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A sampling of recent judicial ethics advisory opinions

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  • To fall within the exception to the prohibition on ex parte communications that allows judges to consult with other judges, a consultation need not be a question or request for advice or follow a particular format but is any conversation that assists a judicial officer carry out judicial functions and facilitates independent decision-making and may include a discussion of the facts or legal issues in a case.  California Formal Opinion 2022-20.
  • A prosecutor may prepare a judgment entry at a judge’s direction on the record in the presence of opposing counsel, but the prosecutor should not subsequently communicate with the judge or court staff about substantive changes or the merits unless opposing counsel is included in the communications.  Ohio Opinion 2022-12.
  • A judicial officer must disclose whenever their former spouse or a lawyer whom they previously dated appears in a case regardless how much time has elapsed since the divorce or the termination of the relationship.  When a judicial officer and an attorney have a child in common through birth, adoption, or legal authority over a child as authorized by the probate or family court, the judicial officer must disclose the relationship to the parties regardless of the child’s age.  Michigan Opinion JI-153 (2022).
  • A judge should not participate in a program to distribute gift cards to kinship guardians but may inform them of the program.  New Mexico Opinion 2022-3.
  • A judge who saw another judge’s comment on a social media post praising a local law enforcement agency for “solving” a high-profile crime must report the other judge to the State Commission on Judicial Conduct even if they have already reported the judge to a supervising or administrative judge.  New York Opinion 2022-115.
  • When an attorney is disrespectful toward the court and staff, is uncooperative, refuses to discuss settlement of cases, and is often unprepared, a judge may not bar the attorney from the court but may take appropriate action to address the attorney’s disruption of the court’s docket, including communicating in writing with the law firms for which the attorney appears of counsel and requiring that the attorney comply with the rules.  New York Opinion 2022-143.
  • A law clerk may engage in pro bono activities such as training, writing, or speaking about the law, but may not undertake any pro bono legal services or representation that would be considered the practice of law even on uncontested matters that are not pending in the jurisdiction of their clerkship.  Maryland Opinion Request 2022-44.
  • A judge may attend the swearing in and/or gala for a new governor but must not use their attendance as an opportunity to seek elevation by the governor to a higher bench; must not be seated on the dais with the governor or position themself in a way that suggests a particular allegiance with the governor unless they are officiating or playing a formal role in the inauguration ceremony; and should be identified, to the extent possible, only by their name, without reference to their judicial title.  Unless Maryland courts are closed on inauguration day, a judge must comply with any requirements for securing leave needed to attend the ceremony.  Maryland Opinion Request 2022-52.
  • A judge who has been noticed to serve on a grand jury panel must report for service unless excused by the presiding judge even though many assistant district attorneys appear before them. If the judge serves as a grand juror, they may not preside in that case if it comes before their court. New York Opinion 2022-141.
  • To provide emotional support, a judge may attend proceedings in a case involving criminal charges against their adult daughter.  New Mexico Opinion 2022-2.
  • A judge may attend as a guest of their partner a fund-raising gala benefiting a 501(c)(3) organization “committed to reforming New York City and State government by fostering accountability, accessibility, transparency, honesty and the highest ethical standards” and its “lobbying arm,” a 501(c)(4) organization.  New York Opinion 2022-124.
  • A judge may donate to Vote.org, which describes itself as the “largest 501(c)(3) nonprofit, nonpartisan voting registration and get-out-the-vote (GOTV) technology platform in America, with the goal of reaching historically underserved voters of color and underrepresented young voters.”  New York Opinion 2022-150.
  • A magistrate court judge may serve as a board member of a non-profit organization that provides information and resources on pregnancy, sexual health, and relationships.  South Carolina Opinion 19-2022.
  • A judge may not participate in a silent demonstration organized by a local not-for-profit civic organization at which community members will hold hands to show their opposition to gun violence in reaction to the recent death of a local child and an increase in local gun violence.  New York Opinion 2022-160.

Throwback Thursday

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5 years ago this month:

  • Adopting the recommendation of the Judicial Hearing Board based on an agreement, theWest Virginia Supreme Court of Appeals publicly censured a magistrate and fined him $2,000 for inappropriate comments he made about the victim in a domestic assault and battery case after finding a defendant not guilty following a bench trial.  In the Matter of Summers, Order (West Virginia Supreme Court of Appeals February 25, 2018). http://www.courtswv.gov/legal-community/JICAnnualReports/2018.pdf
  • The Kansas Commission on Judicial Qualifications ordered a former judge to cease and desist from verbal and/or physical conduct that is offensive and demeaning to female court reporters and judges and to continue his retirement without seeking election or accepting appointment to any judicial office.  Inquiry Concerning  Yeoman, Order (Kansas Commission on Judicial Qualifications February 7, 2018) (http://www.kscourts.org/appellate-clerk/general/commission-on-judicial-qualifications/cases/In%20re%20Yeoman%20(1328)%20-%20Public%20cease%20and%20desist%20-%202018.pdf).
  • ).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for engaging in an intimate relationship with the city’s prosecutor; the Commission also ordered that he obtain 2 hours of instruction with a mentor.  Public Reprimand of Berry and Order of Additional Education (Texas State Commission on Judicial Conduct February 21, 2018) (http://www.scjc.state.tx.us/media/46664/sberry17-1480pubrepoaesigned.pdf).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for sending a letter on official letterhead notifying the defendant in a public nuisance case filed by his brother that he was in violation of non-existent laws and ordering him to abate the nuisance; the Commission also ordered the judge to complete 2 hours of instruction with a mentor.   Public Reprimand of English and Order of Additional Education (Texas State Commission on Judicial Conduct February 8, 2018) (http://www.scjc.state.tx.us/media/46665/english17-1105-jpfinal-signed-pubrepoae.pdf).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for posting on his Facebook page a meme endorsing the extermination of Muslims and statements “railing” against liberals.  Public Reprimand of Burkeen (Texas State Commission on Judicial Conduct February 21, 2018) (http://www.scjc.state.tx.us/media/46666/burkeen17-0381-copubrepwebsite.pdf).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for refusing to allow a man to inspect and copy case files and for engaging in a heated conversation with the man; the Commission also ordered the judge to obtain 4 hours of instruction with a mentor.  Public Warning of Smith and Order of Additional Education (Texas State Commission on Judicial Conduct February 21, 2018) (http://www.scjc.state.tx.us/media/46667/smith17-1018-jpfinalpubwarn.pdf).

NCSC job opening

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The National Center for State Court’s Executive Office has an opening for a Director, Center for Judicial Ethics (CJE).  The CJE Director serves as the National Center for State Courts expert on judicial ethics domestically and internationally, working with the Conference of Chief Justices (CCJ) and similarly recognized international organizations on the subject of judicial ethics.  Annual salary: Depends on qualifications. Position closes on Tuesday, February 7th, 2023 @ 5:00 p.m. (ET).  Click here for a complete job description and to apply.

What judges said that got them in trouble in the second half of 2022

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What they said that got them in trouble in the first half of 2022

What they said in criminal cases

  • “I am not going to appoint a lawyer for you.  Get a job.”  Judge to defendants seeking appointment of counsel.  Bourne, Letter of censure (Arkansas Judicial Discipline & Disability Commission August 1, 2022).
  • “You should have stayed in south Arkansas;” “I wish you would have stayed in Illinois;” and “I get a lot of troublemakers from California.”  Judge to defendants from outside the county.  Judicial Discipline & Disability Commission v. Bourne, Per curiam (Arkansas Supreme Court August 9, 2022) (90-day suspension without pay with 75 days held in abeyance subject to conditions).
  • “[Does everyone speak] Engrish?”  Judge addressing a jury pool using an Asian accent.  In the Matter of Patterson, Final judgment (Alabama Court of the Judiciary October 27, 2022), agreed resolution of complaint (45-day suspension without pay and censure for this and other misconduct).
  • “Prison Patterson” and “Judge Hard-a*s.”  Judge referring to himself when speaking with attorneys.  In the Matter of Patterson, Final judgment (Alabama Court of the Judiciary October 27, 2022), agreed resolution of complaint (45-day suspension without pay and censure for this and other misconduct).
  • “And you know and I know that the State is broke. . . .  And memaw’s prison system is going to let him out at some point.”  Judge to victim in a case.  In the Matter of Patterson, Final judgment (Alabama Court of the Judiciary October 27, 2022), agreed resolution of complaint (45-day suspension without pay and censure for this and other misconduct).
  • “You don’t want to be somebody’s girlfriend when you go up the road,” and “butt raped.”  Judge referring to defendants going to penitentiary.  In the Matter of Patterson, Final judgment (Alabama Court of the Judiciary October 27, 2022), agreed resolution of complaint (45-day suspension without pay and censure for this and other misconduct).
  • “So you have been dumping some waste off the side of the road, in streams and so on?” and, “I’m going to read you the rights.  Well, in this case, I don’t think it’s necessary.”  Judge to defendant at arraignment.  In the Matter of Arndt, Determination (New York State Commission on Judicial Conduct September 28, 2022) (censure for this and other misconduct).
  • “Esteemed.” Judge referring to testimony of police officer. Staggs, Order (Arizona Commission on Judicial Conduct August 12, 2023) (reprimand for this and related misconduct).
  • “Zero credibility with myself or the prosecutor’s office.”  Judge before dismissing cases involving a particular deputy sheriff.  Judicial Discipline and Disability Commission v. Carroll, Opinion (Arkansas Supreme Court November 18, 2022)  (18-month suspension without pay, with six months held in abeyance for one year contingent on compliance with remedial measures).
  • “Wasting [my] time,” and “idiots.”  Judge about police officers during arraignments.  Public Admonishment of Harshbarger (West Virginia Judicial Investigation Commission December 15, 2022).
  • “[T]he prosecutor isn’t here.  Let’s see how much we can get away with.”  Judge before engaging in ex parte plea bargaining with defendants.  Disciplinary Counsel v. Carr (Ohio Supreme Court October 18, 2022) (indefinite suspension).
  • “You can trust me.  I know I’m not dressed like a judge, but I’m really the judge.”  Judge “reveling” in her lack of decorum, which included wearing tank tops, t-shirts (some with images or slogans), spandex shorts, and sneakers while presiding in court.  Disciplinary Counsel v. Carr (Ohio Supreme Court October 18, 2022) (indefinite suspension).
  • “Little boy.”  Judge berating male defendants who called her “ma’am,” which she resented.  Disciplinary Counsel v. Carr (Ohio Supreme Court October 18, 2022) (indefinite suspension).
  • “Always getting us the hookups.  Don’t worry, we don’t have to pay.  It’s on him.”  Judge joking in court about accepting food, beverages, flooring, and car repair for herself and her staff in exchange for waiving fees.  Disciplinary Counsel v. Carr (Ohio Supreme Court October 18, 2022) (indefinite suspension).

What they said in family law cases

  • “Am I invited?  Do you have any single friends?”  Judge to attorney after being told female litigant was getting married.  In the Matter of Camilletti, Order (West Virginia Supreme Court of Appeals September 20, 2022) accepting agreed resolution of statement of charges (12-month suspension without pay, with 11 months held in abeyance, reprimand, and counseling for this and other misconduct).
  • “Did I already say it’s because they are women?”  Judge talking about 2 daughters who refused to attend a wedding.  In the Matter of Camilletti, Order (West Virginia Supreme Court of Appeals September 20, 2022) accepting agreed resolution of statement of charges (12-month suspension without pay, with 11 months held in abeyance, reprimand, and counseling for this and other misconduct).
  • “That’s bullsh*t!”  Judge to male litigant in child support case.  In the Matter of Camilletti, Order (West Virginia Supreme Court of Appeals September 20, 2022) accepting agreed resolution of statement of charges (12-month suspension without pay, with 11 months held in abeyance, reprimand, and counseling for this and other misconduct).
  • “Or you’re going to prison forever!  I will send you down to live with the sodomites.”  Judge to male litigant in child support case.  In the Matter of Camilletti, Order (West Virginia Supreme Court of Appeals September 20, 2022), accepting agreed resolution of statement of charges (12-month suspension without pay, with 11 months held in abeyance, reprimand, and counseling for this and other misconduct).
  • “We all look alike.  Didn’t you know it’s a Trans world?”  Judge to female witness after accidentally referring to a male witness as “she.”  In the Matter of Camilletti, Order (West Virginia Supreme Court of Appeals September 20, 2022) accepting agreed resolution of statement of charges (12-month suspension without pay, with 11 months held in abeyance, reprimand, and counseling for this and other misconduct).
  • “You don’t know?  I’ll take the child and put it up for adoption then.  What do you mean you don’t know what you’re going to do?”  Judge to parents in child custody case.  In the Matter of Camilletti, Order (West Virginia Supreme Court of Appeals September 20, 2022) accepting agreed resolution of statement of charges (12-month suspension without pay, with 11 months held in abeyance, reprimand, and counseling for this and other misconduct).
  • “I don’t give a f*ck!  You have until 5 o’clock today!  Go get it!”  Judge when a litigant did not provide proof that he was in compliance with a drug program, after throwing a file in the litigant’s direction.  In the Matter of Camilletti, Order (West Virginia Supreme Court of Appeals September 20, 2022) accepting agreed resolution of statement of charges (12-month suspension without pay, with 11 months held in abeyance, reprimand, and counseling for this and other misconduct).
  • “Because you’re lazy and don’t give a sh*t maybe?”  Judge asking litigant why he had not produced records regarding his drug screens.  In the Matter of Camilletti, Order (West Virginia Supreme Court of Appeals September 20, 2022) accepting agreed resolution of statement of charges (12-month suspension without pay, with 11 months held in abeyance, reprimand, and counseling for this and other misconduct).
  • “Who gives a f*k?” and “Of course not, they’re a bunch of morons.’”  Judge under his breath during a telephone hearing in a marital case.  In the Matter of DalPra, Order (New Hampshire Supreme Court November 10, 2022), based on findings and recommendation (finding of misconduct with no additional disciplinary action against former judge).
  • “Sinister plan.”  Judge during an in camera interview accusing a six-year-old girl of implicating her mother in false allegations against her father.  In the Matter of Hummel, Public admonishment (West Virginia Judicial Investigation Commission December 2, 2022) (admonishment).

What they said in small claims and other civil cases

  • “Get the f**king wax out of [your] ears.”  Judge to plaintiff’s counsel in an exchange about a motion. In the Matter of Martin, 878 S.E.2d 865 (South Carolina 2022) (reprimand for this and other misconduct).
  • “Smart aleck,” “smart-alecky,” and “I understand what they were going to testify about, ma’am, I’m not an idiot, okay.”  Judge to litigant in unlawful detainer case.  In the Matter of Mulvihill, Decision and order (California Commission on Judicial Performance October 27, 2022) (censure for this and other misconduct).
  • “So what’d you do with the money?” and “Just will you stop getting mouthy with me?”  Judge to defendant in small claims case.  In the Matter of Arndt, Determination (New York State Commission on Judicial Conduct September 28, 2022) (censure for this and other misconduct).
  • “I’m going to think this out and do a judgment against him, more than likely . . .  And then you put a lien on his house, but I’m not sure about your ladders.  You might have to give him his ladder back.”  Judge to plaintiff in small claims case after the defendant left the courtroom.  In the Matter of Arndt, Determination (New York State Commission on Judicial Conduct September 28, 2022) (censure for this and other misconduct).
  • “You’re trying to get me to figure out this whole mess and it’s really a mess . . .  This is not something I can do fairly and understand . . .  I’m not that qualified to take care of it, to be honest with you;” and “because really, it’s way over my head.”  Judge to parties in small claims case.  In the Matter of Arndt, Determination (New York State Commission on Judicial Conduct September 28, 2022) (censure for this and other misconduct).
  • “I think you’re abusing this . . . woman;” “You could’ve just changed the fricken part here;” “You didn’t do anything . . .  Where the hell did you go in eight hours?” Judge to defendant plumber in small claims case.  In the Matter of Kraker, Determination (New York State Commission on Judicial Conduct October 6, 2022) (censure for this and other misconduct).
  • “The way it works is, file when you can.  I’m not going to turn it down.  I start reading.  And when I get bored, I stop reading … [p]ut the good stuff up front.”  Judge to attorney about filing an opposition to a motion.  Public Admonishment of Hunt (California Commission on Judicial Performance July 5, 2022) (admonishment for this and similar misconduct).

Next week:

  • What they said in the pandemic
  • What they said to or about court staff or other judges
  • What they said on social media
  • What they said outside the courthouse

Favorite word and adequate funding

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Accepting the parties’ proposed resolution and stipulation that the Judicial Inquiry Commission could establish by clear and convincing evidence the allegations in its complaint, the Alabama Court of the Judiciary suspended a judge for 45 days without pay and publicly censured him for (1) before, during, and after court proceedings and in court orders, subjecting attorneys, litigants, jurors, and court staff to inappropriate demeanor and temperament; and (2) declaring statutes regarding court fees unconstitutional and issuing an order redirecting court funds to address budget concerns.  In the Matter of Patterson, Final judgment (Alabama Court of the Judiciary October 27, 2022).

(1) On multiple occasions, the judge made highly inappropriate comments to or in front of attorneys, litigants, jurors, and court staff while on the bench and/or during official court proceedings.

The judge referred to Governor Kay Ivey as “Governor MeMaw” on multiple occasions and often referred to the State’s prison system as “Governor MeMaw’s prison system.”

In front of attorneys and staff, the judge referred to the circuit’s presiding judge as a “G*d d*mn snowflake,” and later as a “snowflake.”

While on the bench during proceedings and in the courtroom, the judge used cuss words and/or profanity before attorneys, litigants, jurors, and court staff.  According to his former court reporter, the judge used “a*s” all the time in court as if it was his favorite word.  After the conclusion of court proceedings, but still in the courtroom, the judge used “sh*t” and “f*cking” in conversation with assistant district attorneys and public defenders although he did not direct the cuss words at them.  The judge constantly referred to the circuit’s financial state as “dead a*s broke” and “broke a*s” even in orders.

While addressing a jury pool that included an Asian American, the judge used an Asian accent and asked if everyone spoke “Engrish.”  The judge immediately apologized to the jury pool, later characterizing the comment as a “stupid, stupid joke.”  He also apologized on Facebook:

Yesterday, while qualifying the jury pool, I made a joke in very poor taste about whether everyone could speak English.  I immediately recognized and apologized for my blunder, and I do so again.

When speaking with attorneys, the judge has referred to himself as “Prison Patterson” and “Judge Hard-a*s.”

In court, the judge referred to defendants being “somebody’s girlfriend” while they are incarcerated.  When covering another judge’s docket, the judge said more than once to defendants that they would be “butt raped in the penitentiary.”

(2) After Mandy Brady did not show up for a jury trial before the judge because she had mistakenly been released from custody, the judge ordered the circuit court clerk and the jail warden to show cause why Brady had been released from custody.  In his order, the judge stated that the circuit is in an “austere funding environment,” the clerk’s office is understaffed, and it costs the judicial system $4,000 for a 300-person jury venire to appear at the courthouse.  He continued:

Thus, when this court ensures that bond is revoked, and when a defendant is already in custody when her bond is revoked, I am wondering why and how she is not here today—and again, we are wasting valuable resources when jurors are here ready to go and the accused is not.

At the show-cause hearing on September 12, the judge found that the circuit court clerk was not reasonably or adequately funded as required by the state constitution, that that underfunding had caused the inadvertent release of a defendant who was a danger to citizens of the circuit, and that the clerk “is in imminent danger of not fulfilling her constitutional and statutory duties to support” the courts.  Therefore, the judge held, “Any state statute or act that charges litigants in Mobile County Alabama any fee involving litigation, which then takes funds away from this county leaving the Clerk and her staff underfunded . . . is unconstitutional as applied.”  The judge ordered the circuit court clerk to withhold 10% of court fees and costs collected until the state adequately and reasonably funded the circuit clerks’ office.

The judge had not given notice to the Alabama Attorney General that the constitutionality of state acts and statutes would be an issue at the show-cause hearing.  On receiving notice of the judge’s order, the attorney general filed a petition for a writ of mandamus.  The Alabama Supreme Court granted the writ, finding that the judge had gone “far beyond [his] authority to conduct a contempt proceeding.”

In addition to the suspension and censure, the judge was ordered to refrain from joking or other inappropriate or offensive colloquies with litigants, attorneys, or court staff while in the courtroom; to refrain from profanity and off-color language in the courthouse including in chambers or other private settings; to complete 15 hours of education on judicial ethics to include at least 3 hours of training focused on cultural sensitivity; to review weekly emails forwarded to him by the Judicial Inquiry Commission from the Center for Judicial Ethics for 6 months; and to meet with another judge as a mentor monthly for 6 months.

“A huge unknown called ‘Court'”

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Based on an agreement that included the judge’s resignation and agreement to never seek judicial office in the state, the West Virginia Judicial Investigation Commission publicly admonished a former judge for (1) in in camera interviews of 2 girls whose father had been accused of sexually abusing them, calling the 7-year-old girl a liar and suggesting that the 6-year-old girl had taken part in a “sinister plan;” (2) spending thousands of dollars for improper purposes; and (3) pulling out a gun and showing it in the courtroom.  In the Matter of Hummel, Public admonishment (West Virginia Judicial Investigation Commission December 2, 2022).

(1) On July 28 and August 18, 2020, the judge presided over a hearing on allegations that 2 minor girls had been sexually abused by their father, which were made in a petition filed by the state Department of Health and Human Resources.  At least 3 witnesses testified that the girls had been consistent in their reports of the alleged abuse, and the record included video-recordings of the girls’ interviews with the child advocacy center.

The judge held in camera interviews with both girls, with only members of his staff and the guardian ad litem also present.  The Commission found that both girls were reluctant witnesses who were “easily distracted during their respective interviews;” the elder girl indicated at the beginning of her interview that “she did not want to discuss the allegations,” and both girls hid under a table in the judge’s chambers at times.  During the interview, the judge repeatedly accused the elder daughter, then age 7, of lying, which “brought her to tears.”  The judge concluded that the younger daughter, then age 6, “had implicated the mother in a ‘sinister’ plot to falsify allegations against the father even though the judge was the first person to use the word ‘plan’ when questioning the little girl.”

After the interviews, the judge held that the girls had not been abused or neglected and dismissed the petition without making the findings of fact and conclusions of law required by statute.  In March 2021, the West Virginia Supreme Court of Appeals remanded the matter to the judge with instructions to “forthwith issue a new order containing the findings of fact and conclusions of law necessary to establish whether the children were abused and/or neglected.”

In a revised final order in April 2021, the judge held that there was no clear and convincing evidence of any abuse or neglect by the father  and dismissed the action from the active docket.

On appeal, the Supreme Court vacated the judge’s order and remanded the matter to a different judge for further proceedings.  The Court found that the manner in which the judge interviewed the girls violated the protection from psychological harm afforded by the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, the rules of evidence, and established caselaw.  The Court concluded that the judge not only failed to protect the older girl from harassment but had “perpetrat[ed]” the harassment by repeatedly accusing her of lying and leaving her in tears.  The Court explained that, “[e]ven assuming, arguendo, that [the elder girl’s] bursting into tears was an acceptable risk in taking the child’s testimony, we cannot conceive of any reasonable method or purpose of questioning a child which involves openly and directly accusing the child of lying.”  With respect to the younger child, the Court found that the judge erred in asking her “leading questions that cause a reviewer to question whether they were calculated to confirm a pre-existing suspicion rather than elicit truthful testimony.”

The Commission concluded that the judge “knew or should have known better.”  It explained:

He is a longtime lawyer and former assistant prosecutor.  At the time of the incident, he was a seasoned veteran of the Court.  He had absolutely no business calling a child of tender years a liar or suggesting to an impressionable six-year-old that she had engaged in some “sinister plan” regarding her father. . . .  When dealing with young children, judges should remember at all times that they are not wooden toys that can be repaired with ease.  They are living beings with thoughts and feelings who are coming into a huge unknown called “Court” to talk to what the child may perceive as a scary individual called “Judge” and must be treated with charity, understanding and patience.

(2) In 2019, the judge asked the 3 county commissions in his circuit to reallocate $15,000 to fund a case coordinator at a private mental health facility for adult drug court or to provide new funding and also asked for an additional $15,000 each for other adult drug court expenses.  The 3 county commissions agreed and provided $30,000 each for a total of $90,000.

The Commission found that, “Unbeknownst to the County Commissions,” in 2019 and 2020, the judge requested and received half of that money back from the mental health provider and improperly placed it with a general receiver, even though a court rule provides that a receiver may only be appointed in a pending case.  The judge had direct control over the money and used thousands of dollars from the funds for improper purposes.

(3) In April 2013, the judge, as chief judge, entered an order allowing all judicial officers to possess a firearm in the courthouse but directed that they “take reasonable and necessary measures to ensure that any firearm he or she may possess on the aforesaid premises is concealed such that same is not displayed.”

During a rare Saturday hearing in a civil case on March 12, 2022, the judge removed a firearm from where it was concealed on his person, put it on the bench in open view for the remainder of the proceeding, and at one point, “picked up the gun and displayed it for all to see.”  His act was captured on court security video.  The incident went viral in the national news.  (See, e.g., “A Judge Pulled a Gun in the Courtroom—and Then It Got Weird,” The Daily Beast (July 15, 2022); “West Virginia judge accused of waving pistol at defense lawyers and mocking security team for having smaller guns,” NBCnews.com (July 15, 2022).

The Commission found that it was hard to believe that a judge would “violate his own administrative order but that is what Respondent did when he pulled out a gun and showed it in the courtroom.  It is no wonder to this Commission that his conduct resulted in nationwide publicity.  He not only humiliated himself but he also caused great embarrassment to the court system as a whole . . . .”

Recent cases

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  • Based on a report of uncontested sanction but modifying the recommended sanction, the Arkansas Supreme Court suspended a judge for 18 months without pay for (1) dismissing cases involving a specific deputy sheriff without the consent of the prosecution; (2) attempting to exert improper influence over cases in other courts involving the Arkansas Game and Fish Commission; and (3) over several months, repeatedly failing to call his full docket on the record and canceling court without appropriate prior notice to litigants, attorneys, witnesses, or law enforcement; the Court held 6 months of the suspension in abeyance for 1 year contingent on the judge’s compliance with remedial measures.  Judicial Discipline and Disability Commission v. Carroll, Opinion (Arkansas Supreme Court November 18, 2022).
  • The Kentucky Judicial Conduct Commission removed a judge from office for (1) developing and implementing an ankle monitoring program through a non-profit organization he established, using the prestige of judicial office to promote the program to elected officials, agencies, and individuals, hindering the competitive bid process for the program, ordering defendants to participate in the program, and participating in the collection of fees those defendants paid to the organization; (2) mismanaging his courtroom, engaging in acts of retaliation, and abusing his contempt power; (3) pressuring people to donate to or support his political campaign; (4) attempting to interfere with his staff’s compliance with a Commission subpoena; and (5) using the prestige of office to intimidate a radio station about an open records request for video footage from the courthouse.  In re Jameson, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission November 4, 2022), on appeal.
  • Pursuant to the judge’s agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a former judge for exchanging flirtatious and sexual text messages with an employee of the administrative office of the courts.  In the Matter of Privett, Public reprimand (Kentucky Judicial Conduct Commission November 10, 2022). 
  • With the judge’s consent, the Maryland Commission on Judicial Disabilities publicly reprimanded a judge for making contributions to political candidates and failing to cooperate with disciplinary authorities.  Notice of Reprimand (Owens) (Maryland Commission on Judicial Disabilities November 2022).
  • Based on the former judge’s consent, the Nevada Commission on Judicial Discipline barred a former judge from judicial office for a pattern of legal error that caused the Nevada Supreme Court to reverse guilty verdicts in 18 cases and for an ex parte communication with the prosecution in one of the cases.  In the Matter of Smith, Stipulation and order of consent (Nevada Commission on Judicial Discipline November 14, 2022).
  • Based on the findings and recommendation of the Judicial Conduct Committee, which were based on a stipulation and agreement, the New Hampshire Supreme Court found that a former marital master violated the code of judicial conduct by making inappropriate and irrelevant statements during a telephone hearing in a marital case and having a side conversation with staff in the courtroom, failing to disclose his comments to the parties or to disqualify himself from the case, and failing to disclose his exact comments to the Committee during its investigation; because the master had retired, the Court found that no additional disciplinary action was required but ordered that he pay over $12,680 in costs.  In the Matter of DalPra, Order (New Hampshire Supreme Court November 10, 2022).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for voluntarily preparing and submitting character reference letters that invoked his judicial title in support of 2 pistol license applications and writing a letter on his judicial stationery requesting that a judge reconsider her denial of one of the applications.  In the Matter of Aronian, Determination (New York State Commission on Judicial Conduct November 7, 2022).
  • 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; the Commission had received an anonymous complaint that the judge had been arrested for terroristic threat of a family member (although prosecution was declined); a complaint from the county attorney about the judge’s treatment of professional associates, inappropriate behavior in the workplace, and use of county equipment; and a complaint about his treatment of defendants.  Noaker, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct October 13, 2022).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for failing to provide a defendant a pretrial hearing that she had requested, failing to respond to several letters and emails regarding 2 cases, and failing to timely dispose of the business of the court; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Morales and Order of Additional Education (Texas State Commission on Judicial Conduct October 13, 2022).
  • Following a trial de novo, a Texas Special Court of Review affirmed the State Commission on Judicial Conduct’s public reprimand of a judge for seeking to replace a defendant’s attorney and initiating a motion for a new trial on the defendant’s behalf.  In re Wilson, Opinion (Texas Special Court of Reivew November 21, 2022).
  • Granting a petition for consensual license revocation, the Wisconsin Supreme Court revoked the law license of a former judge based on his conviction, entered following a guilty plea, on 2 federal felony counts of distribution of child pornography.  In the Matter of Blomme, Opinion (Wisconsin Supreme Court November 25, 2022).

Throwback Thursday

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10 years ago this month:

  • Based on a joint motion to resolve charges, the Alabama Court of the Judiciary publicly reprimanded and censured a judge for failing to recuse himself from a traffic violation case in which his son was the defendant and dismissing the case.  In the Matter of Durward, Reprimand and Censure (Alabama Court of the Judiciary November 21, 2012).
  • Based on the recommendation of the Commission on Judicial Conduct and a stipulated resolution, the Arizona Supreme Court publicly censured a former judge for accompanying his niece while she collected nominating petition signatures for a candidate and for speaking at a political meeting at which one of the subjects was whether to adopt a resolution supporting the recall of his brother, a state senator.  In the Matter of Pearce, Order (Arizona Supreme Court November 26, 2012).
  • With the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for assuming the role of the prosecutor when she attempted to negotiate a resolution to a defendant’s case after the defendant inquired about the status of his traffic infraction ticket and driver’s license suspension and for several ex parte conversations with the prosecutor about the case.  Public Admonition of Hagerty (Indiana Commission on Judicial Qualifications November 19, 2012).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court reprimanded a judge for telling a defendant who had questioned the bond the judge set, “I’ll beat you’re a** if you call me a liar.”  In the Matter of Martin, 734 S.E.2d 165 (South Carolina 2012).

Throwback Thursday

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20 years ago this month:

  • Approving the findings and recommendations of the Judicial Qualifications Commission, the Florida Supreme Court suspended a judge for 4 months without pay, publicly reprimanded her, and fined her $40,000 for misleading statements made in campaign finance reports in violation of state campaign laws.  Inquiry Concerning Rodriguez, 828 So. 2d 1060 (Florida 2002).
  • The Montana Supreme Court suspended a judge without pay until the end of his term for (1) knowingly accessing sexually explicit images on a county computer and monitor; (2) entering a man’s residence uninvited; and (3) advising a man with legal problems, “you know you’re going to be arrested if you attract attention so why don’t you just keep your nose clean and behave.”  Harris v. Smartt, 57 P.3d 58 (Montana 2002).
  • Adopting the findings of fact and recommendation of the Commission on Judicial Qualifications to which the judge consented, the Nebraska Supreme Court suspended a judge for 120 days without pay for ex parte communications and public comments after a sentence the judge had imposed was reversed on appeal.  In re White, 651 N.W.2d 551 (Nebraska 2002).
  • The Nebraska Commission on Judicial Qualifications publicly reprimanded a judge for taking an active role in facilitating a campaign contribution to a candidate for city council by personally communicating the solicitation to her husband, delivering the campaign literature to him, and personally delivering to the candidate a check written by her husband on a joint account.  In the Matter of Prochaska, Reprimand (Nebraska Commission on Judicial Qualifications October 7, 2002) .
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge for informing a company’s attorney of an impending search after signing the warrant authorizing investigators to search the premises of a company for environmental violations. In the Matter of Gibbons, 778 N.E.2d 104 (New York 2002).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for making gratuitous, insulting comments in open court about a matrimonial litigant’s former attorney and failing to promptly recuse when the attorney appeared before him shortly afterwards in 2 matters.  In the Matter of Bradley, Determination (New York State Commission on Judicial Conduct October 1, 2002).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for threatening a small claims defendant with arrest to enforce a civil settlement.  In the Matter of Hamm, Determination (New York State Commission on Judicial Conduct October 1, 2002).
  • • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who had shown his official identification card when stopped by the police for traffic offenses. In the Matter of Werner, Determination (New York State Commission on Judicial Conduct October 1, 2002).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge who had pleaded guilty to driving while intoxicated.  In the Matter of Stelling, Determination (New York State Commission on Judicial Conduct October 1, 2002) ().
  • The New York State Commission on Judicial Conduct publicly censured a judge for (1) improperly asserting his judicial office to advance his private interests during a dispute at a comedy club with a woman he was dating, (2) writing a letter to a federal agency seeking personal information about the woman under false pretenses, and (3) interceding with another judge on behalf of the woman to obtain a favorable disposition in a traffic case.  In the Matter of Cipolla, Determination (New York State Commission on Judicial Conduct October 1, 2002).
  • Pursuant to the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for entering 2 ex parte orders dismissing DWI charges against a defendant when the judge knew the cases were before him only on a motion for appropriate relief.  In re Brown, 570 S.E.2d 102  (North Carolina 2002).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge pro tempore for vacating an order finding that a vehicle was improperly impounded after hearing from the towing company without the presence of the vehicle, who had already departed the courthouse.  In re Hurtado, Stipulation, Agreement and order (Washington State Commission on Judicial Conduct October 4, 2002).
  • The Texas State Commission on Judicial Conduct publicly admonished a justice of the peace who had failed to obtain the mandatory 20 hours of judicial education for the year ending August 31, 2001.  Public Admonition of Rodriguez (Texas State Commission on Judicial Conduct October 23, 2002).
  • The Texas State Commission on Judicial Conduct publicly admonished a municipal court judge who had failed to obtain the mandatory 12 hours of judicial education for the year ending August 31, 2001.  Public Admonition of Dodier (Texas State Commission on Judicial Conduct October 23, 2002).

A sampling of recent judicial ethics advisory opinions

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  • A judge may not appoint their personal financial manager to a fiduciary position. New York Opinion 2022-59.
  • A judge who volunteers as a coach for a youth sports team is not required to disqualify when an attorney whose child is on the team appears in a case unless there are other facts that would cause a person to doubt their ability to be impartial, but the judge must disclose on the record information reasonably relevant to their decision not to disqualify. California Formal Opinion 2022-19.
  • A judge may not perform work on an amicus brief that will be filed by the bar association in a high-profile federal appeal. New York Opinion 2022-91.
  • To determine whether to report a gift and, if so, what value to list, a judge should use reasonable diligence to determine its value, for example, asking a bar association the value of a commissioned portrait and crystal gavel given to the judge or contacting an establishment that sells the item or similar items. Florida Opinion 2022-6.
  • A judge who is considering leaving judicial service may apply for jobs while still holding office, but if the judge applies for employment with a party or a law firm appearing before the judge, recusal will likely be necessary. If the judge accepts employment with a law firm, the judge may not authorize the firm to advertise their anticipated post-judicial employment at the firm. Florida Opinion 2022-7.
  • A judge may not serve on a state education department committee that will address how local school districts report student/school-related conduct, communication, and disciplinary matters to the department. Florida Opinion 2022-10.
  • A judge may participate in a group organized by the governor’s office and the Department of Motor Vehicles to propose simpler language and more logical organization for the traffic laws if the membership is balanced with subject experts from relevant state agencies, non-profit organizations, prosecutors, and defense counsel. The judge may be reimbursed for travel and lodging expenses reasonably incurred for their participation but may not be compensated. New York Opinion 2022-89.
  • A judge may write a children’s book about what judges do and what it takes to become a judge, emphasizing that children who are members of minority groups can grow up to become judges. As long as they do not comment on pending cases or legal controversies or give legal advice, and the activities do not conflict with their professional schedule, the judge (1) may give public readings of the book at schools, community centers, and similar institutions, but may not wear a judge’s robe when doing so, (2) may give public readings in conjunction with a “lawyers for literacy” program but may not solicit lawyers to purchase the book or solicit invitations to such events, and (3) may promote the book through media outlets such as radio and be identified as a sitting judge and discuss the role of a judge. Florida Opinion 2022-9.
  • A judge may give a historical presentation to a church on a U.S. Supreme Court decision about abortion and discuss the majority, concurring, and dissenting opinions on the possible ramifications of the case, but may not offer any personal views. Maryland Opinion Request 2022-24.
  • A judge may create and fully fund scholarships at their former elementary school and college. A judge may volunteer with foster youth through a city agency unless their protégé is or becomes involved in court proceedings. New York Opinion 2022-55.
  • A judge may serve on the steering committee of a not-for-profit cultural/religious organization associated with a college and donate at least $1,000 a year as required; may permit their name to be listed on the organization’s regular letterhead, including the title “Honorable,” even if the letterhead might be used for fund-raising events if comparable designations are listed for other committee member; and may permit their name to be listed on an invitation to a fund-raiser unless the formatting reasonably creates an impression that the committee members collectively and/or the judge individually are personally soliciting funds or personally inviting people to the fund-raiser. New York Opinion 2022-73.
  • A judge must object in writing to the use of their name on a flyer announcing a not-for-profit civic organization’s fund-raiser and advise the organization to remove or omit their name from any further promotions. After objecting, the judge may attend the event, be recognized as one of the inductees during the ceremony, and buy a table for friends and family to attend. New York Opinion 2022-84.
  • A judge makes referrals to a not-for-profit entity while presiding in a problem-solving court may not accept complimentary tickets to the entity’s lavish fund-raising gala, but may purchase tickets and attend the event. New York Opinion 2022-72.
  • The judge members of a bench-bar committee should not have their names on advertisements for CLE programs held by the committee to raise funds for charitable organizations, should not be involved in the selection of the charities that will receive the donations, and should not hand a check to the charities. West Virginia Opinion 2022-23.
  • A judge may meet with a commercial television producer and their creative team to discuss a possible television show involving the criminal justice system even if the meeting could result in an employment offer or business opportunity that the judge cannot begin without resigning. New York Opinion 2022-99.
  • A judge may not appear as a judge on a cable TV show similar to Judge Judy. West Virginia Opinion 2022-21.
  • A new judge may submit vouchers for legal fees earned for work performed as assigned counsel prior to assuming the bench. New York Opinion 2022-86.
  • A judicial candidate who learns that their political party is circulating petitions naming them as a candidate for a non-judicial office must request in writing that the party immediately stop and advise that, if elected, they will decline to serve. New York Opinion 2022-61.