Category Archives: Recommendations

Update

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Degrading stereotypes
A blog post in August 2022 summarized cases in which judges had been disciplined for comments to defendants about the possibility of violence in prison.  Since that post, there have been 2 sanctions for similar comments.

  • The Alabama Court of the Judiciary suspended a judge for 45 days without pay and publicly censured him for, in addition to other misconduct, referring to defendants being “somebody’s girlfriend” in the penitentiary and telling defendants that they would be “butt raped in the penitentiary.”  In the Matter of Patterson, Final judgment (Alabama Court of the Judiciary October 27, 2022).  The Court accepted an agreement in which the judge stipulated that the Judicial Inquiry Commission could prove the allegations in its complaint.
  • The West Virginia Supreme Court of Appeals suspended a judge for 12 months without pay (with 11 months held in abeyance), publicly reprimanded him, and ordered that he undergo counseling for, in addition to other misconduct, failing to treat litigants in 10 family court cases with respect and dignity, including telling a father in a child support case, “Or you’re going to prison forever!  I will send you down to live with the sodomites.”  In the Matter of Camilletti, Order (West Virginia Supreme Court of Appeals September 20, 2022).  The Court accepted the recommendation of the Judicial Hearing Board, based on a joint stipulation and agreement in which the judge admitted the allegations in a formal statement of charges.

But see In re Burns, Opinion (Texas Special Court of Review December 2, 2022) (overturning sanction for a judge who told a defendant convicted in the murder of a little girl that he “should die in a locked closet just—if [the department of corrections] had one, but they don’t have one for you unfortunately”).

Judges and firearms
The spring 2022 issue of the Judicial Conduct Reporter had an article on “Judges and firearms” with discussions of judicial discipline cases involving firearms in the courtroom, in the courthouse, and in personal disputes. Since that article was published, there have been several additional cases involving judges and firearms.

  • Adopting the recommendation of the Commission on Judicial Discipline, which was based on a stipulation, the Colorado Supreme Court suspended a judge from office for 30 days without pay and publicly censured him for pointing an AR-15 style rifle at his adult stepson during a confrontation.  In the Matter of Thompson, 516 P.3d 28 (Colorado 2022).
  • The Arizona Commission on Judicial Conduct filed formal charges alleging that a judge had used extensive profanity and discharged a firearm in the vicinity of an individual who was subsequently convicted of stalking him and used profanity toward a process server who was serving him with a subpoena.  Subsequently, in a stipulated resolution, the judge agreed not to serve in any judicial capacity in the state after his term concluded on December 31, 2022, and the Commission agreed to conclude the proceeding.  Inquiry Concerning Watters, Final order (Arizona Commission on Judicial Conduct September 7, 2022).
  • Based on the judge’s resignation and agreement not to seek judicial office in the state, the West Virginia Judicial Investigation Commission publicly admonished a former judge for, in addition to other misconduct, during a hearing, removing a firearm from where it was concealed on his person, putting it on the bench in open view, and at one point, picking up and displaying the gun.  In the Matter of Hummel, Public admonishment (West Virginia Judicial Investigation Commission December 2, 2022).
  • In a notice of formal proceedings, the New Mexico Judicial Standards Commission alleged, inter alia, that a judge had placed a firearm on top of his desk in chambers one day, pointing at the door and clearly visible to employees walking by or entering his chambers, and told a court clerk that he was “going to kill” a public defender who appeared before him that day, or words to that effect.  Pursuant to a stipulation, the New Mexico Supreme Court ordered the permanent retirement of the judge.  In the Matter of Ionta, Order (New Mexico Supreme Court August 1, 2022).
  • A judge has appealed the determination of the New York State Commission on Judicial Conduct removing him from office for, in addition to other misconduct, brandishing his loaded gun in the courtroom at a litigant who did not pose an imminent threat to him or anyone else, repeatedly mentioning the litigant’s race when recounting the incident, and boasting about the incident.  In the Matter of Putorti, Determination (New York State Commission on Judicial Conduct September 9, 2022), on appeal.

Letters in adjudicative proceedings
The fall 2022 issue of the Judicial Conduct Reporter had an article on judges submitting character letters in adjudicative proceedings. Shortly after that article was published, accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for voluntarily submitting character reference letters that invoked his judicial title in support of 2 pistol license applications and writing a letter on his judicial stationery requesting that another judge reconsider the denial of one of the applications.  In the Matter of Aronian, Determination (New York State Commission on Judicial Conduct November 7, 2022).

Use of judicial letterhead for letters of recommendation

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In most states, whether judges may use judicial stationery for letters of recommendation is expressly addressed in the code of judicial conduct or advisory opinions although the precise rule varies from jurisdiction to jurisdiction.  In this day and age, any rule permitting or prohibiting use of official letterhead logically also applies to use of an official court email address and/or an email “signature” identifying the sender’s title and court.

21 jurisdictions have adopted the model code of judicial conduct comment that states:  “The judge may use official letterhead if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.”  Comment 2, Rule 1.3, American Bar Association 2007 Model Code of Judicial Conduct.  Those 21 jurisdictions are:  Arkansas, Colorado, Connecticut, D.C., Georgia, Hawaii, Idaho, Kentucky, Maryland, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, Pennsylvania, Rhode Island, Washington, and Wyoming.

In addition, New York advisory opinions state that, provided a judge clearly notes “personal and unofficial” on the stationery, a judge may write a letter of recommendation on their official letterhead.  See, e.g., New York Advisory Opinion 1993-26 (for an attorney who appears before them and who is an associate law professor applying for a promotion to a full professorship); New York Advisory Opinion 2013-5 (on behalf of a high school senior with whom they are acquainted for a college scholarship).

A comment to Canon 1F of the Virginia code of judicial conduct states:  “When using court stationery for letters of reference an indication should be made that the opinion expressed is personal and not an opinion of the court.”

In contrast, at least 7 states have code provisions that allow judges to use judicial stationery for any permitted letter of recommendation without requiring an indication that the recommendation is personal.

  • The Arizona and West Virginia codes omit the qualification “if the judge indicates that the reference is personal” from the comment giving permission to use judicial letterhead.
  • Canon 2B(2)(e) of the California code states that written references or letters of recommendation “may include the judge’s title and may be written on stationery that uses the judicial title.”
  • The Florida code states:  “A judge may use judicial letterhead to write character reference letters when such letters are otherwise permitted under this Code.”
  • The Indiana code states:  “A judge may provide a reference or recommendation for an individual based upon the judge’s personal knowledge and may use official letterhead . . . .”
  • The Iowa code states:  “The judge may use official letterhead for such reference or recommendation.”
  • The Ohio code states:  “The judge may use official letterhead for such reference.”

A comment to the Missouri code states:

[T]he need for every recommendation on official stationery to recite that it is the “personal” act of the judge is questionable.  Recommendation letters of the type authorized by judicial codes are reviewed by sophisticated individuals with a sufficient knowledge that references are private, not official acts.  References sent to educational institutions, governmental agencies, scholarship committees, and businesses are not likely to be misinterpreted as court acts.

That comment seems to imply that official stationery is permitted under all otherwise appropriate circumstances in Missouri although it does not expressly state that.

An Illinois advisory opinion states:  “A judge may recommend a neighbor for a state fellowship or internship if the judge has personal knowledge of the applicant and may use court stationery to send the recommendation.”  Illinois Advisory Opinion 1996-2.  (If Illinois judges are allowed to use judicial stationery under those circumstances, it is reasonable to assume that they can do so for all other appropriate letters of recommendation.)

5 states allow judges to use judicial letterhead for letters of recommendation if the judge knows the person being recommended from their judicial role but require them to use personal stationery for personal contacts.

  • An Alaska advisory opinion states that, “judges may use court letterhead for reference letters when the judge is comfortable providing a reference and has knowledge as a judge relating to the reference, for example, for the judge’s law clerk, other court employees seeking future employment, and lawyers who have appeared before the judge seeking new employment or a judicial office.”  Alaska Advisory Opinion 2020-1.
  • A Maine advisory opinion states that, “a judge may use official stationery when writing a letter of recommendation for someone the judge knows through the judicial department (for example, as an employee of the clerk’s office or a practicing attorney) but if the basis for the reference is unrelated to the judge’s office then use of letterhead is inappropriate.”  Maine Advisory Opinion 1998-3.
  • The Massachusetts code provides:  “The judge may use official letterhead and sign the recommendation using the judicial title if the judge’s knowledge of the applicant’s qualifications arises from observations made in the judge’s judicial capacity.  The recommendation may not be accompanied by conduct that reasonably would be perceived as an attempt to exert pressure on the recipient to hire or admit the applicant.  Where a judge’s knowledge of the applicant’s qualifications does not arise from observations made in the judge’s judicial capacity, the judge may not use official letterhead, court email, or the judicial title, but the judge may send a private letter stating the judge’s personal recommendation.  The judge may refer to the judge’s current position and title in the body of the private letter only if it is relevant to some substantive aspect of the recommendation.”
  • Advice in North Carolina states:  “Official letterhead is generally permitted for recommendations based on the judge’s observations of the individual made in the scope of the judge’s official duties and professional judicial activities; personal stationery should be used for recommendations based on knowledge formed and maintained outside the judicial role.”  North Carolina Tips on the Use of Official Letterhead (2017).
  • A Wisconsin Ethics Commission policy suggests that “the type of stationery to be used depends upon how the public official knows the person for whom the reference letter is being written.  If the official knows the subject through state government business, then state government stationery is appropriate.  If the subject of the letter is known to the official primarily in a social context, e.g., a relative, friend, neighbor or a school or social acquaintance, personal stationery should be used.”  (The Wisconsin Ethics Commission interprets regulations that apply to elected officials in the state, including most judges.)

3 states allow use of judicial letterhead for particular types of subjects (law clerks and interns) and/or in particular contexts (employment and education).

  • The New Jersey code states:  “The New Jersey Supreme Court has determined that in certain limited situations a judge may write a letter of recommendation for a current or former law clerk or intern on judicial letterhead; in all other situations, if a letter of recommendation is appropriate, it should be on the judge’s personal stationery.  The situations in which the judge may use judicial letterhead for letters of recommendation for law clerks or interns are as follows:  (a) when the letter is addressed to another state or federal government official (this would include letters regarding subsequent additional clerkships or internships); (b) when the letter is addressed to a law school, university, or college in connection with a possible teaching position for the law clerk or intern; and (c) when a potential employer requests a recommendation.”
  • A comment to the Tennessee code states:  “A judge may use official letterhead if the judge’s professional knowledge is germane to the purpose of the letter, such as writing a letter of recommendation for a former or current law clerk or a letter of recommendation for admission to law school.”
  • A comment to the Utah code states:  “In making such references or recommendations, the judge may refer to his or her judicial office and use official letterhead only for employment or educational opportunities.”

2 states do not allow use of official letterhead for letters of recommendation under any circumstances.

  • The Louisiana code states:  “Letters of recommendation may be written only on private stationery which does not contain any official designation of the judge’s court, but the judge may use his or her title.”
  • A South Carolina advisory opinion states that a judge’s letter of recommendation “should be written on plain paper, without indicating the writer is a judge.”  South Carolina Advisory Opinion 5-1992. 

There does not appear to be a specific code provision or advisory opinion addressing the issue in 9 states (Alabama, Delaware, Kansas, Michigan, Mississippi, Oregon, South Dakota, Texas, and Vermont) and for federal judges.