Belated remorse

In determining the appropriate sanction in discipline proceedings, whether a judge is repentant is treated as a predictor of whether the judge is likely to re-offend. There are cases in which a judge’s prompt acknowledgement of responsibility has made the difference between removal from and remaining on the bench. In 2014, however, remorse was too little, too late to prevent the removal of two judges.

The Indiana Supreme Court removed a judge for substantial administrative failures, inappropriate demeanor toward attorneys and court employees, and retaliating when she thought court staff had complained to or cooperated with the Commission on Judicial Qualifications. In the Matter of Brown, 4 N.E.3d 619 (Indiana 2014). The Court found “particularly egregious” that 10 defendants were not released from jail until three to 22 days after they should have been as a result of the judge’s failure to complete necessary paperwork and to adequately train and supervise court staff.

The Court stated that the judge’s post-hearing apology was “entitled to little mitigating weight” because she made it after putting “the Commission to its burden of proof at a lengthy hearing” and after failing to cooperate in the Commission investigation, including refusing to take an oath at her deposition. Also in aggravation, the Court noted that the judge “was not a novice” and others in the court system had attempted to assist her. “Regrettably,” the Court concluded, the judge’s “pattern of neglect, hostility, retaliation, and recalcitrance toward investigating officials indicates an unwillingness or inability on her part to remedy deficiencies, alone or with others’ assistance.”

The Florida Supreme Court removed a judge for operating a for-profit business from her chambers on official time and using judicial resources and her judicial assistant; offering to sell the business’s products (books) in the courthouse to lawyers who appeared before her and courthouse employees; promoting the sale of the books on a web-site that included photographs of her in her robes; failing to pay state sales tax on the book sales and to register the name of her business under the fictitious name law; and a lack of candor during the investigation. Inquiry Concerning Hawkins, 151 So. 3d 1200 (Florida 2014).

The Court noted that the judge had not accepted responsibility for her actions or acknowledged their impropriety until her response to the Court’s second order to show cause why she should not be removed. The Court concluded that her belated apology when faced with removal “fails to overcome the grievous nature of her conduct during this proceeding, which was ‘fundamentally inconsistent with the responsibilities of judicial office’ and which ‘struck at the heart of judicial integrity.’” Thus, it concluded, her “prior record of service and good intentions” did not outweigh her misconduct.

2014 sanctions

In 2014, as a result of state disciplinary proceedings, 123 or former judges in 34 states were publicly sanctioned.

• 10 judges (or former judges in two cases) were removed from office
• One judge was suspended without pay until the end of her term and censured
• Two judges were retired due to disabilities
• One former judge was permanently barred from judicial office and censured
• 14 judges resigned or retired in lieu of discipline pursuant to public agreements with conduct commissions
• 95 additional judges (or former judges in approximately 17 cases) received other public sanctions. Approximately half of the sanctions were entered pursuant to the judge’s agreement

Of those 95 judges,

  • 16  were suspended without pay for from 30 days to one year
  • 15 were publicly censured
  • 39 were publicly reprimanded
  • 16 were publicly admonished
  • Five received other sanctions (a private reprimand made public pursuant to the judge’s waiver, a public warning, a private warning made public pursuant to a finding of discretionary disclosure, a letter of informal adjustment, and a one-year law license suspension for a judge whose judicial position does not require a license)
  • Four former judges were disciplined for their conduct as judges in lawyer discipline proceedings (one disbarment, one indefinite suspension of law license, one six-month suspension, one four-month suspension)

(There is one case included in the count for  which the time for review has not yet expired; if the judge asks for review, the number of admonishments will be reduced by one.)

Too little, too late

Each year, 10-12 judges are removed as a result of state discipline proceedings for a wide variety of reasons. But one aggravating factor present in many of the cases is a lack of candor and contrition, whatever the underlying misconduct may be. In the latest example, last week, the Florida Supreme Court removed a judge for operating a for-profit business from her judicial chambers and related misconduct — including her conduct during the disciplinary proceedings.

The judge had given materially misleading and incomplete statements during her deposition, refused to answer relevant questions during the investigation, and refused to turn over relevant documents even after being ordered to do so. “Especially distressing,” the Court stated was the judge’s deletion of “financial data in the early morning hours of the day of her deposition” after that data had been subpoenaed and the judge had agreed to produce it. The Court emphasized:

Compliance with the law includes compliance with the rules of procedure that govern this proceeding and with the lawful orders of the Investigative Panel and the Hearing Panel. Noncompliance, obfuscation, and avoidance of those rules and orders are not justified by a judge regardless of whether the judge personally believes the investigation is unwarranted. . . .

In defending her conduct, Judge Hawkins asserted that her faith instructed her to hold fast to her innocence and “fight the good fight.” We agree with the Commission that obfuscation and frustration of proper discovery, and refusal to answer questions posed by the Investigative Panel, Judicial Qualifications Commission counsel, the Investigator, and the Hearing Panel, do not constitute fighting the “good fight.”

Noting that in other cases it had given favorable consideration to a judge’s acceptance of responsibility for his or her actions, the Court stated that Judge Hawkins “did not show acceptance of responsibility for her actions, or acknowledge their impropriety, until her response to the second order to show cause why removal from office is not the appropriate sanction.”

Only in her final words in that response did Judge Hawkins state “I apologize to the Investigative Panel of the [Florida Judicial Qualifications Commission] for my responses, to all of the people that were affected by my actions, and to all the Justices of this Court.” While this statement extends an apology, albeit a belated one given only when faced with the possibility of removal, it fails to accept responsibility for her actions or acknowledge their impropriety. Further, Judge Hawkins’ apology fails to overcome the grievous nature of her conduct during this proceeding, which was “fundamentally inconsistent with the responsibilities of judicial office” and which “struck at the heart of judicial integrity.”

It is impossible know whether the judge would still be in office had she not displayed “an extreme lack of candor,” but cooperation and explanation (not necessarily confession) are obviously the better defense and more consistent with the trust a judge should show in due process.

Three removals

Thursday October 30 was a busy day in judicial discipline as, coincidentally, three decisions were handed down that either removed a judge from office, suspended a judge without pay until the end of her term, or affirmed a removal.

The Florida Supreme Court removed a judge for operating a for-profit business from her judicial chambers using official time and judicial resources plus related misconduct that included a lack of candor during the investigation, for example, deleting in the early morning hours before her deposition financial data had been subpoenaed and she had agreed to produce.

The West Virginia Supreme Court of Appeals suspended a judge without pay until the end of her term (the Court does not have the authority to remove judges) for having an affair with the director of the community corrections program while he and his subordinates routinely appeared in her courtroom without disclosing the relationship to any defendant plus related misconduct.

The Pennsylvania Supreme Court affirmed without opinion the decision of the Court of Judicial Discipline removing a judge for lying repeatedly about his qualifications and other facts on the questionnaires he submitted to the Philadelphia Bar Association Commission on Judicial Selection and Retention while running for judicial office and twice being held in contempt in a court case arising from a Philadelphia Board of Ethics complaint against a PAC he represented and, to avoid paying a court-ordered fine, dissipating the PAC’s funds and engaging in delay, obfuscation, and deceit.

In lieu of discipline

After several years of news reports about possible investigations that accelerated in the last few weeks, Pennsylvania Supreme Court Justice Seamus McCaffery has retired. Pursuant to a limited waiver of confidentiality, the Judicial Conduct Board announced that it will dismiss its investigations of Justice McCaffery based on his retirement and agreement not to seek senior judge status or future election to judicial office. The Board explained:

Pursuant to its constitutional mandate, the Judicial Conduct Board has been investigating allegations involving Justice McCaffery for several months, including some of very recent origin which have been disclosed in the media.

If the Board were to continue its investigations and institute proceedings against Justice McCaffery in the Court of Judicial Discipline, and if it were to sustain its heavy burden of proof on any charge, the most serious sanction that could be imposed is removal from office and a bar to holding judicial office in the future. Since Justice McCaffery has retired and has agreed not to seek senior judge status and not to again seek elective judicial office, the Board has concluded that it is in the best interest of the judiciary and the judicial system of the Commonwealth to dismiss its investigation into the matters specifically referred to in the Supreme Court’s now-vacated order of October 20, 2014.

On October 20, the Pennsylvania Supreme Court had relieved Justice McCaffery “on an interim basis of any and all judicial and administrative responsibilities” with pay based on circumstances that “have been the subject of intense media attention.” According to the order, the allegations included that the justice may have contacted a traffic-court official regarding a traffic citation issued to his wife, may have authorized his wife, who is also his administrative assistant, to accept hundreds of thousands of dollars in referral fees from plaintiffs’ law firms, may have attempted to exert influence over a judicial assignment on the Philadelphia common pleas bench, and may have exchanged hundreds of sexually explicit e-mails with members of the state office of attorney general.

Although the Board’s statement does not indicate whether it dismissed the investigations pursuant to an agreement with the justice conditioned on his retirement and agreement not to serve, such resolutions of judicial conduct complaints are not unusual. In each of the last six years, there have been at least 10 resignations or retirements in lieu of discipline pursuant to public agreements in which the conduct commissions agreed to dismiss pending complaints against judges. For example, in 2012, 24 judges—more judges than any other year—resigned or retired and agreed not to serve in judicial office in the future pursuant to such agreements, including eight in Georgia, five in New York, four in New Mexico, and three in Texas. As the Texas agreements note, the agreements are entered into because both the commission and the judge “are desirous of resolving these matters without the time and expense of further proceedings.

So far in 2014, there have been 10 such dispositions, including a high profile one in which the New York State Commission on Judicial Conduct, accepting a stipulation and based on the judge’s affirmations that he will relinquish his judicial position on December 1 and will not seek judicial office in the future, concluded a matter involving the administrative judge for the criminal courts of New York City, who waived confidentiality to the extent that the stipulation could become public. The stipulation stated that, in May, the Commission had authorized an investigation of allegations that the judge had advised, assisted, and participated in the then-district attorney’s 2013 re-election campaign (which he lost); engaged in improper ex parte communications with the district attorney and others regarding pending matters; and advised the district attorney about managing the district attorney’s office, including strategies on responding to criticism of prosecutions that purportedly resulted in wrongful convictions. Those allegations were part of a report on the former district attorney by the New York City Department of Investigation that found the judge had sent about 300 e-mails to the district attorney from his judicial account.

Judges and domestic violence

Several reporters have called the Center for Judicial Ethics to ask how many judges have been removed for domestic violence since the arrest of Judge Mark Fuller, U.S. District Court for the Middle District of Alabama, on battery charges for allegedly beating his wife in an Atlanta hotel room and his subsequent plea agreement to pre-trial diversion.

No federal judges have been removed or even impeached for domestic violence, although it is not clear whether that means it is not considered an impeachable defense or whether the question has not arisen because no other federal judge has been charged with domestic violence or any judges so charged have resigned or retired before impeachment could be considered.  The Federal Judicial Center has a list of impeachments.  There have been 15 impeachments of federal judges in the country’s 225 years; only eight led to conviction and removal; four of the other judges were acquitted, and three resigned so the articles of impeachment were dismissed.  The Center is not aware of any cases in which federal judges have been publicly disciplined for domestic violence.  The U.S. Court of Appeals for the 11th Circuit has ordered that all cases pending before Judge Fuller be immediately re-assigned to other judges and that no new legal matter be assigned to him.  According to news reports, Judge Fuller has been asked to explain his conduct to the Chief Judge, and a nine-judge committee has been appointed to handle the investigation, the first steps in the federal judicial discipline process.

There have been state judges or former judges publicly disciplined for domestic violence, although none have been removed, at least in the last 24 years.  A list of those cases is below.

The Georgia Judicial Qualifications Commission, with the consent of the judge, made public the fact that it had privately reprimanded a judge but not the content of the reprimand.  The report of disposition states that the Commission matter originated with media reports that the judge had been arrested based on allegations he engaged in a physical altercation with his wife.  Subsequently, the judge and the special prosecutor agreed that the charges would be dismissed based upon his pre-trial diversion agreement to attend marital and stress counseling.  In re Weaver, Report of Disposition (Georgia Judicial Qualifications Commission July 18, 2012) (www.gajqc.com/news.cfm).

Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly censured a former judge for committing domestic battery against his now ex-wife and having been convicted of the charge arising from the incident; the Commission also prohibited him from seeking and accepting judicial office in Nevada for four years.  He lost his re-election bid.  In the Matter of Abbatangelo, Findings of Fact, Conclusions of Law, Consent Order of Discipline (Nevada Commission on Judicial Discipline March 30, 2011) (http://judicial.state.nv.us/Finding%20of%20Fact–Abbatangelo%202011.pdf).

The Ohio Supreme Court suspended a judge’s license to practice for one year, but stayed the suspension with conditions, for two convictions of disorderly conduct because of physical altercations with his girlfriend.  Disciplinary Counsel v. Russo, 923 N.E.2d 144 (Ohio 2010).

Adopting the presentment of the Advisory Committee on Judicial Conduct to which the judge had consented, the New Jersey Supreme Court censured a former judge for domestic violence and causing a motor vehicle accident while driving in an intoxicated condition.  In the Matter of Paragano, Order (New Jersey Supreme Court January 30, 2007).

Approving a consent to censure based on stipulated facts, the Oregon Supreme Court publicly censured a judge who had pled guilty to assault for recklessly causing physical injury to his wife and entered into the domestic violence deferred sentencing program.  In re Moultrie, 139 P.3d 955 (Oregon 2006).

Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a part-time judge who had angrily confronted his wife, waved a knife close to her throat, and threatened to run her through.  In the Matter of Roepe, Determination (New York State Commission on Judicial Conduct June 27, 2001) (www.scjc.state.ny.us/).

The Washington Supreme Court censured a former judge and suspended him from office until the end of his term for intentionally striking or pushing his wife, causing her to fall.  The court also ordered that the judge complete a domestic violence program before he could serve in any future judicial capacity.  In the Matter of Turco, 970 P.2d 731 (Washington 1999).

Pursuant to a stipulation in which the judge admitted the allegations of the complaint filed by the Judicial Commission, acknowledged that he had no defense to those allegations, and agreed that the court might impose an appropriate sanction, the Wisconsin Supreme Court publicly reprimanded a former judge for battering his wife and causing her bodily harm.  The judge had run for re-election after the conduct had occurred and was defeated.  In the Matter of Crivello, 564 N.W.2d 785 (Wisconsin 1997).

In a stipulation and agreement between the Washington State Commission on Judicial Conduct and a judge who had twice intentionally struck and caused bodily harm to his then-spouse and entered a plea of guilty to two counts of assault, the judge agreed and stipulated to resign and terminate his judicial duties no later than December 1, 1993.  He also agreed not to seek or serve in any judicial office in Washington unless the Supreme Court granted a petition for reinstatement of eligibility.  In re Perkins, Stipulation and Agreement (Washington State Commission on Judicial Conduct October 21, 1993) (www.cjc.state.wa.us).

Mentorships

The Minnesota Board on Judicial Standards recently announced that it has initiated a mentorship program. The Board noted that, in the past, it rarely appointed mentors but that it has done so three times in 2014, in two matters that also included public reprimands and in one that involved a private admonition. It explained:

The Board’s focus is not to simply discipline a judge who has committed misconduct but also, if it appears the judge needs assistance in addressing the causes of the misconduct, to attempt to provide that assistance.

The current program involves the continuing participation of both a designated Board member and a mentor. The mentor is a judge or retired judge selected by the mentee judge and the Board. The mentor observes the mentee judge in court, meets with the judge, and offers guidance and support.

After the mentorships have been completed, the Board will ask both the mentors and the mentees for their reactions and suggestions. At this point, it appears that the mentorship program is working well.

In one of the two recent public cases noted by the Board, the judge was reprimanded for failing to follow the law in six cases, improper ex parte orders in four cases, chronic tardiness and related misconduct, and discourtesy to court staff. The Board required the judge to submit a plan to address the causes of his misconduct as well as to identify a mentor who will file reports on his progress with the Board.

In the second case, the Board publicly reprimanded a judge for failing to supervise his law clerk and approving inaccurate time sheets, refusing to allow a defendant to withdraw his plea, trying a defendant in absentia, and discourtesy to a psychologist. The Board required the judge to identify a mentor, complete an anger management program or therapy, and write a letter of apology to the psychologist.

Others commissions and courts also occasionally impose mentorships on judges in discipline proceedings, including two other examples so far in 2014.

When the Vermont Supreme Court publicly reprimanded a judge for a 14-month delay in scheduling a hearing on a grandfather’s motion to terminate a father’s parental rights, it approved conditions imposed by the Judicial Conduct Board, noting they were thoughtful and “tailored to avoid a recurrence of the failures that occurred in this case. . . .” The Board had required that the judge engage in a 12-month mentoring program with another probate judge and develop plans to ensure prompt scheduling and issuance of written decisions.

The Texas State Commission on Judicial Conduct ordered a judge to obtain four hours of instruction with a mentor judge, particularly in the area of receiverships, when it publicly admonished him for (1) granting non-delegable judicial powers to a receiver in a divorce case and (2) making a disproportionately high percentage of indigent court appointments to one attorney.  During the Commission proceedings, the judge had explained that the divorce case that was the subject of the complaint was the first case in which he had had to appoint a receiver and that was his only experience in that area of the law.

Mentorships may also be used in confidential dispositions of judicial conduct complaints. For example, in its most recent annual report, the New Mexico Judicial Standards Commission stated that, since its establishment in 1986, it has referred 83 judges for mentorships as part of informal dispositions.

Reprimand vs. censure

Numerous news stories covered the Montana Supreme Court’s censure of Judge Todd Baugh 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. (The judge will also be suspended without pay for the last month of his term, December 2014.)  Many of those stories used the terms “reprimand” and “censure” interchangeably. (See this article, for example.) Although the dictionary definitions suggest the terms are synonymous, in the judicial discipline context, they are different, and what the judge received was the harsher sanction of censure.

The rules of the Montana Judicial Standards Commission define the distinction. A public reprimand by the Montana Supreme Court “declares a judge’s conduct unacceptable under one of the grounds for judicial discipline but not so serious as to warrant a censure,” while a public censure is “a public declaration by the Supreme Court that a judge is guilty of misconduct that does not require suspension or removal from office.” All states (except Oklahoma) provide for some type of oral public reproof of a judge, with most having several options — from warning to admonishment (or admonition) to reprimand to censure — to reflect different degrees of misconduct and the presence of aggravating and mitigating circumstances.

Defining the sanction options is a best practice to help the public understand judicial discipline outcomes but has been adopted in only a handful of states. For example, in 2013, at the recommendation of the Judicial Discipline and Disability Commission, the Arkansas Supreme Court adopted definitions of the available sanctions for Arkansas judges. Those definitions are:

“Informal Adjustment” is a sanction for conduct that is cause for discipline but falls short of conduct that is cause for formal discipline. The purpose is to inform the respondent judge of an issue of concern, remind a judge of ethical obligations, recommend changes in behavior or procedures, or suggest an appearance of impropriety that could be avoided.

“Admonishment” is more corrective than an Informal Adjustment. Conduct also falls short of conduct that is cause for formal discipline. An expression of disapproval of a judge’s conduct, and may contain a proscription to follow a corrective course of conduct, and may direct professional treatment, counseling, or assistance.

“Reprimand” is a formal sanction of a judge for violating the Code of Judicial Conduct. It is a rebuke for one or more violations that does not require censure. A reprimand usually involves an isolated incident or behavior that can be easily corrected. It could involve misconduct that is more serious but the judge presented substantial mitigating factors.

“Censure” is a formal sanction for violating the Code of Judicial Conduct. It is a declaration that a judge is guilty of misconduct that does not require suspension or removal. A stern rebuke that finds the conduct of the judge violates a rule of judicial conduct, detrimentally affects the integrity of the judiciary, and undermines public confidence in the administration of justice. It could involve misconduct that is more serious but the judge presented substantial mitigating factors. A censure may include a requirement that the judge follow a specified corrective course of action. A censure also serves as a public warning to other judges.

“Suspension with Pay” is a decision by the commission that must be reviewed and affirmed by the Supreme Court. Recommendation by the commission to suspend a judge, with or without pay, is based on serious misconduct that merits more than a censure but less than removal. This sanction is flexible, and there are no restrictions on the length of a suspension. It can be imposed for egregious or repetitive conduct. It could involve misconduct that is more serious but the judge presented substantial mitigating factors. A suspension may require that the judge follow a specified corrective course of action before being reinstated.

“Suspension without Pay” is a decision by the commission that must be reviewed and affirmed by the Supreme Court. Recommendation by the commission to suspend a judge, with or without pay, is based on serious misconduct that merits more than a censure but less than removal. This sanction is flexible, and there are no restrictions on the length of a suspension. It can be imposed for egregious or repetitive conduct. It could involve misconduct that is more serious but the judge presented substantial mitigating factors. A suspension may require that the judge follow a specified corrective course of action before being reinstated.

“Removal from Office” is decision by the commission reviewed and affirmed by the Supreme Court, to permanently remove a judge for extreme or gross misconduct involving a judge’s integrity, fitness for office, substantial harm to public confidence and trust, damage to the reputation of the judiciary, or ability to perform judicial duties. Mitigating factors, if any, presented by the judge were unable to affect the decision to remove the judge from office. The judge is no longer eligible to be elected, appointed, or otherwise serve in the judiciary of the State of Arkansas.

 

Determining the appropriate sanction

Recently the Wyoming Commission on Judicial Conduct and Ethics adopted a new rule providing that, in determining the appropriate sanction, an adjudicatory panel of the Commission may consider the following, nonexclusive factors:

(A) the nature, extent, and frequency of the misconduct;
(B) the judge’s experience and length of service on the bench;
(C) whether the conduct occurred in the judge’s official capacity or private life;
(D) the nature and extent to which the acts of misconduct injured other persons or respect for the judiciary;
(E) whether and to what extent the judge exploited his or her position for improper purposes;
(F) whether the judge has recognized and acknowledged the wrongful nature of the conduct and manifested an effort to change or reform the conduct;
(G) whether there has been prior disciplinary action concerning the judge, and if so, its remoteness and relevance to the present proceeding;
(H) whether the judge complied with prior discipline or requested and complied with a formal ethics advisory opinion;
(I) whether the judge cooperated fully and honestly with the Commission in the proceeding; and
(J) whether the judge was suffering from personal or emotional problems or physical or mental disability or impairment at the time of the misconduct.

The rule also notes that “the ABA Standards for Imposing Lawyer Discipline may be considered.”

Thus, Wyoming becomes the 6th or so commission to adopt such a list (others include Arizona, California, Tennessee, Utah, and Washington). Many states supreme courts have also identified relevant factors in the sanction determination, following the lead of the Washington Supreme Court in In re Deming, 736 P.2d 639 (Washington 1987).

For example, in Coffey’s Case, 949 A.2d 102 (New Hampshire 2008), noting that the Judicial Conduct Committee “is required to consider each case using only a limited body of precedent, the Code and its own conscience as guidance,” the New Hampshire Supreme Court stated “that a ‘framework is needed to ensure a level of consistency necessary for fairness to the public and the legal system’” and that “articulating a set of principles to govern judicial discipline matters” will “better enable the JCC to ensure that equivalent cases are treated in an equivalent manner . . . [and] ‘will allow this Court to more meaningfully review the [JCC]’s disciplinary recommendations.’” The Court noted the American Judicature Society study of all public judicial conduct decisions between 1990 and 2001 that distilled the factors most commonly considered. Finding that the “study is comprehensive and the factors it articulates encapsulate the myriad of considerations relevant to the sanction inquiry,” the Court adopted the five factors identified in the AJS Study: “(1) ‘[t]he nature of the misconduct’; (2) ‘[t]he extent of the misconduct’; (3) ‘[t]he judge’s culpability’; (4) ‘[t]he judge’s conduct in response to the [JCC]’s inquiry and [the commencement of] disciplinary proceedings’; and (5) the judge’s reputation and record on the bench.'”

While unanimity on the appropriate sanction is never guaranteed, a consistent application of identified factors increases the chances of agreement or at least enhances public understanding of why a particular sanction was imposed.