Deteriorating relationship

Accepting her resignation, the Colorado Supreme Court publicly censured a former court of appeals judge for (1) disclosing to an intimate, non-spousal partner the vote of a court of appeals division on a case prior to the issuance of the decision and (2) using inappropriate racial epithets in communications with her intimate partner.  In the Matter of Booras (Colorado Supreme Court March 11, 2019).  In March 2018, the Court had granted the request of the Commission on Judicial Discipline to suspend the judge with pay pending the disciplinary proceedings.  The judge resigned after the Commission recommended her removal.

In 2007, the judge began a 10-year relationship with a man whom she met online (“J.S.”).  J.S. told the judge that he was divorced and living in Denver, although the judge later learned that he was married and living in California.  They did not see each other frequently, but they communicated often, and the judge described their relationship as “intimate” and believed it would lead to marriage.

By early 2017, however, “the relationship was deteriorating, and Judge Booras had good reason to distrust J.S.”

On February 21, 2017, the judge and other judges in a division of the court of appeals heard oral argument in a case about the extent to which a state commission was required to consider public health and the environment in deciding whether to grant permits for oil and gas development.

The next morning, the judge sent an e-mail to J.S. that said:

We had an oral argument yesterday re: fracking ban where there was standing room only and a hundred people in our overflow video room.  The little Mexican is going to write in favor of the Plaintiffs and it looks like I am dissenting in favor of the Oil and Gas Commission.  You and Sid [a colleague of J.S.] will be so disappointed.

“The little Mexican” was a reference to one of Judge Booras’s colleagues, “a Latina who would ultimately write the opinion for the majority in that case.”  Judge Booras wrote the dissent.

At some point in 2018, J.S.’s wife contacted the judge, and the judge told her about the affair. Shortly thereafter, J.S. provided The Denver Post, the chief judge of the Court of Appeals, the governor, the Commission on Judicial Discipline, and counsel for the plaintiffs in the case several communications from the judge.

The Court found that the judge had disclosed confidential information — the court’s vote in the case — to a third party.  The Court also found that the judge “had used an inappropriate racial epithet in communicating with J.S.,” noting that it was not the first time as she had referred to her ex-husband’s new wife, a woman of Navajo descent, as “the squaw” in an e-mail to J.S a year earlier.

The Court held that the judge’s “use of an inappropriate racial epithet directed at one of her colleagues” and her disclosure of confidential information “obviously impaired harmony and trust among her co-workers . . . .”   The Court emphasized that the judge’s “relationship with the colleague at whom her ‘little Mexican’ comment was directed” was particularly affected, noting that the other judge had been “justifiably shocked and deeply hurt by Judge Booras’s comments” and that a close working relationships with other judges is “integral to a collaborative decision-making body” like the court of appeals.  The Court also explained that “knowledge of Judge Booras’s racially inappropriate comments could understandably have caused concern among parties of diverse backgrounds, and particularly those of Latino and Native American ancestry, who inevitably would have appeared before Judge Booras were she to have returned to the court of appeals.  The judicial system cannot function properly if public confidence in a court is eroded in this way.”

The judge argued that “a judge’s communications with an intimate partner should be given First Amendment protection unless the speech ‘violates a specific narrowly-tailored rule of judicial conduct or falls within an ordinary exception to the First Amendment.’”  Rejecting that argument, the Court held that “inappropriate racial epithets and derogatory remarks are not matters of legitimate public concern warranting First Amendment protection.”  The Court also concluded that any First Amendment interests “are outweighed by the state’s countervailing interests.”

 

Judicial responsibility:  Reasonable measures, confrontation, and supervision

One of the features of the high ethical standards to which judges are held is that sometimes judges get in trouble for something someone else did.

For example, a Florida judge was sanctioned for submitting financial disclosure reports for 2016 and 2017 that failed to disclose 3 free trips she had taken with her husband — even though she had not known the trips were free and even though the reports had been completed by her husband, who managed their family finances.  The judge and her husband had received free accommodations from a hotel chain, allegedly as part of an illegal compensation scheme for her husband’s assistance with permitting problems while he was director of the Miami Beach Building Department.  The judge was held responsible for the inaccurate reports because she failed to take reasonable steps to stay apprised of her financial circumstances, failed to ask who paid for the trips, and failed to verify the accuracy of the reports despite certifying to their veracity when she signed them.  Pursuant to a stipulation, she was suspended for 90 days without pay, fined $5,000, and publicly reprimanded.  Ortiz (Florida Supreme Court January 29, 2019).  (The Court had rejected 2 prior stipulations that imposed less severe sanctions.)

A New Mexico judge was sanctioned, in part, for receiving at his court e-mail address numerous e-mails from his family members, particularly his cousin, that were offensive, degrading, pornographic, racist, and sexist.  The judge testified that, after he received the first inappropriate e-mail, he told his cousin, “Cuz, you got to stop this,” and that he told family members over and over again to stop sending e-mails to his judicial e-mail address, but they continued to use that address.  In its findings, the Judicial Standards Commission noted that the judicial information division had instructed the judge how he could put an end to the e-mails, but he had not followed their instructions.

The Commission stated:

The Respondent maintained his innocence throughout the entirety of the inquiry by stating that he only received the e-mails and should not be punished for merely being a recipient.  His position is that his relatives sent him completely inappropriate sexual, derogatory, racist, and sexist e-mails to his judicial e-mail, that he provided to them, that he told them to quit and they didn’t, so it is their fault even though Respondent could have stopped them by changing his judicial e-mail but he didn’t want them to feel like they were the bad guy.

The Commission concluded:

It is far beyond negligent, and not the result of mere carelessness or lack of computer skills, that Respondent was unwilling to stop his relatives from sending him offensive e-mails of a sexual, racist, sexist, derogatory nature over a period of many years. . . .  The Respondent’s behavior in not confronting his family members and stopping the e-mails is offensive and shows that the Judge was indifferent to the impact of his actions on his reputation and integrity and the impact on the reputation and integrity of the judiciary as a whole.

Adopting the Commission’s findings, the New Mexico Supreme Court ordered the now-former judge never to hold judicial office in the state.  In the Matter of Castaneda, Order (New Mexico Supreme Court February 12, 2018).

A California judge was sanctioned for his testimonial published on a business’s web-site identifying the author as a superior court judge and including a photograph of the judge in his judicial robe.  The judge did not authorize the use of his title or provide the photograph or authorize its use or even know the photograph would be used.  However, neither did he review the final text of the testimonial or instruct the business not to use his judicial title and photograph in judicial robes or even ask how his comments would be used or where they would be published.

The judge had retained the Redd Group to survey voters about a local attorney’s judicial campaign.  After the election, the judge called David Cooper, an employee of the Redd Group, to compliment him on the survey results.  Cooper asked if he could use the judge’s comments as a testimonial for the Redd Group.  The judge agreed.  The testimonial, published on the Redd Group web-site, stated:

I was helping a fellow attorney run for county judge.  Our mail went out ahead of schedule and The Redd Group accommodated for our poll to be done accordingly with many more respondents than were promised.  We got the detailed results in less than 24 hours.  I recommend the Redd Group for all your polling needs.  Excellent work! – Steven C. Bailey

The California Commission on Judicial Performance publicly censured the now-former judge and barred him from seeking or holding judicial office for this and other misconduct (see also  discussion below).  Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

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Several judges have been sanctioned for content on their Facebook pages posted by others to whom they had delegated the task without sufficient oversight.  For example, the Texas State Commission on Judicial Conduct admonished a judge for Facebook posts advertising a school supply drive, soliciting donations for an individual, and advertising his donation of a rifle to a charitable raffle — even though a member of his judicial staff handled his Facebook page, many posts were made without his prior authorization, and he was often unaware of what appears on his page.  Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018).  Similarly, the Texas Commission reprimanded a judge for campaign advertisements for other candidates posted on his Facebook page, in addition to other misconduct — even though he had not authorized the posts and did not know about them until he received the Commission’s inquiry.  Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).

Unauthorized and inappropriate posts have also been a problem on judicial campaign Facebook pages.

For example, the Florida Supreme Court removed a judge for criticism of her campaign opponent for representing criminal defendants on a Facebook page that was created by an electioneering communications organization formed by her campaign consultant.  Inquiry Concerning Santino, 257 So.3d 25 (Florida 2018).  The Court held that the judge’s actions “—individually and through her campaign, for which she was ultimately responsible—unquestionably eroded public confidence in the judiciary.”  The Court emphasized the finding of the hearing panel that nothing in the code of judicial conduct permitted, “Santino to delegate to her campaign manager the responsibility for written materials created or distributed by the campaign.”

The Nevada Commission on Judicial Discipline reprimanded a former judge for a photoshopped picture of herself and an actor that her campaign manager had posted on her campaign Facebook page, which misled the public that “the Rock” had endorsed her campaign, and for her subsequent comment on the post:  “I’m ‘almost’ taller than him.  Almost.”  In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018).  The Commission found that the judge had not taken reasonable measures to ensure that her campaign representatives complied with the code of judicial conduct, noting her contract with her campaign manager did not contain any restrictions on the posting of social media materials, such as obtaining prior approval from the judge, that the judge did not discuss with her campaign representatives the prohibitions in the code, and that the judge failed to properly supervise her campaign representatives.  The Commission took the “opportunity to remind judicial candidates that campaign-related social media platforms, such as Facebook, maintained by a campaign committee or others, do not insulate them from the strictures of the Code.”

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The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for publicly disclosing his candidacy for sheriff without resigning and initially refusing to disclose to the Commission the identity of the individual who took his campaign Facebook page live.  Barth, Order (Arizona Commission on Judicial Conduct February 14, 2019).

The California Commission on Judicial Performance publicly censured a now-former judge and barred him from seeking or holding judicial office for permitting a campaign coordinator to use his judicial title on the Facebook page for his campaign for attorney general and in posts on her law firm’s Facebook page promoting his candidacy, in addition to other misconduct (see also discussion above).  Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

In 2016, Martha Romero, the judge’s Southern California Campaign Coordinator, created the “Judge Steven Bailey” Facebook page for the judge’s campaign for state attorney general.  (Judges in California are allowed to run for another office if they take a leave of absence; the judge’s failure to take a leave of absence was another grounds for his discipline.)  In November and December 2016, several posts on the page promoting his campaign referred to the judge by his judicial title.

Rejecting the judge’s argument that he cannot restrict the First Amendment rights of others, the Commission agreed with the masters’ finding that “the judge had an obligation to take some action to prevent the improper use of his title in connection with campaign communications and events, even if it was just to instruct Romero to ensure that the Facebook page did not refer to his judicial title and position” because she was a coordinator for and “very involved” in his campaign.  The Commission also agreed that, because the standard for prejudicial conduct assumes that an objective observer is familiar with the facts, “the judge’s failure to supervise a campaign staffer and take any measures to guard against impermissible use of his judicial title would be considered prejudicial to public esteem for the judiciary in the eyes of an objective observer,” rejecting the judge’s argument that “the public would have no way of knowing if he asked Romero not to use his title.”

Romero also maintained a Facebook page for her law firm, the Romero Law Firm.  In a post on that page, Romero included photos of the judge and wrote, “My friend Judge Steven Bailey is running for California Attorney General 2018,  He is not a politician.  Please Help us!” and “Judge Steven Bailey.  Candidate for Attorney General 2018.  He will be the next Attorney General!!!  Please repost.  We need to win this!!”

The Commission acknowledged that the judge “could not force Romero to edit her posts about him or to avoid using his judicial title in future posts” but stated that he could “have asked her to modify her posts to be in compliance with his ethical obligations.”  Rejecting the judge’s argument, the Commission concluded that “Romero’s First Amendment rights are not implicated by requiring the judge to ask her to comply with a request to remove the Facebook posts.”

Small town friendships

Defining when a judge’s relationship with an attorney or litigant is close enough to raise ethical issues is one of the perpetual issues in judicial conduct, and it was presented twice in the recent case Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

One of the grounds for the sanction was that the judge had ordered defendants in 5 cases to use an alcohol monitoring service without disclosing that his son worked for the company and that the owner was a friend.  With respect to the judge’s relationship with the owner of the monitoring company (Charles Holland), the California Commission on Judicial Performance emphasized several factors that required disclosure:

  • Prior to taking the bench, the judge had represented Holland,
  • Holland had referred clients to the judge prior to his taking the bench,
  • Holland had been to the judge’s home,
  • Holland had attended strategy meetings for the judge’s judicial campaign, and
  • The judge was one of Holland’s Facebook friends.

The Commission stated that, even if it accepted the judge’s characterization of the relationship as “more professional than social,” he and Holland were more than members of the same professional organization and had contact outside professional events.  The Commission concluded that, “[e]ven if each of these facts taken alone did not require disqualification, . . . the totality of these circumstances was reasonably relevant to disqualification and required disclosure.”

A second ground for the sanction was the judge’s appointment of an attorney (Bradley Clark) as a special master without disclosing that Clark personal friend.  The Commission emphasized several factors:

  • The judge and Clark socialized together, sometimes with their spouses,
  • The judge received gifts from Clark,
  • The judge’s nephew was employed by Clark, and
  • The judge officiated over Clark’s wedding.

The special masters in the disciplinary proceeding had found that the appointment was not misconduct because Clark was qualified and, therefore, it had not been proven that the appointment was based on the friendship, rather than competence.  The master also found that disclosure was not necessary because most members of the “small legal community” where the judge sat probably knew about the relationship.  The Commission deferred to the finding about the appointment, but found that the judge did have a duty to disclose the relationship “regardless of the size of the community.”  It explained:

By their terms, the canons impose uniform statewide standards.  Whenever an assigned case involves a party the judge “knows,” the judge must be particularly vigilant to ensure the appearance and reality of independence and impartiality.  The situation may arise more frequently in a small town than a major metropolitan area, but the judge’s ethical duties are the same irrespective of population statistics.

The risk of applying a different disclosure standard in a small community based on the assumption that the parties and the attorneys know the judge’s relationships “is that there may be someone involved in the proceeding who, in fact, does not know about the relationships.” . . .  Moreover, the purpose of disclosure is not only to inform the attorneys and parties of information that may be relevant to disqualification but to uphold the integrity and impartiality of the judiciary.

The fact that there was no objection from the attorneys . . . did not relieve the judge of his obligation to disclose.  There is no evidence that the attorneys and parties were aware of the extent of the judge’s relationship with Clark at the time the judge made the appointment.

A third ground for the sanction, not related to friendships, was the judge’s comment to 2 other judges and an administrative analyst in the courthouse that gay men are “snappy” dressers.  The Commission found that statement was misconduct even though the remark “did not perpetuate invidious or hateful stereotypes.”

As observed by the masters, the judge’s comments “reflect stereotypical attitudes about gay men.”  It is improper for a judge to make remarks that reflect stereotypes based on sexual orientation, whether negative or positive.  We agree with the masters that “[s]uch remarks indicate that the speaker has preconceived ideas about a particular group, a characteristic that is contrary to the qualities of impartiality and propriety required of judges by our Code of Judicial Ethics.”

The judge had made the comment in response to a compliment by another judge about his outfit in an open office area in the court’s administration building:  he explained that he had bought the outfit in France, that the salesperson who put it together for him was gay, and that he knew it looked good because gay men are “snappy” dressers.

The other grounds for the sanction were that the judge had (1) allowed a business to use his testimonial on its web-site without assuring that it did not use his judicial title; (2) received improper gifts from Court Appointed Special Advocates, an attorney he had appointed as a master, and a law school; (3) failed to accurately report travel-related payments or reimbursements for attending judicial education programs; (4) run for California Attorney General without taking a leave of absence and then using his judicial title to raise funds for and promote his campaign; (5) failed to file a candidate intention statement until after his campaign had received campaign contributions, in violation of the Political Reform Act; and (6) permitted a campaign coordinator to use his judicial title on the Facebook page for his campaign for Attorney General and in posts on her law firm’s Facebook page promoting his candidacy.  The Commission publicly censured the now-former judge and barred him from seeking or holding judicial office.

Complaining about “a continuous onslaught of allegations,” the judge had blamed the presiding judge and the “toxic environment in the El Dorado Superior Court” for the charges against him.  However, the Commission emphasized  that it was the judge’s “improper conduct that is the basis of this inquiry, regardless of the motivations of those who brought forth the allegations.  There is no evidence that a toxic environment in the court or any animosity between Judge Bailey and [the presiding judge] resulted in misinformation being provided to the commission or inaccuracies in the evidence presented against the judge.”

 

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.”

Election motives  

In several judicial discipline cases in 2017, although the sanctioned misconduct did not directly involve their campaigns, the judges’ concerns about their election chances were cited as a reason for their conduct.

An FBI agent testified that Judge Dawn Segal told him she was concerned about her forthcoming retention election and believed then-judge Joseph Waters to be politically influential when she listened to his requests for favorable treatment for parties in 3 cases to please him.  The Pennsylvania Supreme Court upheld her removal.  In re Segal, 173 A.3d 603 (Pennsylvania 2017).

For example, Waters had called Judge Segal and told her that a petition for reconsideration had been filed from her previous refusal to open a default judgment in a code enforcement complaint against Judge Angeles Roca’s son for failing to pay Philadelphia’s business privilege tax for his barbershop.  The same day as his call, Judge Segal reviewed the petition and issued a rule to show cause why the default judgment should not be opened.  She and Waters then engaged in the following phone conversation, which was recorded by the FBI as part of its wiretap surveillance of Waters

Segal:  Hi, I figured it out and I took care of it.

Waters:  Oh, okay.  Thank you.

Segal:  I got it.  Alright.  It was on my um, queue, so I did it.  So tell her it’s done.

Waters:  Thank you very much ….

(Also in November, the Pennsylvania Supreme Court upheld Judge Roca’s removal for seeking Water’s advice about her son’s case and acquiescing in his offer to communicate ex parte with Judge Segal.  In re Roca (Pennsylvania Supreme Court November 22, 2017).  Waters was removed in 2016 following his guilty plea to federal mail fraud and honest services wire fraud charges.  In re Waters, Opinion and order (Pennsylvania Court of Judicial Discipline January 12, 2016).)

2 other discipline cases involved judge-candidates giving interviews about their cases in the midst of their campaigns.

The Nevada Commission on Judicial Discipline suspended a judge for 60 days without pay for making comments to a reporter about 2 pending cases to protect his re-election, in addition to other misconduct.  In the Matter of Potter, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline November 22, 2017).

In October 2014, the judge held a temporary custody hearing and ruled that a child should reside with his father while his mother, Michelle Angeles, a lieutenant in the Air Force, was deployed in Cuba.  After Angeles divorced Cardona in 2012, she had married a woman.

The Las Vegas Review Journal published an article in which Angeles’s attorney, David Mann, suggested that the judge had ruled against his client based on her sexual orientation.  The judge contacted the reporter, and there was a follow-up article entitled “Judge Defends Custody Decision in Lesbian Mom Case.”  In the article, the judge stated that he granted Angeles physical custody “knowing full well she was gay.”  He also stated that “there’s no way” he could find it to be in the child’s best interest to stay with his stepmother, providing the paper “with profane text messages the stepmother had sent the father.”  The judge also told the reporter that Mann “might have an axe to grind” as he had “handled Mann’s personal divorce this year, and Mann did not show up for trial.”

In the discipline proceeding, the judge explained that he felt that he had to respond to the article because the election was 12 days away, he had an opponent, the article was a lie, he was not anti-gay, and he wanted to protect his reputation and the integrity of the judiciary.  The Commission found that the judge had put his desire to be re-elected ahead of the judicial canons.

Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for making public comments about a murder case pending before him in 3 media interviews, in addition to other misconduct.  In the Matter of Piampiano, Determination (New York State Commission on Judicial Conduct March 13, 2017).  The Commission noted that the “fact that respondent made these statements in media interviews at a time when he was a candidate for election to Supreme Court raises a question as to whether his public comments were motivated by political concerns.”

In September 2015, the judge, then on the county court, was nominated for election to the supreme court, the general jurisdiction trial court in New York State.

On or about October 8, after approximately 8 days of jury deliberations, the judge granted a mistrial in a high profile murder case in which Charles Tan was charged with shooting his father at their family home.  The defense moved for an order of dismissal; the assistant district attorney opposed the motion because they intended to retry Tan.  The judge ordered the parties to appear before him on November 5.

The same day the mistrial was declared, the judge agreed to 1-on-1 interviews about the case in his chambers with reporters from 2 TV stations and a newspaper.

As the Commission explained:

While he often responded to the reporters’ questions about the Tan case with general statements about procedures and the legal system, he should have recognized that any statements he made in that context would be understood as pertaining to Tan and therefore were problematic.  His statements, however, went well beyond general explanations of the law.  He discussed legal issues in the case (including his denial of a request for an accomplice charge), and he provided a description of his interactions with the jury and his sense of the jury’s deliberations.

The Commission noted as “[e]specially troubling” the judge’s description of the defendant in an interview as a “sympathetic’ figure,” raising doubts about his impartiality and undermining public confidence in the impartial administration of justice.

 

Parsing truth

A lack of candor can be misconduct and/or an aggravating factor in determining the appropriate sanction in judicial discipline proceedings, sometimes leading to removal when the underlying misconduct otherwise might not.  But courts and judicial conduct commissions have identified different degrees of dishonesty with different consequences.  In 2 recent cases, for example, the Michigan Supreme Court and Judicial Tenure Commission discussed actionable falsehoods, statements “unworthy of belief,” selective or incorrect memories, imprecise expressions, intentional misrepresentations, inaccurate or careless answers, lying under oath, guesses, and speculation.

The Court publicly censured 1 judge for directing insulting, demeaning, and humiliating comments and gestures to 3 children during a contempt proceeding in a protracted and highly contentious divorce and custody case.  In re Gorcyca (Michigan Supreme Court July 28, 2017).  The Commission had also found that the judge committed misconduct by holding the oldest child in contempt for refusing to participate in parenting time with his father and ordering the 3 children confined to a children’s residential center until their father determined they had purged themselves of contempt.  The Court agreed that the judge committed legal error but concluded that error did not constitute judicial misconduct because she had acted with due diligence (appointing attorneys for the children and holding a hearing) and her error could not be fairly characterized as willful failure to observe the law (no one in the courtroom offered alternatives for handling the difficult circumstances or suggested that she was crossing a line).

In addition to other inappropriate comments, the judge had said to the father with respect to the oldest child, 13-year-old LT, “Dad, if you ever think that he has changed and therapy has helped him and he’s no longer like Charlie Manson’s cult, then you let us know and we can do it.”  While making that statement, she made a circular gesture with her finger near her temple.

In response to the Commission inquiry, the judge denied that she had circled her temple with her finger “to indicate or even imply that [LT] was crazy,” explaining that she believed the motion simulated “a wheel moving forward” to indicate that the father should let her know if LT made any forward movement as a result of therapy.

The master had found that answer was false.  The Commission disagreed, stating that knowledge that a statement is false and an intention to deceive are required.  It explained:

The fact that a statement may be incorrect does not, by itself, render the statement “false” within the context of a legal proceeding.  It may be discredited, or deemed unworthy of belief, but given the limits of human memory and perception, as well as the limitations of language, it would be unfair to impute motives of deception or falsehood to everyone who says something that someone else finds incredible, or that proves to be incorrect.  Selective memory does not equal falsehood; incorrect memory does not equal falsehood; imprecision in expression does not equal falsehood; even an answer that one chooses to disbelieve does not equal a falsehood.

The Commission noted that, during the hearing, the judge had “clarified that she did not recall making the gesture and was unaware she had done so until she viewed the video recording of the proceedings,” but that, when she gave her response, she had felt “obligated to provide her best guess about what she intended.”  The Commission emphasized that “the simple answer — ‘I do not remember what was in my mind at the time’ — would have been both accurate and helpful” but concluded that, “as long as she was candid about her lack of memory,” her “speculation about her motives or intentions in performing actions months earlier — actions that she could not even recall” were not “actionable falsehoods.”

However, noting the judge’s response was sufficiently misleading to require a hearing, the Commission requested over $12,500 in costs pursuant to a rule that authorizes costs “if the judge engaged in conduct involving fraud, deceit, or intentional misrepresentation, or if the judge made misleading statements to the [C]ommission, the [C]ommission’s investigators, the [M]aster, or the Supreme Court.”

Disagreeing on review, the Michigan Supreme Court stated that a misleading statement required an actual intent to deceive or at least some showing of wrongful intent.  It concluded that the judge had “merely speculated as to her intent” and that a guess was not akin to a misrepresentation or misleading statement.

* * *
In the second case, the Court suspended a judge for 9 months without pay for interfering with a police investigation at the scene of an accident involving his intern, interfering with the prosecution of the intern, and making an intentional misrepresentation to the Commission; the Court also ordered that the judge pay over $7,500 in costs.  In re Simpson (Michigan Supreme Court July 25, 2017).

In July 2013, Crystal Vargas accepted an internship with the judge.  Within days, the judge and Vargas began communicating with each other frequently by telephone call and text message, exchanging several thousand communications in 4 months, at all times of the day and night and on weekends.

On September 8, the judge and Vargas exchanged 6 text messages between 1:25 a.m. and 2:29 a.m. and 6 text messages between 4:20 a.m. and 4:23 a.m.  At about the time of the latter messages, Vargas was involved in a motor vehicle accident less than 2 miles from the judge’s home.  Vargas called the judge at 4:24 a.m., shortly after the accident.

While Vargas was still on the phone with the judge, Officer Robert Cole arrived at the scene.  As Cole was administering field sobriety tests to Vargas, the judge arrived.

Concluding that the judge’s “behavior at the accident scene constitutes judicial misconduct,” the Court found that the judge “used his position as a judge in an effort to scuttle a criminal investigation of his intern.”

[R]espondent exited his vehicle and approached Ms. Vargas and Officer Cole as sobriety tests were being performed.  Indeed, respondent interrupted the sobriety-testing process.  Respondent, who had prosecuted numerous drunk-driving cases on behalf of Superior Township before he became a judge, was certainly aware that Officer Cole was investigating whether Ms. Vargas was under the influence of alcohol or a controlled substance.  Given these circumstances, when respondent began his interaction with Officer Cole by introducing himself as “Judge Simpson,” he appears at best to have failed to prudently guard against influencing the investigation and at worst to have used his judicial office in a not-so-subtle effort to interfere with the investigation.  Indeed, but for respondent’s status as a judge, Officer Cole would not have spoken to respondent until Officer Cole completed his investigation.  Next, respondent spoke to Ms. Vargas during the investigation without Officer Cole’s permission — another action an ordinary citizen would not have been permitted to take.  Finally, respondent’s question — “Well, does she just need a ride or something?”— was a transparent suggestion to Officer Cole to end his investigation and allow respondent to drive Ms. Vargas away from the scene.

Subsequently, the judge twice contacted the township prosecutor, describing Vargas as a “good kid” who was in a “pretty bad relationship,” noting that the prosecutor had met Vargas in the past and would be working with her in the future, raising an evidentiary issue, and discussing potential defense attorneys.  The Court concluded that the judge “improperly acted as a legal advocate for Ms. Vargas and used his position as a judge to thwart the township’s criminal prosecution of his intern,” succeeding for a time in delaying the charges, and that his “actions—individually and taken together” constituted judicial misconduct.

In his answer to the Commission complaint, the judge had stated that “the vast bulk” of his communications with Vargas “related to a complex, sensitive project” she was working on for him in People v. Nassif.  The Court agreed with the Commission finding that that statement was “an intentional misrepresentation or a misleading statement.”  The Court explained:

The sheer number of communications—which were frequently exchanged during the night and on weekends—is inconsistent with respondent’s explanation that the communications related to court business, including an in camera review of evidence in the Nassif case.  Moreover, respondent testified that he learned that the Nassif case was assigned to him on August 11 or 12, and that his court did not receive the evidence for the in camera review until September 12.  Yet respondent and Ms. Vargas had already exchanged a surfeit of communications by then.  In addition, this explanation was inconsistent with another explanation advanced by respondent—that the communications were attributable to the “problems” that Ms. Vargas was having with her former boyfriend, who allegedly had been violent toward her.

However, the Court disagreed with the Commission’s additional finding that the judge made a separate intentional misrepresentation or misleading statement while testifying under oath at the hearing.  In response to the question whether he had any contact with Vargas between midnight and 3:30 that morning, the judge had answered “no” but then added, “I don’t believe there were any text messages.  I don’t believe that there was any contact.”  In fact, telephone records indicated that the judge and Vargas exchanged 6 text messages between 1:25 a.m. and 2:29 a.m.

The Court concluded that the judge had not made an intentional misrepresentation because he had “equivocated by adding that he did not ‘believe’ that there was any communication.”

[C]onsidering this context, it appears that respondent simply may not have recalled the precise timing of a few of the many communications he had with Ms. Vargas—communications that were not central to the allegations of misconduct in this case.  We find that respondent’s testimony on this point was careless and that he provided inaccurate information.  However, we do not believe that the JTC has sustained its burden of proving by a preponderance of the evidence that respondent made an intentional misrepresentation or misleading statement regarding his contacts with Ms. Vargas before 4:00 a.m. on September 8, 2013.

The Court noted that the Commission had also “equivocated” by finding that the judge made “an intentional misrepresentation or misleading statement,” and the Court stated that, if the Commission intended to find that the judge made an ‘”intentional misrepresentation,’ it should not have expressed its finding in the alternative.”  The Court emphasized that “it is far from clear that a ‘misleading statement’ is equivalent to a ‘lie under oath,’” noting it has not addressed “whether materiality or an intention to deceive are necessary to prove that a judge testified falsely under oath.”  Finally, stating that the judge should not receive a more serious sanction simply because he denied the allegations of misconduct, the Court explained that a contrary rule “would create immense pressure on judges to stipulate to the charges or risk removal for fighting them.”

Things that should go without saying

The Nevada Commission on Judicial Discipline recently found it necessary to state the obvious: a “court should not be used as an investigative dating service for [a judge’s] personal friends.”  The judge at issue had had a bailiff run a criminal history on the boyfriend of the judge’s friend through the National Crime Information Center system.  In her answer, the judge said she and her staff had done “a small favor” that may have saved her friend “tens of thousands of dollars and considerable grief and heartache.”  (The friend had lost $65,000 in a previous relationship.)  The Commission found that this was “neither the proper use of the NCIC system nor of the court’s judicial resources and staff,” noting the judge’s actions constituted a misdemeanor.

The Commission suspended the judge for 1 year without pay for, in addition to the inappropriate NCIC search, other actions demonstrating a “proclivity towards following her own moral compass in administering her version of justice irrespective of the law.”  The Commission also found that the judge had sealed her then son-in-law’s criminal records relating to his arrests for domestic battery of her daughter; sentenced an unrepresented man to 8 months in jail in violation of due process; referred to men as “sperm donors;” run a juvenile diversion program that did not comply with the law; and issued orders in small claims cases regarding titles for abandoned vehicles.  In the Matter of Haviland, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline August 29, 2017).  In aggravation, the Commission noted that the judge was not new to the bench, had shown no remorse, and did not admit any wrongdoing.  The judge is not a lawyer and sits as a justice of the peace in a community with a population of less than 250.

In a case involving a law-trained judge in San Diego County, the California Commission on Judicial Performance also had to emphasize the basics.  For example:

  • The Commission explained that the judge “should have realized that sharing a gratuitous personal anecdote about sleeping and showering with a friend, with a reference to sex, was likely to make people in the courtroom uncomfortable and diminish the dignity of the judicial office.” Telling someone in his courtroom that he took care of a friend with whom he traveled because the friend had seizures, the judge had shared that he showered and slept with the friend but added “[t]here was no sex involved.  We were just — we were just friends.  It was purely platonic.”
  • The Commission explained that “it was disrespectful and undignified for a judge to suggest or imply that an attorney appearing before the court was a prostitute,” even in jest. When a deputy city attorney entered the courtroom, the judge had said, “Speaking of prostitution, here’s Miss Westfall,” while on the bench and with court staff and other attorneys present.
  • The Commission explained that “the degree of informality permitted in small claims proceedings does not include the gratuitous creation of undignified and discourteous nicknames.” In a small claims case, the judge had repeatedly referred to a representative of the defendant’s insurance company as “Mr. Insurance Man.”

These were 3 of the 15 incidents of improper courtroom demeanor found by the Commission.

The Commission severely censured the judge for, in addition to his improper courtroom demeanor, misconduct during his campaign; after becoming a judge, remaining as counsel of record in a federal action and giving the impression of practicing law by using checks from his law firm account; improperly responding to a “blanket” challenge from the city attorney’s office; telling an African-American court employee that she should not say she did not win a Halloween costume contest “due to racism;” stating during a proceeding, “I had a Filipino teacher who always used to ask for a shit of paper;” improperly soliciting the legal opinion of attorneys who did not represent a party in the case before him; mishandling a small claims case; and repeatedly interjecting views based on his personal experience into a small claims case.  Inquiry Concerning Kreep, Decision and order (California Commission on Judicial Performance August 7, 2017).