Fall Judicial Conduct Reporter

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

• Judges ordering charitable contributions
• Judicial conduct complaint formats
• Business and financial activities
• Recent cases
Celebratory luncheon: Phillips (Texas Commission 2021)
“A guy who wears a costume”: In re Hinson (Tennessee Board 2021)
“My human”: Inquiry Concerning Hatfield (Kansas Commission 2021)
Above the law: In re DiClaudio (Pennsylvania Court 2021)
Election meddling:
In re Hughes, 319 So. 3d 839 (Louisiana 2021)
Inquiry Concerning Howard, 317 So. 3d 1072 (Florida 2021)
Inquiry Concerning Cupp, 316 So. 3d 675 (Florida 2021)

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.

Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for advertisements for his wedding services on his personal web-site.  Jayne, Order (Arizona Commission on Judicial Conduct November 16, 2011).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for several improper ex parte communications in a case. Jayne, Order (Arizona Commission on Judicial Conduct November 16, 2011).
  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline & Disability Commission publicly reprimanded a judge for driving while intoxicated.  Harper, Letter of Reprimand (Arkansas Judicial Discipline & Disability Commission November 18, 2011).
  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline & Disability Commission publicly censured a judge for presiding while intoxicated and other public incidents in which he was under the influence of alcohol.  Harper, Letter of Censure (Arkansas Judicial Discipline & Disability Commission November 18, 2011).
  • The California Commission on Judicial Performance publicly admonished a former judge for (1) making comments in 1 case about the district attorney’s office that created an appearance of bias and were disparaging, undignified, and discourteous; (2) failing to disclose that he was actively considering running for district attorney in a case in which the conduct of the incumbent was an issue; (3) recommending that the deputy district attorneys’ association delay its endorsement decision in the district attorney campaign; and (4) allowing his judicial title to be used to raise money to retire debt from his campaign for district attorney.  In the Matter of Zellerbach, Decision and Order (California Commission on Judicial Performance November 3, 2011).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge for (1) attempting to force himself into a court employee’s personal and private life; (2) accepting a campaign contribution from his mother that far exceeded the $500 statutory limit; (3) filing a notice of appearance to represent his mother in foreclosure proceedings and communicating with counsel for the mortgagee on her behalf; and (4) offsetting a juvenile’s court costs in exchange for the juvenile’s earring.  Inquiry Concerning Turner, 76 So. 3d 898 (Florida 2011).
  • The Illinois Courts Commission publicly censured a judge for a conversation with another judge about a case involving a shop owner with whom the judge had discussed detailing his car.  In re Simpson, Order (Illinois Courts Commission November 7, 2011).
  • • The Indiana Commission on Judicial Qualifications publicly admonished a judge for an invitation to a campaign fund-raiser that gave the appearance that specific contributions could result in particular rulings. Public Admonition of Pierson-Treacy (Indiana Commission on Judicial Qualifications November 29, 2011).
  • Agreeing with the findings and recommendation of a 3-member hearing panel, the Minnesota Supreme Court suspended a judge without pay for 6 months and publicly censured her for failing to reside within her judicial district for 3 months in 2009 and failing to cooperate and be candid and honest during the Board’s investigation of her residency status.  Inquiry into Karasov, 805 N.W.2d 255 (Minnesota November 2011).
  • The Mississippi Supreme Court suspended a judge without pay for 30 days and publicly reprimanded her for attempting to influence a Florida judge in a matter involving a defendant who was a member of a family with whom the judge was friends.  Commission on Judicial Performance v. Dearman, 73 So.3d 1140 (Mississippi 2011).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for regularly holding court in his chambers for approximately 7 years.  In the Matter of Riordan, Determination (New York State Commission on Judicial Conduct November 9, 2011).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for intervening with a police officer about a friend’s traffic case that was returnable before his co-judge.  In the Matter of Hunt, Determination (New York State Commission on Judicial Conduct November 9, 2011).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for using a palm card in her campaign that could be construed as representing she had been endorsed by the New York Times when she had not received that endorsement.  In the Matter of Michels, Determination (New York State Commission on Judicial Conduct November 17, 2011).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a part-time judge for representing 4 clients in matters in his court in the 7 months following his appointment.  In the Matter of Shanley, Determination (New York State Commission on Judicial Conduct November 14, 2011).

Recent cases

  • Following a trial on the complaint of the Judicial Inquiry Commission, the Alabama Court of the Judiciary removed a judge from office for (1) engaging in a pattern of racist demeanor; (2) engaging in a pattern of sexually inappropriate demeanor; and (3) abusing the prestige of judicial office to seek early release of a female inmate and to seek aid for a friend’s sale of a life insurance policy.  In the Matter of Jinks, Final judgment (Alabama Court of the Judiciary October 29, 2021).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for being tardy for court proceedings; frequently failing to issue timely rulings and using pro tem judges to clear her queue; being frequently absent from the court during normal court hours when no matters were on the calendar; and performing weddings during court hours for cash.  Sears, Order (Arizona Commission on Judicial Conduct September 17, 2021).
  • Affirming in part, modifying in part, and reversing in part the findings of a hearing panel, the Michigan Attorney Discipline Board suspended the law license of a former judge for 180 days for engaging in numerous ex parte communications with his friend, an attorney who routinely appeared in front of him; failing to disclose the relationship or disqualify himself in matters in which his friend was involved; and failing to disclose his friendship with the attorney to the city council when advocating for the renewal of the friend’s firm’s indigent representation contract and for the payment of fees billed by the firm.  Grievance Administrator v. Easthope, Opinion (September 17, 2021), Notice of suspension (Michigan Attorney Discipline Board October 19, 2021).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a former judge for making a remark reasonably interpreted as sexual innuendo to a female defendant in response to her inquiry about whether she owed any bail.  In the Matter of Rodriguez, Order (New Jersey Supreme Court October 15, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former non-lawyer judge; in February and June, a hearing had been held before a referee on the written complaint filed by the Commission in October 2019 alleging that the judge threatened the life of a Black town employee who was in a romantic relationship with the judge’s White daughter, used a racial epithet when discussing the man on multiple occasions, and repeatedly expressed opposition to interracial marriage.  In the Matter of Sucher, Decision and order (New York State Commission on Judicial Conduct October 28, 2021).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for operating his motor vehicle while under the influence of alcohol and refusing to cooperate with police officers after they stopped his car and attempted to arrest him.  In the Matter of Jacobsen, Determination (New York State Commission on Judicial Conduct October 8, 2021).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 18 months without pay for (1) soliciting funds for the Red Cross on his Facebook page and (2) submitting a certification about a party’s character and legal position in litigation; the judge also agreed to complete the National Judicial College’s online judicial ethics course, “Ethics and Judging: Reaching Higher Ground.”  In the Matter of Johns (South Carolina October 13, 2021).
  • Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against a former judge; in a notice of formal proceedings, the Commission had alleged that the justice of the peace (1) dismissed a seat belt citation and speeding citation for a friend without complying with the code of criminal procedure and fabricated a court record with respect to the speed citation; (2) made Facebook posts or allowed posts to appear on her Facebook page that (a) promoted, advertised, and/or expressed her support for consumer products, businesses, and other commercial endeavors; (b) indicated her support for and association with law enforcement, the Blue Lives Matter movement, and the U.S. Border Patrol; (c) expressed her contempt or disdain for criminal defendants; (d) promoted fundraising efforts by civic, charitable, and educational organizations and made directed solicitations for personal and local causes; and (e) promoted the campaigns of several candidates for public office; (3) created and forwarded a naked selfie from her cell phone to one or more persons in her community, which was widely disseminated and shared online, and gave untruthful testimony to the Commission about the selfie; and (4) failed to timely respond to Commission inquiries and failed to provide court records as requested.  Fernandez, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct October 22, 2021).

Throwback Thursday

25 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for using the court’s computer to obtain confidential information from records of the Department of Motor Vehicles and disclosing them to a friend.  Public Admonishment of Smith (California Commission on Judicial Performance November 25, 1996).
  • Agreeing with the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for using campaign materials referring to himself as “THE Qualified “JUDGE” even though he had only sat previously as an ad hoc judge.  In re Cascio, 683 So. 2d 1202 (Louisiana 1996).
  • Adopting the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for delays in 2 cases and for failure to report the cases.  In re Tuck, 683 So. 2d 1214 (Louisiana 1996).
  • Adopting the recommendation of the Judiciary Commission based on a stipulation of uncontested facts, the Louisiana Supreme Court removed a judge from office for owning and operating a company that provided pay telephone service for all inmates in the local parish jail.  In re Johnson, 683 So. 2d 1196 (Louisiana 1996).
  • Agreeing with the findings of the Board of Commissioners on Judicial Standards, the South Carolina Supreme Court removed a judge from office for issuing an arrest warrant at the request of his daughter and releasing the arrested man from jail after the arrestee paid his daughter $500.  In the Matter of McKinney, 478 S.E.2d 51 (South Carolina 1996).

“Alarming insensitivity” and “heightened sensibilities”

The New Jersey Supreme Court recently sanctioned 2 judges for comments to litigants that had “the clear potential to suggest” bias against women in one case and had been reasonably interpreted as sexual innuendo in the other.

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 making sexist and misogynistic comments that reflected his religious beliefs to a male defendant during a video hearing on domestic violence charges.  In the Matter of Brister, Order (New Jersey Supreme Court September 16, 2021).  The judge admitted the factual allegations and conceded that his language was injudicious and violated the code of judicial conduct. 

On February 21, 2019, the judge presided over a matter in which an incarcerated defendant with multiple domestic violence charges appeared over a video conference link.  During the proceeding, the judge stated:

I’m going to tell you like I tell a lot of people with this same charge because all of these charges are the same.  We as men – and I can speak to you as man, because I’m a man, as well, we get frustrated with the women human beings because we try to straightened out a creation because they was created with a curve, but we as men, we think we are above creation, and we can straighten it out.  No matter how much you try, or how you try to straighten out that curve, you can never do it.  We get frustrated, and then — but in our frustration you can’t come at them like you’re Mike Tyson, and they’re in the ring like they’re Leon Spinks.  You can’t do it.  You can’t punch, you can’t hit.  At best, you treat as if you’re holding a feather, just to let them know you’re the man, and you’re in control.  But on each one of these five complaints it said you went at ‘em like Mike Tyson.

In response to the Committee’s question “about what exactly he meant,” the judge “described his language as a ‘poor choice of words’ and admitted that his comments stemmed from his personal religious belief concerning ‘creation from a higher power,’” and referenced “the biblical origin story in which Eve was created from the rib of Adam.”

Noting the judge’s claim that he had been trying to provide guidance to the defendant about “how to more appropriately behave when experiencing feelings of frustration,” the Committee explained that, regardless of his intent, the judge’s statements were disparaging toward women, “sexist and misogynistic,” and “had the clear potential to suggest” that the judge was biased against women.  The Committee also found that the “clear religious implications of Respondent’s remarks are equally inappropriate and wholly misplaced in a court of law” and that his “integration of his personal religious beliefs into his judicial conduct” also violated the code of judicial conduct.

In aggravation, the Committee noted that the judge had received a private letter of censure addressing similar concerns about “the appearance of a bias in favor of a litigant of Respondent’s same faith.”  Although he had not received that letter until shortly after he made the current “problematic comments,” the judge had already received the Committee’s request to address the earlier matter.  The Committee found that, in both matters, the judge “demonstrated an alarming insensitivity . . . to the perception of bias . . . .”

In mitigation, the Committee noted the judge’s remorse and attempts at apology and found that his comments, “while unacceptable . . . , were made in good faith to dissuade the defendant from engaging in physical acts of violence.”  However, the Committee concluded that the mitigating factors were outweighed by the judge’s repeated “instances of poor demeanor and the appearance of bias” and that a 1-month suspension was justified.

* * *
Adopting the findings and recommendation of the Committee, the New Jersey Court publicly reprimanded a former judge for making a remark to a female defendant that was reasonably interpreted as sexual innuendo.  In the Matter of Rodriguez, Order (New Jersey Supreme Court October 15, 2021).

During the first appearance of a female defendant charged with multiple drug offenses, after the defendant pled not guilty, the following exchange took place:

Assistant prosecutor:  Do we have to put bail on the record?
Public defender:  Oh, it’s an ROR bail.
Judge:  Your bail is ROR — you’re released on your own recognizance.
Defendant:  Okay.
Judge:  But you do have bail.  You have monetary bail.  You’re released on your own recognizance.
Defendant:  Okay.
Judge:  Okay?
Defendant:  Thank you.
Judge:  Do you understand?  You seem a little —
Defendant:  I’m like a little — ‘cause —
Assistant prosecutor:  Well, it’s confusing –
Defendant:  — I’m like, wait –
Assistant prosecutor:  — saying money bail or saying she doesn’t have to post anything.
Judge:  Yeah.  No.
Defendant:  Is it – do I owe you anything or –
Judge:  Not that you can do in front of all these people, no.

The assistant prosecutor, Lauren Casale, and a court services supervisor, Audra McEvoy discussed the incident and brought it to the attention of court administration.

The judge “consistently denied any impropriety or the appearance of an impropriety in his exchange with the defendant” and maintained that Casale and McEvoy “misunderstood his remark to the defendant as a sexual innuendo.”  The judge argued that he had been simply “’reiterating [to the defendant] that she need not make a payment to secure bail.’”  When testifying at the hearing, the judge “attempted to contextualize the social climate at the time of these events with reference to the ‘Me Too movement, Harvey Weinstein …, [and] Matt Lauer . . . .’”  The Committee described his testimony:

Cognizant that “people’s sensibilities as to sexual innuendos and saying things in the workplace were somewhat heightened,” Respondent maintained that his intent in making the subject remark was innocuous, i.e. to disabuse the defendant of any notion that she was required to post bail before leaving court that day. . . .  The offense expressed by AP Casale and CSS McEvoy, Respondent argued, was unreasonable and engendered by “their sensibilities, . . . their gender sexuality, . . . [and] their interactions with different types of people. . . .”

The Committee also noted that, although he denied it, there was evidence that the judge’s comment “may have been an attempt at humor,” noting that he had earlier in the proceeding joked about the defendant’s last name and that 4 of his character letters described his use of humor.  1 letter stated the judge used “quips” in his courtroom, and another stated that proceedings in his court often “took on a somewhat informal air.”

The Committee found that the judge’s statement was inappropriate, rejecting his defense as “unpersuasive.”  It explained:

The subject statement, on its face, suggests to its intended recipient that there was something she could do for Respondent in private, outside of the presence of those in the courtroom and unrelated to bail, that would satisfy her obligations in respect of the criminal charge.  Given the defendant’s ROR release, we find Respondent’s explanation incongruous and the witnesses’ interpretation of his remark as a sexual innuendo and their subsequent offense reasonable.  Regardless of his intent, Respondent’s statement had the clear potential to suggest to the defendant, as it did to AP Casale and CSS McEvoy, that she could avoid the consequence of her criminal charge if she were to do for Respondent, in private, something of a sexual nature.

Whether Respondent intended his words as a sexually suggestive remark, an attempt at humor, or something else, while Respondent knew or should have known that his choice of words was inappropriate because of the negative inferences which reasonably could, and, in this case, were drawn from the manner in which he phrased his response to the defendant’s inquiry.  Such remarks have no place in our judicial system and must be assiduously avoided by all members of the Judiciary, particularly its jurists.

Respondent’s introduction of sexual innuendo into a courtroom proceeding impugned the integrity of the Judiciary and the judicial process, sullied the dignity of those seeking redress in the court, and tainted the solemnity of the courtroom proceedings . . . .

Throwback Thursday

10 years ago this month:

  • Pursuant to the judge’s agreement, the Maryland Commission on Judicial Disabilities made public its private reprimand of a judge for misleading attorneys that a case would be tried in less than 24 hours and directing the assignment clerk to create and post a false document setting the case for a jury trial.  In the Matter of McDowell, Private Reprimand (Maryland Commission on Judicial Disabilities October 24, 2011).

Virtual National College on Judicial Conduct and Ethics

Remember to register for the virtual National College on Judicial Conduct and Ethics on Thursday and Friday, October 28 and 29, 2021, from 12 to 3:30 EDT/11 to 2:30 CDT/10 to 1:30 MDT/9 to 12:30 PDT & MST.  Held by the Center for Judicial Ethics of the National Center for State Courts, the College will have three one-hour sessions each day presented via Zoom, with 15-minute breaks in between.  The topics to be covered:

  • Determining the appropriate sanction in judicial discipline cases
  • Crossing the line and training to prevent it:  #CourtsToo
  • Abuse of the criminal contempt power and judicial discipline
  • When judges speak up
  • Lessons learned:  A decade plus of judges on social media

See the schedule below.  An abridged, remote version of the biennial College, the virtual College will provide a forum for judicial conduct commission members and staff, judges, judicial ethics advisory committees, and others to learn about professional standards for judges and current issues in judicial discipline.

  • The registration fee is $95 total for both dates, all sessions.  The fee is non-fundable.
  • If you cannot be present for all or part of the College, you can still register to gain access to a recording of the sessions after the College is over.  Only those who pre-register will have access to the recording.
  • If you are registering multiple people, you must register each attendee individually under their name and email address.
  • Attendees will receive two links, one for each day.  Each attendee’s Zoom links will be unique to them.  Please do not share your links with others.
  • You may not receive the email confirming your registration for up to 24 hours.  The email will come from akim@ncsc.org.  Please check your junk or spam folders.  If you have not received it in after 24 hours, please contact akim@ncsc.org.
  • Attendees will need to apply for continuing legal education certification in their state.

Schedule

Thursday October 28

12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
Determining the appropriate sanction in judicial discipline cases – Part 1

1:00-1:15 EDT/12:00-12:15 CDT/11:00-11:15 MDT/10:00-10:15 PDT & MST Break

1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
Determining the appropriate sanction in judicial discipline cases – Part 2

2:15-2:30 EDT/1:15-1:30 CDT/12:15-12:30 MDT/11:15-11:30 PDT & MST      Break

2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
Crossing the line and training to prevent it:  #CourtsToo

Friday October 29

12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
Abuse of the criminal contempt power and judicial discipline

1:00-1:15 EDT/12:00-12:15 CDT/11:00-11:15 MDT/10:00-10:15 PDT & MST Break

1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
When judges speak up

2:15-2:30 EDT/1:15-1:30 CDT/12:15-12:30 MDT/11:15-11:30 PDT & MST                    Break

2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
Lessons learned:  A decade plus of judges on social media

Session descriptions

Determining the appropriate sanction in judicial discipline cases
Thursday October 28
12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
Examining recent cases, participants will “vote” on what sanctions they would have imposed in actual judicial discipline cases and then discuss what factors influenced their vote.  ModeratorsJohn Erlick, Former Superior Court Judge, King County, Washington; Former Member, Washington State Commission on Judicial Conduct • David Sachar, Executive Director, Arkansas Judicial Discipline & Disability.

Crossing the line and training to prevent it:  #CourtsToo
Thursday October 28
2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
When does a joke in the courthouse cross the line into a violation of the code of judicial conduct?  When is a judge responsible for a hostile work environment?  This session will answer these questions and more.  The first part will examine real life examples of sexual harassment by judges, including how humor can be offensive and perceived as unwelcome advances, discrimination, and/or harassment.  Relevant canons will also be discussed.  The second part will address preventative measures and sexual harassment training tailored to judges and court staff.  ModeratorsKimberly Vanover Riley, Partner, Montgomery Jonson LLP, Cincinnati, Ohio  •  Judge Erica Yew, Judge, Superior Court of California; Member, California Supreme Court Committee on Judicial Ethics Opinions  •  Konstantina Vagenas, Director/Chief Counsel, Access to Justice Initiatives, National Center for State Courts.

Abuse of the criminal contempt power and judicial discipline
Friday October 29
12:00-1:00 EDT/11:00-12:00 CDT/10:00-11:00 MDT/9:00-10:00 PDT & MST
Although courts and judicial conduct commissions are generally reluctant to second-guess a judge’s decision to control the courtroom through use of their criminal contempt power, given the liberty interests at stake, judges have been disciplined for over-reacting and for ignoring the procedures designed to ensure that citizens are not thrown in jail precipitously.  This session will consider when an appealable abuse of the contempt power may also constitute sanctionable judicial misconduct.  Participants will also discuss how judges can control the courtroom without using the contempt power.  Moderators:  Michelle Beaty, Special Counsel, Louisiana Judiciary Commission  •  Judge Louis Frank Dominguez, Presiding Judge, Surprise City Court; Chair, Arizona Commission on Judicial Conduct.

When judges speak up
Friday October 29
1:15-2:15 EDT/12:15-1:15 CDT/11:15-12:15 MDT/10:15-11:15 PDT & MST
This session will strive to illuminate the gray area where off-the-bench judicial speech, the code of judicial conduct, and the First Amendment overlap when judges want to criticize court decisions, urge changes in the law, publicly comment on cases, or express their personal views on controversial issues in extra-judicial settings such as social media, law review articles, op-eds, bar association speeches, yard signs, bumper stickers, or t-shirts.  (Campaign speech will not be covered.)  ModeratorsRaymond McKoski, Retired Judge, 19th Judicial Circuit Court; Member, Illinois Judicial Ethics Committee • Robert Tembeckjian, Administrator and Counsel, New York State Commission on Judicial Conduct.

Lessons learned:  A decade plus of judges on social media
Friday October 29
2:30-3:30 EDT/1:30-2:30 CDT/12:30-1:30 MDT/11:30-12:30 PDT & MST
The first judicial discipline case involving Facebook was in 2009.  The numerous cases since demonstrate that judges need more guidance on how the code of judicial conduct applies on-line.  This session will consider the ethical best practices for judges using social media.  ModeratorsJacqueline Habersham, Executive Director, Texas State Commission on Judicial Conduct  •  Cynthia Gray, Director, Center for Judicial Ethics, National Center for State Courts.

Throwback Thursday

20 years ago this month:

  • Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a part-time municipal court judge and fined him $1,500 for (1) his conduct during the representation of a client charged with assaulting his wife and using his official capacity to have a National Crime Information Center criminal history run on the client’s ex-wife’s current husband to use in a child custody hearing subsequent to the divorce; and (2) treating a 17-year-old girl who was a defendant in a traffic case and her mother intemperately and having the mother arrested for contempt.  Commission on Judicial Performance v. Gunter, 797 So. 2d 988 (Mississippi 2001).
  • Based on the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a former judge for soliciting support and votes for his re-election from defendants and attorneys appearing before him during court.  In re Stephenson, 552 S.E.2d 137 (North Carolina 2001).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate for (1) purchasing items from a distraint sale conducted by his office; (2) personally serving documents on parties to actions pending in his court and falsifying the affidavit of service; (3) failing to respond to several circuit court orders requiring him to file returns in appeals from his court; (4) failing to monitor his official accounts, review his official bank statements, or supervise his clerks to ensure that they were properly executing their financial and accounting duties; and (5) misplacing documents in a matter pending before him, causing an unreasonable delay in the disposition of the case.  In the Matter of Thompson, 553 S.E.2d 449 (South Carolina 2001).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for calling an attorney ex parte to ask whether the attorney had told the defendant in a civil case she could charge a management fee for certain properties.  In re McCulloch, Stipulation, Agreement and Order (Washington State Commission on Judicial Conduct October 5, 2001).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for (1) engaging in a pattern or practice of accepting guilty pleas without obtaining proper written statements from the defendants as required by law, and (2) banishing defendants from the municipality in at least 3 cases.  In re Reid, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct October 5, 2001).

“Secondary judicial system for select defendants”

Based on their agreements to resign and never to seek judicial office, the West Virginia Judicial Investigation Commission publicly admonished two former magistrates for dismissing criminal charges in exchange for donations to a charitable organization pursuant to motions from the prosecution.  Public Admonishment of Nutter (West Virginia Judicial Investigation Commission August 27, 2021); Public Admonishment of Taylor (West Virginia Judicial Investigation Commission August 27, 2021).  The Commission found that, by dismissing criminal charges in exchange for donations to a charitable organization, the magistrates “created the appearance of selling justice” in their courtrooms and that, by going along with the prosecutor’s office, the magistrates “created a secondary judicial system for select defendants.”

The St. Marys Police Department had a non-profit program called “Slow Down for the Holidays” to raise money to provide Christmas presents for children in the community.  During the final 2 or 3 months of the year, during a traffic stop, police had the option of giving a driver a flyer that indicated that the driver could face their criminal charges or make a $50 donation to the program.  If the driver chose the donation, the municipal court would dismiss the citation, and the driver would avoid criminal fines, court costs, and a conviction on their record.  All of the citations were for non-serious traffic offenses such as speeding, and none involved jail time.  In 2018, the Pleasants County Sheriff’s Office joined the “Slow Down for the Holidays” program.

Also in 2018, the county prosecutor’s office decided to offer a few defendants charged with misdemeanors the opportunity to donate to the program in exchange for dismissal of their charges.  During the holiday months in 2018, 2019, and 2020, the prosecutor’s office offered at least 19 defendants the opportunity to avoid the consequences of their charges by donating to the program.  The cases involved more serious charges than traffic charges, and the defendants were required to donate $200 to $5,000, not $50 a charge.  Upon proof of a donation, the prosecutor’s office would make a motion to dismiss the charges to one the magistrates, and the magistrates would grant the motion.

The 2 magistrates dismissed 17 cases in total in which donations had been made to the program.  Of those, 12 involved criminal charges that would have resulted in an enhanced penalty if the defendant had been charged again; by dismissing the charges, the magistrates had ensured that the defendants would not receive a judgment of guilty that could later have been used to enhance criminal penalties.  Similarly, in 16 of the cases, the dismissals allowed the defendants to avoid receiving points on their license or a possible license suspension.

The magistrates were aware that there were no legal defects in the cases and that the only reason for the motions to dismiss was that the defendants had donated money to the police department charity.  As the magistrates admitted, no law, court rule, or caselaw allowed them to dismiss cases because the defendants donated to charity; they had not investigated whether there was any authority for the dismissals or asked for advice from other magistrates, judges, or the Commission, but had relied on the representations of the prosecutor’s office. 

Recent cases

  • Pursuant to a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for interfering and failing to cooperate with court officials in the administrative of court business with respect to personnel matters and using inappropriate language around court staff and court officials.  In the Matter of Chelini, Stipulation and order of consent (Nevada Commission on Judicial Discipline August 12, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former non-lawyer judge it was investigating based on the judge’s arrest on criminal charges of harassment and endangering the welfare of a child, his invocation of his judicial office at the time of his arrest when he asked the investigator to recommend a less restrictive order of protection, and his failure for approximately 3 months to comply with a court order to surrender all of his firearms.  In the Matter of Duyssen, Decision and order (New York State Commission on Judicial Conduct August 5, 2021).
  • Based on the report of the Board of Professional Conduct, the Ohio Supreme Court suspended a judge for 6 months without pay for regularly communicating on Facebook messenger and over the phone with a litigant about 4 cases over which the judge was presiding; the Court stayed the suspension conditioned on the judge completing at least 3 hours of continuing judicial education on ex parte communications or use of social media by judicial officers, refraining from further misconduct, and paying the costs of the proceedings.  Disciplinary Counsel v. Winters (Ohio Supreme Court August 18, 2021).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a magistrate for 6 months for his disruptive behavior during a meeting about the court’s Covid-19 safety plan, his confrontations with another magistrate and the Chief Magistrate after the meeting, and his statement to a clerk about the Chief Magistrate’s complaint to Disciplinary Counsel; the suspension was made retroactive to July 10, 2020, the date of his interim suspension, and the Court also ordered him to complete at least 15 hours of anger management and to pay the costs of the investigation.  In the Matter of Rivers (South Carolina Supreme Court August 11, 2021).
  • Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against a former justice of the peace and associate municipal court judge; in May 2019, the Commission had suspended the judge without pay after she was indicted on state charges of theft of more than $2,500, but less than $30,000, and abuse of official capacity.  Grigsby, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct July 12, 2021).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for her posts on her personal Facebook page that supported judicial candidates, opposed candidates for non-judicial offices, made a negative comment about Scientology, and included a meme about border crossings; the Commission also ordered the judge to obtain 2 hours of instruction on racial sensitivity with a mentor.  Public Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for, after learning that the county attorney sought to dismiss a traffic matter, initiating an ex parte communication about the merits of the case with the officer who issued the citation and directing his clerk to tell the county attorney that the officer was opposed to the dismissal.  Public Admonition of Zander and Order of Additional Education (Texas State Commission on Judicial Conduct August 12, 2021).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for ordering the activation of a criminal defendant’s stun cuff, which resulted in injury to the defendant and his absence from the remainder of the guilt/innocence phase of his trial.  Public Warning of Gallagher (Texas State Commission on Judicial Conduct August 19, 2021).
  • Based on agreements to resign and never to seek judicial office, the West Virginia Judicial Investigation Commission publicly admonished 2 former magistrates for dismissing criminal charges in exchange for donations to a charitable organization by granting motions to dismiss filed by the prosecution.  Public Admonishment of Nutter (West Virginia Judicial Investigation Commission August 27, 2021); Public Admonishment of Taylor (West Virginia Judicial Investigation Commission August 27, 2021).