Category Archives: Off-bench conduct

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

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  • “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) (http://www.lasc.org/opinions/2015/14O2515.opn.pdf).
  • “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) (http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-482.pdf).
  • “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) (http://www.cjc.state.wa.us/Case%20Material/2015/7599_Ladenburg_Stip_Final.pdf).
  • “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) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “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) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “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) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “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) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “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) (http://www.in.gov/judiciary/opinions/pdf/02101501per.pdf).

The judge as author

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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.

Practicing law pursuant to military service

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At least 8 states have added a comment to their codes of judicial conduct that allows judges to practice law pursuant to military service as an exception to the prohibition on full-time judges practicing law.  (That exception is not in Rule 3.10 of the American Bar Association Model Code of Judicial Conduct, which does have exceptions for acting pro se or, without compensation, giving legal advice to and reviewing documents for family members.)  The 8 states are:  Delaware, Hawaii, Indiana, Iowa, Nebraska, Oklahoma, Tennessee, and Washington.

Advisory committees have also created that exception.  Alabama Advisory Opinion 2003-820 concluded that performing assigned legal duties when on active duty in the armed forces did not create a “significant risk that . . . would erode public confidence in the judiciary” or “any realistic prospect that the advice or advocacy efforts . . . would create a potential appearance of either undue advantage to the judge/advocate or of reciprocal favoritism.”  The opinion noted that “such work is unlikely to become the subject of any litigation, nor would an appearance be created that a judicial position was being exploited.”

Similarly, the Kentucky advisory committee stated that serving as a judge advocate officer in a National Guard or reserve unit does not constitute the practice of law within the meaning of the code because that service has a special nature and the judge is in effect on leave.  Kentucky Advisory Opinion JE-16 (October 1980).  The Illinois judicial ethics committee approved a judge on military reserve duty giving legal advice, serving on military courts, and helping prepare wills, leases, or other documents for military personnel.  Illinois Advisory Opinion 1997-8.  See also Nevada Advisory Opinion JE2007-7 (judge may serve in the Air Force Reserve as a judge advocate general).

Alaska Advisory Opinion 2007-1 distinguished between types of legal services.  The opinion advised that, while in military service, judges may provide legal services authorized for officers of the Judge Advocate General’s Corps but may not provide services that resemble those provided by civilian attorneys for members of the military, which remain within the prohibition.  Prior to adoption of the exception in the state’s code noted above, Washington Advisory Opinion 2004-8 had made a similar distinction.  See also Virginia Advisory Opinion 2003-4 (cautioning that providing legal assistance that resembles the services provided by civilian attorneys may give the impression that the judge is practicing law and violate the code of judicial conduct).

But see West Virginia Advisory Opinion 2014-18 (judge cannot serve as a JAG officer, citing state constitution and statute as well as code of judicial conduct).

Judges and onlookers

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In a twist on the recurring issue of the ethics of judges’ social lives, the New Jersey Supreme Court held that two judges violated the code of judicial conduct by socializing in public with a defendant who was awaiting trial on criminal charges but did not impose a sanction because it modified the applicable standard.

Since 2000, the two judges and a group of friends dined at a restaurant on Thursday evenings and attended mass together afterward. The judges continued to meet with the group even after one of the members, a former public official, was indicted for official misconduct. A guest at a meeting of a local Republican organization held at the same restaurant observed the two judges dining with the indicted individual and complained to the Lieutenant Governor, who referred the matter to the Division of Criminal Justice, which referred it to the Advisory Committee on Judicial Conduct.

The judges voluntarily stopped dining with the group as soon as they learned about the grievance from the Committee. Both judges fully cooperated with the investigation and admitted the facts but argued that they had not violated the code of judicial conduct.

The Court noted that the standard for appearance of impropriety in New Jersey is whether there is “a fair possibility that some portion of the public might [be] concerned” about the conduct regardless whether the concern was reasonable. That has been the standard since 1991 when the Court publicly reprimanded a judge who had attended a widely publicized picnic hosted by a convicted felon, the judge’s friend for 18 years, held two days before his sentence was to have begun and attended by 150 to 200 people. In the Matter of Blackman, 591 A.2d 1339 (New Jersey 1991).

Noting that a majority of states rely on an objective standard, the Court modified its standard to add an objective element: “Would an individual who observes the judge’s personal conduct have a reasonable basis to doubt the judge’s integrity and impartiality?” The Court explained:

Ethical principles that are meant to guide judges cannot depend on unreasonable judgments reached by a few, even if such inferences are possible. And discipline should not be imposed on the basis of questionable deductions that one or more members of the public draw. In any event, appropriate measures of conduct should provide clear guidance in advance.

That approach appropriately protects the reputation of the Judiciary and, by extension, the public. It still requires that judges tailor their personal behavior to avoid the appearance of impropriety. And when there is a reasonable basis to doubt a judge’s behavior, the questioned conduct would be forbidden and could subject the jurist to discipline.

Applying that standard, the Court concluded “socializing in public with a defendant who awaited trial on criminal charges” could cause a reasonable observer to question the judges’ impartiality and weaken the public’s confidence in the judicial system and, therefore, the judges had violated the code.

Curiously however, although the judges’ conduct was wrong under both the old and new standards, the Court declined to impose any sanction because it had changed the test. The Court did warn it would do so in the future under similar circumstances. Noting this was not “a random encounter in a public place that led to a brief, courteous exchange,” the Court stated that it was not requiring judges “to shun dear, lifelong friends or family members who face criminal charges” but was advising that “planned social interactions . . . are best held in private without a group of onlookers.” The Court appealed “to judges’ good common sense” and noted judges may seek advance guidance from the state’s advisory committee.

Speaking of family members facing criminal charges, the New York Advisory Committee on Judicial Ethics issued two opinions in 2014 on disqualification when prosecutors and defense attorneys in a case before a judge are also involved in a criminal case against a relative of the judge. The opinions are here and here.

Recent news

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The California Supreme Court revised the prohibition on membership in organizations that practice invidious discrimination (Canon 2C) to eliminate the exceptions for official military organizations of the U.S. and non-profit youth organizations.

The New Jersey Supreme Court held that two judges violated the code of judicial conduct by socializing in public with a defendant who awaited trial on criminal charges, but the Court did not impose a sanction because it modified the appearance of impropriety standard in its decision to make it objective.

The transcript for the oral argument before the U.S. Supreme Court on the First Amendment challenge to the canon prohibiting personal solicitation of campaign contributions is on-line.

 

 

Top judicial ethics stories of 2014: Part 1

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Beginning this week and through the end of the year, this blog will summarize the top judicial ethics and discipline stories of 2014.

“Commit the oldest sins the newest kind of ways”
From Shakespeare, Henry IV, Part 2, Act 4, Scene 5

Inappropriate private comments by judges are not new to the internet age, but the ease of communication in electronic formats makes such comments more likely to become public.  Several judicial discipline cases from 2014 illustrate the perils of a judge forgetting his (in all three cases) judicial position while sitting at the keyboard or tapping on a keypad.

* * *
Based on a “report not contested” filed by the Judicial Discipline and Disability Commission, in September, the Arkansas Supreme Court removed Judge Michael Maggio from office for comments he posted as “geauxjudge” on “tiger droppings,” a public Louisiana State University sports fan forum page, and other misconduct.  In March, after he was identified as “geauxjudge” by a blog called the Blue Hog Report, the judge had dropped out of the race for the Court of Appeals.

Since November 2005, the judge had made posts on the fan-site from his telephone, his personal home computer, or the office computer owned by the county and supplied to his circuit court office.  The Commission found that the judge’s comments were not anonymous, stating “it took little time once the posts were sorted to find numerous facts in the posts that proved your actual identity.”  The Commission gave examples of the hundreds of posts the judge made, including comments on a closed adoption by actress Charlize Theron; on pending cases; expressing his wish to be assigned cases involving attractive women, sexual subjects, and nude pictures; giving legal advice on how to beat a DWI charges; and with inappropriate gender, racial, and sexually related statements.

In its letter to the judge, the Commission stated that the comments were “much more than a problem of taste, decorum or personal opinion.”

It adds up to someone who demonstrates that he is unfit for the bench.  Your actions offended and, even worse, gave rise to legitimate concerns that bias would overcome fairness and due process for a large number of potential litigants and their attorneys.  Even the cases that you decided based purely on the facts and the law are now suspect by parties who look at the kind of statement you made.  Whether it is race, gender, sexual orientation or specific subject matter, your comments made it impossible for you to be taken seriously as a judge who would be fair and impartial.  You essentially disqualified yourself from the bench.

* * *
The Pennsylvania Supreme Court relieved Justice Seamus McCaffery of his duties with pay pending an investigation of hundreds of sexually explicit e-mails he exchanged with members of the state attorney general’s office and other allegations.  (The e-mails are part of a wider scandal involving the attorney general’s office, which became known as “porngate” and surfaced during a review of the investigation of Jerry Sandusky.)  The extent of the justice’s involvement and the content of the e-mails have not yet been subject to fact-finding and may never be; after the Court’s order, Justice McCaffery resigned and agreed not to seek senior judge status or election to judicial office, and the Judicial Conduct Board dismissed its investigations.

* * *
Hundreds of e-mails were also the basis of the reprimand of retired judge Richard Cebull by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States, adopting and publishing an order of the 9th Circuit Judicial Council.  Cebull had sat on the U.S. District Court for the District of Montana.

In February 2012, then-judge Cebull, using his court e-mail account, forwarded to six friends a message under the subject line, “A MOM’S MEMORY.”  The message was:

Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching.  Hope it touches your heart like it did mine.  A little boy said to his mother, Mommy, how come I’m black and you’re white?  His mother replied, “Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!”

At least one of his friends forwarded the judge’s e-mail to others, and it reached a newspaper reporter, who published an article quoting it.  According to the article, the judge told the reporter that he sent the e-mail because it was “anti-Obama.”  The judge is quoted as saying:  “The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan.”  The Judicial Council noted the “nationwide media coverage” generated by the e-mail.

An investigation uncovered hundreds of inappropriate e-mails sent by the judge from his federal account.  The Council found:

The majority of the emails were political in nature.  Whether they were cast as jokes or serious commentary, the emails showed disdain and disrespect for liberal political leaders.  A significant number of emails were race related.  Whether cast as jokes or serious commentary, the emails showed disdain and disrespect for African Americans, Native Americans and Hispanics, especially those who are not in the United States legally.  A similarly significant number of emails related to religion and showed disdain for certain faiths.  Approximately the same number of emails concerned women and/or sexual topics and were disparaging of women.  A few emails contained inappropriate jokes relating to sexual orientation.  Finally, a large number of emails related to pending legislation or an issue that could come before the court, such as immigration, gun control, civil rights, health care or environmental matters.

The investigation found no evidence of bias in the judge’s decisions.

The Judicial Council concluded that the “racist and political February 2012 email, particularly when coupled with the hundreds of other emails regularly sent from Judge Cebull’s court email account” “reflects negatively on Judge Cebull and on the judiciary and undermines the public trust and confidence in the judiciary.”  Stating “even if Judge Cebull intended his emails to remain private, he was indifferent to their potential negative impact,” the Judicial Council “strongly” condemned his e-mail practices and found that he had “violated his pledge ‘to uphold the integrity and independence of the judiciary.’”  The Council also found that, although a judge may have political opinions and share those opinions in private among friends, “disseminating political opinions via a court email account to court staff and to individuals outside the judiciary contravenes” Canon 5.  Finally, the Council stated the judge “compounded his mistake . . . by making anti-Obama statements to reporters who called for comment on the February 2012 email.”

Other than the February 2012 e-mail, the specific contents of the e-mails were not disclosed.

Judges and domestic violence

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Several reporters have called the Center for Judicial Ethics to ask how many judges have been removed for domestic violence since the arrest of Judge Mark Fuller, U.S. District Court for the Middle District of Alabama, on battery charges for allegedly beating his wife in an Atlanta hotel room and his subsequent plea agreement to pre-trial diversion.

No federal judges have been removed or even impeached for domestic violence, although it is not clear whether that means it is not considered an impeachable defense or whether the question has not arisen because no other federal judge has been charged with domestic violence or any judges so charged have resigned or retired before impeachment could be considered.  The Federal Judicial Center has a list of impeachments.  There have been 15 impeachments of federal judges in the country’s 225 years; only eight led to conviction and removal; four of the other judges were acquitted, and three resigned so the articles of impeachment were dismissed.  The Center is not aware of any cases in which federal judges have been publicly disciplined for domestic violence.  The U.S. Court of Appeals for the 11th Circuit has ordered that all cases pending before Judge Fuller be immediately re-assigned to other judges and that no new legal matter be assigned to him.  According to news reports, Judge Fuller has been asked to explain his conduct to the Chief Judge, and a nine-judge committee has been appointed to handle the investigation, the first steps in the federal judicial discipline process.

There have been state judges or former judges publicly disciplined for domestic violence, although none have been removed, at least in the last 24 years.  A list of those cases is below.

The Georgia Judicial Qualifications Commission, with the consent of the judge, made public the fact that it had privately reprimanded a judge but not the content of the reprimand.  The report of disposition states that the Commission matter originated with media reports that the judge had been arrested based on allegations he engaged in a physical altercation with his wife.  Subsequently, the judge and the special prosecutor agreed that the charges would be dismissed based upon his pre-trial diversion agreement to attend marital and stress counseling.  In re Weaver, Report of Disposition (Georgia Judicial Qualifications Commission July 18, 2012) (www.gajqc.com/news.cfm).

Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly censured a former judge for committing domestic battery against his now ex-wife and having been convicted of the charge arising from the incident; the Commission also prohibited him from seeking and accepting judicial office in Nevada for four years.  He lost his re-election bid.  In the Matter of Abbatangelo, Findings of Fact, Conclusions of Law, Consent Order of Discipline (Nevada Commission on Judicial Discipline March 30, 2011) (http://judicial.state.nv.us/Finding%20of%20Fact–Abbatangelo%202011.pdf).

The Ohio Supreme Court suspended a judge’s license to practice for one year, but stayed the suspension with conditions, for two convictions of disorderly conduct because of physical altercations with his girlfriend.  Disciplinary Counsel v. Russo, 923 N.E.2d 144 (Ohio 2010).

Adopting the presentment of the Advisory Committee on Judicial Conduct to which the judge had consented, the New Jersey Supreme Court censured a former judge for domestic violence and causing a motor vehicle accident while driving in an intoxicated condition.  In the Matter of Paragano, Order (New Jersey Supreme Court January 30, 2007).

Approving a consent to censure based on stipulated facts, the Oregon Supreme Court publicly censured a judge who had pled guilty to assault for recklessly causing physical injury to his wife and entered into the domestic violence deferred sentencing program.  In re Moultrie, 139 P.3d 955 (Oregon 2006).

Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a part-time judge who had angrily confronted his wife, waved a knife close to her throat, and threatened to run her through.  In the Matter of Roepe, Determination (New York State Commission on Judicial Conduct June 27, 2001) (www.scjc.state.ny.us/).

The Washington Supreme Court censured a former judge and suspended him from office until the end of his term for intentionally striking or pushing his wife, causing her to fall.  The court also ordered that the judge complete a domestic violence program before he could serve in any future judicial capacity.  In the Matter of Turco, 970 P.2d 731 (Washington 1999).

Pursuant to a stipulation in which the judge admitted the allegations of the complaint filed by the Judicial Commission, acknowledged that he had no defense to those allegations, and agreed that the court might impose an appropriate sanction, the Wisconsin Supreme Court publicly reprimanded a former judge for battering his wife and causing her bodily harm.  The judge had run for re-election after the conduct had occurred and was defeated.  In the Matter of Crivello, 564 N.W.2d 785 (Wisconsin 1997).

In a stipulation and agreement between the Washington State Commission on Judicial Conduct and a judge who had twice intentionally struck and caused bodily harm to his then-spouse and entered a plea of guilty to two counts of assault, the judge agreed and stipulated to resign and terminate his judicial duties no later than December 1, 1993.  He also agreed not to seek or serve in any judicial office in Washington unless the Supreme Court granted a petition for reinstatement of eligibility.  In re Perkins, Stipulation and Agreement (Washington State Commission on Judicial Conduct October 21, 1993) (www.cjc.state.wa.us).

Participating in charitable fund-raising

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In the recently published summer issue of the Judicial Conduct Reporter, there is an article on participating in charitable fund-raising events (a follow-up to the article in the spring issue on “defining ‘charitable fund-raising event’”). The article reveals some consensus but also some splits among the state advisory committees and even over time on what types of participation are permissible and which are over-the-line for judges.

There may be a more lenient attitude developing toward judicial participation in fund-raising, particularly when a judge’s status as a judge is downplayed and his or her status as a member of the community is emphasized. Thus, a judge can solicit contributions from family members, since it is the family relationship, not the judicial office that is important there, and may under most circumstances be just one of the members of a band playing at an event or one of waiters at a dinner or one of the walkers in a walk-athon. But a judge cannot act as a celebrity waiter or run a 100-yard-dash in her robe or participate in a “dunk-the-judge” booth to raise funds.

So far no advisory committee has issued a formal, public opinion on whether judges may participate in the viral ice bucket challenge that has raised so much money for ALS research.  But the principles announced in previous opinions should be transferable.

Self-reporting

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In a recent advisory opinion, the Colorado Judicial Ethics Advisory Opinion stated that, although the state has decriminalized the use and possession of medical and small amounts of recreational marijuana, a judge who engages in recreational or medical use of marijuana violates the code of judicial conduct because the possession and use of marijuana for any purpose is still a crime under federal law.  (The board did note that, because it was authorized only to provide opinions “concerning the compliance of intended, future conduct with the Colorado Code of Judicial Conduct, . . . we do not address whether a judge who uses marijuana consistent with Colorado law should be disciplined . . . .”)

As part of its analysis, the board looked at a provision in the Colorado code of judicial conduct (Rule 1.1(C)) that states:

Every judge subject to the Code of Judicial Conduct, upon being convicted of a crime, except misdemeanor traffic offenses or traffic ordinance violations not including the use of alcohol or drugs, shall notify the appropriate authority in writing of such conviction within ten days after the date of the conviction. In addition, the clerk of any court in this state in which the conviction was entered shall transmit to the appropriate authority within ten days after the date of the conviction a certificate thereof.

The American Bar Association Model Code of Judicial Conduct does not have a similar rule, nor do most other states. But at least two other states have also concluded that such reporting is a necessary component of a judge’s ethical obligations.

Canon 3D(3) of the California Code of Judicial Ethics is broader than the Colorado rule as it applies at charging, not conviction. It states:

A judge shall promptly report in writing to the Commission on Judicial Performance when he or she is charged in court by misdemeanor citation, prosecutorial complaint, information, or indictment, with any crime in the United States as specified below. Crimes that must be reported are: (1) all crimes, other 33 than those that would be considered misdemeanors not involving moral turpitude or infractions under California law; and (2) all misdemeanors involving violence (including assaults), the use or possession of controlled substances, the misuse of prescriptions, or the personal use or furnishing of alcohol. A judge also shall promptly report in writing upon conviction of such crimes.

New Jersey has an even broader provision, covering civil and criminal cases. It is in an administrative directive, not the code, and requires reporting to the administrative office of the courts, not the discipline authority. The directive states in part: “All judges must immediately report their involvement in any type of litigation in any court.” The directive came up in a recent discipline case when the New Jersey Supreme Court censured a part-time former judge and permanently barred him from serving in judicial office for, in addition to other misconduct, failing to report his involvement in 43 lawsuits filed against him when his real estate business failed, being consistently uncooperative with opposing counsel, fraudulently transferring real property, breaching his fiduciary duties to an investor, and having his judicial salary garnished.

No secret

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The recent “report not contested” the Arkansas Judicial Discipline and Disability Commission submitted to the Arkansas Supreme Court to resolve the discipline case against Judge MIchael Maggio has been much in the news, attracting attention because of the incongruity between the dignity of the office and the judge’s numerous vulgar, biased, and altogether inappropriate comments on a fan-site and the fact that some of the comments involved a famous actress.

The judge admitted that he was the author of the “geauxjudge” posts on the web-site http://www.tigerdroppings.com/, a Louisiana State University sports fan forum page.  The Commission found that the judge’s comments on the fan-site were not anonymous.

There were dozens, if not hundreds, of . . . posts identifying you as the poster through context and comments. Additionally, you made no secret that you were in fact a sitting judge and continually commented on your job and your role as a judge. Even your screen name indicated your official position.

There is some protection on [electronic social media] when you control the account. A person can shut down their own Facebook or Twitter account. They can also text individuals without broadcasting their comments to the world wide web without constraint. The site http://www.tigerdroppings.com/ did not require a person to be a member to look at all of your comments. What you actually did was use a pseudonym and identify yourself through context while broadcasting to the public the comments that would ultimately bring you to discipline.

The volume of your comments result in much more than a problem of taste, decorum or personal opinion. It adds up to someone who demonstrates that he is unfit for the bench. Your actions offended and, even worse, gave rise to legitimate concerns that bias would overcome fairness and due process for a large number of potential litigants and their attorneys. Even the cases that you decided based purely on the facts and the law are now suspect by parties who look at the kind of statement you made. Whether it is race, gender, sexual orientation or specific subject matter, your comments made it impossible for you to be taken seriously as a judge who would be fair and impartial. You essentially disqualified yourself from the bench.

The Commission recommended that the judge (1) be removed from office for, on the site, (a) posting comments regarding the closed adoption of a famous actress and (b) making inappropriate statements about official duties, pending cases, and independent investigations, and (2) be suspended with pay until the end of his term for (a) inappropriate gender, race, and sexually related statements on the fan-site, (b) spoliation of evidence, and (c) improper handling of a hot check case in which he was the victim.  The removal will be effective at the end of his term on December 31, 2014; the Commission noted removal has a legal effect because it is permanent and prohibits him from holding judicial office in Arkansas.