Category Archives: Judicial misconduct

No “carte blanche” for judicial speech

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In a recent judicial discipline case, the Michigan Supreme Court rejected a judge’s argument that part of her conduct was protected by the First Amendment, as 2 other courts did for other judges’ speech earlier this year.  See Judges’ weekends, living rooms, and free speech. 

As found by the Judicial Tenure Commission in its report and recommendation, under a performance-improvement plan imposed by the Chief Judge of her district, the judge was required to report when she got to work.  The Court found that, “purportedly” to comply with that requirement, the judge sent “ominous Bible verses” to the Chief Judge and court administrators when she arrived at the courthouse.  For example, the judge sent emails to her supervisors and colleagues that stated:

  • “Sovereign Lord, my strong deliverer, you shield my head in the day of battle.  Do not grant the wicked their desires, Lord; do not let their plans succeed.  Those who surround me proudly rear their heads; may the mischief of their lips engulf them.  May burning coals fall on them; may they be thrown into fire, into miry pits, never to rise.  Psalm 140:7-10.”
  • “But the cowardly, the unbelieving, the vile, the murderers, the sexually immoral, those who practice magic arts, the idolaters and all liars – they will be consigned to the fiery lake of burning sulfur.  This is the second death.  Revelation 21:8.”

When a court administrator asked her to stop sending these messages, the judge replied in an email:  “You brood of vipers, how can you who are evil say anything good?”

The judge argued that she was exercising her rights to free speech and religion when she sent the Bible verses.  Rejecting that argument, the Court explained:

The Bible verses quoted by respondent were, in the context of respondent’s e-mails, clearly intended to be insulting, discourteous, disrespectful, and menacing toward the recipients.  The e-mails also reflect a failure to demonstrate the professionalism demanded of judges.

The right of free speech generally entitles a person to, among other things, protection from government persecution based on speech. . . .  The goal of disciplinary proceedings is not punitive; rather, it is to “restore and maintain the dignity and impartiality of the judiciary and to protect the public.” . . .  Freedom of speech is not the freedom from all consequences for one’s actions.  Moreover, a “judge must . . . accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” . . .  The First Amendment does not provide government employees carte blanche to engage in conduct that amounts to “insubordination” that “interfere[s] with working relationships.” . . .  This type of conduct is certainly beyond the pale for a member of our judiciary.  Respondent’s refusal to simply convey that she had arrived at work as required by the Chief Judge’s order amounted to insubordination and clearly interfered with multiple working relationships.

The Court concluded that sending the emails was part of the judge’s obstruction of court administration that also included her failure to comply with the performance plan and her intentional refusal to follow the Chief Judge’s orders.

In addition, the Court found that the judge committed misconduct by:

  • Abusing her contempt powers in 2 summary eviction proceedings by failing to hold proper hearings, forcing parties to pay illegal sanctions in civil actions, and unlawfully jailing a process server for civil contempt;
  • Summarily dismissing or adjourning cases because a party had used a process server that she believed was dishonest without making factual findings that process had not been served, and, when the Chief Judge admonished her to stop dismissing cases, “pretextually dismiss[ing] cases, misapplying the law to get to the result she wanted—not the result that was just or required;”
  • Intentionally disconnecting the videorecording equipment in her courtroom, purposefully failing to maintain a record of proceedings in her courtroom for weeks, using her personal cell phone to record proceedings, and lying to the Commission about disconnecting the equipment; and
  • Parking in a handicap loading zone at a gym, blocking in another car, placing an “official business” placard in her vehicle window that said, “this vehicle shall not be cited or impounded under penalty of law,” and flashing her judge’s badge when a police officer arrived.

In aggravation, the Court found that the judge committed much of the misconduct while she was “on the bench,” noting that “whether something occurs ‘on the bench’ is not literal, but rather depends on whether the conduct occurs in that person’s capacity as a judge. . . .”  The Court concluded:  “Respondent engaged in repeated, deliberate misconduct that besmirched the judiciary’s reputation and prejudiced the administration of justice.  The nature and pervasiveness of respondent’s misconduct requires the highest condemnation and harshest sanction.”

Because the judge’s term ended at the end of 2023, the Court rejected as moot the Commission’s recommendation that she be removed from office.  (As the Court noted, the judge had been taken off the 2022 ballot because she incorrectly stated on her affidavit of identity that she had paid all outstanding late filing fees under the state campaign finance act.)  Instead, the Court imposed a “conditional” 6-year suspension without pay that will only take effect if the now-former judge is elected or appointed to the bench within 6 years; if that happens, she will be suspended without pay until 6 years after the date of the discipline decision.  In re Davis (Michigan Supreme Court June 23, 2023).

Appointment of counsel for indigent defendants

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Pursuant to the judge’s consent, the Arkansas Judicial Discipline & Disability Commission publicly censured a judge for a pattern of failing to consider the legal standard for appointing the public defender for misdemeanor defendants.  Bourne, Letter of censure (Arkansas Judicial Discipline & Disability Commission August 1, 2022).  The Commission acknowledged that the decision to appoint counsel is a legal determination and that a judge could incorrectly decide the issue without violating the code of judicial conduct.  However, it concluded that the judge’s pattern of failing to appoint counsel, his disregard for the proper procedure, and his failure to consider the legal standard “pushe[d] his legal error into the realm of judicial misconduct.”

For years, the judge rarely approved affidavits of indigency submitted by defendants.  The affidavits were not kept as a public record and were destroyed.  The Commission found that the judge “often discouraged defendants from seeking appointments, telling them they would ‘probably not’ qualify before even reviewing all of the factors and the affidavit.”  “Instead of conducting a proper review,” “he would frequently just respond with, ‘I am not going to appoint a lawyer for you.  Get a job.’”

The Commission noted that, as part of an extensive news report by a TV station, many citizens told an investigative reporter that they had been denied appointed counsel on misdemeanor charges in the judge’s court, and in an on-camera interview, the head of the state’s Public Defender Commission agreed that affidavits from defendants in the judge’s court showed counsel had not been appointed for defendants who qualified.  See KARK.com, “Working 4 You:  Public defender Denied in court, records reveal only 48 cases in nine years” (October 28, 2021).

In a separate proceeding, based on the Commission recommendation and the judge’s agreement, the Arkansas Supreme Court suspended the same judge for 90 days without pay for a pattern of injudicious conduct toward defendants; the Court held 75 days of the suspension in abeyance subject to the judge’s compliance with conditions and ordered that he never again hold judicial office after his current term ends.  Judicial Discipline & Disability Commission v. Bourne, Per curiam (August 9, 2022).

In a petition in December 2022, based on 5 complaints about his conduct after he returned from his suspension, the Commission alleged that the judge had violated his agreement in the prior discipline case.  The judge resigned, and the Commission dismissed the complaints.   See arkansasonline.com, “Pope County judge accused of improper behavior announces retirement after facing more complaints” (January 3, 2023).

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Based on the judge’s agreement, the Kentucky Judicial Conduct Commission suspended a judge for 14 days without pay for denying appointment of counsel to defendants without making the necessary review of their indigent status.  In re Ruttle, Agreed order of suspension (Kentucky Judicial Conduct Commission March 1, 2023).

The order names 1 specific case in which the judge denied appointment of counsel at a defendant’s initial court appearances in 2021 without determining whether the defendant was indigent as required by statute.  The Commission found that a review of the judge’s felony arraignments revealed that this was “not an isolated incident.”

In 2021, based on an agreement, the Commission had suspended the same judge for 7 days without pay for (1) requiring criminal defendants to file written demands for jury trials; (2) making impatient, undignified, and discourteous comments to attorneys from the state public defenders agency; and (3) in a proceeding with an unrepresented defendant, suggesting a plea agreement that could reasonably be perceived as coercive.  In re Ruttle, Agreed order of suspension (Kentucky Judicial Conduct Commission April 7, 2021).

The bar and prejudice to the administration of justice

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In most states, a former judge remains subject to judicial discipline authorities for their conduct on the bench; approximately 8% of public sanctions in 2022 involved former judges.  However, a judicial conduct commission may sometimes decide not to exercise its jurisdiction over a former judge, and in some states, the commission’s jurisdiction ends when a judge’s time on the bench is over.  See “Before and after the bench:  Part 2,” Judicial Conduct Reporter (NCSC fall 2015).

Former judges may be sanctioned in bar discipline proceedings for misconduct while they were judges.  Those cases usually cite the state’s equivalent of Rule 8.4(d) of the American Bar Association’s Model Rules of Professional Conduct:  “It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.”

4 public dispositions in 2022 were attorney discipline sanctions of former judges, and there have been 2 so far in 2023.

  • Based on an agreement, the Arizona Supreme Court Attorney Discipline Probable Cause Committee publicly admonished a former judge for contacting the county attorney’s office regarding potential employment while still a judge, failing to supervise court staff, and engaging in unprofessional communications with court staff.  In the Matter of Otis, Order of admonition and costs (Arizona Supreme Court Attorney Discipline Probable Cause Committee October 20, 2022).
  • Granting a petition for consensual license revocation, the Wisconsin Supreme Court revoked the license of a former judge based on his conviction, entered following a guilty plea, on 2 federal felony counts of distribution of child pornography.  In the Matter of Blomme, 982 N.W.2d 100 (Wisconsin 2022).  The judge had resigned shortly after pleading guilty.
  • Accepting a joint petition for consent discipline, the Louisiana Supreme Court suspended a former judge from the practice of law for 1 year and 1 day based on an investigation of allegations that, while he was a judge, he touched several women and acted inappropriately in the courtroom.  In re Williams, 341 So. 3d 527 (Louisiana 2022).  The Court noted that, in July 2018, it had disqualified the judge from performing judicial functions pending complaints made to the Judiciary Commission but that jurisdiction had “passed” to the Office of Disciplinary Counsel when the judge resigned in February 2020 before judicial discipline proceedings concluded.
  • Based on a decision by the Alabama Supreme Court, the State Bar publicly reprimanded a former judge and an attorney for engaging in an affair while the attorney was routinely appearing before the judge. Alabama Bar v. Kaminski (Alabama Supreme Court February 25, 2022). In 2019, the Judicial Inquiry Commission had filed a complaint against the judge based on the affair, but, after the judge resigned, the Court of the Judiciary accepted a stipulation in which the now-former judge agreed to never again seek judicial office in the state and the Commission agreed to dismiss its complaint.  In the Matter of Kaminski, Final judgment (Alabama Court of the Judiciary August 6, 2019).

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Based on a report and recommendation of the hearing board of the Attorney Registration and Disciplinary Commission, the Illinois Supreme Court disbarred a former judge for sexually harassing a police officer, a court reporter, and an assistant state’s attorney while he was a judge.  In re Araujo, Order (Illinois Supreme Court January 17, 2023).  In 2020, the judge had resigned after the Courts Commission found following a hearing that the judge had engaged in a pattern of inappropriate and harassing behavior toward the same three women referred to in the bar discipline case, but continued the question of sanction to allow more argument

While a female Chicago police officer was getting his signature on a search warrant, the then-judge had attempted to kiss her on the lips, grabbed her hand, and told her, “Touch my butt.”  On another occasion, he made lewd comments to the same officer when they met at her squad car about another search warrant.  On 2 occasions, the judge had suggestively approached a female court reporter when they were alone in a courthouse elevator and asked how much money it would take for her to have sex with him.  In addition, in a conversation with an assistant state’s attorney in his chambers, the judge had called another female assistant state’s attorney, who had been his law school classmate, a “bitch” because she had failed to congratulate him on his promotion to a new courtroom or to say hello to him.  He added:  “Maybe it’s because I didn’t have sex with her.  Or maybe it’s because I did have sex with her.”

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Following a hearing on charges filed by the Office of Chief Disciplinary Counsel, the Missouri Supreme Court suspended a former judge from the practice of law for 2 years for, during his unsuccessful 2018 re-election campaign, threatening to file an ethics complaint against a potential opponent if she decided to run against him and threatening to disclose a former client’s confidences.  In re Prewitt (Missouri Supreme Court January 31, 2023).  After he lost the election, the judge had resigned “to protect his judicial pension and save attorney fees” prior to a hearing on allegations filed by the Commission on Retirement, Removal and Discipline, although it is not clear whether those allegations were related to his conduct in the 2018 election.

In 2014, Kristen Burk ran against the judge, who was the incumbent.  Directly before the election, Burks distributed a flier with the heading:  “PREWITT…WORKING TO MISLEAD VOTERS.”  The judge won re-election.

In 2018, after deciding to run against the judge again, Burks had conversations with her pastor, her law partner, and a former police chief that caused her to believe that the judge planned to use her husband’s infidelities as an issue in the campaign.  For example, she was told that the judge had said that if she ran against him, “things were going to come out in this next election that maybe hadn’t before,” that the campaign would be “a bloodbath,” and that he did not believe Burks wanted her children to find out about her husband’s affairs.

Burks also found an anonymous letter addressed to her daughter that crudely described her husband’s infidelities.  Burks believed the judge was responsible for the letter.  After contacting authorities, she met with the judge at a restaurant and recorded their discussion with a device provided by the FBI.

Their conversation was heated.  The judge denied knowing about the letter, and there is no evidence that he was involved. 

But the Court found that the judge had attempted to coerce Burks not to run against him during their meeting.  It explained:

First, he threatened that Burks’ filing would result in him filing an ethics complaint against her based on the previous campaign.  Second, he threatened to give speeches and send out fliers in which he would call her husband a “predator.”  Intertwined in this threat was Prewitt’s intention of making a point that Burks’ children, who were unaware of the affair, would be certain to learn of it.

The judge had said to Burks, “You file against me, next day, [the flier] goes down to the ethics commission,” and the Court held that a judge’s “threat to file an ethics complaint against a lawyer, if and only if that lawyer decides to oppose him in an election, is impermissible.”  It stated:

Prewitt’s intention to file the complaint showed either (1) he believed Burks’ prior campaign information violated the Rules or (2) he meant to harass her with a complaint that did not rise to a Rules violation.  If Prewitt believed the prior campaign material warranted reporting . . . , he had an obligation to file the complaint.  Yet he held it in abeyance. . . .  A judge’s threat to file a required ethics complaint, at his discretion and for his benefit, destroys public confidence in the independence, integrity, and impartiality of the judiciary; is an abuse of the prestige of judicial office for personal benefit; and is prejudicial to the administration of justice.

The judge had told Burks at the restaurant “I know a lot of things” when referring to his representation of one of the women with whom her husband had had an affair.  The Court found that this was a threat to disclose a former client’s confidences to help his campaign and violated the rules of professional conduct.

State judicial discipline in 2021

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In 2021, there were approximately 116 public state discipline proceedings involving judges or former judges.  Approximately 55% of the cases were resolved pursuant to an agreement.

  • 2 judges were removed from office.
  • 1 judge was involuntarily retired.
  • 28 judges publicly agreed to resign or retire and never serve in judicial office again.
  • 7 judges publicly agreed to resign or retire and never serve again and, in addition, to receive a public censure (2 judges) or a public admonishment (4 judges) or to pay attorney’s fees and costs for the investigation and prosecution of the case, which were almost $74,500.
  • 20 judges were suspended without pay as a final sanction for from 7 days to 2 years, although 5 of those suspensions were deferred in whole or in part subject to the judge committing no further misconduct and other conditions.
    • 1 judge was suspended without pay for 2 years with all but 6 months deferred subject to the judge completing a lawyers assistance monitoring program.
    • 1 judge was suspended for 18 months and agreed to complete an on-line ethics course.
    • 2 judges were suspended for 1 year.  1 of those suspensions was stayed after approximately 2 months conditioned on the judge complying with a counseling and training plan.
    • 1 judge was suspended for 10 months with her resumption of duties conditioned on her compliance with a professional development plan.
    • 4  judges were suspended for 6 months.  2 of those suspensions were stayed with education requirements.  1 also required the judge to complete anger management training.  1 also placed the judge on probation, prohibited her from serving in the family court division during her probation, and ordered her to consult with a mentor and apologize to each person she had wronged.
    • 3 judges were suspended for 90 days or 3 months.  1 of those suspensions also included a censure and required the judge to obtain additional judicial education and to apologize.  60 days of 1 of those suspensions was stayed conditioned on the judge attending a class on mindfulness, patience, or civility and consulting with a counselor or life coach about how to treat the professionals appearing in his court.
    • 4 judges were suspended for 1 month or 30 days.  1 of those suspensions included a requirement of additional training, a mentorship, and probation.
    • 1 judge was suspended for 2 weeks and placed on probation until the end of his term.
    • 1 judge was suspended for 10 days, fined $37,500, and publicly reprimanded.
    • 2 judges were suspended for 7 days.
  • 52 judges (or former judges in approximately 12 cases) received public censures (7), reprimands (24), admonishments (16), or warnings (3), with education or mentoring required in 13 of the cases.  1 of the censures also included a $1,000 fine.  1 of the reprimands also included a $2,500 fine.
  • 2 judges and 1 former judge were ordered to cease and desist certain conduct.
  • 2 former judges received informal adjustments.
  • 1 judge was suspended with pay for 30 days in a state that does not have the option of suspension without pay.
  • 1 former judge had his law license suspended for 180 days in attorney discipline proceedings for conduct while he was a judge.
  • 1 former judge will be suspended without pay for 6 years if he is elected or appointed to judicial office during the next 6 years.

See also State judicial discipline in 2020. 

“Secondary judicial system for select defendants”

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Based on their agreements to resign and never to seek judicial office, the West Virginia Judicial Investigation Commission publicly admonished two former magistrates for dismissing criminal charges in exchange for donations to a charitable organization pursuant to motions from the prosecution.  Public Admonishment of Nutter (West Virginia Judicial Investigation Commission August 27, 2021); Public Admonishment of Taylor (West Virginia Judicial Investigation Commission August 27, 2021).  The Commission found that, by dismissing criminal charges in exchange for donations to a charitable organization, the magistrates “created the appearance of selling justice” in their courtrooms and that, by going along with the prosecutor’s office, the magistrates “created a secondary judicial system for select defendants.”

The St. Marys Police Department had a non-profit program called “Slow Down for the Holidays” to raise money to provide Christmas presents for children in the community.  During the final 2 or 3 months of the year, during a traffic stop, police had the option of giving a driver a flyer that indicated that the driver could face their criminal charges or make a $50 donation to the program.  If the driver chose the donation, the municipal court would dismiss the citation, and the driver would avoid criminal fines, court costs, and a conviction on their record.  All of the citations were for non-serious traffic offenses such as speeding, and none involved jail time.  In 2018, the Pleasants County Sheriff’s Office joined the “Slow Down for the Holidays” program.

Also in 2018, the county prosecutor’s office decided to offer a few defendants charged with misdemeanors the opportunity to donate to the program in exchange for dismissal of their charges.  During the holiday months in 2018, 2019, and 2020, the prosecutor’s office offered at least 19 defendants the opportunity to avoid the consequences of their charges by donating to the program.  The cases involved more serious charges than traffic charges, and the defendants were required to donate $200 to $5,000, not $50 a charge.  Upon proof of a donation, the prosecutor’s office would make a motion to dismiss the charges to one the magistrates, and the magistrates would grant the motion.

The 2 magistrates dismissed 17 cases in total in which donations had been made to the program.  Of those, 12 involved criminal charges that would have resulted in an enhanced penalty if the defendant had been charged again; by dismissing the charges, the magistrates had ensured that the defendants would not receive a judgment of guilty that could later have been used to enhance criminal penalties.  Similarly, in 16 of the cases, the dismissals allowed the defendants to avoid receiving points on their license or a possible license suspension.

The magistrates were aware that there were no legal defects in the cases and that the only reason for the motions to dismiss was that the defendants had donated money to the police department charity.  As the magistrates admitted, no law, court rule, or caselaw allowed them to dismiss cases because the defendants donated to charity; they had not investigated whether there was any authority for the dismissals or asked for advice from other magistrates, judges, or the Commission, but had relied on the representations of the prosecutor’s office. 

Uncomfortable, angry, and hurt

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Based on a stipulation and the recommendation of the Commission on Judicial Discipline, the Colorado Supreme Court accepted the resignation of a judge and publicly censured her for (1) using the N-word in a conversation with a Black staff member; (2) expressing her views about criminal justice, police brutality, race, and racial bias while wearing her robe in the courthouse and on the bench; (3) referring to a judicial colleague in derogatory terms; and (4) using court staff for personal tasks.  In the Matter of Chase, Order (Colorado Supreme Court April 16, 2021). 

In late January or early February 2020, the judge drove a family court facilitator and the judge’s law clerk in her car to and from a safe baby program.  The judge is White; the family court facilitator is Black.  On the way back from the program, the judge asked the family court facilitator why Black people can use the N-word but White people cannot and whether it was different if the N-word is said with an “er” or an “a” at the end.  During the conversation, the judge used the full N-word a number of times.  The family court facilitator was uncomfortable, angry, and hurt by the conversation but could not leave the car or the conversation and did not express her emotions because she feared retaliation by the judge.  She explained that the judge’s use of the full N-word was “like a stab through my heart each time.”  

The judge maintained that she did not intend any racial animus, but acknowledged that her statements violated the code of judicial conduct.  The Commission concluded that, “although not directed at any person, saying the N-word has a significant negative effect on the public’s confidence in integrity of and respect for the judiciary.”

In early February 2020, the judge was on the bench, wearing her robe, during a break in court proceedings.  There were 2 or 3 other people in the courtroom.  2 employees in the courtroom were Black.  When someone brought up watching the Super Bowl, the judge stated, from the bench, that she would be boycotting the Super Bowl because she objected to the NFL players who were kneeling during the National Anthem in protest of police brutality against Black people.

On the Monday in May 2020 after George Floyd was killed in Minneapolis, Minnesota and after there were Black Lives Matter protests in Denver, 2 Black court employees were in the judge’s courtroom.  One of them asked the other if they had seen the George Floyd protests.  The judge, while wearing her robe and sitting on the bench, told the employees some of her opinions regarding racial justice issues and asked questions about the Black Lives Matter movement.  The employee tried to explain the Black Lives Matter movement; the judge stated that she believes all lives matter.  The judge also stated that the conduct of the police officers in the George Floyd matter should be investigated.

In the first half of 2020, the judge told her clerk she was meeting with another judge.  When she returned from the meeting, the clerk asked how it went, and Judge Chase called the other judge a “f****** b****.”

In early 2020, the judge directed her law clerk to do some legal research related to a personal family legal issue that was unrelated to the judge’s official case load.

In August 2020, the judge had a medical episode at the courthouse.  After courtroom deputies came to her aid, the judge declined an ambulance.  She then asked one of the court employees to drive her to the emergency room.  The judge also asked the court employee to stay with her at the hospital.  The employee missed a half day of work to accommodate the judge.

Throughout 2020, the judge forwarded personal emails to her clerk and asked her clerk to edit or rewrite the emails to read better before the judge sent them.

The judge repeatedly and discourteously discussed personal and family matters with staff and other employees in office work areas and as part of court business.

Judicial discipline during a pandemic

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The number of public state judicial discipline cases in 2020 — 127 — was about the same number as 2019 even though, like everyone everywhere, judicial conduct commissions had to adjust their operations at short notice during the COVID-19 pandemic.  As commissions begin to release their annual reports for 2020, several have described the effects of the pandemic on their work.

In its annual report for its most recent fiscal year (September 2019 through August 2020), the Texas State Commission on Judicial Conduct describes how COVID-19 “frustrated normal operations, as it has for other state agencies,” but “caused the Commission to employ new and innovative practices.”  It explains:

Prior to early 2020, very little remote work was performed by Commission staff; however, since the Governor’s emergency order, Commission staff has effectively worked remotely.  The Commission commenced conducting hybrid meetings allowing remote or in-person appearances by Commissioners, staff and judges.  This was accomplished by utilizing Zoom technology provided by the Office of Court Administration while holding meetings around the State – thus far, in West, Central and North Texas.

The report states that “despite the challenges,” the Commission “resolved 1,240 cases which neared the prior ten-year average disposition rate of 1,260.”  (The Commission did note that it had disposed of approximately 27% fewer cases than in fiscal year 2019 because its ability to access information and investigate complaints was “severely limited” “for a significant, extended time” by a “devastating ransomware attack” suffered by the Commission’s information technology provider, the Texas Office of Court Administration.”)

The 2020 annual report of the New York State Commission on Judicial Conduct describes how the pandemic posed “unprecedented challenges” for the Commission “as it did throughout state government and, indeed, the nation and world.”  It explains the “‘virtual’ administration of the agency” that began in March.

Since then, nearly all agency business has been conducted electronically by staff operating in remote locations.  Commission meetings, staff meetings, investigative interviews, depositions and disciplinary hearings have proceeded via remote video platforms.  Documents have been disseminated and received by email as well as postal or courier services.  Faxes transmitted to the office over telephone lines have been automatically digitized and rerouted to an electronic email in-box.  As a result of these and other adjustments to business-as-usual, the Commission was able to keep abreast of its constitutional responsibilities. . . .

Although it expresses the hope for “a return to its offices in the fall of 2021,” the Commission predicts that “the innovative remote/electronic/operational adaptations necessitated by the pandemic will likely remain part of the ‘new normal’ in the post-Covid era.”

The Commission reports that its 24 public dispositions in 2020 were “the most in any year since 2009.”  The Commission also notes, however, that it received fewer new complaints in 2020 – 1504 compared to 1944 in 2019 — “in light of the Coronavirus pandemic, which caused the courts to close or operate in a limited manner throughout most of 2020.” 

The introduction to the 2020 annual report of the California Commission on Judicial Performance states.

The year 2020 has been extraordinary in many ways.  In the 60 years since the Commission was created, we have not seen the challenges and difficulties that have impacted everyone during this trying time.  The COVID-19 pandemic has turned our world upside down and has unfortunately led to tragic consequences for many.  But, in this difficult time, people have risen to the occasion to make sure we can continue to function as a society.  This was the case here at the Commission.  The employees at the Commission have stepped up to put in long hours, working remotely from home, not having the resources that they would normally have, to ensure that the functions and goals of the Commission continue to be met.  The constitutional mandate of the Commission on Judicial Performance is to protect the public.  No one here at the Commission has lost sight of this mandate during these trying times.

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Beginning in March 2020, the Commission conducted all of our regularly scheduled meetings remotely, and we were able to consider each and every complaint filed.  This allowed us to handle matters as they came in and not get backlogged, despite the statewide shutdown.  During these meetings, we continued to have appearances by judges who wanted to be heard regarding their tentative discipline.  With the cooperation of the California Supreme Court, letting us use its courtroom, we were also able to conduct a public formal proceedings hearing with several Commission members appearing in person, as well as the judicial officer, his attorney, and the examiner who prosecuted the case (while properly socially distancing and wearing masks).  The other members of the Commission were able to appear and participate remotely, and members of the public were able to view the hearing via livestream.

Not a matter of management style

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The North Carolina Supreme Court found that a court of appeals judge had committed willful misconduct by allowing his executive assistant/law clerk, who was a close friend, to create a toxic work environment for the female law clerks in his chambers.  In re Inquiry Concerning Murphy, 852 S.E.2d 599 (North Carolina 2020).

After he became a judge in January 2017, the judge hired his close, personal friend from high school, Ben Tuite, to serve as his executive assistant and permanent third law clerk.  The judge gave Tuite “express and implied authority to supervise and manage the term law clerks and the operations of his chambers.”  The judge hired Clark Cooper and Lauren Suber as his term law clerks.  In March 2017, after Cooper suddenly resigned, the judge hired Mary Scruggs.  After Suber completed her clerkship in August 2017, she was replaced by Chelsey Maywalt. 

The Judicial Standards Commission found that Tuite “regularly used profanity during the workday, belittled others,” “used fear and intimidation while interacting with and supervising the law clerks,” “engaged in profane, violent and angry outbursts in the office,” and made “lewd or sexually inappropriate comments in the workplace.”  For example:

  • Tuite frequently used the word “f**k” in the workplace.
  • Tuite referred to the female law clerks more than once as “b***h” or “b***hing.” 
  • Tuite told Suber and Scruggs on separate occasions early in their clerkships that “he likes to have relationships with female co-workers but that they should not misconstrue his efforts to spend time with them.”
  • Tuite told Suber that “he would like to see her in a wife beater’ tank top and shorts on a cold day” and that he “was married but not blind.”
  • While reviewing a law clerk application with the judge, Suber, and Scruggs, Tuite repeated “derogatory and belittling online comments” that called the female applicant’s breasts “fun bags.”
  • On one occasion, Tuite, “after being told of a problem with his work product, yelled ‘f**k’ loud enough for everyone in the judge’s] chambers, including [the judge] who was in his office with the door open, to hear, and slammed his fist on a table hard enough to activate a panic alarm that was attached to that table.”
  • On another occasion, during a meeting, Tuite, in the judge’s presence, got angry at Maywalt, slammed his fist on his chair, said, “Goddamn it, Chelsey,” and told her to shut her mouth and that “her opinion did not f**king matter.”

The judge observed some of Tuite’s conduct, and the law clerks told him about other incidents, but he failed to take any action.  The female clerks “were miserable, felt unsafe and uncomfortable working in [the judge’s] chambers and did not trust [the judge] to accurately portray their reports of workplace misconduct to others or to protect their well-being.”  2 of the clerks resigned before their terms were over; one did not accept the judge’s offer to extend her term. 

Another judge reported his concerns about the environment in Judge Murphy’s chambers to the chief judge.  In subsequent meetings with and emails to the Commission and the human relations department, the judge did not disclose the law clerks’ complaints about Tuite or any of the incidents he had observed and “downplayed, minimized, and mischaracterized” Tuite’s actions.  “The judge dismissed the female clerks’ concerns as complaints about “‘how things are handled’ inside and outside of chambers.”  The judge also regularly assured Tuite and indicated to others that Tuite’s employment at the court of appeals would continue.  However, after a judicial colleague advised him to ensure that “his female law clerks were not uncomfortable” and after learning that Scruggs was interviewing for another position, the judge asked Tuite to resign, which he did in January 2018.

Finding that he had been “influenced by his close personal friendship with and loyalty towards Mr. Tuite,” the Commission concluded that, by failing to act, the judge condoned “Tuite’s workplace misconduct and therefore . . . contributed to and enabled a toxic work environment.”  The Court adopted the findings of the Commission.

The Court rejected the judge’s argument that he could not be held accountable for others’ actions; it noted that the code of judicial conduct specifically states that a judge should require “dignified and courteous’ behavior of his staff” and require “staff and court officials subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge.”  The Court concluded:

The incidents for which respondent was present . . . were sufficient to warrant corrective action with regard to Mr. Tuite.  Instead, respondent continued to turn a blind eye.  This shortcoming is not, as [the judge] contends, simply a matter of managerial style.  Rather, it is a failure to recognize the gravity of Mr. Tuite’s sexually explicit language and profane and suggestive language directed toward [the judge’s] law clerks and the impact on the law clerks of such unprofessional behavior.

Multiple acts of misconduct aggravated by a failure to acknowledge fault or show remorse and by a lack of candor often result in a judge’s removal or suspension without pay in judicial discipline cases.

However, the North Carolina Supreme Court only publicly censured Judge Murphy without explanation except the conclusion that his conduct “did not rise to the level of incurring suspension or removal as contemplated in other decisions of this Court.”  The Court did not cite its other decisions, but since 2008, it has removed 2 judges and suspended 2 judges without pay, in addition to imposing several censures and reprimands.  See In re Chapman, 819 S.E.2d 346 (North Carolina 2018) (30-day suspension without pay for failing to issue a ruling for more than 5 years on a motion for permanent child support); In re Hartsfield, 722 S.E.2d 496 (North Carolina 2012) (based on stipulated facts, 75-day suspension without pay for ticket-fixing); In re Belk, 691 S.E.2d 685 (North Carolina 2010) (removal of former judge for remaining on the board of directors of a corporation and making intentional misrepresentations during the Commission investigation); In re Badgett, 666 S.E.2d 743 (North Carolina 2008) (removal of judge for mishandling a domestic violence protective order case and, during the investigation, making untruthful, deceptive, and inconsistent statements to a State Bureau of Investigation agent and attempting to influence the recollections of a deputy clerk and the plaintiff’s attorney; the judge had been censured and suspended earlier in the year for unrelated misconduct).

Judicial rides

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Recently, based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for giving a defendant a ride home after his arraignment and then presiding over his case, in addition to other misconduct.  In the Matter of Parker, Determination (New York State Commission on Judicial Conduct August 13, 2020). 

The judge released E.B. after arraigning him on grand larceny, a felony.  Mr. B. appeared without counsel, and no one from the district attorney’s office was present.  During the arraignment, Mr. B. told the judge that he was a professional musician.  After the arraignment, the judge engaged Mr. B. in a conversation about music and the musicians with whom Mr. B. had performed.  The judge then offered to give Mr. B. a ride home, which Mr. B. accepted.  The judge drove Mr. B. to his residence, and they talked throughout the car ride, which lasted approximately 15 minutes.

A week later, Mr. B. appeared without counsel before the judge.  At the prosecutor’s recommendation, the charge against Mr. B. was reduced, and the judge granted an adjournment in contemplation of dismissal.  The judge did not disclose to the prosecutor that he had given Mr. B. a ride home or offer to recuse himself from the case.

During the Commission’s investigation, Mr. B. stated that he and the judge did not discuss his case during the car ride although he could not recall what they did discuss.  In his sworn testimony, the judge averred that they only discussed music and did not discuss Mr. B.’s case.

The Commission found:

Respondent had an extreme lapse in judgment when he offered and then gave a defendant a ride home after conducting the defendant’s arraignment in the absence of a prosecutor and releasing him on his own recognizance.  Such extra-judicial conduct involving a defendant whose case is pending in respondent’s court is highly improper.

The Commission found that the judge’s misconduct was compounded when he disposed of Mr. B.’s case a week after giving him a ride, explaining that “a reasonable person might conclude that giving the defendant a ride home indicated that respondent could not be impartial when it came to adjudicating the defendant’s case.”

This was not the first time a New York judge had been sanctioned based on a car ride.  In In the Matter of Burke, Determination (New York State Commission on Judicial Conduct (April 21, 2014), the Commission publicly censured a judge for riding in a police car with a defendant after arraigning him, recommending that the defendant retain the judge’s business partner as his attorney, giving him legal advice, and presiding over his case, in addition to other misconduct.

The judge arraigned Michael Matus on driving while intoxicated charges, suspended his license, and released him on his own recognizance.  During the arraignment, the judge told Matus that he could apply to the court for a hardship driver’s license.

After the arraignment, the judge, who had left his vehicle at a service station, asked the police for a ride home.  The judge was driven home in the police car transporting Matus.  The judge sat in the front seat with an officer; Matus was in the back seat.  During the ride, the judge told Matus that he could no longer hear Matus’s case because he was riding in the police car with him.  Matus told the judge that the suspension of his license would cause extreme hardship because he had to drive his wife to New York City for cancer treatments.  The judge again told Matus that he could apply for a hardship license.  When Matus told the judge that he did not know any attorneys, the judge suggested Tina Piette with whom the judge owned 2 investment real estate properties.  Matus met with and retained Piette the next day.

A week later, the judge granted Matus’s application for a hardship license so that he could drive to his wife’s medical appointments and to his appointments for alcohol evaluation and therapy.  The judge did not preside over any subsequent proceedings in the case.

At the discipline hearing, the judge testified that he did not disqualify himself from Matus’s application for a hardship license because he considered it to be “administrative.”  The judge acknowledged that it was improper to ride in the police car with Matus, to speak ex parte with him during the ride, and to recommend Piette as a lawyer.

The Commission concluded that, as a result of his ex parte communications with Matus during the car ride, the judge’s impartiality could reasonably be questioned when Matus filed a hardship license application — “the very subject they had discussed ex parte in the police car” – and that disqualification or, at least, disclosure of the conversation, was required “even if the application seemed routine or ministerial.”  Further, the Commission rejected the judge’s assertion that the application was an “administrative matter” because “granting such an application necessarily involves the exercise of judicial discretion.”  Finding that the judge showed poor judgment, the Commission stated:

In sum, respondent’s handling of the Matus case was inconsistent with numerous fundamental ethical principles.  Viewed objectively, the totality of his conduct — chatting with a defendant about his case during a ride in a police car, recommending that the defendant retain a lawyer with whom the judge had a business relationship, and granting the relief requested by the defendant even after respondent had indicated he could not handle the case — breached the appropriate boundaries between a judge and a litigant and thereby created “a very public appearance of impropriety” . . . , which adversely affects public confidence in the judiciary as a whole.

Based on an agreed statement of facts and joint recommendation, the New York Commission publicly censured a judge for taking a treatment court participant on an ex parte, out-of-court excursion in his personal car and speaking privately with him about personal issues.  In the Matter of Tarantino, Determination (New York State Commission on Judicial Conduct March 28, 2011).

The judge was presiding over J.’s participation in the treatment court; J. was 18 years old.  During a meeting at the courthouse with a treatment court case manager, J. asked to speak to the judge.  The judge met briefly with J. in his courtroom before the lunch recess.  The case manager was not present.

During the lunch recess, the judge took J., alone, for a ride in his personal automobile to a state park approximately 16 miles from the courthouse.  The ride lasted approximately 20 minutes.  At the park, the judge and J. walked to a public wildlife observation deck, where they remained for approximately 10 minutes.  En route to, at, and after they left the deck, the judge spoke with J. about his continuing substance abuse, his mother’s death, and his need for grief counseling.  The judge then drove J. back to the courthouse.

The judge stated, under penalty of perjury, that he and J. never had any relationship other than as a judge and litigant, and that there was no untoward behavior at the park or anywhere else, at any time.  J. provided no evidence to the contrary.  The judge admitted that he made a serious error in judgment resulting from what he believed were exigent circumstances created by J.’s 2 drug overdoses within a month’s time.   The judge acknowledged that he has no training as a social worker or as a medical or mental health professional.

The Commission concluded that the judge’s “behavior, no matter how well-intentioned, was inappropriate and showed extremely poor judgment . . . .”  It explained that “the unique dynamics and relative informality of Treatment Court” did not excuse his “conduct, which overstepped the appropriate boundaries between a judge and a defendant in pending proceedings.”

Even in Treatment Court, a judge is not a social worker or therapist, but must maintain the role of a neutral and detached arbiter who at all times remains “cloaked figuratively with his black robe of office devolving upon him standards of conduct more stringent than those acceptable for others.”  Respondent’s behavior showed a serious misunderstanding of the role of a judge.

Having served as a Family Court judge for more than two years at the time, respondent should have realized that this extra-judicial meeting with the defendant — a vulnerable young man who had recently been charged with violating an order of protection for overdosing on drugs — not only would compromise respondent’s impartiality at a time when he wielded considerable power over this defendant, but would create a potential for suspicion and misunderstanding. 

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There are also cases involving inappropriate rides in other states,

Adopting the findings of fact, conclusions of law, and recommendation of the Board of Commissioners on Grievances and Discipline, based on stipulations, the Ohio Supreme Court publicly reprimanded a judge who had picked up a defendant at the police station and driven her home.  Office of Disciplinary Counsel v. Medley, 756 N.E.2d 104 (Ohio 2001).

After Tracy Grate was booked on a DUI charge, she contacted the judge by telephone.  Grate knew the judge because she had previously been a defendant in his court.  The judge picked up Grate at the police station and drove her home, but they did not discuss her case.

Shortly before Grate’s case was set for trial before the judge, Grate’s attorney and the city solicitor learned of the judge’s assistance to Grate and, believing that the judge would have to recuse, entered into plea negotiations.  Grate entered a guilty plea to reduced charges.  The judge accepted the plea agreement, sentenced Grate to 6 months in jail, suspended the jail sentence, and placed her on 5 years’ probation conditioned on attendance at a DUI school and completion of a GED program.

Stating that the fact that the judge and Grate did not discuss her case was immaterial, the Court concluded that the “sight or thought of a judge providing a ride home to a person who has just been detained for breaking the law surely gives the impression of bias on the judge’s part when it comes time to hear that case.  This act also gives an impression of impropriety. . . by making it appear that Grate would be subject to special treatment.”

The Mississippi Supreme Court suspended a judge for 90 days without pay and publicly reprimanded him for taking a criminal defendant for a ride in his car and reducing her fine at the ex parte request of a police officer.   Commission on Judicial Performance v. Boone, 60 So. 3d 172 (Mississippi 2011).

One morning, Assistant Police Chief Nolan Jones called the judge and requested his help with Christina Twaddle whom Jones was interested in cultivating as a confidential informant.  Later that morning, the judge presided over Twaddle’s trial on a charge of public drunkenness.  The judge found Twaddle guilty and imposed a $100 fine and $139 in costs.  The judge told Twaddle and her attorney that the sum must be paid no later than 5 p.m. that day.

Around noon, the judge saw Twaddle at a gasoline station and asked if she would ride with him to discuss payment of the fine.  Thinking she could work out payment arrangements, Twaddle agreed.  The judge drove Twaddle to a drugstore and asked that she meet him around 3 p.m. after he completed his afternoon docket.  They exchanged cell numbers, and the judge left.  According to phone records, the judge called Twaddle numerous times that afternoon to arrange the meeting.  Later that afternoon, the judge sua sponte reduced Twaddle’s fine by $100.

The Court stated:

Judge Boone’s actions exhibited a monumental lapse of sound judgment, because an undetermined number of Lincoln County citizens had the occasion to see one of their elected judges riding around town with a female litigant.  Certainly the citizenry of Brookhaven and Lincoln County, upon learning of the later fine reduction, at the very least, could infer that Twaddle had received favorable treatment from Judge Boone via the fine reduction as a result of this ex parte communication.

The Court took the “opportunity to remind all judges and law enforcement officials of the impropriety in having any ex parte communications with each other on the merits of pending litigation.”

The Commission had also found that, while they were in his vehicle, the judge inappropriately touched Twaddle and told her that he would “fix her fine” in exchange for sexual favors.  The judge denied those allegations.  Noting the “contradictory testimony” presented at the discipline hearing, the Court explained that it had been unable to reach a decision on whether the sexual allegations against the judge had been established by clear and convincing evidence.

No divorce from judicial role

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In several recent judicial discipline cases, part-time judges were sanctioned for their conduct as attorneys.

In In the Matter of Senzer, 150 N.E.3d 21 (New York 2020), the New York Court of Appeals removed a part-time judge from office for repeatedly using language in 9 emails to 2 clients that was degrading, profane, vulgar, and sexist and that insulted their daughter, opposing counsel, and the presiding court attorney referee, including “an extremely crude gender-based slur to describe opposing counsel.”  The Court’s opinion does not specifically describe the language the judge used but accepted the determination of the State Commission on Judicial Conduct, which has detailed findings.  The judge sent the emails to 2 parents he was representing in a family court matter against their daughter in which they were seeking visitation rights to their grandchild.

The Court held that the judge’s “statements were manifestly vulgar and offensive, and his repeated use of such language in written communications to insult and demean others involved in the legal process showed a pervasive disrespect for the system, conveyed a perception of disdain for the legal system, and indicated that he is unable to maintain the high standard of conduct we demand of judges.”  It emphasized that the judge was “acting as an officer of the court representing clients in an ongoing litigation—a professional function integral to our legal system.”  The Court also explained that the judge’s “derogatory comments impugned not just the particular referee involved in this case but all judges, and with it, the judiciary.  In this context, petitioner’s conduct undermined the dignity and integrity of the judicial system.”

“Especially disturbing,” the Court stated, was the judge’s “use of an intensely degrading and ‘vile’ gendered slur to describe a female attorney” and his “demeaning reference to her as ‘eyelashes.’”  The Court noted that “it is critical to our judicial system that judges ‘conduct themselves in such a way that the public can perceive and continue to rely upon the impartiality of those who have been chosen to pass judgment on legal matters involving their lives, liberty and property.’”  The Court found that the judge’s misconduct was not “an isolated or spontaneous slip of the tongue, as the statements—repeated multiple times—were included in deliberative, written communications petitioner made to these clients relating to their legal representation.”

The Court also concluded that the judge’s belief that the emails would not be shared did not excuse his conduct, explaining, “because judges carry the esteemed office with them wherever they go, they must always consider how members of the public, including clients or colleagues, will perceive their actions and statements . . . .  Petitioner’s clients with whom he had a professional relationship are indisputably members of the public despite any personal relationship he had with them.”  The Court also emphasized that the judge’s “derogatory statements directly targeted the legal system and its participants writ large, and, thus, cannot be divorced from his judicial role, notwithstanding that petitioner communicated them when off the bench. . . .  A judge’s role is to cultivate respect for the judicial process and its participants—petitioner did just the opposite.”

In 2002, the Commission had issued the judge a letter of dismissal and caution for making sarcastic, disrespectful comments during a court proceeding.

The Court concluded:  “Such a pattern of conduct, engaged in over several months and combined with a prior caution by the Commission . . . constitutes an unacceptable and egregious pattern of injudicious behavior that warrants removal.”

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Accepting an agreed statement of facts and recommendation, the New York Commission publicly censured a part-time judge for, in addition to other misconduct, while acting as a private attorney in a civil case, making an insensitive remark about a co-defendant’s ethnicity and asserting his judicial office when confronted about the remark.  In the Matter of Tawil, Determination (New York State Commission on Judicial Conduct December 12, 2019).

The judge appeared as a private defense attorney in the liability phase of a bifurcated trial in a personal injury case involving a car accident.  The judge represented 2 defendants; a co-defendant was of Hispanic descent.  Judge Genine Edwards presided over the trial.

On March 8, during his summation, the judge stated:

On the other hand, you have Mr. Batista.  He’s on the phone talking to his female girlfriend or someone.  He’s selling cell phones to his passenger, he’s listening to the radio, he said they’re having a good time in the car.  They’re having a good time and he’s paying attention to the passenger, to his girlfriend, probably to the radio.  For all we know, he could be frying up some platanos in the front seat [emphasis added].  We don’t know.  But he’s not paying attention to the road, what’s going on around him, okay.

The next day, before the jury was charged, Judge Edwards conducted an off-the-record conference with the judge and his client’s insurance adjuster in chambers.  During the conference, Judge Edwards told the judge that his summation remark about “platanos” was “racist” and said, “What’s going to happen now is your client is going to pay $25,000 to settle this case right now or I am going to report you to the Appellate Division Second Department.  That’s your license counselor.”  The judge replied that he was “a current Part-Time Town Justice” and that he would never “intentionally make a racist comment.”  The judge would testify that he was fearful of the threat and nervous when he said this.

The judge subsequently asked the Advisory Committee on Judicial Ethics whether he was required to report Judge Edwards to the Commission; the Committee advised that he was.  In filing a complaint against Judge Edwards, the judge described his own conduct to the Commission, and the Commission also authorized an investigation of Judge Tawil’s own conduct.

The Commission found that Judge Tawil’s summation included “a demeaning remark” that “showed an insensitivity to the special ethical obligations of judges and detracted from the dignity of judicial office.”  The Commission acknowledged that “all attorneys (including those who are judges) have wide latitude in presenting argument to the jury,” but emphasized that “the tone of the comment and the assertion of his judicial office warrant a finding of misconduct.”

(In a separate proceeding, the Commission also publicly censured Judge Edwards, based on a stipulation, finding that her “explicit threat to complain to disciplinary authorities regarding Tawil’s summation comment in an effort to induce Tawil’s client to settle the matter pending before her for a specific amount was coercive and improper” and “weaponize[ed] her obligation to take appropriate action regarding substantial attorney misconduct . . . .”  In the Matter of Edwards, Determination (New York State Commission on Judicial Conduct October 23, 2019).)

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The Arizona Commission on Judicial Conduct publicly reprimanded a pro tem judge for providing false information to law enforcement investigating her client.  Gillis, Order (Arizona Commission on Judicial Conduct January 11, 2020).

In a family law matter, the judge was representing an individual who was subject to an order of protection that prohibited third-party contact.  Law enforcement investigated the judge’s client for an alleged violation of the order with respect to a phone call to the opposing party’s real estate agent.  The client told law enforcement that his attorney had also been on the line during the call, and, when initially contacted by law enforcement, the judge stated that she had been on the call.  Shortly thereafter, she notified the officer that her statement was false.  The judge was charged with providing false information to law enforcement.  The charges were dismissed after she successfully completed a diversion program.  She self-reported to the Commission and the State Bar.  The State Bar has also publicly reprimanded her.