More Facebook fails

Independent investigation

The Arizona Commission on Judicial Conduct publicly reprimanded a judge for discussing in a minute order a social medial post criticizing him, in addition to other misconduct.  Staggs, Order (Arizona Commission on Judicial Conduct November 17, 2020).

B.W. was a defendant in a criminal case.  B.W.’s spouse criticized the judge in a post on social media, and the judge’s wife brought it to his attention.  In a minute order in B.W.’s case, the judge discussed the post, described its alleged inaccuracies, and requested that it be corrected.  The Commission found that the judge’s review of the post was an improper independent investigation and that “his choice to respond to social media criticism in an official public record did not inspire confidence in the judiciary.”

Public support

Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for publicly supporting the teachers at her daughter’s school in litigation with the board of education by making repeated public comments about issues and individuals in person, by email, and on social media platforms in which she was publicly identified as a judge; providing legal information and advice to parents at the school; signing advocacy letters; speaking with members of the board of education; joining teachers’ union counsel outside the courtroom prior to a case conference; and executing an affidavit that was filed in the litigation.  In the Matter of Panepinto, Determination (New York State Commission on Judicial Conduct December 9, 2020).

The judge sits on the Eric County Supreme Court.  In March 9, 2017, confirming an arbitration award, a different judge on the same court directed the Buffalo City School District to immediately stop assigning supervisory, non-instructional duties to teachers at Buffalo City Honors School.  The judge’s daughter attended Buffalo City Honors School during the 2017-2018 school year.

In a contempt motion filed in September 2017, the Buffalo Teachers Federation alleged that the Board of Education was not complying with the order and judgment.  In a separate petition filed in February 2018, the teachers’ federation sought an injunction to prevent the transfer of 5.5 teachers from the school and to prevent 16 teachers’ aides from being hired to perform non-instructional duties.

In January 2018, the judge joined a Facebook group comprised of City Honors School parents who publicly supported the teachers’ opposition to the transfer of teachers.  The judge also communicated with parents in support of the teachers using email and Twitter.  The judge posted on Facebook:  “We can go to Court appearance.  I will find out when it is.”  Using email and social media platforms, the judge provided legal information and advice to parents who were sending letters to the board of education and the teachers’ federation.  On Facebook, the judge posted:  “FYI if letter hast [sic] gone yet – include phrase ‘irreparable harm’ and/or send separate [sic] letters as that is legal standard to stop teachers transfers at least in short term.”  By email, the judge stated:  “Has the letter been sent yet?  It needs to state there will be irreparable harm to justify Court ordering stay of lay offs set for February 27.  If already sent we can do second one and/or individual ones describing irreparable harm.”  On Twitter, the judge posted:  “Write short letters stating the ‘irreparable harm’ cutting teachers at CHS will cause to your children.  Students should write as well.  Post on Twitter & send to BPS & BTF!”

The judge publicly criticized City Honors School principal William Kresse on Facebook, posting:  “Let’s not kid ourselves our beloved IB school hired these aids [sic] To punish teachers who won at arbitration & in Court.  If Dr. Kresse didn’t hire these aids [sic], not a single teacher would be transferred.  100% Kresse decision.  Ask him Why?”  Also on Facebook, the judge characterized the proposed transfer of teachers as “pure retaliation” and stated, “We don’t need aides … napping in hallway.”

On or about February 1, in response to a Buffalo News editorial, the judge posted a Facebook comment that identified her as “Catherine Nugent Panepinto – Works at Elected New York Supreme Court Judge Nov, 2010.”  The judge stated that she did not know that Facebook settings would automatically identify her by her judicial title but conceded that she should have familiarized herself with Facebook protocols prior to posting the comments.

The judge posted on Facebook:  “FYI I met with Paulette Woods today.  She is the Central representative on School Board whose district includes City Honors …  I also had a similar positive conversation with [BBOE representatives] Hope Jay & Sharon Cottman & plan to talk w [BBOE representative] Jennifer M[ecozzi] tomorrow.  I think we’re making great progress & looking forward to meeting tomorrow.”

The Commission concluded that the judge violated the rules when she commented about cases in which she was not a litigant.  The Commission explained:

Rather than being circumspect and focusing narrowly on her direct personal interest in her daughter’s education, respondent generally advocated for and supported the CHS teachers.  She attended meetings and spoke critically of the school’s plan to transfer teachers.  In addition, respondent was publicly critical of the CHS principal and described the transfer of teachers as “pure retaliation” which detracted from the dignity of her judicial office.  Furthermore, respondent admittedly violated the Rule which prohibits a full-time judge from practicing law. . . .  In that regard, respondent improperly and repeatedly advised other CHS parents as to the specific language to include in letters in order to meet the legal standard for injunctive relief.

The stipulation stated that the judge invoked the prestige of her office “when her Facebook comment in response to an editorial regarding CHS identified her as a Supreme Court judge.” 

The Commission concluded that the judge’s conduct over these 3 months “was improper and went beyond appropriate action specifically concerning her personal interest in her daughter’s education.”  In mitigation, the Commission considered that the judge admitted that her conduct warrants public discipline and that her sole motivation was to protect the interests of her daughter.

* * *

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.

“A one-second scream”

The Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months for summarily holding a woman who screamed in the hallway outside his courtroom in contempt and, when she protested, increasing her jail sentence.  Disciplinary Counsel v. Bachman (Ohio Supreme Court December 18, 2020).  The Court adopted the findings of the Board of Professional Conduct, which were based on stipulations and evidence presented at a hearing.

On September 4, 2018, at approximately 7:45 a.m., K.J. arrived at the court to file a petition for a civil protection order.  After she completed the paperwork, a clerk’s office employee told her that she had missed the 8:10 a.m. filing deadline to be heard that day and that she would have to return the following day.

K.J. went to the magistrate’s courtroom, apparently hoping to have her case heard that day.  The magistrate was conducting an asset-forfeiture trial.  After speaking with the magistrate’s clerks in the hallway, K.J. turned away.

As she walked toward the exit, K.J. screamed so loudly that she was heard in the courtroom.  The magistrate immediately said, “Okay, time-out,” and stopped the trial.

The Court described the video footage of what followed as “revealing and disturbing.”

It shows Bachman exiting the courtroom in his robe and running down the hallway in pursuit of K.J.  He accosts her at the elevators and returns her to his courtroom.  Once there, Bachman walks her through the crowded courtroom with his hand on her shoulder, places her in a seat in his jury box, and orders her not to move just before summoning the sheriff.  Multiple sheriff’s deputies soon arrive, and Bachman orders them to take K.J. into custody and to jail her for three days for contempt, causing her to cry and attempt to leave the jury box.

The Court stated that “the next 20 minutes of the video are difficult to watch.”

While K.J. resists being arrested and pleads with Bachman to explain why she is being jailed for three days, she is physically subdued by two deputies, threatened with being tased, and ultimately dragged from the jury box by several deputies.  Bachman’s only response is to increase her jail sentence to ten days. . . .  Bachman then congratulates a deputy on an award the deputy had recently received and resumes the proceeding as if nothing out of the ordinary has just transpired.  Meanwhile, the video footage shows, while K.J. continues protesting her arrest, she is dragged, yanked, pinned to a wall, and handcuffed to a chair.  Before the video ends, over 20 deputies and members of the court staff are involved in jailing K.J.—all because of a scream of frustration in the hallway that lasted one second.

2 days later, the administrative judge watched the video of the incident and ordered that K.J. be released from custody.  Approximately 4 days later, the magistrate was told that the “general sentiment” of the judges on the court was that he should be let go.  He resigned because, as he testified at his disciplinary hearing, he had been told that if he did, “this would be quiet and that would be it.”

Noting that a judicial officer has authority to summarily punish a person whose misbehavior in or near the courtroom “obstruct[s] the administration of justice,” the Court emphasized that K.J.’s scream outside the magistrate’s courtroom was only “a distraction at best or a momentary interruption to the proceedings at worst.  The only obstruction to the administration of justice that day occurred due to Bachman’s misconduct.”

Noting that it considers injury caused by professional misconduct when determining a sanction, the Court stated that “the chain of events set in motion by Bachman’s misconduct” physically and emotionally harmed K.J.  It noted that the magistrate’s conduct also “exposed the sheriff’s deputies and other court personnel to harm from a violent and unnecessary arrest on full display in front of a courtroom full of people who have no other choice but to sit silently and witness such a disturbing sight.”

The Court noted the Board’s finding that the magistrate defended his action as an appropriate exercise of the contempt power and “demonstrated a lack of insight as to the inappropriateness of his actions,” showing no “remorse for the effects of the incident on [K.J.],” and focusing on the impact “on his career and his resulting financial loss,” and.  The Court found:

Bachman’s sentencing K.J. to ten days in jail for a one-second scream in the hallway as she was leaving his courtroom area and for questioning why she was being jailed is outrageous.  The spectacle his conduct created was even more appalling and demonstrates his utter indifference to the harm he caused K.J. and the integrity of the judiciary. . . .

Sending someone to jail is not the adult equivalent to sending a child to his or her room for a time-out.  Yet Bachman and other judicial officers who have been sanctioned for similar conduct seem to equate the two.  Not only was Bachman’s jailing of K.J. unauthorized under the contempt statute, but he exhibited a total disregard for the reason she was at the courthouse in the first place — to get a civil protection order.  He also showed a complete indifference to the circumstances of her life (e.g., whether she had children or other family members to care for, employment she might lose, or any other harm she could suffer), to the indignity she endured by being physically restrained in a crowded courtroom, and ultimately, to the loss of her liberty.

The Board had recommended that the 6-month suspension be stayed with conditions.  The Court stated that an actual suspension was warranted “when a judicial officer’s misconduct causes harm in the form of incarceration” and “to send a strong message to members of the judiciary, to deter similar violations in the future, and to make crystal clear to the public that this type of judicial misconduct will not be tolerated.”

What judges said that got them in trouble in the second half of 2020

What judges said that got them in trouble in the first half of 2020 was summarized in two previous posts:  Part 1 and Part 2.

To or about litigants

  • “[I could] split [you]r baby in half like Solomon and sleep like a baby that night;” and “And when I say communication, I don’t mean ‘and den da b**ch done dis, and den da b**ch done dat.’”  Judge to couple during custody dispute, affecting an Ebonics accent and dialect.  In re Tranquilli, Order (Pennsylvania Court of Judicial Discipline November 19, 2020) (ordering that pay withheld from a former judge since his suspension be permanently withheld and that his pledge not to serve be irrevocable).
  • “Deadbeat.”  Judge referring to tenant in an eviction proceeding.  In the Matter of Knopf, Determination (New York State Commission on Judicial Conduct September 23, 2020) (censure for this and related misconduct).
  • “Okay, time-out;” and “If you open your mouth one more time, you’re adding on to your misery ma’am.”  Judge jailing for contempt a woman who screamed in the hallway outside his courtroom.  Disciplinary Counsel v. Bachman (Ohio Supreme Court December 18, 2020) (6-month suspension from practice of law for former judge).
  • “Send him to jail.”  Judge to a bailiff about the defendant in a non-support case without conducting a hearing or making a written finding of contemptIn re Conley, Public reprimand (Kentucky Judicial Conduct Commission September 9, 2020).
  • “B***h.”  Judge referring to school liaison officer who followed her employer’s instructions rather than the judge’s regarding the filing of truancy, dependency, neglect, and abuse cases.  Gentry v. Judicial Conduct Commission (Kentucky Supreme Court December 17, 2020) (removal for this and other misconduct).

To or about criminal defendants

  • “The Mormon’s [sic] the Court are [sic] associated with are good people that live up to their responsibilities.  The court knows because He is the Sunday School President at an LDS ward.”  Judge in minute order responding to defendant’s excuse that he was a full-time college student, an employee making minimum wage, and a Mormon.  Staggs, Order (Arizona Commission on Judicial Conduct November 17, 2020) (reprimand for this and other misconduct).
  • “[I will] cast [the defendant] down among the [S]odomites . . . in state prison.”  Judge during sentencing.  In re Tranquilli, Order (Pennsylvania Court of Judicial Discipline November 19, 2020) (ordering that pay withheld from a former judge since his suspension be permanently withheld and that his pledge not to serve be irrevocable).
  • “I think you’re a f***ing addict and maybe you need treatment.  I don’t think it’s got nothing to do with anger management.  You think I give you anger management and that’s gonna get you clean and sober?  What the hell are you talking about?  Have a seat, over here…  Percocet and alcohol…  I’m gonna relax a little bit and then figure out what to do with him. . . .”  Judge to defendant in drug court.  In re Wilson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 20, 2020) (censure for this and similar misconduct).
  • “Then you can just leave.  And I’m going to order a bench warrant for your arrest when you do.”  Judge to defendant before ordering his arrest for contempt for “constructively” failing to appear and disruptive behavior.  In re Jurado, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 20, 2020) () (reprimand).
  • To “make a point.”  Judge explaining why he was proceeding with a probable cause hearing without the defendant’s counsel present at the time the judge had directed.  In re Inquiry Concerning Clontz (North Carolina Supreme Court December 18, 2020) (reprimand).

To or about attorneys in criminal cases

  • “You weren’t out of strikes when you decided to put Aunt Jemima on the jury,” and “[you] knew darn well that when she goes home to her baby daddy, he’s probably slinging heroin too.”  Judge to prosecutor about a Black female juror who wore her hair in a kerchief.  In re Tranquilli, Order (Pennsylvania Court of Judicial Discipline November 19, 2020) (ordering that pay withheld from a former judge since his suspension be permanently withheld and that his pledge not to serve be irrevocable).
  • “This level of ‘service’ is far below what the citizens of this community expect and deserve.”  Judge in email to district attorney about handling of criminal case.  In the Matter Concerning Tamietti, Decision and order (California Commission on Judicial Performance October 14, 2020) (admonishment for this and other misconduct).
  • The district attorney’s office was “unprofessional,” “stupid,” and “superfluous.”  Judge in chambers conference with district attorney and others.  In the Matter Concerning Mason, Decision and order (California Commission on Judicial Performance December 9, 2020) (admonishment for this and other misconduct).
  • “So you’re going to hear that all the time, and you’re going to be sick of hearing it, just like I get sick of reading it, but it’s – it’s what I have to do.”  Judge about disclosing his relationship to an attorney.  In the Matter Concerning Mason, Decision and order (California Commission on Judicial Performance December 9, 2020) (admonishment for this and other misconduct).

To or about court staff

  • “I’ll talk to you the way I want.  If you weren’t so incompetent I wouldn’t talk to you like that.”  Judge to clerk.  In the Matter of Pineda-Kirwan, Determination (New York State Commission on Judicial Conduct August 12, 2020) (censure for this and similar misconduct).
  • “How can you do that?  I have more seniority than he does. . . .  You treat me like sh**.”  Judge to courthouse supervisor about giving a table loaned to her courtroom to another judge.  In the Matter of Pineda-Kirwan, Determination (New York State Commission on Judicial Conduct August 12, 2020) (censure for this and similar misconduct).
  • There was “no pan ocha [sic].”  Judge explaining to court staff why he left the priesthood, using term he believed meant “brown sugar,” but which is slang for the female anatomy.  Pollard, Order (Arizona Commission on Judicial Conduct September 15, 2020) (reprimand).
  • “Gag Order, Esquire,” and, “Thinking of you, Billy.”  On patch depicting a man with a ball gag that judge gave to a female judge and 3 female staff members.  In the Matter of Potter, Stipulation and order of consent to public admonishment (Nevada Commission on Judicial Discipline September 30, 2020).
  • “[If I] knew [you] could also cook, [I] would have gone for [you];” and “[You] look[ed] really hot.”  Judge to chief clerk.  In the Matter of Miller, 158 N.E.3d 87 (New York 2020) (removal for this and other misconduct).
  • “Do not shake your head at me,” and “Do you want to be held in contempt?”  Judge to court staff member in lobby outside of courtroom while trying to get a group leaving an investiture to stop disrupting the trial over which he was presiding.  Inquiry Concerning Miller, 304 So.3d 1214 (Florida 2020).
  • “It was much easier in the old days when they used to call them all [English and Spanish derogatory slurs for undocumented immigrants from Mexico].”  Judge to court reporter in courtroom during recess about coverage of mass shooting in El Paso.  Public Admonition of Luitjen (Texas State Commission on Judicial Conduct December 4, 2020).
  • “Get to work woman!” and “Let’s go woman!”  Judge referring to female employees.  Staggs, Order (Arizona Commission on Judicial Conduct November 17, 2020) (reprimand for this and other misconduct).

To police officers

  • “I’ve been vetted, take the cuffs off,” and “All I did was help this person.  He was my boyfriend.  There was never any incident before this.”  Judge to police officers who arrested her for hindering apprehension of her boyfriend.  In the Matter of Brady, 235, A.3d 175 (New Jersey 2020) (3-month suspension without pay).
  • “I’m a judge and I was trying to get home but I just got lost.”  Judge to officer responding to a report of an intoxicated driver.  Disciplinary Counsel v. Hawkins (Ohio Supreme Court August 12, 2020) (reprimand).
  • “None of them had driver[‘s] licenses, since they are Mexican.”  Judge requesting that law enforcement officers issue traffic citations to commercial vehicles with a solar farm project that was next to her family property.  Public Warning of Plaster and Order of Additional Education (Texas State Commission on Judicial Conduct August 12, 2020).

On social media

  • “WHAT DOES THE SHEEP SAY?  WE NEED COMMON SENSE GUN CONTROL.”  Meme posted by judge on Facebook.  In the Matter of Schmidt, Determination (New York State Commission on Judicial Conduct November 3, 2020) (admonishment for this and other posts).
  • “Sign of the time.”  Judge in Facebook post linking to newspaper article entitled, “Fatal DWI suspect bragged about bail reform:  ‘I’ll be out tomorrow.’”  In the Matter of Schmidt, Determination (New York State Commission on Judicial Conduct November 3, 2020) (admonishment for this and other posts).
  • “This makes me so sad.  I wonder how Judge Johnson would feel if the woman that was pistol whipped was his daughter, wife, or sister?  He sounds like an activist judge trying to prove a point.  That doesn’t help the woman who was hurt.”  Judge in Facebook post about another judge’s bond determination.  Public Warning of Crow and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).
  • “Write short letters stating the ‘irreparable harm’ cutting teachers at CHS will cause to your children.  Students should write as well.  Post on Twitter & send to BBS & BTF!”  Judge on Twitter publicly supporting the teachers at her daughter’s school in litigation with the board of education.  In the Matter of Panepinto, Determination (New York State Commission on Judicial Conduct December 9, 2020) (censure).

During election campaigns

  • “Re-elect Kelly Allen Gray!  Fort Worth City Council, – District 8.  #teamkelly.”  Judge on Facebook about friend’s campaign for city council.  Public Warning of Woodard and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).
  • “Now, we need you to watch our backs, we need you to vote for Cheryl Johnson.”  Judge at a fund-raising event for the county tax assessor-collector’s re-election campaign.  Public Warning of Cox (Texas State Commission on Judicial Conduct December 4, 2020).
  • “I haven’t knocked it down.  I have taken signs down prior that were placed illegally.”  Judge in interview in chambers about video on YouTube purportedly showing him removing from his neighbor’s property the campaign sign of a candidate for the Texas House of Representatives.  Public Admonition of Metzger (Texas State Commission on Judicial Conduct November 12, 2020).
  • “Her boyfriend went to prison for assaulting her several times.”  Judge about a woman who clapped for her opponent at a campaign forum.  Public Reprimand of Howard (Texas State Commission on Judicial Conduct August 12, 2020) Texas State Commission on Judicial Conduct August 12, 2020).
  • “Bruce Staggs – Justice of the Peace, Benson JP Court.”  On nail files distributed by judge during court hours.  Staggs, Order (Arizona Commission on Judicial Conduct November 17, 2020) (reprimand for this and other misconduct).

Off-the-bench

  • “Sit tight” and, “Do you have any questions?”  Judge on cell phone to boyfriend of friends’ daughter after arranging for his release on a recognizance bond before his scheduled arraignment.  Disciplinary Counsel v. Goulding (Ohio Supreme Court September 29, 2020) (6 month-suspension, stayed with conditions).
  • “Is this what you are talking about?”  Judge showing handgun to a man during a public confrontation.  Public Reprimand of Williams (Texas State Commission on Judicial Conduct September 8, 2020).
  • “Stay away.”  Judge warning friend after law enforcement requested a search warrant for a mutual friend as part of a drug trafficking investigation.  In the Matter of Kamada, 476 P.3d 1146 (Colorado 2020) (censure of former judge).
  • “I would not have made the choice to write and fax those orders, knowing I had a conflict, outside of the chaos, confusion and fear of the immediate circumstances I was inside of on September 18, 2017.”  Judge in self-report to commission about her intervention in her husband’s arrest.  Maze v. Judicial Conduct Commission (Kentucky Supreme Court December 17, 2020) (reprimand).

Throwback Thursday

20 years ago this month:

  • The Arizona Supreme Court removed a judge from office for falling asleep during court proceedings; making inappropriate comments and circulating inappropriate materials, some of which were racist, sexist, or obscene; ex parte communications; failing to recuse and otherwise creating an appearance of bias; inappropriate uses of his judicial position; failing to respect the rights of parties appearing before him; failing to adequately perform his judicial responsibilities; and misrepresenting facts to the Commission on Judicial Conduct.  In the Matter of Carpenter, 17 P.3d 91 (Arizona 2001).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge following his conviction for driving while intoxicated.  Letter of Admonition to Jennings (Arkansas Judicial Discipline & Disability Commission January 23, 2001).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for delay in ruling on a petition for post-trial review filed by an inmate and for failing to properly supervise staff.  Letter of Admonition to Davis (Arkansas Judicial Discipline & Disability Commission January 26, 2001).
  • Accepting the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court publicly censured a judge for engaging in self-dealing contrary to the interests of his clients when he was an attorney and failing to file a timely answer to the formal complaint.  In re Runco, 620 N.W.2d 844 (Michigan 2001).
  • Based on an agreement, the Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to maintain an impartial demeanor in a case, making undignified and discourteous public references to lawyers serving as public defenders and in other capacities in the case, and publicly commenting on the pending matter.  Public Reprimand of Wolf (Minnesota Board on Judicial Standards January 10, 2001).
  • The New Jersey Supreme Court removed a municipal court judge for (1) signing a letter “JMC” (meaning “judge municipal court”) in a personal dispute regarding payment of his sons’ tuition at a private school; (2) failing to recuse from a case arising from questionable domestic violence complaints filed by a councilman with whom the judge had a close relationship; and (3) filing false accusations against his son’s teacher and then arraigning the teacher.  In the Matter of Samay, 764 A.2d 398 (New Jersey 2001).

Throwback Thursday

25 years ago this month:

  • Based on the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for colliding with a dock while operating a motorboat and leaving the scene without reporting the accident.  Inquiry Concerning Fletcher, 666 So. 2d 137 (Florida 1996).
  • The New York State Commission on Judicial Conduct removed a judge for failing to remit court funds to the state comptroller by the tenth day of the month following collection as required by state law and failing to cooperate in the Commission’s investigation.  In the Matter of Miller, Determination (New York State Commission on Judicial Conduct January 19, 1996).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for refusing to appoint an interpreter for a defendant who did not speak English as required by law and making remarks about the defendant and other Spanish-speaking farm workers that gave the appearance of ethnic bias.  In the Matter of Carr, Determination (New York State Commission on Judicial Conduct January 22, 1996).

Other available options

Accepting the findings and recommendation of the Judicial Qualifications Commission based on stipulations, the Florida Supreme Court publicly reprimanded a judge for yelling and waving his arms at people in the lobby outside his courtroom to get them be quiet and threatening one of them with contempt.  Inquiry Concerning Miller (Florida Supreme Court November 5, 2020).

On January 17, 2020, proceedings in a civil trial over which the judge was presiding were interrupted continuously by loud noise from the public lobby outside of the courtroom.  The noise “was a result of many people congregating and not promptly disbursing” after another judge’s investiture, which had taken place in the ceremonial courtroom on the same floor.

At Judge Miller’s request, the bailiff and then the clerk and bailiff tried to quiet the people in the lobby.  When those attempts were unsuccessful, the judge stepped down from the bench wearing his robe and went to the lobby accompanied by his bailiff.  Several witnesses, including judges and lawyers, observed the judge “’yelling,’ and waving his arms at the people in the lobby while trying to get them [to] be quiet. . . .”

The judge observed a woman shaking her head while looking at him.  Believing she was indicating that she would not cooperate with his attempt to quiet the crowd and “responding to what he believed was contemptuous behavior,” the judge approached the woman and shouted, “Do not shake your head at me” and twice threatened her with contempt, demanding to know, “Do you want to be held in contempt?”  The judge asked her name and whether she was employed in the courthouse.  He then went back into his courtroom.

The woman, who is an assistant general counsel for the court, did not yell, say anything disrespectful, or act contemptuously in any way, according to 2 judges who were talking with her at the time.  Judge Miller acknowledged that “with hindsight she could have been shaking her head in disbelief over his behavior.”

The Court noted that the Commission had recognized that “[j]udges are given tools for dealing with serious interruptions,” to court proceedings including, “the direct (or summary) contempt power . . . .”  But the Commission was “particularly disturbed by” the judge’s threat to use that contempt power against a woman merely “for shaking her head in disbelief over Judge Miller’s behavior.”  The Commission explained:  “Judge Miller had other options available for dealing with the disruption to his trial, such as taking a recess, or calling Court Administration to ask for assistance.  The method he ultimately chose to employ reflected poorly on himself, and the judiciary as a whole.”

The Court felt “constrained to observe that . . .  this case arose only because a loud crowd disrupted trial court proceedings and persisted in their noisemaking after extended efforts were made to bring quiet so that the trial could go on.”  The Court acknowledged that the interruption did not excuse the judge’s conduct but emphasized that “the lengthy disruption of that trial should never have occurred.  Investiture ceremonies are significant events in the life of our courts, but they should not occasion the disruption of judicial business.”  It noted that “the participation of judges or court staff in any such disruption . . . is a matter of serious concern” and directed that administrative measures “be taken to ensure that such problems do not recur.”

Throwback Thursday

5 years ago this month:

  • Adopting masters’ findings of fact, the California Commission on Judicial Performance removed a judge from office for authoring and showing to his courtroom clerk a “crude and vile” anonymous letter accusing her of infidelity; engaging in a course of conduct over 2 months to convince her to become involved in a closer personal relationship, including giving her money and other gifts; accusing her of extortion to ensure her silence; and providing legal advice to her son.  Inquiry Concerning Saucedo, Decision and order (California Commission on Judicial Performance December 1, 2015).
  • The Florida Supreme Court removed a judge from office for threatening to commit violence against an assistant public defender, engaging in a physical altercation with the public defender, and resuming his docket while defendants were without counsel.  Inquiry Concerning Murphy, 181 So. 3d 1169 (Florida 2015).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for his treatment of an investigator for the attorney general’s office during a hearing.  In re Easterling, Order (Kentucky Judicial Conduct Commission December 18, 2015).
  • With the judge’s consent, the Maryland Commission on Judicial Disabilities released a private reprimand that states that investigative counsel investigated allegations that the judge had received commissions as a real estate agent involving property included in estates being supervised by the orphans’ court over which she presided.  In the Matter of Phelps, Private reprimand (Maryland Commission on Judicial Disabilities November 6, 2015) .
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge without pay for 1 month for 2 incidents of inappropriate touching of a court employee that demeaned, belittled, and publicly humiliated her.  In the Matter of Council, Order (New Jersey Supreme Court December 3, 2015).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for creating the appearance that he was biased in favor of the town in a dangerous dog case by sua sponte sending hearing notices to witnesses whom he speculated would be needed to testify for the town, summarily ending the hearing at the conclusion of the prosecutor’s case, failing to allow the defendant or her witnesses to testify, and deciding in favor of the town without including statutorily-mandated conditions consistent with the ruling.  In the Matter of Heintz, Determination (New York State Commission on Judicial Conduct December 17, 2015).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge who, while arraigning 2 defendants charged with environmental conservation law violations, listened to a defendant’s “version of the story,” reviewed a map of the alleged trespass site, identified locations on the map, discussed with the defendants whether the locations were public or private, asked the defendants about the events, and listened to their explanations, and failed to set a court date for about 10 months.  In the Matter of Trickler, Determination (New York State Commission on Judicial Conduct December 17, 2015).
  • The New York State Commission on Judicial Conduct publicly censured a judge for driving while under the influence of alcohol and repeatedly asserting his judicial office in connection with his arrest.  In the Matter of Landicino, Determination (New York State Commission on Judicial Conduct December 28, 2015).
  • Pursuant to the judge’s agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a chancellor for an order dismissing a complaint for divorce and a counter complaint with language analyzing the U.S. Supreme Court decision on same-sex marriage in Obergerfell v. Holdges.  Re Atherton (Tennessee Board of Judicial Conduct December 18, 2015).

Recent cases

  • Accepting the findings and recommendation of the Judicial Qualifications Commission based on stipulations, the Florida Supreme Court publicly reprimanded a judge for yelling and waving his arms at people in the lobby outside his courtroom while trying to get them to be quiet and threatening one of them with contempt.  Inquiry Concerning Miller (Florida Supreme Court November 5, 2020).
  • Adopting the findings of the Judiciary Commission and agreeing with its findings, the Louisiana Supreme Court removed a justice of the peace from office for being unavailable and unresponsive to the constable and citizens in his jurisdiction, failing to take any action on an eviction filing and to refund the unearned filing fee, and failing to cooperate with the Commission.  In re King (Louisiana Supreme Court November 19, 2020).
  • Based on a stipulation of discipline by consent, the New Jersey Supreme Court publicly reprimanded a part-time judge for failing to recuse herself from cases in which the landlord for her law office appeared on behalf of clients.  In the Matter of Munoz (New Jersey Supreme Court November 23, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for (1) on his personal Facebook page during his campaign, posting memes that propounded conspiracy theories, making disrespectful and undignified comments about laws he would be sworn to uphold as a sitting judge, and endorsing a candidate for the town council and (2) while a judge, posting comments on his personal Facebook page about the release on bond of a defendant he had arraigned, linking to articles critical of bail decisions in other cases, and commenting on one of those cases.  In the Matter of Schmidt, Determination (New York State Commission on Judicial Conduct November 3, 2020).
  • The Pennsylvania Court of Judicial Discipline ordered that the pay withheld from a former judge since his suspension in August be permanently withheld and that his resignation and pledge not to serve be binding and irrevocable based on his stipulation to the facts in a complaint filed by the Judicial Conduct Board alleging he (1) in a post-trial conversation with the attorneys in a criminal case, referred to a juror as “Aunt Jemima” and said that she had a “baby daddy” at home “slinging heroin,” referred to a second juror as a “knucklehead,” and criticized the seating of a juror whose daughter was a public defender; (2) made insulting remarks to the parents in a custody case and affected a manner of speech referred to as “Ebonics;” and (3) made improper comments during sentencing in 2 cases.  In re Tranquilli, Order (Pennsylvania Court of Judicial Discipline November 19, 2020). 
  • The Texas State Commission on Judicial Conduct publicly warned a judge for (1) her Facebook activities in support of a friend’s campaign for city council and (2) a court clerk’s acceptance of a donation to her campaign at the courthouse; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Woodard and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for publicly disparaging another judge’s bond determination on Facebook and referring to the other judge’s family in doing so; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Crow and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for failing to timely set, hear, decide, and sign a judgement creditor’s post-judgment motions and to timely refer his motion to recuse; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Hall and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020), on appeal to special court of review.
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for failing to comply with the law before holding an attorney in contempt; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Admonition of Richter and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).
  • The Texas State Commission on Judicial Conduct publicly admonished a former judge for (1) removing a campaign sign from his neighbor’s property and his interview with the media about the incident; (2) instructing his staff not to accept applications for writs of possession after 3:30 p.m. or before 10:30 a.m.; (3) failing to forward a notice of appeal of the denial of a pauper’s affidavit to the county court and issuing a writ of possession after the appellant had timely perfected his appeal; and (4) failing to timely submit a response to staff’s letters of inquiry.  Public Admonition of Metzger (Texas State Commission on Judicial Conduct November 12, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for ordering the clerk’s office not to accept a plaintiffs’ motion to reopen a case; the Commission also ordered the judge to obtain 1 hour of instruction with a mentor.  Public Warning of Bosworth (Texas State Commission on Judicial Conduct November 12, 2020).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for “an intermittent pattern of intolerant and intemperate behavior” and using profanity, epithets, and slurs in the courtroom; the judge also agreed to participate in 2 hours of ethics training and to participate in behavioral coaching.  In re Wilson, Stipulation, agreement, and order (November 20, 2020).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for telling a defendant with “idiosyncratic beliefs about the court system” to leave the courtroom and then ordering his arrest for contempt for “constructively” failing to appear and disruptive behavior; the judge was also ordered to complete at least 2 hours of training.  In re Jurado, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 20, 2020).

Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for making remarks to friends that purported to convey the outcome of an appeal in which the friends had an interest.  Public Admonishment of Revak (California Commission on Judicial Performance December 12, 2000).
  • Adopting the recommendation of the Commission on Judicial Performance based on an agreed statement of facts and recommendation, the Mississippi Supreme Court publicly reprimanded a judge for his conduct in 2 related cases, including imposing fines and sentences in excess of his statutory authority and presiding over a perjury charge although he lacked jurisdiction.  Commission on Judicial Performance v. Neal, 774 So. 2d 414 (Mississippi 2000).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) failing to deposit court funds in his official account within 72 hours after receipt, in violation of court rules, (2) failing to remit court funds to the state comptroller by the tenth day of the month following collection, in violation of statutes, (3) his conduct during a disagreement with a local attorney who represented a funeral home in an action against the judge for an unpaid bill, (4) acting in a retaliatory manner toward a second attorney, and (5) suspending a traffic defendant’s driver’s license out of personal animosity for the defendant’s attorney.  In the Matter of Corning, 741 N.E.2d 117 (New York 2000).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate for embezzling court funds to pay a woman with whom he had an affair.  In the Matter of Brown, 540 S.E.2d 452 (South Carolina 2000).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate for financial mismanagement of his court.  In the Matter of Roberts, 540 S.E.2d 458 (South Carolina 2000).
  • Pursuant to a stipulation and agreement, the Washington Commission on Judicial Conduct publicly admonished a judge for using an arguably harsh and inappropriate tone and manner when interacting with defendants in 3 case.  In re Lukevich, Stipulation, Agreement and Order of Admonishment (Washington Commission on Judicial Conduct December 1, 2000).

Setting the tone

A recent judicial discipline case illustrated the connection between judicial demeanor and public confidence in judicial decisions.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge “for an intermittent pattern of intolerant and intemperate behavior.”  In re Wilson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 20, 2020).  The judge also agreed to participate in at least 2 hours of ethics training and to participate in behavioral coaching with an emphasis on courtroom demeanor by a qualified behavioral modification professional until the “professional has certified, in writing, that such counseling has accomplished positive changes and that in his/her opinion, the Respondent has the competency to maintain these changes in the future.”

The Commission initiated a complaint after the court of appeals reversed a sentence imposed by the judge and remanded for re-sentencing before a different judge.  The reversal was based on the judge’s use of profanity and comments that appeared to manifest bias against a defendant terminated from drug court.  In that case, the judge, after telling the defendant he could, “Stop with the shoulder bulls*** now,” said:  “So I got a guy standing in front of me, who won’t tell me that he’s got a dirty UA for alcohol, finally admits that he drank and then tells me he needs anger management.  I think you’re a f***ing addict and maybe you need treatment.  I don’t think it’s got nothing to do with anger management.  You think I give you anger management and that’s gonna get you clean and sober?  What the hell are you talking about?  Have a seat, over here…  Percocet and alcohol…  I’m gonna relax a little bit and then figure out what to do with him.”  The judge also said:  “You, sir, are just a criminal, that’s all you are, you’re just a criminal.  Do you have issues?  Yep, you do.  Are you going to deal with them?  No, you’re not….  You, the odds say, are going to die in prison.”

The judge’s disrespectful language to a defendant led to reversal of a second sentence and remand to a different judge.  In that decision, the court of appeals rejected the prosecution’s argument that the judge had simply been having “a serious conversation” with the defendant about addiction and the possibility of change and explained that slurs and epithets were not necessary for a serious conversation and that the judge’s “harsh and inappropriate language defeated the purpose.” 

The Commission identified additional hearings in other cases that illustrated the judge’s intemperate behavior.

During one hearing, the judge told an attorney who was trying to make a record:  “You don’t have the right to make a record” and “I am not going to proceed in this case with this counsel in front of me.  The matter will be stricken, and re-note it in front of another judge.  You may take him,” the latter comment directed to the jailer about the in-custody defendant.

At another sentencing hearing, the judge denied the prosecutor’s request to have the victim present by telephone, saying in an elevated and agitated voice while pointing directly at the prosecutor, “Neither you nor your office have a right to tell this Court what it’s going to do in its own courtroom.”

The Commission had publicly admonished the judge in 2018, based on a stipulation and agreement, for, during sentencing in a domestic violence case, addressing the defendant in a confrontational and angry tone, repeatedly calling the defendant “an animal,” and, near the conclusion of the hearing, refusing to let the defendant speak.

In the current discipline case, the Commission noted that, although the judge “is generally calm and professional on the bench, at times he can be impatient or volatile,” interrupting litigants and attorneys, addressing them “in an unduly confrontational, condescending, and harsh manner,” using foul language, profanity, and language that manifested bias or prejudice, and expressing “anger or emotion.”  It noted several negative effects of such conduct:

  • It “may impair the right of individuals to be fairly heard by intimidating or discouraging them from fully presenting their positions in court.”
  • It may discourage “others from wanting to appear in his courtroom for fear of how they might be treated.”
  • It affected his ability to execute his duties and significantly impacted “his efficacy as a judicial officer,” noting his recusal from 1 case and the 2 cases in which he was reversed.

The Commission emphasized:

The judge sets the tone for the courtroom.  Discourteous and disrespectful behavior by a judge in the courtroom erodes the public’s confidence in the quality of justice administered by that judge, not only for the direct targets of such behavior, but also for all those who witness it.  The public is more likely to respect and have confidence in the integrity and fairness of a judge’s decision if the judge is outwardly respectful, patient and dignified.  Because of the power disparity between a judge and others in the courtroom, berating a litigant or an attorney is not a proper exercise of judicial power.