Not “a normal working environment”

Stating that it took seriously its responsibility for setting precedent concerning sexual harassment, “to protect the public by sending a strong message to members of the judiciary that abusing the trust of public employees and the public at large will result in significant consequences,” the Ohio Supreme Court recently suspended a former judge indefinitely from the practice of law for his predatory sexual conduct and other misconduct.  Disciplinary Counsel v. Horton (Ohio Supreme Court October 10, 2019).  The Court did note that “an indefinite suspension may not be appropriate in all cases of sexual misconduct or harassment” but that it was appropriate “given the number of other violations, the harm to individual victims and to the public trust, the significant number of aggravating factors, and the limited mitigating evidence.”

The judge had served on the Court of Common Pleas from 2006 until he joined the 10th District Court of Appeals in 2015.  He resigned effective February 28, 2019.

The Court found that the judge, while on the trial court, “created an inappropriate atmosphere in his office by telling members of his staff they were sexy during the work day and commenting on the attractiveness of other employees.”  For example, he told M.B., a law student intern, that he had asked her to attend a meeting so that he would have “something pretty to look at.”  Several members of his staff believed they could not turn down the judge’s frequent invitations to go out for happy hour at bars when, he admitted, his behavior “was ‘rude’ and ‘obnoxious.’”  The Court found that the judge’s “conduct was beyond rude.”  For example, he told Emily Vincent, his staff attorney, that her tights were sexy and that he would get in trouble for telling her how he would make her over.

The Court also found that the judge’s behavior with M.B., who was 23 years old at the time, and his secretary Elise Wyant, who was 25, “was even worse.”

Following one happy hour, after M.B. had completed her internship, but while she was still a law student, she and Horton engaged in sexual conduct. . . .  On three other occasions, Horton encouraged his friends to touch M.B. inappropriately, and she was groped by his friends on at least two occasions, at Horton’s insistence.  Horton also repeatedly told Wyant that she “looked sexy” and that he wanted to “f**k” her.

M.B. described feeling as though the judge was grooming her.

Wyant admitted that she had joked with the judge and engaged in explicit sexual conversations with him.  When asked why, Wyant explained that was “the culture that he created in the office.”

“He would talk about things that—that he wanted to talk about, and so when, you know, I was talking about my personal life I took the direction from my leader and, you know, I would get personal with my stories, too.”

She described how she “came to realize that this—through conversations with friends and—like, this wasn’t normal, this wasn’t a—a normal working environment.  This culture that he created wasn’t a good one and it wasn’t professional at all.”

When M.B. was asked why she had consented to sexual conduct with the judge even though she did not want to, she explained:  “I felt like I had to do what Judge Horton wanted me to do.  And, you know, I think at the time, 23 at this point, like, I was naive, certainly, but I also think I was just doing the best that I could, you know.”  M.B. further explained:

[T]his is a person who has power over me and I have to go along with what he says.  And I don’t know, like, why I still trusted him, and thought, you know, it would be different, perhaps.  I still saw him as a mentor, which sounds ridiculous after he’s done these horrible things to me; right? . . .  It occurred so incrementally that you almost didn’t see it coming, you know, like you didn’t realize how bad the situation you were in until it was too late to do anything about it, you know.  And I—I think there was also, like, a lot of self-blame involved of, you know, it must be—it must be my fault because, like, he’s—he’s turned me into this sexual object, and so, like, this is just what I know and this is how it works, you know.

Rejecting the judge’s argument that Wyant and M.B. had consented to his sexual conduct and statements, the Court explained:

Even if Horton’s sexual misconduct was not criminal or did not create civil liability, the Code of Judicial Conduct does not merely proscribe crimes or discrimination—it recognizes the power and authority of judges and sets a higher standard.  It also does not police the conduct of judicial employees.  The Code of Judicial Conduct is specifically concerned with the actions of judges.  The issue is not whether Wyant objected to each of Horton’s inappropriate statements or acquiesced to the inappropriate culture Horton created at his office or if M.B. implicitly consented to his sexual conduct.  Horton engaged in sexual harassment in the performance of his judicial duties, abused the prestige of his office for his own personal interests, and acted in a manner that brings disrepute to the judiciary.

As a judge and a supervisor, Horton held a position of power over his staff and interns.  He repeatedly emphasized his power and the importance of loyalty to him.  And it seems to be no coincidence that Horton’s most egregious behavior occurred with and around the younger, less professionally experienced members of his staff who he could more easily manipulate.

Continuing to emphasize a judge’s responsibilities, the Court rejected the judge attempt to blame his staff for working on his campaign for the Court of Appeals during work hours and at public expense, using county resources.  The judge admitted that he had told his staff, “If you want to work on [the campaign], you want to volunteer, that’s great, you know I would appreciate it.”  Although the judge phrased the statement as an invitation and not a directive, his secretary and staff attorney testified that they did not feel comfortable not volunteering for his campaign.  His staff also testified that the judge asked them to conduct campaign business during hours when they would normally be performing county work.

The Court blamed the judge’s “decision not to keep a closer eye on his employees’ time or to create a stronger ethic of professionalism in the office,” noting that “the employees’ culpability is not at issue.”  The Court explained:

If a sitting judge chooses to allow public employees to volunteer to work on his or her campaign, it is incumbent upon the judge to uphold the integrity of the judiciary by imposing clear rules prohibiting campaign work on county time or using county resources and strictly enforcing those rules.  If a judge does not feel confident about his or her ability to make and enforce such rules, then the judge should not accept assistance from public employees.

The judge had also pled guilty in state court to 3 counts of causing inaccurate campaign finance reports to be filed with the secretary of state, admitting that he had reported expenditures that he knew were excessive and unreasonable.

“Transparency and a powerful disincentive”

Adopting the conclusions of a special committee, the 10th Circuit Judicial Council publicly reprimanded a U.S. District Judge for the District of Kansas for (1) giving preferential treatment and unwanted attention to female court employees through sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, often after work hours and late at night; (2) engaging in a years-long extramarital sexual relationship with a drug-using individual who was then on probation for state-court felony convictions and is now incarcerated for probation violations; and (3) being habitually late for court proceedings and meetings for years.  In re:  Complaint under the Judicial Conduct and Disability Act (Murguia), Order (Judicial Council for the U.S. Court of Appeals for the 10th Circuit September 30, 2019).  The Council also stated that, in a private letter, it was requiring the judge to take “certain corrective actions” to which he agreed.  The judge also agreed to waive his right to seek review of the order.  The special committee’s investigation included interviews with 23 people and a hearing at which the judge testified under oath.

(1) The committee found that the judge gave preferential treatment and unwanted attention to female employees of the judiciary “in the form of sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, much of which occurred after work hours and often late at night.  All of the harassed employees stated that they were reluctant to tell Judge Murguia to cease his behavior because of the power he held as a federal judge.  One of the employees eventually told him explicitly to stop his harassing conduct, but he continued.”

(2) The committee found that the judge “engaged in a years-long extramarital sexual relationship with a drug-using individual who was then on probation and is now incarcerated (because of probation violations) for state-court felony convictions.”  The Council stated that a judge’s sexual affair, even with a convicted felon, is not always misconduct but agreed with the committee’s finding that the judge “placed himself in such a compromised position that he made himself susceptible to extortion” and that “given the risk of extortion and potential for embarrassment to the Judiciary, Judge Murguia’s relationship implicates Code of Conduct Canons 1 and 2.”

(3) The committee stated that the judge has been habitually late for court proceedings and meetings for years, noting general agreement among witnesses that he “was frequently late for court proceedings, often requiring attorneys, parties, and juries to wait, and sometimes making attorneys late for proceedings in other courtrooms.”  The committee found that the judge’s regularly scheduled lunchtime basketball games was a repeated cause of his tardiness.  The committee noted that the judge’s tardiness persisted even though he had been “counseled about his tardiness fairly early in his federal judicial career . . . .”

The judge admitted that he engaged in the misconduct, apologized during the investigation and proceedings, and assured the Council that he would not engage in this or any other inappropriate conduct in the future.  The committee found no evidence that his misconduct continued after he was served with the complaint and noted he offered to take voluntary corrective action.

However, the Council noted, the judge had been less than candid with the committee, failing to disclose the extent of his misconduct when initially confronted with the allegations and admitting “allegations only when confronted with supporting documentary evidence.”  The Council concluded that “his apologies appeared more tied to his regret that his actions were brought to light than an awareness of, and regret for, the harm he caused to the individuals involved and to the integrity of his office.”  The Council emphasized that the judge’s misconduct “is very serious and occurred over a lengthy period.”

The Council found that the judge’s conduct “was too serious and the importance of maintaining the integrity of the Judiciary in the mind of the public too important for a private reprimand.”  The Council concluded that, although a “public reprimand may cause embarrassment to the Judiciary, misconduct that rises to this level calls for transparency and a powerful disincentive.”  Noting that a public reprimand is the most severe sanction available it could impose, the Council also concluded that the matter was “insufficient to recommend the Judicial Conference refer this matter to Congress for impeachment” “considering the statutory requirement for certifying a misconduct matter for impeachment, . . . and the applicable constitutional standard of ‘high Crimes and Misdemeanors.’”

With respect to the sexual harassment allegations, the Council cited several provisions in the Conduct of Conduct for U.S. Judges and the Rules for Judicial-Conduct and Judicial-Disability Proceedings that were part of “a package of workplace conduct-related amendments” adopted in March 2019 by the U.S. Judicial Conference.  The 10th Circuit cited:

Canon 3B(4):  “A judge should practice civility, by being patient, dignified, respectful, and courteous, in dealings with court personnel, including chambers staff.  A judge should not engage in any form of harassment of court personnel.  A judge should not retaliate against those who report misconduct.  A judge should hold court personnel under the judge’s direction to similar standards.”

Comment to Canon 3B(4):  “Under this Canon, harassment encompasses a range of conduct having no legitimate role in the workplace, including harassment that constitutes discrimination on impermissible grounds and other abusive, oppressive, or inappropriate conduct directed at judicial employees or others.”

Rule 4(a)(2)(A):  “Cognizable misconduct includes:  . . . engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment or assault.”

#MeToo and the judiciary

Top judicial ethics stories of 2018

The #MeToo movement to hold accountable people in authority (usually but not always men) for their sexual misconduct in the workplace began in October 2017 in Hollywood and has since spread to many other professions.  That the theme of “Time’s Up” would apply to the judiciary was clear by December 2017, with the publication of allegations about Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit.  As Chief Justice Roberts wrote in his 2017 Year-End Report on the Federal Judiciary:  “Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune.”

The timeline for the Kozinski scandal is:

2017

December 8
The Washington Post publishes an article entitled:  “Prominent appeals court Judge Alex Kozinski accused of sexual misconduct.”

December 14
Based on the news reports, the Chief Judge of the 9th Circuit identifies a complaint against Judge Kozinski under the Rules for Judicial Conduct and Judicial Disability Proceedings.

December 15
The Washington Post publishes a second article:  “Nine more women say judge subjected them to inappropriate behavior, including four who say he touched or kissed them.”

Chief Justice Roberts transfers the complaint against Judge Kozinski to the Judicial Council for the 2nd Circuit.

December 19
Judge Kozinski retires.

2018

February 5
Based on Judge Kozinski’s retirement, the 2nd Circuit Judicial Council concludes the complaint against him.

April 17
The U.S. Judicial Conference Committee on Judicial Conduct and Disability forwards a copy of the 2nd Circuit Judicial Council’s order to the House of Representatives Judiciary Committee chair and ranking minority member, the Speaker, and the minority leader.

December 10
Kozinski is co-counsel on a brief on behalf of the appellant filed in the 9th Circuit.


* * *
Apparently but not expressly prompted by the Kozinski revelations, in his 2017 year-end report, Chief Justice Roberts announced creation of a working group to examine the federal judiciary’s practices for investigating and correcting sexual harassment in the workplace.  The federal courts have assiduously kept the public informed of their progress:

March 13
The federal working group describes nearly 20 reforms and improvements that have been implemented or are under development.

May 1
Based on the work of its own committee, the U.S. Court of Appeals for the 7th Circuit adopts a “Policy on Equal Employment Opportunity, Discrimination, Harassment, and Employment Dispute Resolution.”

May 21
Based on the work of its own committee, the 9th Circuit Judicial Council adopts revised policies and procedures regarding workplace environment for all employees, including law clerks.

June 4
The federal working group issues a report with findings and recommendations to improve workplace conduct policies and procedures.

September 13
The U.S. Judicial Conference Committee on Codes of Conduct and Committee on Judicial Conduct and Disability publish for public comment proposed amendments to the Code of Conduct for U.S. Judges and to the Rules for Judicial-Conduct and Judicial-Disability Proceedings.  The Judicial Conference also approves changes to the judiciary’s model employment dispute resolution plan to cover interns and externs and to extend the time for initiating complaints from 30 to 180 days.

October 30
The committees hold a public hearing on the proposed changes to the code and the rules.

November 28
The D.C. Circuit adopts policies and procedures to improve the handling of and response to workplace misconduct issues.

December 4
The Administrative Office of the U.S. Courts appoints the first judicial integrity officer for the federal judiciary.

December 31
In his 2018 Year-End Report on the Federal Judiciary, Chief Justice Roberts provides an up-date on the working group’s efforts, endorses its recommendations, and explains that the proposals will be fine-tuned before the next meeting of the Judicial Conference in March 2019.

2019
March 12
The U.S. Judicial Conference approves “a package of workplace conduct-related amendments,” including amendments to the Code of Conduct for U.S. Judges, the Code of Conduct for Judicial Employees, and the Judicial Conduct and Disability Act Rules.

* * *
With respect to state courts, on January 31, 2018, the Conference of Chief Justices adopted a resolution encouraging “the judicial branch of each state, territory, and the District of Columbia to establish and maintain policies:  (1) to provide every judge and employee with training that addresses the various forms of workplace harassment, including sexual harassment, and related intimidation and reprisal that are prohibited by law; and (2) to establish procedures for recognizing and responding to harassment and harassment complaints.” Most states already had sexual discrimination and harassment policies, but some have recently adopted new or revised procedures or announced committees to make recommendations for up-dates.  So far:

  • The Chief Justice of the Alaska Supreme Court announced the creation of a working group to examine what changes are needed in the court system’s anti-sexual harassment policy and procedures.
  • The Arizona Supreme Court adopted a new section on discrimination and harassment to the Code of Judicial Administration.
  • The Chief Justice of the California Supreme Court created an 8-member working “group to study and make recommendations for how the judicial branch can prevent and address harassment, discrimination, or inappropriate workplace conduct.”
  • The Florida Supreme Court adopted “Sexual Harassment Policy and Procedures for Sexual Harassment Complaints against Justices and Judges,” replacing a policy adopted in 2004.
  • The New Jersey Supreme Court adopted a “Revised Judiciary Policy Statement on Equal Employment Opportunity, Affirmative Action and Anti-Discrimination.”

In October, the National Center for State Courts created a “repository for resources to assist the state courts in developing or updating training, policies, and procedures” regarding workplace harassment.

* * *
It is too early to tell whether the #MeToo movement will result in more judges being publicly disciplined for sexual harassment; even if there has been an increase in complaints about such conduct to conduct commissions since October 2017, many of those matters would still be in the confidential investigation phase, particularly if the allegations are extensive and disputed.

There were several resignations in 2018 that terminated investigations of workplace misconduct.

  • Based on a stipulation and the judge’s resignation and agreement not to serve in judicial office, the Indiana Commission on Judicial Qualifications concluded its investigation of allegations that a magistrate had inappropriate relationships with court employees and attorneys during court hours and on court property. In the Matter of Shoulders, Stipulation and agreement for resolution of investigation (Indiana Commission on Judicial Qualifications May 2, 2018).
  • According to the Omaha World-Herald, in February, a Nebraska Supreme Court justice resigned following a complaint to the Judicial Qualifications Commission; reportedly, the allegations were “in line with the national #MeToo movement,” and attorneys and former colleagues, including 2 women, told the newspaper that his judicial career “has been pocked with sexual comments to women.”
  • According to the Washington Post, the Maryland Commission on Judicial Disabilities told a former court administrative aide in January that it had decided to file charges based on her complaint that a trial judge had created a sexually charged work environment, but, in May, the Commission notified her that the charges were being “held in abeyance” in light of the judge’s announcement that he was retiring effective June 1.
  • Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against a judge it had begun investigating after receiving a letter from the judge’s attorney about events described in an article in D Magazine entitled “Ardor in the Court” about the judge’s alleged affair with an attorney who was serving as counsel for one of the parties in a high value probate matters over which the judge was presiding. Peyton, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct January 26, 2018).

There were several judges publicly sanctioned for sexual misconduct in the workplace in 2018.

  • The Kansas Commission on Judicial Qualifications ordered a former judge to cease and desist from verbal and/or physical conduct that is offensive and demeaning to female court reporters and judges and to continue his retirement without seeking election or accepting appointment to any judicial office. Inquiry Concerning Yeoman, Order (Kansas Commission on Judicial Qualifications February 7, 2018).
  • Accepting the parties’ stipulation of facts, the Massachusetts Supreme Judicial Court indefinitely suspended a judge without pay and publicly censured him for his sexual relationship with a member of the drug court team; the Court also ordered that a copy of its order be delivered to the governor and the legislature. In re Estes, Order (Massachusetts Supreme Judicial Court May 24, 2018).  The judge resigned after the decision.
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for hiring a woman with whom he had an intimate relationship and making inappropriate comments to her during office hours, in addition to other misconduct. Public Reprimand of Jasso and Order of Additional Education (Texas State Commission on Judicial Conduct April 18, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for engaging in an intimate relationship with the city’s prosecutor. Public Reprimand of Berry and Order of Additional Education (Texas State Commission on Judicial Conduct February 21, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for inappropriately touching another judge and 2 court clerks at a social function and sending the other judge an offensive text message, in addition to other misconduct. Public Reprimand of Williams (Texas State Commission on Judicial Conduct December 14, 2018).
  • Based on a stipulation and agreement, the Washington State Commission publicly admonished a judge for responding “nine inches” after a female court clerk stated, “I have a question for you” to him after a court session. In re Kathren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).

See also In re Complaint No. 05-18-90083, Memorandum (Judicial Council for the 5th Circuit November 9, 2018) () (finding that appropriate corrective action had been taken and concluding a proceeding against an unnamed magistrate judge for inappropriately pursuing social relationships with an attorney who practices before him and with a court employee).

Those cases do not necessary reflect an increase in discipline attributable to the #MeToo movement, however, because there are several such cases every year and, given the timing, most were likely initiated prior to October 2017.  See, e.g., “Sexual harassment:  Top judicial ethics and discipline stories of 2017,” Judicial Conduct Reporter (winter 2018).

There are currently several pending public judicial discipline proceedings with sexual misconduct allegations.

  • Based on a complaint by the Judicial Conduct Board, the Pennsylvania Court of Judicial Discipline has found that a judge committed misconduct by viewing images of naked and partially naked women while in his office, in addition to other misconduct. A hearing on sanctions will be scheduled.
  • Following a hearing, the Ohio Board of Professional Conduct has recommended that a court of appeals judge be indefinitely suspended for a pattern of inappropriate sexual comments and conduct with at least 2 members of his judicial staff in the workplace and outside of work, in addition to other misconduct.
  • In a notice of formal proceedings, the California Commission on Judicial Performance has alleged that a judge, in addition to other misconduct, engaged in a pattern of conduct towards a deputy public defender that was unwelcome, undignified, discourteous, and offensive and that would reasonably be perceived as sexual harassment or sexual discrimination, and made unwelcome, undignified, discourteous, and offensive comments, some of which would reasonably be perceived as sexual harassment or sexual discrimination, to and about other female attorneys who appeared before him and to and about other women who appeared or worked in his courtroom, including a court reporter and litigants.
  • In a notice of formal proceedings, the California Commission on Judicial Performance has alleged that a justice, in addition to other misconduct, engaged in a pattern of conduct that was unwelcome, undignified, discourteous, and offensive, and that would reasonably be perceived as sexual harassment or as bias or prejudice based on gender towards another justice on the court, California Highway Patrol officers assigned to the judicial protection section, court attorneys and other court personnel while on the California Court of Appeal and toward female court employees while a magistrate judge at the U.S. District Court for the Central District of California between 1999 and 2009.

 

Including but not limited to sexual harassment

Under the federal Civil Rights Act, sexual harassment is defined as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

However, “[a]lthough undoubtedly all forms of behavior that cross the legal threshold of sexual harassment would constitute judicial misconduct,” a judge’s “offensive interpersonal behavior” does not have to meet the definition of sexual harassment under federal or state law to violate the code of judicial conduct and warrant judicial discipline.  In the Matter of Seaman 627 A.2d 106 (New Jersey 1993).  Accord In re Barr, 13 S.W.3d 525 (Texas Review Tribunal 1998).

For example, the North Dakota Supreme Court rejected a judge’s argument that “concepts of sexual harassment under federal and state laws should govern any assessment of the evidence” in a judicial discipline case.  In the Matter of Corwin, 843 N.W.2d 830 (North Dakota 2014).  Noting “judicial disciplinary proceedings ‘are neither civil nor criminal,’” the Court stated that the code “does not require the establishment of sexual harassment under federal or state law.”  The Court suspended the judge from office for 1 month without pay for conduct toward his court reporter that she reasonably perceived as sexual harassment.

In In re Miera, 426 N.W.2d 850 (Minnesota 1988), the judge had argued that he should not be sanctioned because there had been no findings he had interfered with his court reporter’s employment or created a hostile work environment as required for a claim of sexual harassment under a state statute.  However, the Minnesota Supreme Court stated that the issue was not the judge’s “civil liability for damages but his ethical responsibilities as a judge.”  The Court concluded that the judge’s unsolicited sexual advances toward his court reporter had demonstrated a serious abuse of the power and suspended the judge for 1 year without pay for this and other misconduct.

Similarly, in Commission on  Judicial Performance v. Spencer, 725 So. 2d 171 (Mississippi 1998), the judge had argued that his treatment of the court clerk, 2 deputy clerks, and another judge did not constitute sexual harassment because he was not their supervisor and he had not threatened their jobs or engaged in other reprisals.  However, the Court held that the issue was not whether the judge’s offensive comments met the legal definition of sexual harassment but whether the comments constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute.  The Court removed the judge for this and other misconduct.

Although prior to 1990 the code of judicial conduct did not expressly refer to bias or harassment, sexual harassment obviously fell within other provisions:  however else it may be characterized, conduct such as inappropriate comments and touching demonstrates a failure to be “patient, dignified, and courteous,” to promote “public confidence in the integrity and impartiality of the judiciary,” and to “observe high standards of conduct.”

In 1990, a prohibition on manifesting bias was added to the American Bar Association Model Code of Judicial Conduct, and a comment to the rule stated that “a judge must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment . . . .”  Rule 2.3(B) of the 2007 model code states that “[a] judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment,” including but not limited to harassment based on sex or gender.  Comment 4 to that rule explains that “[s]exual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.”

Complainant anonymity in sexual harassment discipline

To encourage reporting of offenses and to protect a victim’s privacy, the New Jersey Supreme Court directed that the anonymity of the victim should be preserved in judicial discipline cases involving sexual harassment or similar conduct.  In the Matter of Seaman, 627 A.2d 106 (New Jersey 1993).  Thus, noting that sexual harassment “is personally offensive, highly invasive, psychologically hurtful, and often deeply embarrassing to the victim,” the Court referred to the complainant in the case by her initials in its decision.  It maintained the complainant’s anonymity even though her privacy had already been “shattered” because the Advisory Committee on Judicial Conduct had followed “conventional practice” and used her full name in its pleadings.  (The judge in that case had engaged in a pattern of sexually harassing behavior toward a female staff member, for example, boasting of his sexual prowess and touching her inappropriately.)  In a subsequent case involving a judge who made an unwanted advance to his law clerk, the Court explained it would follow its practice of using initials to designate the complainant even though her name was known to the public because of the publicity surrounding the matter and a civil lawsuit she had filed against the judge and the judiciary.  In the Matter of Subryan, 900 A.2d 809 (New Jersey 2006).  Accord In re Barr, 13 S.W.3d 525 (Texas Special Review Tribunal 1998) (referring to female attorneys to whom a judge made sexual comments and gestures by their initials to protect their privacy and encourage reporting even though the State Commission on Judicial Conduct had used their full names in its pleadings).

Similarly, in In re Iddings, 897 N.W.2d 169 (Michigan 2017), the Michigan Supreme Court redacted the name of the victim (the judge’s secretary), referring to her as Ms. *****, to protect her privacy.  See also In the Matter of LoRusso, Determination (New York State Commission on Judicial Conduct June 8, 1993) (referring to female court employees subjected to a course of uninvited sexual activity, touching, and crude and suggestive comments by a judge as Ms. A, Ms. B, Ms. C, and Ms. D).

Other cases refer to the subjects of the judge’s harassment simply as “complainant” or by job title, without using the person’s name.  See, e.g., Public Admonishment of Hiber (California Commission on Judicial Performance October 23, 1998) (describing inappropriate conduct by a judge towards his “courtroom clerk,” not identified by name); In the Matter of Corwin, 843 N.W.2d 830 (North Dakota 2014) (describing a judge’s conduct that could reasonably be perceived as sexual harassment of his court reporter without using her name); Office of Disciplinary Counsel v. Campbell, 623 N.E.2d 24 (Ohio 1993) (referring to each of 4 victims of a judge’s unwelcome and offensive sexual remarks and/or physical contact as “complainant”); In re Deming, 736 P.2d 639 (Washington 1987) (describing a “myriad of improper and offensive comments and sexual innuendos” by a judge to women, with specific examples in which the women are identified without names as an intern, a docket clerk, a deputy prosecutor, a probation officer, and a woman from the county department of assigned counsel).

In other cases, however, courts or commissions follow the usual practice and use the full names of the complainants when sanctioning a judge for sexual harassment.  See, e.g., In re Spurlock, Order (Illinois Courts Commission December 3, 2001) (intimidating and sexually inappropriate behavior toward 4 assistant state’s attorneys identified by name); In the Matter of Henderson, 343 P.3d 518 (Kansas 2015) (offensive and demeaning comments of a sexual nature to female attorneys and staff members identified by name); In re Alonge, 3 A.3d 771, (Pennsylvania Court of Judicial Discipline 2010) (conduct “akin to stalking” toward 4 female lawyers identified by name); In re Casey, Opinion (Texas Special Court of Review May 9, 2017) (identifying by full name the chief clerk with whom judge had improper sexual relationship).

 

Commitment, awareness, and training

On January 31, 2018, the Conference of Chief Justices passed a resolution “in support of commitment to awareness and training on workplace harassment” that encourages “the judicial branch of each state, territory, and the District of Columbia to establish and maintain policies:  (1) to provide every judge and employee with training that addresses the various forms of workplace harassment, including sexual harassment, and related intimidation and reprisal that are prohibited by law; and (2) to establish procedures for recognizing and responding to harassment and harassment complaints.”  The resolution also provides that the National Center for State Courts “shall create a repository of resources that address workplace harassment in the state courts, including model policies and procedures.”  The explanation for the resolution states:

  • WHEREAS, the Conference of Chief Justices is committed to the rule of law and to strict observance of laws relating to conduct in the workplace; and
  • WHEREAS, the Conference of Chief Justices has historically championed gender equity in the state courts and in 1988 passed a resolution urging each Chief Justice to establish separate task forces devoted to the study of gender bias in the court system and minority concerns as they relate to the judicial system; and
  • WHEREAS, recent events have raised public awareness of pervasive sexual harassment in the workplace in government, the media, and private industry; and
  • WHEREAS, State codes of judicial conduct require judges, in the performance of their judicial duties, not to manifest bias or prejudice or engage in harassment (including sexual harassment) and not to permit court staff, court officials, or others subject to the judge’s direction and control to do so; and
  • WHEREAS, a judicial disciplinary commission exists in every state to hold judges accountable; and
  • WHEREAS, as a separate branch of government, the judicial branch has the duty to protect its employees against harassment and intimidation in the workplace.

On February 7, in his State of the Judiciary Address, the Chief Justice of the Alaska Supreme Court advised the legislature that he is creating “a working group of judges, retired judges, law clerks, court staff, and court administrators to examine what changes are needed in the Court System’s anti-Sexual Harassment policy and procedures, and to make recommendations to ensure that the Court System’s policy and procedures reflect best practices.”  He noted that the Alaska Court System has had a “zero tolerance” anti-sexual harassment policy for years, which is provided to new employees, including judges, when they are appointed.  Although stating he was “unaware of any instance of sexual harassment committed by any sitting judge or other court employee,” the Chief Justice explained that, “in the light of the grim evidence of pervasive sexual harassment and assault we have seen in the last year, including that widely reported occurring in the federal courts, I am not so naive as to think it can’t happen here” and concluded “that the Court System must do more proactively to ensure that no court employee will be subjected to sexual harassment of any kind” and “to ensure an exemplary workplace for every judge and every court employee.”

In his 2017 Year-End Report on the Federal Judiciary, Chief Justice John Roberts stated that he has asked the Director of the Administrative Office to assemble a working group “to consider whether changes are needed in our codes of conduct, our guidance to employees—including law clerks—on issues of confidentiality and reporting of instances of misconduct, our educational programs, and our rules for investigating and processing misconduct complaints.”  The Chief Justice explained:

Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune.

. . .  These concerns warrant serious attention from all quarters of the judicial branch.  I have great confidence in the men and women who comprise our judiciary.  I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies.

The Chief Justice’s action followed news stories that Judge Alex Kozinski of the 9th Circuit had sexually harassed numerous clerks.

Below is a timeline of recent events regarding workplace harassment in the judiciary.

Sexual harassment and the judiciary timeline

12/8/2017       Washington Post publishes article, “Prominent appeals court Judge Alex Kozinski accused of sexual misconduct”

12/14/2017     Based on news reports, the Chief Judge of the 9th Circuit identifies a complaint against Judge Kozinski under the Rules for Judicial Conduct and Judicial Disability Proceedings (https://tinyurl.com/y7kj6rgo)

12/15/2017     Washington Post publishes article, “Nine more women say judge subjected them to inappropriate behavior, including four who say he touched or kissed them”

Chief Justice Roberts transfers the complaint against Judge Kozinski to the 2nd Circuit (https://tinyurl.com/ybqdq9q8)

12/17/2017     The 9th Circuit creates a special ad hoc committee on workplace environment (https://tinyurl.com/y7adz29s)

12/18/2017     The Federal Judicial Center revises the law clerk handbook to add clarifying language regarding reporting workplace harassment (https://tinyurl.com/y8ydvsoe)

12/19/2017     Judge Kozinski retires, effective immediately (https://tinyurl.com/yauwm8e3)

12/29/2017     The 7th Circuit appoints a committee to examine its process for raising and considering claims of harassment (https://tinyurl.com/y7vb37bh)

12/31/2017     In his 2017 Year-End Report on the Federal Judiciary, Chief Justice Roberts announces creation of a working group to examine the federal judiciary’s practices for investigating and correcting sexual harassment in the workplace (https://tinyurl.com/yaxgx4gp)

1/31/2018       The Conference of Chief Justices passes a resolution “in support of commitment to awareness and training on workplace harassment in the judicial branch” (https://tinyurl.com/y8l6v993)

2/5/2018         Based on Judge Kozinski’s retirement, the 2nd Circuit Judicial Council concludes the complaint against him (https://tinyurl.com/yarbcy6k)

2/7/2018         The Chief Justice of the Alaska Supreme Court announces creation of a working group to examine what changes are needed in the court system’s anti-sexual harassment policy and procedures (https://tinyurl.com/y7oqbon4)