Judges’ weekends, living rooms, and free speech

In 2 recent judicial discipline cases, courts rejected the judges’ attempts to argue that their conduct was protected by the First Amendment.

Although a West Virginia judge conceded that his traffic offenses violated the code of judicial conduct, he argued that his statements to the police officer and others challenging the stop were constitutionally-protected and could not be sanctioned.  However, the Supreme Court of Appeals concluded that the judge had “stepped out of the shoes of an accused contesting a stop and into the shoes of a judge upon identifying himself as ‘Judge Williams’ and repeatedly invoking his office . . . .”  In the Matter of Williams (West Virginia Supreme Court of Appeals May 4, 2023).

One Sunday, Moorefield Police Department Officer Deavonta Johnson stopped the judge’s vehicle after observing him with a cellphone phone in his hand on the steering wheel while driving.  (West Virginia law prohibits operating a motor vehicle while texting or using a cell phone unless the driver uses hands-free equipment.)  Officer Johnson approached the vehicle, but before he said anything, the judge asked, “[w]hat’s the problem?”  Officer Johnson said, “How you doing, sir, . . . the reason I’m stopping you is . . . ,” but the judge interrupted him and said “I’m Judge Williams, and, I don’t . . . why are you stopping me?”  The judge repeatedly attempted to explain that he had just picked the phone up from between the door and the seat and was only holding it, not using it.  The judge also stated several times that the police are often on their cell phones and not on official business, angrily asking Officer Johnson, “you’re never on yours?”  The judge was visibly agitated from the beginning of the conversation and became more agitated as it continued, and Officer Johnson asked why the judge was screaming at him.  The judge told Officer Johnson several more times to give him a ticket and motioned for Officer Johnson to return to his vehicle.

The judge called Officer Johnson’s supervisor, Lieutenant Melody Burrows, at the scene, and she called Officer Johnson and told him not to write a ticket in order to diffuse the situation.  When Officer Johnson returned to the judge’s car and told him that his license had expired, the judge did not answer, grabbed the license, and said “next time I see you . . .” as he drove off.

The judge called Lieutenant Burrows again after driving away and later that evening also called the police chief, the mayor, the former police chief, and the chief judge.  He told Lieutenant Burrows, for example, that “he’s never been treated so badly as a Circuit Judge and that he couldn’t believe that my boy would – wouldn’t take his word for it and why he would lie.  He’s the Circuit Judge.”  Lieutenant  Burrows stated that the judge expressed that he was tired of Moorefield police officers “acting like thugs, harassing hardworking people,” and that their cases were sloppy.  Lieutenant  Burrows also stated that the judge said that “he heard our [Moorefield Police] cases all the time and that if we treated people . . . like we treated him today that it makes him question our cases that he comes across.”

The Court emphasized that this is not “a police state–one is permitted to question why he is being pulled over and to contest a ticket if he believes he has done nothing wrong.”  Noting that “judges do not lose all First Amendment protections when taking the robe,” the Court stated:

Protected speech not addressed by the Code of Judicial Conduct, no matter how obnoxious or offensive, is addressed through the ballot box, not disciplinary proceedings. . . .  Had Respondent’s conduct been limited to loudly contesting whether Officer Johnson read the cell phone statute correctly, we might agree with his position . . . and would defer to the voters in Respondent’s district to judge his conduct. 

However, it added, “inconvenient to Respondent’s argument, . . . the Code of Judicial Conduct has rules aimed at activities and speech both on and off the bench, and the Code of Judicial Conduct works weekends too.”  The Court concluded that the judge’s “conduct was not an invocation of his rights as an accused to challenge a ticket he thought he did not deserve, but an invocation of and abuse of the prestige of his office” and that he had “improperly invoked his office, employed coercive tactics in contacting various public officials that evening, and suggested he might change his rulings in cases in retaliation for the traffic stop.”

The Court suspended the judge for 6 months without pay, fined him $5,000, and publicly censured him.

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A Texas judge challenged a private warning she had received for placing a rainbow flag in her courtroom, beneath the county seal behind the bench and next to the U.S. and Texas flags.  She had been given the pride flag by a local LGBTQ organization to commemorate her investiture as its first openly gay member to take the bench.  The Commission alleged that the “display unambiguously conveyed to the public a perceived partiality on behalf of the partisan interests of the LGBTQ community.”  The judge argued that it was “a form of welcoming communication protected by the First Amendment.”

Rejecting the judge’s free speech argument, a Special Court of Review found that she “misapprehends the nature of the forum from which she speaks” and that her display “was government speech subject to government regulation without restriction by the First Amendment.”  In re Speedlin-González, Opinion (Texas Special Court of Review January 30, 2023).  It explained:

Perhaps from her perspective, the display of the pride flag commemorating her ground-breaking investiture was a personal expression of identity and community, but a judicial bench is an indisputably non-public forum from which only the government may speak and a courtroom participant or observer quite understandably views speech therefrom from a different perspective.  Upon entering the courtroom of County Court at Law No. 13, one encounters a typical setting:  counsel tables, a jury box, a witness seat, court reporter and clerk’s stations all separated from the gallery by a bar, and a judge’s bench separated and raised above them all.  Displayed at and behind the bench are the symbols of government:  the American flag, the Texas flag, the seal of Bexar County, and … the pride flag.

The judge (an elected official/employee of the state) presides over misdemeanor domestic violence cases which, much like felony cases, begin with a charge brought, “In the name and by authority of the State of Texas.” . . .  When the judge enters the courtroom she performs judicial functions, i.e., impaneling juries, trying cases, pronouncing judgment, and imposing sentences.

The court concluded:

“It is axiomatic that a courtroom is not the judge’s living room for her to decorate as she pleases.  It is the taxpayer’s forum for dispensing justice to all citizens – defendants and victims alike.”. . .

A Texas courtroom should remain “terrain neutre” to maximize the perception of equality of all litigants and spectators.  Whether one agrees or disagrees with the content of Respondent’s intended message, it is inappropriate for a Texas courtroom.

However, the court dismissed the warning, stating that the Commission had not proven a willful violation of the code because, after receiving a tentative sanction from the Commission, the judge had removed the flag and her explanation that she had intended “to encourage commemoration and community” was credible.

“Difficult position”

The Kentucky Supreme Court affirmed the decision of the Judicial Conduct Commission removing a judge from office for (1) inserting herself into her son’s criminal cases and attempting to influence the outcome of the cases in text messages, meetings, and calls with the county attorney and the judge presiding in the cases; (2) deleting material from her son’s social media accounts after he had been arrested and taken into custody; (3) using her position to arrange semi-private meetings with her son in the jailer’s office, bringing him drinks and food contrary to jail policy, and visiting him outside of normal visiting hours; (4) threatening to fine case workers and supervisors for late reports; (5) removing or threatening to remove attorneys from her guardian ad litem list for arbitrary reasons; (6) having her staff conduct drug tests; (7) failing to be candid with the Commission; and (8) retaining, paying, and directing her son’s attorney, who actively practiced law in her courtroom and regularly received guardian ad litem appointments from her; presiding over cases in which her staff attorney’s brother represented a party; and appointing an attorney with her husband’s law firm as a guardian ad litem.  Gordon v. Judicial Conduct Commission (Kentucky Supreme Court October 20, 2022).).  The Court concluded that removal was warranted by “the pattern and extent” of the judge’s misconduct.

From June 2017 through July 2021, the judge’s adult son Dalton was charged with crimes in several cases in which the judge was the complaining witness or victim, thus placing her, the Court stated, “in the difficult position of concurrently being a parent, victim, and judge in the same county . . . .”

During the hearing, the Commission had listened to recordings of calls between the judge and Dalton while he was incarcerated and found that the calls were “damning,” establishing and confirming much of her misconduct.  “Most shocking,” the Commission stated, was the judge’s “testimony (and argument) that she did not think anyone would ever hear or listen to the calls, the implication being she would not have said the things she said, if she had known anyone would hear them.”

The Court concluded that “the influence Judge Gordon exerted in her son’s case is undeniable,” noting that although the Commission “heard only a few of the hundreds of calls” recorded between the judge and her son while he was in jail “enough were played to prove the allegations.”

For example, in one call, the judge told her son that she had worked out a plan and warned him to leave it up to her.  She said that she had sent a text message to the presiding judge and talked to the county attorney about getting him into a treatment program.  In another call, the judge told Dalton that the county attorney was trying to take one of his cases out of her hands and that she would schedule an in-person meeting with his attorney, Clay Wilkey.

During another phone call, the judge told Dalton that she had sent the county attorney and Wilkey a proposal for resolving Dalton’s criminal charges but found out that the county attorney had already sent Wilkey a plea offer.  On the same call, the judge stated that she had told the county attorney she wanted to make the decisions for her family and her house.

The judge’s ex parte text messages with the county attorney about Dalton’s cases were admitted as evidence during the Commission hearing.  For example, over the course of 12 hours on one day, the judge and the county attorney exchanged 80 text messages, most involving the judge “pushing for information and requesting certain outcomes.”  For example, the judge messaged the county attorney requesting that Dalton receive deferred prosecution and enter an agreement to get treatment, to which the county attorney responded, “Yes I think I can make that happen.”  The judge asked the county attorney to “please please please get things worked out today for Dalton to serve some time as a consequence.”  She also told the county attorney that “[w]e have to get this done quickly….  He’s going to blow it and risk losing his ability to go back to FOS if we don’t get something done.”  (“FOS” stands for Friends of Sinners, a residential substance abuse program.)

In a hearing in one of Dalton’s cases, the judge who was presiding told Dalton that he had spoken with Judge Gordon for at least 45 minutes and got a “heads up” about Dalton, his history, and struggles.

Emphasizing that “the operative facts are that she directly inserted herself into Dalton’s cases and attempted to influence the outcome,” the Court stated that “the outcome or actions Judge Gordon requested are immaterial” and it was “of no consequence” that she was requesting Dalton that be detained or required to attend treatment, rather than “requesting that he receive preferential treatment or be pardoned for his actions.”  The Court acknowledged that the judge had often been confronted with difficult, unplanned, and unpredictable situations that directly impacted her, her son, and her family.  However, it emphasized, “judges, are responsible for exercising sound judgment even when confronted with difficult issues, especially issues that involve loved ones. . . .  Ultimately, Judge Gordon made many decisions over a span of several years, some precipitous and some seemingly more carefully considered, that resulted in numerous and separate violations of the Code of Judicial Conduct.”

“A pattern of objectionable behavior”

The Alabama Supreme Court affirmed the decision of the Court of the Judiciary removing a judge from office for (1) engaging in a pattern of racist demeanor; (2) engaging in a pattern of sexually inappropriate demeanor; (3) expressing anger inappropriately and using profanity in the probate office; and (4) requesting that 2 attorneys who regularly practiced before him help a woman secure an early release from her sentence and using probate-court letterhead and his judicial title to seek financial help for a friend.  Jinks v. Judicial Inquiry Commission (Alabama Supreme Court October 21, 2022).  The Court of the Judiciary had held a hearing on the complaint filed by the Judicial Inquiry Commission.

Darrius Pearson, one of 2 African Americans employed in the probate office during the judge’s tenure, testified that he had heard the judge make inappropriate racial comments.  Pearson also testified that the judge stated to him, referring to a new vehicle that Pearson had recently purchased:  “I seen that car.  I can’t even—I’m the judge and I can’t even afford a Mercedes.  What you doing, selling drugs?”  The judge made the comment in the main area of the probate office, and it was overheard by other probate office employees.  In his answer, the judge admitted making this statement to Pearson, but denied that it was racist or contained racial innuendo.

Employees testified that in discussing the murder of George Floyd ,the judge had said, “he [didn’t] see why everybody was so upset about him getting killed,” and he “didn’t understand what the big deal was.  It was just one person.”  The judge was overheard in a telephone conversation discussing a meme depicting Black Lives Matter protests with the caption:  “Y’all got to quit burning s*** down because … you son[s]-of-b**ches is …going to need something to burn down after Trump gets re-elected for a second term.”  In his answer, the judge admitted making the comment and stated that, although he made it during a private and personal conversation, it should not have “been overheard in the workplace.” 

Probate office employees testified that, on multiple occasions, the judge referred to African Americans as “they,” “them,” or “those people.”  One employee testified that, after she had assisted an African-American couple with a marriage license, the judge asked her:  “What did their black a**es want?”  The probate office’s deputy chief clerk testified that, on one occasion, the judge mouthed the N-word to her.  An attorney testified that, when he was in the judge’s chambers before a hearing, the judge asked him if he knew what P-O-N-T-I-A-C stood for, a reference to a racist meaning that includes the N-word.  The attorney immediately stopped the judge and said:  “Whoa, I don’t think we need to go there.”  After the Commission filed its complaint, the judge appeared on a morning talk show on a local television station to address the allegations and admitted the exchange with the attorney, but stated that “if I share a racial slur with you that I’ve learned, that’s not using a racial slur.”

According to Pearson, he and the judge were working in the basement of the courthouse one day when the judge received a video on his cell phone.  The judge then stated to Pearson:  “[D]on’t tell nobody but look at this.”  Pearson momentarily looked at the video, which depicted women dancing with their breasts exposed.  Pearson testified that he refused to watch the rest of the video but that the judge sat down and continued to watch.  During his appearance on the talk show, the judge admitted that showing Pearson the video was a lapse in judgment but stated that “it was two guys” together.

One day when the judge discovered that a brown paper bag with a sandwich and produce he had previously placed in the office refrigerator was not there, he “exploded in a tirade, slamming the refrigerator door and exclaiming loudly:  ‘We have a damn thief in this office.  I can’t have s*** in this office.’”  The judge angrily “stormed off” and went to the office of the chief clerk, and proclaimed that they were going to have a staff meeting because someone had stolen his sandwich.  A few days after the incident, in a lengthy email to probate-office staff at 1:03 a.m., the judge again expressed his anger and resentment about the sandwich being “stolen.”

The Court emphasized that the Court on the Judiciary had heard the testimony and observed the witnesses, and “viewing the evidence in a light most favorable to the [Judicial Investigation Commission] as we must,” it concluded that the decision was  supported by clear and convincing evidence.  The Court explained:

The record indicates that Judge Jinks made multiple racist and racially insensitive comments, engaged in inappropriate sexual conduct, engaged in inappropriate acts of anger and use of profanity, and, on several occasions, used the prestige of his office for the benefit of others.  Those acts were not isolated but occurred on a number of occasions while Judge Jinks was in the probate office acting in his capacity as the probate judge.  Those acts were numerous enough to establish a pattern of objectionable behavior on the part of Judge Jinks.

Prestige and partiality

Reversing the admonition of the State Commission on Judicial Conduct, the Washington Supreme Court held that a judge did not abuse the prestige of his judicial office or violate his duty to be and to appear to be impartial when he allowed a community college to run a bus advertisement with his picture and the statement:  “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” In the Matter of Keenan (Washington Supreme Court February 10, 2022).

The judge grew up in poverty, had been a juvenile defendant, and had dropped out of high school.  At 17, he was working at a fast-food job when he took the GED exam through North Seattle College.  He did very well, and the dean encouraged him to continue his education.  The judge studied for his high school diploma through the College and then began working toward his 2-year degree there, attending classes during the day and working full-time at night as a security guard.  After graduating, he transferred to the University of Washington.  He earned his law degree from Seattle University.  He has a long history of doing pro bono legal work, and he remains involved with North Seattle College.

In July 2019, the judge was asked to appear in a bus ad as part of the College’s student recruitment campaign.  The judge reviewed the code of judicial conduct and advisory opinions but did not ask the judicial ethics committee or the Commission whether the ad violated the rules.  The judge approved the ad, and it ran for 3 weeks.

(1) Concluding that the judge violated Rule 1.3, which prohibits abuse of the prestige of the judicial office to advance the interests of others, the Commission had found that the ad was “aimed at increasing student enrollment which, in turn, would advance the economic interests of the college.”  The Commission found that the judge’s argument that his actions were permitted because the ad would encourage people to go to law school after community college was “too tenuous or strained to be persuasive” and opened “the flood gates to allow judges to promote any activity that could possibly encourage students to attend law school.”

On review, the Court emphasized that the 2011 update to the state code of judicial conduct changed the language in the rule from “lend the prestige of judicial office” to “abuse,” “mirror[ing]” the change in the 2007 American Bar Association Model Code of Judicial Conduct.  The ABA has explained that it changed “lend” to “abuse” because “lend” created “unnecessary confusion” and “the problem that Rule 1.3 seeks to address is more accurately characterized as ‘abuse’ of the office.”  The Court noted that the model code does not define “abuse” but that Black’s Law Dictionary defines it, in part, as “[t]o depart from legal or reasonable use in dealing with (a person or thing); to misuse.”  Based on comments to the code, the Court noted that a judge using judicial letterhead to provide a recommendation letter is not an abuse but that the “classic” examples of Rule 1.3 violations are a judge “alluding to their judicial status to gain favorable treatment in encounters with traffic officials” and “using judicial letterhead to gain an advantage in conducting personal affairs, such as inquiring into automobile registrations or real property assessments.”

To distinguish between unreasonable “abuse” of judicial office and appropriate “use” of judicial office, the Court noted that Canon 3 encourages judges to participate in extrajudicial activities and permits judges to “participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice,” specifically those “sponsored by or undertaken on behalf of public or private not-for-profit educational institutions,” with “no distinction among legal, nonlegal, postgraduate, and undergraduate types of not-for-profit educational institutions.”  The Court also noted that the code permits a judge to allow “an organization to use their title ‘in connection with an event of such an organization or entity, but if the event serves a fundraising purpose, the judge may do so only if the event concerns the law, the legal system, or the administration of justice.’”

Concluding that the judge “did not ‘misuse’ his title or the prestige of his office” in the ad, the Court explained that “while recruitment has an incidental economic benefit, just about anything that a judge would do for a college would incidentally benefit it economically.  This incidental economic benefit is permissible under Canon 3 because a judge’s prestige should be used to encourage education.  Using one’s judicial title for such a purpose does not constitute an abuse.”

Agreeing with the judge that his involvement with a nonprofit community college was related to the administration of justice, the Court stated that “supporting community colleges may be one important way to increase diversity and access to the legal community—certainly an impact that improves the ‘administration of justice.’”  The Court noted that judicial ethics advisory opinions from Washington recognize that judges contribute “to the improvement of justice by helping get ‘the most qualified individuals into the legal profession,’” for example, allowing them to appear in a promotional law school video sent to prospective students.  Concluding that the logic of those opinions “extends further,” the Court explained:

[M]any of “the most qualified individuals” for “the legal profession”—and probably many from marginalized communities—might start at community colleges.  It necessarily follows that a judge may contribute to the improvement of justice by helping get “the most qualified individuals into the legal profession” by promoting the educational opportunities afforded by their own former community college. . . .

The Court also concluded that it was irrelevant that the judge’s statement was in a bus ad.

To be sure, a bus advertisement differs dramatically from a pamphlet mailed to a targeted house, a video sent to targeted prospective students, or to appearances in law school alumni publications—all of which many judges do. . . .  But the difference lies mainly in who, and how many, people these ads and publications reach.  Law school magazines, videos to prospective students, and published books reach a narrow, primarily self-selected, audience; bus ads, like social media postings, reach a broader audience.  The [Commission’s] decision thus ends up punishing judges for communications that have a broad and nondiscriminatory, rather than a narrow and targeted, reach.

(2) Concluding that the judge violated Rule 1.2, which requires a judge to be impartial and to avoid the appearance of impropriety, the Commission had found that a reasonable person could read the ad to “suggest that Judge Keenan has a leaning, or preference, and would advocate accordingly for marginalized communities” and that a person who was not from a “marginalized community” could “reasonably be concerned about being treated unfairly by Judge Keenan.”

Disagreeing with that finding, the Court held that “an objective, reasonable person would not infer” from the judge’s description of his reasons for attending law school that he lacks ‘an open mind in considering issues that may come before [him]’ as a judge.”  The Court noted that “all judges decide to join the legal profession for one reason or another, and stating why you got into the law does not mean that you cannot rule impartially in a case.”

The Court noted the Commission’s concern about the use of “advocate” in the ad and acknowledged that “a judge should not advocate for particular partisan causes.”  But, the Court explained, “a judge certainly should advocate for and ‘promote’ access to justice and improvements to the administration of justice. . . .  Thus, the word ‘advocate’ alone does not show inappropriate partisanship.  If anything, stating that you got into law to advocate for communities that have been ‘marginalized’ from the benefits of the justice system might counter widespread perceptions that the law has historically treated marginalized members of our community unfairly.”  The Court concluded that, “viewed in context,” the judge’s statement in the ad “impartially promotes respect for marginalized communities” and “is best interpreted as a comment on a general justice system issue, not as a comment on how he would rule in a case.”

Letter in support

Approving the findings, conclusions, and recommendations of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded in writing 5 judges for submitting a letter encouraging the Florida Department of Children and Families to award a contract to a particular vendor.  Inquiry Concerning Lederman, Caballero, Figarola, Pooler, and Ruiz (Florida Supreme Court March 26, 2020).  (The Court usually orders judges to appear before it for a public reprimand; a written reprimand is a less severe sanction, according to the Court.)

In March 2018, DCF initiated a competitive procurement process to award a contract for the lead agency for community-based care for the southern region of Florida.  The contract was potentially worth more than $500 million over 5 years.  2 non-profit corporations submitted proposals:  Our Kids of Miami-Dade and Monroe, Inc. and Citrus Health Network.  Our Kids had held the contract and served as the lead agency over the preceding several years.

In September 2018, Judge Lederman drafted a letter advocating that Our Kids be selected as the lead agency, which she intended to send to DCF.  She emailed the language to the 4 other judges and others, seeking additional signatories.  Eventually, a letter written on Judge Lederman’s judicial letterhead and signed by the 5 judges was sent to the interim director of DCF and the managing director of the southern region of DCF.  The letter endorsed Our Kids and concluded:  “We have worked with Our Kids and we have complete faith only in the Our Kids model of leadership.  When you select the agency please keep our voices in mind.”

In February 2019, the letter was mentioned in a local newspaper article entitled, “Alleged conflicts of interest roil $500 million child welfare fight.”  DCF terminated the competitive procurement process and restarted it.  There was no evidence that the judges’ letter affected DCF’s decision.  Our Kids and Citrus Health Network were again the only 2 competitors.  In April 2019, DCF awarded the contract to Citrus Health Network.

The Commission recommendation noted that, arguably, the judges could have written a letter “explaining their knowledge working with the provider in a much narrower context,” but concluded that the letter that was sent inappropriately placed the judges and the judiciary “in the position of appearing to advocate on behalf of one private entity over another.”  The Commission found that the language of the letter raised questions about the judges’ impartiality, noting that “the employees and vendors of the Lead Agency regularly appear in court assisting and advocating on behalf of clients of DCF, and the agency” and that “such an enormous and hotly contested contract award will almost certainly result in legal challenges, and likely even court proceedings” in the judges’ circuit.  The Commission emphasized that it did not believe that the judges had not been “motivated by any corrupt intent or design” and had intended “to protect the interests of the children and families served by DCF.“  However, it concluded, as the judges acknowledged, “their actions went too far in this instance.”

It is rare but not unprecedented for judicial discipline cases to involve more than 1 judge.

  • Based on conditional agreements for discipline, the Indiana Supreme Court (a) suspended 2 judges for 30 days without pay for appearing intoxicated in public, behaving in an injudicious manner, and becoming involved in a verbal altercation outside a White Castle restaurant and (b) suspended 1 judge for 60 days for, in addition, becoming involved in a physical altercation for which he was criminally charged and convicted. In the Matter of Adams, Jacobs, and Bell, 134 N.E.3d 50 (Indiana 2019).
  • Following a hearing on a complaint brought by the Judicial Inquiry Board, the Illinois Courts Commission (a) suspended 1 judge for 4 months without pay for presiding over cases in which the husband of a judge with whom he was having an affair represented a party without disclosing the relationship and for a pattern of deceptive conduct to hide the affair from the chief judge and (b) publicly censured the judge with whom he was having the affair for failing to take or initiate any appropriate disciplinary measures against him although she knew he was presiding over her husband’s cases. In re Drazewski and Foley, Order (Illinois Courts Commission March 11, 2016).
  • The New York Court of Appeals (a) removed a judge for delaying repayment of a $250,000 loan from his campaign manager, failing to disclose the loan on financial statements and loan applications, and giving misleading and evasive testimony to the State Commission on Judicial Conduct and (b) publicly censured a second judge, his brother who had co-signed the loan, for omitting it from financial statements and loan applications. In the Matter of Joseph Alessandro, In the Matter of Francis Alessandro, 918 N.E.2d 116 (New York 2009).


Back to 1982:  Professional courtesies and judicial office

Gratuitously referring to judicial status to get favorable treatment is a very common form of judicial misconduct.  In cases last year:

  • A judge identified himself as a judge to court personnel when disputing his own child support payments and discussing child emancipation. In the Matter of Palmer, Order (New Jersey Supreme Court November 8, 2018), adopting  (censure).
  • A judge said to state troopers who handcuffed him after he failed several field sobriety tests, “I’m a f**cking judge. I would never do anything to hurt you man.  Come on,” and “You’re not going to give me any courtesy?  None?”  In the Matter of Benitez, Order (New Jersey Supreme Court September 6, 2018), adopting (censure).
  • A judge asserted her position to avoid the consequences of her arrest after a state troopers found her in a vehicle on the shoulder of the interstate, for example, saying to a lieutenant at the police barracks, “Please don’t do this;” “I have to go to work;” “I have arraignments;” and “I have court right now.” In the Matter of Astacio, 112 N.E.3d 851 (New York 2018) (removal for this and other misconduct).
  • After her vehicle struck a police van, a judge voluntarily identified herself as a judge to the police several times, presented her judicial identification card, and made several other references to her judicial status while repeatedly questioning the need for an accident report and the delay in preparing the report in an attempt to curtail the investigation and be allowed to leave. In the Matter of Michels, Determination (New York State Commission on Judicial Conduct December 27, 2018).

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So far in 2019, 3 judges have been disciplined for variations of that classic misconduct.

The New York State Commission on Judicial Conduct publicly censured a judge for not only invoking his judicial position when asking the police for assistance in unlocking his personal vehicle but also threatening to refuse to do arraignments in the future if they refused his request.  In the Matter of Abbott, Determination (New York State Commission on Judicial Conduct February 7, 2019).

One day, at approximately 3:00 p.m., the judge accidentally locked the keys inside his personal motor vehicle, which was parked at a hospital.  The judge called 911 and asked Patricia Latta, a Newark Police Department clerk, to send police personnel to unlock his vehicle.  Latta told the judge that, pursuant to department policy, the police did not respond to requests to unlock cars unless it was an emergency, such as a child locked inside.  Latta offered to contact a local automotive garage to assist the judge.

The judge replied that the police had “done this before for me,’’ and then said in a raised voice, “I am Judge Abbott of Palmyra and I just won’t do any arraignments for you anymore.”  (The judge arraigns defendants brought to Palmyra by the Newark Police Department officers when the justice and associate justice of the Newark Village Court are unavailable.)  Latta felt intimidated and asked a sergeant to assist the judge with his locked vehicle.  Eventually, officers unlocked the judge’s vehicle.

The Commission found that the judge’s identification of himself as a judge “standing alone, would have constituted an implicit request for special treatment, which is inconsistent with the high ethical standards required of every judge” and that his statement that the police had “done this before for me” made his request for special treatment “explicit, clearly conveying that his judicial status entitled him to deference and exempted him from policies that apply to others.  Asking the police to depart from an established policy for his personal benefit was a particularly improper assertion of special influence.”

Further, the Commission stated, the judge compounded his misconduct by threatening “to retaliate against the Newark police if they did not respond favorably to his request.”  Emphasizing that “[p]erforming arraignments for police from an adjoining village” was part of his duties, the Commission explained that “[t]here is no justification for a judge’s refusal to perform judicial duties out of personal pique, and even threatening to do so is detrimental to public confidence not only in the integrity of the judge’s court, but in the judiciary as a whole.”

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An Ohio judge’s disappointment that his expectation of favoritism was thwarted by a state  trooper influenced not just his reaction to the ticket received by his daughter but his handling of a completely unrelated case involving other state troopers.  Disciplinary Counsel v. Marshall (Ohio Supreme Court February 28, 2019).  At one point, the judge told the prosecutor that he “wanted to take the trooper back to 1982 . . . [b]ack when there was professional courtesy [my] daughter would not have received a ticket.”

On September 1, 2016, Ohio State Highway Patrol Sergeant David Stuart stopped 17-year-old A.M. for speeding and having expired tags.  A.M. immediately identified herself and stated that her father was “Judge Marshall.”  A.M. called her father on her cell phone and asked Stuart to talk to the judge.  Stuart declined but took the phone when A.M. handed it to  him.  The judge disputed Stuart’s assertion that the tags were expired and asked Stuart if he was going to give A.M. a ticket.  Stuart stated that he was going to write A.M. a ticket for speeding because she “was running 14 over.”  Stuart gave A.M. a citation for speeding and a warning for the expired tags.

Afterward on several occasions, the judge made comments to County Assistant Prosecuting Attorney Jay Willis about A.M.’s case and Stuart’s behavior.  For example, one day when Willis was in the judge’s courtroom on an unrelated matter, the judge said, “I didn’t like the trooper.  He didn’t listen to me.  There used to be a code in this county—I’m a judge and he shouldn’t have written my daughter [a ticket].”  Feeling pressured by the judge, Willis asked County Prosecuting Attorney Mark Kuhn to handle A.M.’s case; Kuhn agreed.

The county juvenile court policy allows only the lawyers representing the parties in the courtroom for pretrial conferences.  Prior to A.M.’s pretrial conference, the magistrate assigned to her case told the bailiff that she was not going to treat A.M.’s case differently and that the judge would not be allowed in the courtroom.  When A.M.’s pretrial hearing was about to begin, the bailiff opened the door and announced, “Counsel only,” but the judge said, “I’m her father and I’m an attorney, and I’m coming in,” pushed the bailiff’s arm out of the way, and walked into the courtroom.  The magistrate signaled to her bailiff that it was okay for the judge to enter the courtroom.  After speaking with counsel, the magistrate scheduled another pretrial conference for August 10, 2017.

On August 10, before A.M.’s pretrial conference began, A.M.’s attorney (Eugene Meadows) and Kuhn were discussing the case outside the courtroom when the judge approached them and interjected, referring to Stuart, “If he cuts my little girl, I’m going to cut him.”  During the conference, the judge stated that Stuart had been unprofessional and had shown him no professional courtesy.  The magistrate set A.M.’s final adjudicatory hearing for September 18.

On September 14, the judge told Kuhn that he would like to meet with Stuart and that, if Stuart agreed to meet, he would have A.M. plead guilty, but if Stuart refused to meet, they would take the case to trial.  Kuhn ended the discussion.

The next day, while 2 assistant prosecuting attorneys, a state trooper, and a defense attorney were waiting outside his office for a suppression hearing in an unrelated criminal case, the judge yelled for his secretary to get Stuart on the phone, made derogatory comments about Stuart, and indicated that Stuart had failed to return his calls.

Before the suppression hearing began, the parties reached an agreement, and the assistant prosecuting attorney told the judge that the case had been resolved.  But the judge stated, “No it hasn’t.  I don’t trust the highway patrol like I used to.”  He then took the bench and forced the parties to conduct the suppression hearing.  When the state trooper was being questioned about the traffic stop that led to the defendant’s arrest, the judge interrupted and questioned the trooper about the calibration of his speedometer and the condition of the tuning forks that were used to check the calibration.  Eventually, the judge threw down his legal pad and walked off the bench.

On November 17, the attorneys and Stuart were waiting outside the courtroom in the hallway before a hearing for A.M. commenced.  The judge approached Stuart and said, “Are you Trooper Stuart?”  Stuart responded, “I’m Sergeant David Stuart, nice to meet you.”  The judge turned away, then looked back at Stuart and said, “a**hole.”

During the hearing, the judge interjected twice during Stuart’s testimony.  Upon the conclusion of Stuart’s testimony, Meadows asked for a short recess.

Prior to the resumption of the hearing, Meadows asked the judge, “You’re sure you want to do this?”  The judge replied, “Yes,” and took the stand.  The judge claimed that he was qualified to testify as an expert witness about radar based on what he learned while he was a city prosecuting attorney, a position he last held in 1994.  The judge testified that the best way to determine the condition of the troopers’ turning forks would be to bring them into the courtroom.  He also commented that the “trooper was rude” and that Stuart was the only trooper that he had had issues with in his entire career.

At the conclusion of the hearing, the magistrate was going to issue a decision from the bench, but Kuhn requested that the magistrate delay because he was worried that an adverse decision would impact an upcoming felony criminal matter he had in front of the judge.

The magistrate issued her decision on December 17, and the disposition hearing was scheduled for January 30, 2018.  On January 23, the judge called the magistrate.  They had the following exchange:

[Magistrate]:  What can I help you with?
[Marshall]:  I just want you to know, have you ever had an expert come in and testify about radar?
[Magistrate]:  Judge, this is probably not a conversation we should be having
[Marshall]:  Have you ever had an expert testify about radar
[Magistrate]:  I know we should not be having this conversation—
[Marshall]:  If not, you cannot make that finding.  You questioned my credibility.  Screw that.  Bye.

The judge hung up the phone.  At a status conference the following day, the magistrate disclosed the judge’s telephone call and asked whether the attorneys wanted her to recuse herself.  Both Meadows and Kuhn consented to the magistrate’s continuing to preside over A.M.’s case.

On January 30, A.M. appeared with Meadows and the judge for the final disposition of her case.  Before the magistrate announced the disposition, the following exchange occurred:

[Magistrate]:  Okay.  All right.  Your Honor, is there anything you want to say on your daughter’s behalf?
[A.M.]:  He’s good.
Marshall:  She’s a good kid and I, you questioned my credibility and that is a problem but I don’t get a say.

The magistrate then adjudicated A.M. a juvenile traffic offender and imposed court costs.  The judge inquired, “Are there points involved in that?”  When the magistrate said there were, the judge stated, “So I have to pay the insurance for it.”  The judge also said, “When I was the Municipal Court Judge, I had to have an expert come in an[d] testify as to the accuracy of the radar and if you haven’t done that, I don’t believe you can go forward.”  The magistrate replied, “Well, those are things to raise in an objection. . . .  All right.  Anything else?”  The magistrate then concluded the matter.

After acknowledging that his conduct was inappropriate, the judge resigned.   Accepting a consent-to-discipline agreement, the Ohio Supreme Court suspended him from the practice of law for 6 months.

* * *
In a classic example of the appearance of impropriety standard in the influence context, the New York Commission admonished a judge for conveying his personal interest, as a member of the high school basketball referees’ association, in a case involving 2 referees who were allegedly accosted after a game.  In the Matter of Forando, Determination (New York State Commission on Judicial Conduct March 25, 2019).

As a member of the Capital District Board of Women’s Basketball Officials since 1972, the judge assigns referees to officiate over high school girls’ basketball games.  He assigned Dan Dineen and John Kelleher to a junior varsity game at the Argyle Central School on January 29, 2016.  At the conclusion of that game, a spectator, D.F., allegedly had an altercation with Dineen and Kelleher for which he was charged with unlawful imprisonment and harassment and directed to appear in the Argyle Town Court on February 9.  Dineen reported the incident to the judge by e-mail, noting that police had been called to the scene.

The Commission stated:

The moment that respondent learned, on the day of the incident, about the altercation involving the referees in which police had been called to the scene, he should have realized that as a judge, especially in the same county, he should refrain from any involvement in the matter that, intentionally or not, would telegraph that a judge was interested in the case.  Instead, throughout the pendency of the criminal matter, he repeatedly interjected himself into the case in an apparent attempt to monitor its progress and, in doing so, repeatedly signaled his interest in the matter to those who were directly involved in it, including the presiding judge.

Before the Commission, the judge testified that he had “let the referee hat probably supersede the judge hat” but that he had “no ulterior motive” in contacting the other judge and the attorneys.  The Commission emphasized that, “[r]egardless of a judge’s intent, such communications may convey an appearance of misusing the prestige of judicial office for personal advantage,” and that judges “must assiduously avoid those contacts which might create even the appearance of impropriety.”  The Commission stated that “any communication by a judge about a pending matter, even to ask about scheduling or procedures, is improper since it conveys the judge’s interest in the case and can be interpreted as an implicit request for special treatment . . . .”

The difference between reprimand, censure, and suspension

Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court censured a judge for identifying himself as a judge to court personnel when disputing his own child support payments and discussing the emancipation of his child.  In the Matter of Palmer, Order (New Jersey Supreme Court November 8, 2018).  The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment.

In March 2011, the judge obtained a judgement of divorce in Somerset County and made arrangements with the county probation department about his child support payments.

On March 21, 2017, the judge appeared at the Somerset County Courthouse and spoke in succession to a judiciary clerk, a caseworker, a senior probation officer (after the caseworker asked for assistance), and the senior probation officer’s supervisor (after the senior probation officer asked for assistance).  While inquiring about the process necessary to emancipate his child and seeking information about his child support payments, he identified himself several times as a judge who sits in Ocean County, for example, showing his judiciary-issued lanyard, which was hanging around his neck and which identifies him as a judge, when asked for identification.

The judge informed the caseworker during their 20-minute discussion that he wished to dispute the cost of living adjustment that had been applied to his child support obligation, claiming it was improper because he “had not received a raise.”  The caseworker described the procedure for challenging the COLA adjustment several times even though the judge was familiar with it, having contested 2 prior COLA’s.  When talking to the caseworker’s supervisor, the judge again referred to his lack of a pay raise, remarking “you the tax payers decided that a long time ago.”

The judge’s conduct was “sufficiently disruptive and disconcerting” that a supervisor in the probation department told the Somerset County assignment judge and that judge, in turn, reported the incident to the Ocean County assignment judge.

The Committee found that the judge’s conduct created the potential that his judicial office would affect the probation department’s handling of his case and, therefore, constituted misconduct even if, as he claimed, he had not intended to influence them and there was no indication that they were actually influenced.  The Committee explained:

As the record reflects, the judiciary personnel with whom Respondent interacted that day, unaware of his subjective motives, perceived Respondent’s multiple references to his judicial office as his attempt to trade on that office for his personal benefit.  [The senior probation officer], when interviewed by Committee staff, testified that Respondent’s repeated references to his judicial office left her with the impression that “he was trying to see if [they] would change anything.” . . .

Similarly, [the caseworker], when interviewed, testified that Respondent’s repeated references to the fact that he was a judge left her with the impression that he expected her to “fix” his issues immediately. . . .  She, in fact, felt pressured when dealing with Respondent precisely because of his repeated references to his judicial office. . . .

The Committee noted that, if the judge had intentionally abused the judicial office, substantially more severe public discipline would have been warranted.

On the other hand, the Committee concluded “enhanced discipline” (that is, something more than a private sanction or public reprimand) was justified because this was the 3rd time in 3 years that the judge had been the subject of discipline.  In October 2015, the Committee had privately reprimanded him for displaying arrogance and aggression towards 2 litigants in 2 matters; in January 2017, the Committee had privately censured him for similar discourtesies towards 2 other litigants.  It was a “mere” 2 months after the second private sanction that the judge went to the Somerset County courthouse.  The Committee concluded that the judge’s “continued inability to conform his conduct to the Code of Judicial Conduct over these past several years, despite his recent receipt of prior discipline and his more than nine-year tenure on the bench, necessarily aggravates his abuse of the judicial office . . . .”


The difference between reprimand and removal

On September 21, the New Jersey Supreme Court publicly reprimanded a judge who had involved herself in the scheduling and processing of a friend’s custody case.  In the Matter of Wright, Order (September 21, 2018).  (The Court does not describe the judge’s conduct; this summary is based on the presentment of the Advisory Committee on Judicial Conduct.)

On September 26, the New Jersey Court removed a judge who had involved herself in a former intern’s custody dispute.  In the Matter of DeAvila-Silebi, Order (September 26, 2018).  (The Court’s order does not describe the judge’s misconduct; this summary is based on the report of a 3-judge panel.)

The imposition of drastically different sanctions in 2 cases involving improper use of influence is attributable in part to a difference in the nature and extent of the misconduct.

Judge Wright had escorted a friend seeking temporary custody of his grandson to the court’s intake office, talked to court personnel to ensure he had the right forms, asked the judge on emergent duty about the schedule, and then told a staff member that her friend could return on Monday; the staff member advised the judge that she would bring the friend to her desk so he could complete the application.

In contrast, Judge DeAvila-Silebi called the police the day before Mother’s Day and told a sergeant she wanted an officer to accompany a mother to retrieve her child.  She identified herself as the emergent duty judge and explained that she had received a phone call from an attorney who had filed an emergent application on behalf of a client and that she had seen the order indicating that the mother was supposed to have the child that weekend.  The police department dispatched an officer with the mother to the home of the child’s paternal grandmother; the officer took the 5-year-old boy from his grandmother and returned to police headquarters with the child and the mother, after which the mother left with the child.  The father appeared at police headquarters approximately 2 hours later, irate and questioning why police had removed the child.

The panel also found that Judge DeAvila-Silebi had “demonstrated dishonesty, perversion of her judicial authority and betrayal of the public trust” by making numerous misrepresentations to the police department.  For example, contrary to what she told the police sergeant, she had not received a phone call from an attorney, no emergent application had been filed, and she had not seen the court order regarding parenting time.

Probably the biggest difference that took the Court from reprimand to removal (the intermediate sanctions of censure and suspension without pay were also available) were the aggravating factors in the second case, particularly the judge’s “less than truthful” testimony before the Advisory Committee on Judicial Conduct.

In Wright, there were no aggravating factors, and the mitigating factors included her sincere remorse and contrition, which had demonstrated to the Committee that the likelihood of her repeating the misconduct was “nearly nonexistent.”

In contrast, in DeAvila-Silebi, the judge “not only failed to acknowledge her wrongdoing or express remorse or contrition” but “displayed additional dishonesty and transcended her right to present a defense.”  Most significantly, the panel found that, despite her repeated denials, the judge did know the mother, who had been assigned to her as an intern for several months.  In fact, the judge had continued to have contact with her after the internship ended, including exchanging texts just before and after the judge intervened with the police.  Phone bills produced by the judge had obviously been altered, which was evident when compared with the bills provided by Verizon.

The panel explained that the judge had “constructed a defense predicated on the false claim that she received a call from an attorney or law enforcement agency requiring her emergent intervention to enforce another court’s order” and “perpetuated that falsehood throughout the proceedings before the ACJC, embellishing or revising it as necessary whenever she became aware of contrary evidence” until “the entire house of cards crumbled” when the “telephone records irrefutably demonstrated the falsity of respondent’s assertions.”  The panel emphasized that the judge’s “’disturbing’ decision to perpetuate a defense without any ‘compunction about being less than credible’ as the investigation of her conduct continued, ‘evidence[s] that [she] lacks the honor and integrity demanded of a judge.’”

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, http://www.divorceinpeace.com.”  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).


Fall issue of the Judicial Conduct Reporter

The fall issue of the Judicial Conduct Reporter has been published and is available to download.  All past issues of the Reporter are also available on-line as free downloads, and there is an on-line index of Reporter articles.  You can sign up to receive notice when a new issue is available.

The issue has articles on abusing the prestige of office to attempt to obtain a favor, communications by a trial judge with a reviewing court, holiday gifts and parties, and a former judge’s use of the judicial title.  It also has summaries of recent cases in which judges were disciplined for giving interviews about a pending case; failing to disqualify from cases involving an attorney with whom the judge had a support relationship; and directing insulting, demeaning, and humiliating comments and gestures to children.

The article on requesting favors begins:

A judge’s appeal for a favor from police, prosecutors, or other judges is a classic example of “abus[ing] the prestige of judicial office to advance the personal or economic interests of the judge or others” in violation of Rule 1.3 of the American Bar Association 2007 Model Code of Judicial Conduct.  The crux of the misconduct is taking advantage of access not available to non-judges and/or expecting special consideration not accorded to the general public.

Using recent cases involving attempts by judges in person or on telephone calls to influence police officers, prosecutors, court staff, and/or other judges, the article demonstrates that “an explicit request, an express reference to the judicial office, or acquiescence by the other person are not necessary to prove a violation.”

Demonstrating the chronic nature of the problem, several additional cases about favor-seeking have been issued since the article was written.

  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld the removal of a judge for seeking the advice of another judge about her son’s case and acquiescing in his offer to communicate ex parte with the judge who was handling the case. In re Roca (Pennsylvania Supreme Court November 22, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for communicating in an ex parte e-mail and phone call with the judge presiding over her nephew’s criminal case and voluntarily testifying as a character witness on her nephew’s behalf at his probation revocation hearing, in addition to other misconduct. Public Reprimand of Hawthorne (Texas State Commission on Judicial Conduct November 9, 2017).

In addition, 2 judges were recently sanctioned for written communications on behalf of others.

  • The New York State Commission on Judicial Conduct publicly censured a judge for signing his name and judicial title beneath a defendant’s signature on a letter requesting that another judge change a plea for a traffic infraction. In the Matter of Sullivan, Determination (New York State Commission on Judicial Conduct March 13, 2017).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) invoking her judicial title and position in a letter on court stationery she wrote on behalf of her childhood babysitter to be filed in connection with a motion to vacate the babysitter’s conviction and (2) writing 2 affirmations on behalf of her son to be filed in the appellate division in connection with his criminal case. In the Matter of Ramirez, Determination (New York State Commission on Judicial Conduct May 4, 2017).

As the New York Commission explained in Ramirez, “[w]hen a litigant is the beneficiary of influential support from a judge based on personal connections, it creates two systems of justice, one for the average person and one for those with ‘right’ connections, and undermines public confidence in the impartial administration of justice and in the integrity of the judiciary as a whole.”  The Commission emphasized:

When asked to provide a letter or similar communication on behalf of a family member, friend or acquaintance, every judge must be mindful of the importance of adhering to the ethical standards intended to curtail the inappropriate use of the prestige of judicial office . . . .  Difficult as it may be to refuse such requests, the understandable desire to provide assistance and support must be constrained by a judge’s ethical responsibilities, including the duty to act “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” . . . .

Finally, the Virginia Supreme Court removed a judge for contacting 2 potential witnesses prior to his wife’s trial on federal corruption charges.  Judicial Inquiry and Review Commission v. Pomrenke (Virginia Supreme Court November 27, 2017).  The judge had sent his wife’s boss a handwritten note, with his judicial business card, that “was intended to make his wife’s employment secure” and “reflected an intent to influence a potential witness” by suggesting the boss would agree she “is absolutely honest, truthful, ethical, and innocent.”  In an attempt “even more overt in its intent to influence a witness,” the judge also left a voicemail message for another employee 3 days before she was expected to testify, asking her to “slip in” remarks that would be favorable to his wife, “even though it’s not directly in response to the questions.”  The Court found the judge had violated the prohibition on lending the prestige of office to advance private interests.