemnize their marriages when he continued to solemnize heterosexual marriages, and by commenting on that decision publicly, a reasonable person could objectively conclude that he might act in a discriminatory fashion toward gay or lesbian litigants, lawyers, or witnesses.

In contrast, the New York Advisory Committee on Judicial Ethics ducked the issue by stating whether a judge may adopt a policy that distinguishes between same-sex and opposite-sex couples was primarily a legal question, not a question of ethics.