Fall issue of Judicial Conduct Reporter published

The fall issue of the Judicial Conduct Reporter has been published and is available on-line.  It has articles on:

  • Consensual sexual relationships between judges and court staff
  • Pornography at the courthouse
  • California Commission mentorship program
  • Vouching for pardon, parole, or clemency
  • Recent cases
  • Neighbor dispute (In re Calvert, Wisconsin)
  • Soliciting speaking engagements (In re Steigman, Illinois)
  • Project promotion (In re Roach, Texas)
  • Friendship and favors (In the Matter of Johanningsmeier, Indiana)
  • Another Facebook fail (In re Matter Concerning Gianquinto, California)

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.

 

 

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to de-escalate a contentious hearing in an eviction case, raising his own voice toward the landlord, and presiding over a request for a harassment injunction against the landlord by one of the tenants. Delaney, Order (Arizona Commission on Judicial Conduct September 18, 2018).
  • The California Commission on Judicial Performance publicly admonished a judge for his practice of delegating his responsibility to conduct case management conferences to his court clerk. Public Admonishment Public Admonishment of Hiroshige (California Commission on Judicial Performance October 24, 2018).
  • As recommended by the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for campaign statements posted on her Facebook page and in an e-mail implying that her opponent was unfit for judicial office because he was a criminal defense attorney. Inquiry Concerning Santino (Florida Supreme Court October 19, 2018).
  • The Nevada Commission on Judicial Discipline publicly reprimanded a former judge for her campaign’s posting of a photoshopped picture of herself and an actor on her campaign Facebook page, misleading the public into believing that Dwayne “the Rock” Johnson had endorsed her re-election, and for commenting on the post. In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018).
  • Granting the Judicial Standards Commission’s petition to accept a stipulation, the New Mexico Supreme Court ordered the permanent resignation of a judge; the Commission had filed a notice of formal proceedings alleging that the judge had driven his personal vehicle after consuming alcoholic beverages at a Super Bowl party in February 2018, had told a state police officer he was a municipal judge while the officer was administering field sobriety tests, and had asked a municipal police officer, whom he also knew was a municipal judge, to help him as the state police officer was escorting him to his vehicle. In the Matter of Dominguez, Order (New Mexico Supreme Court October 29, 2018).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) her conviction for driving while intoxicated; (2) being discourteous and seeking preferred treatment from the arresting officers; (3) violating the terms of her conditional discharge by ignoring orders of the court and leaving the country for an extended vacation without notice to the court or her lawyer, resulting in the revocation of her conditional discharge; (4) failing to disqualify herself from the arraignment of a former client and attempting to have his case transferred in a manner that she thought might benefit him; and (5) making discourteous, insensitive, and undignified comments before counsel and litigants in court. In the Matter of Astacio, Opinion (New York Court of Appeals October 16, 2018).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) on numerous occasions, acting impatiently, raising his voice, and making demeaning and insulting remarks, often in open court; (2) twice striking witness testimony and dismissing petitions for insufficient proof as a result of counsel’s reflexive use of the word “okay;” (3) awarding counsel fees without providing an opportunity to be heard; and (4) failing to cooperate with the Commission. In the Matter of O’Connor, Opinion (New York Court of Appeals October 16, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a matter involving a former non-lawyer judge who had resigned after the Commission apprised her that it was investigating a complaint that she had interjected herself into a pending custody proceeding by criticizing one of the parties in an e-mail to the court, identifying herself as a judge, and lending the prestige of judicial office to advance a private interest. In the Matter of Crofoot, Decision and order (New York State Commission on Judicial Conduct October 26, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a matter involving a former non-lawyer judge who had resigned after the Commission had apprised him that it was investigating a complaint that, in a landlord-tenant matter, he had ordered the eviction of the tenants without conducting a hearing or affording them a full opportunity to be heard. In the Matter of Lustyik, Decision and order (New York State Commission on Judicial Conduct October 26, 2018).
  • Adopting the recommendation of the Judicial Standards Commission based on stipulations, the North Carolina Supreme Court suspended a judge without pay for 30 days for failing for more than 5 years to rule on a motion for permanent child support. In re Chapman (North Carolina Supreme Court October 26, 2018).
  • Based on stipulations of fact, misconduct, and aggravating and mitigating factors and a joint recommendation, the Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months for failing to accurately report his work hours and leave on his time card; the suspension was stayed on the condition that he engage in no further misconduct. Disciplinary Counsel v. Dunn (Ohio Supreme Court October 24, 2018).

 

The difference between censure and removal

Accepting determinations of the State Commission on Judicial Conduct, the New York Court of Appeals recently removed 2 judges from office for a variety of misconduct.  Both judges had admitted to at least some of the misconduct charged, but both had argued that censure, rather than removal, was the appropriate sanction.  The Court rejected their arguments, considering the “full spectrum” and “entirety” of their behavior to find their misconduct “truly egregious,” justifying removal.  (Suspension without pay is not available as a sanction in New York judicial discipline cases.)

The Court removed 1 judge for (1) her conviction for a misdemeanor offense of driving while intoxicated; being discourteous and seeking preferred treatment from the arresting officers; violating the terms of her conditional discharge by ignoring court orders to abstain from alcohol; and going to Thailand for an extended vacation without notice to the court or her lawyer, resulting in the revocation of her conditional discharge; (2) failing to disqualify herself from the arraignment of a former client and attempting to have his case transferred in a manner that she thought might benefit him; and (3) making discourteous, insensitive, and undignified comments before counsel and litigants in court.  In the Matter of Astacio, Opinion (New York Court of Appeals October 16, 2018).  The Commission decision is In the Matter of Astacio, Determination (New York State Commission on Judicial Conduct April 23, 2018).

Acknowledging that the judge had “expressed some contrition,” the Court was “unpersuaded” that she had “genuinely accepted personal responsibility” because she continued “to point to external factors and justifications as excuses for her behavior.”  The Court explained:

Although we do not expect petitioner to “adopt a posture of obeisance,” we do require that she adequately “recognize wrongdoing in order to forestall the inevitable, unfortunate conclusion that, absent a harsher sanction, more of the same will ensue” . . . .  Here, petitioner’s justifications for her conduct indicate she does not truly recognize the essential role her own decisions played in bringing about her current predicament.

Emphasizing that the judge’s actions cannot be viewed “through a limited prism” but “the full spectrum of her behavior and its impact on public perception of the judiciary” must be considered, the Court concluded that, given her “apparent lack of insight into the gravity and impact of her behavior on both public perception of her fitness to perform her duties and on the judiciary overall, . . . any rupture in the public’s confidence cannot be repaired.”

* * *
The Court removed the second judge for (1) on numerous occasions, acting impatiently, raising his voice, and making demeaning and insulting remarks, often in open court; (2) twice striking witness testimony and dismissing petitions for insufficient proof because counsel reflexively kept saying “okay;” (3) awarding counsel fees without providing the party ordered to pay an opportunity to be heard, contrary to applicable rules; and (4) failing to cooperate with the Commission.  In the Matter of O’Connor, Opinion (New York Court of Appeals October 16, 2018).  The Commission decision is In the Matter of  O’Connor, Determination (New York State Commission on Judicial Conduct March 30, 2018).

The judge argued that his courtroom demeanor “was justified by the circumstances, including the ‘rough and tumble’ nature of landlord-tenant litigation.”  Disagreeing, the Court explained:

To be sure, judges must insist upon order and decorum in the courtroom . . . .  Nevertheless, the need to maintain order must be counterbalanced against a judge’s obligations to remain patient and to treat those appearing before the court with dignity and courtesy . . . .  As we have explained, “respect for the judiciary is better fostered by temperate conduct, not hot-headed reactions” . . . .

The Court also emphasized that the judge’s “failure to observe and follow the law resulted in substantial and unjustifiable adverse consequences for the parties that went uncorrected—namely the dismissal of their petitions and the imposition of fee awards.”  Thus, the Court rejected that the judge’s argument that, at most, he had committed “harmless” legal errors that should not serve as grounds for findings of misconduct.  The Court stated that the judge’s “sustained pattern of inappropriate behavior evinced a lack of understanding of his role as a judge—most notably by disregarding the law and impinging on the fundamental right to be heard—thus eroding the public’s trust and confidence in the integrity of the judiciary.”

The judge did not challenge the Commission’s finding that he had engaged in a “consistent pattern of efforts to withhold cooperation and to delay or thwart the investigation.”  For example, he had not appeared at the hearing before the referee, at a proceeding scheduled to address the issue of notice, at an opportunity to reopen the hearing, or at oral argument before the Commission members.

On appeal, the Court rejected the judge’s argument that, because his underlying conduct, standing alone, would not result in more than a censure, “his failure to cooperate fully with the Commission’s investigation should not elevate the sanction to removal.”  It explained that it would “not overlook the entirety of a judge’s behavior and the extent to which it ‘qualif[ies] in the aggregate to the level and quality of egregiousness that merit[s] the ultimate discipline of removal.’”  The Court concluded:

If the public trust in the judiciary is to be maintained, as it must, those who don the robe and assume the role of arbiter of what is fair and just must do so with an acute appreciation both of their judicial obligations and of the Commission’s constitutional and statutory duties to investigate allegations of misconduct . . . .  In short, willingness to cooperate with the Commission’s investigations and proceedings is not only required—it is essential.

26th National College on Judicial Conduct and Ethics

The 26th National College on Judicial Conduct and Ethics will be held Wednesday October 23 through Friday October 25, 2019, in Chicago at the Embassy Suites Downtown Lakefront.  The College registration fee will be $425 through September 4, but $450 beginning September 6.  The hotel room rate will be $239 for single or double occupancy, which includes breakfast.

The College will begin Wednesday afternoon with registration and a reception.  Thursday morning there will be a plenary session, followed by concurrent break-out sessions through Friday noon.  The College provides a forum for judicial conduct commission members and staff, judges, judicial ethics advisory committees, and others to discuss professional standards for judges and current issues in judicial discipline.

Registration will be open sometime in the spring.  As usual, there were be a session on determining the appropriate sanction and sessions for new members of judicial conduct commissions and public members of judicial conduct commissions.  As has become usual in the last few College, there will probably be a session on social media.  If you have suggestions for other sessions, please e-mail cgray@ncsc.org.

Another Facebook fail

The Texas State Commission on Judicial Conduct publicly admonished a judge for Facebook posts advertising a school supply drive, soliciting donations for an individual, and advertising his donation of a rifle to a charitable raffle.  Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018).  In response to the Commission , the judge said that a member of his judicial staff handles his Facebook page and other social media accounts, that many posts were made without his prior authorization, and that he is often unaware of what appeared on his Facebook page.

In July and August 2017, there were a number of posts on the judge’s Facebook page promoting “Judge James Metts and Constable Rowdy Hayden’s Annual School Supply Drive.”  In the posts, the judge asked for donations of school supplies to benefit elementary school students in the county.  He also welcomed cash donations in lieu of supplies, asking donors to make their checks payable to him personally.  The posts advised that donations would be accepted at the court office and provided the court’s telephone number as the number for questions.  Pictures of several donors appeared on the page, with posts thanking them individually by name.

In July 2017, a post appeared on the judge’s Facebook page that stated, “I’m Jamie, with Judge Metts’ office and I’m setting up this page at his request,” with a link to a gofundme.com account that she had established to raise funds to help a county resident repair his driveway.  The post included a photograph of the judge working on the driveway.

In April 2017, the judge’s Facebook page reposted an article from the Montgomery County Police Reporter about his donation of an AR-15 rifle to raise funds for Project Graduation, a charitable organization that provides sober graduation parties.  Included was a copy of the flyer advertising the raffle and stating, “AR-15 Raffle Ticket $10 . . . .  Donated by Judge James Metts and Constable Rowdy Hayden.”

* * *

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

 

 

The difference between reprimand and removal

On September 21, the New Jersey Supreme Court publicly reprimanded a judge who had involved herself in the scheduling and processing of a friend’s custody case.  In the Matter of Wright, Order (September 21, 2018).  (The Court does not describe the judge’s conduct; this summary is based on the presentment of the Advisory Committee on Judicial Conduct.)

On September 26, the New Jersey Court removed a judge who had involved herself in a former intern’s custody dispute.  In the Matter of DeAvila-Silebi, Order (September 26, 2018).  (The Court’s order does not describe the judge’s misconduct; this summary is based on the report of a 3-judge panel.)

The imposition of drastically different sanctions in 2 cases involving improper use of influence is attributable in part to a difference in the nature and extent of the misconduct.

Judge Wright had escorted a friend seeking temporary custody of his grandson to the court’s intake office, talked to court personnel to ensure he had the right forms, asked the judge on emergent duty about the schedule, and then told a staff member that her friend could return on Monday; the staff member advised the judge that she would bring the friend to her desk so he could complete the application.

In contrast, Judge DeAvila-Silebi called the police the day before Mother’s Day and told a sergeant she wanted an officer to accompany a mother to retrieve her child.  She identified herself as the emergent duty judge and explained that she had received a phone call from an attorney who had filed an emergent application on behalf of a client and that she had seen the order indicating that the mother was supposed to have the child that weekend.  The police department dispatched an officer with the mother to the home of the child’s paternal grandmother; the officer took the 5-year-old boy from his grandmother and returned to police headquarters with the child and the mother, after which the mother left with the child.  The father appeared at police headquarters approximately 2 hours later, irate and questioning why police had removed the child.

The panel also found that Judge DeAvila-Silebi had “demonstrated dishonesty, perversion of her judicial authority and betrayal of the public trust” by making numerous misrepresentations to the police department.  For example, contrary to what she told the police sergeant, she had not received a phone call from an attorney, no emergent application had been filed, and she had not seen the court order regarding parenting time.

Probably the biggest difference that took the Court from reprimand to removal (the intermediate sanctions of censure and suspension without pay were also available) were the aggravating factors in the second case, particularly the judge’s “less than truthful” testimony before the Advisory Committee on Judicial Conduct.

In Wright, there were no aggravating factors, and the mitigating factors included her sincere remorse and contrition, which had demonstrated to the Committee that the likelihood of her repeating the misconduct was “nearly nonexistent.”

In contrast, in DeAvila-Silebi, the judge “not only failed to acknowledge her wrongdoing or express remorse or contrition” but “displayed additional dishonesty and transcended her right to present a defense.”  Most significantly, the panel found that, despite her repeated denials, the judge did know the mother, who had been assigned to her as an intern for several months.  In fact, the judge had continued to have contact with her after the internship ended, including exchanging texts just before and after the judge intervened with the police.  Phone bills produced by the judge had obviously been altered, which was evident when compared with the bills provided by Verizon.

The panel explained that the judge had “constructed a defense predicated on the false claim that she received a call from an attorney or law enforcement agency requiring her emergent intervention to enforce another court’s order” and “perpetuated that falsehood throughout the proceedings before the ACJC, embellishing or revising it as necessary whenever she became aware of contrary evidence” until “the entire house of cards crumbled” when the “telephone records irrefutably demonstrated the falsity of respondent’s assertions.”  The panel emphasized that the judge’s “’disturbing’ decision to perpetuate a defense without any ‘compunction about being less than credible’ as the investigation of her conduct continued, ‘evidence[s] that [she] lacks the honor and integrity demanded of a judge.’”

Throwback Thursday

5 years ago this month:

  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission issued an informal adjustment to a judge for using her title in a threatening text to the ex-husband of a family member. Letter of Informal Adjustment (Hendricks) (Arkansas Judicial Discipline and Disability Commission September 20, 2013).
  • The Mississippi Supreme Court publicly reprimanded a judge and fined him $1,000 for a verbal altercation with a probation officer, including threatening to hold her in contempt of court and having police officers escort her from the clerk’s office. Commission on Judicial Performance v. Fowlkes, 121 So. 3d 904 (Mississippi 2013).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for acting as an attorney for an alleged rape victim and her family after presiding over proceedings in the underlying criminal case. In the Matter of Fleming, Determination (New York State Commission on Judicial Conduct September 30, 2013).
  • Accepting an agreement for discipline by consent in an attorney discipline proceeding, the South Carolina Supreme Court publicly reprimanded a former magistrate for, at the conclusion of a bond court session, kissing the clerk who had been working with him on the forehead. In the Matter of Hatcher, 748 S.E.2d 220 (South Carolina 2013).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for magistrating a woman with whom he had a romantic relationship. Public Reprimand of Nicholds (Texas State Commission on Judicial Conduct September 17, 2013).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for an ex parte communication with an attorney about a contested issue in the attorney’s suit for fees against a former client, which resulted a judgment in favor of the attorney without the former client being given the right to be heard. Public Admonition of Koetter (Texas State Commission on Judicial Conduct September 17, 2013).