Appropriate discourse or personal attack

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

The article begins:

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

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

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

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

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

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

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

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

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

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

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

Throwback Thursday

5 years ago this month:

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

Virtual, personal campaign solicitation

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

The candidate asked 2 questions about virtual events:

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

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

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

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

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

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

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

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

The Florida code of judicial conduct provides:

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

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

Recent cases

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

Marching

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

  • Before attending a march, rally, or protest, judges must assume their participation will be scrutinized, publicized, and depicted in reports of the event, including in press coverage or on social media; and consider whether participation “would appear to a reasonable person” to undermine the judge’s “independence, integrity, or impartiality or demean the judicial office,” which is an objective standard. Judges should examine the official title of an event, its stated mission, its sponsors, and its organizers.  If a judge participates in a march, rally, or protest focused on social, legal, or political issues that may become the subject of litigation or that is sponsored or organized by individuals or entities who regularly appear in state court proceedings, a reasonable person may have cause to question the judge’s independence and impartiality when making decisions about those issues, individuals, or entities in subsequent cases.  Judges must also scrupulously avoid any extra-judicial activity tied to an organization that practices invidious discrimination.  Judges should not participate in a march, rally, or protest if such participation could reasonably be viewed as supporting or opposing a candidate for public office or as speaking publicly on behalf of a political organization.  Even if a march, rally, or protest relates to the law, the legal system, or the administration of justice, there are potential ethical pitfalls.  Even assuming attendance at a march, rally, or protest is appropriate in the first instance, a judge must remain vigilant and be prepared to leave if the event proves problematic.  Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating.  Arizona Advisory Opinion 2018-6..
  • A judicial officer may not participate in “A Silent March of Black Female Attorneys of Connecticut” by meeting marchers on the steps of the Supreme Court and reading part of the state constitution even if he is not introduced, does not identify himself by name or title, does not wear a robe, does not permit his name or title to be used in advertising, does not interpret the constitutional provision, and does not speak with the media.  Connecticut Informal Opinion 2020-3.
  • A judge may attend ceremonies held by law enforcement agencies to honor officers killed in the line of duty. Florida Advisory Opinion 1992-34.
  • A judge may attend a Mothers Against Drunk Driving candlelight vigil if it is not a fund-raising event and the judge’s attendance would not be announced. Florida Advisory Opinion 1995-41.
  • A judge may participate in a “March for Science” if it is centered on matters that are unlikely to come before the court. To determine whether to participate in an issue-related gathering, a judge should thoughtfully examine whether the issues might be likely to come before the court or adversely impact judicial independence or the appearance of impropriety or the appearance of impropriety or bias.  Illinois Advisory Opinion 2019-1.
  • A judge may not participate in the Women’s March on Washington scheduled for the day after the presidential Inauguration. Massachusetts Letter Opinion 2016-10.
  • Judges may not participate in a candlelight vigil celebrating the one millionth child served by CASA programs across the country even if the vigil is non-partisan and not connected with fund-raising. New Jersey Advisory Opinion 2008-1.
  • A judge must not participate in a high-profile, apparently non-partisan march to recognize the importance of scientific endeavors and rational thought in society unless she determines that the march is not co-sponsored by or affiliated with any political organization and does not support or oppose any political party or candidate for election and her participation will not involve her in impermissible political activity or insert her unnecessarily into public controversy. In the period leading up to the event, the judge must monitor the march’s agenda and publicly reported affiliations and sponsorships.  A judge may not participate in a local political rally, march, or demonstration sponsored by grassroots organizations, even if she would refrain from speaking.  New York Advisory Opinion 2017-38.
  • A judge may not appear at a candlelight vigil for those affected by domestic violence. New York Advisory Opinion 2010-59.
  • A family court judge should not attend a tree planting and candlelight vigil on behalf of victims of crime in the judge’s county. New York Advisory Opinion 2004-91.
  • A judge may attend “A Day of Remembrance” ceremony to honor victims of domestic violence but should take care that his mannerisms, actions, or speech do not cast doubt on his impartiality and should not act as an advocate or in any way indicate a predisposition as to how he might rule in a domestic violence case. Washington Advisory Opinion 1996-16.

 

Judicial Conduct Reporter

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

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

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

“A calm steady hand” needed

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

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

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

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

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

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

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

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

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

The Commission found that that question was sarcastic.

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

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

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

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

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

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

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

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

 

A sampling of recent judicial ethics advisory opinions

  • A judge may consult about adjudicative responsibilities with another judge, individually or on a listserv, as long as he does not receive factual information that is not part of the record and makes an independent decision in the matter.  Michigan Opinion JI-149 (2020).
  • As long as the judge does not discuss any pending or impending cases, a judge presiding over a dependency/delinquency docket may meet with attorneys working for Children’s Legal Services, without other stakeholders, to discuss docket management, scheduling issues, and expectations for motion practice, but it would be prudent for the judge to invite all stakeholders to the meeting.  Florida Opinion 2020-5.
  • A judge is not disqualified from cases involving the city prosecutor even though their children are schoolmates and friends outside of school when she and the prosecutor have no interaction other than scheduling visits for their children to see each other.  New York Opinion 2019-161.
  • While a lawsuit challenging the legitimacy of such arrests in New York’s courthouses is pending or impending, a town justice must not lobby the town board to adopt a policy prohibiting civil immigration arrests in the town court.  New York Opinion 2019-135.
  • Judges may attend school programs to generally educate parents and students about truancy-related issues and court processes.  Judges should not participate as volunteer “judges” in school-sponsored truancy intervention programs in which the judge engages directly with specific at-risk families or appears to “preside” over dockets.  Judges may not be members of a “truancy team” to assist a particular family or review the details of truancy issues in specific cases.  North Carolina Opinion 2020-1.
  • A judge may attend an event honoring black female judges if the event is not also a fund-raiser.   Florida Opinion 2020-4.
  • Judges must not publish their own charitable contributions on social media.  Judges may support charitable organizations on social media.  A judge who is on a charitable organization’s boards of directors may permit his position to be listed on the organization’s websites and social media.  If a judge has reservations about being associated with any charitable organization, the judge should avoid the association, including through social media and other digital media used by the organization.  Michigan Advisory Opinion JI-148 (2029).
  • A judge may not participate in a conference call organized by a federal legislator to plan an event on Capitol Hill in which individuals of a particular ethnic/cultural heritage gather and attend workshops on issues such as immigration, education, the workforce, the U.S. economy, and trade.  New York Opinion 2019-138.
  • A judge may personally appeal the denial of claims for health insurance coverage for her dependent child and may seek reversal of charges imposed by the child’s college.  New York Opinion 2020-18.
  • A district court commissioner may not accept a temporary position as a census taker/enumerator.  Maryland Opinion Request 2020-6.
  • A court attorney-referee may participate in a census education drive organized by his fraternity/sorority, provided his participation is strictly neutral, non-partisan, and informational.  New York Opinion 2019-149.
  • A judge may not serve on the executive committee of a regional Boy Scouts Council when several cases have been filed against the organization under the Child Victims Act and a member of the executive committee was recently charged with sexual abuse of children.  New York Opinion 2020-3.
  • A judge may serve as a board member on a local council of the Boy Scouts of America, but must resign if the council becomes involved in litigation.  A judge may mentor high school students through a program organized by a not-for-profit.  A judge may not serve on the board of a network of not-for-profit agencies when some of those agencies engage in advocacy, accept court referrals, or are eligible for appointments in the judge’s court.  New York Opinion 2020-55.
  • A town justice may attend public town board meetings as an observer.  New York Opinion 2019-158.
  • A judge may make a private monetary donation to a non-judicial candidate’s campaign even though the candidate must publish a public financial report of donations.  Michigan Opinion JI-145 (2020).
  • Judicial officers and judicial candidates may advertise their campaigns on personal or professional social media accounts but may not use those accounts to solicit or accept campaign contributions.  A judicial candidate’s campaign committee may solicit contributions through social media platforms.  Michigan Opinion JI-147 (2019).

 

Throwback Thursday

20 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Conduct, the Alaska Supreme Court publicly reprimanded a former judge for going outside the merit selection process to appoint as coroner an individual who had not applied during the application period; whose name was suggested by the chief justice; whom the judge knew to be a friend of the chief justice; on the basis of criteria (legal training and experience) that were not part of the position’s stated qualifications; and on terms that were significantly different from those advertised to the general public.  In the Matter of Johnstone, 2 P.3d 1226 (Alaska 2000).
  • Pursuant to the recommendation of the Judicial Discipline and Disability Commission, the Arkansas Supreme Court removed a judge from office for (1) continuing to represent 2 clients in litigation after becoming a judge; (2) willfully failing to honor a subrogation agreement with a union for medical expenses paid on a client’s behalf; (3) failing to properly report attorney’s fees, referral fees, and income from a trust on the financial interest statement required to be filed with the secretary of state; (4) writing 59 insufficient funds checks between 1993 and 1997; (5) failing to pay federal income taxes in 1994; (6) placing the license tag for his Toyota on his Ford pickup truck; and (7) depositing client funds in a personal account rather than a trust account.  Judicial Discipline and Disability Commission v. Thompson, 16 S.W.2d 212 (Arkansas 2000).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for accepting free tickets to baseball games from members of a law firm whose lawyers appeared before him.  Inquiry Concerning Luzzo, 756 So. 2d 76 (Florida 2000).
  • Pursuant to a stipulation, the Florida Supreme Court publicly reprimanded a former judge who, while a judge, had been routinely abusive, demeaning, and sarcastic to litigants, witnesses, and attorneys.  Inquiry Concerning Newton, 758 So. 2d 107 (Florida 2000).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline suspended a part-time judge for 6 months and publicly reprimanded her for serving as a referee for a township justice court and alternate municipal court judge while her membership status with the State Bar of Nevada was “inactive” because she had failed to obtain the required annual continuing legal education.  In the Matter of the Ungaro, Findings of Fact, Conclusions of Law, Decision and Imposition of Discipline (Nevada Commission on Judicial Discipline May 17, 2000).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline suspended a part-time judge for 6 months and publicly reprimanded him for serving as a referee for a township justice court and alternate municipal court judge while his membership status with the State Bar of Nevada was “inactive” because he had failed to obtain the required annual continuing legal education.  In the Matter of Morrison, Findings of Fact, Conclusions of Law, Decision and Imposition of Discipline (Nevada Commission on Judicial Discipline May 17, 2000).
  • Pursuant to the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for (1) knowingly convicting a defendant who was charged with DWI of careless and reckless driving when the defendant had not been charged with that offense and the offense was not a lesser included offense; and (2) taking a guilty plea in the hallway.  In re Brown, 527 S.E.2d 651 (North Carolina 2000).
  • Adopting the findings and conclusions of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a judge for 6 months without pay for engaging in ex parte communications with employees of the county department of children and family services.  Office of Disciplinary Counsel v. Ferreri, 727 N.E.2d 908 (Ohio 2000).

 

Recent cases

  • With the judge’s agreement, the D.C. Commission on Judicial Disabilities and Tenure determined that a judge violated the code of judicial conduct by (1) making comments that were not germane to the disposition of a case to send messages to attorneys and the public; and (2) in a child custody case, failing to follow established procedures required by clear and unambiguous law and making comments that one of the parties interpreted as a threat and demonstration of his bias against her; the Commission concluded that no further action or sanction was warranted.  Re Christian, Determination and undertaking (D.C. Commission on Judicial Disabilities and Tenure April 20, 2020).
  • Approving a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for, in a dispute with county officials regarding benefit payments for the drug court coordinator, negotiating on the coordinator’s behalf in his capacity as judge and behind the scenes with the coordinator’s attorney and threatening the county auditor with contempt unless the coordinator was offered a substantial settlement.  In the Matter of Miller, Order (Indiana Supreme Court April 30, 2020).
  • Based on the judge’s admissions, the Montana Supreme Court suspended a judge for 30 days without pay for (1) failing to properly report that she employed H.W. as her nanny, babysitter, and/or office worker; denying H.W.’s employment status during the discipline proceedings; and making false and misleading statements to the University of Montana School of Law to preclude H.W.’s admission; (2) publicly endorsing 2 partisan candidates for non-judicial offices on her personal Facebook page; (3) contributing to a partisan candidate; (4) having endorsements from 2 partisan candidates and a political organization had on her campaign Facebook page; and (5) during her campaign, claiming 2 years of experience under the student practice rules as 2 years of law experience and giving herself credit for approximately 80 jury trials while she was a law clerk for a federal judge.  Inquiry Concerning Harada (Montana Supreme Court April 17, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) initiating, engaging in, and considering an ex parte communication with a deputy sheriff concerning a jail policy and practice related to the merits of a motion pending before him in a criminal case and failing to disclose the communication and (2) failing to report 16 cases to his administrative judge on his quarterly reports of cases pending more than 60 days without decision.  In the Matter of Carter, Determination (New York State Commission on Judicial Conduct March 31, 2020).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for, during her 2018 campaign for election, (1) publishing a campaign advertisement and distributing campaign materials that gave the impression that she would consider revenue generation for the town in her judicial decisions and (2) liking or replying to crude Facebook posts by her supporters about her election opponent.  In the Matter of VanWoeart, Determination (New York State Commission on Judicial Conduct March 31, 2020).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge who had pled guilty to attempted burglary in the second degree, a felony.  In the Matter of Cicale, Decision and order (New York State Commission on Judicial Conduct April 2, 2020).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge who had pled guilty to federal tax evasion charges.  In the Matter of Seedorf, Decision and order (New York State Commission on Judicial Conduct April 2, 2020).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge who resigned after the Commission alleged in a formal written complaint that, in September 2018, the judge had operated his motor vehicle while under the influence of alcohol and asserted his judicial office with the police officer at the scene in an attempt to avoid arrest or other adverse consequences.  In the Matter of Rebolini, Decision and order (New York State Commission on Judicial Conduct April 30, 2020).
  • Agreeing with the recommendation of the Board of Professional Conduct, which adopted findings of a panel based on the parties’ stipulations, the Ohio Supreme Court publicly reprimanded a judge for operating a vehicle while under the influence of alcohol and referring to her judicial office during the traffic stop.  Disciplinary Counsel v. Doherty (Ohio Supreme Court April 14, 2020).
  • Adopting the findings and recommendation of the Board of Professional Conduct, the Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months, with the entire suspension stayed conditionally, for having a lengthy ex parte conversation with one party after the other party had left the courtroom following a hearing and discussing the evidence in case and her personal views on the absent party’s integrity, indicating how she intended to rule, making inappropriate comments about the parties’ religions, and using profanity; and failing to disqualify herself from the case after the ex parte communication.  Disciplinary Counsel v. Porzio (Ohio Supreme Court April 23, 2020).
  • Based on the findings and conclusions of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals suspended a magistrate for 90-days without pay, fined him $2,000, and reprimanded him for violating a state fishing regulation, displaying his court identification card to the Department of Natural Resources officers, his “belligerent and coercive behavior” toward the officers, and denying in a sworn statement during the investigation that he had acted in a disrespectful and coercive manner toward the officers.  In the Matter of Ferguson (West Virginia Supreme Court of Appeals April 22, 2020).