Throwback Thursday

 5 years ago this month:

  • Based on an agreement, the Arkansas Commission on Judicial Discipline & Disability Commission publicly censured a judge for (1) issuing arrest warrants for 4 persons without probable cause documentation presented by a law enforcement officer or the county prosecuting attorney and presiding or attempting to preside over the resulting criminal charges and (2) a pattern of rude, impatient, and undignified temperament.  Letter to Van Hook (Arkansas Commission on Judicial Discipline & Disability Commission January 16, 2015).
  • Accepting the findings and recommendation of the Judicial Standards Commission based on an agreement, the North Carolina Supreme Court publicly reprimanded a judge for allowing plaintiff’s counsel to present advice and opinion on the Servicemember’s Civil Relief Act of 2003 outside of the presence of the servicemember/litigant or anyone appointed to represent him, relying on that advice and opinion without independently researching the law, and inappropriately denying the servicemember/litigant the appointment of legal representation guaranteed under the Act.  In re Branch, 767 S.E.2d 47 (North Carolina 2015).

 

A sampling of recent judicial ethics advisory opinions

  • A judge may participate in a study on judicial diversity in state courts but should not answer questions that could be perceived to suggest a predisposition to decide matters in a certain way regardless whether a case is pending or impending in any court.  Maryland Opinion Request 2019-27.
  • A judge and a judicial association may publicly support or oppose proposed legislative or constitutional changes to court structure, court operations, or the terms or conditions of judicial service by writing and submitting letters, articles, or editorials to newspapers and other publications; advocating in person or in writing to public officials, governmental bodies, and labor unions; testifying at public hearings; and speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee.  A judge and a  judicial association should use discretion when expressing a position on social media.  New York Opinion 2019-120.
  • A judge may speak about her judicial experiences at a federal legislator’s non-partisan, non-political youth cabinet meeting.  New York Opinion 2019-100.
  • A judicial official may not play a fictional judge in a scripted docudrama that raises controversial political and societal issues, such as reparations, police brutality, and the killing of innocent blacks.  Connecticut Informal Opinion 2019-3.
  • A judicial official may join a local bar association as a dues-paying member but should regularly re-examine the association’s activities and rules and should carefully consider whether identification with or involvement in specific programs or activities may undermine confidence in his independence, integrity, and impartiality or result in frequent disqualification.  Connecticut Informal Opinion 2019-4.
  • A judge may serve as a member of the House of Deputies at the general convention of the Episcopal Church.  Florida Opinion 2019-31.
  • A judge may serve on the board of a not-for-profit organization that advocates for effective policies and evidence-based solutions for the health, education, and success of children who are vulnerable because of poverty, racism, health disparities, and trauma.  New York Opinion 2019-105
  • A judge may not write or join an article or editorial on issues of substantial public controversy involving American foreign policy and military operations.  New York Opinion 2019-106.
  • A full-time magistrate judge may not be engaged in business as a motivational speaker.  South Carolina Opinion 15-2019.
  • A family court judge should not appear by telephone as a witness for a friend in an out-of-state custody/relocation hearing.  South Carolina Opinion 16-2019.

 

 

Throwback Thursday

10 years ago this month:

  • Accepting the recommendation of the Judicial Discipline and Disability Commission, the Arkansas Supreme Court removed a judge from office for his relationships with probationers; his involvement with Cycle Breakers, a probation program run through a non-profit corporation; ignoring and by-passing laws that were an impediment to his interest in Cycle Breakers; and enforcing payment of unauthorized “civil fees” from defendants with jail or the threat of jail, knowing the money would go to Cycle Breakers.  Judicial Discipline and Disability Commission v. Proctor, 360 S.W.3d 61 (Arkansas 2010).
  • The California Commission on Judicial Performance severely censured a judge for terminating and abandoning the trial in a dissolution of marriage matter before the husband had completed his case and without offering the parties an opportunity to present additional evidence; threatening the husband’s attorney with contempt if her client did not produce his statement of economic interests; failing to disqualify himself after reporting the husband’s failure to disclose an economic interest to the husband’s employer, which terminated him; and being discourteous and impatient toward the husband’s attorney and repeatedly threatening a mistrial if the proceedings were not concluded quickly enough.  Inquiry Concerning McBrien, Decision and Order (California Commission on Judicial Performance January 5, 2010).
  • In lieu of formal disciplinary proceedings and with the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a commissioner for invoking his office and using profanity while protesting a parking ticket.  Public Admonition of Pierce (Indiana Commission on Judicial Qualifications January 26, 2010).
  • Reviewing the recommendation of the Judicial Tenure Commission based on a settlement agreement, the Michigan Supreme Court suspended a judge without pay for 21 days and publicly censured her for acting as treasurer for her own campaign and running for mayor while a judicial candidate and after being sworn in.  In re Sanders, 777 N.W.2d 134 (Michigan 2010).
  • Based on the recommendation of the Judicial Tenure Commission, to which the judge consented, the Michigan Supreme Court suspended a judge without pay for 90 days and publicly censured him for driving while intoxicated.  In re Nebel, 777 N.W.2d 132 (Michigan 2010).

Throwback Thursday

 20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for telling a litigant who was in his office, “I’m tired of lying sons of b****es telling lies on me,” which was a reference to a complaint the litigant had filed against him, and, in a second case, shouting at an attorney in his office, “I do not have time to teach you law.  What are you looking at me like that for?  Am I speaking Chinese?”  Letter to Davis (Arkansas Judicial Discipline & Disability Commission January 24, 2000).  The Commission also required the judge to attend anger management counseling.
  • The California Commission on Judicial Performance publicly admonished a judge for inappropriate conduct toward female court employees, including suggestive sexual references and unconsented kissing.  Inquiry Concerning Gibson, Decision and Order (California Commission on Judicial Performance January 28, 2000).
  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge from office for (1) abusing his contempt power 3 times, (2) banning a prosecutor from his courtroom and then dismissing 41 cases when the prosecutor did not appear, (3) participating in a case as counsel for 4 years after becoming a judge, and (4) deliberately disobeying orders of the administrative judge.  In re Jefferson, 753 So. 2d 181 (Louisiana 2000).
  • The Missouri Supreme Court suspended a judge for the remainder of his term for (1) writing an “open letter,” published in a local newspaper, that implored citizens to support the police chief in a dispute with the mayor, (2) ordering a blanket reduction in fines and release of prisoners to compel the payment of his health insurance, and (3) failing to recuse from a case involving the daughter of the mayor with whom he was feuding.  In re Hill, 8 S.W.2d 578 (Missouri 2000).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) presiding over a traffic case in which the defendant was his niece, and (2) issuing a criminal summons when a defendant in a small claims case failed to make a payment on a judgement.  In the Matter of Bishop, Determination (New York State Commission on Judicial Conduct January 10, 2000).

 

Refusing to perform same-sex marriages

Recently, the Texas State Commission on Judicial Conduct publicly warned a judge for refusing to perform same-sex weddings while continuing to perform opposite sex weddings.  Public Warning of Hensley (Texas State Commission on Judicial Conduct November 12, 2019).  The Commission found that the judge had cast “doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation . . . .”  (According to the Texas Tribune, the judge has filed a lawsuit in state court claiming that the Commission violated the Texas Religious Freedom Restoration Act and seeking a declaratory judgment that “any justice of the peace may refuse to officiate a same-sex wedding ‘if the commands of their religious faith forbid them to participate in same-sex marriage ceremonies.’”)

Beginning in August 2016, the judge and her court staff gave all same-sex couples wishing to be married by the judge a document stating:  “I’m sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings.”  The document includes a list of local persons who would officiate a same-sex wedding.

On June 24, 2017, the Waco Tribune published an article on their web-site entitled, “No Courthouse Weddings in Waco for Same-Sex Couples, 2 Years After Supreme Court Ruling.”  The article reported that the judge “would only do a wedding between a man and a woman.”

Other judges have also been publicly sanctioned for refusing to perform same-sex marriages.

In 2013, based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for publicly stating he would not perform same-sex marriages in his judicial capacity while he continued to perform opposite-sex marriages.  In re Tabor (Washington State Commission on Judicial Conduct October 4, 2013).

On November 6, 2012, Washington voters passed a referendum approving same-sex marriage.  During an administrative meeting with judges and court personnel shortly before the referendum was to take effect, the judge stated that he felt “uncomfortable” performing same-sex marriages and asked his colleague who did not have similar personal objections to officiate in his stead.  Reporters learned about his position from an unidentified source, and his statement was broadly publicized.  After several newspaper articles and on-line comments, to press clarify his position, the judge explained that his decision not to marry same-sex couples was very personal and based on his religious views, and that, because judges are not required to perform marriages, he believed he had a right to decline to perform same-sex marriages so long as those seeking to be married have access to another judge without delay.

Following contact by the Commission, of his own volition, the judge ceased performing all marriages.

The judge accepted “the Commission’s determination that, by announcing he would not solemnize same-sex marriage due to his philosophical and religious concerns while continuing to solemnize opposite-sex marriages, the judge appeared to express a discriminatory intent against a statutorily protected class of people, thereby undermining public confidence in his impartiality.  Acknowledging that the judge was not required to solemnize marriages, the Commission explained that, “having chosen to make himself available to solemnize some weddings, . . . he is bound by the Code of Judicial Conduct to do so in a way that does not discriminate or appear to discriminate against a statutorily protected class of people.”

The Code of Judicial Conduct imposes on judicial officers a specific, enforceable obligation to avoid bias and the appearance of bias.  These obligations go beyond those imposed on others who serve the general public, reflecting the unique and integral role judicial officers play in our constitutional scheme of justice honoring the rule of law.  Judges must not only be impartial, but must also be perceived as impartial, in order to properly fulfill that role . . . .

By even temporarily acting in a discriminatory fashion toward gay men and lesbians, in stating that he would not solemnize their marriages when he continued to solemnize heterosexual marriages, and by commenting on that decision publicly, a reasonable person could objectively conclude that he might act in a discriminatory fashion toward gay or lesbian litigants, lawyers, or witnesses.

* * *
In a de novo review, the Wyoming Supreme Court censured a judge for her refusal to perform same-sex marriages and ordered that she either perform no marriage ceremonies or that she perform marriage ceremonies regardless of the couple’s sexual orientation.  Inquiry Concerning Neely, 390 P.3d 728 (Wyoming 2017).  For a longer discussion of the case, see a previous blog post.

See also Moore v. Judicial Inquiry Commission (Alabama Supreme Court April 19, 2017) (suspension until end of term of Chief Justice for entering an administrative order that directed all probate judges to follow the state’s laws banning same-sex marriage in disregard of a federal court injunction; In re the Matter of Nance, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission December 19, 2017) (public reprimand for entering a general order declaring that “under no circumstance” would the adoption of a child by a homosexual be in the child’s best interest); Inquiry Concerning Day, 413 P.3d 907 (Oregon 2018) (holding that judge committed willful misconduct by having his staff screen marriage requests to ensure that he did not marry a same-sex couple, but declining to consider the judge’s constitutional arguments because, even if it considered his refusal to perform same-sex marriages, it would impose the same sanction (a three-year suspension without pay) as it was imposing for other violations); Re Atherton (Tennessee Board of Judicial Conduct December 18, 2015) (public reprimand for an order dismissing a complaint for divorce because, referring to the U.S. Supreme Court decision on same-sex marriage in Obergerefell v. Hodges, “Tennesseans, corporately, have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage and, thereby, at a minimum, contested divorces”).

* * *
In 2014 and 2015, judicial ethics committees or conduct commissions in 6 states issued opinions, orders, or articles advising that a judge cannot refuse to perform same-sex marriages if the judge performs opposite-sex marriages even if the refusal is based on sincerely held religious or personal beliefs.  For an analysis of those advisory opinions, see a previous blog post.

In 2019, the American Bar Association Standing Committee on Ethics And Professional Responsibility issued a formal opinion on judges and same-sex weddings.  ABA Formal Opinion 485 (2019).  The opinion advised that, in a jurisdiction in which judges are obligated to perform marriages, a judge may not decline to perform marriages for same-sex couples.  In a jurisdiction in which performing marriages is a discretionary judicial function, the committee stated, a judge may not decline to perform marriages for same-sex couples if the judge agrees to perform opposite-sex marriages but may refuse to perform all marriages for members of the public while still performing marriages for family and friends as long as they do not refuse to perform same-sex marriages for family and friends.

Throwback Thursday

25 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a municipal court judge who had been suspended from the practice of law for failing to pay annual fees and, therefore, had not been an attorney in good standing for 4 years as required for municipal court judges.  Letter to Harrison (Arkansas Judicial Discipline & Disability Commission January 24, 1995).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a municipal court judge who had been suspended from the practice of law for failing to pay annual fees and, therefore, had not been an attorney in good standing for 4 years as required for municipal court judges.  Letter to Adams (Arkansas Judicial Discipline & Disability Commission January 24, 1995).
  • Granting the petition of the Judicial Standards Commission, the New Mexico Supreme Court removed a judge from office for (1) harassing and interfering with a court administrator, refusing to obey legitimate orders of the chief judge; verbally abusing a deputy sheriff, using profanity, and being discourteous, undignified, and disrespectful; deliberately failing to devote the number of hours required of a district judge; treating a hearing officer with discourtesy and disrespect and acting without dignity; and (2) his relationship with a not-for-profit organization.  In the Matter of Castellano, 889 P.2d 175 (New Mexico 1995).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for dismissing a case based on ex parte communications, sua sponte, without hearing any witnesses, stating that he could not ignore the “cry . . . raised up in the community” about the plaintiff, and ordering the plaintiff not to file any further actions without the court’s permission.  In the Matter of Frati, Determination (New York State Commission on Judicial Conduct January 20, 1995).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for giving inaccurate testimony in an attorney disciplinary proceeding against his law assistant.  In the Matter of Bloom, Determination (New York State Commission on Judicial Conduct January 20, 1995).

 

Ex parte communication:  “Basic judicial obligation to act as a neutral arbiter” 

Two recent judicial discipline cases illustrate the temptation for judges to take ex parte shortcuts around the justice system’s requirements of openness and orderly procedures.

The Washington State Commission on Judicial Conduct publicly reprimanded a judge who, based on his suspicions that 2 attorneys were trying to commit a fraud on the court, entered an order unsealing documents in a case without notice or a reasonable evidentiary basis.  In re Spanner, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 22, 2019).

On March 14, 2018, the judge was assigned to hear a guardianship/probate docket.  One of the cases was a guardianship of a minor who had suffered a significant injury from medical malpractice.  Prior to the hearing, the minor’s attorney filed a motion disqualifying the judge from the guardianship case, and the hearing was stricken from the calendar and rescheduled to be heard by a different judicial officer.

Before the judge was informed of his disqualification, he had reviewed the guardianship case file and the file in the same minor’s separate medical malpractice action in which another judge had approved the settlement.  In reviewing the minor settlement file, the judge noticed that parts of the settlement and supporting documentation were filed under seal through a procedure that did not appear to apply.

The judge “surmised, based in part on ‘back hall’ talk he had heard at the courthouse among court personnel, and in the community,” that the minor’s attorneys in the malpractice case were improperly trying to keep the settlement confidential to avoid disclosing the amount in a pending dissolution case involving one of the attorneys, in other words, they wanted “to keep earnings from the settlement secret from one of the attorney’s estranged husband.”  In August 2016, the judge had disqualified himself from that divorce case.  Although the minor settlement case was not before the judge, he ordered, “on his own initiative and without notice to any party,” that the documents be unsealed.  In the order, he found that the documents had been filed under seal to prevent the attorney’s estranged spouse from learning “the extremely large fee granted to plaintiffs’ attorneys” and concluded that the documents were sealed “without lawful authority” and “with perhaps nefarious motivations.”  The judge stayed the order for 14 days to allow an opportunity to address his decision to unseal.

The Commission emphasized that the judge’s order was “not based on a motion, evidence or argument presented to him, but on mere speculation and conjecture he gathered from extrajudicial sources . . . .”  Despite the judge’s argument that his motivation was proper, the Commission concluded that he had “betrayed that basic judicial obligation to act as a neutral arbiter” and “gratuitously impugned the attorneys’ integrity, which created a perception of partiality and unfairness.”

* * *
Based on a presentment by the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a judge for a series of aggressive, ex parte emails on New Year’s Eve to a prosecutor about scheduling a trial and related misconduct.  In the Matter of Jones-Tucker, Order (New Jersey Supreme Court November 20, 2019).

The judge was presiding over the case State v. Heimstra.  Kristina Bryant was the municipal prosecutor; John Sitlzer represented the defendant.

On Wednesday, December 27, 2016, Bryant emailed the judge the dates her witnesses and the defendant’s expert witness were available for trial.  That same day, the judge advised Bryant by email that the trial was scheduled for February 24, 2017.  Bryant notified Sitzler of the trial date by email.

On Friday, December 30, the judge rescheduled the trial for February 22 because she was not available on February 24.  She notified Bryant by email.  On Saturday, December 31, in an email to the judge, Bryant said that the defendant’s expert was not available on February 24 and provided the judge with 4 alternate dates.

The judge replied in 4 closely timed emails, beginning at 10: 54 p.m. and “continuing in quick succession” at 10:56 p.m., 10:59 p.m. and 11:09 p.m.  Her responses were:

  • “We need a certification as to unavailability with reference to the designated trial counsel and experts b4 changing the date. thank you.  I am not scheduling a special date like last Friday which was a complete waste of court resource time.  Too bad.  That is the trial date.  Get with the program.”
  • “Court rules say duis have priority. Follow the rules.”
  • “Your last message was you would send the appropriate subpoenas. What changed?”
  • “Not a game. Trial is 2/22/17.  You agreed to send subpoenaed trial date.  Not a game.  Not a game.  That is the trial date.  Not a game.  This is the trial date.  No more repeats of what happened this past Friday.  Not a game.  That is the date.  You agreed to send revised dates.  That is the scheduled trial date.  Sick of this.  Respect for the city if [sic] Camden.  Respect for our court.”

After a response from Bryant, on January 2, at 4:25 a.m., the judge replied:  “Not having a repeat of last week.  This is it [sic] a game in have already scheduled the trial for Wed 2/22.  Last time I am sending you this message.  This is is [sic] not a game.  Respect for this court.  Respect for the city.”

Questioning the judge’s “mindset in choosing to engage in this excessive fashion with counsel, over email, late in the evening on New Year’s Eve,”  the Committee found that the judge’s “overtly aggressive emails” berating Bryant about a scheduling issue Bryant had not created “depict a judge in an intemperate state responding belligerently to the municipal prosecutor, after-hours, about a simple scheduling issue . . . .”  The Committee agreed with Bryant’s characterization of the emails as “’disrespectful and condescending.’”

On Friday, January 6, Bryant and Sitzler appeared, as directed, before the judge.  Following a protracted colloquy about the trial date, Sitzler requested that the judge give him copies of the emails between her and Bryant.  The judge disclaimed any knowledge of the emails and directed Sitzler to seek such “confidential” emails from the court director.  Following this exchange, the judge instructed Sitzler to provide to the court, within 10 days, a list of possible dates for the Heimstra trial and then concluded Heimstra for the day.

After hearing several unrelated matters, the judge directed Bryant to return to the courtroom.  Although acknowledging that Sitzler was absent, the judge addressed Bryant about the Heimstra matter, stating:

The Court has grave concerns about Mr. Sitlzer’s requests and why he would even make such a request considering they are from my personal emails to you.  Have grave concerns about that and I believe this puts me in both a conflict of interest with him and with you.  I do not expect you to prosecute any further cases in my Court until this matter’s resolved.  You and Mr. Sitzler will hear from the Court Director as to which judge this case will be assigned to.  You’re excused.

The Committee found that the judge addressed Bryant ex parte in a “demeaning and patronizing tone” in the courtroom and accused Bryant of behaving inappropriately by telling Sitzler about the ex parte emails.  The Committee concluded that the judge’s prohibition on Bryant appearing before her until the matter was resolved was “an unjustified and exaggerated reaction to a perceived transgression.”