Not a matter of management style

The North Carolina Supreme Court found that a court of appeals judge had committed willful misconduct by allowing his executive assistant/law clerk, who was a close friend, to create a toxic work environment for the female law clerks in his chambers.  In re Inquiry Concerning Murphy, 852 S.E.2d 599 (North Carolina 2020).

After he became a judge in January 2017, the judge hired his close, personal friend from high school, Ben Tuite, to serve as his executive assistant and permanent third law clerk.  The judge gave Tuite “express and implied authority to supervise and manage the term law clerks and the operations of his chambers.”  The judge hired Clark Cooper and Lauren Suber as his term law clerks.  In March 2017, after Cooper suddenly resigned, the judge hired Mary Scruggs.  After Suber completed her clerkship in August 2017, she was replaced by Chelsey Maywalt. 

The Judicial Standards Commission found that Tuite “regularly used profanity during the workday, belittled others,” “used fear and intimidation while interacting with and supervising the law clerks,” “engaged in profane, violent and angry outbursts in the office,” and made “lewd or sexually inappropriate comments in the workplace.”  For example:

  • Tuite frequently used the word “f**k” in the workplace.
  • Tuite referred to the female law clerks more than once as “b***h” or “b***hing.” 
  • Tuite told Suber and Scruggs on separate occasions early in their clerkships that “he likes to have relationships with female co-workers but that they should not misconstrue his efforts to spend time with them.”
  • Tuite told Suber that “he would like to see her in a wife beater’ tank top and shorts on a cold day” and that he “was married but not blind.”
  • While reviewing a law clerk application with the judge, Suber, and Scruggs, Tuite repeated “derogatory and belittling online comments” that called the female applicant’s breasts “fun bags.”
  • On one occasion, Tuite, “after being told of a problem with his work product, yelled ‘f**k’ loud enough for everyone in the judge’s] chambers, including [the judge] who was in his office with the door open, to hear, and slammed his fist on a table hard enough to activate a panic alarm that was attached to that table.”
  • On another occasion, during a meeting, Tuite, in the judge’s presence, got angry at Maywalt, slammed his fist on his chair, said, “Goddamn it, Chelsey,” and told her to shut her mouth and that “her opinion did not f**king matter.”

The judge observed some of Tuite’s conduct, and the law clerks told him about other incidents, but he failed to take any action.  The female clerks “were miserable, felt unsafe and uncomfortable working in [the judge’s] chambers and did not trust [the judge] to accurately portray their reports of workplace misconduct to others or to protect their well-being.”  2 of the clerks resigned before their terms were over; one did not accept the judge’s offer to extend her term. 

Another judge reported his concerns about the environment in Judge Murphy’s chambers to the chief judge.  In subsequent meetings with and emails to the Commission and the human relations department, the judge did not disclose the law clerks’ complaints about Tuite or any of the incidents he had observed and “downplayed, minimized, and mischaracterized” Tuite’s actions.  “The judge dismissed the female clerks’ concerns as complaints about “‘how things are handled’ inside and outside of chambers.”  The judge also regularly assured Tuite and indicated to others that Tuite’s employment at the court of appeals would continue.  However, after a judicial colleague advised him to ensure that “his female law clerks were not uncomfortable” and after learning that Scruggs was interviewing for another position, the judge asked Tuite to resign, which he did in January 2018.

Finding that he had been “influenced by his close personal friendship with and loyalty towards Mr. Tuite,” the Commission concluded that, by failing to act, the judge condoned “Tuite’s workplace misconduct and therefore . . . contributed to and enabled a toxic work environment.”  The Court adopted the findings of the Commission.

The Court rejected the judge’s argument that he could not be held accountable for others’ actions; it noted that the code of judicial conduct specifically states that a judge should require “dignified and courteous’ behavior of his staff” and require “staff and court officials subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge.”  The Court concluded:

The incidents for which respondent was present . . . were sufficient to warrant corrective action with regard to Mr. Tuite.  Instead, respondent continued to turn a blind eye.  This shortcoming is not, as [the judge] contends, simply a matter of managerial style.  Rather, it is a failure to recognize the gravity of Mr. Tuite’s sexually explicit language and profane and suggestive language directed toward [the judge’s] law clerks and the impact on the law clerks of such unprofessional behavior.

Multiple acts of misconduct aggravated by a failure to acknowledge fault or show remorse and by a lack of candor often result in a judge’s removal or suspension without pay in judicial discipline cases.

However, the North Carolina Supreme Court only publicly censured Judge Murphy without explanation except the conclusion that his conduct “did not rise to the level of incurring suspension or removal as contemplated in other decisions of this Court.”  The Court did not cite its other decisions, but since 2008, it has removed 2 judges and suspended 2 judges without pay, in addition to imposing several censures and reprimands.  See In re Chapman, 819 S.E.2d 346 (North Carolina 2018) (30-day suspension without pay for failing to issue a ruling for more than 5 years on a motion for permanent child support); In re Hartsfield, 722 S.E.2d 496 (North Carolina 2012) (based on stipulated facts, 75-day suspension without pay for ticket-fixing); In re Belk, 691 S.E.2d 685 (North Carolina 2010) (removal of former judge for remaining on the board of directors of a corporation and making intentional misrepresentations during the Commission investigation); In re Badgett, 666 S.E.2d 743 (North Carolina 2008) (removal of judge for mishandling a domestic violence protective order case and, during the investigation, making untruthful, deceptive, and inconsistent statements to a State Bureau of Investigation agent and attempting to influence the recollections of a deputy clerk and the plaintiff’s attorney; the judge had been censured and suspended earlier in the year for unrelated misconduct).

Throwback Thursday

20 years ago this month:

  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to implement agreed sentences without giving the prosecution an opportunity to be heard and failing to be patient, dignified, and courteous toward all participants in court proceedings.  Press Release (Campbell) (Minnesota Board on Judicial Standards March 26, 2001).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for firing a handgun several times towards the rear area of his law office near a public intersection to scare a wild turkey off the road that he believed was endangering motorists.  In the Matter of Ciganek, Determination (New York State Commission on Judicial Conduct March 29, 2001).
  • The New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for engaging in improper ex parte communications in a small claims action and failing to afford a plaintiff full opportunity to be heard.  In the Matter of Gori, Determination (New York State Commission on Judicial Conduct March 29, 2001).

Recent cases

  • The California Commission on Judicial Performance publicly admonished a former judge for (1) treating parents and others in a harsh and discourteous manner in 10 dependency hearings; and (2) on consecutive days, yelling at court staff and displaying frustration about an internet outage and discourteously raising her voice to another judge.  Public Admonishment of Roberts (California Commission on Judicial Performance February 18, 2021).
  • With the judge’s approval, the Kansas Commission on Judicial Conduct ordered a judge to cease and desist from failing to perform judicial duties competently and diligently and from delaying his decisions.  Inquiry Concerning Tate, Order (Kansas Commission on Judicial Conduct January 20, 2021).
  • Affirming the findings of fact and conclusions of law of a panel of the Commission on Judicial Conduct following a hearing, the Kansas Supreme Court suspended a judge without pay for 1 year for (1) frequently using the word “f**k” and its derivatives when speaking at the courthouse; (2) using derogatory terms when referring to women; and (3) using the phrase “Kansas boy” to describe a young black male defendant; the Court stayed the suspension for 60 days for the judge to submit a plan for counseling and training.  In the Matter of Cullins (Kansas Supreme Court February 26, 2021).
  • Based on an agreement and stipulated facts, the Kansas Commission on Judicial Conduct ordered that a former judge cease and desist from inappropriately using the prestige of judicial office and acting in a manner that does not promote confidence in the integrity of the judiciary and to continue his retirement and not hold a judicial office in the future; the judge had asked the county sheriff’s office not to service a summons/petition in a divorce case and had a profane and threatening conversation with an undersheriff about the incident.  Inquiry Concerning Smith, Order (Kansas Commission on Judicial Conduct February 25, 2021).
  • Adopting in part the recommendation of the Judiciary Commission based on a statement of stipulated facts and conclusions of law, the Louisiana Supreme Court suspended a judge for 2 years without pay for grabbing the buttocks of a waitress at his bachelor party while intoxicated and failing to cooperate with police, for which he had been convicted of several misdemeanors; the Court deferred all but 6 months of the suspension and the 6 months was made retroactive to the date of his suspension as an attorney; the deferral was subject to the judge successfully completing a 5-year Judges and Lawyers Assistance Programs monitoring agreement.  In re Hardee, Opinion (Louisiana Supreme Court January 27, 2021).
  • Based on the judge’s consent, the Nevada Commission on Judicial Discipline publicly admonished a judge for acting in a manner unbecoming a judicial officer towards court staff and the chief judge on numerous occasions.  In the Matter of Earley, Stipulation and order (Nevada Commission on Judicial Discipline January 21, 2021).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court suspended a judge for 10 months without pay for, during and after a criminal trial, failing to follow fundamental principles of criminal procedure; “fashion[ing] a remedy outside of accepted statutory and ethical norms” without entering guilty findings; using an expletive when the court administrator advised her that there was no authority for her disposition; engaging in “combative” ex parte communications when the defendants did not meet their restitution obligations; and suggesting that the victim file a civil suit against the defendants; the suspension was made retroactive to the date of the judge’s temporary suspension, and her resumption of duties was conditioned on her compliance with a plan regarding professional development.  In the Matter of Rasul, Order (New Jersey Supreme Court February 16, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a non-lawyer judge who had pled guilty to criminal mischief for keying a town official’s vehicle in a parking lot, “apparently in reaction to the town’s denial of his request to provide health insurance.”  In the Matter of Burker, Decision and order (New York State Commission on Judicial Conduct January 28, 2021).
  • Accepting a stipulation based on the judge’s affirmation that she vacated her office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a judge who had been charged in a formal written complaint with, inter alia, presiding “notwithstanding a disqualifying conflict with a party or witness but fail[ing] to disclose and/or recuse herself as required.”  In the Matter of Ward, Decision and order (New York State Commission on Judicial Conduct January 28, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded its investigation of allegations that a non-lawyer judge had, between December 2019 and March 2020, engaged in inappropriate conduct in his courthouse that was inconsistent with his ethical obligations to act in a manner that promotes public confidence in the integrity of the judiciary and to conduct his extra-judicial activities so as not to detract from the dignity of his judicial office and had failed to respond to the Commission inquiry.  In the Matter of Cunningham, Decision and order (New York State Commission on Judicial Conduct January 28, 2021).
  • Based on her agreement to resign and not seek an appointed or elected judicial office in the future, the Tennessee Judicial Conduct Board agreed not to pursue formal charges against a judicial commissioner for discourteously and intemperately injecting herself into a criminal case involving a family member.  In re Tomlinson (Tennessee Judicial Conduct Board February 1, 2021).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for, in a post-judgement collection matter, improperly issuing a show cause order for a defendant based on the plaintiff’s oral motion for contempt and failing to ensure that the defendant had notice and an opportunity to respond to the motion; the Commission also ordered the judge to obtain 4 hours of education with a mentor.  Public Reprimand of Jones and Order of Additional Education (Texas State Commission on Judicial Conduct January 28, 2021), appealed to special court of review.
  • Following a hearing, the Washington State Commission on Judicial Conduct publicly admonished a judge for appearing in bus advertisements for a college that identified him as a judge.  In re Keenan, Decision and order (Washington State Commission on Judicial Conduct February 5, 2021).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for comments she made on her Facebook page about a pharmacist arrested for destroying COVID-19 vaccine dosages and about the siege at the U.S. Capitol.  In the Matter of Jackson, Public admonishment (West Virginia Judicial Investigation Commission February 24, 2021).

Throwback Thursday

25 years ago this month:

  • Based on a stipulated disposition and agreed statement of facts, the California Commission on Judicial Performance severely censured a judge for a wide variety of misconduct, including remanding people to custody without following proper contempt procedures for whispering or appearing to fall asleep in court; being rude and insulting to a deputy public defender on 5 occasions; putting inordinate pressure on prosecutors to offer dispositions and on defendants to enter guilty pleas; and frequently and arbitrarily dismissing misdemeanor cases if the prosecution was unable to proceed on the day set for trial without the 10-day grace period allowed by the penal code.  Inquiry Concerning Ormsby, Decision and Order of Public Censure (California Commission on Judicial Performance March 20, 1996).
  • Reviewing a special masters’ report and the record de novo, the Indiana Supreme Court removed a judge from office for participating in harassment directed toward a court employee and her family; the Court also suspended the judge from the practice of law for no less than 2 years.  In the Matter of McClain, 662 N.E.2d 935 (Indiana 1996).
  • The Michigan Supreme Court suspended a judge for 3 days without pay for intemperate and abusive conduct toward an attorney.  In the Matter of Hocking, 546 N.W.2d 234 (Michigan 1996).
  • Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for failing over 6 years to advise defendants in traffic cases of a trial date upon receipt of not guilty pleas as required by statute and meeting ex parte with prosecutors to discuss plea reductions negotiated with defendants by the prosecution.  In the Matter of Bregman, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • Pursuant to an agreed statement of facts and recommendation between the Commission administrator and a judge, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for signing as complaining witness and filing with the other judge of his court 30 informations against individuals that the judge had apprehended on the property of a private club where he was superintendent and using judicial stationery in several letters to his fellow judge and to the district attorney in connection with the cases.  In the Matter of Hoag, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • The New York State Commission on Judicial Conduct removed a judge for failing to remit court funds to the state comptroller by the tenth day of the month following collection as required by statute, failing to respond to 3 letters from staff counsel, and failing without explanation to appear to give testimony.  In the Matter of Driscoll, Determination (New York State Commission on Judicial Conduct March 20, 1996).
  • Pursuant to an agreed statement of fact and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for stepping off a roadway into some bushes in a park and raising his shorts, exposing himself; informing the arresting police officers that he was a judge even though they had not asked about his occupation; and, stating to a lieutenant at the police station that his arrest would be devastating because of his judicial position.  In the Matter of D’Amico, Determination (New York State Commission on Judicial Conduct March 21, 1996).
  • The New York State Commission on Judicial Conduct publicly admonished a part-time judge for making an improper, ex parte telephone call to the victim in an assault case and conducting night and weekend arraignments in the police station even though a courtroom was available.  In the Matter of Cerbone, Determination (New York State Commission on Judicial Conduct March 21, 1996).
  • Agreeing with the findings of fact, conclusions of law, and recommended sanction of the Board of Commissioners on Judicial Standards, the South Carolina Supreme Court publicly reprimanded a former judge for having sexual intercourse with a litigant in a case before the judge.  In the Matter of Gravely, 467 S.E.2d 924 (South Carolina 1996).

A sampling of recent judicial ethics advisory opinions

  • The Americans with Disabilities Act does not require a judge to allow nonlawyers to represent litigants with disabilities in court.  A judge may permit accommodations for litigants with disabilities that do not conflict with rules prohibiting the unauthorized practice of law, for example, allowing an individual to sit with a self-represented litigant, but may deny a request for an accommodation that would circumvent procedures essential to the nature of the court’s services, programs, or activities.  A court may encourage a litigant with a disability to seek assistance, but may not exclude them from court services, programs, or activities if they choose not to seek assistance. Arizona Opinion 2020-1. 
  • A judge is not required to recuse from a case after an unsolicited ex parte communication from a litigant if the judge halts the communication as soon as possible, promptly advises all parties, and can disregard it.  Illinois Opinion 2020-1.
  • When a party or attorney has advised the court that their preferred gender pronoun is “they,” a judge may not require them to use “he” or “she.”  New York Opinion 2021-9.
  • An appellate justice may not accept the services of a law firm employee who is an incoming associate to work in the justice’s chambers for 6 to 12 months.  California Expedited Opinion 2021-38.
  • On learning that a law firm has posted screen shots or videos of the court’s oral arguments on its website, a justice should request that the images be removed.  New York Opinion 2020-158.
  • • To celebrate birthdays and holidays, judges may exchange modest gifts with their courtroom staff but should treat all staff members equally and maintain proper decorum and should not give any gifts that might pressure staff to reciprocate, be offensive, demeaning, or otherwise inappropriate, or be perceived as harassment. California Expedited Opinion 2021-39.
  • After receiving any required administrative approvals, judges may collaborate with the Historical Society of the New York Courts on a project to provide historical context for existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups.  New York Opinion 2020-202.
  • A judge is required to report to the State Commission on Judicial Conduct a town justice who filed a letter in support of the town clerk’s pistol permit application.  New York Opinion 2020-181.
  • A judge may not write a letter to the attorney grievance commission attesting to a former employee’s character.  Maryland Opinion Request 2020-22
  • A judge may not allow a transition program for formerly incarcerated individuals to list the judge’s name with other supporters in a grant application.  New York Opinion 2020-144.
  • Subject to general limitations on speech and conduct, a judge may write an article for a legal publication outlining what the judge considers are significant flaws in the risk assessment instrument judges are required to use under New York’s Sex Offender Registration Act.  New York Opinion 2020-136.
  • A town justice may not serve on the town’s police reform collaborative.  New York Opinion 2020-183
  • A judge may not accept an award for domestic violence awareness month from a not-for-profit entity that provides legal advocacy services and other resources and support for domestic violence victims.  New York Opinion 2020-184
  • A judge may donate to a fund established to install a public monument honoring a federal judge and may also solicit contributions from co-equal judicial colleagues.  The judges’ names and titles may be listed with other contributors on a plaque erected with the statue.  New York Opinion 2020-132.
  • A judge who underwent surgery at a not-for-profit hospital may not share their story on a patient education live webinar on the hospital’s website and social media channels.  New York Opinion 2020-108.
  • A municipal judge may not serve on the board of directors of a non-profit corporation that contracts with the city to provide re-entry services to the court as an alternative to incarceration.  Ohio Opinion 2021-1.
  • A judge may serve on a bar association’s internal nominating committee that recommends individuals seeking board and officer seats.  New York Opinion 2020-168.
  • A town justice may not speak at a town board meeting about a proposed resolution opposing extension of the big game hunting season.  New York Opinion 2020-193.
  • A judge may obtain and license a patent.  New York Opinion 2020-102.
  • A judge may volunteer as a participant in a COVID-19 study conducted by a hospital and may accept the same modest per-visit compensation as other participants.  New York Opinion 2021-11,
  • A judge may not form a for-profit company that will provide instruction on diversity, equity, and inclusion topics.  New York Opinion 2020-155.
  • A judge who is leaving office may not authorize a prospective employer to advertise their anticipated post-judicial employment at the firm.  Florida Opinion 2020-26.
  • As often as the judge determines necessary based on the circumstances, a judge must ask her spouse for information on his business arrangements with local attorneys and determine if disqualification or disclosure is necessary.  New York Opinion 2020-126.
  • A judge need not object to his spouse hosting a political fund-raiser for a candidate at their marital home, but the invitations must not refer to the judge, and the judge must not appear or participate in the event.  New York Opinion 2020-157/2020-160.
  • A judicial candidate may pledge to comply with the rules about appointments and fees in fiduciary cases and to make decisions and appointments without regard to political affiliation, cronyism, or nepotism.  A judicial candidate may not pledge to strive to appoint women attorneys and attorneys of color to fiduciary positions but may promise to reach out to various associations to increase participation in the lists.  New York Opinion 2020-114.

Winter issue of the Judicial Conduct Reporter

The winter issue of the Judicial Conduct Reporter has been published and is available on-line.  The issue reviews judicial ethics and discipline in 2020 with stories on:

  • State judicial discipline in 2020
  • Removal cases in 2020
  • Top judicial ethics and discipline stories of 2020
    • What judges said to women that got them in trouble
    • Judicial participation in demonstrations, protests, marches, and rallies
    • Judicial ethics and discipline during a pandemic
  • What judges said that got them in trouble in 2020
    • What they said to or about litigants that got them in trouble
    • What they said to or about criminal defendants that got them in trouble
    • What they said to or about attorneys that got them in trouble
    • What they said to court staff that got them in trouble
    • What they said in election campaigns that got them in trouble
    • What they said to law enforcement that got them in trouble
    • What they said off-the-bench that got them in trouble
    • What they said on social media that got them in trouble

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

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for, in open court, telling an attorney, in part:  “I remember you . . . I recuse myself from your cases . . . you are the gentleman who yelled at the lady who is now my wife;” stating that the attorney was disrespectful to other women based on rumors he had heard in the community; stating that he was concerned the attorney was a “misogynist;” and brusquely ordering the attorney from his courtroom.  Castillo, Order (Arizona Commission on Judicial Conduct February 5, 2016).
  • Based on a stipulation for discipline by consent, the California Commission on Judicial Performance publicly censured a judge for (1)(a) failing to make pension payments to his ex-wife for nearly 2 years and deliberately failing to inform her that he was retired and receiving his military pension; (b) making false statements that impugned the integrity of his ex-wife’s former attorney; (c) directing which judge on his court would handle the stipulation and order settling the pension issue with his ex-wife; (2)(a) sending a disparaging, undignified, and discourteous e-mail response to the assistant presiding judge’s inquiry about his availability to help cover the court’s calendar; (b) responding intemperately to the rotation of a particular court reporter to his courtroom; and (3) failing to disqualify himself when a close personal friend appeared as an attorney in cases and failing to disclose the relationship.  Inquiry Concerning Trice (California Commission on Judicial Performance February 4, 2016).
  • The California Commission on Judicial Performance publicly admonished a judge for a pattern of failing to disclose the campaign contributions of attorneys who appeared before him after the election.  In the Matter Concerning Walsh, Decision and order (California Commission on Judicial Performance February 10, 2016).
  • The California Commission on Judicial Performance publicly admonished a judge for deliberately engaging a deputy district attorney in an ex parte communication about a case that was pending sentencing before him.  In the Matter of Scott, Decision and order (California Commission on Judicial Performance February 17, 2016).
  • Based on the judge’s stipulation and consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for an ex parte telephone conversation with the deputy district attorney assigned to a criminal case regarding the contested issue of the release of the defendant from jail on his own recognizance and the judge’s disqualification; releasing the defendant on his own recognizance before receiving the deputy district attorney’s motion contesting the release and then disqualifying himself without sufficient reason; and failing to disqualify himself before ruling on the defendant’s release.  In the Matter of Fletcher, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline February 12, 2016).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly reprimanded a part-time judge for representing a woman in a divorce proceeding after taking action on mutual harassment complaints filed by her and her husband and while those actions were pending in his court and failing to immediately disqualify himself from harassment complaints after undertaking the representation.  In the Matter of Bowkley, Order (New Jersey Supreme Court February 3, 2016).
  • Granting a petition to accept a stipulation agreement and consent to discipline, the New Mexico Supreme Court publicly censured a judge for permitting and engaging in an impermissible ex parte phone conversation with the plaintiff’s attorney that involved substantive matters in a civil case.  In the Matter of Singleton, Order and public censure (New Mexico Supreme Court February 11, 2016).
  • Adopting findings of fact and misconduct, which the parties had stipulated, the Ohio Supreme Court permanently disbarred a former judge who was convicted in federal court of honest-services mail fraud and conspiracy to commit mail fraud related to his judicial duties.  Disciplinary Counsel v. Terry, 63 N.E.3d 88 (Ohio 2016).
  • Without an opinion, the Pennsylvania Supreme Court affirmed the order of the Court of Judicial Discipline removing a judge from office for not filing state and federal tax returns for 5 years, failing to remit approximately $130 in sales tax owed by a shoe store she owned, opening the shoe store without a license, and pleading guilty to 3 misdemeanors (for dismissing several of her own tickets) and 1 summary offense (the business license violation).  In re Ballentine, 132 A.3d 454 (Pennsylvania 2016), affirming In re Ballentine, Opinion and order (Pennsylvania Court of Judicial Discipline August 4, 2015).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) failing to take immediate steps to disqualify himself and/or transfer his own divorce case out of his court and filing motions in his own court in connection with the pending divorce action and (2) failing to timely rule on or refer the recusal motions filed by the attorney representing his wife in other matters, attempting to intervene in proceedings relating to his own recusal, and displaying a personal animus against the attorney representing his wife; the Commission also ordered the judge to complete 6 additional hours of instruction.  Public Reprimand of Herrera and Order of Additional Education (Texas State Commission on Judicial Conduct February 24, 2016).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for entering judgments finding defendants guilty of illegal parking violations that were not supported by a proper complaint or probable cause and imposing fines for these offenses in excess of amounts allowed by law; the Commission also ordered the judge to obtain 10 hours of instruction with a mentor.  Public Warning of Jones and Order of Additional Education (Texas State Commission on Judicial Conduct February 29, 2016).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a former justice of the peace for dismissing criminal cases without a motion from the prosecutor; frequent and extended absences from the court; delays and confusion caused by his handling of a case; and using court funds for his personal financial benefit.  Public Reprimand of Stringer (Texas State Commission on Judicial Conduct February 29, 2016).

More Facebook fails

Independent investigation

The Arizona Commission on Judicial Conduct publicly reprimanded a judge for discussing in a minute order a social medial post criticizing him, in addition to other misconduct.  Staggs, Order (Arizona Commission on Judicial Conduct November 17, 2020).

B.W. was a defendant in a criminal case.  B.W.’s spouse criticized the judge in a post on social media, and the judge’s wife brought it to his attention.  In a minute order in B.W.’s case, the judge discussed the post, described its alleged inaccuracies, and requested that it be corrected.  The Commission found that the judge’s review of the post was an improper independent investigation and that “his choice to respond to social media criticism in an official public record did not inspire confidence in the judiciary.”

Public support

Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for publicly supporting the teachers at her daughter’s school in litigation with the board of education by making repeated public comments about issues and individuals in person, by email, and on social media platforms in which she was publicly identified as a judge; providing legal information and advice to parents at the school; signing advocacy letters; speaking with members of the board of education; joining teachers’ union counsel outside the courtroom prior to a case conference; and executing an affidavit that was filed in the litigation.  In the Matter of Panepinto, Determination (New York State Commission on Judicial Conduct December 9, 2020).

The judge sits on the Eric County Supreme Court.  In March 9, 2017, confirming an arbitration award, a different judge on the same court directed the Buffalo City School District to immediately stop assigning supervisory, non-instructional duties to teachers at Buffalo City Honors School.  The judge’s daughter attended Buffalo City Honors School during the 2017-2018 school year.

In a contempt motion filed in September 2017, the Buffalo Teachers Federation alleged that the Board of Education was not complying with the order and judgment.  In a separate petition filed in February 2018, the teachers’ federation sought an injunction to prevent the transfer of 5.5 teachers from the school and to prevent 16 teachers’ aides from being hired to perform non-instructional duties.

In January 2018, the judge joined a Facebook group comprised of City Honors School parents who publicly supported the teachers’ opposition to the transfer of teachers.  The judge also communicated with parents in support of the teachers using email and Twitter.  The judge posted on Facebook:  “We can go to Court appearance.  I will find out when it is.”  Using email and social media platforms, the judge provided legal information and advice to parents who were sending letters to the board of education and the teachers’ federation.  On Facebook, the judge posted:  “FYI if letter hast [sic] gone yet – include phrase ‘irreparable harm’ and/or send separate [sic] letters as that is legal standard to stop teachers transfers at least in short term.”  By email, the judge stated:  “Has the letter been sent yet?  It needs to state there will be irreparable harm to justify Court ordering stay of lay offs set for February 27.  If already sent we can do second one and/or individual ones describing irreparable harm.”  On Twitter, the judge posted:  “Write short letters stating the ‘irreparable harm’ cutting teachers at CHS will cause to your children.  Students should write as well.  Post on Twitter & send to BPS & BTF!”

The judge publicly criticized City Honors School principal William Kresse on Facebook, posting:  “Let’s not kid ourselves our beloved IB school hired these aids [sic] To punish teachers who won at arbitration & in Court.  If Dr. Kresse didn’t hire these aids [sic], not a single teacher would be transferred.  100% Kresse decision.  Ask him Why?”  Also on Facebook, the judge characterized the proposed transfer of teachers as “pure retaliation” and stated, “We don’t need aides … napping in hallway.”

On or about February 1, in response to a Buffalo News editorial, the judge posted a Facebook comment that identified her as “Catherine Nugent Panepinto – Works at Elected New York Supreme Court Judge Nov, 2010.”  The judge stated that she did not know that Facebook settings would automatically identify her by her judicial title but conceded that she should have familiarized herself with Facebook protocols prior to posting the comments.

The judge posted on Facebook:  “FYI I met with Paulette Woods today.  She is the Central representative on School Board whose district includes City Honors …  I also had a similar positive conversation with [BBOE representatives] Hope Jay & Sharon Cottman & plan to talk w [BBOE representative] Jennifer M[ecozzi] tomorrow.  I think we’re making great progress & looking forward to meeting tomorrow.”

The Commission concluded that the judge violated the rules when she commented about cases in which she was not a litigant.  The Commission explained:

Rather than being circumspect and focusing narrowly on her direct personal interest in her daughter’s education, respondent generally advocated for and supported the CHS teachers.  She attended meetings and spoke critically of the school’s plan to transfer teachers.  In addition, respondent was publicly critical of the CHS principal and described the transfer of teachers as “pure retaliation” which detracted from the dignity of her judicial office.  Furthermore, respondent admittedly violated the Rule which prohibits a full-time judge from practicing law. . . .  In that regard, respondent improperly and repeatedly advised other CHS parents as to the specific language to include in letters in order to meet the legal standard for injunctive relief.

The stipulation stated that the judge invoked the prestige of her office “when her Facebook comment in response to an editorial regarding CHS identified her as a Supreme Court judge.” 

The Commission concluded that the judge’s conduct over these 3 months “was improper and went beyond appropriate action specifically concerning her personal interest in her daughter’s education.”  In mitigation, the Commission considered that the judge admitted that her conduct warrants public discipline and that her sole motivation was to protect the interests of her daughter.

* * *

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

Throwback Thursday

10 years ago this month:

  • Accepting a conditional agreement for discipline, the Indiana Supreme Court suspended a judge for 30 days without pay for (1) exhibiting impatience and frustration with a defendant and her attorney and making sarcastic remarks during a bench trial on traffic charges; (2) a practice of imposing substantially higher penalties on infraction litigants who exercised their trial rights; (3) routinely failing to consider the specific circumstances when imposing penalties in traffic cases; and (4) routinely giving general advisements to defendants that understated the state’s burden of proof and frequently speculating to indecisive defendants about what the state’s evidence might be.  In the Matter of Young, 943 N.E.2d 1276 (Indiana 2011).
  • Granting a joint motion for approval of the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge for, to determine who was upset about his appointment of the youth public defender and who had released the information to the media, issuing subpoenas to county commissioners without complying with the law.  Commission on Judicial Performance v. Buffington, 55 So. 3d 167 (Mississippi 2011).
  • Based on findings by the Judicial Conduct Board, the Vermont Supreme Court publicly reprimanded a judge for failing to resign as assistant judge upon becoming a candidate for probate judge.  In re Hodgdon, 19 A.3d 598 (Vermont 2011).

“A one-second scream”

The Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months for summarily holding a woman who screamed in the hallway outside his courtroom in contempt and, when she protested, increasing her jail sentence.  Disciplinary Counsel v. Bachman (Ohio Supreme Court December 18, 2020).  The Court adopted the findings of the Board of Professional Conduct, which were based on stipulations and evidence presented at a hearing.

On September 4, 2018, at approximately 7:45 a.m., K.J. arrived at the court to file a petition for a civil protection order.  After she completed the paperwork, a clerk’s office employee told her that she had missed the 8:10 a.m. filing deadline to be heard that day and that she would have to return the following day.

K.J. went to the magistrate’s courtroom, apparently hoping to have her case heard that day.  The magistrate was conducting an asset-forfeiture trial.  After speaking with the magistrate’s clerks in the hallway, K.J. turned away.

As she walked toward the exit, K.J. screamed so loudly that she was heard in the courtroom.  The magistrate immediately said, “Okay, time-out,” and stopped the trial.

The Court described the video footage of what followed as “revealing and disturbing.”

It shows Bachman exiting the courtroom in his robe and running down the hallway in pursuit of K.J.  He accosts her at the elevators and returns her to his courtroom.  Once there, Bachman walks her through the crowded courtroom with his hand on her shoulder, places her in a seat in his jury box, and orders her not to move just before summoning the sheriff.  Multiple sheriff’s deputies soon arrive, and Bachman orders them to take K.J. into custody and to jail her for three days for contempt, causing her to cry and attempt to leave the jury box.

The Court stated that “the next 20 minutes of the video are difficult to watch.”

While K.J. resists being arrested and pleads with Bachman to explain why she is being jailed for three days, she is physically subdued by two deputies, threatened with being tased, and ultimately dragged from the jury box by several deputies.  Bachman’s only response is to increase her jail sentence to ten days. . . .  Bachman then congratulates a deputy on an award the deputy had recently received and resumes the proceeding as if nothing out of the ordinary has just transpired.  Meanwhile, the video footage shows, while K.J. continues protesting her arrest, she is dragged, yanked, pinned to a wall, and handcuffed to a chair.  Before the video ends, over 20 deputies and members of the court staff are involved in jailing K.J.—all because of a scream of frustration in the hallway that lasted one second.

2 days later, the administrative judge watched the video of the incident and ordered that K.J. be released from custody.  Approximately 4 days later, the magistrate was told that the “general sentiment” of the judges on the court was that he should be let go.  He resigned because, as he testified at his disciplinary hearing, he had been told that if he did, “this would be quiet and that would be it.”

Noting that a judicial officer has authority to summarily punish a person whose misbehavior in or near the courtroom “obstruct[s] the administration of justice,” the Court emphasized that K.J.’s scream outside the magistrate’s courtroom was only “a distraction at best or a momentary interruption to the proceedings at worst.  The only obstruction to the administration of justice that day occurred due to Bachman’s misconduct.”

Noting that it considers injury caused by professional misconduct when determining a sanction, the Court stated that “the chain of events set in motion by Bachman’s misconduct” physically and emotionally harmed K.J.  It noted that the magistrate’s conduct also “exposed the sheriff’s deputies and other court personnel to harm from a violent and unnecessary arrest on full display in front of a courtroom full of people who have no other choice but to sit silently and witness such a disturbing sight.”

The Court noted the Board’s finding that the magistrate defended his action as an appropriate exercise of the contempt power and “demonstrated a lack of insight as to the inappropriateness of his actions,” showing no “remorse for the effects of the incident on [K.J.],” and focusing on the impact “on his career and his resulting financial loss,” and.  The Court found:

Bachman’s sentencing K.J. to ten days in jail for a one-second scream in the hallway as she was leaving his courtroom area and for questioning why she was being jailed is outrageous.  The spectacle his conduct created was even more appalling and demonstrates his utter indifference to the harm he caused K.J. and the integrity of the judiciary. . . .

Sending someone to jail is not the adult equivalent to sending a child to his or her room for a time-out.  Yet Bachman and other judicial officers who have been sanctioned for similar conduct seem to equate the two.  Not only was Bachman’s jailing of K.J. unauthorized under the contempt statute, but he exhibited a total disregard for the reason she was at the courthouse in the first place — to get a civil protection order.  He also showed a complete indifference to the circumstances of her life (e.g., whether she had children or other family members to care for, employment she might lose, or any other harm she could suffer), to the indignity she endured by being physically restrained in a crowded courtroom, and ultimately, to the loss of her liberty.

The Board had recommended that the 6-month suspension be stayed with conditions.  The Court stated that an actual suspension was warranted “when a judicial officer’s misconduct causes harm in the form of incarceration” and “to send a strong message to members of the judiciary, to deter similar violations in the future, and to make crystal clear to the public that this type of judicial misconduct will not be tolerated.”