Private dispositions

Most judicial conduct commissions can dispose of a matter with a private sanction or informal resolution if there is evidence of misconduct, but the misconduct does not warrant a public sanction.  Depending on the state, these private dispositions are called:

  • Dismissals with caution, admonition, explanation, concern, or warning,
  • Letters of admonition, counsel, caution, advice, or correction, or
  • Private censures, reprimands, admonitions, or warnings.

Some states have more than one category of private disposition.

These types of remedies are usually used if:

  • The misconduct is a single, isolated act that is not likely to be repeated,
  • The misconduct did not involve dishonesty, deceit, fraud, or misrepresentation,
  • The misconduct did not substantially prejudice a litigant or other person,
  • The judge has acknowledged the misconduct and agreed to comply with the code in the future,
  • The judge has not previously been disciplined for the same misconduct, and
  • The judge has not recently been disciplined for other misconduct.

Failure to enter a timely ruling in 1 or 2 cases, for example, is a common subject for a private sanction or caution.

In an informal disposition, a commission:

  • Reminds the judge of ethical responsibilities,
  • Gives authoritative advice,
  • Expresses disapproval of the behavior,
  • Warns that further complaints may lead to more serious consequences,
  • Suggests that other actions would have been more appropriate in the situation,
  • Cautions the judge not to engage in specific behavior in the future, and
  • Recommends that the judge obtain counseling or education.

Although informal dispositions and private sanctions are confidential, several commissions publish on their web-sites redacted versions of dismissals with comment (Arizona), private reprimands (Kentucky), private warnings, admonitions, and reprimands (Texas), and private warnings (Vermont).

In addition, approximately 10 judicial conduct commissions include in their annual reports summaries of private resolutions in addition to statistics of complaint dispositions, descriptions of public cases, and explanations of commission procedures.

For example, in its recent annual report, the California Commission on Judicial Performance summarized the 11 private admonishments and 23 advisory letters that became final in 2018.  It explained that the summaries omit some facts to maintain confidentiality, which makes them “less informative than they otherwise might be,” but that, “because these summaries are intended in part to educate judges and the public, and to assist judges in avoiding inappropriate conduct, the commission believes it is better to describe the conduct in abbreviated form than to omit the summaries altogether.”

For example, the Commission privately admonished:

  • A judge who failed to diligently monitor social media associated with the judge’s name, disregarded court directives regarding the setting of hearings, inappropriately handled a business transaction on the court’s behalf, made undignified, overly personal remarks to a member of court staff, and had a private conversation with an attorney that created the appearance of impropriety.
  • A judge who accepted an improper gift from an attorney and failed to disclose the gift when the attorney appeared before the judge and failed to disclose or disqualify when another attorney with whom the judge had a personal relationship appeared.
  • A judge who made remarks that gave the appearance that the judge was trying to dissuade an attorney from filing a statement of disqualification for cause, reflected poor demeanor, and gave the appearance of bias and embroilment.
  • A judge who included gratuitous, inaccurate information about a litigant in a recusal order.
  • A judge who, on the record during proceedings, mentioned information received ex parte about one of the litigants without providing the litigant an opportunity to be heard; made gratuitous and discourteous remarks in open court; and described personal experiences on the record.

In privately cautioning a judge, the New Mexico Judicial Standards Commission makes no findings of wrongdoing but expresses its concern “that if true, the conduct may violate or may lead to a violation of the Code if not raised with the judge.”  According to its 2018 annual report, the Commission cautioned 6 judges, for example, a judge who allegedly failed to provide an interpreter for a Spanish-speaking defendant, a judge who allegedly made disparaging and/or condescending comments to an attorney, a judge who allegedly ruled based on a coin toss, and a judge who allegedly engaged in an ex parte communication with an assistant district attorney regarding scheduling without promptly notify defense counsel.

In addition, the Commission disposed of 3 inquiries through informal remedial measures.  For example, a judge who allegedly criticized a jury verdict in the presence of the jury successfully completed an informal mentorship and agreed to receive a letter of caution.

The Arizona Commission on Judicial Conduct typically includes advisory language with a dismissal “when a judge has not technically violated the Code but members believe the judge could benefit from advice about a particular Code-based issue.”  According to its annual report in 2018, the Commission privately advised 13 judges, for example:

  • To be cautious about clerks’ use of the judge’s signature stamp;
  • To avoid using terms of endearment with litigants; and
  • To ensure that all parties understand the judge’s policies for bench conferences to avoid the appearance that ex parte communications are occurring.

The Commission generally issues warnings when “a judge either came close to violating the Code or when a technical violation has occurred, but members conclude that mitigating circumstances dictate against issuance of a public sanction.”  In 2018, the Commission privately warned 12 judges, for example:

  • For making derogatory comments about an elected official during a court proceeding;
  • For improper demeanor, giving legal advice to litigants, and interrupting court business to conduct a wedding;
  • For using a court computer to access restricted file materials in a family member’s case with the family member’s consent;
  • For using the judicial title to further a personal business;
  • For seeking the endorsement of a law enforcement association for a re-election campaign and using a court computer for campaign activities; and
  • For issuing an order including facts not supported by the record.

The Pennsylvania Judicial Conduct Board issues a letter of counsel as a private admonition when there is sufficient evidence of judicial misconduct to file formal charges but mitigating or extenuating circumstances weigh against the filing of formal charges; a judge must accept a letter of counsel and appear before the Board’s Chief Counsel.  The Board issues a letter of caution as a private warning of potential judicial misconduct.  Its 2018 annual report includes examples of the type of conduct addressed by letters of caution, such as:

  • A judge became frustrated at a party’s in-court antics and failed to allow the party and party’s counsel to present a case.
  • A judge referred to a witness for the prosecution as a “liar” and otherwise attempted to cast doubt on the witness’ credibility throughout the jury charge.
  • In response to an unjustified complaint, a judge engaged in “petty retaliation” against a member of the judge’s office staff.
  • After recusing from several cases due to a prior relationship with a litigant, a judge selected his own replacement.
  • A judge routinely had lunch in public with attorneys who had matters pending before him.
  • A judge presided over a preliminary arraignment and preliminary hearings on criminal cases when the judge was Facebook friends with the victim, the victim’s mother, the victim’s grandparents, and the arresting officer.
  • A judge used inappropriate language when addressing a female defendant at her sentencing hearing.
  • While presiding over a sentencing hearing, a judge spoke about and in front of the defendant in a demeaning and inappropriately harsh manner.
  • While campaigning door-to-door, a judicial candidate accepted a $100 cash donation from a constituent.
  • A judge failed to secure proper coverage for his district court, failed to be available to police officers and his court clerks, repeatedly arrived late at court, and failed to train and supervise newly hired court clerks.

The 2018 annual report of the Minnesota Board on Judicial Standards gave a sample of the 4 private admonitions and 9 letters of caution it issued in 2018.  For example, a judge was privately admonished for serving during a hearing as the lawyer for the respondents, who were the judge’s relatives; making statements that, at a minimum, vouched for their character without being under subpoena; and testifying about the judge’s personal observations about the facts of the case.  The Board cautioned, for example, a referee who admitted referring to an attorney in court as “that sleazy attorney” and “that blood sucking attorney,” intending “to be humorous and put people at ease.”

 In its annual report, the New York State Commission on Judicial Conduct briefly described the 20 letters of dismissal and caution issued in 2018.  For example, the Commission cautioned judges for:

  • Failing to deposit court funds in a timely manner;
  • Serving as a board member for a group that regularly appeared in his court;
  • Engaging in isolated and relatively minor instances of unauthorized out-of-court communications with a party in a pending case;
  • Campaigning for a judicial and a non-judicial position simultaneously; and
  • Failing to record all court proceedings as required.

 The Texas State Commission on Judicial Conduct summarized private reprimands, admonishments, and warnings issued its annual report for fiscal year 2018.  For example, the Commission privately admonished:

  • A judge who discussed with his granddaughter’s previous employer her wish to be rehired and gave the employer a business card identifying him as a judge; and
  • A judge who, during a criminal trial, repeatedly interrupted a defense attorney during her examination of witnesses and tried to direct the form and substance of her questioning, and, after the defense attorney briefly stepped out of the courtroom, remarked in front of the jury that he would have preferred her to remain out of the courtroom.

The Colorado Commission on Judicial Discipline annual report for 2018 summarized the private sanctions and dismissals with concern issued by the Commission.  For example, the Commission privately censured a relatively new judge for docket and calendar mismanagement that resulted in burdensome caseloads on magistrates and other judges, for excessive absenteeism for extra-judicial activities, and for inappropriate demeanor with staff and judicial colleagues.  According to the report, “the disciplinary process proved to be a constructive measure that resulted in the improvement of the judge’s docket management and demeanor.”

In its annual report 2018, the Massachusetts Commission on Judicial Conduct described 2 complaints that were dismissed with expressions of concern following an investigation.  In 1 complaint, a self-represented party had alleged that a judge treated him discourteously and failed to grant him a full opportunity to be heard.  The investigation, which included reviewing the audio record of the hearing, reviewing the docket sheet, and interviewing the judge, “revealed that the judge did adopt a somewhat discourteous tone during the hearing” but did not reveal that the judge failed to grant the party a full opportunity to be heard.  Although it dismissed the complaint, the Commission expressed “its concern to the judge that, in the future, he remain patient and courteous toward all parties appearing before him.”  An investigation of an anonymous complaint revealed that a judge made comments directed at the parties that could have been reasonably perceived as discourteous and/or condescending; the Commission dismissed the complaint while expressing its concern to the judge regarding those comments.

According to its 2018 annual report, the Michigan Judicial Tenure Commission privately admonished, for example:

  • A judge who used her position to promote a novel she had written;
  • A judge who reacted very aggressively and engaged in a shouting match with a disrespectful defendant, using profanity and otherwise being intemperate;
  • A judge who twice called the officer in charge of a homicide case to advocate for the return of the defendants’ property;
  • A judge who called the sheriff’s department and ordered that his daughter be released from custody after she had been arrested after midnight for driving under the influence; and
  • A judge who in interviews sharply and disrespectfully criticized another judge’s sentence in a high-profile criminal case, after the sentencing but before the time to file a notice of appeal had expired.

There are tables that identify the private dispositions and public sanctions available in judicial discipline proceedings in each state on the Center for Judicial Ethics web-site.

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 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 . . . .”