Category Archives: Pre-bench conduct

“Anyone but a judge”

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Adopting most of the findings of a 3-judge panel, the New Jersey Supreme Court removed a former judge from office and permanently barred her from holding judicial office in the state for her “defiant trespass” at her children’s school, her untruthful testimony at her criminal trial, and her failure to appear for a court-ordered deposition in her husband’s lawsuit against the school.  In the Matter of Mullen, Order (New Jersey Supreme Court March 8, 2023).

In December 2016, the judge’s husband filed suit against St. Theresa School where their 2 daughters attended.  On February 1, 2017, the school asked the family to withdraw their children because the lawsuit violated school policy.  “In defiance of that request,” the judge and her family arrived at the school the next morning.

The school deacon told the judge that she had to leave or she would be “considered trespassing.”  The judge’s own videorecording confirms that she told the officials that they could “bring criminal charges against” her, but she was not going to leave.  School officials repeatedly directed the judge to exit the property, and she consistently refused. 

The school officials called the police.  When Office Sean Kaverick appeared, he asked the judge to leave.  Instead of complying, the judge indicated that she wanted to be handcuffed.  Officer Kaverick testified that the judge made no effort to leave for 5 minutes, but he persuaded her to go outside rather than be arrested and handcuffed in front of her children.

The panel found that the judge “created a scene for nearly an hour” and her “interactions with police and school administrators took place on a busy morning, in offices, a reception area, and school hallways.”

The judge was charged with defiant trespass.  After a 2-day bench trial, Judge Alberto Rivas concluded that the prosecution had proven “beyond a reasonable doubt . . . that [respondent] remained in the school knowing she was not licensed or privileged to do so after actual notice to leave was communicated to her several times.”  Explaining in detail why Officer Kaverick’s testimony was credible, Judge Rivas found that Judge Mullen had testified falsely when she “specifically testified that she had absolutely no contact with Officer Kaverick, in direct contravention with the Officer’s unequivocal testimony.”

The judge filed a motion for a new trial “based upon her theories of vindictive prosecution, entrapment, and failure to establish the elements of defiant trespass beyond a reasonable doubt.”  The appellate division affirmed her conviction, and the supreme court denied the judge’s petition for certification.

During the discipline hearing, the judge denied speaking with Kaverick and denied giving false testimony at her trial.  Instead, she maintained that Kaverick “did not tell the truth” at her trial and to the Committee and had filed a false police report.  The judge said that she did not believe that she “cause[d] a scene” at the school and denied refusing to leave the premises.

The panel concluded:  “Had anyone but a judge” acted as she had at the school that morning, “that person would have been swiftly and unceremoniously ejected from the building, and/or arrested and removed on the spot.”  The panel found that the judge’s “refusal to leave the school building, while in the presence of numerous school officials, law enforcement officers, and students and parents entering and leaving the school, could only erode public confidence in the judiciary.”  The panel noted that the judge’s “emotional stress over the conflict with school administrators, which involved her children” did not excuse her violations and that she “knew she had better alternatives than an in-person confrontation.”  The panel also stated that “when a judge’s credibility is publicly called into question, there is a patent and significant risk that the public’s confidence in the judiciary will be eroded.”

The panel also found that the judge’s failure to appear for a court-ordered deposition in her husband’s lawsuit against the school was misconduct.  Noting that there was no valid reason in the record for the judge’s failure to appear, the panel explained:  “Respondent is not entitled—by virtue of her judicial appointment—or for any other reason—to disregard court orders.”

Before the bench

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Agreeing with the recommendation of the hearing panel of the Judicial Qualifications Commission, the Florida Supreme Court recently removed a judge for her deceptive pre-bench conduct as an attorney toward her clients and co-counsel in the settlement of multi-party litigation.  Inquiry Concerning Watson (June 18, 2015).  Rejecting the judge’s “protestations to the contrary” and citing previous cases, the Court reiterated that it has jurisdiction over misconduct committed by an attorney who subsequently becomes a judge, “no matter how remote.”  Indeed, the Florida constitution states that the Commission “shall have jurisdiction over justices and judges regarding allegations that misconduct occurred before or during service as a justice or judge . . . .”

Other states have similar provisions.  For example, the rules of the Arkansas Commission on Judicial Discipline & Disability state that the Commission “shall have jurisdiction over allegations of misconduct occurring prior to or during service as a judge . . . .”  Rules provide that the Indiana Commission on Judicial Qualifications “shall have jurisdiction over conduct committed by a judicial officer, whether or not related to the judicial office and whether or not committed during the judicial officer’s term of office.”

The Nebraska Supreme Court suspended a judge for 6 months without pay for altering a copy of a police report in a criminal case while he was a county attorney 17 years earlier, providing the altered report to defense counsel, and asking the police officer who wrote the report to alter either his original report or his testimony to conform to the changes.  In re Krepela, 628 N.W.2d 262 (Nebraska 2001).  Previously, the Court had dismissed an action against the same judge, for the same conduct, bought by the Counsel for Discipline of the State Bar Association.  State of Nebraska ex rel. State Bar Association v. Krepela, 610 N.W.2d 1 (Nebraska 2000).  The Court explained that, if a judge were disbarred or suspended as a result of charges filed by the Bar, the judge would effectively be removed by a means other than that set forth in the constitution.  The Court also concluded that allowing Disciplinary Counsel to proceed against judges would compromise the independence of the judiciary.

In contrast, in In re Burrell, 6 S.W.3d 869 (Missouri 1999), the Missouri Supreme Court held that the Commission on Retirement, Removal and Discipline did not have jurisdiction over a new judge for conduct during his campaign for office.  The section in the state constitution that establishes the Commission provides that “the commission shall receive and investigate . . . all complaints concerning misconduct of all judges . . . .”  The Court concluded that section only addressed the misconduct of sitting judges and held that only attorney discipline authorities had jurisdiction to prosecute claims of pre-bench misconduct.

Some states have provisions giving attorney discipline authorities jurisdiction over pre-bench conduct by judges, although it is not always clear if this jurisdiction is exclusive or concurrent with that of the judicial conduct commission.  For example, rules in Alabama provide that “Incumbent judges are subject to the jurisdiction of the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar during their terms of office for misconduct occurring before they became judges.”  The rules of the Colorado Commission on Judicial Discipline state:

Conduct by a Judge or former Judge that involves grounds for disciplinary action . . . and/or may involve grounds for a violation of Colo. [Rules of Professional Conduct] may be referred by the Commission to Attorney Regulation.  Such referral shall not preclude the Commission from proceedings concerning conduct under its jurisdiction coincident with Attorney Regulation’s jurisdiction over violations of Colo. RPC.  Nothing in these Rules shall be construed to limit the jurisdiction of Attorney Regulation over an attorney with respect to conduct subject to Colo. RPC, which occurred before, during, or after the attorney’s service as a judge.

Not all states have provisions that expressly address the issue of disciplinary jurisdiction over pre-bench conduct.  (There will be a comprehensive article on this topic in the summer issue of the Judicial Conduct Reporter, which will be published in August.  To sign up to receive an e-mail notice when the issue comes out, click here.)