In a recent advisory opinion, the North Carolina Judicial Standards Commission provided guidance about judges being involved in school-sponsored truancy intervention programs.  North Carolina Advisory Opinion 2020-1.

The opinion stated that judges should not “meet individually with parents, school counselors, prosecutors and others to evaluate the facts and develop strategies to address” a specific family’s truancy issues.  The opinion also advised that judges should not “’presid[e]’ over informal truancy dockets in schools or courtrooms or otherwise appear[] as a ‘judge’ when meeting with families outside of official court proceedings.”  The Commission explained that “such personal involvement with a particular case would require disqualification” if that case “eventually resulted in a juvenile, criminal or other proceeding involving those family members.”

The Commission also cautioned that “judges should not create the appearance that they are acting with official authority in participating in truancy intervention programs established in local school districts.”  That concern prohibited judges, the opinion stated, from “‘presiding’ over school-sponsored truancy meetings while wearing a judicial robe” and from “issuing a ‘summons’ or other notice on behalf of the program to direct families to appear at truancy mediations, hearings or meetings.”

Emphasizing that it was not suggesting that truancy intervention programs did not benefit the community, the opinion noted that judges could volunteer “to educate parents and students in group settings about court processes and procedures involved in truancy matters” and could serve as an advisor for such programs generally.

Similarly, the New Mexico Advisory Committee on the Code of Judicial Conduct stated that a judge could be an advisor to the school district about its truancy court and could “speak to groups at a location such as a school to provide general information about the compulsory school attendance laws and the manner in which the cases are addressed when they come before the court.”  New Mexico Advisory Opinion 2013-5. However, the opinion advised that a judge may not participate as a judge in a school district’s truancy court program, either in the courtroom in robes or outside the courthouse without a robe.  The opinion described the program at issue.

A group of students, their parents, and the school principals appear before a judge.  The judge advises the parents about the compulsory school attendance laws, including the potential for the school district to file a criminal complaint, and tells the students about the importance of education.  Then, each school principal comes forward with individual students and the student’s parents and reports to the judge the facts concerning the student’s truancy.  Based upon the principal’s recommendation, the judge will inform the student and parents whether the principal will continue to monitor the student’s attendance and whether the student and parents will need to return to the truancy court.

The committee noted that, although there would be no actual court filings, the courtroom setting and judicial robes were designed to establish the judge’s authority.  It emphasized that “actual behavior and consequences” were involved and the program was “not a mock trial or moot court proceeding conducted for educational purpose.”  Further, even if the program were held outside of courthouse and the judge did not appear in a robe, the committee considered the judge’s participation to be coercive given the judge’s position in the community.  Accord New Mexico Advisory Opinion 2018-5 (a judge may not participate in a school’s truancy intervention court in his courtroom even if the judge does not wear a robe and is not the only person making determinations).

See also New York Advisory Opinion 2012-18 (a family court judge may not, as an extra-judicial activity, request Department of Social Services case files for truant children, meet with caseworkers, educators, attorneys, and parents to advise them about rights and services that may be available, and collaborate with them on ways to improve the children’s school attendance even if the judge will not preside in any of the selected cases); New York Advisory Opinion 2013-13 (a judge may participate in a focus group of key leaders in the community convened by a school district’s consultant as part of an analysis of local truancy and possible solutions); Pennsylvania Informal Advisory Opinion 5/4b/10 (a judge cannot appear in a photograph as part of a truancy poster project); West Virginia Advisory Opinion 2018-19 (a judge may participate in a state agency video to explain the importance of successful truancy measures for juveniles and be identified as a judge and wear a robe during filming).

Intoxicated altercation

Based on agreements, the Indiana Supreme Court suspended 3 judges for injudicious conduct that culminated in a verbal altercation, a physical altercation, and gunfire outside a White Castle restaurant.  In the Matter of Adams, Jacobs, and Bell (Indiana Supreme Court November 12, 2019).

On the evening of April 30, 2019, Judge Andrew Adams, Judge Bradley Jacobs, and Judge Sabrina Bell traveled to Indianapolis to attend the Spring Judicial College the next day.  After checking into their hotel rooms, they spent the evening socializing with other judicial officers and drinking alcoholic beverages.

Around 12:30 a.m. on May 1, the judges and a magistrate met at a bar, where they continued to drink.  Around 3:00 a.m., the group walked to a strip club and tried to enter, but found that it was closed.

The group then walked to a White Castle.  While the magistrate went inside, the judges stood outside.  Around 3:17 a.m., Alfredo Vazquez and Brandon Kaiser drove past and shouted something out the window.  Judge Bell extended her middle finger to Vazquez and Kaiser.

Vazquez and Kaiser pulled into the White Castle parking lot and exited the vehicle.  There was a “heated verbal altercation . . . , with all participants yelling, using profanity, and making dismissive, mocking, or insolent gestures toward the other group.”  The judges did not “de-escalate the conflict” or avoid a confrontation by moving to another location in the parking lot,

After a verbal exchange between Judge Bell and Vazquez, there was a physical confrontation.  At one point, Judge Jacobs had Kaiser on the ground, raised his fist raised back, and said, “Okay, okay, we’re done, we’re done,” or “This is over.  Tell me this is over,” or words to that effect.  At another point, Judge Adams kicked Kaiser in the back.  Judge Bell made several attempts to stop the fighting, including seeking help by pounding on the door of the White Castle.  The confrontation ended when Kaiser pulled out a gun, shot Judge Adams once in the abdomen and shot Judge Jacobs twice in the chest.  Judge Bell immediately called 911.

Judge Adams and Judge Jacobs were transported to local hospitals.  Judge Adams had 2 emergency surgeries, including a colon re-sectioning.  Judge Jacobs had 2 emergency surgeries and was hospitalized for 14 days.

Upon admission to the hospital, Judge Adams’s serum blood alcohol level was 0.213 (or approximately 0.157 using whole blood), and Judge Jacobs’s was 0.177 (or approximately 0.13 using whole blood).  Judge Bell’s blood alcohol level was not tested, but she was intoxicated enough that she does not remember the incident.

In her statements at the police station, Judge Bell said that she does not remember what she said to Vazquez or Kaiser or what started the physical altercations.  After being informed that police had video of the incident, Judge Bell remarked that

  • “I’m afraid that I said something to them first, I don’t know.”
  • “[W]e’re all very good friends and they’re very protective of me. And I don’t know, and I’m afraid that I said something to those two strange men at first, and then they said something back to me.  And then I said something and then [Judge Adams and Judge Jacobs] went to defend me.”
  • “I’m not denying that I said something or egged it on … because I drink … I mean I fully acknowledge that I drink and get mouthy, and I’m fiery and I’m feisty, but if I would have ever thought for a second that they were gonna fight or that that guy had a gun on him, I would never, never …”

A grand jury indicted Judge Adams on 7 counts of battery and disorderly conduct.  The grand jury also investigated Judge Jacobs, but no criminal charges were filed against him.  The Court suspended Judge Adams from the bench.  On September 9, Judge Adams pleaded guilty to misdemeanor battery resulting in bodily injury.  All other charges were dismissed, and Judge Adams was sentenced to 365 days in jail, with 363 days suspended.

The Court held that the judges’ “actions were not merely embarrassing on a personal level; they discredited the entire Indiana judiciary.”  The Court concluded:

While in town to attend a statewide educational conference for judicial officers, 10 hours before the program convened, Respondents walked the streets of downtown Indianapolis in a heavily intoxicated state.  When Judge Bell extended her middle finger to a passing vehicle, neither Judge Adams nor Judge Jacobs discouraged the provocation or removed themselves from the situation.  Instead, all three Respondents joined in a profane verbal altercation that quickly turned into physical violence and ended in gunfire, and in doing so, gravely undermined public trust in the dignity and decency of Indiana’s judiciary.

The Court suspended Judge Adams for 60 days without pay and Judge Jacobs and Judge Bell for 30 days without pay.

Deteriorating relationship

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

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

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

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

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

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

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

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

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

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

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


Abusing, lending, or exploiting the prestige of office

In Canon 2B, the 1990 American Bar Association Model Code of Judicial Conduct provided:  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . .”  In the 2007 revisions to the model code, “lend” was changed to “abuse;” thus, Rule 1.3 provides:  “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”

According to the ABA reporter’s explanation of the 2007 changes, “the term ‘lend’ created unnecessary confusion,” causing some judges to decline to write letters of recommendation for their clerks and suggesting judges should not identify themselves as judges on the covers of their books to bolster credibility and increase sales.  The ABA did not consider either of those uses to be problematic and concluded “abuse” rather than “lend” more accurately characterized the conduct being prohibited.   (The confusion reported by the ABA is puzzling as a comment to the old canon explicitly stated that “a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation” as long as the judge remains “sensitive to possible abuse of the prestige of office.”  And advisory opinions have consistently allowed judges to use their titles on books they author, particularly if the judicial title is relevant because the book is law-related.)

As illustrated by an article in the summer 2018 Judicial Conduct Reporter, different advisory opinions have interpreted the term “abuse” differently in the context of promotional campaigns for alma maters and other organizations.

Emphasizing that Rule 1.3 prohibits “abuse,” not simply “use,” the Arizona judicial ethics committee advised, with some caveats, that a judge may participate in a recorded interview about the role his college played in his professional development and career achievements.  Arizona Advisory Opinion 2018-1.  The opinion identified several contexts in which the code permits judges to “use” the prestige of judicial office in extra-judicial activities:  writing letters of recommendation on judicial letterhead in certain circumstances; using judicial titles at fund-raising events concerning the law, the legal system, and the administration of justice; endorsing projects and programs related to the law, the legal system, and the administration of justice; and including a judge’s title and judicial office on letterhead for educational, religious, charitable, fraternal, or civic organizations “if comparable designations are used for other persons.”  Concluding that the code “implicitly deems such extra-judicial activities proper ‘uses’ of the prestige of judicial office, as opposed to ‘abuses,’” the Arizona committee advised that, similarly, allowing judges to participate in recorded interviews to promote the not-for-profit educational institutions they attended interprets “Rule 1.3 as a ‘rule of reason,’ focusing on ‘abuse” of the prestige of judicial office, and giving meaning to the Code’s encouragement of community involvement . . . .”

In contrast, based on its analysis of the meaning of “abuse,” the Massachusetts judicial ethics committee advised that a judge may not participate in a university’s video profile series featuring prominent alumni discussing how their undergraduate education helped them identify goals, aspire to a career, and achieve success.  Massachusetts Advisory Opinion 2017-2.  The opinion stated that “abuse” does not require “a bad purpose or bad effect” but only that the use be in any way “incompatible with the judicial role,” emphasizing that any collateral misuse of the judicial office to advance personal or economic interests undermines public confidence in the integrity and impartiality of the judiciary.  The committee concluded that the university’s clear wish “to benefit from [the judge’s] esteemed position in the legal profession” constituted an abuse of the prestige of judicial office.

Committees interpreting the term “lend” have also advised judges not to participate in university promotional campaigns.  See California Judges Association Advisory Opinion 72 ( 2016) (a judge may not participate in a university’s video entitled “Our Successful Graduates” that would be posted on the university’s web-page to be viewed by potential students); Kansas Advisory Opinion JE 159 (2007) (a judge may not allow the university the judge attended to use a picture of the judge in a newspaper advertisement); Wisconsin Advisory Opinion 2005-1 (a judge’s image, name, and title may not be featured on a billboard as part of an advertising campaign by one of the University of Wisconsin System campuses).

* * *
The Illinois code of judicial conduct still has the lend version of the rule, and the Courts Commission recently reprimanded an appellate judge for soliciting paid speaking engagements using his judicial position, finding he not only lent the prestige of office to advance his private interests, but exploited his judicial office in financial and business dealings, engaged in financial and business dealings with persons likely to come before his court, and had an active role in managing a business.  In re Steigman (Illinois Courts Commission August 13, 2018).

The judge testified that he had been writing and speaking on legal topics for decades to share his love of the law and educate the public.  He began soliciting paid speaking opportunities after an organizer of continuing legal education seminars for prosecutors offered to pay him $1,250 for a 2-day presentation.  The judge’s income was $32,000 to $34,000 for over 24 presentations over 2 years.

The judge made over 120 solicitations.  The judge used judicial letterhead for most of his solicitations to law enforcement groups.  The judge initially sent solicitations to medical societies and hospitals by his work e-mail but switched to judicial letterhead because the response to the e-mail solicitation was “tepid.”  If he did not receive a response with either method, he sometimes followed up by telephone.  He had his secretary assist him with the letters and e-mail solicitations by dictating them for her to transcribe as he would any other correspondence.  He paid all the postage for the letters himself.

Noting that the code prohibits judges from soliciting donations for charitable organizations, the Commission stated that, “[t]he same principles apply with even greater force when the ‘cause’ for which the judge is soliciting is a business or commercial activity that serves the judge’s own financial benefit.”  The Commission found that the judge’s use of stationery and other judicial resources to advance his “burgeoning speaking business was an exploitation of his judicial office . . . .”  It explained:

Respondent pursued the opportunity to give paid presentations on the law with energy, using judicial letterhead stationery to increase the likelihood of a positive response to his solicitations and making follow-up calls to recipients who had not responded.  Respondent’s zeal in this pursuit arose primarily from his genuine belief that he was providing a public benefit by explaining legal concepts to non-lawyers.  Nevertheless, while his motives may have been pure, the fact that the “public service” he was providing also enriched him financially created the danger that recipients of his solicitation might feel coerced to hire him, or might think that hiring him to give a presentation would cause him to favor their interests in cases that came before him.

Further, although the Commission agreed that merely being paid to speak or teach may not constitute actively managing a business and emphasized that it was not criticizing or trying to inhibit the practice of judges educating the public regarding the law, it concluded that, by directly soliciting paid speaking engagements and following up to urge reluctant recipients to hire him, the judge “went beyond simply earning a fee for permitted activity, and instead actively sought to increase his extrajudicial sources of revenues.”

* * *
The Texas code of judicial conduct also still has the “lend” version of the rule, and a Special Court of Review Appointed by the Texas Supreme Court recently publicly admonished a judge for referring to his judicial title and position to promote a project with his wife called “divorce in peace” that included a book, website, and an on-line referral service.  In re Roach, Judgment and public admonition (Texas Special Court of Review July 24, 2018).

The judge and his wife, an attorney who conducts mediations in family law cases, co-authored the book Divorce in Peace:  Alternatives to War from a Judge and Lawyer.  The book’s front cover lists “John and Laura Roach” as authors.  The back cover has a photo of the authors together, next to the statement:  “John and Laura have spent their careers, as lawyers and a judge, trying to help couples avoid the pitfalls of high conflict divorces.”  An “About the Authors” section describes John Roach as “a Texas district court judge with a true passion for the law” and states that, “[a]s a judge, he has had a front row seat to over 10,000 family law cases.”  The book’s text does not refer to “Judge John Roach” or “Judge Roach,” but the book has sections entitled “Judge’s Perspective” and “Mediator’s Perspective” that offer additional comment on particular topics.

The book’s introduction refers to the “attorneys, financial planners, mental health professionals and others — who are committed to the same principles of peaceful resolution” and “are listed at our website,”  Professionals can be listed on the website without charge with a photo, resumé, practice-area description, and e-mail address.  Professionals who choose a subscription option, which ranged from $59.99 a month to $199 a month, post additional information such as client reviews, blog posts, articles, and videos.

When the book was published, a brochure was mailed to some 18,000 recipients, including about 12,000 Texas attorneys who identified themselves with the State Bar as family law practitioners.  The brochure repeated the website address several times and described the benefits for attorneys who paid fees to subscribe to the network.

A series of promotional videos were made for the project.  For example, in 1 video, entitled “About Us,” the judge and his wife were featured with a picture of a gavel; the judge discusses his expertise as an elected state district court judge who has presided over 10,000 family law cases.  The judge decided not to use the videos after viewing them because he was concerned that portions may violate the canons.  However, the videos were available on the website for approximately 30 days and were still accessible on YouTube as of May 2018.  According to the judge, he had been unsuccessful in his repeated efforts to remove the videos from YouTube because he did not have the necessary user name and password and could not obtain the information from the production company in India that had helped to create the videos.

The court stated that many discipline cases in which judges were found to have impermissibly lent the prestige of office to advance private interests involved “judicial intervention in a discrete court matter or a particular event such as an arrest.”  The court noted that the “guidance regarding ongoing business dealings involving a judge or a judge’s family member is more limited and highly context-sensitive.”

Describing a spectrum, the court explained that, at one end, “are plainly impermissible situations involving a judge who directly uses his or her authority over litigants to coerce actions that will benefit the judge financially.”  At the other end of the spectrum, the court stated, “judges are permitted to write and publish books on legal and non-legal topics; identify themselves as judges in biographical descriptions; and sell books they have written so long as they do not exploit the judicial title in doing so.”

The court concluded that, “[t]his case falls in the middle of the spectrum” because the judge did not direct “coercive conduct towards litigants or attorneys appearing in his court to compel actions from which he stood to benefit financially” but the “circumstances involve more than individual sales of a law-related book written by a judge.”  The court acknowledged that there was no reference to the judge as “Judge John Roach” or “Judge Roach” in the book or in the referral service brochure and no evidence the judge was photographed in his robe in connection with the book and website.  However, it stated that his “judicial role is readily apparent based on the first eight words of the book’s ‘About the Authors’ section” and “[l]ittle effort is required for readers to discern that the ‘Judge’ referenced on the front and back covers is John Roach, and that the ‘Judge’s Perspective’ highlighted throughout the book comes from him.”  The court described the project as “structured to create a financial gain arising from attorneys who paid for subscriptions in hopes of being hired by readers who acted on the book’s multiple invitations to visit the website and find Divorce in Peace-affiliated attorneys.”  The court concluded that the judge’s “participation in aspects of this interconnected project” improperly exploited his judicial position in business activities.

There is more information on the ethical implications of “The judge as author” in an article in the spring 2013 issue of the Judicial Conduct Reporter.  Shortly after the article was published, the U.S. Judicial Conference Committee on Codes of Conduct issued comprehensive advice on promotional activity associated with extrajudicial writings and publications in U.S. Advisory Opinion 114 (2014).


Judicial ethics and marijuana

29 or so states have decriminalized and/or legalized medical and/or recreational marijuana use since 1973.  Whatever effect that may have had on judicial caseloads, that change should not have affected judges’ personal habits.  As the Colorado advisory committee explained, even in a state that has decriminalized the use and possession of medicinal and small amounts of recreational marijuana, a judge who uses marijuana in private still violates the code of judicial conduct because federal law still makes the possession and use of marijuana for any purpose a crime.  Colorado Advisory Opinion 2014-1.

Further, the California judicial ethics committee recently advised that, because of federal laws, a judicial officer should not have an interest in an enterprise involved in the sale or manufacture of medical or recreational marijuana.  California Advisory Opinion 2017-10The committee explained that restriction precluded a personal financial investment or private equity fund investment in such an enterprise, ownership of shares in a corporation that invests in marijuana, or an interest in property that is leased for marijuana growth or distribution and included interests owned by a spouse or registered domestic partnerThe Washington advisory committee stated that a judge may not permit a court employee to own a medical marijuana business, even if the business fully complied with state laws and regulations, because federal law prohibits the possession, sale, and distribution of medical marijuana.  Washington Advisory Opinion 2015-2 

Judges have been disciplined for using marijuana although the cases arose when use was still a crime in the state.

The Michigan Supreme Court censured a judge and suspended him for 6 months without pay for using marijuana.  In re Gilbert, 668 N.W.2d 892 (Michigan 2003).  During a Rolling Stones concert, someone had passed a marijuana cigarette down the aisle in which the judge was sitting.  The judge took it, puffed it, and then passed it along.  When the marijuana cigarette was returned back down the aisle, the judge puffed it a second time before passing it along again.  The judge’s actions were well-publicized in the press in western Michigan, received significant attention in the media around metropolitan Detroit, were referenced by national news services, and were the subject of a joke by Jay Leno on The Tonight Show.  The judge took a voluntary leave of absence and reported his conduct to the Judicial Tenure Commission.

 The judge acknowledged that he used marijuana approximately twice a year.  He obtained a substance abuse evaluation by the State Bar of Michigan Lawyers and Judges Assistance Program, completed an in-patient substance abuse treatment program, and entered into a judicial monitoring participation agreement with the assistance program.

Pursuant to the judge’s consent, the Commission had recommended a 90-day suspension without pay.  However, the Court concluded that recommendation was insufficient for a judge who had admitted that he was using marijuana while trying, convicting, and sentencing defendants charged with marijuana offenses.  1 justice dissented, arguing that, in light of the judge’s “hypocrisy,” only removal “would begin to repair the damage to the public’s trust and confidence in the judiciary caused by his criminal misconduct and sufficiently sanction him for it.”

Adopting the findings and recommended sanction of a panel of the Board of Commissioners on Grievance and Discipline based on the judge’s consent, the Ohio Supreme Court publicly reprimanded a judge for using marijuana.  Disciplinary Counsel v. Bowling, 937 N.E.2d 95 (Ohio 2010).  The judge had occasionally used marijuana on weekends, and, in March 2008, began using it daily as self-medication to alleviate the physical and psychological effects of a stroke.  In December 2008, he was cited for possession of marijuana and drug paraphernalia.  By agreement, the drug paraphernalia charge was dismissed, and the marijuana charge was resolved by forfeiture of a $168 bond.  The judge did not plead guilty to and was not convicted of any crime.

After being charged, the judge had not used alcohol or marijuana or any other illegal substance.  He had entered into a 5-year contract with the Ohio Lawyers Assistance Program and completed a detox program, an in-patient program at an addiction-medicine facility, and a 90-day intensive out-patient program.

See also Inquiry Concerning Peters, 715 S.E.2d 56 (Georgia 2011) (removal of judge for obtaining and consuming marijuana at least once a week for several months, in addition to unrelated misconduct); In the Matter of Pepe, 607 A.2d 988 (New Jersey 1992) (removal of a former judge for using marijuana and supplying marijuana to another individual on one occasion, in addition to unrelated misconduct); In re Sherrill, 403 S.E.2d 255 (North Carolina 1991) (removal of a former 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 24 (Pennsylvania Court of Judicial Discipline 2004) (public reprimand of a judge for using marijuana); In re Coughenour, Stipulation and Order (Washington Commission on Judicial Conduct September 6, 1991) (public admonishment of a 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; an order of deferred prosecution had been entered in the traffic matter); In the Matter of Binkoski, 515 S.E.2d 828 (West Virginia 1999) (public censure of a 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 relative to the 2 charges).

When judges blog

Several judicial ethics committees have advised that a judge may maintain a blog but added caveats about being cautious and not violating the code of judicial conduct provisions relevant to communications by judges.  (Merriam-Webster’s on-line dictionary defines a “blog” as “a Web site on which someone writes about personal opinions, activities, and experiences.”)  The Arizona committee, for example, stated that a judge must ensure that no statements on her blog will negatively affect judicial proceedings, be perceived as prejudiced or biased, or necessitate frequent disqualification.  Arizona Advisory Opinion 2014-1See also New York Advisory Opinion 2010-138 (a judge may maintain an internet blog that comments on current events).

The Florida advisory committee stated that a judge could publish a blog that would alert readers to state appellate decisions as they were released because the judge did not plan to editorialize, criticize, or otherwise evaluate the opinions but only to briefly describe them.  Florida Advisory Opinion 2012-7.  Noting it had frequently approved judges’ speaking, writing, or teaching, the committee stated it would not make a distinction based on the technology used but warned the judge to exercise caution.  Acknowledging it was “not practicable to list all the provisions of the Code that could apply” and reminding the judge to expect “constant public scrutiny,” the committee directed the judge to “carefully examine all provisions of the Code that relate to the blog and its topics, to insure that the judge is not publishing on the blog something the judge could not ethically say in person.”  Finally, noting “that an interactive blog may invite inappropriate comment by the judge,” the committee suggested that the judge consider adding a disclaimer “that clarifies the judge does not endorse or vouch for the comments of others . . ., and that such comments do not represent the views of the judge.”

The Washington advisory committee stated that a judge may have a blog promoting “a more fair, just and benevolent society” and could respond to comments made by others on the essay the judge planned to post on the site.  Washington Advisory Opinion 2009-5.  The committee suggested that the judge should include a disclaimer that the opinions “are only those of the author and should not be imputed to other judges” and should describe the constraints on judges, such as the prohibitions on commenting on pending cases and discussing cases with persons appearing before the judge’s court.  The committee also advised the judge to consider:

  • “[T]he impression that may be conveyed when responding to comments that are posted on the blog;”
  • “[H]ow to tailor those comments to avoid any impression that the judicial officer’s impartiality might be called into question;” and
  • “[W]hether readers might perceive that the judge’s impartiality is impaired by the volume and content of the comments received.”

The committee recommended that the judge, if possible, review any comments from others before they are published on the blog or “regularly monitor the responses to make sure that the thread of the discussion does not change” into something that is prohibited.

The Connecticut advisory committee stated that a judge may be listed, including her judicial position, as an expert on a non-profit, non-partisan organization’s electronic “answer board” established to provide journalists with information on legal and constitutional.  Connecticut Advisory Opinion 2011-14.  However, the committee cautioned, the judge’s answers must be factual and instructive without expressing her opinion, indicating a predisposition with respect to particular cases, or providing legal advice.  The committee directed the judge to:

  • Monitor the web-site to ensure that it does not link to commercial or advocacy groups;
  • Stay abreast of new features on the site; and
  • Retain the right to review and pre-approve the use of biographical information.

See also Utah Informal Advisory Opinion 2012-1 (a judge may follow a blog on legal or political issues that is also followed by lawyers or politicians and need not continually monitor the contents and comments to prevent association with material that might reflect poorly on the judiciary); U.S. Advisory Opinion 112 (2014) (before commenting on a blog, a judge should analyze the post, comment, or blog to take into account the canons that prohibit judges from endorsing political views, demeaning the prestige of the office, commenting on issues that may arise before the court, or sending the impression that another has unique access to the court).


Judges and the Boy Scouts: Top stories of 2015

47 states, D.C., and the federal judiciary have provisions in their codes of judicial conduct prohibiting judges from being members of organizations that practice invidious or unlawful discrimination.  (The 3 states without any such provision are Alabama, Illinois, and Louisiana.)  In approximately 28 jurisdictions (27 states and D.C.), sexual orientation is specifically included in the list of grounds for discrimination to which the rule applies.  In other words, those jurisdictions have adopted a version of Rule 3.6A of the American Bar Association Model Code of Judicial Conduct:

A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (emphasis added).

Since 1996, California, one of those 28 jurisdictions, has had an exception for non-profit youth organizations to accommodate judges who were members of or active in the Boy Scouts of America, according to the California Supreme Court Advisory Committee on the Code of Judicial Ethics.  In January 2015, the California Supreme Court eliminated that exception effective January 1, 2016.  Thus, after January 1, California judges would no longer have been able to be members of the Boy Scouts – except the organization changed.

In July 2015, Boy Scouts of American amended its adult leadership policy to remove “the national restriction on openly gay adult leaders and employees” although local religious chartered organizations “may continue to use religious beliefs as criteria for selecting adult leaders, including matters of sexuality.”

Thus, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, even after elimination of the youth group exception, “judicial membership in a BSA-sponsored eagle scout alumni organization is not prohibited because, due to recent changes, current Boy Scouts of American policy precludes invidious discrimination on the basis of sexual orientation for non-unit-serving volunteers such as the eagle scout alumni members.”  California Oral Advice Summary 2015-13.

Similarly, as a result of that recent change in Boy Scout policy, the Connecticut Committee on Judicial Ethics recently advised that a judicial official may participate in the Boy Scouts by teaching ethics courses as a regional or high level volunteer (Connecticut Informal Advisory Opinion 2014-15Aand by serving as a board member of a regional council (Connecticut Informal Advisory Opinion 2014-15B).  Prior to the policy change, the Connecticut committee had issued an advisory opinion stating that a judicial officer may not hold adult volunteer leadership positions with the Boy Scouts that gay persons are barred from holding.  Connecticut Informal Advisory Opinion 2014-1.

Both the California and Connecticut codes, like the model code, contain exceptions for religious organizations, which, even after the Boy Scouts policy change, can still discriminate based on sexual orientation as a matter of religious belief.  Thus, the California committee said that a judge may be a scoutmaster for his church-sponsored Boy Scouts troop if he is satisfied that the troop does not exclude members based on sexual orientation or is dedicated to the preservation of religious values of legitimate common interest to the troop members.  California Oral Advice Summary 2015-14.  The Connecticut committee advised that a judge may, as the lawful exercise of his religious freedom, be a member of a Catholic archdiocese committee on Scouting.  Connecticut Informal Advisory Opinion 2014-15B.

These developments will be one of the topics discussed in the free webinar on the “Top Judicial Ethics Stories of 2015” presented on Friday January 15, 2016, from 12:00 p.m. to 1:00 p.m. central time by the National Center for State Courts Center for Judicial Ethics.  The webinar will review the 2015 cases and developments in judicial ethics and discipline that grabbed the headlines and illuminated current and recurring issues in judicial conduct, including Facebook and e-mail, campaign fund-raising, gay marriage, and appropriate sanctions.  SpeakersColin Winchester, Executive Director, Utah Judicial Conduct Commission * Cynthia Gray, Director, Center for Judicial Ethics, National Center or State Courts.  The webinar is free, but you must sign up ahead of time.  Click this link to sign up:


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.’”

What they said that got them in trouble in 2015 – So far

  • “You’re held in contempt at this time. All cases are dismissed.”  Judge to assistant city prosecutor who refused to meet with her outside the courtroom prior to the criminal docket.  In re Sims, 159 So. 3d 1040 (Louisiana 2015) (
  • “This is so goddamn simple. If you give the discovery and don’t do all this bullshit, I don’t have to sit here for hours and listen to this crap.  So everybody’s excused.”  Judge to attorneys in divorce matter.  Disciplinary Counsel v. Weithman (Ohio Supreme Court February 12, 2015) (
  • “If I determine that’s not a valid religious belief I could require you to remove the hat.” Judge to a defendant wearing a fedora in the courtroom as part of his Jewish faith.  In re Ladenburg, Stipulation, agreement, and reprimand (Washington State Commission on Judicial Conduct February 20, 2015) (
  • “You look like a Muslim, and I wouldn’t hire you with it,” or words to that effect. Judge to bearded assistant district attorney in courtroom at the conclusion of the criminal docket.  Public Admonition of Schildknecht and Order of Additional Education (Texas State Commission on Judicial Conduct May 11, 2015) (
  • “New York Jew.” Judge referring to district attorney during a private conversation with the district attorney’s secretary in the judge’s office.  Public Admonition of Schildknecht and Order of Additional Education (Texas State Commission on Judicial Conduct May 11, 2015) (
  • “After we finished Day 1 of the case called the ‘Boy in the Box’ case, trustees from the jail came in and assembled the actual 6”x8’ ‘box’ inside the courtroom!” Judge on Facebook page about high profile criminal case.  Public Admonition of Slaughter and Order of Additional Education (Texas State Commission on Judicial Conduct April 20, 2015) (
  • “I wondered what was taking the jury so long, but a lot of times they want to just make it look official, so they’ll spend 30, 40 minutes back there. . . .” Judge during a presentation about sex offenders before the Texas Patriots PAC.   Public Reprimand of Seiler and Order of Additional Education (Texas State Commission on Judicial Conduct April 24, 2015) (
  • “Must be nice to take such an expensive trip but not pay your bills. Just sayin’.”  Judge on Facebook in response to a photo of the father of her twin babies and his girlfriend.  In the Matter of Bennington, 24 N.E.3d 958 (Indiana 2015) (

The judge as author

The spring 2013 issue of the Judicial Conduct Reporter had an article on “The judge as author,” discussing the general rule that judges may author or co-author fiction or non-fiction books on legal or non-legal topics for legal or general publications and describing the limits to that permission for both content and promotion.

Recently, in U.S. Advisory Opinion 114 (2014), the advisory committee for federal judges issued comprehensive guidance for judges promoting books they have written.  The opinion addressed advertising, book signings, and media interviews.

The committee stated that a judge may not use “his or her judicial position, length of service, and court” in advertising materials and that the title “judge” may not precede a judge’s name in advertisements.  However, that information may be included “in a book jacket or in other similar straightforward author summaries, provided that the identification is without embellishment and appears in the context of other biographical information.”

According to the opinion, as long as the events are free and do not interfere with the performance of official duties, a judge may sign or discuss the judge’s books at book stores and other public venues where the books are available for sale.  The marketing materials for the judge’s appearances must comply with the advertising guidelines and should not suggest that attendees must purchase books or may enjoy special influence over the judge.  The committee stated:

During the events, the judge may read from and discuss the work in a dignified manner that focuses on the substance of the work and not merely on the author’s status as a federal judge.  Discussing the contents of the book, or how it came to be written, would generally be acceptable.  Urging attendees to buy the book would not.

If those guidelines are met, the committee advised, a judge may sell a book to an individual who happens to be an attorney or sign a book at an attorney’s request, “particularly if the book has not been marketed to the particular legal constituency the person represents” and the judge is not aware that the attorney has a relationship to any cases before the judge’s court.

A judge may also discuss a book during an event sponsored by a general membership bar association at a neutral location.  However, the opinion cautioned that “a judge’s signing or discussing books during an event before a narrow legal constituency at a non-neutral location . . . may suggest the judge favors the organization and the interests it represents.”  The committee noted that “concerns of favoritism are reduced if the events are open to a variety of attendees and held at neutral locations, and if the judge is available to address opposing or contrasting constituencies.”

The opinion warned judges to be dignified in media interviews about their books and to ensure “that the discussions and any mentions of the judicial position do not appear to exploit or to detract from the office.”  The committee explained:

Judges should approach live interviews with particular caution, especially if they anticipate being questioned about subjects whose public discussion might lead (even if unintentionally) to an appearance of impropriety.  The duty of a judge to promote public confidence in the integrity and impartiality of the judiciary may be at risk when a judge voluntarily injects him or herself into the limelight of public controversy or discussions of sensitive matters, including confidential aspects of the judicial process.  Related commentary to the press may generate further disputes, lead to disqualification, or embroil the judge in personal and professional disputes.  Accordingly, judges should take care in their approach to press interactions, particularly live press interactions, although ultimately the judges themselves are in the best position to weigh the ethical considerations that apply to a particular situation and to choose the manner in which they respond.

On a somewhat related issue, a recent emergency staff opinion from the Connecticut Committee on Judicial Ethics advised that a judge may be a contestant on the TV reality show “The Amazing Race” but should tell the show that his or her title may not be used for promotional or commercial purposes.  The committee noted that the judge should retain the right to pre-approve any biographical information used in connection with the show.  As additional conditions, the committee warned that the judge must receive advance permission to take off the time, that taking the time off must not interfere with the performance of his or her judicial duties, and that the association with his or her teammate on the show must not create an appearance of impropriety, result in frequent disqualifications, or violate other provisions of the code.