Marching up-date

In a new opinion, the New York Advisory Committee on Judicial Ethics stated that judges may permit their law clerks to participate in peaceful Black Lives Matter protests away from the courthouse during non-working hours.  New York Opinion 2020-141.  However, the opinion advised the judges to instruct their clerks not to carry signs calling for the arrest or prosecution of police officers involved in a specific shooting and not to remain with any protestors engaging in vandalism or violence.  The advice applied only to law clerks personally appointed by the judges who do not have quasi-judicial titles or functions.

The Center for Judicial Ethics has compiled and posted on its website summaries of judicial ethics advisory opinions about judges and staff participating in marches, demonstrations, vigils, protests, rallies, and other issue-related community events.  Also, please watch the CJE’s inaugural CourtClass Ethics-in-Brief tutorial on judges and court employees participating in marches and demonstrations.

No divorce from judicial role

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Officer of the court candor

In several recent judicial discipline cases, judges were sanctioned for failing to be truthful and forthcoming with law enforcement.

The Illinois Courts Commission removed a judge from office for making false and misleading statements to detectives investigating the discharge of a firearm in his apartment, in addition to other misconduct.  In re O’Shea, Order (Illinois Courts Commission September 27, 2019).

In September 2017, the judge’s neighbors found a bullet inside their apartment and contacted the police.  When detectives went to the judge’s apartment, he initially told them that a hole in his wall had been caused by a screwdriver.  After the detectives told him that his neighbors had found a bullet, the judge suggested that his son may have accidentally fired a bullet through the wall.  On further questioning, the judge admitted that he had accidentally discharged a firearm and that the bullet had gone through the wall.

At the hearing before the Commission, the detectives testified that the judge’s admission came after they had interviewed him for at least 15 minutes.  The judge initially claimed that he had immediately told the detectives that the hole was from a bullet and denied blaming a screwdriver or his son.  The judge then testified that, although a screwdriver had been his first explanation, he had admitted only a few seconds later that he had fired a bullet through the wall.

The Commission found that the detectives were “credible, believable, and . . . had no basis for any bias,” and that the judge’s “testimony was not credible, not believable, and not truthful.”  The Commission emphasized that, although firing the bullet through the wall was not related to the judge’s duties, his “response to the incident was unacceptable for an officer of the court.”

* * *
The Illinois Commission removed a second judge for failing to disclose information relevant to the investigation of a homicide and providing false statements when questioned by police detectives.  In re Duebbert, Order (Illinois Courts Commission January 10, 2020).

Duebbert met David Fields in 2013, before he was a judge, and they developed and maintained a close personal relationship.  In 2015, Fields pled guilty to aggravated assault on a pregnant person and was incarcerated.  While Fields was incarcerated, Duebbert and Fields remained in contact through telephone calls, written correspondence, and the judge’s personal and attorney visits.

On October 24, 2016, Fields was released on mandatory supervision.  On November 4, Fields moved into the judge’s home.  On November 8, Duebbert was elected judge.  On December 2, Fields moved back to his mother’s home.  On December 5, Duebbert was sworn in as a judge.

On December 29, the judge and Fields exchanged texts; Fields used a cell phone with a 650 area code that was in the judge’s name and that the judge had given him to use several times, including earlier that day.

Early the next morning, December 30, Carl Silas was murdered.

Later that morning, Fields called the judge; their conversation lasted just over 3 minutes.  By noon, the judge knew that Field was a suspect in Silas’s murder.

That afternoon, 2 state police officers investigating the murder interviewed the judge at his home.  The officers asked the judge about his firearms and the 650 phone.  The interview was recorded.

In the discipline proceedings, the officers testified that, when they asked who had the 650 phone, the judge said that Fields had given it back to him in late November or early December and did not tell them that he had returned the phone to Fields the night before, that Fields had used that phone to text him the night before, or that he had received a phone call from Fields earlier that day.  The judge told the officers more than once that “if” he heard from Fields, he would tell Fields to turn himself in to the police.

The Commission found that the detectives’ testimony was credible, believable, and without bias.  The Commission rejected the judge’s testimony that he had told the detectives about his texts and phone call with Fields during an alleged off-camera interview and found that his testimony was “seriously wanting and unworthy of any belief” and that his arguments were “insulting and disturbing” from a former defense attorney and elected judicial officer.

The Commission concluded that the judge “intentionally led the police officers astray.  Rather than being forthcoming about his contact with Fields, respondent purposely deceived the investigators by failing to provide significant information he knew was relevant to the investigation.”  The Commission also found that the judge’s false and misleading statements had effectively misdirected the police investigation and “wasted significant police time and the use of personnel during the critical investigation of a homicide.”

Noting that the judge “tried to explain these false and misleading statements by suggesting that he was petrified when speaking with the officers,” the Commission stated that his “perceived fear does not excuse lying to the police during a homicide investigation” or “absolve his subsequent lies and misstatements in attempting to explain his actions in deceiving and misleading the investigations.”  The Commission found that “the more likely reason for the judge’s implausible testimony” was that he had reviewed his recorded statement to the officers, realized he had lied, and “crafted a new explanation to somehow explain that he was not lying during the police interview.”  It also concluded that, although his false and misleading statements were made outside the courtroom and in his private life, his “repeated falsehoods are intolerable for a sworn officer of the court.”  Finally, the Commission noted that the judge had “exploited his position to satisfy is personal desires” and “to shift the focus away from his involvement with Fields,” valuing “his reputation and position as a judge over providing truthful statements to the police.”

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Finding that she had given priority to personal considerations over law enforcement’s public safety concerns, the New Jersey Supreme Court suspended a former judge for 3 months without pay for withholding from the police information about the whereabouts of her boyfriend even though she knew there were warrants for his arrest and, when she was arrested for hindering apprehension, telling the officers that she had been “vetted” and asking to be handcuffed with her hands in front.  In the Matter of Brady (New Jersey Supreme Court August 6, 2020).

In June 2013, the judge had been a superior court judge for approximately 2 months, she had been involved in a romantic relationship with Jason Prontnicki for about 6 months, and Prontnicki was living in her home.  The judge was undergoing medical treatment to have a child with Prontnicki, and a doctor had told her that she might be pregnant.

On the morning of June 10, the judge went to the headquarters of the Woodbridge Township Police Department and told Officer Robert Bartko and others that Prontnicki had loaned her car to a friend without her permission.  She stated that she had told Prontnicki that, if she did not hear from him by 10:00 a.m. on the 10th, she would report the vehicle as stolen.

While the judge was at the police station, the officers learned that there were 2 open warrants for Prontnicki’s arrest and that his driver’s license had been suspended.  One of the warrants related to an armed robbery of a pharmacy in April in which the perpetrator allegedly threatened a pharmacist with a crowbar, demanding drugs.  The officers told the judge.  According to the police report, the officers told the judge that as “an officer of the court,” she was required to tell them “if and when” Prontnicki returned so that they could arrest him.

By text, the judge told 2 friends that she had just learned that Prontnicki had threatened a pharmacist with a crowbar and that, when the incident occurred, Prontnicki “was already staying with me and I was a judge.”  She added, “I can’t have him in my house cos I wud now be harboring a criminal . . .  I wud have to report him.”

Shortly after the judge returned to her home, Prontnicki called her and told her that he had her car and would return it; she told him that police officers had advised her that he had outstanding warrants and a suspended license.  According to the judge, Prontnicki denied knowing that he had any warrants or that his license had been suspended, and she told him that he needed to “go to the police and take care of it right away.”  The judge testified that Prontnicki said he would bring her car back first, and she told him “fine, it would be nice if you brought back [the] car, but you can’t come in my house.”

Immediately following that call, the judge texted a friend that Prontnicki “just called to tell me he got the car and will bring it home.”  She added that she had told him that “he can’t stay with me cos he has a warrant out for his arrest and I am required to notify authorities when I know someone has a warrant.  So I told him he must leave after he drops the car off as I must go to the police.”

At approximately 3:00 p.m., Prontnicki arrived at the judge’s home.  The judge was “a little surprised and shocked and then fearful,” and she told Prontnicki to leave.  When Prontnicki walked through the house to the garage, she followed him.  They talked for about an hour, joined by her father for the final 15 minutes.  According to the judge, Prontnicki denied having outstanding warrants and suggested that the police might be “trying to get you because you’re a judge.”  Eventually, Prontnicki’s brother picked him up.

Approximately 15 minutes after Prontnicki left her home, the judge called the police department, asked to speak with Bartko, and left a message on Bartko’s voicemail.

The next morning, Prontnicki called the judge, and they spoke for almost 3 hours.  According to her texts to her friend that afternoon, Prontnicki attempted to reassure the judge that “he had done nothing unlawful and that their relationship could be salvaged,” but she told him that “without written verified proof he and I can’t be seen or stay at my house together.”

At 3:31 p.m., the judge left a second voicemail message for Officer Bartko.

That afternoon, officers conducted surveillance of the judge’s residence.  At 3:48 p.m., driven by his brother, Prontnicki arrived at the judge’s home, entered the garage, and spoke with her.  After about an hour, Prontnicki left with a duffel bag.  Shortly thereafter, he was arrested.

Shortly after Prontnicki’s arrest, Sergeant Brian Murphy, a detective, and an officer went to the judge’s home and arrested her for hindering Prontnicki’s apprehension.  One officer testified that she said, “I’ve been vetted, take the cuffs off.”  According to the police report, the judge directed officers to take the handcuffs off and asked to be handcuffed with her hands in front rather than behind her.  The officers refused both requests.

After escorting the judge to the processing room at police headquarters, Bartko and other officers listened for the first time to the 2 voicemail messages she had left.

Later that evening, Sergeant Murphy, an officer, and an assistant prosecutor went to another judge’s home and presented a complaint warrant alleging that Judge Brady had “harbor[ed]” Prontnicki in her residence “for approximately 1 hour and never ma[de] any attempt to contact law enforcement.”  In the discipline proceedings, Murphy conceded that the statement that the judge never tried to contact law enforcement was inaccurate.  The other judge signed the complaint warrant.

Although a grand jury indicted the judge on charges of official misconduct and hindering apprehension or prosecution, all charges were dismissed with prejudice by March 2018.

In the discipline proceedings, the judge contended that the police had tampered with the recordings of her voicemail messages before producing them, deleting part of what she told Officer Bartko.  The judge and the Advisory Committee on Judicial Conduct both submitted reports from forensic audio experts.  The Court found that, even if the judge had included the information she claimed the police had deleted, she had not been “fully forthcoming” with the police, had provided only “a vague notion” of Prontnicki’s general location, and had failed to disclose what she knew of his plans and location and how much she had communicated with him.

The Court held that the judge’s communications with the police department “fall short of the high standards imposed by the Code” and that “it is apparent that respondent’s priorities were her personal concerns — particularly her relationship with Prontnicki –not her duty to the public.”  Noting that the judge “clearly understood that the charges against Prontnicki were serious and that the police viewed public safety to be at risk while he remained at large,” the Court emphasized that “she disclosed only minimal information about her extensive contacts with Prontnicki” in “perfunctory and vague” communications that “stand in stark contrast to the candid and detailed accounts she provided by text to her friends, in real time.”  The Court also faulted the judge for not trying to contact the officers by calling the police headquarters’ general telephone number, calling 9-1-1, or visiting police headquarters.

The Court acknowledged that the judge “was undoubtedly in a difficult situation during the two days at issue here” and that it was “understandable that respondent was upset as those disturbing events unfolded.”  However, it explained:

As a judge, . . . respondent was not at liberty to address her circumstances with only herself and her personal relationships in mind.  The WTPD was searching for an individual who allegedly robbed a pharmacy by threatening a pharmacist with a crowbar.  A judge had found probable cause and issued a warrant for his arrest, and WTPD officers were charged to execute that warrant in the interest of public safety.  It was incumbent on respondent to fully cooperate with law enforcement in their search for Prontnicki, notwithstanding her distressing personal circumstances. . . .

The public has the right to expect that when police officers are searching for a fugitive accused of a violent crime and a judge has detailed knowledge of the whereabouts, activities and immediate plans of that fugitive, the judge will take prompt and decisive action to ensure that law enforcement is fully informed.  There is no exception to that principle when the judge and the fugitive have a personal relationship.

In a dissent, 1 justice described his disagreements with the Committee’s findings and the Court’s conclusions and argued that the judge should not be disciplined for “not leaving more information on a voicemail that the police recklessly failed to retrieve and for not acting as the perfect police informant during the tumultuous hours at issue . . . , and for not calling the police in the presence of a potentially violent criminal . . . .”  He stated:

Today’s majority decision is a sad epilogue to Judge Carlia Brady’s seven-year nightmare journey through the criminal justice system and the judicial disciplinary process.  Seven years ago, Judge Brady was the quintessential American success story — a Filipino-American immigrant, who became an accomplished lawyer and rose from the ranks of the Bar to become a Superior Court judge.  Just several months after her judicial appointment, her career, her reputation, her health — her life — would be in ruins, the victim of overzealous Woodbridge Township police officers, who filed criminal charges that could not be sustained in court.

 

Marching up-date

To up-date the Tuesday blog post on judges’ participating in marches, vigils, and similar issue-related community activities, note that the Connecticut Committee on Judicial Ethics has just posted a relevant new opinion. In Connecticut Informal Opinion 2020-3, the committee advised that a judicial officer may not participate in “A Silent March of Black Female Attorneys of Connecticut” by meeting marchers on the steps of the Supreme Court and reading part of the state constitution even if he is not introduced, does not identify himself by name or title, does not wear a robe, does not permit his name or title to be used in advertising, does not interpret the constitutional provision, and does not speak with the media. The opinion notes that the judicial officer’s identity could be easily ascertained and that supporters of the march are encouraged to bring protest signs, which might, refer to police brutality and/or other pending cases, and will be wearing “We Can’t Breathe” buttons, which refer to the George Floyd case and similar police abuse cases.

Marching

Judges sometimes ask judicial ethics advisory committees whether they can participate in marches, vigils, and similar issue-related community events.  This is the advice committees have provided:

  • Before attending a march, rally, or protest, judges must assume their participation will be scrutinized, publicized, and depicted in reports of the event, including in press coverage or on social media; and consider whether participation “would appear to a reasonable person” to undermine the judge’s “independence, integrity, or impartiality or demean the judicial office,” which is an objective standard. Judges should examine the official title of an event, its stated mission, its sponsors, and its organizers.  If a judge participates in a march, rally, or protest focused on social, legal, or political issues that may become the subject of litigation or that is sponsored or organized by individuals or entities who regularly appear in state court proceedings, a reasonable person may have cause to question the judge’s independence and impartiality when making decisions about those issues, individuals, or entities in subsequent cases.  Judges must also scrupulously avoid any extra-judicial activity tied to an organization that practices invidious discrimination.  Judges should not participate in a march, rally, or protest if such participation could reasonably be viewed as supporting or opposing a candidate for public office or as speaking publicly on behalf of a political organization.  Even if a march, rally, or protest relates to the law, the legal system, or the administration of justice, there are potential ethical pitfalls.  Even assuming attendance at a march, rally, or protest is appropriate in the first instance, a judge must remain vigilant and be prepared to leave if the event proves problematic.  Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating.  Arizona Advisory Opinion 2018-6..
  • A judicial officer may not participate in “A Silent March of Black Female Attorneys of Connecticut” by meeting marchers on the steps of the Supreme Court and reading part of the state constitution even if he is not introduced, does not identify himself by name or title, does not wear a robe, does not permit his name or title to be used in advertising, does not interpret the constitutional provision, and does not speak with the media.  Connecticut Informal Opinion 2020-3.
  • A judge may attend ceremonies held by law enforcement agencies to honor officers killed in the line of duty. Florida Advisory Opinion 1992-34.
  • A judge may attend a Mothers Against Drunk Driving candlelight vigil if it is not a fund-raising event and the judge’s attendance would not be announced. Florida Advisory Opinion 1995-41.
  • A judge may participate in a “March for Science” if it is centered on matters that are unlikely to come before the court. To determine whether to participate in an issue-related gathering, a judge should thoughtfully examine whether the issues might be likely to come before the court or adversely impact judicial independence or the appearance of impropriety or the appearance of impropriety or bias.  Illinois Advisory Opinion 2019-1.
  • A judge may not participate in the Women’s March on Washington scheduled for the day after the presidential Inauguration. Massachusetts Letter Opinion 2016-10.
  • Judges may not participate in a candlelight vigil celebrating the one millionth child served by CASA programs across the country even if the vigil is non-partisan and not connected with fund-raising. New Jersey Advisory Opinion 2008-1.
  • A judge must not participate in a high-profile, apparently non-partisan march to recognize the importance of scientific endeavors and rational thought in society unless she determines that the march is not co-sponsored by or affiliated with any political organization and does not support or oppose any political party or candidate for election and her participation will not involve her in impermissible political activity or insert her unnecessarily into public controversy. In the period leading up to the event, the judge must monitor the march’s agenda and publicly reported affiliations and sponsorships.  A judge may not participate in a local political rally, march, or demonstration sponsored by grassroots organizations, even if she would refrain from speaking.  New York Advisory Opinion 2017-38.
  • A judge may not appear at a candlelight vigil for those affected by domestic violence. New York Advisory Opinion 2010-59.
  • A family court judge should not attend a tree planting and candlelight vigil on behalf of victims of crime in the judge’s county. New York Advisory Opinion 2004-91.
  • A judge may attend “A Day of Remembrance” ceremony to honor victims of domestic violence but should take care that his mannerisms, actions, or speech do not cast doubt on his impartiality and should not act as an advocate or in any way indicate a predisposition as to how he might rule in a domestic violence case. Washington Advisory Opinion 1996-16.

 

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.”

 

Marijuana and judicial ethics

According to governing.com, 31 states and D.C. have legalized marijuana to some degree, with Alaska, California, Colorado, D.C., Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington having the most expansive laws for recreational use.  Although that certainly changes the criminal caseloads of judges in those states, it makes no difference in their personal conduct, as a recent judicial ethics opinion from Alaska advises.

The advisory opinion concludes that:  “As long as federal law criminalizes marijuana use, Alaska judges who choose to use marijuana violate the Alaska Code of Judicial Conduct.”  Alaska Advisory Opinion 2018-1.  The opinion relies on the provision in Canon 2A of the Alaska code that states that, “[i]n all activities, a judge shall exhibit respect for the rule of law, comply with the law, and avoid impropriety and the appearance of impropriety, and act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The opinion notes that the “requirement that a judge shall comply with the law includes federal law as well as state law and local laws.”

The opinion states that Alaska law on marijuana use is unique because it is based on a 1975 decision by the Alaska Supreme Court that the right to privacy in the state constitution protects the personal use of marijuana in the home.  See Ravin v. State, 537 P.2d 494 (Alaska 1975).  However, the opinion emphasizes that judges’ personal rights are limited by the code, for example, with respect to “speech, financial endeavors, and political activity to preserve their impartiality and ability to hear cases.”

Further, the opinion explains:

Marijuana use violates federal law and its use by a judge would reflect a lack of respect for the law by showing a selective attitude towards the law suggesting that some are appropriate to follow but others are not.  Public use of marijuana by a judge would further create an appearance of impropriety.

The opinion also states that judges are restricted “even in their personal use in the home” as a “reasonable and necessary” measure to preserve public confidence in the judiciary, noting that, “[o]ne never knows when an iPhone is out and ready to take a picture of a momentary indiscretion.”

Colorado is the only other state that has a judicial ethics advisory opinion on the subject, issued in 2014 in response to a judge who asked “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.  Colorado Advisory Opinion 2014-1.

In Rule 1.1(B), the Colorado code states that “[c]onduct by a judge that violates a criminal law may . . . constitute a violation of the requirement that a judge must comply with the law” — “unless the violation is minor,” an exception unique to Colorado.  The advisory committee notes that the Committee to Consider Revisions to the Colorado Code of Judicial Conduct had been concerned that the requirement that a judge comply with the law was “vague and confusing” and “could subject judges to discipline for what typically are regarded as minor infractions, such as receiving a parking ticket or permitting the judge’s dog to run at large.”  Thus, the “minor” violation language was added in 2010.

However, the advisory committee stated that the exemption only applied to “violations of relatively insignificant traffic offenses and local ordinances, not state or federal drug laws.”  The committee recognized that, under federal law, simple possession of marijuana is a misdemeanor or even an infraction punishable only by a civil penalty under some circumstances.  Nevertheless, it concluded that, “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 . . . .”

The committee emphasized that it is only authorized to provide an opinion on whether “intended, future conduct” complies with the code of judicial conduct, not on whether such conduct is censurable and, therefore, it was not opining on whether a judge who uses marijuana consistent with Colorado law should be disciplined.