Indictments and impeachments in West Virginia

Top judicial ethics stories of 2018

Of the 5 justices who were on the West Virginia Supreme Court of Appeals in late 2017, only 2 were still on the Court in late 2018:

  • 1 justice resigned in June 2018 and subsequently pled guilty to a federal criminal charge.
  • 1 resigned in August after being impeached by the House of Delegates.
  • 1 resigned in November; there were pending judicial discipline charges against him, he had been impeached, and he had been convicted of federal criminal charges.

Of the 2 remaining:

  • 1 was impeached in August but was acquitted after a trial in October although the senate reprimanded and censured her.
  • 1 was impeached in August, but, in October, the Court, with 5 acting justices sitting, prohibited the senate from proceeding with the prosecution.

Following is a timeline of the events in West Virginia:

2017

January
The justices of the West Virginia Supreme Court of Appeals elect Justice Allen Loughry as Chief Justice.

April
The justices change the rule to increase the term for chief justice from 1 year to 4 years and elect Justice Loughry to a full 4-year term.

November 14
WCHS-TV begins a series of reports on spending by the Court, particularly hundreds of thousands of dollars for renovating the justices’ chambers in 2013.  Other media reports follow.

November 20
Chief Justice Loughry meets with federal law enforcement representatives to report his concerns about spending by the other justices and the former administrative director of the Court.  The FBI and the U.S. Attorney’s Office begin investigating possible misuse of funds by the justices.

December
Federal investigators serve a subpoena on the Court.

2018

February 16
The other justices vote to remove Justice Loughry as chief justice after learning he did not tell them about the federal subpoena.  Justice Margaret Workman is chosen as chief justice.

June 6
The Judicial Investigation Commission files a formal statement of charges against Justice Loughry.  The charges allege that the justice:

  • Used a state vehicle on 148 days for personal uses, including book signings for his 2006 book on public corruption in West Virginia, entitled Don’t Buy Another Vote, I Won’t Pay for a Landslide;
  • Made false statements about his involvement in the renovation of his office in testimony before the House of Delegates Committee on Finance while under oath, in 2 media interviews, and in an op-ed piece;
  • Kept a federal subpoena secret from the other justices;
  • Had a valuable antique desk moved from his court office to his home by a moving service paid for by the Court and, after reporters began asking questions, returned the desk, using court employees and a court van;
  • Had a couch moved from his court office to his home;
  • Had new court computers installed in his home for personal use by himself, his wife, and his son; and
  • Told the public information officer for publication that the Court had a long-standing practice of allowing a justice to furnish a home office with court-provided equipment and furniture when, in fact, there was no policy beyond providing computer equipment.

The Court suspends Justice Loughry without pay pending the outcome of the disciplinary proceedings.

June 20
Justice Loughry is indicted on 22 federal charges:  18 counts of wire or mail fraud, 1 count of witness tampering, and 3 counts of lying to federal investigators.  The fraud counts allege that he claimed mileage for trips on which he drove a court vehicle and used a government credit card for gasoline; received reimbursement from the Pound Institute for his travel expenses to an event in Baltimore, despite having used a state-owned vehicle and a state government credit card; used government vehicles and government credit cards for personal use; lied to other justices about his vehicle usage; and unlawfully converted to his own personal use a valuable desk that belonged to the Court.

June 26
Pursuant to the governor’s proclamation, the legislature holds a special session “to consider matters relating to the removal of one or more Justices of the Supreme Court of Appeals” and passes a resolution authorizing the House Committee on the Judiciary to investigate impeachable offenses.

July 2
The Judicial Hearing Board stays the disciplinary proceedings against Justice Loughry pending the federal criminal proceedings.

July 11
Justice Menis Ketchum resigns.

July 12
The House Judiciary Committee begins hearings on whether to impeach the remaining 4 justices.

August 7
The House Judiciary Committee recommends 14 articles of impeachment against Chief Justice Workman, Justice Loughry, Justice Robin Davis, and Justice Elizabeth Walker.

August 13
The House of Delegates adopts 11 articles of impeachment.  Justice Loughry is named in 7 of the articles, Chief Justice Workman in 4, Justice Davis in 4, and Justice Walker in 1.

The articles charge that:

  • All 4 justices “waste[d] state funds with little or no concern for the costs to be borne by the tax payers for unnecessary and lavish spending for various purposes;” failed to prepare and adopt sufficient and effective travel policies; failed to “report taxable fringe benefits, such as car use and regular lunches, on Federal W-2s;” failed to “provide proper supervision, control, and auditing of the use of state purchasing cards leading to multiple violations of state statutes and policies regulating the proper use of such cards;” failed to “prepare and adopt sufficient and effective home office policies;” and failed to “provide effective supervision and control over record keeping with respect to the use of state automobiles,” inventories of state property owned by the courts, and purchasing procedures.
  • Justice Loughry spent approximately $363,000 in the renovation of his personal office, including a $31,924 couch and a $33,750 floor with a medallion; “cause[d] a certain desk, of a type colloquially known as a ‘Cass Gilbert’ desk, to be transported from the State Capitol to his home . . . ;” “intentionally acquire[d] and use[d] state government vehicles for personal use;” “intentionally acquire[d] and use[d] state government computer equipment and hardware for predominately personal use;” and “made statements while under oath before the West Virginia House of Delegates Finance Committee, with deliberate intent to deceive, regarding renovations and purchases for his office . . . .”
  • Justice Davis spent approximately $500,000 in the renovation of her personal office, including a rug that cost approximately $20,500, a desk chair that cost approximately $8,000, and over $23,000 in design services.
  • Justice Workman, Justice Davis, and Justice Loughry when they were chief justice signed and approved contracts, forms, and/or administrative orders that provided for the payment of senior status judges over the maximum salary for senior status judges set by statute.

August 13
Justice Davis resigns.

August 23
Former justice Ketchum pleads guilty in federal court to 1 felony count of wire fraud, admitting to repeated personal use of a state vehicle and fuel credit card for travel to and from his home and a private golf club in western Virginia.

September 11
At a pre-trial conference for the Senate impeachment trial, Chief Justice Workman, Justice Walker, and the House members serving as prosecutors submit a proposed agreement that would have provided for the dismissal of the articles of impeachment, but the Senate votes to reject the settlement.

September 21
Chief Justice Workman files a petition for a writ of prohibition asking that the Court stay and halt the impeachment proceedings “because they are premised on unconstitutional articles.”

October 1
Following a 2-day impeachment trial, the Senate votes 32-1 to acquit Justice Walker but does reprimand and censure her.

October 11
The Court, with 5 acting justices sitting by temporary assignment, prohibits the state senate from prosecuting impeachment proceedings against Chief Justice Workman, finding that the articles of impeachment violated the separation of powers clause and that her due process rights had been violated.  The Court directs that the mandate be issued immediately.

October 12
A jury convicts Justice Loughry on 11 federal charges:  7 counts of wire fraud, 2 counts of making false statements to federal investigators, and 1 count each of witness tampering and mail fraud.  The jury acquits him of 9 counts of wire fraud and 1 count of mail fraud and deadlocks on 1 count of wire fraud.

October 22
The Judicial Investigation Commission files an amended formal statement of charges to add a count regarding Justice Loughry’s conviction of a crime and moves to lift the stay and expedite the proceedings.

November 9
In a proclamation, the governor convenes the legislature for a special session on November 13 “to consider matters relating to the removal of Allen Loughry, Justice of the Supreme Court of Appeals of West Virginia, including, but not limited to, censure, impeachment, trial, conviction, and disqualification.”

November 10
Justice Loughry resigns.

2019

January 8
The House of Delegates files with the U.S. Supreme Court a petition for a writ of certiorari arguing that the decision prohibiting the impeachment of Chief Justice Workman “violates the guarantee clause of the United States Constitution by eviscerating the state’s republican form of government.”

January 11
Loughry’s motion for a new trial on wire fraud and mail fraud charges is denied; his conviction on 1 count of witness tampering is vacated.

January 30
Sentencing of former justice Ketchum [scheduled].

February 6
Hearing on disciplinary charges against former justice Loughry [scheduled].

February 13
Sentencing of former justice Loughry [scheduled].

Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for failing to act for almost 6 months on a writ of mandamus issued by the state supreme court directing him to act upon a Freedom of Information Act request. Letter to Keith from the (Arkansas Judicial Discipline & Disability Commission January 20, 1999) (https://jddc.arkansas.gov/Websites/jddc/images/pdf/Tom%20J.%20Keith%201999.PDF).
  • The California Commission on Judicial Performance publicly censured a former judge for having a clandestine, intimate relationship with 1 of 3 co-defendants, continuing to preside over their cases, allowing the relationship to influence his actions, and engaging in numerous improper ex parte communications. Inquiry Concerning Trammell Decision and order (California Commission on Judicial Performance January 5, 1999) (https://cjp.ca.gov/wp-content/uploads/sites/40/2016/08/Trammell_48_Cal.4th_CJP-Supp._56.pdf).
  • The Utah Supreme Court accepted a stipulation for the public censure of a judge for driving a vehicle for several months knowing that the registration had expired. In re Dimick, Order (Utah Supreme Court January 22, 1999) (https://jcc.utah.gov/wp-content/uploads/2018/01/DimickJoseph-1999Censure.pdf).
  • The Utah Supreme Court accepted a stipulation for the public censure of a former judge for appropriating to her own use $1,200 cash bail and failing to forward abstracts of reportable traffic violations to the drivers’ license division within 10 days of the conviction or plea. In re Chavez, Order (Utah Supreme Court January 13, 1999) (https://jcc.utah.gov/wp-content/uploads/2018/01/ChavezPatricia-1999Censure.pdf).
  • The Washington Supreme Court publicly 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. In the Matter of Turco, 970 P.2d 731 (Washington 1999).

 

Recent cases

  • The California Commission on Judicial Performance publicly admonished a judge for (1) in 3 misdemeanor probation cases, improperly remanding the defendants and delaying setting revocation hearings until after the defendants served a predetermined time in jail, which conveyed the appearance that the judge was circumventing the sheriff’s department’s early release program; (2) improperly responding to a peremptory challenge; (3) referencing her personal life when discussing the ability of 2 defendants to pay fines; and (4) being discourteous to several criminal defendants. In the Matter Concerning Elswick, Public admonishment (California Commission on Judicial Performance December 13, 2018).
  • Based on a stipulation for discipline by consent, the California Commission on Judicial Performance publicly admonished a former judge for making comments in a restraining order proceeding that were undignified, inappropriate, belittling, and injurious to the parties and based on gender stereotypes, raising the appearance of gender bias. In the Matter Concerning Stafford, Decision and order (California Commission on Judicial Performance December 13, 2018).
  • Granting the Judicial Standards Commission’s petition to accept a stipulation to permanent resignation in lieu of further disciplinary proceedings, the New Mexico Supreme Court ordered the permanent resignation of a judge; the Commission had filed a notice of formal proceedings alleging that the judge had (1) during a conversation outside the courtroom, threatened the city attorney with contempt and/or arrest when there were no proceedings involving him pending before the judge and she was not on the bench; (2) telephoned the city library director and yelled, cursed, and used offensive and foul language toward her and threatened to have her fired because the judge did not agree with an ordinance concerning library procedures; (3) after a board of trustees/city council meeting that she attended and in which citizens had complained about code violations likely to come before her court, met with the citizens and announced her position on the violations; (4) informed some citizens that she did not agree with and would not enforce the library ordinance; (5) contrary to the library ordinance, dismissed pending library cases for no apparent reason and/or allowed the time to expire on pending cases so she could dismiss them, making statements to the effect of “dismiss all those complaints” and “I’m going to let the six-month rule run on the others;” (6) made statements to the effect that she can do as she pleases and get what she wants “because I’m the judge;” (7) called members of the city’s board of trustees to use their influence in getting her demands for herself and resources for her court; (8) after adjudging a defendant guilty in a weed and rubbish ordinance case, failed to impose any penalty as mandated by the ordinance, allowed him to pay only court costs, and stated in open court that otherwise the code enforcer would just keep “bugging” the defendant; (9) changed penalty assessment traffic citations to hearings, contrary to law; (10) informed her neighbor ex parte that the neighbor had a warrant or would have a warrant if she failed to appear in court, failed to promptly notify the other party of the communication, and failed to disqualify from the neighbor’s case; (11) informed a relative of her neighbor ex parte that she had a warrant or would have a warrant if she failed to appear in court, failed to promptly notify the other party of the communication, and failed to recuse from the case; (12) granted ex parte requests from the defendants in 2 cases for continuances without providing the prosecuting officers notice and an opportunity to be heard; (13) attempted to get special treatment for travel and per diem reimbursements even after being told her requests did not comply with statutory requirements; and (14) refused to sign per diem paperwork for her court staff to attend out-of-town training because she disagreed with the manner in which the city made the financial reimbursements. In the Matter of Soriano, Order (New Mexico Supreme Court December 3, 2018).
  • Granting a petition to accept a stipulated agreement and consent to discipline, the New Mexico Supreme Court publicly censured a judge for refusing to allow an emergency bathroom break for the alleged victim in a domestic violence case, allowing the jury to witness the removal of the victim’s chair, reading the jurors’ notes in the case, and preparing a witness statement for the court interpreter about the request. Inquiry Concerning Madrid, Order and public censure (December 31, 2018).
  • Accepting the stipulation of the parties, the New Mexico Supreme Court publicly censured a judge for failing to transfer a case to the district court after the defendant’s competency became an issue and holding the defendant indefinitely, resulting in the defendant’s incarceration for over 4 months without due process of law. In the Matter of Van Gundy, Order and public censure (New Mexico Supreme Court December 31, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a matter involving a former judge, who waived confidentiality to the limited extent that the stipulation can become public. In the Matter of Scolton, Decision and order (New York State Commission on Judicial Conduct December 6, 2018).  In a formal written complaint, the Commission had alleged that the judge, (1) for over 3 years, failed to timely report and deposit court funds to the State Comptroller and the town’s chief fiscal officer; (2) for almost 27 years, failed to properly notify the Department of Motor Vehicles of 2,612 defendants in motor vehicle cases who were convicted, failed to pay a fine, or failed to answer the charge; (3) for over 3 years, failed to monitor his official court e-mail account or respond to e-mails received by that account; and (4) from mid-2017 through May 2018, failed to use a computer and software provided by the Office of Court Administration to facilitate the court’s financial and case administration.
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a matter involving a former judge, who waived confidentiality to the limited extent that the stipulation can become public; the judge had been served with a formal written complaint alleging that he made homophobic and/or otherwise inappropriate remarks and gestures to an attorney. In the Matter of Hallett, Decision and order (New York State Commission on Judicial Conduct June 13, 2018).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for failing to account for the receipt of over $15,000 in court funds or promptly remit those funds to the Office of the State Comptroller as required and accumulated a surplus of funds in his court bank account that he could not identify. In the Matter of McDermott, Determination (New York State Commission on Judicial Conduct December 12, 2018).
  • Based on the report of a referee following a hearing, the New York State Commission on Judicial Conduct publicly admonished a judge for, after her vehicle struck a police van, voluntarily identifying herself as a judge to the police several times, presenting her judicial identification card, and making several other references to her judicial status, and repeatedly questioning the necessity for an accident report and the delay in preparing the report in an attempt to curtail the investigation and be allowed to leave. In the Matter of Michels, Determination (New York State Commission on Judicial Conduct December 27, 2018).
  • Adopting the findings and recommendation of the Board of Professional Conduct, which were based on stipulations, the Ohio Supreme Court publicly reprimanded a magistrate for presiding over 3 cases in which she had previously participated personally and substantially as a lawyer for a government agency. Disciplinary Counsel v. Holben (Ohio Supreme Court December 20, 2018).
  • Based on joint stipulations of fact in lieu of trial, the Pennsylvania Court of Judicial Conduct removed a former judge who had pled nolo contendere to “criminal activity related to the exercise of his judicial duties,” that is, retaining the services of constables predicated on their accession to his demand that they contribute to his judicial re-election campaign fund from the income they received from performing constable services for his judicial office. In re Jennings, Opinion (Pennsylvania Court of Judicial Conduct December 19, 2018).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for authorizing the use of his name, title, and likeness on a mailer advertising a campaign event for a candidate for state senate. Public Warning of Cano (Texas State Commission on Judicial Conduct December 13, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for issuing 2 felony arrest warrants based on complaints that did not contain sufficient probable cause and on information outside the 4 corners of the complaints; the Commission also ordered the judge to obtain 2 hours of instruction with a mentor. Public Reprimand of Brady (Texas State Commission on Judicial Conduct November 14, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) inappropriately touching another judge and 2 court clerks at a social function and sending the other judge an offensive text message and (2) making disparaging comments about the district attorney’s office in court in 2 cases. Public Reprimand of Williams (Texas State Commission on Judicial Conduct December 14, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for, in 2 cases involving the same father but different mothers, ordering the children removed from the mothers’ custody and given to the father in the absence of a verified pleading or affidavit, denying the mothers an opportunity to be heard, and failing to be dignified and courteous. Public Reprimand of Williams (Texas State Commission on Judicial Conduct December 14, 2018).
  • The Texas State Commission on Judicial Conduct publicly warned 2 judges for engaging in joint campaign efforts, including a joint fund-raiser and joint campaign materials; the Commission also ordered both judges to obtain 2 hours of instruction with mentors. Public Warning of Martin and Order of Additional Education (Texas State Commission on Judicial Conduct December 20, 2018); Public Warning of Cooks and Order of Additional Education (Texas State Commission on Judicial Conduct December 20, 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).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for driving under the influence. In re Tanner, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a supreme court justice for 2 Facebook posts soliciting support for non-profit organizations. In re Yu, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for a post on his Facebook page encouraging people to attend a charity pancake feed. In re Svaren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).

 

 

Throwback Thursday

25 years ago this month:

  • Adopting the recommendation of the Judicial Conduct Commission, the Arizona Supreme Court suspended a judge for 90 days without pay for (1) acting as an intermediary between an acquaintance and the owner of a Nevada casino about the establishment of gambling operations in Mexico; (2) discussing a proposed enterprise to recover stolen property from Mexico for insurance proceeds; (3) inducing a pro tem justice of the peace to sign an injunction in a case from which he had recused himself; (4) involving himself in the police investigation of a domestic complaint brought against a court clerk by her husband; (5) permitting ex parte contacts by criminal defense lawyers, including discussions about the terms of release for their clients; (6) allowing others to gain the impression that a local attorney, who had represented the judge in a divorce proceeding and from whose mother-in-law the judge had borrowed money, enjoyed a favored position with the judge and in his court; (7) failing to report his wife’s employment with a Nevada casino on his financial disclosure statement; (8) occasionally ignoring established court procedures and dismissing or otherwise disposing of traffic tickets for acquaintances; (9) allowing his staff to receive gifts from persons and organizations doing business with the court; (10) requesting that the police issue a traffic citation to a truck driver who passed him in a no passing zone and then presiding over the matter; (11) failing to disclose to litigants and counsel that certain attorneys appearing in his court had represented him personally in the past; (12) carrying a concealed weapon without a license; (13) attempting to obtain information from his staff about the Commission’s investigation, then denying having done so in a deposition; and (14) signing, without authority, a letter purporting to appoint an acquaintance as a justice court police officer. In the Matter of Gumaer, 867 P.2d 850 (Arizona 1994).
  • Accepting the findings and recommendations of the Judicial Qualifications Commission based on a stipulation and the judge’s agreement, the Florida Supreme Court publicly reprimanded a judge who had failed to vacate an order that both parties agreed was mistakenly entered. Inquiry Concerning Vitale, 630 So. 2d 1065 (Florida 1994).
  • Adopting the conclusions of law of the Commission on Judicial Qualifications based on agreed facts, the Kansas Supreme Court publicly censured a judge for (1) as a district court judge, presiding over contested cases in which the Garden City was a party while also serving as municipal judge of Garden City; (2) signing an offer to purchase a condominium from an estate 18 days after signing orders admitting the will to probate; (3) purchasing a home that was the subject of a foreclosure action while the lawsuit was still pending before him; and (4) apparently breaching a contract to buy a piece of property and then failing to notify the realtors, the lenders, or the buyers of his own property that he had been sued and served with process for that breach. In the Matter of Handy, 867 P.2d 341 (Kansas 1994).
  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court suspended 4 municipal judges for as long as they also served as mayor of their municipalities. In re Grant, Herring, Beamon, and Ward, 631 So. 2d 758 (Mississippi 1994).
  • The New York State Commission on Judicial Conduct publicly censured a judge for, (1) committing 5 defendants charged with misdemeanors, violations, or traffic infractions to jail without setting bail, in violation of a state statute; (2) stating to a defendant charged with several traffic violations, “You’re going to jail; no bail,” and failing to advise the defendant of the charges against him and of his rights concerning counsel, resulting in the defendant remaining in jail for 21 days, even though the maximum period that he could properly be held awaiting trial was 5 days; (3) after his home was vandalized on Halloween, asking a defendant charged with throwing an egg at the mayor’s truck on Halloween whether he would tell what had happened to his home and increasing the defendant’s bail in subsequent cases without making any inquiry until the defendant eventually spent 64 days in jail in lieu of bail, even though the law mandated release after 30 days; and (4) accusing a defendant of directing foul remarks at him at a previous appearance, demanding an apology, and saying that, if he had not been wearing his robes, he would have thrown the defendant’s a** through a wall, which compelled the defendant to accept a plea bargain. In the Matter of Yusko, Determination (New York State Commission on Judicial Conduct January 27, 1994).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) suggesting in a political advertisement that his opponent would be biased as a judge and was not respected in his profession and comparing him to comic characters and (2) publicly supporting the re-election of the county executive and publicly criticizing the county executive’s opponent. In the Matter of Decker, Determination (New York State Commission on Judicial Conduct January 27, 1994).
  • The New York State Commission on Judicial Conduct removed a judge for (1) failing to deposit court funds into his official account within 72 hours of receipt as required by statute, (2) failing to remit court funds to the state comptroller by the tenth day of the month following collection as required by statute, (3) failing to notify the Department of Motor Vehicles of the disposition of 272 traffic tickets as required by statute, (4) with respect to 170 traffic tickets, failing to notify the Department of Motor Vehicles of the defendants’ failure to appear in court or otherwise answer the charges or to pay fines imposed by the court, (5) failing to respond to letters from Commission counsel, and (6) failing to appear to give testimony before the Commission even though he was notified by letter that his appearance was required by law. In the Matter of Tiffany, Determination (New York State Commission on Judicial Conduct January 26, 1994).

More Facebook fails

Based on stipulations and agreements, the Washington State Commission on Judicial Conduct recently admonished 2 judicial officers for Facebook posts soliciting contributions to non-profit organizations.  (A public admonishment is “the least severe disciplinary action available” to the Washington Commission.)

In both orders, the Commission emphasized that the “prohibition against judicial solicitation of money does not reflect on the worthiness or virtue of the charity or cause in question” and “a near blanket prohibition upon fundraising by judicial officers is necessary as it would be impossible to exercise principled distinctions based on the nature of the charity involved, and it would be improper to have a government agency such as a conduct commission make such value choices.”  Noting that most judges “are quite conscious that they may not solicit funds for themselves or others in face-to-face encounters,” the Commission stated that “there is not a meaningful or workable distinction between in-person and written or electronic solicitations (although solicitations could be more or less egregious, depending on the context).”  The Commission noted that “social media is a relatively new form of communication,” “the law tends to lag behind technology,” and “[t]here has not yet been a Commission opinion addressing social media, so need for guidance is greater than in other areas.”

Thus, the Commission publicly admonished a supreme court justice for 2 posts soliciting support for non-profit organizations.  In re Yu, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).

Since 2013, the justice has maintained a Facebook page that, “[i]n Facebook parlance,” is a “government official” page that anyone can access and that no one can “friend.”  She does not solicit “followers” for the page.  The page identifies the justice as a member of the judiciary.  The justice is actively engaged in the community, she uses the page to educate viewers about matters related to the judicial branch, and her posts are intended to make the court and judicial officers more accessible and transparent to the public.

On April 22, 2018, the justice posted on her Facebook page:

Join Lifelong for Dining Out For Life on April 26!

On Thursday, April 26, raise your fork for Dining Out For Life!  Join Lifelong at one of 90 restaurants in the Greater Seattle Area who are set to donate 30-50% of their proceeds to vital programs that support people facing serious illness and poverty in our community.

https://www.diningdutforlife.com/seattle

Lifelong is a non-profit organization that provides recovery assistance for persons suffering from drug abuse and addiction.

On April 28, the justice posted on her Facebook page about Real Change, a weekly newspaper that employs homeless and previously homeless people as vendors.

I know many of you wonder what you might do about homelessness.  There are a myriad of policy issues that deserve your attention.  I can’t advise you on any of them.  But, here is one concrete thing you can do each week:  buy the “Real Change” newspaper from a vendor that you see on the street comers in Seattle.  They buy the paper for .60 and sell it for $2.00.  It is a business for each vendor.  The paper has interesting articles on housing, poverty, and other social issues.  If you don’t have cash, most will take payment with Venmo.  But how hard can it be to withdraw some cash each month, stuff it in your pocket, and just commit to buying the paper each week?  Support these folks who are just trying hard to earn some money in an honest way.

Screenshots of the 2 posts are included in the Commission order.

The Commission explained:

While these Facebook posts present no articulable element of coercion, the Commission finds that it is still an abuse of the prestige of judicial office.  The prestige is appropriately reserved for the service of the office itself, and not to be used for the individual benefit of the judge or others, regardless how generally good the cause may be.

Given the nature of her Facebook communications, the justice did not believe the posts rose to the level of a solicitation, but she acknowledged that the Commission is the body charged with interpreting facts and enforcing the code and deferred to its determination that the posts violated the code.  Recognizing that greater guidance is needed on the increasingly prevalent use of social media, the justice believes the stipulation will provide such guidance and raise awareness of the risks of sharing information on social media that could be construed as solicitations or endorsements.

The Commission also publicly admonished a judge for a post on his Facebook page encouraging people to attend a charity fund-raiser.  In re Svaren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).  The judge had attended a “pancake feed” held to benefit the families of people killed during a mass shooting at the Cascade Mall in September 2016.  On his Facebook page, which is titled “Judge David Svaren,” the judge posted photos of signs at the event and text that read:

The Burlington Fire Department Pancake Feed is happening now and 100% of the proceeds go to benefit the families of the victims of the recent tragedy at Cascade Mall.  Please consider attending, it runs until noon today.

After a few weeks, the judge removed the post after reviewing it and realizing it may violate the code.  The judge was unable to recall or explain why he had not recognized at the time he made it that the post would violate the code.

In mitigation, the Commission noted, for example, that the judge has a long history of productive service as a judicial officer, had no prior discipline, cooperated with the Commission’s proceeding, and “recognized the problematic nature of the conduct, and removed the post even prior to contact from the Commission.”  However, the Commission concluded that its “failure to act on a case involving a Code violation on social media, even one with strong mitigators, could wrongly signal to judges and the public that online Code violations are somehow exempt from enforcement.”

See also In re Prewitt, Order (Missouri Supreme Court November 24, 2015) (public reprimand for, in addition to other misconduct, numerous posts on Facebook about charitable fund-raising events that noted a judge’s support for the organizations and encouraged others to contribute); In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016) (6-month suspension without pay for Facebook posts about a fund-raiser for a church, in addition to other misconduct); Private Warning and Order of Additional Education of a Municipal Court Judge (Texas State Commission on Judicial Conduct August 23, 2012) (private warning for entries on a Facebook page that indicated to the public that the judge was an organizer for a charitable fund-raiser); Pennsylvania Judicial Conduct Board Annual Report (2017) (private letter of caution to judge who re-posted a photographic advertisement of a fund-raising event for a charitable institution); Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018) (public admonishment for organizing a school supply drive using court staff and advertising it in Facebook posts, soliciting donations to an individual in a Facebook post, and advertising his donation of a rifle to a charitable organization’s raffle in a Facebook post).

* * *
A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available here.

The difference between reprimand, censure, and suspension

Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court censured a judge for identifying himself as a judge to court personnel when disputing his own child support payments and discussing the emancipation of his child.  In the Matter of Palmer, Order (New Jersey Supreme Court November 8, 2018).  The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment.

In March 2011, the judge obtained a judgement of divorce in Somerset County and made arrangements with the county probation department about his child support payments.

On March 21, 2017, the judge appeared at the Somerset County Courthouse and spoke in succession to a judiciary clerk, a caseworker, a senior probation officer (after the caseworker asked for assistance), and the senior probation officer’s supervisor (after the senior probation officer asked for assistance).  While inquiring about the process necessary to emancipate his child and seeking information about his child support payments, he identified himself several times as a judge who sits in Ocean County, for example, showing his judiciary-issued lanyard, which was hanging around his neck and which identifies him as a judge, when asked for identification.

The judge informed the caseworker during their 20-minute discussion that he wished to dispute the cost of living adjustment that had been applied to his child support obligation, claiming it was improper because he “had not received a raise.”  The caseworker described the procedure for challenging the COLA adjustment several times even though the judge was familiar with it, having contested 2 prior COLA’s.  When talking to the caseworker’s supervisor, the judge again referred to his lack of a pay raise, remarking “you the tax payers decided that a long time ago.”

The judge’s conduct was “sufficiently disruptive and disconcerting” that a supervisor in the probation department told the Somerset County assignment judge and that judge, in turn, reported the incident to the Ocean County assignment judge.

The Committee found that the judge’s conduct created the potential that his judicial office would affect the probation department’s handling of his case and, therefore, constituted misconduct even if, as he claimed, he had not intended to influence them and there was no indication that they were actually influenced.  The Committee explained:

As the record reflects, the judiciary personnel with whom Respondent interacted that day, unaware of his subjective motives, perceived Respondent’s multiple references to his judicial office as his attempt to trade on that office for his personal benefit.  [The senior probation officer], when interviewed by Committee staff, testified that Respondent’s repeated references to his judicial office left her with the impression that “he was trying to see if [they] would change anything.” . . .

Similarly, [the caseworker], when interviewed, testified that Respondent’s repeated references to the fact that he was a judge left her with the impression that he expected her to “fix” his issues immediately. . . .  She, in fact, felt pressured when dealing with Respondent precisely because of his repeated references to his judicial office. . . .

The Committee noted that, if the judge had intentionally abused the judicial office, substantially more severe public discipline would have been warranted.

On the other hand, the Committee concluded “enhanced discipline” (that is, something more than a private sanction or public reprimand) was justified because this was the 3rd time in 3 years that the judge had been the subject of discipline.  In October 2015, the Committee had privately reprimanded him for displaying arrogance and aggression towards 2 litigants in 2 matters; in January 2017, the Committee had privately censured him for similar discourtesies towards 2 other litigants.  It was a “mere” 2 months after the second private sanction that the judge went to the Somerset County courthouse.  The Committee concluded that the judge’s “continued inability to conform his conduct to the Code of Judicial Conduct over these past several years, despite his recent receipt of prior discipline and his more than nine-year tenure on the bench, necessarily aggravates his abuse of the judicial office . . . .”

 

Marijuana and judicial ethics

According to governing.com, 31 states and D.C. have legalized marijuana to some degree, with Alaska, California, Colorado, D.C., Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington having the most expansive laws for recreational use.  Although that certainly changes the criminal caseloads of judges in those states, it makes no difference in their personal conduct, as a recent judicial ethics opinion from Alaska advises.

The advisory opinion concludes that:  “As long as federal law criminalizes marijuana use, Alaska judges who choose to use marijuana violate the Alaska Code of Judicial Conduct.”  Alaska Advisory Opinion 2018-1.  The opinion relies on the provision in Canon 2A of the Alaska code that states that, “[i]n all activities, a judge shall exhibit respect for the rule of law, comply with the law, and avoid impropriety and the appearance of impropriety, and act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The opinion notes that the “requirement that a judge shall comply with the law includes federal law as well as state law and local laws.”

The opinion states that Alaska law on marijuana use is unique because it is based on a 1975 decision by the Alaska Supreme Court that the right to privacy in the state constitution protects the personal use of marijuana in the home.  See Ravin v. State, 537 P.2d 494 (Alaska 1975).  However, the opinion emphasizes that judges’ personal rights are limited by the code, for example, with respect to “speech, financial endeavors, and political activity to preserve their impartiality and ability to hear cases.”

Further, the opinion explains:

Marijuana use violates federal law and its use by a judge would reflect a lack of respect for the law by showing a selective attitude towards the law suggesting that some are appropriate to follow but others are not.  Public use of marijuana by a judge would further create an appearance of impropriety.

The opinion also states that judges are restricted “even in their personal use in the home” as a “reasonable and necessary” measure to preserve public confidence in the judiciary, noting that, “[o]ne never knows when an iPhone is out and ready to take a picture of a momentary indiscretion.”

Colorado is the only other state that has a judicial ethics advisory opinion on the subject, issued in 2014 in response to a judge who asked “whether a judge who engages in the personal recreational or medical use of marijuana (as opposed to commercial use) in private and in a manner compliant with the Colorado Constitution and all related state and local laws and regulations” violates the code.  Colorado Advisory Opinion 2014-1.

In Rule 1.1(B), the Colorado code states that “[c]onduct by a judge that violates a criminal law may . . . constitute a violation of the requirement that a judge must comply with the law” — “unless the violation is minor,” an exception unique to Colorado.  The advisory committee notes that the Committee to Consider Revisions to the Colorado Code of Judicial Conduct had been concerned that the requirement that a judge comply with the law was “vague and confusing” and “could subject judges to discipline for what typically are regarded as minor infractions, such as receiving a parking ticket or permitting the judge’s dog to run at large.”  Thus, the “minor” violation language was added in 2010.

However, the advisory committee stated that the exemption only applied to “violations of relatively insignificant traffic offenses and local ordinances, not state or federal drug laws.”  The committee recognized that, under federal law, simple possession of marijuana is a misdemeanor or even an infraction punishable only by a civil penalty under some circumstances.  Nevertheless, it concluded that, “while not necessarily a ‘serious’ offense, it is not a ‘minor’ offense within the meaning of Rule 1.1(B).  It is significantly more serious than the parking ticket and dog at large violation . . . .”

The committee emphasized that it is only authorized to provide an opinion on whether “intended, future conduct” complies with the code of judicial conduct, not on whether such conduct is censurable and, therefore, it was not opining on whether a judge who uses marijuana consistent with Colorado law should be disciplined.