Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for issuing a temporary restraining order in favor of Wal-Mart while the judge and his wife owned approximately $700,000 worth of Wal-Mart stock. Letter to Huffman (Arkansas Judicial Discipline & Disability Commission July 24, 2000).
  • Pursuant to the recommendation of the Commission on Judicial Qualifications, the Iowa Supreme Court removed a judge for (1) conducting initial appearances in her office, preventing others from being present; (2) violating clear procedural requirements when conducting arraignments and handling no-contact orders; and (3) frequent conflicts with almost all of the people with whom she came in contact.  In the Matter of Holien, 612 N.W.2d 789 (Iowa 2000).
  • Pursuant to an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court publicly reprimanded a judge and fined her $861.50 for dismissing approximately 11 tickets based on her ex parte communications with the defendants or other persons without notice to the officer or a hearing or trial. Commission on Judicial Performance v. Boykin, 763 So. 2d 872 (Mississippi 2000).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for playing the role of a judge in a commercial motion picture. In the Matter of Wolfgang, Determination (New York State Commission on Judicial Conduct July 5, 2000).

More Facebook fails and advice

Finding that “the extreme facts” of the case rebutted “the presumption of judicial impartiality” and established a due process violation, the Wisconsin Supreme Court held that a serious risk of actual bias was created in a custody dispute when, while his decision was pending following a contested hearing, the trial judge accepted a Facebook “friend request” from the mother; she interacted with him, including “liking,” “loving,” or commenting on at least 20 of his Facebook posts; and she “shared” and “liked” several third-party posts related to domestic violence, which was an issue in the case.  In re Paternity of B.J.M. (Wisconsin Supreme Court June 16, 2020).  The Court affirmed the decision of the court of appeals reversing the trial judge’s denial of a motion for reconsideration of his decision in the mother’s favor and remanding the case with directions that it proceed before a different judge.

* * *
A judge who failed to immediately recuse from all cases involving a female defendant with whom he was communicating on Facebook Messenger and by telephone, in addition to other misconduct, resigned and agreed to a permanent bar from judicial office pursuant to an agreement with the Arkansas Judicial Discipline & Disability Commission.  Letter of resignation and prohibition from office (Throesch) (Arkansas Judicial Discipline & Disability Commission May 1, 2020).

On April 15, 2018, the judge began communicating with a woman “on a personal level” by Facebook Messenger and telephone, progressing “from friendly to flirty.”  On June 4, the woman told the judge that she was facing charges in the district court on which he sat and a potential probation revocation in the circuit court.  The judge did not immediately recuse himself from her cases and continued to communicate with her.  On July 11, when the woman’s case was called in the judge’s courtroom, she entered a plea.  The judge then recused himself, and the case was set for a conflict docket to be heard by a special judge.

After he recused himself, the judge sent the following messages to her on Facebook Messenger, indicating that he would help with her charges:

  • “Are you done with everything except what u [sic] have in my court?”
  • “I am going to look at those [sic] traffic stuff and see what we can do. Your [sic] really trying and I hate to see u [sic] buried in fines.  I would do that for anyone who’s trying.”
  • “Well I want u [sic] to get everything behind u [sic]. We need to talk so I k ow hoe [sic] to help u [sic].”
  • “Message me first thing in the morning and I will call. Make sure you don’t tell anyone ur [sic] talking to me for lots of reasons.”

On July 27, the woman sent explicit photographs to the judge’s cell phone; in texts, the judge “requested additional photographs of the same nature.”

* * *
A Texas judge has asked for review of the admonition she received for congratulating attorneys on winning jury verdicts in her court and lauding their results and professional backgrounds in 8 posts on her Facebook page, which identifies her as a judge and which she uses to disseminate information about the court to the public.  Public Admonition of Gonzalez (Texas State Commission on Judicial Conduct March 18, 2020).

* * *
Effective July 2020, new commentary to Canon 2B of the California code of judicial ethics explains:

If a judge posts on social networking sites such as Facebook or crowdsourced sites such as Yelp or TripAdvisor, the judge may not lend the prestige of judicial office to advance the pecuniary or personal interests of the judge or others.  For example, a judge may not comment on, recommend, or criticize businesses, products, or services on such sites if it is reasonably likely that the judge can be identified as a judge.

* * *
Based on her admissions, the Montana Supreme Court suspended a judge for 30 days without pay for, in addition to other misconduct, (1) failing to remove from her Facebook page endorsements of her campaign from the county Republican Party, a Republican candidate for the state house of representatives, and a Libertarian candidate for the U.S. House, and (2) publicly endorsing on her personal Facebook page the Republican candidate for county commissioner and the Republican incumbent candidate for county attorney.  Inquiry Concerning Harada, 461 P.3d 869 (Montana 2020).  Montana judges are chosen in non-partisan elections, and the Montana code of judicial conduct prohibits judges and judicial candidates from publicly endorsing a partisan candidate for a non-judicial public office and from using endorsements from partisan political organizations, partisan office-holders, or partisan candidates for non-judicial public office.

The judge admitted the violations but noted that she had established privacy settings on her personal profile to keep Facebook posts expressing her personal views from becoming public, relying on American Bar Association Opinion 462 (2013).  The judge acknowledged that the Judicial Standards Commission’s requirements were “more stringent” than the ABA’s guidance.  The ABA opinion states:  “Judges may privately express their views on judicial or other candidates for political office, but must take appropriate steps to ensure that their views do not become public,” by managing privacy settings on social media sites to restrict “the circle of those having access to the judge’s [social media] page,” to limit the ability of some connections to see others, to limit who can see the judge’s contact list, or to block a connection entirely.

* * *
Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for, during her election campaign, liking or replying to crude comments on Facebook by her supporters about her election opponent, in addition to other misconduct.  In the Matter of VanWoeart, Determination (New York State Commission on Judicial Conduct March 31, 2020).  Screenshots of the Facebook posts are included with the agreed statement of facts.

During her 2018 campaign for office, the judge created and administered a Facebook group called “Friends to Elect Michelle VanWoeart Judge for the Town of Princetown.”  The incumbent, Judge Norm Miller, was her opponent in both the primary and general elections.

After the primary, another member of the Friends to Elect Michelle VanWoeart group posted:  “Michelle VanWoeart you won???  YESSSSSSSS congratulations!!!!!!  Time to take out the trash!!  #amen #outwiththetrash #sorrynotsorry,” which was a reference to then-judge Miller.  The judge clicked the “like” button on that post.

Another member posted:  “Great job, Princetown!!  BUT, Dirt Bag Norm will try to find some obscure line to keep going ….. don’t let your guard down on this SH*T HE*D.”  The judge replied, “Thank you.”

The judge published a post on the Friends group page stating, “Yup.  Millers [sic] flyers sent out packed full of lies.”  The judge clicked the “like” button on a comment another member posted:  “I’d like to shove the flyers up Norm’s butt!”

After the general election, another member of the group page posted a “gif” image of a man throwing a bag of trash down a driveway and into a trash can, with the statement, “I knew you had this!  Congratulations!!  The trash has been taken out!”  The judge clicked the “like” button on the post.

The judge stipulated that her responses to the posts had violated the provision in the New York code of judicial conduct requiring that a judicial candidate “maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary.”

* * *
The Florida judicial ethics committee issued 2 advisory opinions on the use of social media in judicial election campaigns.

  • A judicial candidate’s campaign committee may maintain a Facebook page and post on the candidate’s behalf communications written in the first person about, for example, campaign events, candidate appearances, public speeches, and the candidate’s qualifications, provided the first-person communications do not seek financial support or public statements of support. Florida Advisory Opinion 2020-10.
  • A judicial campaign website or social media page may include a video of the candidate personally describing their experience, qualifications, and similar subjects; an invitation to potential followers to watch the campaign website for updates and to submit questions to the candidate; and personal requests for support in both English and Spanish, as long as the candidate does not ask for donations and the candidate’s answers to questions do not constitute promises of future conduct or other prohibited statements. Florida Advisory Opinion 2020-13.

* * *
In an advisory opinion, the Michigan judicial ethics committee stated that judicial candidates may advertise their own campaigns on their “personal or professional social media accounts” as long as it is the candidate’s committee, not the candidate, that solicits funds.  Michigan Advisory Opinion JI-147 (2019). In general, the opinion stated that judges may have social media accounts as long as their activity on those platforms does not violate the code of judicial conduct.  The committee emphasized that the format does not change a judge’s ethical obligations “even though social media allows a greater audience with a single click” but noted that “this creates potential issues for judicial officers . . . who post matters without thinking through the matter thoroughly.”

In a separate opinion, the Michigan committee advised that judges may show their support for charitable organizations on social media.  Michigan Advisory Opinion JI-148 (2029).  Specifically, the committee advised that “judges may allow their names and photographs to be shown on the website or in the social media of a charitable organization if the use does not:  (1) appear to be the judge’s personal solicitation for funds; (2) coerce participation from others; or (3) compromise the integrity of the court.”  The opinion also stated that judges may include in a social media profile their membership on charitable boards and allow those positions to be listed on the organizations’ websites and social media “as one among many board members.”  Such references are akin to “the judge’s curriculum vitae for public speaking engagements” and “a digital version of the old-school concept of letterhead.”

However, the committee advised that a judge should not post about making a specific pledge or donation to a charitable organization because such a post “is likely to be perceived” as the judge’s personal suggestion that others should “follow suit.”  Further, to prevent the implication that the prestige of office is being used to benefit the organization, the opinion stated, an organization should not publicly disclose a financial contribution by a judge in a different manner than a contribution by any other individual.

The opinion also emphasized that, if a judge has reservations about an organization, the judge should avoid any association, including through social media and other digital media.  Specifically, the committee noted the prohibition on a judge associating with an organization that “discriminate[s], or appear[s] to discriminate, on the basis of race, gender, or other protected personal characteristic.”

* * *
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 on the Center for Judicial Ethics website.

 

Throwback Thursday

25 years ago this month:

  • Pursuant to the judge’s consent, the California Commission on Judicial Performance publicly admonished a judge for saying “good boy” to an African-American adult man during a hearing.  Public Admonishment of Flier (California Commission on Judicial Performance July 27, 1995).
  • Upholding the recommendation of the Commission on Judicial Performance, the California Supreme Court removed a judge from office for (1) engaging in several business transactions with and accepting a gift from a litigant to whom he had awarded a substantial verdict, (2) advising members of a law firm on cases pending before other judges, (3) receiving gifts from attorneys whose interests had or were likely to come before him, (4) failing to disqualify himself or disclose his relationship with those attorneys or their firms when they appeared before him, and (5) making material misrepresentations and omissions to the Commission during its investigation.  Adams v. Commission on Judicial Performance, 897 P.2d 544 (California 1995).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) in 10 cases, repeatedly issuing dispositive orders without making findings of fact or setting forth his reasoning, contrary to law, and despite criticism by the appellate court; (2) repeatedly refusing to accept reply papers on the day of oral argument for contested motions, even though the papers were served within the permissible period, despite appellate court decisions reversing his rulings on grounds of his refusal to accept such papers; (3) a heated verbal confrontation with a neighbor that resulted in the judge being questioned by the police; and (4) failing to fully disclose his income and liabilities for 1992 in the financial disclosure statement required by law.  In the Matter of Dier, Determination (New York State Commission on Judicial Conduct July 14, 1995).
  • The New York State Commission on Judicial Conduct publicly censured a judge for imposing a sentence in a case to retaliate against the defendant for firing her from her other employment. In the Matter of Lindell-Cloud, Determination (New York State Commission on Judicial Conduct July 14, 1995).
  • The North Dakota Supreme Court publicly censured a former judge for serving as a member of a municipal airport authority while serving as a judge and drafting agreements between the authority and 2 individuals.  In the Matter of Grenz, 534 N.W.2d 816 (North Dakota 1995).

 

Appropriate discourse or personal attack

Approving a resolution proposed by a special committee, the Judicial Council of the U.S. Court of Appeals for the 7th Circuit publicly admonished a district court judge for the first 2 sentences of a law review article he wrote entitled “The Roberts Court’s Assault on Democracy.”  Resolution of Complaints Against Adelman (7th Circuit Judicial Council June 22, 2020).  The article was published in March in the Harvard Law Review. 

The article begins:

By now it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes,” was a masterpiece of disingenuousness.  Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides.

According to the Council, the thesis of the article is that, in a number of decisions over the last 15 years, the U.S. Supreme Court has “undermined the rights of poor people and minorities to vote” and “increased the economic and political power of corporations and wealthy individuals,” resulting in “a form of government that is not as responsive as it should be to the will of the majority of the people.”

There were media reports about the article, and 3 individuals filed complaints.  For example, one stated:  “I don’t see how a party with a conservative background appearing before Judge Adelman could be confident that they would receive fair, even‐handed treatment.”

The Council noted that the complaints raised “competing policy considerations in an area of judicial ethics where there is ample room for disagreement.”

The nation has a long tradition of vigorous public debate over Supreme Court decisions, and judges, including judges in the district and circuit courts, have long participated in those debates.  Judges are able to bring special insight and perspective to those debates.  At the same time, judges also have special responsibilities stemming from their roles in dispensing even‐handed justice in all cases that come before them and in strengthening public confidence in the judiciary.

Noting that the judge drew much of his article “from dissenting opinions in the decisions he criticizes,” the decision stated that “judges criticize one another’s reasoning, sometimes harshly” and that the admonishment should not “be interpreted as suggesting that judges should be silenced from criticizing court decisions.”  The Council concluded that “the vast majority” of the judge’s “substantive criticism of Supreme Court decisions” was “well within the boundaries of appropriate discourse,” although it noted it was not “endorsing or disagreeing” with his views.

On the other hand, the Council explained, federal judges “need to write and speak in ways that will not interfere with their work as judges” or “with public perceptions that the judges will approach the cases before them fairly and impartially.”  It explained:

The opening two sentences could reasonably be understood by the public as an attack on the integrity of the Chief Justice rather than disagreement with his votes and opinions in controversial cases.  The attacks on Republican party positions could be interpreted, as the complainants have, as calling into question Judge Adelman’s impartiality in matters implicating partisan or ideological concerns.  While not addressed by specific rules of judicial conduct, these portions of the article do not promote public confidence in the integrity and impartiality of the judiciary.

In response to the complaints, the Council noted, the judge “tried to amend the article,” but it was too late, and offered to publicly acknowledge that “some points in the article are worded inappropriately,” to disavow “any intention to criticize the integrity of the Chief Justice or any other Justices,” and to reaffirm “his commitment to impartial administration of justice, in all cases of any type and with any parties.”  The Council also recognized that the judge “is a thoughtful and hardworking judge who has presided fairly over thousands of cases in his career.”

Finally, the Council noted that the public admonition would remind “all judges within the circuit of our obligations to ensure that judges’ public speaking and writing do not undermine public confidence in the fair administration of justice.”

Complaints like this, about judges’ non‐judicial writings, have been rare and should stay that way.  There is ample room for federal judges to speak and write about the law, including criticisms of past decisions, without prompting appropriate complaints.  Judges should be encouraged to do so consistent with Canon 4 for purposes of public and legal education.  At the same time, it behooves all federal judicial officers to speak and write about the law with special care for their responsibilities to the public and to the larger judicial system, including refraining from personal attacks.

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for being “terse” with the litigants at the start of a judgment debtor’s examination, making mocking and demeaning comments to the judgment debtor, and continuing with the judgment debtor exam even after learning that the judgment debtor had filed for bankruptcy prior to the hearing date. Williams, Order (Arizona Commission on Judicial Conduct June 22, 2015).
  • Based on a stipulated resolution, the Arizona Supreme Court publicly censured a judge for failing to disclose that he jointly owned property with a litigant in 2 protective order proceedings. Bravo, Order (Arizona Supreme Court June 26, 2015).
  • Based on a stipulation and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court suspended a judge for 30 days without pay for using social media to a ask her friends to help her husband, at the time a judicial candidate, correct perceived misstatements by his opponent. Inquiry Concerning Krause, 166 So. 3d 176 (Florida 2015).
  • Accepting a stipulation and approving the findings and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for, at the inception of her judicial campaign, failing to follow Florida law when she opened her campaign account and lent money to her campaign prior to filing the necessary qualification paperwork. Inquiry Concerning Griffin, 167 So. 3d 450 (Florida 2015).
  • Agreeing with the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge for her deceptive conduct as an attorney toward her clients and co-counsel in the settlement of multi-party litigation. Inquiry Concerning Watson, 174 So. 3d 987 (Florida 2015).
  • The Kentucky Judicial Conduct Commission suspended a judge for 15 days without pay for holding a hearing to resolve issues concerning the internal operation of the county’s attorney’s office at which he demeaned and denigrated his election opponent, a chief assistant criminal court prosecutor. In re Popovich, Findings, conclusions, and order (Kentucky Judicial Conduct Commission June 18, 2015).
  • The Mississippi Supreme Court suspended a chancellor for 30 days without pay, fined him $1,000, and publicly reprimanded him for ignoring a supersedeas bond that stayed execution of a judgment pending appeal, holding the appellant in contempt, and ordering him incarcerated. Commission on Judicial Performance v. Littlejohn, 172 So. 3d 1157 (Mississippi 2015).

Virtual, personal campaign solicitation

In response to an inquiry from a judicial candidate, the Florida Judicial Ethics Advisory Committee issued an opinion addressing the new judicial campaign fund-raising methods necessitated by “social distancing, self-quarantine requirements, and other requirements in view of the COVID-19 pandemic.”  Florida Advisory Opinion 2020-9.

The candidate asked 2 questions about virtual events:

  1. May a judicial candidate appear on a computer or TV screen during a video meet and greet or video fundraiser while a donation button appears on the screen?
  2. May a judicial candidate appear on a computer monitor for a virtual fundraiser and can a donation button appear if the candidate leaves the screen temporarily, and then the button disappears when the judicial candidate reappears on the screen?

In response, the committee emphasized that “the same principles applicable to in-person campaign events and activities are applicable to virtual campaign events and activities.  Specifically, a judge or judicial candidate may not in any way take part in the solicitation of campaign contributions.”

The committee concluded that a judicial candidate may appear on screen during a virtual fund-raiser sponsored by the candidate’s campaign committee – as long as there is no donation button on the screen. The committee explained that allowing a candidate appear when a donation button is also on the screen would be the same as “permitting a member of the committee of responsible persons to hold up a donate sign, while the judicial candidate was addressing potential supporters at an in-person campaign event or activity.”

Further, the committee advised, a candidate must leave a virtual meeting before the campaign committee asks for contributions and “may not come back to the virtual meeting after the ask.”  It explained:  “The candidate should leave the virtual meeting when the solicitation occurs, so as to avoid the impression which a reasonable person may draw that the solicitation was being made by the candidate.”  To “more clearly eliminate concerns over the appearance of improper soliciting,” the committee added that the candidate’s departure from the virtual meeting should be announced because “simply leaving a virtual meeting is not always that easily noticed by those who continue to participate.”

The candidate also asked the committee 2 questions about telephonic events:

  1. May a committee of responsible persons solicit donations for a judicial candidate during a telephonic campaign event if they are in another room other than the judicial candidate and the judicial candidate temporarily leaves the event during the request?
  2. May a judicial candidate work with a committee of responsible persons to do introductions telephonically and once the judicial candidate leaves the conversation may members of the committee solicit support and/or donations?

The committee stated that a candidate may appear during a telephonic campaign event sponsored by the candidate’s campaign committee but must leave the event before the committee asks for contributions, the departure must be announced, and the candidate may not come back to the event after the ask.

Finally, the committee prohibited a candidate from making introductions during a telephonic campaign event before leaving the conversation to allow members of the committee to make the solicitation.  The committee explained that solicitation method is a “’transparent attempt to avoid a “personal” solicitation.  It remains solicitation by the candidate but done with a wink and a nod.  The presence of the candidate in the conversation continues.  It is as if the candidate is looking over the shoulder of the solicitor.’”  The committee quoted Wisconsin Advisory Opinion 1997-7.  The committee did add that a candidate may advise or give direction to a member of the campaign committee about “persons from whom to solicit contributions, without otherwise being present during the solicitation.”

The Florida code of judicial conduct provides:

A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy.

The prohibition on personally soliciting contributions is similar to Rule 4.1A(8) in the ABA Model Code of Judicial Conduct.  The U.S. Supreme Court rejected a First Amendment challenge to the prohibition in Williams-Yulee v. The Florida Bar, 575 U.S. 433 (2015).  The prohibition on personally soliciting publicly stated support was eliminated from the model code in the 2007 revisions.

Recent cases

  • Accepting the recommendation of the Commission on Judicial Conduct, which the judge did not contest, the Alaska Supreme Court publicly reprimanded a judge for failing to decide a matter for more than 6 months and signing pay affidavits that she should have known were not accurate.  In the Disciplinary Matter Involving White (Alaska Supreme Court May 8, 2020).
  • Pursuant to an agreement with the Arkansas Judicial Discipline & Disability Commission, a judge resigned and agreed to a permanent bar from holding judicial office in the state for (1) failing to immediately recuse from all cases involving a female defendant with whom he was communicating on Facebook Messenger and by telephone and engaging in ex parte communications with her about her cases after he recused; and (2) calling the mayor and the police chief after his wife received a traffic ticket and using unprofessional language and exhibiting unbecoming demeanor during the call.  Letter of resignation and prohibition from office (Throesch) (Arkansas Judicial Discipline & Disability Commission May 1, 2020).
  • Based on an agreement, the California Commission on Judicial Performance publicly admonished a judge for, in several hearings in a family law case, making comments that demonstrated embroilment, bias, and pre-judgement and that were discourteous and undignified, including accusing the parents of damaging their child and initiating a discussion about religion with a witness.  In the Matter Concerning Gary, Decision and order (California Commission on Judicial Performance May 14, 2020) .
  • Based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for routinely conducting first appearances without complying with statute and the rules of criminal procedure and engaging in improper ex parte communications with defendants, witnesses, litigants, family members, and others regarding cases or matters pending, impending, or likely to come before him.  Inquiry Concerning Scaff (Florida Supreme Court May 28, 2020) .
  • Based on the findings and recommendation of a 3-judge panel, the New Jersey Supreme Court removed a judge from office for (1) his coarse questioning of an alleged domestic violence victim during a hearing and his sophomoric comments to staff members in open court after the hearing; (2) asking a court employee to contact her counterpart in another court to request that his personal guardianship matter be rescheduled to accommodate him; (3) failing to recuse himself from a matrimonial matter when he had known both parties since high school and “drastically” reducing a judgement based solely on the husband’s testimony; and (4) threatening and belittling an unrepresented litigant in an ex parte conversation.  In the Matter of Russo (New Jersey Supreme Court May 26, 2020).
  • The Pennsylvania Court of Judicial Discipline removed a former judge from office and banned him from serving in office again based on its guilty plea to federal charges of mail fraud and filing a false personal income tax return and his conviction on federal perjury charges.  In re Mulgrew, Opinion and order (Pennsylvania Court of Judicial Discipline May 6, 2020).
  • The Pennsylvania Court of Judicial Discipline removed a former judge from office and barred him from further judicial service based on his guilty plea to federal charges of conspiracy to commit money laundering and extortion under color of official right.  In re Waltman, Opinion and order (Pennsylvania Court of Judicial Discipline May 6, 2020).

Marching

Judges sometimes ask judicial ethics advisory committees whether they can participate in marches, vigils, and similar issue-related community events.  This is the advice committees have provided:

  • Before attending a march, rally, or protest, judges must assume their participation will be scrutinized, publicized, and depicted in reports of the event, including in press coverage or on social media; and consider whether participation “would appear to a reasonable person” to undermine the judge’s “independence, integrity, or impartiality or demean the judicial office,” which is an objective standard. Judges should examine the official title of an event, its stated mission, its sponsors, and its organizers.  If a judge participates in a march, rally, or protest focused on social, legal, or political issues that may become the subject of litigation or that is sponsored or organized by individuals or entities who regularly appear in state court proceedings, a reasonable person may have cause to question the judge’s independence and impartiality when making decisions about those issues, individuals, or entities in subsequent cases.  Judges must also scrupulously avoid any extra-judicial activity tied to an organization that practices invidious discrimination.  Judges should not participate in a march, rally, or protest if such participation could reasonably be viewed as supporting or opposing a candidate for public office or as speaking publicly on behalf of a political organization.  Even if a march, rally, or protest relates to the law, the legal system, or the administration of justice, there are potential ethical pitfalls.  Even assuming attendance at a march, rally, or protest is appropriate in the first instance, a judge must remain vigilant and be prepared to leave if the event proves problematic.  Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating.  Arizona Advisory Opinion 2018-6..
  • A judge may attend ceremonies held by law enforcement agencies to honor officers killed in the line of duty. Florida Advisory Opinion 1992-34.
  • A judge may attend a Mothers Against Drunk Driving candlelight vigil if it is not a fund-raising event and the judge’s attendance would not be announced. Florida Advisory Opinion 1995-41.
  • A judge may participate in a “March for Science” if it is centered on matters that are unlikely to come before the court. To determine whether to participate in an issue-related gathering, a judge should thoughtfully examine whether the issues might be likely to come before the court or adversely impact judicial independence or the appearance of impropriety or the appearance of impropriety or bias.  Illinois Advisory Opinion 2019-1.
  • A judge may not participate in the Women’s March on Washington scheduled for the day after the presidential Inauguration. Massachusetts Letter Opinion 2016-10.
  • Judges may not participate in a candlelight vigil celebrating the one millionth child served by CASA programs across the country even if the vigil is non-partisan and not connected with fund-raising. New Jersey Advisory Opinion 2008-1.
  • A judge must not participate in a high-profile, apparently non-partisan march to recognize the importance of scientific endeavors and rational thought in society unless she determines that the march is not co-sponsored by or affiliated with any political organization and does not support or oppose any political party or candidate for election and her participation will not involve her in impermissible political activity or insert her unnecessarily into public controversy. In the period leading up to the event, the judge must monitor the march’s agenda and publicly reported affiliations and sponsorships.  A judge may not participate in a local political rally, march, or demonstration sponsored by grassroots organizations, even if she would refrain from speaking.  New York Advisory Opinion 2017-38.
  • A judge may not appear at a candlelight vigil for those affected by domestic violence. New York Advisory Opinion 2010-59.
  • A family court judge should not attend a tree planting and candlelight vigil on behalf of victims of crime in the judge’s county. New York Advisory Opinion 2004-91.
  • A judge may attend “A Day of Remembrance” ceremony to honor victims of domestic violence but should take care that his mannerisms, actions, or speech do not cast doubt on his impartiality and should not act as an advocate or in any way indicate a predisposition as to how he might rule in a domestic violence case. Washington Advisory Opinion 1996-16.

 

Judicial Conduct Reporter

The spring issue of the Judicial Conduct Reporter has been published.  The issue has articles on:

  • Judicial discipline for drunk driving
  • Public hearings in judicial discipline proceedings
  • Why do judicial conduct commissions dismiss so many complaints?
  • Recent cases
    • Intoxicated altercation (In the Matter of Adams, Jacobs, and Bell, 134 N.E.3d 50 (Indiana 2019))
    • Letter of support (Inquiry Concerning Lederman, Caballero, Figarola, Pooler, and Ruiz (Florida Supreme Court 2020))
    • Review and approve (Public Reprimand of Leahy (Minnesota Board on Judicial Standards 2020))
    • “Beyond mere friendly conversation” (Disciplinary Counsel v. Porzio (Ohio Supreme Court 2020))
    • Much more than catching extra fish” (In the Matter of Ferguson (West Virginia Supreme Court of Appeals 2020))

The Judicial Conduct Reporter is published electronically, and an index and current and past issues of the Reporter are available on-line.  Anyone can sign up to receive notice when a new issue is available.

“A calm steady hand” needed

Based on an agreement, the California Commission on Judicial Performance publicly admonished a judge for, in several hearings in a family law case, making comments that demonstrated embroilment, bias, and pre-judgement and that were discourteous and undignified, including accusing the parents of damaging their child and initiating a discussion about religion with a witness.  In the Matter Concerning Gary, Decision and order (California Commission on Judicial Performance May 14, 2020).  The Commission emphasized:

Family law matters can be particularly fraught with emotion.  These situations are when a calm and steady hand, a respectful demeanor, and the appearance of neutrality are especially needed.  A judge may convey to family law litigants the judge’s concerns about the detrimental effects that high-conflict disputes may have on children, but may not do so by telling parents, in harsh terms, that the judge knows how their children will turn out.  Judges may also express their concerns about counsel’s conduct, but may not do so in a disparaging manner, or in a manner that is likely to interfere with the attorney-client relationship.  Judges may also question witnesses, but must comply with the canons’ mandates of patience, dignity, and courtesy when doing so.

From January 2017 through December 2018, in In re Marriage of Battilana, the judge presided over more than a dozen hearings on the mother’s request to relocate with the parties’ minor child to Oregon and for attorney fees and later an ex parte request about summer visitation and the child’s asthma medication.  On April 17, 2018, the judge issued a decision and order on the relocation/custody issues.  On May 29, the father filed for bankruptcy.

The Commission found that, during those hearings, the judge made comments that demonstrated embroilment, bias, and prejudgment.

  • The judge remarked that he was “picking sides,” “knew where the problems lie,” and “the parties are going to find themselves with nothing in the end.”
  • The judge stated, “I hate it that I have been brought into this personally. I hate it.  That is not the role of a judge, and frankly, it’s not the role of parties to involve a judge like has happened here.”
  • The judge told the parties, “On January 30th you went on my radar. By the time we got to July, I thought about you after work, unusual.  I was always watching for your case.  I even kept your file in my chambers for a while, for a long while.  When pleadings would come in, I would keep the pleadings.  You were always on my radar. . . .  And I had told you guys the path you’re going down, you shouldn’t be going down ad nauseam.  And that in the end what I fully intended was that someone is going to win and someone is going to lose, and it will be big time.  Judgment day is today.  One of you will win.  One of you will lose, and judgment day will be big time.”
  • The judge stated, “Way to go. Way to go.  I’m done.  Go off to trial, burn it all up.  Good luck.”

The Commission also found that the judge’s accusations that the parents were damaging their child were undignified and discourteous, could be reasonably perceived as reflecting bias or prejudice, and failed to promote public confidence in the integrity and impartiality of the judiciary.  The judge had said:

  • “[H]ow bad do you want to ruin your child.”
  • “And good luck to [the child], because it ain’t going to turn out well for her.”
  • “[S]he’s going to get divorced. And your grandkid is going to go through the same things she’s going through because this is all she knows.”

In her testimony, the father’s mother appeared to criticize the mother for not taking the child to the doctor or calling the doctor when she was running a fever.  The following exchange then took place:

THE COURT:  Sure.  How do you think Jillian [the mother] got the prescription?THE WITNESS:  I have no idea, sir.
THE COURT:  Do you know whether Jillian is a pharmacist?

The Commission found that that question was sarcastic.

The grandmother also testified that, although she had heard disagreements between the mother and the father, she had stayed out of them.  Subsequently, the judge, while questioning the mother, made a remark about the grandmother “suffer[ing] a bout of amnesia.”  The Commission found that remark was gratuitous and noted that, although “judges may examine witnesses to elicit or clarify testimony, they must not become an advocate, comment on the evidence, or cast aspersions about, or ridicule, a witness.”

A retired licensed clinical social worker testified that she heard the child say her father was going to die and that a 2-year-old child does not understand death.  The judge then discussed with the social worker the purpose of religion and the promise of everlasting life, referencing the Bible.  For example, he stated:

In fact, it’s healthy for a person [to face death], at least in this trier of fact’s opinion since I’m having to rule on the best interest of your child.  Death is part of life.  In fact, it’s one of the certainties of life.  And the reason I raised religion is not to get into a deep philosophical religious discussion, but to address this witness’s concern with these two parents that a child not understanding the permanence of death, that is true, but parents or adults also struggle with the permanence of death.  And one of the ways they cope with the permanence of death is through religion, through the promise of when you die, somehow you will live again.  The Christian religion — I know dad goes to church, or at least I’ve heard testimony.  The Christian religion, you will have everlasting life, John 3:16.  If you go through that, what is the purpose for that for adults?  This is all commentary on the side.  It’s so that you don’t have to face the permanence of death.  Well, the truth of the matter is we don’t know.  Some of us have strong opinions one way or the other on that.  Wars have been fought over that, are continually fought over religion.  My concern is not as much the statement having been made unless there is solid proof that one of you is running around saying to the child your daddy’s going to die soon.  Your mommy is going to die soon.  If that’s happening, that is way, way out of bounds.  But you should both understand that children pick up on things and say things that sometimes just totally come out of the blue.  It could come from a Disney movie.  It could come from something from a book.  It could come from anywhere.  My bigger concern is not the child’s affect, whether she said it and the fact that she said it, that was easily addressed.  Rather than lawyering up and litigating the issue – let me say that again.  Rather than lawyering up and litigating the issue, you might want to sit down with your daughter, put her on your lap and say, sweetheart, I’m not going to die any time soon.  I love you.  I’m going to be around, but death is part of life.  We have pets that die.  We have flowers that die.  Mr. Cohen, are you listening?  What I want the parties to do i[s] in these situations, rather than blow this up and run to court and point fingers, the answer to this question, the answer to this issue was [to communicate].

The Commission found that these comments “improperly injected religion into court proceedings, and created an appearance of lack of impartiality . . . .  As the commission has previously stated, ‘The bench is not a pulpit nor soapbox for self-expression.  A litigant is entitled to assume that a judge’s attention will be focused entirely upon the relevant facts of his or her case, and that his or her cause will be judged dispassionately – without consideration of anyone’s religion. . . .”

At the first hearing after the father filed a bankruptcy petition, the judge stated that the father’s attorney “burned [him] every time he [could],” was “not professional,” was “undignified,” and “detracts from the quality of the bar.”  The Commission found that these remarks were undignified, discourteous, and reasonably likely to interfere with the attorney-client relationship.

The Commission also found that the judge had been discourteous and undignified by:

  • “Mocking the father’s name (‘it’s a battle’),”
  • “Accusing the parties of engaging in excessive litigation and of ‘churning fees,’”
  • “Remarking that an attorney was about to ‘come out of [his] underwear,’”
  • “Commenting about the parties ‘lawyering up,’ telling the parties they could ‘bleed out’ and to ‘grow up,’”
  • “Repeatedly referring to the case as ‘contrived,’ stating that it was a ‘nothing case,’” and
  • “Responding to the father’s question about whether he should follow the mother’s orders rather than the doctor’s, by stating, ‘What part of that is hard to understand?’ and ‘What you’re doing is bickering. What that was, that was a challenge to my order now masquerading as some sort of valid question.  No, it wasn’t.  It was just a challenge to the order.  It was bickering.’”

The Commission stated that the judge’s “misconduct was significantly aggravated” because, in 2014, he had received an advisory letter for misconduct in 2 family law matters.