The difference between censure and removal

Accepting determinations of the State Commission on Judicial Conduct, the New York Court of Appeals recently removed 2 judges from office for a variety of misconduct.  Both judges had admitted to at least some of the misconduct charged, but both had argued that censure, rather than removal, was the appropriate sanction.  The Court rejected their arguments, considering the “full spectrum” and “entirety” of their behavior to find their misconduct “truly egregious,” justifying removal.  (Suspension without pay is not available as a sanction in New York judicial discipline cases.)

The Court removed 1 judge for (1) her conviction for a misdemeanor offense of driving while intoxicated; being discourteous and seeking preferred treatment from the arresting officers; violating the terms of her conditional discharge by ignoring court orders to abstain from alcohol; and going to Thailand for an extended vacation without notice to the court or her lawyer, resulting in the revocation of her conditional discharge; (2) failing to disqualify herself from the arraignment of a former client and attempting to have his case transferred in a manner that she thought might benefit him; and (3) making discourteous, insensitive, and undignified comments before counsel and litigants in court.  In the Matter of Astacio, Opinion (New York Court of Appeals October 16, 2018).  The Commission decision is In the Matter of Astacio, Determination (New York State Commission on Judicial Conduct April 23, 2018).

Acknowledging that the judge had “expressed some contrition,” the Court was “unpersuaded” that she had “genuinely accepted personal responsibility” because she continued “to point to external factors and justifications as excuses for her behavior.”  The Court explained:

Although we do not expect petitioner to “adopt a posture of obeisance,” we do require that she adequately “recognize wrongdoing in order to forestall the inevitable, unfortunate conclusion that, absent a harsher sanction, more of the same will ensue” . . . .  Here, petitioner’s justifications for her conduct indicate she does not truly recognize the essential role her own decisions played in bringing about her current predicament.

Emphasizing that the judge’s actions cannot be viewed “through a limited prism” but “the full spectrum of her behavior and its impact on public perception of the judiciary” must be considered, the Court concluded that, given her “apparent lack of insight into the gravity and impact of her behavior on both public perception of her fitness to perform her duties and on the judiciary overall, . . . any rupture in the public’s confidence cannot be repaired.”

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The Court removed the second judge for (1) on numerous occasions, acting impatiently, raising his voice, and making demeaning and insulting remarks, often in open court; (2) twice striking witness testimony and dismissing petitions for insufficient proof because counsel reflexively kept saying “okay;” (3) awarding counsel fees without providing the party ordered to pay an opportunity to be heard, contrary to applicable rules; and (4) failing to cooperate with the Commission.  In the Matter of O’Connor, Opinion (New York Court of Appeals October 16, 2018).  The Commission decision is In the Matter of  O’Connor, Determination (New York State Commission on Judicial Conduct March 30, 2018).

The judge argued that his courtroom demeanor “was justified by the circumstances, including the ‘rough and tumble’ nature of landlord-tenant litigation.”  Disagreeing, the Court explained:

To be sure, judges must insist upon order and decorum in the courtroom . . . .  Nevertheless, the need to maintain order must be counterbalanced against a judge’s obligations to remain patient and to treat those appearing before the court with dignity and courtesy . . . .  As we have explained, “respect for the judiciary is better fostered by temperate conduct, not hot-headed reactions” . . . .

The Court also emphasized that the judge’s “failure to observe and follow the law resulted in substantial and unjustifiable adverse consequences for the parties that went uncorrected—namely the dismissal of their petitions and the imposition of fee awards.”  Thus, the Court rejected that the judge’s argument that, at most, he had committed “harmless” legal errors that should not serve as grounds for findings of misconduct.  The Court stated that the judge’s “sustained pattern of inappropriate behavior evinced a lack of understanding of his role as a judge—most notably by disregarding the law and impinging on the fundamental right to be heard—thus eroding the public’s trust and confidence in the integrity of the judiciary.”

The judge did not challenge the Commission’s finding that he had engaged in a “consistent pattern of efforts to withhold cooperation and to delay or thwart the investigation.”  For example, he had not appeared at the hearing before the referee, at a proceeding scheduled to address the issue of notice, at an opportunity to reopen the hearing, or at oral argument before the Commission members.

On appeal, the Court rejected the judge’s argument that, because his underlying conduct, standing alone, would not result in more than a censure, “his failure to cooperate fully with the Commission’s investigation should not elevate the sanction to removal.”  It explained that it would “not overlook the entirety of a judge’s behavior and the extent to which it ‘qualif[ies] in the aggregate to the level and quality of egregiousness that merit[s] the ultimate discipline of removal.’”  The Court concluded:

If the public trust in the judiciary is to be maintained, as it must, those who don the robe and assume the role of arbiter of what is fair and just must do so with an acute appreciation both of their judicial obligations and of the Commission’s constitutional and statutory duties to investigate allegations of misconduct . . . .  In short, willingness to cooperate with the Commission’s investigations and proceedings is not only required—it is essential.

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.’”

Educating and assisting

10 or so judicial conduct commissions summarize private actions in their annual reports, in addition to reporting statistics and describing public cases.

The California Commission on Judicial Performance explains that it summarizes its confidential dispositions “to educate judges and the public, and to assist judges in avoiding inappropriate conduct.”  Although the summaries omit or obscure the facts to maintain confidentiality, which makes them “less informative than they otherwise might be,” the Commission believes, “it is better to describe the conduct in abbreviated form than to omit the summaries altogether.”

The summaries are included in each annual report, and there is an on-line compilation that begins in 1998.  The California Commission’s most recent report summarizes the 13 private admonishments and 21 advisory letters that became final in 2017.  The Commission privately admonished, for example:

  • A judge who made an appointment not permitted by law and in violation of a litigant’s rights without affording the litigant notice and an opportunity to be heard and failed to comply with disclosure requirements for judicial campaign contributions,
  • A judge who acted as an arbitrator or mediator or otherwise performed judicial functions in a private capacity,
  • A judge who, without any matter pending before the court, issued an order purporting to exempt an individual from a particular regulation, and
  • A judge who used the court’s e-mail and mailing address in connection with business activities unrelated to court business and misused the prestige of office in communicating with law enforcement about a matter not related to official court business.

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The 2017 report of the Massachusetts Commission on Judicial Conduct includes descriptions of 2 private sanctions.

  • The Commission privately reprimanded a judge for treating parties discourteously in 2 matters; the judge also agreed to retire voluntarily after unsuccessfully struggling to overcome health difficulties.
  • The Commission privately admonished a judge for treating a party discourteously and behaving in a manner unbecoming a judicial officer; the judge agreed to be monitored by the Commission and to meet with a mentor judge for 1 year.

In addition, the report describes several complaints dismissed by the Commission, including the  3 summarized below.

  • Referencing a hearing that occurred approximately 32 months before he filed his complaint, a self-represented litigant in a restraining order matter alleged that a judge had an improper ex parte communication with the opposing party and denied the litigant a full opportunity to be heard. The preliminary inquiry, which consisted of reviewing the materials submitted by the litigant, reviewing the relevant docket sheet, and asking the litigant for any additional evidence, yielded no credible evidence to support the allegations.  The Commission voted there was no good cause to investigate the stale complaint.
  • An anonymous complainant alleged that a judge had engaged in a pattern of treating lawyers and other parties appearing before him discourteously. After reviewing the complaint, the Commission voted to investigate because the seriousness or notoriety of the alleged misconduct outweighed the potential prejudicial effect of an investigation.  The investigation, which included a review of audio records from the judge’s courtroom, revealed no evidence of discourtesy, and the Commission dismissed the complaint.
  • A self-represented plaintiff in a civil matter alleged that a judge treated him discourteously, created an appearance of bias because of his disability and/or because he was self-represented, and denied him due process during a pretrial conference. The investigation included reviewing the materials submitted by the plaintiff, reviewing the audio record of the hearing, and interviewing a witness.  The investigation revealed that the judge treated the plaintiff patiently and courteously throughout the hearing, granted him full due process, and did not do or say anything that would cause a reasonable person to believe that the judge was biased against the plaintiff.  The Commission dismissed the complaint.


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The annual report for the Michigan Judicial Tenure Commission summarizes 3 letters of admonition and 2 cautionary letters in 2017.  For example:

  • The Commission cautioned that a judge’s demeanor had aggravated rather than eased a situation in which the judge had become angry with a criminal defendant for failing to follow directions, dared the defendant to “say another word” in exchange for a year in prison, and, after the defendant became agitated, left the bench to help physically restrain the defendant.
  • The Commission privately admonished a judge for writing an op-ed for a newspaper concerning pending criminal charges stemming from the high profile Flint water issue, which was not assigned to the judge.

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The Pennsylvania Judicial Conduct Board annual report gives examples of the letters of counsel and the letters of caution issued in 2017.  For example, letters were sent to:

  • A judge who failed to recuse at the appropriate time from criminal matters involving a former sexual partner,
  • A judge who engaged in a clandestine emotional support relationship with a governmental official while the official and the official’s staff presented cases before the judge,
  • A judge who was charged with driving under the influence of alcohol and identified himself as a judge to the arresting officer,
  • A judge who forwarded an e-mail with racially insensitive content to court employees,
  • A judge who utilized his court office as a forum for a political discussion and utilized the prestige of the judicial office to assist the career prospects of a then-potential opponent to lessen the chances that the potential opponent would run against the judge,
  • A judge who addressed the father of a litigant in a condescending and arrogant manner in open court, calling him “stupid,”
  • A judge who told a witness to “suck it up, cupcake,” in open court when many members of the public were present, and
  • A judge who publicly misrepresented the procedural history of a case and refused to allow counsel to correct the record.

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The Utah Judicial Conduct Commission 2017 annual report summarizes the 4 dismissals with warning the Commission issued, finding in each matter that “the misconduct was troubling but relatively minor misbehavior for which no public sanction was warranted.”  The Commission dismissed with a warning:

  • A self-report by a part-time justice court judge who had represented a juvenile in a criminal case in violation of a statute,
  • A complaint that a judge made 2 offensive statements about an excused juror during sidebar discussions with the prosecutor and defense counsel,
  • A complaint that a judge had revoked the appointment of counsel when an indigent criminal defendant failed to appear, and
  • A complaint that a juvenile court judge had failed to ensure notice and an adequate record of permitted ex parte communications.

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The New York State Commission on Judicial Conduct annual report describes the 30 confidential cautionary letters issued in 2017.  For example, the Commission cautioned:

  • 1 judge for beginning court proceedings with a prayer from the bench,
  • 1 part-time judge for linking his law firm web-site to a personal web-site detailing his judicial position,
  • 5 judges for failing to properly supervise court clerks, which resulted in misappropriated court funds,
  • 1 part-time judge for filing frivolous lawsuits as an attorney, and
  • 1 judge for circulating nominating petitions for someone other than himself and participating in town board budget sessions on matters not involving court operations.

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The Minnesota Board on Judicial Standards annual report for 2017 describes the 3 private admonitions and a sampling of the 6 letters of caution the Board issued.  For example, the Board:

  • Cautioned 1 judge about signing proposed orders without providing the opposing party an opportunity to respond,
  • Cautioned 1 judge about yelling or swearing during an in-chambers meeting, and
  • Cautioned 1 judge about statements made during a third-party visitation hearing, such as, “I didn’t know parenting was optional?” and “I’m just saying some people who are scared to death shouldn’t have children.”

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The Colorado Commission on Judicial Discipline 2017 annual report explains that it:

  • Privately admonished 1 judge for statements during an in-chambers meeting with counsel that disparaged the defendant and interfered with the defendant’s attorney/client relationship, and
  • Privately reprimanded a second judge for failing to timely resolve permanent orders after being placed on a deferral program regarding delays in finalizing permanent orders in an earlier case, also requiring the judge to make periodic docket management reports.

The report also lists the misconduct at which private disciplinary action has been directed in recent years, for example:

  • Failure to respond to Commission letters and disciplinary measures,
  • Delays in docket management caused by medical conditions requiring diversion programs for treatment,
  • Disrespectful remarks to the media or through e-mails regarding the conduct of a litigant, a witness, an attorney, or another judge,
  • Intemperance or verbal abuse toward an employee, a person dealing with court staff, or a customer of a business establishment,
  • Undue reliance on staff for matters in which the judge should be fully competent,
  • Driving while impaired or under the influence of alcohol,
  • Sexual harassment or other inappropriate personal conduct involving a court employee, witness, attorney, or litigant,
  • Irrelevant, misleading, or incoherent statements during arraignments and sentencing,
  • Rulings from the bench involving unprofessional terminology, including expressions that are viewed as offensive in civilized discourse,
  • A pattern of errors in handling trials or issuing rulings that indicated a lack of competence,
  • Making public statements about another judge’s case,
  • Arbitrary rulings in contempt proceedings that resulted in incarceration without due process,
  • Failure to comply with rules applicable to retention elections,
  • Disregard of court-imposed gag orders,
  • Prohibiting a process server from subsequent cases without an opportunity to be heard,
  • Discourtesy toward judicial colleagues, administrative staff, and sheriff deputies,
  • Behavior that the judge may not recognize as a symptom of a medical condition that affects judicial performance, and
  • Advocating for a self-represented party by providing legal advice or failing to treat all self-represented parties to a case impartially.

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In its 2017 annual report, the New Mexico Judicial Standards Commission summarizes the 18 complaints involving 14 judges it resolved with cautionary letters and the 4 inquiries disposed of through informal remedial measures.  For example, 1 judge successfully completed an informal mentorship that addressed concerns the judge allegedly (a) abused discretion by issuing bench warrants to defendants who were sometimes only minutes late to court, then cancelling the bench warrants, but imposing the $100 bench warrant fee and (b) demonstrated inappropriate demeanor with fellow judges and court staff.   A second judge completed an informal mentorship assisting the judge comply with the Inspection of Public Records Act.

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The Texas State Commission on Judicial Conduct annual report for fiscal year 2017 summarizes private dispositions.  For example, the Commission:

  • Privately warned and ordered additional education for a judge who participated in a ride-along with law enforcement during a “no-refusal” weekend while serving as the on-call magistrate for blood search warrants arising from the ride-along,
  • Privately warned and ordered additional education for a judge who wore a Halloween costume during the performance of her judicial duties,
  • Privately ordered additional education for a judge who used the contempt power to pressure a witness into providing specific testimony, and
  • Privately warned a judge who represented that his opponent did not vote between 1996 and 2012, although publicly available voting records showed that his opponent voted 7 times during that period.

Conditioned sanctions

The count of state judicial discipline sanctions in 2017 from last week’s post has been up-dated to add 1 public admonishment and 1 resignation in lieu of discipline that should have been included.

At least 18 of the discipline cases from 2017 imposed conditions on the judge in addition to another sanction such as reprimand or suspension.

For example, in addition to publicly censuring a judge for 8 instances of unjustified delay in deciding a variety of cases, the Washington State Commission on Judicial Conduct ordered the judge to affirm in writing to the Commission every 3 months that she has no matters with decisions pending beyond 90 days.  The sanction was based on a stipulation and agreement, and the judge also agreed to exercise caution to avoid repeating the violations and to diligently maintain a list so that matters pending decision will be regularly brought to her attention.  In re Roberts, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 26, 2017).

In another case involving delay, the North Dakota Supreme Court ordered a judge to attend the course on decision-making at the National Judicial College and suspended him for 3 months.  This was the third time the judge had been sanctioned for delay, and the judge had also failed to respond to letters from the presiding judge about the timeliness of his decisions.  In the Matter of Hagar, 891 N.W.2d 735 (North Dakota 2017).

2 judges agreed to numerous conditions as part of a period of probation in lieu of or in addition to other sanctions.

In a deferred discipline agreement, a Tennessee judge agreed to be on probation for 3 years, conditioned on no meritorious complaints being filed against her.  During the probation period, she must consult with another judge about any questions she has on law, procedure, or ethics and attend at her own expense the general jurisdiction course at the National Judicial College.  In consideration of the judge’s agreement, the investigative panel of the Board of Judicial Conduct agreed not to pursue formal charges on 16 complaints against her.  In the Matter of Sammons, Deferred discipline agreement (Tennessee Board of Judicial Conduct January 23, 2017).

The New Mexico Supreme Court deferred a judge’s 3-week suspension without pay conditioned on his being under supervised probation and a formal mentorship for the remainder of his term and his completion of 2 National Judicial College web-cast courses, “Ethics and Judging:  Reaching Higher Ground” and “Special Considerations for the Rural Court Judge.”  The Court, granting a petition to accept a stipulation and consent to discipline, also publicly censured the judge for ex parte communications in numerous cases, misusing the contempt power, failing to cooperate with supervisory personnel from the administrative office of the courts, allowing his judicial decisions and conduct to be influenced by public opinion, fear of criticism, and/or political interests, and other misconduct.  In the Matter of Walton, Order (New Mexico Supreme Court December 18, 2017).

Training and course attendance, usually on topics specified by the commission, is a common condition imposed in judicial discipline proceedings.

  • Based on an agreement, the Kentucky Judicial Conduct Commission ordered a judge to complete courses and training on substantive and procedural due process within 6 months in addition to suspending her without pay for 30 days for (1) granting permanent sole custody of a child without requiring the petitioner to provide evidence or giving the respondent an opportunity to obtain counsel, cross-examine witnesses, or introduce evidence and (2) ordering 2 minor children to be immediately placed in foster care without conducting a formal hearing, taking any sworn testimony, or affording the parents due process. In re Stein, Agreed order of suspension (Kentucky Judicial Conduct Commission March 21, 2017).
  • Based on stipulations, the New Hampshire Judicial Conduct Committee ordered a judge to complete a seminar on enhancing judicial bench skills by the National Judicial College and publicly reprimanded the judge for revising a negotiated plea agreement sua sponte and refusing to allow the state to strike amendments to the complaint. In the Matter of DeVries (New Hampshire Judicial Conduct Committee April 7, 2017).
  • A judge agreed to complete at least 1 hour of training in judicial campaign ethics as part of a stipulation in which the Washington Commission publicly reprimanded the judge for soliciting written endorsements from court employees in support of his judicial campaign. In re Federspiel, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct May 12, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for his treatment of prospective jurors and his use of the contempt power against lawyers and ordered the judge to take 8 hours of additional education, including on the role of a judge, contempt, recusal and disqualification, listening, ethics, and case management. Public Reprimand of Aguilar and Order of Additional Education (Texas State Commission on Judicial Conduct November 6, 2017).
  • The Florida Supreme Court suspended a judge for 30 days without pay and publicly reprimanded him for failing to disqualify himself from cases involving an attorney with whom he had an adversarial and contentious relationship; the Court also ordered the judge to complete a judicial ethics course within 1 year. Inquiry Concerning Yacucci, 228 So. 3d 523 (Florida 2017).

Commissions have required training to address inappropriate statements by judges.  A Washington judge who had stated “we don’t know whether he’s some white guy like me making a threat or somebody who’s, you know, more likely to be a gangster” during a hearing agreed to complete training in implicit or unintended bias as part of a stipulation that also included an admonishment.  In re North, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 8, 2017).

The Texas Commission required 2 judges to obtain instruction on racial sensitivity from mentors.  1 judge had posted, “Time for a tree and a rope . . .” on Facebook in response to the arrest of an African-American man for the killing of a police officer.  Amended Public Reprimand of Oakley and Order of Additional Education (Texas State Commission on Judicial Conduct May 8, 2017).  The second judge had used the term “colored” when referring to black people.  Public Reprimand of DeLaPaz and Order of Additional Education (Texas State Commission on Judicial Conduct March 17, 2017).  In the latter case, the judge was also reprimanded for his handling of a small claims case and required to complete stage I of the Texas Justice Court Training Center’s training for new judges.

The Texas Commission often orders mentorships for sanctioned judges.

  • A judge who was publicly warned about refusing to allow a member of the public to inspect and copy case files and escorting him out of his office was also ordered to obtain 2 hours of instruction with a mentor, particularly on judicial demeanor and public access to judicial case files. Public Warning of Alford and Order of Additional Education (Texas State Commission on Judicial Conduct March 28, 2017).
  • A judge who was publicly reprimanded for setting a $4 billion bond for a murder suspect and magistrating her own son was also ordered to receive 2 hours of instruction with a mentor on magistration. Public Reprimand of Brown and Order of Additional Education (Texas State Commission on Judicial Conduct December 19, 2017).
  • A judge who was publicly warned for injecting his judicial position into an exchange with an umpire at his son’s baseball game was also ordered to obtain 2 hours of instruction with a mentor. Public Warning of Warren and Order of Additional Education (Texas State Commission on Judicial Conduct November 10, 2017).

The Nevada Commission on Judicial Discipline ordered that a judge be assigned a mentor when she returns from 1-year suspension and that she attend the state limited jurisdiction judges conference and take courses on special considerations for rural court judges, best practices in handling cases with self-represented litigants, and sexual harassment and discrimination in the workplace.  In the Matter of Haviland, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline August 29, 2017).  The judge had (1) sealed her then son-in-law’s criminal records relating to his arrests for domestic battery of her daughter; (2) ordered staff to conduct an illegal criminal records search regarding her friend’s boyfriend; (3) sentenced an unrepresented individual to 8 months in jail in violation of due process; (4) referred to men as “sperm donors;” (5) run a juvenile diversion program that did not comply with the law; and (6) issued orders in small claims cases regarding titles for abandoned vehicles.

In a hearing in another case before the Nevada Commission, a video was shown of a matter in which a judge failed to accord plaintiff’s counsel the right to be heard, repeatedly using intemperate language and yelling at her, directing that she be handcuffed, and holding her in contempt.  When asked by a member of the Commission to define a “bully,” the judge replied, “I think if you watch the video that you get a taste of it.”  The Commission ordered the judge to pay a $5,000 fine to and perform 10 hours of community service for an anti-bullying organization, to complete a judicial education course on dealing with difficult parties and attorneys, and to write letters of apology to 2 attorneys.  The Commission also suspended the judge for 60 days for the conduct reflected in the video as well as for making comments to a reporter about 2 pending cases, holding a hearing in a case in which a motion for recusal was pending, and advising a party to file a complaint against opposing counsel.  Finally, the Commission ordered the judge to submit to a psychiatric exam because the judge’s “visceral and emotional display of rage” in the discipline hearing “caused the Commission to seriously question Respondent’s mental stability and capacity to control his anger . . . .”  In the Matter of Potter, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline November 22, 2017).

The Michigan Supreme Court has held that it does not have the authority to order conditions such as training “because they are not judicial discipline as described” in the state constitution, which only provides that the Court “may censure, suspend with or without salary, retire or remove a judge . . . .”  However, in In re Iddings, 897 N.W.2d 169 (Michigan 2017), the Court stated that the Judicial Tenure Commission may recommend further discipline if the judge fails to comply with his agreement to continue counseling for a year at his own expense and to attend a course on maintaining proper boundaries sponsored by the University of Texas Southwestern Medical Center and the Sante Institute of Professional Education and Research at his own expense.  The Court suspended the judge for 6 months without pay and publicly censured him for sexual harassment of his judicial secretary.

 

Recorded conversations

In 2011 and 2012, the FBI was investigating Philadelphia Municipal Judge Joseph Waters, including wiretapping his telephone communications.  Eventually, he pled guilty to federal mail fraud and honest services wire fraud for asking other judges for favors on behalf of campaign supporters.  In January 2016, the Pennsylvania Court of Judicial Discipline removed him from office.  In October 2016, that court removed former judge Joseph O’Neill based on his guilty plea to lying to a federal agent for denying that he had not been contacted by then-judge Waters about a case.

Last week, the Pennsylvania Supreme Court affirmed the removal of 2 more judges for their conversations with then-judge Waters and related misconduct.  Judge Angeles Roca was removed for seeking his advice about her son’s case and acquiescing in his offer to communicate ex parte with Judge Dawn Segal, who was handling the case.  In re Roca (Pennsylvania Supreme Court November 22, 2017).  Judge Segal was removed for listening to then-judge Waters’ requests for favorable treatment for parties in 3 cases (including that of Judge Roca’s son) and finding in favor of those parties.  In re Segal (Pennsylvania Supreme Court November 22, 2017).  Under the state constitution, the Court reviews whether sanctions imposed by the Court on Judicial Discipline are “lawful.”

The FBI recorded Judge Segal talking with then-judge Waters about 1 criminal case and 2 small claims case.  In the discipline proceedings, the parties stipulated that the recorded telephone conversations demonstrated that then-judge Waters used his position to request special consideration for litigants in an attempt to influence Judge Segal’s decisions; that Judge Segal entertained the ex parte requests for favorable treatment; and that her decisions ultimately favored those litigants.  In each case, the judge had called then-judge Waters and told him that she had complied with his request, for example, stating, “I figured it out and I took care of it” about the small claims case involving Judge Roca’s son.

The Court rejected Judge Segal’s argument that she had not ruled any differently based on the conversations and, therefore, had not committed misconduct.  The Court emphasized that the judge “knew that she had been approached by a corrosive influence, yet she remained in her decisional role while acting as if she was acceding to the improprieties.  Litigants can have little confidence that a judge proceeding in this way is rendering fair and impartial rulings; rather, they may reasonably believe that such a jurist is doing precisely what she said she was doing by engaging in favoritism.”

In June 2012, the FBI recorded Judge Roca asking then-judge Waters for advice after Judge Segal had denied her son’s pro se petition to open a $5,000 default judgment entered against him when he did not appear for a hearing on a complaint for failure to pay a business privilege tax.  Waters offered to talk to Judge Segal if a motion for reconsideration was filed.  After her son filed the motion, Judge Roca called then-judge Waters and, based on their conversation, understood that he would call Judge Segal on behalf of her son.  That day, Judge Segal reviewed the petition for reconsideration, issued a rule to show cause why the relief should not be granted, and then called Waters.  (The default judgment was ultimately vacated, and the case was withdrawn upon payment of $477 in taxes.)

On appeal, Judge Roca did not challenge the finding that she violated the code of judicial conduct, brought the judicial office into disrepute, and prejudiced the proper administration of justice.  However, she argued that removal was not lawful in light of precedent and the facts of this case, relying on decisions in which the Court of Judicial Discipline had imposed a lesser sanction for misconduct that “she views as equivalent to (or worse than) her own.”

The Pennsylvania Supreme Court acknowledged that the “concept that the penalty decided upon by the CJD should be subject to a proportionality requirement is not without some appeal” but stated “no such mandate is contained, or even suggested” in the constitution.  The Court held that the Court of Judicial Discipline “has wide discretion to fashion the appropriate penalty once it finds a predicate violation” and that “[s]imilarity of misconduct does not require identicality of sanction, for there are other factors that bear on that decision, including mitigating and aggravating considerations and how a particular jurist’s misconduct undermines public confidence in the judiciary.”

The Court did hold that, “[b]ecause the CJD may lawfully impose discipline warranted by the record, the unavoidable corollary is that a sanction which is not warranted by the record is not lawful and, as such, may be disapproved by this Court,” permitting the Court “to perform a final check in cases of an infraction met with an unreasonably harsh penalty completely out of proportion to the misconduct involved.”  The Court held that regardless whether it would have removed the judge from office if it were deciding in the first instance, her removal was not unwarranted by the record.

In a dissent, 1 justice acknowledged that no 2 “cases are perfectly identical,” but stated that the challenge of analyzing, analogizing, or distinguishing one case by reference to prior cases does not relieve the Court of Judicial Discipline “from its inherent obligation to do so.”

Absent fidelity to stare decisis, the CJD may arbitrarily sanction a jurist and, without the availability of meaningful appellate review, this Court has no ability to reverse it.  At a minimum, it must be this Court’s function, when reviewing a CJD sanctions ruling, to confirm that in reaching its decision, the lower court has engaged in a lawful judicial process which by necessity involves the application of stare decisis.  In the instant matter, the CJD removed an elected judicial official from office.  It imposed this sanction without any meaningful discussion of prior precedent.  As such, the sanction imposed in this case is ipso facto unlawful.

The dissenting justice argued that the removal order should have been vacated and remanded “for an opinion in which the CJD thoroughly examines its precedent before imposing a sanction in this case (and would require the same in every case it adjudicates).”  The same justice dissented for the same reasons in In re Segal, noting that, although the 2 judges’ misconduct differed materially, the Court of Judicial Discipline imposed the same sanction “while employing substantially identical language . . . .”

Parsing truth

A lack of candor can be misconduct and/or an aggravating factor in determining the appropriate sanction in judicial discipline proceedings, sometimes leading to removal when the underlying misconduct otherwise might not.  But courts and judicial conduct commissions have identified different degrees of dishonesty with different consequences.  In 2 recent cases, for example, the Michigan Supreme Court and Judicial Tenure Commission discussed actionable falsehoods, statements “unworthy of belief,” selective or incorrect memories, imprecise expressions, intentional misrepresentations, inaccurate or careless answers, lying under oath, guesses, and speculation.

The Court publicly censured 1 judge for directing insulting, demeaning, and humiliating comments and gestures to 3 children during a contempt proceeding in a protracted and highly contentious divorce and custody case.  In re Gorcyca (Michigan Supreme Court July 28, 2017).  The Commission had also found that the judge committed misconduct by holding the oldest child in contempt for refusing to participate in parenting time with his father and ordering the 3 children confined to a children’s residential center until their father determined they had purged themselves of contempt.  The Court agreed that the judge committed legal error but concluded that error did not constitute judicial misconduct because she had acted with due diligence (appointing attorneys for the children and holding a hearing) and her error could not be fairly characterized as willful failure to observe the law (no one in the courtroom offered alternatives for handling the difficult circumstances or suggested that she was crossing a line).

In addition to other inappropriate comments, the judge had said to the father with respect to the oldest child, 13-year-old LT, “Dad, if you ever think that he has changed and therapy has helped him and he’s no longer like Charlie Manson’s cult, then you let us know and we can do it.”  While making that statement, she made a circular gesture with her finger near her temple.

In response to the Commission inquiry, the judge denied that she had circled her temple with her finger “to indicate or even imply that [LT] was crazy,” explaining that she believed the motion simulated “a wheel moving forward” to indicate that the father should let her know if LT made any forward movement as a result of therapy.

The master had found that answer was false.  The Commission disagreed, stating that knowledge that a statement is false and an intention to deceive are required.  It explained:

The fact that a statement may be incorrect does not, by itself, render the statement “false” within the context of a legal proceeding.  It may be discredited, or deemed unworthy of belief, but given the limits of human memory and perception, as well as the limitations of language, it would be unfair to impute motives of deception or falsehood to everyone who says something that someone else finds incredible, or that proves to be incorrect.  Selective memory does not equal falsehood; incorrect memory does not equal falsehood; imprecision in expression does not equal falsehood; even an answer that one chooses to disbelieve does not equal a falsehood.

The Commission noted that, during the hearing, the judge had “clarified that she did not recall making the gesture and was unaware she had done so until she viewed the video recording of the proceedings,” but that, when she gave her response, she had felt “obligated to provide her best guess about what she intended.”  The Commission emphasized that “the simple answer — ‘I do not remember what was in my mind at the time’ — would have been both accurate and helpful” but concluded that, “as long as she was candid about her lack of memory,” her “speculation about her motives or intentions in performing actions months earlier — actions that she could not even recall” were not “actionable falsehoods.”

However, noting the judge’s response was sufficiently misleading to require a hearing, the Commission requested over $12,500 in costs pursuant to a rule that authorizes costs “if the judge engaged in conduct involving fraud, deceit, or intentional misrepresentation, or if the judge made misleading statements to the [C]ommission, the [C]ommission’s investigators, the [M]aster, or the Supreme Court.”

Disagreeing on review, the Michigan Supreme Court stated that a misleading statement required an actual intent to deceive or at least some showing of wrongful intent.  It concluded that the judge had “merely speculated as to her intent” and that a guess was not akin to a misrepresentation or misleading statement.

* * *
In the second case, the Court suspended a judge for 9 months without pay for interfering with a police investigation at the scene of an accident involving his intern, interfering with the prosecution of the intern, and making an intentional misrepresentation to the Commission; the Court also ordered that the judge pay over $7,500 in costs.  In re Simpson (Michigan Supreme Court July 25, 2017).

In July 2013, Crystal Vargas accepted an internship with the judge.  Within days, the judge and Vargas began communicating with each other frequently by telephone call and text message, exchanging several thousand communications in 4 months, at all times of the day and night and on weekends.

On September 8, the judge and Vargas exchanged 6 text messages between 1:25 a.m. and 2:29 a.m. and 6 text messages between 4:20 a.m. and 4:23 a.m.  At about the time of the latter messages, Vargas was involved in a motor vehicle accident less than 2 miles from the judge’s home.  Vargas called the judge at 4:24 a.m., shortly after the accident.

While Vargas was still on the phone with the judge, Officer Robert Cole arrived at the scene.  As Cole was administering field sobriety tests to Vargas, the judge arrived.

Concluding that the judge’s “behavior at the accident scene constitutes judicial misconduct,” the Court found that the judge “used his position as a judge in an effort to scuttle a criminal investigation of his intern.”

[R]espondent exited his vehicle and approached Ms. Vargas and Officer Cole as sobriety tests were being performed.  Indeed, respondent interrupted the sobriety-testing process.  Respondent, who had prosecuted numerous drunk-driving cases on behalf of Superior Township before he became a judge, was certainly aware that Officer Cole was investigating whether Ms. Vargas was under the influence of alcohol or a controlled substance.  Given these circumstances, when respondent began his interaction with Officer Cole by introducing himself as “Judge Simpson,” he appears at best to have failed to prudently guard against influencing the investigation and at worst to have used his judicial office in a not-so-subtle effort to interfere with the investigation.  Indeed, but for respondent’s status as a judge, Officer Cole would not have spoken to respondent until Officer Cole completed his investigation.  Next, respondent spoke to Ms. Vargas during the investigation without Officer Cole’s permission — another action an ordinary citizen would not have been permitted to take.  Finally, respondent’s question — “Well, does she just need a ride or something?”— was a transparent suggestion to Officer Cole to end his investigation and allow respondent to drive Ms. Vargas away from the scene.

Subsequently, the judge twice contacted the township prosecutor, describing Vargas as a “good kid” who was in a “pretty bad relationship,” noting that the prosecutor had met Vargas in the past and would be working with her in the future, raising an evidentiary issue, and discussing potential defense attorneys.  The Court concluded that the judge “improperly acted as a legal advocate for Ms. Vargas and used his position as a judge to thwart the township’s criminal prosecution of his intern,” succeeding for a time in delaying the charges, and that his “actions—individually and taken together” constituted judicial misconduct.

In his answer to the Commission complaint, the judge had stated that “the vast bulk” of his communications with Vargas “related to a complex, sensitive project” she was working on for him in People v. Nassif.  The Court agreed with the Commission finding that that statement was “an intentional misrepresentation or a misleading statement.”  The Court explained:

The sheer number of communications—which were frequently exchanged during the night and on weekends—is inconsistent with respondent’s explanation that the communications related to court business, including an in camera review of evidence in the Nassif case.  Moreover, respondent testified that he learned that the Nassif case was assigned to him on August 11 or 12, and that his court did not receive the evidence for the in camera review until September 12.  Yet respondent and Ms. Vargas had already exchanged a surfeit of communications by then.  In addition, this explanation was inconsistent with another explanation advanced by respondent—that the communications were attributable to the “problems” that Ms. Vargas was having with her former boyfriend, who allegedly had been violent toward her.

However, the Court disagreed with the Commission’s additional finding that the judge made a separate intentional misrepresentation or misleading statement while testifying under oath at the hearing.  In response to the question whether he had any contact with Vargas between midnight and 3:30 that morning, the judge had answered “no” but then added, “I don’t believe there were any text messages.  I don’t believe that there was any contact.”  In fact, telephone records indicated that the judge and Vargas exchanged 6 text messages between 1:25 a.m. and 2:29 a.m.

The Court concluded that the judge had not made an intentional misrepresentation because he had “equivocated by adding that he did not ‘believe’ that there was any communication.”

[C]onsidering this context, it appears that respondent simply may not have recalled the precise timing of a few of the many communications he had with Ms. Vargas—communications that were not central to the allegations of misconduct in this case.  We find that respondent’s testimony on this point was careless and that he provided inaccurate information.  However, we do not believe that the JTC has sustained its burden of proving by a preponderance of the evidence that respondent made an intentional misrepresentation or misleading statement regarding his contacts with Ms. Vargas before 4:00 a.m. on September 8, 2013.

The Court noted that the Commission had also “equivocated” by finding that the judge made “an intentional misrepresentation or misleading statement,” and the Court stated that, if the Commission intended to find that the judge made an ‘”intentional misrepresentation,’ it should not have expressed its finding in the alternative.”  The Court emphasized that “it is far from clear that a ‘misleading statement’ is equivalent to a ‘lie under oath,’” noting it has not addressed “whether materiality or an intention to deceive are necessary to prove that a judge testified falsely under oath.”  Finally, stating that the judge should not receive a more serious sanction simply because he denied the allegations of misconduct, the Court explained that a contrary rule “would create immense pressure on judges to stipulate to the charges or risk removal for fighting them.”

Fines in judicial discipline cases

The $50,000 fine the Pennsylvania Court of Judicial Discipline imposed last month on a former supreme court justice for exchanging “sordid and offensive” e-mails with friends and professional acquaintances (see this earlier post for more information) matches the highest fines previously imposed in judicial discipline cases.

  • In 2003, the Florida Supreme Court reprimanded a judge and fined her $50,000 for pro-prosecutorial statements and misrepresentations during her election campaign. Inquiry Concerning Kinsey, 842 So. 2d 77 (Florida 2003).
  • In 2005, as part of an agreed disposition, the Massachusetts Judicial Conduct Commission suspended a judge for 1-year without pay and imposed a $50,000 fine for inappropriate conduct toward 2 female court employees. Press Release (Murray) (Massachusetts Judicial Conduct Commission November 28, 2005).

The Pennsylvania Court stated that, in light of the justice’s retirement, the $50,000 fine was “tantamount” to a 6-month suspension without pay.  Similarly, in Kinsey, the Court noted that the $50,000 fine represented approximately 50% of the judge’s yearly salary or a 6-month suspension without pay, which was the other option that the Judicial Qualifications Commission hearing panel had considered.

In In re Rodriquez, 828 So. 2d 1060 (Florida 2002), the Florida Supreme Court imposed a $40,000 fine, publicly reprimanded a judge, and suspended her for 4 months without pay for misleading statements made in campaign finance reports and violating state campaign laws.  The $40,000 represented approximately half of the salary she had received during an 8-month suspension with pay she had voluntarily taken while she was under investigation for possible criminal violations of the election laws.  (No criminal charges were filed.)  Noting that, when a judge is suspended or on leave, the salary for the senior judge appointed in her place is paid out of a special fund, the Court stated that the fine and the unpaid 4-month suspension would not necessarily make the state whole and instructed the Commission in the future to “also take into consideration, when determining the amount of any fine, the potential financial burden a given circuit incurs when it has to appoint a senior judge in the event of a suspension.”

In its recent case, the Pennsylvania Court of Judicial Discipline imposed the fine even though its constitutional authority does not expressly include “fine” in the list of available sanctions.  The Court concluded its authority to order “removal from office, suspension, censure, or other discipline” (emphasis added) provided it “wide latitude” to fashion “a sanction to address the unique circumstances of judicial discipline concerns,” including restoring public confidence in the impartiality of the judiciary.  The Court noted it commonly imposes sanctions other than those listed, such as reprimand and judicial probation.

Judicial conduct commissions in 9 states do have express authority to impose fines:  Florida, Indiana, Maine, Massachusetts, Minnesota (called a civil penalty), Mississippi, Nevada, New Mexico, and West Virginia.  (In West Virginia, the fine cannot exceed $5,000.)

Other states have imposed other kinds of monetary penalties.

For example, the Rhode Island Supreme Court removed a former judge from office and ordered him to reimburse the state the portion of his salary that reflected the times he left court to go to a casino and gamble while the court remained open for judicial business.  In re Lallo, 768 A.2d 921 (Rhode Island 2001).  Rejecting his argument that the Court did not have the authority to impose a civil sanction in a disciplinary action, the Court concluded that restitution was consistent with its “authority to recommend remedial measures necessary to effectuate the statute.”

In In re James, 821 N.W.2d 144 (Michigan 2012), the Michigan Supreme Court removed a judge from office for, in addition to other misconduct, misappropriating public funds.  Directing the Judicial Tenure Commission to submit a bill of costs, the Court stated that it could include the amount that the judge had misappropriated that should have been allotted to victim restitution.

Pursuant to a stipulation, a former judge agreed to make restitution to a public university for the amount he received as compensation for teaching a class despite an advisory opinion stating that such employment was inconsistent with the state constitutional provision making full-time judges ineligible for other public employment; the Washington State Commission on Judicial Conduct also publicly admonished him for the teaching and for discussing legal representation with persons while a judge but after announcing his resignation.  In re Moberg, Stipulation and Agreement (Washington State Commission on Judicial Conduct August 6, 1993).

In addition to suspending a judge without pay for 3 months, the Pennsylvania Court of Judicial Discipline ordered him to pay restitution to a defendant for the legal expenses he incurred when the judge issued a result of a “stay-away” order against him at the request of acquaintance without conducting an evidentiary hearing or providing notice.  In re DeLeon, 967 A.2d 460 (2008), 2009 Pa. Jud. Disc. LEXIS 2 (Pennsylvania Court of Judicial Discipline 2009).

Recently, however, the Mississippi Supreme Court refused to order a judge to “make whole” an incapacitated ward who had been deprived of at least $23,000 in part because the judge, without holding a hearing or requiring testimony from a representative of the ward’s interests, had signed an order authorizing a payment to the contractor who was building an accessible home for her without evidence that the estate was at fault for the alleged loss of $23,000 worth of tools.  Commission on Judicial Performance v. Shoemake, Opinion (Mississippi Supreme Court April 14, 2016).  The Court did suspend the judge for 30 days, reprimand him, and fine him $2,500.  In an opinion dissenting in part, 2 justices argued that those sanctions did not account for the fact that the judge’s negligence and inattention had cost the ward at least $23,000 that she was unable to recuperate.  In response, the majority reiterated “that the Court issues sanctions to maintain the dignity of the judiciary and to guard against future excesses, not to punish individual judges” and cited a 1982 decision in which it had rejected a Commission recommendation of “a restitutionary payment” because restitution is not one of the sanctions permitted by the constitution.  The dissent responded that the earlier case had not addressed “restitution from the standpoint of protection of the public” and that the Commission then had “recommended that a justice court judge be assessed civil costs for the procedure he used in collecting bad checks, an issue much different from the one presently before us.”