Judicial Conduct Reporter

The winter 2016 issue of the Judicial Conduct Reporter has been published.  The issue reviews the past year in judicial ethics and discipline with statistics on state sanctions and summaries of the 9 cases in which judges were removed from office.  There is also an article on the top judicial ethics stories of 2015:  the harsher penalties imposed by the Florida Supreme Court in several cases, including the judge who challenged a public defender to a fight that was caught on a video that went viral; discipline proceedings involving several federal judges and the revision of the discipline process itself; judges’ performance of same-sex marriages; judges’ involvement in the Boy Scouts; and personal solicitation of campaign contributions.  Finally, the issue includes “what they said that got them in trouble,” judicial quotes that led to judicial discipline.

Current and past issues of the Judicial Conduct Reporter are available on-line as free downloads here.  You can sign up to receive notice when a new issue is available here.


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.

Federal judges – Top judicial ethics stories of 2015

Misconduct by a federal judge – or an allegation of such misconduct – is always a high profile matter, and discipline proceedings involving several federal judges and the revision of the discipline process itself were among the top judicial ethics stories of 2015.

In September, the U.S. Judicial Conference sent to the speaker of the House of Representatives its certification that the impeachment of former District Judge Mark Fuller may be warranted, based on the report of a special committee adopted by the 11th Circuit Judicial Council.  Fuller, who sat in the Middle District of Alabama, had been arrested in August 2014 on misdemeanor battery charges for beating his wife.  The criminal charges were dismissed following his compliance with a pre-trial diversion program.  He resigned effective August 2015.

Noting that the judge’s resignation may have obviated the need for certification in a case “with less egregious and protracted conduct,” the Conference stated its action was also a public censure of the judge’s “reprehensible conduct.”  The Conference found that:

  • Judge Fuller physically abused Kelli Fuller at least eight times, both before and after they were married, which included and culminated in the assault that took place on August 9, 2014, in the Ritz-Carlton Hotel in downtown Atlanta, Georgia.
  • Judge Fuller made repeated statements under oath before the Special Committee that he never, at any time, hit, kicked, or punched Kelli Fuller, which were false and material under 18 U.S.C. § 1621 [the federal criminal perjury statute].
  • Judge Fuller made false statements to the Chief Judge of the Eleventh Circuit in late September 2010 in a way that caused a massive disruption in the District Court’s operation and loss of public confidence in the Court as an instrument of justice. These false statements, in combination with the actions outlined in (a) and (b), contributed to the overall determination that Judge Fuller’s conduct may constitute grounds for impeachment.
  • The conduct described in (a)-(c) has individually and collectively brought disrepute to the federal Judiciary.

* * *
In December, based on the report of a special committee, the 5th Circuit Judicial Council reprimanded District Judge Walter Smith for inappropriate and unwanted physical and non-physical sexual advances toward a court employee in 1998; the Council also directed that no new cases be assigned to the judge for 1 year.  In re Smith, Order and memorandum (December 4, 2015).  Judge Smith sits in the Western District of Texas.  The Council also found that the judge “does not understand the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts” and “allowed false factual assertions to be made in response to the complaint, which, together with the lateness of his admissions, contributed greatly to the duration and cost of the investigation.”  According to news reports, the complainant, an attorney, has asked that the decision to reprimand Judge Smith and not seek his impeachment be reviewed by the Committee on Judicial Conduct and Disability of the Judicial Conference.

* * *
In February, the Committee on Judicial Conduct and Disability of the Judicial Conference denied a petition for review filed by 13 individuals and public interest groups from the dismissal of their complaint alleging that Judge Edith Jones made statements during a public lecture on the death penalty that exhibited bias or related to the merits of pending cases.  In re:  Complaint of Judicial Misconduct (Jones) (February 19, 2015).  Judge Jones sits on the Court of Appeals for the 5th Circuit.  The speech was made at the University of Pennsylvania Law School on February 20, 2013.

The special counsel hired to investigate the complaint had found no recording of the lecture, and the special committee’s report, adopted by the Judicial Council of the D.C. Circuit, noted that, “although there is general agreement regarding the themes that Judge Jones discussed, the judge and the complainants sharply disagree about the wording and tone of many of her comments.”  The complaint alleged, for example, that the judge had stated that certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities.  The special committee agreed that such suggestions would constitute misconduct but concluded that, in the absence of a recording and in light of the witnesses’ conflicting recollections, it could not “find, by a preponderance of the evidence, that Judge Jones made those comments in her initial remarks” and that, whatever her initial remarks, she “used the question-and-answer period to clarify that she did not adhere to such views.”

On review, the U.S. Judicial Conference Committee found no error in the Judicial Council’s conclusions.

* * *
In September, the Judicial Conference amended the Rules for Judicial-Conduct and Judicial-Disability Proceedings for federal judges, with “dozens of clarifications and restyling and policy changes.”  The Conference emphasized:

  • A new “requirement that chief judge and circuit judicial council final orders disposing of a misconduct or disability complaint be published on a court’s public website. . . . Previously the JC&D Rules only required that final orders be made public at the office of the circuit clerk or on the court’s public website.”
  • 2 new grounds for “cognizable misconduct:” “retaliating against complainants, witnesses, or others for their participation in the complaint process” and “refusing without good cause shown, to cooperate in the investigation of a complaint under these rules.”
  • “An expansion of the meaning of ‘disability’ so it may include ‘impairment of cognitive abilities that renders the judge unable to function effectively.’”

Judges and the Boy Scouts: Top stories of 2015

47 states, D.C., and the federal judiciary have provisions in their codes of judicial conduct prohibiting judges from being members of organizations that practice invidious or unlawful discrimination.  (The 3 states without any such provision are Alabama, Illinois, and Louisiana.)  In approximately 28 jurisdictions (27 states and D.C.), sexual orientation is specifically included in the list of grounds for discrimination to which the rule applies.  In other words, those jurisdictions have adopted a version of Rule 3.6A of the American Bar Association Model Code of Judicial Conduct:

A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (emphasis added).

Since 1996, California, one of those 28 jurisdictions, has had an exception for non-profit youth organizations to accommodate judges who were members of or active in the Boy Scouts of America, according to the California Supreme Court Advisory Committee on the Code of Judicial Ethics.  In January 2015, the California Supreme Court eliminated that exception effective January 1, 2016.  Thus, after January 1, California judges would no longer have been able to be members of the Boy Scouts – except the organization changed.

In July 2015, Boy Scouts of American amended its adult leadership policy to remove “the national restriction on openly gay adult leaders and employees” although local religious chartered organizations “may continue to use religious beliefs as criteria for selecting adult leaders, including matters of sexuality.”

Thus, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, even after elimination of the youth group exception, “judicial membership in a BSA-sponsored eagle scout alumni organization is not prohibited because, due to recent changes, current Boy Scouts of American policy precludes invidious discrimination on the basis of sexual orientation for non-unit-serving volunteers such as the eagle scout alumni members.”  California Oral Advice Summary 2015-13.

Similarly, as a result of that recent change in Boy Scout policy, the Connecticut Committee on Judicial Ethics recently advised that a judicial official may participate in the Boy Scouts by teaching ethics courses as a regional or high level volunteer (Connecticut Informal Advisory Opinion 2014-15Aand by serving as a board member of a regional council (Connecticut Informal Advisory Opinion 2014-15B).  Prior to the policy change, the Connecticut committee had issued an advisory opinion stating that a judicial officer may not hold adult volunteer leadership positions with the Boy Scouts that gay persons are barred from holding.  Connecticut Informal Advisory Opinion 2014-1.

Both the California and Connecticut codes, like the model code, contain exceptions for religious organizations, which, even after the Boy Scouts policy change, can still discriminate based on sexual orientation as a matter of religious belief.  Thus, the California committee said that a judge may be a scoutmaster for his church-sponsored Boy Scouts troop if he is satisfied that the troop does not exclude members based on sexual orientation or is dedicated to the preservation of religious values of legitimate common interest to the troop members.  California Oral Advice Summary 2015-14.  The Connecticut committee advised that a judge may, as the lawful exercise of his religious freedom, be a member of a Catholic archdiocese committee on Scouting.  Connecticut Informal Advisory Opinion 2014-15B.

These developments will be one of the topics discussed in the free webinar on the “Top Judicial Ethics Stories of 2015” 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: https://attendee.gotowebinar.com/register/1087418470610271489.