Friendship and favors

When a judge’s relationship with someone involved in a case is close enough to require disqualification or at least disclosure may sometimes be difficult to pinpoint.  But the question is easy when a judge vacations with a litigant, posts pictures of them together on Facebook, and receives a caution from a conduct commission.  Further, any appearance of partiality becomes an obvious impropriety when the friend gets favorable treatment in court, as a recent discipline case from Indiana illustrates.

Based on a conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for failing to recuse from a case in which his friend had received a ticket and securing favorable treatment for his friend.  In the Matter of Johanningsmeier (Indiana Supreme Court August 10, 2018) .

The judge is close friends with B.K., who received a speeding ticket in April 2015.  In early June 2015, the judge and B.K. vacationed together.  On June 18, B.K. failed to appear in court on the ticket; a default judgment was entered, and his license was suspended.

On June 30, B.K. filed a petition for a trial de novo in the judge’s court.  The judge granted the motion the same day and reinstated B.K.’s license, without disclosing the relationship or giving the prosecutor an opportunity to respond, contrary to the trial de novo rule.

In March 2016, in a private caution letter, the Commission advised the judge that his close friendship with B.K. would cause a reasonable person to question his impartiality.  Nevertheless, the judge did not recuse or set the matter for hearing.  The case remained in limbo.

Shortly before Christmas 2016, the judge posted on Facebook a photo of himself, his sister, and B.K. at a party in the judge’s home.  The photo was visible to the public.  B.K. “liked” the photo.

On March 6, 2017, the prosecutor moved for a bench trial in B.K.’s case.  Instead of recusing, the judge set the motion for hearing on March 20.  At the hearing, he stated on the record that the case involved “a friend of mine” and “I was hoping we could just get the State to dismiss it.”  The prosecutor immediately orally moved to dismiss the case, and the judge granted the motion.

The Court found that the judge’s failure to recuse and other actions were “obvious violations of a judge’s most basic ethical duty—impartiality,” diminished public confidence in the judiciary, and “’erode[d] the public’s perception of the courts as dispensers of impartial justice.’”

Lax practices

Ticket-fixing “is the quintessential bad act of a judge,” creating “both the appearance and the reality of a two-track system of justice—one for his friends and family and another for all others.”  Inquiry Concerning Stanford, Decision (California Commission on Judicial Performance January 11, 2012).  Despite numerous cases sanctioning judges for the practice (see Judicial Conduct Reporter articles here and here), ticket-fixing remains a persistent, sometimes even systemic problem.

For example, the federal government indicted almost the entire Philadelphia Traffic Court bench in 2013 for their participation in “a widespread culture of giving breaks on traffic citations to friends, family, the politically-connected, and business associates.”  The defendant-judges argued that providing “special consideration” for tickets did not constitute a federal crime because there were no allegations of bribery; the jury may have agreed as all of the defendants were acquitted on those charges (although some were convicted of perjury).  However, since those acquittals, judicial discipline proceedings have been brought against several of the former defendants.  For example, finding that giving “special consideration” to tickets was judicial misconduct, the Pennsylvania Court of Judicial Discipline recently removed one of the acquitted judges.  In re Sullivan, Amended opinion and order (Pennsylvania Court of Judicial Discipline May 12, 2016).  The Court emphasized that the judge’s misconduct went “to the sanctity of the judicial process — it involved deciding cases for reasons other than the evidence presented, and the conduct involved a pattern of manipulating cases.”  The Court rejected the judge’s defense that he had only perpetuated a system of favoritism that had been in place when he took office.

Recently, based on a settlement agreement, the Michigan Supreme Court suspended a judge for 120 days without pay and censured her for reducing charges, dismissing charges outright, or modifying sentences in at least 20 criminal cases and dismissing at least 32 ticket cases following ex parte communications and without a hearing or authorization from the prosecutor, in addition to other misconduct.  In re Church (Michigan Supreme Court May 25, 2016).  The Court noted it may have imposed a different sanction but that, in light of the judge’s “serious and debilitating medical condition” (which it did not identify) and her acceptance of responsibility, deference to the Commission recommendation was warranted.  (In a previous case, the Court had removed a judge for ticket-fixing and other misconduct.  In re Justin, 809 N.W.2d 126 (Michigan 2012).)

Whereas a judge who fixes tickets is exercising too much authority over dispositions, failing to exercise the “quintessential judicial functions” of reviewing negotiated pleas and then accepting or rejecting them recently led to the sanction of a New York judge.  In the Matter of Calano, Determination (New York State Commission on Judicial Conduct May 9, 2016).  The deputy town attorney and defendants in the majority of vehicle and traffic law cases reached agreements involving pleas to reduced charges, the imposition of fines and surcharges, and, in some instances, dismissal of charges.  As the judge knew, the deputy town attorney told defendants that the proposed dispositions would be reviewed by a judge and required a judge’s approval.  Most defendants paid their fines and/or surcharges immediately following the negotiations, however, and the court clerks entered the dispositions without the judge reviewing or approving them.  At the discipline hearing, the judge testified that, because the deputy town attorney was “an officer of the court,” she trusted that the dispositions were within the parameters they had discussed and she was confident that the matters were disposed of fairly and without favoritism.

The Commission found that, by failing to oversee and approve the dispositions, the judge effectively delegated her judicial duties to the deputy town attorney and permitted him to dispose of cases without judicial oversight.  The Commission concluded:

Only judges have authority and responsibility to accept or reject a negotiated plea; and dismissing and reducing charges, convicting defendants and imposing sentences are quintessential judicial functions requiring the exercise of judicial discretion.  Placing such responsibilities in the hands of the prosecutor, who is not a neutral arbiter but an advocate, is especially problematic.

The Commission stated that “the fact that these practices predated her tenure in office does not excuse respondent’s misconduct.”  (Her co-judge had resigned in 2014 and agreed not to serve in judicial office after the Commission had filed a formal complaint based on the same practice and other conduct.)

See also Public Warning of Jones and Order of Additional Education (Texas State Commission on Judicial Conduct February 29, 2016) (without reviewing plea agreements presented by the prosecutor, judge entered judgements that found defendants charged with crimes such as speeding, assault, driving with license suspended, or marijuana possession guilty of illegal parking and imposed fines that were over the amounts allowed by law for illegal parking).


Two-tiered injustice

The report released last week by the Civil Rights Division of the U.S. Department of Justice revealed many disturbing aspects about the municipal court in Ferguson, Missouri, with troubling implications for other municipal courts in St. Louis County and maybe even other states.  First, the report, prompted by the shooting death of Michael Brown by a police officer last August, found that Ferguson law enforcement efforts are focused on generating revenue and its practices violate the law and undermine community trust, especially among African Americans.

Then the report concluded that the focus on revenue generation has also fundamentally compromised the role of the municipal court — without any resistance by the court and even with its complicity.  The report stated:

The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct.  Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests.  This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements.  The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. . . .

[T]hese court practices exacerbate the harm of Ferguson’s unconstitutional police practices.  They impose a particular hardship upon Ferguson’s most vulnerable residents, especially upon those living in or near poverty.  Minor offenses can generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver’s license, employment, or housing.

(In 2012, the Conference of State Court Administrators produced a position paper entitled Courts are Not Revenue Centers,” and the National Center for State Courts has developed Principles of Judicial Administration reflecting that policy).

On Monday, “to help restore public trust and confidence in the Ferguson municipal court division,” the Missouri Supreme Court transferred a court of appeals judge to the St. Louis County Circuit Court where he will be assigned to hear all of Ferguson’s pending and future municipal division cases.  He will also have “the authority to revise court policies and procedures to ensure the rights of defendants and to help restore the integrity of the system.”  In its press release, the Court stated it is also is examining what reforms are needed state-wide.

According to news reports, the judge mentioned in the DOJ report has resigned from his Ferguson position, but not from another municipal judgeship.

City officials blamed a pervasive lack of “personal responsibility” among “certain segments” of the community for the high numbers of violations, escalating fines, and jail time but condoned “a striking lack of personal responsibility among themselves and their friends,” the DOJ report notes.  The report found that city officials, including the judge and court clerk, routinely assisted friends, colleagues, acquaintances, and themselves in eliminating citations, fines, and fees in the Ferguson court and surrounding municipalities.  One local judge is quoted in news stories as saying ticket-fixing “goes on in every city, every state.  It just does.”

That is unfortunately true, but it does not have to be tolerated and is a sanctionable, even removable offense for judges with several cases each year.

For example, in 2012, the California Commission on Judicial Performance removed a judge for diverting to his own court and acting on traffic tickets issued to his son-in-law, friends, and the pastor of his church, improperly waiving or suspending all or practically all fines and fees or granting a continuance.  Emphasizing that, “in the public’s eye, ticket fixing is the quintessential bad act of a judge,” the Commission explained that the judge’s pattern of misconduct “created both the appearance and the reality of a two-track system of justice—one for his friends and family and another for all others.”

Also in 2012, the Michigan Supreme Court removed a judge for dismissing cases and inappropriately disposing of cases without holding hearings and without notice to or the authorization of the prosecuting attorney, including fixing traffic citations issued to himself, his spouse, and his staff, in addition to other misconduct.  The Court rejected the judge’s argument that he was just providing “optimum, convenient service.”  The Court noted that, “while some citizens received the ‘optimum, convenient service’ of having their tickets and charges summarily dismissed, other citizens were forced to endure the inconvenience and burden of countless adjournments and delays, requiring frequent court appearances.  It is unclear how this latter group fit into respondent’s theory of providing ‘optimum, convenient service.’”

In 2014, in response to a former judge’s defense to disciplinary charges that he had fixed tickets “out of fear of losing his job” and in response to “other political pressures,” the Texas State Commission on Judicial Conduct emphasized:

Given that the foundation of the justice system in a modern democratic society rests on the guarantee of an independent and impartial judiciary, a judge who disposes of cases out of fear that those in power will terminate him, or to satisfy the political or financial interests of an entirely separate branch of government, cannot be — nor can he be seen to be — independent.  By definition, a judge who is not independent cannot be impartial.

That explanation has particular significance following the DOJ report.