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.

Marathon

The requirement in the code of judicial conduct that a judge be “patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others” can be violated in a wide variety of ways, from angry outbursts, to sarcasm, to frequent interruptions, to name calling, to body language, to racial slurs, to gender stereotypes, to threats, and more.  As several discipline cases illustrate, a “marathon” court session also demonstrates a lack of the judicial temperament crucial to public confidence in judicial decisions.

The Texas State Commission on Judicial Conduct publicly admonished a judge for holding a court session until 4:00 a.m.  Public Admonition of Schildknecht and Order of Additional Education (Texas State Commission on Judicial Conduct May 11, 2015).  (The admonishment was also for describing the district attorney as a “New York Jew,” expelling him from her courtroom on a separate occasion, and telling a prosecutor his beard made him look like a “Muslim.”)  On July 2, 2014, the judge began hearing probation revocation cases at 1:00 p.m.; the court session did not end until 4:00 a.m. on July 3.  The judge did not provide any formal breaks for litigants, attorneys, witnesses, or other court personnel to eat or use the restroom.  The defendant whose case was the final matter heard in the early morning of July 3rd appealed her conviction, arguing that “fair consideration could not have possibly been given at 4 a.m. after a 19 hour day.”  In her written responses to the Commission’s inquiry, the judge acknowledged holding court from 1:00 p.m. on July 2nd until 4:00 a.m. on July 3rd without providing formal breaks, explaining this was necessary to prevent jail over-crowding and that, in her opinion, there had been enough “downtime” for anyone to eat or use the restroom and return in time to conduct court business.  The Commission concluded that the judge “failed to treat litigants, attorneys and others with patience, dignity and courtesy . . . when she held a ‘marathon’ court session lasting until 4 a.m. the following morning without allowing formal breaks.”

Similarly, based on a stipulation, in 2013, the Nevada Commission on Judicial Discipline publicly reprimanded a judge who, to accommodate her personal schedule and other reasons, required the jury, the attorneys, and staff to conduct proceedings in a murder trial continuously from 1:12 p.m. on December 16, 2010, until the jury returned a verdict at 6:47 a.m. on December 17.  In the Matter of Vega, Findings of fact, conclusions of law, and order (Nevada Commission on Judicial Discipline August 29, 2013).  The judge had recessed court in the early afternoon on 6 days during the trial so that she could attend her daughter’s high school soccer games.

Complying with the law

The recent legalization of marijuana in several states has apparently not yet prompted many inquiries to advisory committees, but two opinions have been issued on the possible judicial ethics repercussions of that change.

Most recently, the Washington State Ethics Advisory Committee stated that a judge may not permit a court employee to own a medical marijuana business even if the business fully complies with Washington state laws and regulations because federal law prohibits the possession, sale, and distribution of medical marijuana.  Washington Advisory Opinion 2015-2.

The committee concluded that, “even if owning a medical marijuana business may comply with the state statutory scheme, possessing, growing, and distributing marijuana remains illegal under federal law for both recreational and medical use. . . .  Although the Code does not generally prohibit a court employee from engaging in outside businesses or employment, operating a business in knowing violation of law undermines the public’s confidence in the integrity of the judiciary . . . , and is contrary to acting with fidelity and in a diligent manner consistent with the judge’s obligations under the Code.”

Last year, after Colorado decriminalized the use and possession of medicinal and small amounts of recreational marijuana, a judge asked the Judicial Ethics Advisory Board “whether a judge who engages in the personal recreational or medical use of marijuana (as opposed to commercial use) in private and in a manner compliant with the Colorado Constitution and all related state and local laws and regulations” violates the code of judicial conduct.  The board responded:  “Because the use of marijuana is a federal crime, a judge’s use of marijuana for any purpose is not a ‘minor’ violation of criminal law and therefore violates Rule 1.1 of the Code of Judicial Conduct.”  Colorado Advisory Opinion 14-1.

The board considered whether a judge’s personal marijuana use is a “minor” violation of the law because the Colorado code states in Rule 1.1(B) that “conduct by a judge that violates a criminal law may, unless the violation is minor, constitute a violation of the requirement that a judge must comply with the law.”  (This provision is not in the model code or codes in other states, although the model code notes in the preamble that “it is not contemplated that every transgression will result in disciplinary action.”)  Based on the minutes of the Committee to Consider Revisions to the Colorado Code of Judicial Conduct, the advisory board concluded that Rule 1.1(B) exempted “as ‘minor’ only violations of relatively insignificant traffic offenses and local ordinances,” such as receiving a parking ticket or permitting a dog to run at large, “not state or federal drug laws.”  The board rejected the judge’s argument that the determination whether an offense is “minor” should be based on a “moral turpitude” test.

The board concluded:

We recognize that simple possession of marijuana is a misdemeanor under federal law and that, in some circumstances, marijuana use is an infraction punishable only by a civil penalty.  . . .   It is nevertheless a violation of federal criminal law and, in our view, while not necessarily a “serious” offense, it is not a “minor” offense within the meaning of Rule 1.1(B).  It is significantly more serious than the parking ticket and dog at large violation referred to in the Committee minutes, and is no less serious than the unlawful conduct of the judges involved in Sawyer and Vandelinde.

See In re Sawyer, 594 P.2d 805 (Oregon 1979) (temporary suspension of a judge as long as he was employed part-time as a teacher at a state-funded college in violation of a state constitutional prohibition); Matter of Vandelinde, 366 S.E.2d 631 (West Virginia 1988) (reprimand of a judge who had made excessive contributions to a political organization that supported his candidacy, a misdemeanor under the applicable statute, even though he had not been criminally charged).

The Colorado board did note that “even parking tickets can give rise to judicial discipline,” citing In re Harrington, 877 A.2d 570 (Pennsylvania Court of Judicial Discipline 2005), in which a former magistrate who repeatedly parked at expired meters and displayed parking tickets issued to others was banned from judicial office for 5 years.  See also In the Matter of Williams, 701 A.2d 825 (Delaware 1997) (censure and 3-month suspension without pay for a part-time judge who had 29 unpaid parking tickets, in addition to other misconduct); In the Matter of LaPorta, Findings of Fact, Conclusions of Law, and Imposition of Discipline (Nevada Commission on Judicial Discipline July 13, 2004) (removal of pro tempore judge who had accrued over $8,000 in parking tickets, in addition to other misconduct); In re Ballentine, Opinion and order (Pennsylvania Court of Judicial Discipline August 4, 2015) (removal for pleading guilty to 3 misdemeanors for dismissing several of her own parking tickets, not filing state and federal tax returns for 5 years, failing to remit approximately $130 in sales taxes owed by a shoe store she owed, and opening the shoe store without a license).

Dog violations have also led to judicial discipline.  See In the Matter of Post, Determination (New York State Commission on Judicial Conduct October 12, 2010) (admonition for failing to appear for sentencing on dog-running-at-large violation and failing for 7 months to pay the fine imposed, in addition to other misconduct); In the Matter of Van Woeart, Determination (New York State Commission on Judicial Conduct August 20, 2012) (censure for failing to expeditiously transfer tickets issued to herself and her sons for violations of dog-control ordinance, sending messages to the judges of the transferee court, and failing to maintain proper records of the tickets).

The Colorado board noted that other states have disciplined judges for using and possessing marijuana, although it acknowledged marijuana use had been illegal under those states’ laws at the time.  It cited Matter of Marquardt, 778 P.2d 241 (Arizona 1989) (1-year suspension without pay for judge convicted of possession of a small quantity of marijuana); In re Peters, 715 S.E.2d 56 (Georgia 2011) (removal for obtaining and consuming marijuana at least once a week from March to May of 2010, in addition to other misconduct); In re Whitaker, 463 So. 2d 1291 (Louisiana 1985) (1-year suspension without pay for smoking marijuana on 2 occasions, in addition to other misconduct); In re Gilbert, 668 N.W.2d 892 (Michigan 2003) (censure and 6-month suspension for using marijuana at a Rolling Stones concert); In re Sherrill, 403 S.E.2d 255 (North Carolina 1991) (removal of judge who had been arrested for possessing marijuana, cocaine, and drug paraphernalia and had pled guilty to 3 felony charges); In re Toczydlowski, 853 A.2d 20 (Pennsylvania Court of Judicial Discipline 2004) (public reprimand for using marijuana); In re Binkoski, 515 S.E.2d 828 (West Virginia 1999) (public censure of former judge who had pled guilty to driving under the influence of alcohol and possession of less than 15 grams of marijuana and who had attempted to encourage a witness to be less than candid).  There are additional cases as well.  See also In the Matter of Pepe, 607 A.2d 988 (New Jersey 1992) (removal for using marijuana, in addition to other misconduct); Disciplinary Counsel v. Bowling, 937 N.E.2d 95 (Ohio 2010) (publicly reprimand for using marijuana); In re Coughenour, Stipulation and Order (Washington State Commission on Judicial Conduct September 6, 1991) (public admonishment for judge who had been charged with driving while under the influence of intoxicating liquor and/or drugs and unlawful possession of marijuana under 40 grams).

Noting it was only authorized to provide “opinions ‘concerning the compliance of intended, future conduct with the Colorado Code of Judicial Conduct,’ not regarding whether such conduct is censurable,” the Colorado board emphasized it was not addressing whether a judge who uses marijuana consistent with Colorado law should be disciplined.  Finally, the board stated, “having concluded that a judge’s use of marijuana violates Rule 1.1, we need not address whether it also violates the requirement in Rule 1.2 that judges ‘act at all times in a manner that promotes public confidence in the . . . integrity . . . of the judiciary’ and ‘avoid impropriety and the appearance of impropriety.’”