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).

 

Dangerous lack of candor

Agreeing with the findings of a hearing panel of the Commission on Judicial Qualifications, the Kansas Supreme Court found that a judge had made dishonest statements under oath in a prior discipline proceedings; however, it did not impose a sanction because the judge had resigned, and, therefore, suspension or removal were unavailable.  In the Matter of Henderson (Kansas Supreme Court April 7, 2017).

In 2015, based on the findings of the Commission and adopting its conclusions of law, the Court had suspended the same judge for 90 days without pay for making offensive and demeaning sexual comments to female attorneys and staff members; trying to broker an employment opportunity for his wife; and sending an ex parte e-mail to an attorney’s client that expressed bias or prejudice toward the attorney.  In the Matter of Henderson, 343 P.3d 518 (Kansas 2015).  While that first case was still pending, additional complaints were filed against the judge, and, after an investigation, a second notice of formal proceedings was filed alleging the judge had provided testimony that was not candid and honest during the first proceeding.  Just prior to a hearing before a different panel in the second case, the judge was defeated in a primary election.  He resigned after the hearing.

The Commission agreed with the findings of the second panel that the judge had told an offensive story to the assistant district attorney contrary to his testimony in the first hearing, that testimony and documentary evidence refuted his version of his communications with a school board member about his wife’s employment, and that his explanations of one of his comments were not credible.  Further, the Court explained that the additional testimony in the second hearing “illustrates the dangerous undermining of faith in the judicial system resulting from the Respondent’s lack of candor.”  The Court noted, for example, that a court services officer had testified “that it was ‘upsetting’ to her that the administrative judge for whom she worked for so many years ‘would take an oath to tell the truth and then blatantly tell that he had never told the story when he told it all the time.’”  In addition, a juvenile justice education liaison for the county department of corrections “testified that she was ‘very upset’ when she heard the Respondent’s testimony at the first hearing, because ‘to have your presiding judge take an oath and not tell the truth was really upsetting.’”

Rejecting the judge’s argument, the Court held it had not lost jurisdiction when he resigned.  It explained:

Notwithstanding the availability of sanctions, the issues before us are matters of great public interest concerning the honor and dignity of the judiciary. . . .

The duty to protect the public from malfeasance by judges does not terminate the moment a judge steps down from office.  A judge may not evade public responsibility and our jurisdiction based on the misconduct simply by stepping away from the bench when the misconduct is revealed. . . .

The purpose of judicial discipline is to maintain the honor and dignity of the judiciary and the proper administration of justice rather than to punish the individual. . . .  Public trust is essential to the effective operation of the judicial system, and the conduct of one judge may have a significant adverse impact on the public perception of the entire judicial system. . . .

It would be disrespectful both to the public and to the witnesses whose reputations he impugned if we were to abdicate our responsibility of judicial supervision by dismissing the complaint merely because the Respondent walked away from his responsibilities.

Finally, the Court rejected the judge’s argument that his due process rights were violated because he had not been immediately notified of the second set of complaints, noting the relevant rule did not require “immediate and simultaneous action.”  The Court also explained that, even if there was a question whether the Commission had acted in a timely manner, “[a]sserted due process violations are subject to harmless error analysis,” and the judge had not articulate “any tangible resulting harm.”

Antithetical to the privilege of holding public office

Based on stipulations of fact in lieu of trial, the Court of Judicial Discipline has fined former Pennsylvania Supreme Court Justice J. Michael Eakin $50,000 for exchanging “sordid and offensive” e-mails with friends and professional acquaintances.  In re Eakin, Opinion (Pennsylvania Court of Judicial Discipline March 24, 2016).  The justice had resigned on March 15.

The justice had a personal yahoo e-mail address that did not identify him by name or judicial title but as “John Smith.”  The justice used his personal e-mail address, while on his Commonwealth-issued computer, to communicate with a group of men who went on golfing vacations, played fantasy football, and engaged in other social activities together.

The justice sent 1 e-mail to the golfing group that included a photograph of a semi-nude woman and sent the group approximately 17 other e-mails with gender and ethnic stereotypes or inappropriate and chauvinistic statements.  In particular, the Court noted 3 e-mail exchanges between the justice and a deputy attorney general that were “strikingly egregious in light of the fact that the justice was talking about his judicial employees.”

The justice also received e-mails from the golfing group and “blast e-mails” from a friend who was a criminal defense attorney.  Approximately 130 of the e-mails contained photographs of nude or semi-nude women, video clips of comedy skits with sexually-suggestive themes, photographic slide shows of faux “motivational posters,” homophobic content, jokes about violence against women, and jokes based on negative gender, racial, ethnic, religious, or socioeconomic stereotypes.

Addenda to the Court’s opinion describe the e-mails, which are dated from 2008 to 2014.

The Court found that the justice failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.  The Court concluded that the justice’s actions, “although they occurred outside of deciding cases or holding sessions of court, still can be fairly considered to be ‘on-bench’ conduct,” noting the justice conversed “in a sexually suggestive manner about employees in his judicial office” and used Commonwealth-issued computer equipment and that some of the individuals with whom he exchanged e-mails were also using government-supplied computers and e-mail servers.  Further, the Court stated, his “position as a justice of the Supreme Court conferred upon him not only the duty to decide cases, but also significant administrative responsibilities for our justice system.”

Finding that the justice’s conduct “drastically damaged the reputation of the state judiciary” and “dramatically lessened public confidence in the integrity and impartiality of the entire Judiciary,” the Court noted the “harsh criticism” of his conduct from private citizens, community leaders, and legal and governmental officials and the news reports about his conduct both state-wide and nationally.  The Court explained:

Whether labelled misogynistic, racially-biased, biased against national origin, or biased toward sexual orientation, [the e-mails] represent a list of topics which should give any jurist pause.  The list also corresponds, in a number of instances, with categories protected by the laws of the United States and of our Commonwealth.  Significantly, they could cause citizens to wonder whether their cases received unbiased consideration by Respondent, something that we find abhorrent to the principles to which Respondent has ostensibly dedicated his entire professional career.  A reasonable inference that Respondent lacked the impartiality required of judges also fundamentally lessens public confidence in the judiciary.

The Court acknowledged that the justice had expected the e-mails would remain private and that humor is often “in poor taste and rooted in the extreme.”  However, the Court noted the probability that the e-mails would become public given that government equipment and judicial and government internet servers were being used.  Moreover, it concluded, “the emails demonstrated a misjudgment by Respondent, both in his understanding of how electronic communications work, as well as the substantive content of those communications.”

Noting its “disgust with, and disapproval of, the sordid and offensive communications giving rise to this case,” the Court stated that “the common thread of the emails, with their imagery of sexism, racism, and bigotry, is arrogance and the belief that an individual is better than his or her peers.  Such beliefs are antithetical to the privilege of holding public office, where the charge is to serve, not demean, our citizens.”

Exceptions to the rule

Although allegations of legal error or an abuse of discretion generally do not constitute judicial misconduct (which explains the high dismissal rate for complaints about judges), there are exceptions to that rule.  Three exceptions –an egregious error, a pattern of error, and a decision made in bad faith – were all illustrated in a discipline case that led to the removal of a justice of the peace by the Louisiana Supreme Court last week.  In re Laiche, Opinion (Louisiana Supreme Court March 15, 2016).  The Court found that the judge’s “faulty interpretation of the law, failure to faithfully enforce it, incompetence and gross negligence in the administration of his office, and general indifference to these failures” have “negatively affected many lives and cast[] a dark shadow on the judiciary as a whole.”

The judge’s misconduct arose in 2 unrelated disputes in which he granted peace bonds applied for by family members against other family members.  (In Louisiana, in response to an application, a justice of the peace can require an individual to pay a peace bond that is held as security on the condition that the defendant not commit “the threatened or any related breach of the peace.”)

1 dispute involved “a heated and very unpleasant child custody case” that led to many altercations between the Vignes and LeBlanc families.  Over several years, the judge issued multiple peace bond orders against the ex-husband, his family, and his girlfriend at the request of the ex-wife and her family.

The second dispute arose following the death of Marvin Henderson.  Within a week, his children sought peace bonds against their stepmother, accusing her of inappropriate behavior following his death, including at his memorial service.

The Judiciary Commission found, and the Court agreed, that the judge had entered peace bond judgments without required hearings, had imposed peace bonds over the $1,000 maximum allowed by law, had imposed fees over the $15 cap set by law, had sentenced defendants who failed to pay the bond to more than the 5 days in jail allowed by law, had extended the terms of peace bonds beyond the 6-months allowed by law, and had not timely refunded peace bond money, in addition to other misconduct.

The Court held that some of the judge’s errors were egregious because they deprived individuals “of their freedom for an extensive period of time” or “violated the constitutional rights of the parties to present a defense,” noting “there is no greater expectation of our citizens” than that “judges will protect their constitutional rights before subjecting them to the loss of liberty.”  The Court found a pattern of legal error both in the 8 instances in which the judge impermissibly extended the terms of peace bonds and his numerous other legal errors regarding peace bonds.  Finally, the Court found that the judge made some of the errors in bad faith, noting, for example, that the judge personally benefitted from the “shortcuts” he took that allowed him to receive his justice of the peace salary without performing the work, leaving him more time for his law practice and other personal endeavors.

In an unrelated reminder of the importance of adhering to proper procedures, the Civil Rights Division of the U.S. Department of Justice sent a letter to state chief justices and court administrators to address common court practices regarding the assessment and enforcement of fines and fees “that run afoul of the United States Constitution and/or other federal laws.”  Noting the Department’s commitment “to assisting state and local courts in their efforts to ensure equal justice and due process for all those who come before them,” the letter lists 7 requirements grounded in the rights to due process and equal protection:

(1) Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful;(2) Courts must consider alternatives to incarceration for indigent defendants unable to pay fines and fees;
(3) Courts must not condition access to a judicial hearing on the prepayment of fines or fees;
(4) Courts must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees;
(5) Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections;
(6) Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release; and
(7) Courts must safeguard against unconstitutional practices by court staff and private contractors.

The letter urged the recipients to review rules and procedures, to forward a copy of the letter to every judge in the jurisdiction, to provide appropriate training, “and to develop resources, such as bench books, to assist judges in performing their duties lawfully and effectively.”

Deceitful, calculated, and unseemly

Adopting findings of fact by 3 special masters who presided over a hearing, the California Commission on Judicial Performance removed a judge for authoring and showing to his courtroom clerk an anonymous letter accusing her of infidelity in order to promote a closer personal relationship with her; engaging in a course of conduct, including texts and gifts, intended to promote a closer personal relationship with her; and related misconduct.  Inquiry Concerning Saucedo, Decision and order (December 1, 2015).

On September 17, 2013, an anonymous letter was delivered to the judge’s home accusing his courtroom clerk of having an affair with a court bailiff.  The “crude and vile” letter was purportedly a copy of a letter addressed to the clerk’s husband at the hospital where he worked.  The next day, the judge called the clerk into his chambers, told her to close the door, and showed her the letter.  The clerk began crying and said she needed to report the letter to court administration or law enforcement.  The judge responded that she could not “tell anybody” about the letter and claimed she could be fired if she reported it.  The judge said that, if she trusted him completely, he would call her husband’s employer and ensure the letter would be intercepted.  Later, the judge told the clerk that, when he called the hospital, “John,” the human resources manager, told him the anonymous letter was sitting on his desk and that “John” had shredded the letter during their phone conversation.  In his testimony and in his verified answer, the judge acknowledged that he had not attempted to contact anyone at the husband’s place of employment and that he made these false statements to make the clerk “feel better.”

In the 2 months following the letter, the judge sent the clerk about 445 texts, many “overly personal and emotional,” and gave her gifts, including flowers, $9,200 in cash, payment of a $533 car repair bill, a trip to Disneyland for the clerk and her family worth $3,202, and a BMW sedan worth $15,000.  The judge used the anonymous letter to pressure the clerk when she sought to distance herself from him, for example, stating “Do you want your husband to find out about the letter?”

Although the judge’s misconduct is unusual, even given the wide variety of misconduct for which judges can and have been disciplined, there is one factor in the case that is present in many removal decisions – a lack of candor in the discipline proceedings.

For example, the judge denied writing the anonymous letter.  The Commission, however, found that the judge did write the letter and mailed it to himself as part of a “predesigned plan to manufacture the clerk’s dependence on him, hoping it would lead to a closer personal or ‘emotional’ relationship with [the clerk].”  The Commission stated that the judge’s actions after receiving the letter – falsely telling the clerk he had contacted her husband’s employer and demanding that she tell no one about it – “make sense only if he was the author” and, therefore, could be certain that the letter would never be received by [the husband] and that there were no security concerns associated with [the husband] receiving the letter.”

The Commission also rejected the judge’s claim that he intended only to “mentor” the clerk by helping her with her finances.

Mentoring involves advice, direction, referrals and encouragement.  As stated by the special masters, “Mentoring is not accomplished by providing a subordinate with thousands of dollars in gifts, including a BMW car and vacation,” an offer to pay for body sculpting” or expecting a ‘special’ friendship in exchange.”

Further, the overly personal and emotional language the judge used in his text messages and notes to [the clerk] is far from the type of supportive but professional communication one would expect in a mentoring relationship (i.e., “It’s silly but still feeling under appreciated”; “I, too, am human and have an ego.  Feel free, if you wish, to compliment me if you like things I do or wear”).  Further, the judge repeatedly stated and suggested that he wanted a closer or “special” relationship with [the clerk] in exchange for his “gifts,” something that would not be expected or appropriate in a mentoring relationship (“If you want me to be an ordinary friend like I was before September, I will provide only moral support.  But if you want me for a special friend, everything is on line with full financial and moral support going forward.  Special friend means you want to make time and effort to share thoughts and experiences with me”; telling [the clerk] that his accountant questioned why he was buying her all of these gifts and whether this was a “one sided friendship”).

Further, the Commission adopted the masters’ credibility determination that, when the judge’s testimony conflicted with the clerk’s, the clerk’s testimony was credible and her version of events was true.  The clerk’s testimony was consistent with and corroborated by documentary evidence, including her text messages and notes and letters given to her by the judge, and she recalled numerous details that “coincided with, and were substantiated by, the content and timing of the documents.”  In contrast, the judge’s testimony was often inconsistent with his text messages and notes, documents he signed, and his prior statements.  The Commission also relied on the masters’ finding that “the manner in which Judge Saucedo testified – failing to answer direct questions, providing nonresponsive and sometimes rambling answers, and answering with irrelevant points – created significant doubts as to the truthfulness of his answers.”

It is impossible to know whether the judge could have preserved his career by more candor and less deceit, but it seems likely given the significant mitigating factors; the Commission acknowledged his lack of prior discipline and his many contributions “to his community and the legal profession, and to promoting diversity on the bench and in the legal profession.”  However, the Commission concluded:

The deceitful, calculated, and unseemly nature of the judge’s misconduct, compounded by his lack of candor in response to the commission’s investigation and untruthful testimony under oath before the masters compels our decision to remove Judge Saucedo from office.  We recognize Judge Saucedo is a well-respected jurist who has devoted many hours to giving back to the community.  Nonetheless, his reputation cannot redeem the seriousness of his wrongdoing, nor obviate the need for removal in order to fulfill our mandate to protect the public and maintain public confidence in the integrity of the judiciary.

 

Flouting deterrence

Deterring similar conduct has been cited as one of the purposes of judicial discipline.  See, e.g., In re Peck, 867 P.2d 853 (Arizona 1994); In re Cox, 658 A.2d 1056 (Maine 1995); In re Hathaway, 630 N.W.2d 850 (Michigan 2001); In re Miera, 426 N.W.2d 850 (Minnesota 1988); In re Krepela, 628 N.E.2d 262 (Nebraska 2001); In re O’Dea, 622 A.2d 507 (Vermont 1993); In the Matter of Turco, 970 P.2d 731 (Washington 1999).

Further, the lack of prior judicial precedent indicating particular conduct was unethical has been considered a mitigating factor in judicial discipline proceedings.  See Commission on Judicial Performance v. Dodds, 680 So. 2d 180, 200 (Mississippi 1996).

A recent removal case illustrates the first concept and applies the flip-side of the second.  The Minnesota Supreme Court removed a judge for failing to reside within his judicial district and making a knowingly false statement regarding his residency in his affidavit of candidacy.  Inquiry into the Conduct of Pendleton (October 14, 2015).

The Court noted that, in 2011, it had suspended a judge without pay for 6 months for failing to comply with the constitutional residency requirement and making an affirmative misrepresentation and material omissions to the Board on Judicial Standards.  Inquiry into Karasov, 805 N.W.2d 255 (Minnesota 2011).  The Court concluded that Judge Pendleton’s misconduct was substantially more serious than Judge Karasov’s misconduct.

When we suspended Judge Karasov, we expressed our “lack of tolerance for a judge’s failure to comply with her constitutional obligations” and for a judge’s failure to act honestly and candidly with the Board. . . .  Just 2 years after we gave this clear warning and despite being fully aware of our decision in Karasov, Judge Pendleton deliberately chose to reside outside of his judicial district for even longer than Judge Karasov did. . . .  Judge Pendleton consciously disregarded both his constitutional obligations and our decision in Karasov.

The Court emphasized:

The integrity of the judicial system is seriously undermined when a judge not only violates his or her constitutional obligations [regarding residency] but also flouts a discipline decision of our court. . . . .  The public’s trust and confidence in the Minnesota judiciary will be eroded if the disciplinary system is unable to deter similar acts of serious misconduct by other judges. . . .

The Court also stated that the context in which the judge made the knowingly false statement about his residency was “especially troubling,” concluding “the integrity of the judiciary is severely undermined if a judge deceives voters by falsely representing that he or she satisfies a constitutional requirement to hold office.”

From the totality of the circumstances, the Court held that removal was required.

Judge Pendleton committed two very serious violations.  Each of his violations severely undermines the public’s trust in their judicial system.  When we assess Judge Pendleton’s violations and the cumulative impact his misconduct has on the public’s faith in the integrity of the judicial system, we conclude that the sanction of removal from office is the only sanction adequate to ensure that the people of Minnesota can have continued faith in the integrity of their justice system.