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.”


2015 State judicial discipline sanctions

In 2015, as a result of disciplinary proceedings, 115 judges in 27 states were publicly found to have committed misconduct.

  • 9 judges were removed from office, including 1 former judge and 1 judge who was removed for a mental disability. A $3,500 fine was also imposed in one of the removal cases.
  • 2 judges were retired due to permanent disabilities.
  • 19 judges or former judges resigned or retired in lieu of discipline pursuant to public agreements with conduct commissions.
  • 85 additional judges (or former judges in approximately 10 cases) received other public sanctions. Approximately half of the sanctions were entered pursuant to agreement.
    • 15 judges were suspended without pay.
      • 1 suspension was for 180 days
      • 1 for 4 months plus a reprimand
      • 2 for 90 days
      • 1 for 60 days plus a censure
      • 1 for 30 days plus a reprimand and $10,000 fine
      • 1 for 30 days plus a reprimand and $1,000 fine
      • 1 for 30 days plus a censure
      • 4 for 30 days (or 1 month)
      • 1 for 15 days
      • 1 for 7 days
      • 1 for 2 years but stayed on condition the judge commit no further misconduct
    • 11 judges were publicly censured (1 censure was severe and 1 was based on the judge’s irrevocable resignation).
    • 31 judges were publicly reprimanded (1 reprimand also included a cease and desist order, 2 included orders of additional education).
    • 17 judges were publicly admonished (1 admonishment also included an order of additional education).
    • 3 judges received public warnings (2 warnings also included orders of additional education).
    • Civil penalties were imposed on 2 judges for failing to file their financial disclosure reports.
    • 1 judge was placed on supervised probation with other conditions, including a formal mentorship until the end of her term.
    • 1 private reprimand and 1 private letter of counsel were made public pursuant to the judges’ waivers.
    • 1 former judge’s law license was suspended for 1 year in attorney discipline proceedings for her conduct as a judge.
    • 2 judges were found to have violated the code of judicial conduct but no sanctions were imposed.

Clear erosion of public confidence

Since the June 20014 videotape of Judge John Murphy threatening to commit violence against an assistant public defender went viral, the only question has been the appropriate sanction; the judge admitted the facts and was remorseful about his misconduct, which also included resuming his docket while defendants were without counsel.  The hearing panel of the Judicial Qualifications Commission recommended that he be suspended without pay for 120 days, publicly reprimanded, fined $50,000 plus costs, and required to continue to participate in a mental health therapy program and to complete judicial education courses.  The Florida Supreme Court disagreed, however, and last week removed him from office.  Inquiry Concerning Murphy (December 18, 2015).

On June 2, 2014, the judge had a verbal altercation with assistant public defender Andrew Weinstock after Weinstock refused to waive speedy trial for his client.  The judge stated, “You know if I had a rock, I would throw it at your [sic] right now.  Stop pissing me off.  Just sit down.”  When Weinstock refused to sit down, asserting his right to stand and represent his clients, the judge shouted, “I said sit down.  If you want to fight, let’s go out back and I’ll just beat your ass.”  The 2 men left the courtroom and met in the hall.

Although there is no video of the events in the hallway, the courtroom audio captured the judge remarking, “Alright you, you want to fuck with me?” and sounds of a scuffle.  A deputy separated them.  Weinstock requested that the judge be arrested for hitting him twice in the face, but no arrest was made.  There was no evidence, other than his testimony, that Weinstock had been hit.  The hearing panel found that there was no clear and convincing evidence that the judge struck Weinstock and could not determine which of them initiated physical contact.

The Court noted it examined judicial misconduct for present fitness to hold office “’from two perspectives:  its effect on the public’s trust and confidence in the judiciary as reflected in its impact on the judge’s standing in the community, and the degree to which past misconduct points to future misconduct fundamentally inconsistent with the responsibilities of judicial office.’”  It concluded:

Focusing first on the effects on the public’s trust in the judiciary, we must conclude that Judge Murphy is not presently fit to serve.  Judge Murphy used profanity in an open courtroom and threatened violence against an attorney appearing before him.  This is the sort of egregious conduct that erodes the public’s confidence.  It is without question that except for the June 2, 2014, incident, Judge Murphy has been a good judge.  Notwithstanding his prior judicial performance, Judge Murphy’s total lack of self-control became a national spectacle—an embarrassment not only to the judge himself but also to Florida’s judicial system.  Given the clear erosion of public confidence in the judiciary caused by his misconduct, removal is an appropriate sanction.

* * *

On June 2, 2014, Judge Murphy threatened an assistant public defender with violence in open court, challenged him to a physical fight, engaged in the threatened struggle in which the two men had to be physically separated by a deputy, and reassumed the bench to handle cases where the defendants were without the presence of their attorney.  Because of Judge Murphy’s appalling behavior, we conclude that there is clear and convincing evidence that Judge Murphy engaged in “conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office.” . . .  Judge Murphy’s conduct is fundamentally inconsistent with the responsibilities of judicial office and necessitates his removal.  “[T]hrough his own actions culminating in the misconduct in this case, Judge [Murphy] has lost the public’s confidence in his ability to perform his judicial duties in a fair, evenhanded, and even-tempered manner.”

The Murphy case will no doubt be one of the “Top Judicial Ethics Stories of 2015” discussed during a free webinar presented on Friday January 15, 2016, from 12:00 p.m. to 1:00 p.m. central time by the National Center for State Courts Center for Judicial Ethics.  The webinar will review the 2015 cases and developments in judicial ethics and discipline that grabbed the headlines and illuminated current and recurring issues in judicial conduct, including Facebook and e-mail, campaign fund-raising, gay marriage, and appropriate sanctions.  SpeakersColin Winchester, Executive Director, Utah Judicial Conduct Commission * Cynthia Gray, Director, Center for Judicial Ethics, National Center or State Courts.  The webinar is free, but you must sign up ahead of time.  Click this link to sign up:  If you have any questions, contact Lauren Roberts at


Deceitful, calculated, and unseemly

Adopting findings of fact by 3 special masters who presided over a hearing, the California Commission on Judicial Performance removed a judge for authoring and showing to his courtroom clerk an anonymous letter accusing her of infidelity in order to promote a closer personal relationship with her; engaging in a course of conduct, including texts and gifts, intended to promote a closer personal relationship with her; and related misconduct.  Inquiry Concerning Saucedo, Decision and order (December 1, 2015).

On September 17, 2013, an anonymous letter was delivered to the judge’s home accusing his courtroom clerk of having an affair with a court bailiff.  The “crude and vile” letter was purportedly a copy of a letter addressed to the clerk’s husband at the hospital where he worked.  The next day, the judge called the clerk into his chambers, told her to close the door, and showed her the letter.  The clerk began crying and said she needed to report the letter to court administration or law enforcement.  The judge responded that she could not “tell anybody” about the letter and claimed she could be fired if she reported it.  The judge said that, if she trusted him completely, he would call her husband’s employer and ensure the letter would be intercepted.  Later, the judge told the clerk that, when he called the hospital, “John,” the human resources manager, told him the anonymous letter was sitting on his desk and that “John” had shredded the letter during their phone conversation.  In his testimony and in his verified answer, the judge acknowledged that he had not attempted to contact anyone at the husband’s place of employment and that he made these false statements to make the clerk “feel better.”

In the 2 months following the letter, the judge sent the clerk about 445 texts, many “overly personal and emotional,” and gave her gifts, including flowers, $9,200 in cash, payment of a $533 car repair bill, a trip to Disneyland for the clerk and her family worth $3,202, and a BMW sedan worth $15,000.  The judge used the anonymous letter to pressure the clerk when she sought to distance herself from him, for example, stating “Do you want your husband to find out about the letter?”

Although the judge’s misconduct is unusual, even given the wide variety of misconduct for which judges can and have been disciplined, there is one factor in the case that is present in many removal decisions – a lack of candor in the discipline proceedings.

For example, the judge denied writing the anonymous letter.  The Commission, however, found that the judge did write the letter and mailed it to himself as part of a “predesigned plan to manufacture the clerk’s dependence on him, hoping it would lead to a closer personal or ‘emotional’ relationship with [the clerk].”  The Commission stated that the judge’s actions after receiving the letter – falsely telling the clerk he had contacted her husband’s employer and demanding that she tell no one about it – “make sense only if he was the author” and, therefore, could be certain that the letter would never be received by [the husband] and that there were no security concerns associated with [the husband] receiving the letter.”

The Commission also rejected the judge’s claim that he intended only to “mentor” the clerk by helping her with her finances.

Mentoring involves advice, direction, referrals and encouragement.  As stated by the special masters, “Mentoring is not accomplished by providing a subordinate with thousands of dollars in gifts, including a BMW car and vacation,” an offer to pay for body sculpting” or expecting a ‘special’ friendship in exchange.”

Further, the overly personal and emotional language the judge used in his text messages and notes to [the clerk] is far from the type of supportive but professional communication one would expect in a mentoring relationship (i.e., “It’s silly but still feeling under appreciated”; “I, too, am human and have an ego.  Feel free, if you wish, to compliment me if you like things I do or wear”).  Further, the judge repeatedly stated and suggested that he wanted a closer or “special” relationship with [the clerk] in exchange for his “gifts,” something that would not be expected or appropriate in a mentoring relationship (“If you want me to be an ordinary friend like I was before September, I will provide only moral support.  But if you want me for a special friend, everything is on line with full financial and moral support going forward.  Special friend means you want to make time and effort to share thoughts and experiences with me”; telling [the clerk] that his accountant questioned why he was buying her all of these gifts and whether this was a “one sided friendship”).

Further, the Commission adopted the masters’ credibility determination that, when the judge’s testimony conflicted with the clerk’s, the clerk’s testimony was credible and her version of events was true.  The clerk’s testimony was consistent with and corroborated by documentary evidence, including her text messages and notes and letters given to her by the judge, and she recalled numerous details that “coincided with, and were substantiated by, the content and timing of the documents.”  In contrast, the judge’s testimony was often inconsistent with his text messages and notes, documents he signed, and his prior statements.  The Commission also relied on the masters’ finding that “the manner in which Judge Saucedo testified – failing to answer direct questions, providing nonresponsive and sometimes rambling answers, and answering with irrelevant points – created significant doubts as to the truthfulness of his answers.”

It is impossible to know whether the judge could have preserved his career by more candor and less deceit, but it seems likely given the significant mitigating factors; the Commission acknowledged his lack of prior discipline and his many contributions “to his community and the legal profession, and to promoting diversity on the bench and in the legal profession.”  However, the Commission concluded:

The deceitful, calculated, and unseemly nature of the judge’s misconduct, compounded by his lack of candor in response to the commission’s investigation and untruthful testimony under oath before the masters compels our decision to remove Judge Saucedo from office.  We recognize Judge Saucedo is a well-respected jurist who has devoted many hours to giving back to the community.  Nonetheless, his reputation cannot redeem the seriousness of his wrongdoing, nor obviate the need for removal in order to fulfill our mandate to protect the public and maintain public confidence in the integrity of the judiciary.


Flouting deterrence

Deterring similar conduct has been cited as one of the purposes of judicial discipline.  See, e.g., In re Peck, 867 P.2d 853 (Arizona 1994); In re Cox, 658 A.2d 1056 (Maine 1995); In re Hathaway, 630 N.W.2d 850 (Michigan 2001); In re Miera, 426 N.W.2d 850 (Minnesota 1988); In re Krepela, 628 N.E.2d 262 (Nebraska 2001); In re O’Dea, 622 A.2d 507 (Vermont 1993); In the Matter of Turco, 970 P.2d 731 (Washington 1999).

Further, the lack of prior judicial precedent indicating particular conduct was unethical has been considered a mitigating factor in judicial discipline proceedings.  See Commission on Judicial Performance v. Dodds, 680 So. 2d 180, 200 (Mississippi 1996).

A recent removal case illustrates the first concept and applies the flip-side of the second.  The Minnesota Supreme Court removed a judge for failing to reside within his judicial district and making a knowingly false statement regarding his residency in his affidavit of candidacy.  Inquiry into the Conduct of Pendleton (October 14, 2015).

The Court noted that, in 2011, it had suspended a judge without pay for 6 months for failing to comply with the constitutional residency requirement and making an affirmative misrepresentation and material omissions to the Board on Judicial Standards.  Inquiry into Karasov, 805 N.W.2d 255 (Minnesota 2011).  The Court concluded that Judge Pendleton’s misconduct was substantially more serious than Judge Karasov’s misconduct.

When we suspended Judge Karasov, we expressed our “lack of tolerance for a judge’s failure to comply with her constitutional obligations” and for a judge’s failure to act honestly and candidly with the Board. . . .  Just 2 years after we gave this clear warning and despite being fully aware of our decision in Karasov, Judge Pendleton deliberately chose to reside outside of his judicial district for even longer than Judge Karasov did. . . .  Judge Pendleton consciously disregarded both his constitutional obligations and our decision in Karasov.

The Court emphasized:

The integrity of the judicial system is seriously undermined when a judge not only violates his or her constitutional obligations [regarding residency] but also flouts a discipline decision of our court. . . . .  The public’s trust and confidence in the Minnesota judiciary will be eroded if the disciplinary system is unable to deter similar acts of serious misconduct by other judges. . . .

The Court also stated that the context in which the judge made the knowingly false statement about his residency was “especially troubling,” concluding “the integrity of the judiciary is severely undermined if a judge deceives voters by falsely representing that he or she satisfies a constitutional requirement to hold office.”

From the totality of the circumstances, the Court held that removal was required.

Judge Pendleton committed two very serious violations.  Each of his violations severely undermines the public’s trust in their judicial system.  When we assess Judge Pendleton’s violations and the cumulative impact his misconduct has on the public’s faith in the integrity of the judicial system, we conclude that the sanction of removal from office is the only sanction adequate to ensure that the people of Minnesota can have continued faith in the integrity of their justice system.

Not just a slap on the wrist

Before oral arguments on June 3, Florida Supreme Court Chief Justice Jorge Labarga called Judge Jessica Recksiedler to the podium and, on behalf of the Court, publicly reprimanded her for giving incomplete and inaccurate answers in interviews with a judicial nominating commission.  The reprimand was in accordance with a previous order approving a stipulation, findings of fact, and recommended discipline.  Inquiry Concerning Recksiedler, 161 So. 3d 398 (Florida 2015).

The Chief Justice began by remarking to the judge about “how sad a day this is for you, for us, and for the entire judicial system.”  Noting that the reprimand “is being broadcast throughout the state,” he explained, “it is one way we can assure the public that we take ethical misconduct by a judge very seriously and that we will not hesitate to punish errant judges in a most public way.”  He then described the judge’s misconduct and the conclusions of the Judicial Qualifications Commission and the Court.  Encouraging the judge to review the Court’s prior judicial discipline decisions, the Chief Justice noted that a number involved a single violation with no subsequent misconduct and expressed the Court’s hope that “this will also be the case with you.”  He concluded by emphasizing that the Court’s decisions indicate that “a second ethical breach will be viewed much more harshly.”

The reprimand lasted for over 5 minutes and can be viewed here.  (Since 1997, the Court’s oral argument proceedings have been televised, recorded, and archived by WFSU-TV.)

The Florida Court’s practice of ordering judges to appear before it for a reprimand has been in place since at least 2000.  In Inquiry Concerning Frank, 753 So. 2d 1228 (Florida 2000), the Court explained that it had “come to conclude that when the conduct of a jurist is so egregious as to require a public reprimand, such reprimand should be issued in person with the defaulting jurist appearing before this Court.”

The practice is not widespread in judicial discipline proceedings, but Florida is not unique.  For example, last July, Chief Justice Mike McGrath called Judge Todd Baugh to the rostrum in the Montana Supreme Court courtroom and delivered the Court’s public censure, in accordance with its previous opinion, for his comments in sentencing a teacher for sexual intercourse without consent with a 14-year-old student, imposing an unlawful sentence, attempting to retract his sentence, and making inappropriate public statements attempting to justify his actions.  He was also suspended for 31 days without pay.  Inquiry Concerning Baugh, 334 P.3d 352 (Montana 2014).  A video of the reprimand proceedings was published by the Billings Gazette here.

In some states, an in-person public reprimand is administered locally.  For example, the Chief Judge of the Appalachian Judicial Circuit recently administered a public reprimand to County Probate Judge Pamela Wooley in open court at the Habersham County Courthouse.  Pursuant to the judge’s agreement, the reprimand and a 4-month suspension without pay had been ordered by the Georgia Judicial Qualifications Commission for failing to complete a mandatory mentoring program but certifying that she had.  The Commission’s rules define a public reprimand as “a public communication administered by a judicial officer which declares a judge’s conduct unacceptable under one of the grounds for judicial discipline but not so serious as to warrant a censure” (emphasis added).

The Mississippi Supreme Court’s judicial discipline decisions also reflect a policy requiring the in-person administration of a public reprimand.  For example, when it ordered Judge Neil Harris reprimanded and fined him $2,500 for abusing his contempt powers, based on an agreed statement of facts and joint recommendation, the Court ordered that “the public reprimand shall be read in open court by the presiding judge of the Jackson County Circuit Court on the first day of the next term of that court in which a jury is present after the issuance of this court’s mandate, with Judge Harris in attendance.”  Commission on Judicial Performance v. Harris, 131 So. 3d 1137 (Mississippi 2013).

Rule 6e of the Washington State Commission on Judicial Conduct provides that a “judge shall personally appear before the commission to receive an order imposing a reprimand or a censure.”

All states (except Oklahoma) have a sanction option such as reprimand, admonition, or censure (or sometimes a combination), although in most states the reproof is administered in writing, published on a web-site or in an official report.  A recently up-dated list of judicial discipline sanctions available in the states is now on the Center for Judicial Ethics web-site here.  “Determining the Appropriate Sanction” will be one of the topics at the 24th National College on Judicial Conduct and Ethics, October 28-30, 2015 in Chicago.  Examining recent judicial discipline cases, the session will review the criteria for imposing sanctions and discuss issues such as the relevance of a judge’s failure to express remorse and when removal is appropriate.  Participants will “vote” on what sanctions they would have imposed in actual judicial discipline cases.  Registration is now available.

Baseline responsibility

Maintaining consistency in sanctions between judicial discipline cases is always important but usually difficult because there is a wide range of misconduct, a variety of possible sanctions, and a small number of cases in each state.  Convictions for drunken driving, however, permit comparison, facilitating sanction parity.

At least 31 states have imposed public discipline on judges who have driven drunk.  Whether the other 19 states have not had a case involving drunken driving or have disposed of such cases privately cannot be determined.  Any state supreme court or conduct commission that does not impose public discipline for drunken driving risks the charge that it does not take that conduct seriously, an attitude that conflicts with the public policy for non-judges.  Rejecting an argument that a private reprimand was appropriate when the judge had shown contrition and pled guilty to first offense DWI, for example, the Mississippi Supreme Court held that “the position he enjoys as a sitting Judge requires that the resolution of this matter be known to the public.”  Commission on Judicial Performance v. Thomas, 722 So. 2d 629 (Mississippi 1998).

Similarly, the New Jersey Supreme Court explained in a judicial discipline case:  “We do not view offenses arising from the driving of an automobile while intoxicated with benign indulgence.  They are serious and deeply affect the safety and welfare of the public. . . .  They are not victimless offenses.”  In the Matter of Collester, 599 A.2d 1275 (New Jersey 1992).  Thus, the Court has several times publicly reprimanded judges who pled guilty to or were convicted of driving while intoxicated, but it has also censured judges whose conduct was aggravated because they left the scene of an accident or failed to cooperate with the police, and suspended a judge without pay for his second drunken driving offense.

In its 2012 annual report, the New York State Commission on Judicial Conduct emphasized that “DWI is a significant social problem” and described the evolution of its treatment of alcohol-related offenses.

Thirty years ago, a judge who committed such an offense, where there were no aggravating factors, may have received no more than a private caution or reprimand, even if the alcohol-fueled incident was a matter of public record. . . .

In recent years, the Commission has censured a number of judges who were guilty of driving while impaired or intoxicated, with the majority at times indicating that the more stringent sanction of suspension would be appropriate were the Commission authorized to impose it, and with some dissenters voting in favor of removal.

In the appropriate case, the Commission will not hesitate to impose the sanction of removal.

In most states, the baseline sanction for drunken driving is the lowest level of public sanction (usually a reprimand or admonition), but a more severe sanction is imposed if there are aggravating factors, such as an attempt to get out of the DWI charge by referring to the judicial office.  Michigan is an exception in that its standard sanction is harsher, a 90-day suspension without pay and censure, with the length of the suspension increased to 180 days if there are aggravating factors.  There were 9 public sanctions of judges for drunken driving in 2014.

Educate and assist

Ten or so judicial conduct commissions summarize private actions in their annual reports, in addition to reporting statistics and describing public cases.  The California on Judicial Performance is one of those commissions, and it has released its annual report for 2014.  Like all commissions every year, it dismissed most complaints (1,131 out of 1,174) because they “alleged legal error not involving misconduct or expressed dissatisfaction with a judge’s decision” or an “investigation showed that the allegations were unfounded or unprovable, or the judge gave an adequate explanation of the situation.”  Two judges resigned or retired during investigations.  The Commission publicly admonished 3 judges and publicly censured 2 judges.

In addition, the Commission privately admonished 9 judges and sent advisory letters to 29.  Although the summaries of those 38 actions omit the judge’s name and other details, the Commission includes them in the annual report “to educate judges and the public, and to assist judges in avoiding inappropriate conduct.”  (Summaries of private discipline from prior years are available on the Commission’s web-site.)  The summaries of the 9 private admonishments for 2014 are:

  1. In pretrial and jury trial proceedings in a criminal case involving a pro per defendant, the judge made comments disparaging the defendant and the defendant’s defense, made a statement reflecting bias against pro per defendants, and sometimes appeared to assume a prosecutorial role in questioning the defendant. In another criminal case, the judge engaged in a pattern of discourteous treatment toward defense counsel, and asked a witness a question that created the appearance that the judge was not impartial and was biased against the defendant.
  2. After a prospective juror failed to return to court during jury selection, the judge held the juror in contempt without giving the juror an opportunity to explain or apologize. There were aggravating factors.
  3. A judge made a gratuitous disparaging remark about a defendant in a criminal matter. There were aggravating factors.
  4. In numerous cases, mostly involving pro per litigants, the judge injected the judge’s personal views or made remarks that were discourteous or created the appearance that the judge was acting as an advocate or lacked impartiality. There were mitigating factors, including corrective measures taken by the judge to change the judge’s behavior.
  5. A judge threatened to report an attorney to the State Bar without a valid basis. In another case, the judge failed to disclose information relevant to the issue of disqualification.  The judge also left court early on multiple occasions to play sports.
  6. A judge issued a restraining order in a confidential matter without jurisdiction over the restrained individual and without affording due process. The judge later engaged in an improper discussion of the matter with a non-party.  In another case, the judge made a comment that conveyed the impression that a defendant’s employer was in a position to influence the judge.  In other proceedings, the judge made discourteous remarks to litigants or to counsel.
  7. Without jurisdiction, a judge required an attorney to appear in the judge’s courtroom for an unauthorized proceeding, at which the judge failed to advise the attorney of the nature of the proceeding or of the attorney’s rights.
  8. A judge issued what was tantamount to a restraining order against an individual over whom the judge lacked jurisdiction, without providing the individual notice or an opportunity to be heard. At a later hearing at which the order was rescinded, the judge made a statement that created the appearance that the judge was requiring a party to accept responsibility for the restrained individual’s future conduct in exchange for rescinding the restraining order.  The judge also made a remark at the hearing reflecting gender bias.
  9. A judge’s handling of an administrative matter gave rise to an appearance of partiality.

The Commission explains that, “private admonishments are designed in part to correct problems at an early stage in the hope that the misconduct will not be repeated or escalate, thus serving the commission’s larger purpose of maintaining the integrity of the California judiciary.  The commission may consider private discipline in subsequent proceedings, particularly when the judge has repeated the conduct for which the judge was previously disciplined.”  The annual report also includes summaries of the 29 advisory letters, which are issued when the impropriety “is isolated or relatively minor,” “the judge has demonstrated an understanding of the problem and has taken steps to improve,” “there is an appearance of impropriety,” or “there is actionable misconduct offset by substantial mitigation.”

The other state commissions that summarize private dispositions in their annual reports are the Arizona Commission on Judicial Conduct, the Kansas Commission on Judicial Qualifications, the Massachusetts Commission on Judicial Conduct, the Minnesota Board on Judicial Standards, the New Mexico Judicial Standards Commission, the New York State Commission on Judicial Conduct, the Pennsylvania Judicial Conduct Board, the Texas State Commission on Judicial Conduct, and the Utah Judicial Conduct Commission.

Déjà vu

Beginning with the Yogi Berra quote, “’Déjà vu all over again,’” the Iowa Supreme Court recently explained that it expected “lawyers and judges to learn from their mistakes.  When a judicial officer repeats violations of the same ethical rules, sanctions can escalate.”  Thus, it publicly reprimanded a part-time judge for a “second warrant related transgression,” instead of the private admonition the judge had received seven years ago.  In the earlier case, the judge had signed a search warrant for the home of a woman he had sued on behalf of a client he represented in a custody dispute; the subsequent conviction had had to be overturned because his conflict invalidated the warrant.  In the second case, the judge had signed a search warrant for the home of a client (the suspect was her son) whom he represented in a custody dispute.  Rejecting the judge’s argument, the Court concluded that he should have learned from the first case “to recuse himself from any search warrant application targeting someone who is a party in a case in which he is counsel of record.”

The Washington State Commission on Judicial Conduct recently publicly reprimanded a judge for telling a defendant his fedora would be removed if he did not provide support for his statement that wearing the fedora was part of his Jewish faith, an escalation from its 2006 public admonishment of the same judge for requiring a woman, who was attending court in support of a relative, to remove the head scarf she wore for religious reasons or leave his courtroom.

In three cases in 2014, that a judge had received a previous sanction – proximate in time and/or related in subject to the subsequent misconduct — was a significant aggravating factor in the judge’s removal (although not the only one).

In In re McCree, 845 N.W.2d 458 (Michigan 2014), the Michigan Supreme Court emphasized in removing a judge that his willingness to engage in a sexual relationship with a complaining witness in a case pending before him while the Judicial Tenure Commission was investigating other allegations “demonstrates the extent of his disregard for the rules of judicial conduct.”

In April 2012, the judge had told a reporter, “There is no shame in my game” about a picture of himself shirtless he had sent to his bailiff via cell phone.  The Commission began investigating and eventually the Court censured the judge (with his consent) for bringing “shame and obloquy” to the judiciary by his flippant manner in the interview.  In re McCree, 821 N.W.2d 674 (Michigan 2012).

In May 2012, the judge began a sexual relationship with the complaining witness in a case in which the defendant was charged with failure to pay her child support.  The judge did not transfer the case to another judge until September.

The New York Court of Appeals removed a judge for presiding over matters involving (1) a lawyer who was her close friend and personal attorney (Lawyer A); (2) a lawyer who was her former attorney (Lawyer B); and (3) a lawyer who was or had been her campaign manager.  In the Matter of Doyle, 17 N.E.3d 1127 (New York 2014).  The Court emphasized the 2007 censure the judge had received from the State Commission on Judicial Conduct for her misleading and evasive testimony in its investigation of her role in a fund established to help pay for legal expenses of Lawyer A – an investigation in which she was represented by Lawyer B.  The Court concluded:

Without question, a heightened awareness of and sensitivity to any and all ethical obligations would be expected of any judge after receiving a public censure.  Petitioner’s failure to exercise that vigilance within just a year of her prior discipline is persuasive evidence that she lacks the judgment necessary to her position.

The Mississippi Supreme Court removed a former judge and fined her $1,000 for wrongfully incarcerating eight parents and three minors without affording them basic due process rights.  Commission on Judicial Performance v. Darby, 143 So. 3d 564 (Mississippi 2014).  The Court noted that in 2011 it had publicly reprimanded the judge and fined her $500 for depriving a parent of her constitutional right of due process.