Another Facebook fail

The West Virginia Judicial Investigation Commission publicly admonished a judge for posting on his Facebook page a photo showing him conducting an initial appearance.  Public Admonishment of Hall (West Virginia Judicial Investigation Commission October 31, 2017).

On September 5, 2017, the judge arraigned a woman on felony financial exploitation of the elderly and related charges for allegedly forging her dying mother’s will to receive more than $1,000,000.  WSAZ-TV filmed the arraignment and ran a story in which the judge prominently appeared.

The judge posted on his Facebook page a still photo of the video from the TV station’s story.  The photo showed him seated in court conducting the appearance with the caption, “Police:  Woman Exploits over One Million Dollars from Dying Mom.”

The judge’s post elicited several negative posts from members of the public, including “[d]isgusting,” “[h]ang ‘em high Brent,” “[h]opefully you set a high bond,” and “I didn’t think anything could be lower than rescinding DACA.  I was wrong.”  The comments also included statements of support for the judge’s handling of the arraignment, such as “[g]o Brent” and “[g]et ‘em Brent,” and [t]hat face!  Good one.”

The Commission “strongly” disagreed with the judge’s argument that he had not violated the code of judicial conduct because he posted the photo “without any comment, opinion, or statement.”  The admonishment explained:

There is an old maxim that “a picture is worth a thousand words.”  The saying is deigned to convey the concept that a single image often expresses an intricate idea better than any written description.  By placing that still photo on his Facebook page, Respondent expressed to his Facebook friends the woman’s perceived guilt in a louder voice and in a more certain tone then if he had actually written the words himself.

The Commission also found that the post was “designed to elicit responses from his friends because that’s what Facebook is meant to be – an alternate public means of communication,” noting “[t]he fact that the friends’ comments were largely negative is no surprise, and Respondent’s failure to remove them constituted a tacit endorsement of the same.”  The Commission emphasized that the judge’s action “was certainly contrary to the neutral and detached demeanor of all judges but was undoubtedly popular with his friends.”

The concern that a judge may be posting on social media with an eye more to engaging an audience than promoting confidence in the judiciary was also expressed in a 2015 public reprimand from Minnesota.  In the Matter of Bearse, Public reprimand (Minnesota Board on Judicial Standards November 20, 2015).  One of the judge’s Facebook posts described a medical school graduate’s petition to expunge her conviction for disorderly conduct because she could not be licensed with the conviction on her record.  The judge commented, “listen to this and conclude that lawyers have more fun than people.”  He then related that the conviction was based on the woman’s assault on her boyfriend whom she had found having sex with her best friend.  He stated that he granted the petition although “[s]he is about two years early based on our new statute” and if the prosecution appealed, “which they will not, I think I will be reversed.”

Comments on the judge’s post included, “I am always heartened by the application of common sense.  An excellent decision, in my opinion,” and “You’re back in the saddle again Judge.”  The Board found that the favorable comments could create the appearance that the judge’s “decisions on cases could be influenced by the desire to make a good impression of himself on his Facebook page” and noted its concern that the judge was “putting his personal communication preferences above his judicial responsibilities.”

The summer and fall issues of the Judicial Conduct Reporter were devoted to the issue of judicial ethics and social media.

Fall issue of the Judicial Conduct Reporter

The fall issue of the Judicial Conduct Reporter has been published and is available to download.  All past issues of the Reporter are also available on-line as free downloads, and there is an on-line index of Reporter articles.  You can sign up to receive notice when a new issue is available.

The issue has articles on abusing the prestige of office to attempt to obtain a favor, communications by a trial judge with a reviewing court, holiday gifts and parties, and a former judge’s use of the judicial title.  It also has summaries of recent cases in which judges were disciplined for giving interviews about a pending case; failing to disqualify from cases involving an attorney with whom the judge had a support relationship; and directing insulting, demeaning, and humiliating comments and gestures to children.

The article on requesting favors begins:

A judge’s appeal for a favor from police, prosecutors, or other judges is a classic example of “abus[ing] the prestige of judicial office to advance the personal or economic interests of the judge or others” in violation of Rule 1.3 of the American Bar Association 2007 Model Code of Judicial Conduct.  The crux of the misconduct is taking advantage of access not available to non-judges and/or expecting special consideration not accorded to the general public.

Using recent cases involving attempts by judges in person or on telephone calls to influence police officers, prosecutors, court staff, and/or other judges, the article demonstrates that “an explicit request, an express reference to the judicial office, or acquiescence by the other person are not necessary to prove a violation.”

Demonstrating the chronic nature of the problem, several additional cases about favor-seeking have been issued since the article was written.

  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld the removal of a judge for seeking the advice of another judge about her son’s case and acquiescing in his offer to communicate ex parte with the judge who was handling the case. In re Roca (Pennsylvania Supreme Court November 22, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for communicating in an ex parte e-mail and phone call with the judge presiding over her nephew’s criminal case and voluntarily testifying as a character witness on her nephew’s behalf at his probation revocation hearing, in addition to other misconduct. Public Reprimand of Hawthorne (Texas State Commission on Judicial Conduct November 9, 2017).

In addition, 2 judges were recently sanctioned for written communications on behalf of others.

  • The New York State Commission on Judicial Conduct publicly censured a judge for signing his name and judicial title beneath a defendant’s signature on a letter requesting that another judge change a plea for a traffic infraction. In the Matter of Sullivan, Determination (New York State Commission on Judicial Conduct March 13, 2017).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) invoking her judicial title and position in a letter on court stationery she wrote on behalf of her childhood babysitter to be filed in connection with a motion to vacate the babysitter’s conviction and (2) writing 2 affirmations on behalf of her son to be filed in the appellate division in connection with his criminal case. In the Matter of Ramirez, Determination (New York State Commission on Judicial Conduct May 4, 2017).

As the New York Commission explained in Ramirez, “[w]hen a litigant is the beneficiary of influential support from a judge based on personal connections, it creates two systems of justice, one for the average person and one for those with ‘right’ connections, and undermines public confidence in the impartial administration of justice and in the integrity of the judiciary as a whole.”  The Commission emphasized:

When asked to provide a letter or similar communication on behalf of a family member, friend or acquaintance, every judge must be mindful of the importance of adhering to the ethical standards intended to curtail the inappropriate use of the prestige of judicial office . . . .  Difficult as it may be to refuse such requests, the understandable desire to provide assistance and support must be constrained by a judge’s ethical responsibilities, including the duty to act “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” . . . .

Finally, the Virginia Supreme Court removed a judge for contacting 2 potential witnesses prior to his wife’s trial on federal corruption charges.  Judicial Inquiry and Review Commission v. Pomrenke (Virginia Supreme Court November 27, 2017).  The judge had sent his wife’s boss a handwritten note, with his judicial business card, that “was intended to make his wife’s employment secure” and “reflected an intent to influence a potential witness” by suggesting the boss would agree she “is absolutely honest, truthful, ethical, and innocent.”  In an attempt “even more overt in its intent to influence a witness,” the judge also left a voicemail message for another employee 3 days before she was expected to testify, asking her to “slip in” remarks that would be favorable to his wife, “even though it’s not directly in response to the questions.”  The Court found the judge had violated the prohibition on lending the prestige of office to advance private interests.

Throwback Thursday

Delegation resolution admonitions

November’s Throwbacks include a rare group judicial discipline:  25 years ago, in November 1992, 11 town court justices in New York were admonished for the same misconduct – improper delegation of bond decisions to the sheriff.

The 11 judges had signed a resolution passed by the Cayuga County Magistrates’ Association in February 1983 that authorized the county sheriff’s department to review and approve bail bonds presented by certified bondsman at the county jail and authorizing the sheriff to release the defendants on the judges’ behalf.  In accordance with that authority, the sheriff had released approximately 74 defendants who had been committed to jail by the judges.  After the defendants were released, the judges received the bail bonds from the sheriff’s department but, even though the bonds did not comply with statutory requirements, did not revoke bail, demand justifying affidavits, or take any other corrective action.

Emphasizing that, under state statutes, it was the judges’ responsibility to ensure that a bail bond assured that a defendant would return to court, the New York State Commission on Judicial Conduct stated that judicial duties cannot be delegated to jailers or other non-judicial officers.  The Commission concluded that, by authorizing the sheriff’s department to perform a judicial function and permitting a jailer to release defendants on legally insufficient bonds, the judges had not been faithful to the law and had not diligently performed their judicial duties.  New York State Commission on Judicial Conduct 1993 Annual Report, at 10.  See, e.g., In the Matter of Lockwood, Determination (New York State Commission on Judicial Conduct November 4, 1992) (judge permitted jailer to release 20 defendants on legally insufficient bail bonds).

For an additional discussion of “Improper delegation of adjudicative responsibilities,” see the article in the fall 2016 issue of the Judicial Conduct Reporter.  See also In the Matter of Hayes, Final judgment (Alabama Court of the Judiciary January 6, 2017) (delegating judicial authority to a private probation company in addition to other misconduct).

 

Recorded conversations

In 2011 and 2012, the FBI was investigating Philadelphia Municipal Judge Joseph Waters, including wiretapping his telephone communications.  Eventually, he pled guilty to federal mail fraud and honest services wire fraud for asking other judges for favors on behalf of campaign supporters.  In January 2016, the Pennsylvania Court of Judicial Discipline removed him from office.  In October 2016, that court removed former judge Joseph O’Neill based on his guilty plea to lying to a federal agent for denying that he had not been contacted by then-judge Waters about a case.

Last week, the Pennsylvania Supreme Court affirmed the removal of 2 more judges for their conversations with then-judge Waters and related misconduct.  Judge Angeles Roca was removed for seeking his advice about her son’s case and acquiescing in his offer to communicate ex parte with Judge Dawn Segal, who was handling the case.  In re Roca (Pennsylvania Supreme Court November 22, 2017).  Judge Segal was removed for listening to then-judge Waters’ requests for favorable treatment for parties in 3 cases (including that of Judge Roca’s son) and finding in favor of those parties.  In re Segal (Pennsylvania Supreme Court November 22, 2017).  Under the state constitution, the Court reviews whether sanctions imposed by the Court on Judicial Discipline are “lawful.”

The FBI recorded Judge Segal talking with then-judge Waters about 1 criminal case and 2 small claims case.  In the discipline proceedings, the parties stipulated that the recorded telephone conversations demonstrated that then-judge Waters used his position to request special consideration for litigants in an attempt to influence Judge Segal’s decisions; that Judge Segal entertained the ex parte requests for favorable treatment; and that her decisions ultimately favored those litigants.  In each case, the judge had called then-judge Waters and told him that she had complied with his request, for example, stating, “I figured it out and I took care of it” about the small claims case involving Judge Roca’s son.

The Court rejected Judge Segal’s argument that she had not ruled any differently based on the conversations and, therefore, had not committed misconduct.  The Court emphasized that the judge “knew that she had been approached by a corrosive influence, yet she remained in her decisional role while acting as if she was acceding to the improprieties.  Litigants can have little confidence that a judge proceeding in this way is rendering fair and impartial rulings; rather, they may reasonably believe that such a jurist is doing precisely what she said she was doing by engaging in favoritism.”

In June 2012, the FBI recorded Judge Roca asking then-judge Waters for advice after Judge Segal had denied her son’s pro se petition to open a $5,000 default judgment entered against him when he did not appear for a hearing on a complaint for failure to pay a business privilege tax.  Waters offered to talk to Judge Segal if a motion for reconsideration was filed.  After her son filed the motion, Judge Roca called then-judge Waters and, based on their conversation, understood that he would call Judge Segal on behalf of her son.  That day, Judge Segal reviewed the petition for reconsideration, issued a rule to show cause why the relief should not be granted, and then called Waters.  (The default judgment was ultimately vacated, and the case was withdrawn upon payment of $477 in taxes.)

On appeal, Judge Roca did not challenge the finding that she violated the code of judicial conduct, brought the judicial office into disrepute, and prejudiced the proper administration of justice.  However, she argued that removal was not lawful in light of precedent and the facts of this case, relying on decisions in which the Court of Judicial Discipline had imposed a lesser sanction for misconduct that “she views as equivalent to (or worse than) her own.”

The Pennsylvania Supreme Court acknowledged that the “concept that the penalty decided upon by the CJD should be subject to a proportionality requirement is not without some appeal” but stated “no such mandate is contained, or even suggested” in the constitution.  The Court held that the Court of Judicial Discipline “has wide discretion to fashion the appropriate penalty once it finds a predicate violation” and that “[s]imilarity of misconduct does not require identicality of sanction, for there are other factors that bear on that decision, including mitigating and aggravating considerations and how a particular jurist’s misconduct undermines public confidence in the judiciary.”

The Court did hold that, “[b]ecause the CJD may lawfully impose discipline warranted by the record, the unavoidable corollary is that a sanction which is not warranted by the record is not lawful and, as such, may be disapproved by this Court,” permitting the Court “to perform a final check in cases of an infraction met with an unreasonably harsh penalty completely out of proportion to the misconduct involved.”  The Court held that regardless whether it would have removed the judge from office if it were deciding in the first instance, her removal was not unwarranted by the record.

In a dissent, 1 justice acknowledged that no 2 “cases are perfectly identical,” but stated that the challenge of analyzing, analogizing, or distinguishing one case by reference to prior cases does not relieve the Court of Judicial Discipline “from its inherent obligation to do so.”

Absent fidelity to stare decisis, the CJD may arbitrarily sanction a jurist and, without the availability of meaningful appellate review, this Court has no ability to reverse it.  At a minimum, it must be this Court’s function, when reviewing a CJD sanctions ruling, to confirm that in reaching its decision, the lower court has engaged in a lawful judicial process which by necessity involves the application of stare decisis.  In the instant matter, the CJD removed an elected judicial official from office.  It imposed this sanction without any meaningful discussion of prior precedent.  As such, the sanction imposed in this case is ipso facto unlawful.

The dissenting justice argued that the removal order should have been vacated and remanded “for an opinion in which the CJD thoroughly examines its precedent before imposing a sanction in this case (and would require the same in every case it adjudicates).”  The same justice dissented for the same reasons in In re Segal, noting that, although the 2 judges’ misconduct differed materially, the Court of Judicial Discipline imposed the same sanction “while employing substantially identical language . . . .”

Throwback Thursday

5 years ago this month:

  • Based on a joint motion to resolve charges, the Alabama Court of the Judiciary reprimanded and censured a judge for failing to recuse himself from his son’s traffic violation case and dismissing the case. In the Matter of Durward, Reprimand and Censure (Alabama Court of the Judiciary November 21, 2012).
  • Based on the recommendation of the Commission on Judicial Conduct and a stipulated resolution, the Arizona Supreme Court censured a former judge for accompanying his niece while she collected nominating petition signatures for a candidate and for speaking at a political meeting. In the Matter of Pearce, Order (Arizona Supreme Court November 26, 2012).
  • With the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for assuming the role of the prosecutor when she attempted to negotiate a resolution to a defendant’s case after the defendant inquired about the status of his traffic infraction ticket and driver’s license suspension and for several ex parte conversations with the prosecutor about the same case. Public Admonition of Hagerty (Indiana Commission on Judicial Qualifications November 19, 2012).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a judge for telling a defendant, “I’ll beat your ass if you call me a liar.” In the Matter of Martin, 734 S.E.2d 165 (South Carolina 2012).

 

Resign-to-run rule

Rule 4.5 of the American Bar Association 2007 Model Code of Judicial Conduct provides that, “[u]pon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless permitted by law to continue to hold judicial office.”  Canon 5C(2) of the 1990 model code and Canon 7A(3) of the 1972 model code were similar, and California and Montana are the only states not to adopt a resign-to-run requirement.

The rationale for the rule was described in a federal case upholding the Louisiana canon against a First Amendment challenge by a judge who wanted to run for mayor without first resigning.  Morial v. Judiciary Commission, 565 F.2d 295 (5th Circuit 1977).  The U.S. Court of Appeals for the 5th Circuit acknowledged that “relegating one’s robes to the closet is a heavy price to pay for tossing one’s hat in the ring.”  However, the Court concluded:

By requiring a judge to resign at the moment that he becomes a candidate, the state insures that the judge will not be in a position to abuse his office during the campaign by using it to promote his candidacy.  The appearance of abuse which might enshroud even an upright judge’s decisions during the course of a hard-fought election campaign is also dissipated by requiring the judge to resign.  He who does not hold the powers of the office cannot abuse them or even be thought to abuse them.

Moreover, the Court agreed that resignation was necessary to prevent post-campaign abuse or its appearance, which could not be prevented by a leave of absence during the campaign.  Noting that a state is not required to rely on post-campaign measures such as recusal or disciplinary proceedings against judges who used their office improperly, the Court held that “a requirement that a judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state’s interest in preventing the actuality or appearance of judicial impropriety,” without offending the First Amendment’s guarantees of free expression and association or the 14th Amendment’s guarantee of equal protection of the laws.  Accord Matter of Buckson, 610 A.2d 203 (Delaware 1992).

Similarly, the Maine Supreme Judicial Court concluded the rule “rationally seeks to separate a judge’s political, legislative, or executive branch ambitions from the judge’s judicial decision-making to further the objective of maintaining a judiciary that is independent and impartial both in fact and in the public’s perception.”  In re Dunleavy, 838 A.2d 338 (Maine 2003).  Rejecting the judge’s state and federal constitutional challenges, the Court found that a probate judge had violated the code of judicial conduct by running for the state senate without resigning his judicial position, although it imposed no discipline.

A comment was added to the model code in 2007 to explain the basis for the rule.

In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office.  Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her.  The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.

Timing

The code does not define when a judge becomes “a candidate for a nonjudicial elective office,” triggering the resignation requirement, but it does provide that for a judicial office a person becomes a candidate “as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office.”  The same definition has been applied in interpreting the resign-to-run rule.

Thus, a judge must resign whenever the judge announces to the public the intention to run for a non-judicial office, whether by issuing a press release, filing with the proper authority, “or any other method by which he lets his candidacy become generally known.  To hold otherwise would permit the very appearance of impropriety to which the [resign-to-run rule] is directed.”  Kentucky Formal Opinion JE-23 (1981).

The Delaware Court on the Judiciary found that a judge who had publicly announced in a press release that he intended to have his “name placed before the Republican Convention to be the gubernatorial nominee for Governor of Delaware” had violated the code.  Matter of Buckson, 610 A.2d 203 (Delaware 1992).  The Court censured and removed him from office.

In a press release, the judge had stated:

The party deserves a choice.  This is not partisan politics and, therefore, not in violation of any rules pertaining to the judiciary.  When I am the nominee, I will resign my present position and ask the Governor to promptly name a successor acceptable to the Senate.

Based upon the contacts by many people since my November announcement, I have statewide support.  My plan is to attend functions of many of the Republican Party organizations to gain delegates to the convention by presenting my qualifications, . . . Based upon my experience in state government, I am eminently qualified to be Governor of Delaware . . . certainly more so than any person mentioned for the office to date.

So . . . on to the convention!  Thanks.

He had also attended regional party caucuses and other meetings to gain support.  Rejecting the judge’s “testing the waters” defense, the Court held that the record was clear that he had publicly announced his candidacy, his political activity went beyond that of a prospective candidate, and he had actively engaged in political activity to secure the nomination.

The Florida judicial ethics committee stated that when a person becomes a candidate may vary depending on the nature of the community.  Florida Advisory Opinion 1994-20.  In a large community, the committee advised, telling a few friends should not qualify the judge as a candidate for a non-judicial office, but in a small community, the situation may be perceived differently.  The committee noted that the resignation requirement is not triggered simply by an intent to run for office.

Further, a judge does “not have to resign merely to learn whether he has a realistic chance of election.”  Matter of Buckson, 610 A.2d 203 (Delaware 1992).  Thus, without having to resign, a judge may make preliminary surveys of financial and voter support (Kentucky Formal Opinion JE-23 (1981); Louisiana Advisory Opinion 35 (1976)) and discuss the possibility of becoming a candidate with the head of a local political committee, political party members, governmental officials, and political authorities.  New York Advisory Opinion 1991-44; New York Advisory Opinion 1997-65; New York Advisory Opinion 1993-55.

Offices

By its terms, the rule does not require a judge to resign before running for a different judicial office.  See Florida Advisory Opinion 2011-9 (civil traffic infraction hearing officer may run for county judge); Kansas Advisory Opinion JE-117 (2004) (municipal judge may run for district magistrate); Oklahoma Advisory Opinion 1998-3 (sitting appointed judge may run in judicial election); Tennessee Advisory Opinion 2003-4 (general session judge may run for state court judge).  But see In re Hodgdon, 19 A.3d 598 (Vermont 2011) (public reprimand of an assistant judge who failed to resign upon becoming a candidate for probate judge when the state’s code provides that, “A judge shall resign from judicial office upon becoming a candidate for any elective office, except that a judge of probate or an assistant judge may be a candidate for reelection or may serve as town meeting moderator, provided that the judge complies with the provisions of Section 5C”).

The model code allows a judge to be a candidate for appointment to a non-judicial office without resigning provided “the judge complies with the other provisions of this Code.”  A comment notes, “when a judge is seeking appointive nonjudicial office,” the dangers the resignation requirement was designed to prevent “are not sufficient to warrant imposing the ‘resign to run’ rule.”  The reporters’ notes further explain:

In addition, because a sitting judge may become a “candidate” for an appointive non-judicial office . . . merely by being considered by an executive branch officer for appointment, the Commission decided it was unwarranted to require automatic resignation.  This consideration is especially strong when the executive branch may be considering several nominees for the same position, and when the confirmation process, if any, is both lengthy and of uncertain outcome.

However, “[a]s a fail-safe,” the code reminds a judge who is a candidate for even an appointive non-judicial office “to abide by the other provisions of this Code (such as maintaining independence, integrity, and impartiality).”

Similarly, the Ohio judicial ethics committee advised that a judge was not required to resign from judicial office to become a candidate for appointment by a county central committee to the office of prosecuting attorney but that her activities would be limited by the code of judicial conduct.  Ohio Advisory Opinion 1998-6.  Thus, the judge could announce her intention to be a candidate to the public and to the appointing authority and seek support or endorsement “from individuals or organizations that are involved in the making of the recommendation for appointment to the office.”  However, the judge could not participate in any fund-raising and must ensure that her efforts to win the appointment do not interfere with the diligent and impartial performance of her judicial duties.  The committee advised that the judge should resign from judicial office before accepting the appointment if offered.

See also Nevada Advisory Opinion JE2011-15 (a judge must resign before becoming a candidate for appointment to the unexpired term of the elective office of district attorney); New York Advisory Opinion 2015-176 (a judge may reveal, discuss, and explore his interest in an interim appointment to non-judicial office with the public official who will make that decision if the position becomes vacant).

There are no other exceptions.  Thus, conduct commissions and advisory committees have stated that a judge must resign before running for:

See also South Carolina Advisory Opinion 8-2016 (a full-time magistrate cannot run for a political office).

Admonishing a part-time judge, the New York State Commission on Judicial Conduct found that he should not have run for the school board even if he was unopposed and even if the post was non-partisan.  In the Matter of Vosburgh, Determination (New York State Commission on Judicial Conduct September 24, 1991).  The Commission explained:

Although not openly aligned with major political parties, school board members in most jurisdictions of the state are elected, political officers.  Service on a school board often requires a member to take positions on controversial issues of community interest other than those related to the law, the legal system or the administration of justice.

The judge had been elected to fill an unexpired term on a local school board in May 1987; in November 1987, he was elected as a part-time town court justice.  When he stood for re-election to the school board in May 1990, he asked for an advisory opinion but ignored it when the judicial ethics committee stated that a part-time judge who was elected to the local school board before becoming a judge may not seek re-election to the board.  New York Advisory Opinion 1990-79.  The advisory committee explained:

Local school boards, both in urban and rural areas, are subjects of wide-spread community interest.  One of their principal functions is approval of budgets and fixation of school taxes, which are subject to controversy.  School board members may be at the center of such controversies and the object of public criticism.

Although the judge states that the school board district is a small part of the jurisdiction of the court, local attention focused on the school board could spread to the rest of the judicial area and to surrounding towns as well.  Thus, the judge could be highly visible in educational controversies, which could be inconsistent with judicial duties.  That the judge is unopposed for re-election does not preclude controversy while serving as a board member.

See also Washington Advisory Opinion 1985-8 (a part-time judge may not become a candidate for an uncompensated, non-partisan school board position in a school district outside the municipality in which the judge sits).

The judge’s resignation must be effective immediately upon becoming a candidate for a non-judicial elective position.  See New York Advisory Opinion 2009-126 (a judge who has announced his candidacy for an elective non-judicial office may not after resigning remain on the judicial payroll to receive compensation for accrued vacation time); West Virginia Advisory Opinion (February 23, 2012) (a mental hygiene commissioner must resign immediately upon becoming a candidate for the house of delegates and cannot be appointed for the limited purpose of serving as the substitute drug court judge during the election); West Virginia Advisory Opinion (January 27, 2011) (a magistrate must resign immediately on announcing his candidacy for sheriff and cannot remain in the position pending appointment of a new magistrate).

The resignation requirement cannot be circumvented by taking a leave of absence from a judicial office while running for a non-judicial office.  See New York Advisory Opinion 1989-126 (town justice may not take a leave of absence to campaign for town supervisor); South Carolina Advisory Opinion 7-1992 (a magistrate cannot simply take a leave of absence, without pay, to become a candidate for sheriff).  In California, there is no resign-to-run rule, and the state constitution allows a trial judge to “become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy.”  The California code of judicial ethics provides that a judge who is on leave while running for other public office pursuant to the constitution “shall comply with all provisions of this code, except . . . , insofar as the conduct relates to the campaign for public office for which the judge is on leave:  2B(2)—Lending the prestige of judicial office to advance the judge’s personal interest, 4C(1)—Appearing at public hearings, 5 — Engaging in political activity (including soliciting and accepting campaign contributions for the other public office).”  The California constitution provides that “[a]cceptance of the public office is a resignation from the office of judge.”

Throwback Thursday

20 years ago this month:

  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a part-time judge who had been disbarred for conduct involving dishonesty, fraud, and deceit in his handling of an estate as a private attorney. In the Matter of Embser, 688 N.E.2d 238 (New York 1997).
  • Accepting a stipulation consenting to the findings of fact, conclusions of law, and order of the Commission on Judicial Conduct, the Utah Supreme Court publicly reprimanded a judge for presiding over a criminal proceeding in which he knew that his mother-in-law would likely be a material witness. Inquiry Concerning Herring (Utah Supreme Court November 17, 1997).