“A huge unknown called ‘Court'”

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 . . . .”

Throwback Thursday

5 years ago this month:

  • Based on the recommendation of the Commission on Judicial Conduct, the Arizona Supreme Court publicly censured a judge for taking the questions and the answer key for a written assessment from her mentor’s materials during new judge orientation; the Court also ordered the judge to take judicial ethics courses and to pay the costs and attorney’s fees for the formal hearing.  In the Matter of Aboud, Order (Arizona Supreme Court December 4, 2017).
  • The Illinois Courts Commission ordered the retirement of a judge it found mentally unable to perform her duties.  In re Turner, Order (Illinois Courts Commission December 1, 2017).
  • In lieu of formal disciplinary proceedings and based on the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for injudicious behavior involving his estranged wife that prompted law enforcement investigations.  Public Admonition of Day (Indiana Commission on Judicial Qualifications December 29, 2017).
  • The Kentucky Judicial Conduct Commission publicly reprimanded a former judge for entering a general order declaring that “under no circumstance” would the adoption of a child by a homosexual be in the child’s best interest.  In re the Matter of Nance, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission December 19, 2017).
  • Granting a petition to accept a stipulation and consent to discipline, the New Mexico Supreme Court suspended a judge for 3 weeks without pay and publicly censured him for ex parte communications in numerous cases, misusing the contempt power, failing to cooperate with supervisory personnel from the administrative office of the courts, allowing his judicial decisions and conduct to be influenced by public opinion, fear of criticism, and/or political interests, and other misconduct; his suspension was deferred on condition he complete a supervised probation and formal mentorship for the remainder of his term and complete 2 National Judicial College webcast courses.  In the Matter of Walton, Order (New Mexico Supreme Court December 18, 2017).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for undermining the right to counsel in 3 cases, conveying an appearance of bias, eliciting incriminatory responses from a defendant at arraignment, making discourteous and threatening comments, destroying court records without authorization, and holding extra-judicial positions (court clerk and fire police officer) that were incompatible with judicial office.  In the Matter of Kline, Determination (New York State Commission on Judicial Conduct December 26, 2017).
  • Agreeing with the findings and recommendation of a panel of the Board of Professional Conduct based on a stipulation, the Ohio Supreme Court publicly reprimanded a magistrate for asserting her status in an attempt to avoid arrest during a traffic stop.  Disciplinary Counsel v. Williams, 92 N.E.3d 859 (Ohio 2017).
  • The Ohio Supreme Court indefinitely suspended a former judge from the practice of law for his conviction, based on a guilty plea, to 1 count of attempted felonious assault and 1 count of domestic violence for conduct while he was a judge.  State Bar Association v. Mason, 94 N.E.3d 556 (Ohio 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for setting a $4 billion bond for a murder suspect and magistrating her own son; the Commission also ordered that the judge receive 2 hours of instruction on magistration with a mentor.  Public Reprimand of Brown and Order of Additional Education (Texas State Commission on Judicial Conduct December 19, 2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for stating during a hearing, “we don’t know whether he’s some white guy like me making a threat or somebody who’s, you know, more likely to be a gangster.”  In re North, Stipulation, agreement, and order of admonishment (Washington State Commission on Judicial Conduct December 8, 2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for driving under the influence.  In re Dingledy, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct December 8, 2017).

Recent cases

  • 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

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for inadvertently discussing the substance of a case in a casual, ex parte conversation with a court bailiff.  Bassett, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for making statements about the need for law enforcement to issue more citations in a presentation to the county board of supervisors about productivity credits for the courts.  Basteen, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for sending an email and initiating a telephone conversation with a psychologist to attempt to influence a family member’s custody dispute in another state.  Gottsfield, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for making statements impugning the integrity and professional conduct of an attorney appearing before him and making improper sarcastic remarks.  McClennen, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for providing incorrect information about her educational qualifications for her on-line judicial biography, inflating her qualifications on her resume, and falsely claiming to have completed or been excused from judicial training.  DeForest, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for issuing delayed rulings and then back-dating the orders so that the rulings would not appear delayed.  Peterson, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for filing a lawsuit on behalf of herself and her husband, clearly designating herself as counsel of record for both parties.  Segal, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a hearing officer for screaming repeatedly at individuals in the courtroom during 2 hearings; the Commission also directed her to attend the judicial demeanor portion of new judge orientation.  Martinez, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The California Commission on Judicial Performance publicly admonished a judge for remarks he made while sentencing a defendant convicted of rape and other sexual assault that reflected outdated, biased, and insensitive views about sexual assault victims.  In the Matter Concerning Johnson, Decision and Order (California Commission on Judicial Performance December 13, 2012).
  • Approving an agreement for discipline by consent, based on stipulations, the Maryland Court of Appeals suspended a judge for 5 days without pay for, without complying with the law and court rules, holding 28 individuals in direct contempt and imposing sanctions for allegedly having their cell phones turned on in the courtroom or slamming the courtroom door or other rude behavior while leaving the courtroom.  In the Matter of Stone, 56 A.3d 1244 (Maryland 2012).
  • 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 in 3 private legal matters an officer of the municipality where he sat.  In the Matter of Obuch, 56 A.3d 863 (New Jersey 2012).
  • The New York State Commission on Judicial Conduct publicly censured a judge for failing to report the counsel for the public administrator to law enforcement and disciplinary authorities and continuing to award him legal fees despite knowing that he had taken advance legal fees without court approval and/or fees in excess of the guidelines.  In the Matter of Holzman, Determination (New York State Commission on Judicial Conduct December 13, 2012).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) making an ex parte hospital visit to a juvenile in a delinquency proceeding, (2) being discourteous to a probation supervisor, (3) being discourteous to a lawyer, and (4) issuing a decision in a custody and visitation matter after foreclosing cross-examination by the parties and denying the attorneys an opportunity to be heard.  In the Matter of Buchanan, Determination (New York State Commission on Judicial Conduct December 11, 2012).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for physically assaulting his girlfriend.  In the Matter of Horton, Determination (New York State Commission on Judicial Conduct December 10, 2012).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for making remarks that presumed a young defendant’s guilt, characterizing the defendant’s alleged conduct as “thuggery,” taunting him, questioning him about drugs he allegedly threw away, responding in kind to the defendant’s use of profane language, continuing the exchange of taunts and insults even after he had agreed to recuse himself, and convicting the defendant without a plea or trial.  In the Matter of McLeod, Determination (New York State Commission on Judicial Conduct December 11, 2012).
  • The Washington State Commission on Judicial Conduct publicly reprimanded a judge for losing his temper during a sentencing hearing, over-reacting to a juvenile’s showing of disrespect in a second case, engaging in a demeaning and personal tirade against a juvenile in a third case, and making gratuitous comments about paternity tests, the Soviet Union, and the TV show CSI at a hearing on a motion for an order of protection in fourth case.  In re Wulle, Decision and Order (Washington State Commission on Judicial Conduct December 14, 2012).

“Difficult position”

The Kentucky Supreme Court affirmed the decision of the Judicial Conduct Commission removing a judge from office for (1) inserting herself into her son’s criminal cases and attempting to influence the outcome of the cases in text messages, meetings, and calls with the county attorney and the judge presiding in the cases; (2) deleting material from her son’s social media accounts after he had been arrested and taken into custody; (3) using her position to arrange semi-private meetings with her son in the jailer’s office, bringing him drinks and food contrary to jail policy, and visiting him outside of normal visiting hours; (4) threatening to fine case workers and supervisors for late reports; (5) removing or threatening to remove attorneys from her guardian ad litem list for arbitrary reasons; (6) having her staff conduct drug tests; (7) failing to be candid with the Commission; and (8) retaining, paying, and directing her son’s attorney, who actively practiced law in her courtroom and regularly received guardian ad litem appointments from her; presiding over cases in which her staff attorney’s brother represented a party; and appointing an attorney with her husband’s law firm as a guardian ad litem.  Gordon v. Judicial Conduct Commission (Kentucky Supreme Court October 20, 2022).).  The Court concluded that removal was warranted by “the pattern and extent” of the judge’s misconduct.

From June 2017 through July 2021, the judge’s adult son Dalton was charged with crimes in several cases in which the judge was the complaining witness or victim, thus placing her, the Court stated, “in the difficult position of concurrently being a parent, victim, and judge in the same county . . . .”

During the hearing, the Commission had listened to recordings of calls between the judge and Dalton while he was incarcerated and found that the calls were “damning,” establishing and confirming much of her misconduct.  “Most shocking,” the Commission stated, was the judge’s “testimony (and argument) that she did not think anyone would ever hear or listen to the calls, the implication being she would not have said the things she said, if she had known anyone would hear them.”

The Court concluded that “the influence Judge Gordon exerted in her son’s case is undeniable,” noting that although the Commission “heard only a few of the hundreds of calls” recorded between the judge and her son while he was in jail “enough were played to prove the allegations.”

For example, in one call, the judge told her son that she had worked out a plan and warned him to leave it up to her.  She said that she had sent a text message to the presiding judge and talked to the county attorney about getting him into a treatment program.  In another call, the judge told Dalton that the county attorney was trying to take one of his cases out of her hands and that she would schedule an in-person meeting with his attorney, Clay Wilkey.

During another phone call, the judge told Dalton that she had sent the county attorney and Wilkey a proposal for resolving Dalton’s criminal charges but found out that the county attorney had already sent Wilkey a plea offer.  On the same call, the judge stated that she had told the county attorney she wanted to make the decisions for her family and her house.

The judge’s ex parte text messages with the county attorney about Dalton’s cases were admitted as evidence during the Commission hearing.  For example, over the course of 12 hours on one day, the judge and the county attorney exchanged 80 text messages, most involving the judge “pushing for information and requesting certain outcomes.”  For example, the judge messaged the county attorney requesting that Dalton receive deferred prosecution and enter an agreement to get treatment, to which the county attorney responded, “Yes I think I can make that happen.”  The judge asked the county attorney to “please please please get things worked out today for Dalton to serve some time as a consequence.”  She also told the county attorney that “[w]e have to get this done quickly….  He’s going to blow it and risk losing his ability to go back to FOS if we don’t get something done.”  (“FOS” stands for Friends of Sinners, a residential substance abuse program.)

In a hearing in one of Dalton’s cases, the judge who was presiding told Dalton that he had spoken with Judge Gordon for at least 45 minutes and got a “heads up” about Dalton, his history, and struggles.

Emphasizing that “the operative facts are that she directly inserted herself into Dalton’s cases and attempted to influence the outcome,” the Court stated that “the outcome or actions Judge Gordon requested are immaterial” and it was “of no consequence” that she was requesting Dalton that be detained or required to attend treatment, rather than “requesting that he receive preferential treatment or be pardoned for his actions.”  The Court acknowledged that the judge had often been confronted with difficult, unplanned, and unpredictable situations that directly impacted her, her son, and her family.  However, it emphasized, “judges, are responsible for exercising sound judgment even when confronted with difficult issues, especially issues that involve loved ones. . . .  Ultimately, Judge Gordon made many decisions over a span of several years, some precipitous and some seemingly more carefully considered, that resulted in numerous and separate violations of the Code of Judicial Conduct.”

Throwback Thursday

20 years ago this month:

  • Pursuant to a stipulation for discipline by consent, the California Commission on Judicial Performance publicly censured a retired judge for presiding over matters involving friends and giving them favorable treatment and trying to influence other judicial officers and police in their handling of matters concerning his friends; the Commission also barred the judge from receiving an assignment, appointment, or reference of work from any California state court.  Inquiry Concerning Simpson, Decision and Order (California Commission on Judicial Performance December 9, 2002).
  • Pursuant to a stipulation for discipline by consent, the California Commission on Judicial Performance publicly censured a retired judge for (1) a pattern of inappropriate sexual conduct toward a female deputy county counsel, including writing “relax” on her hand, fastening a button on her suit in the courtroom, and kissing her in his chambers; (2) attempting to intimidate potential witnesses during the investigation of allegations regarding his sexual conduct; (3) having his bailiff handcuff a court interpreter as a joke when she was late; and (4) improperly attempting to use his office to intercede in a pending matter on behalf of an acquaintance.  Inquiry Concerning Block, Decision and Order (California Commission on Judicial Performance December 9, 2002).  The Commission also barred the judge from receiving an assignment, appointment, or reference of work from any California state court.
  • Pursuant to an agreement, the Indiana Commission on Judicial Qualifications publicly admonished a judge for taking action in his son’s criminal case by, after his son advised him that his son needed additional time to prepare for a hearing, obtaining the court file from the clerk’s office and making an entry indicating that the case was being continued at the judge’s request.  Public Admonition of Scheinberger (Indiana Commission on Judicial Qualifications December 17, 2002).
  • The New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) angrily disputing traffic tickets issued to his son with the officer who issued the tickets and the officer’s superior; (2) intervening in his son’s arrest by confronting the arresting officer; and (3) returning a small claims form when it was initially filed, adjourning the hearing without notifying the plaintiffs, and recusing himself without reassigning the case.  In the Matter of Canary, Determination (New York State Commission on Judicial Conduct December 26, 2002).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) acting as an advocate for her grandson when police officers were executing a search warrant, questioning the officer who was in charge of the search, conveying her grandson’s denial of wrongdoing to the officer, objecting to the participation of an officer with whom she had a poor relationship, and asking why she had not been given advance notice of the search; and (2) giving a misleading reason to the police commission board for having dismissed a criminal charge against a defendant.  In the Matter of Leonard, Determination (New York State Commission on Judicial Conduct December 26, 2002).
  • Based on a referee’s findings of fact and conclusions and a joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) performing legal services for a former client, using court facilities and personnel to perform those services, and failing to report the fee he received on his income tax return and to the court clerk; (2) representing his sister-in-law, his friend, and his cousin in real estate transactions, using court personnel and court facilities in some instances; (3) writing ex parte letters to the police chief to obtain information about pending matters; and (4) presiding over 2 cases after engaging in ex parte communications with relatives of the defendant in which he obtained personal information.  In the Matter of Ramich, Determination (New York State Commission on Judicial Conduct December 27, 2002).
  • Based on a referee’s findings of fact and conclusions and a joint recommendation, the New York State Commission on Judicial Conduct publicly censured a part-time judge for (1) presiding over 2 cases in which a party or a member of the party’s immediate family was a client of the judge’s law firm; (2) in 6 proceedings, conveying an erroneous impression that he was presiding over a client’s matters; (3) in 3 cases, representing defendants notwithstanding that the charges originated in his court; (4) acting as an attorney in a proceeding in his own court; and (5) his clerk’s issuance of 4 notices to a defendant, over the judge’s signature, stating that a warrant would be issued for the defendant’s arrest if he did not appear in court to pay the judgment entered against him in a small claims case.  In the Matter of Miller, Determination (New York State Commission on Judicial Conduct December 30, 2002).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) contacting the police department at the request of a friend, identifying himself as a judge, and advising a dispatcher that the police should issue an appearance ticket to a defendant, rather than serve an arrest warrant; (2) in a confrontation with the highway superintendent, stating that he would impose the maximum sentence if the superintendent or a snowplow operator appeared in his court; and (3) issuing a warrant in a case charging housing code violations on property leased by his friend.  In the Matter of Kolbert, Determination (New York State Commission on Judicial Conduct December 26, 2002).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) presiding in numerous proceedings involving relatives and acquaintances, disposing of several cases following ex parte communications or contrary to law, and (2) sitting near her relatives in court during a felony hearing for her relative.  In the Matter of Thwaits, Determination (New York State Commission on Judicial Conduct December 30, 2002).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for, in 18 cases, re-sentencing to jail defendants who had not paid fines without holding a hearing or advising the defendants of their right to apply for such a hearing as required by statute.  In the Matter of Cox, Determination (New York State Commission on Judicial Conduct December 30, 2002).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for issuing an invalid arrest warrant for the non-existent offense of “false accusations” and using the police to place the individual charged in custody even after being informed that there was no such offense.  Public Reprimand of Ochoa (Texas State Commission on Judicial Conduct December 17, 2002).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for issuing an order directing a child’s principal and teacher not to allow the child’s mother to pick up or make contact with the child even though the judge did not have the authority to issue such an order.  Public Reprimand of Ochoa (Texas State Commission on Judicial Conduct December 17, 2002).
  • The Texas State Commission on Judicial Conduct publicly admonished a justice of the peace for displaying on his office door a poster that stated in bold letters “Re-Elect ‘98” and contained the caricatures and names of county elective office holders, at least one of whom was in a contested election.  Public Admonition of Ochoa (Texas State Commission on Judicial Conduct December 17, 2002).
  • Accepting the recommendation of the State Commission on Judicial Conduct based on a stipulation, the Washington Supreme Court suspended a judge for 60 days without pay and publicly censured her for delay in deciding cases and signing affidavits stating that no case assigned to her was awaiting decision after 90 days, affidavits that were a prerequisite to obtaining her salary.  In the Matter of Van Nuys, Order (Washington Supreme Court December 5, 2002).

“A pattern of objectionable behavior”

The Alabama Supreme Court affirmed the decision of the Court of the Judiciary removing a judge from office for (1) engaging in a pattern of racist demeanor; (2) engaging in a pattern of sexually inappropriate demeanor; (3) expressing anger inappropriately and using profanity in the probate office; and (4) requesting that 2 attorneys who regularly practiced before him help a woman secure an early release from her sentence and using probate-court letterhead and his judicial title to seek financial help for a friend.  Jinks v. Judicial Inquiry Commission (Alabama Supreme Court October 21, 2022).  The Court of the Judiciary had held a hearing on the complaint filed by the Judicial Inquiry Commission.

Darrius Pearson, one of 2 African Americans employed in the probate office during the judge’s tenure, testified that he had heard the judge make inappropriate racial comments.  Pearson also testified that the judge stated to him, referring to a new vehicle that Pearson had recently purchased:  “I seen that car.  I can’t even—I’m the judge and I can’t even afford a Mercedes.  What you doing, selling drugs?”  The judge made the comment in the main area of the probate office, and it was overheard by other probate office employees.  In his answer, the judge admitted making this statement to Pearson, but denied that it was racist or contained racial innuendo.

Employees testified that in discussing the murder of George Floyd ,the judge had said, “he [didn’t] see why everybody was so upset about him getting killed,” and he “didn’t understand what the big deal was.  It was just one person.”  The judge was overheard in a telephone conversation discussing a meme depicting Black Lives Matter protests with the caption:  “Y’all got to quit burning s*** down because … you son[s]-of-b**ches is …going to need something to burn down after Trump gets re-elected for a second term.”  In his answer, the judge admitted making the comment and stated that, although he made it during a private and personal conversation, it should not have “been overheard in the workplace.” 

Probate office employees testified that, on multiple occasions, the judge referred to African Americans as “they,” “them,” or “those people.”  One employee testified that, after she had assisted an African-American couple with a marriage license, the judge asked her:  “What did their black a**es want?”  The probate office’s deputy chief clerk testified that, on one occasion, the judge mouthed the N-word to her.  An attorney testified that, when he was in the judge’s chambers before a hearing, the judge asked him if he knew what P-O-N-T-I-A-C stood for, a reference to a racist meaning that includes the N-word.  The attorney immediately stopped the judge and said:  “Whoa, I don’t think we need to go there.”  After the Commission filed its complaint, the judge appeared on a morning talk show on a local television station to address the allegations and admitted the exchange with the attorney, but stated that “if I share a racial slur with you that I’ve learned, that’s not using a racial slur.”

According to Pearson, he and the judge were working in the basement of the courthouse one day when the judge received a video on his cell phone.  The judge then stated to Pearson:  “[D]on’t tell nobody but look at this.”  Pearson momentarily looked at the video, which depicted women dancing with their breasts exposed.  Pearson testified that he refused to watch the rest of the video but that the judge sat down and continued to watch.  During his appearance on the talk show, the judge admitted that showing Pearson the video was a lapse in judgment but stated that “it was two guys” together.

One day when the judge discovered that a brown paper bag with a sandwich and produce he had previously placed in the office refrigerator was not there, he “exploded in a tirade, slamming the refrigerator door and exclaiming loudly:  ‘We have a damn thief in this office.  I can’t have s*** in this office.’”  The judge angrily “stormed off” and went to the office of the chief clerk, and proclaimed that they were going to have a staff meeting because someone had stolen his sandwich.  A few days after the incident, in a lengthy email to probate-office staff at 1:03 a.m., the judge again expressed his anger and resentment about the sandwich being “stolen.”

The Court emphasized that the Court on the Judiciary had heard the testimony and observed the witnesses, and “viewing the evidence in a light most favorable to the [Judicial Investigation Commission] as we must,” it concluded that the decision was  supported by clear and convincing evidence.  The Court explained:

The record indicates that Judge Jinks made multiple racist and racially insensitive comments, engaged in inappropriate sexual conduct, engaged in inappropriate acts of anger and use of profanity, and, on several occasions, used the prestige of his office for the benefit of others.  Those acts were not isolated but occurred on a number of occasions while Judge Jinks was in the probate office acting in his capacity as the probate judge.  Those acts were numerous enough to establish a pattern of objectionable behavior on the part of Judge Jinks.

Throwback Thursday

25 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for 3 ex parte contacts with a defense attorney in a capital murder case, for example, asking if she had applied for investigator expenses and making suggestions related to defense strategies. Public Admonishment of Maciel (California Commission on Judicial Performance December 1, 1997).
  • The Indiana Commission on Judicial Qualifications publicly admonished a judge for releasing a defendant being held on drug trafficking charges on his own recognizance without giving the prosecution a chance to be heard and making an unsubstantiated entry in the record that the release was due to the state’s failure to proceed. Admonition of Evrard (Indiana Commission on Judicial Qualifications December 31, 1997).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) without fundamental constitutional and procedural safeguards, ordering the arrest of a woman who had failed to pay an installment of a statutory surcharge in a case involving a $1.50 cab fare and sentencing her to 89 days in jail; (2) making callous comments about domestic abuse crimes, such as, “every woman needs a good pounding every now and then;” (3) failing to disclose in a civil suit brought by a dentist for an unpaid bill that the plaintiff was his wife’s dentist; and (4) loudly and rudely criticizing a woman who complained to the court clerk about the amount of the fine the judge had imposed on her husband for dog-control violations. In the Matter of Roberts, 689 N.E.2d 911 (New York 1997).
  • Rejecting the determination of the State Commission on Judicial Conduct that removal was the appropriate sanction, the New York Court of Appeals publicly censured a judge for disposing of 2 criminal cases without affording the prosecution the right to be heard and giving evasive and disingenuous testimony before the Commission. In the Matter of Skinner, 690 N.E.2d 484 (New York 1997).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for making intemperate remarks and engaging in an intemperate diatribe that included name-calling and dehumanizing remarks. In the Matter of Hannigan, Determination (New York State Commission on Judicial Conduct December 17, 1997).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for attempting to coerce guilty pleas in traffic cases, failing to hold public court sessions as required by law, and his practice of receiving ex parte communications from police officers about the merits of traffic cases before him, including representations that the actual speed that defendants had been driving was greater than the speed charged. In the Matter of Westcott, Determination (New York State Commission on Judicial Conduct December 17, 1997).
  • Based on a stipulation of facts and the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a former judge for (1) making handwritten entries of “guilty” in the cases of 2 individuals who had previously indicated their intent to plead “not guilty;” (2) attempting to have a defendant plead guilty even though she knew that the defendant was represented by counsel and that the counsel was not present in court; (3) sentencing a defendant to a 45-day active sentence but refusing to credit the defendant with jail time served pending disposition as required by law; and (4) making statements and taking actions, in and out of court, that could be considered by some as less than patient, dignified, and courteous to attorneys, witnesses, litigants, and court personnel. In re Renfer, 493 S.E.2d 434 (North Carolina 1997).

A sampling of recent judicial ethics advisory opinions

  • A judge may not employ their spouse as their judicial assistant. Florida Advisory Opinion 2022-12.
  • A judge is not disqualified from cases involving a subject that is the same as or similar to a subject involved in a criminal case in which their spouse is representing the defendant. Colorado Advisory Opinion 2022-6.
  • An appellate jurist who has a personal residential tax appeal pending before the tax appeals session should disqualify themself from all matters appealed from the tax appeals session. Connecticut Informal Advisory Opinion 2022-6.
  • A judge may teach a law school clinic that will draft legislation to create civil liability for encouraging, assisting, or facilitating racially motivated crimes and propose the legislation to legislators. New York Advisory Opinion 2022-97.
  • A judge may speak in a free, virtual seminar for law students entitled “Diverse Pathways: Exploring Avenues to a Meaningful Legal Career,” presented by a statewide law firm, and the firm may advertise the judge’s participation. Florida Advisory Opinion 2022-11.
  • A judge should not attend a training course regarding speed detection devices that is offered by a law enforcement agency and open only to judicial officers, prosecutors, and members of law enforcement. Ohio Advisory Opinion 2022-8.
  • A magistrate may serve as a trustee of a condominium association but may not engage in the resolution of disputes between residents and should not use their position or title in connection with service on the board. Ohio Advisory Opinion 2022-10.
  • A supreme court justice who is chair of a church council may inform other council members and inquiring church members about the procedure for disaffiliation from the national church organization. South Carolina Advisory Opinion 14-2022.
  • A judge may serve as a member of the board of directors on the long-range planning committee of a not-for-profit hospital when the committee is not involved in fundraising and the hospital is rarely, if ever, a party to litigation in the judge’s court. Florida Advisory Opinion 2022-13.
  • Judges may not perform as actors and play judges or mediators presiding over fictional disputes on a television show. Alabama Advisory Opinion 2022-950.
  • If character testimony is being a sought, absent a subpoena, a judicial officer may not at the request of a criminal defendant’s attorney submit a declaration in a habeas corpus action regarding their prior representation of the defendant. If the judicial officer has any question regarding whether the testimony may be construed as character testimony, they should err on the side of requiring a subpoena. Even if the declaration only contains factual testimony, the judicial officer is advised to require a subpoena. California Expedited Opinion 2022-49.
  • A judge may maintain a profile on a dating website and communicate online for the purpose of dating. New York Advisory Opinion 2022-119.
  • A judge may have a LinkedIn profile page that identifies them as a judicial officer and identifies the court on which they serve and may be pictured in robes in their profile picture as long as the photo is taken in an appropriate setting, for example, a courtroom or chambers. Colorado Advisory Opinion 2022-5.
  • A full-time or part-time magistrate may not seek election to, or serve on, a local, city, or state board of education, city council, or county board of commissioners. Ohio Advisory Opinion 2022-9.
  • A judge or a judicial candidate may be a member of the committee planning the strategies for their own campaign for judicial office but may not be a member of a committee that primarily solicits and accepts campaign contributions, and the committees must be separate, and the distinction clearly delineated. Michigan Advisory Opinion JI-152 (2022).
  • A judicial candidate or their campaign committee may post photographs on social media of the candidate with sitting judges at a public or professional event, such as a bar association function, if the judges consent, there is nothing that indicates an endorsement, and a caption makes clear that the judges do not endorse the candidate. New York Advisory Opinion 2022-96.

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for rude and inappropriate statements during a sentencing hearing, for example, stating “to some extent I think ‘dumb-a**’ should be engraved on his forehead.”  Ditsworth, Order (Arizona Commission on Judicial Conduct November 13, 2017).
  • The Nevada Commission on Judicial Discipline suspended a judge for 60 days without pay, fined him $5,000, to be paid to an anti-bullying organization, and ordered him to submit to a psychiatric exam for (1) making comments to a reporter about 2 pending cases to protect his re-election bid; (2) refusing to vacate a hearing in a case in which a motion for recusal was pending and advising a party to file a complaint against opposing counsel with the State Bar; and (3) failing to accord plaintiff’s counsel the right to be heard during a hearing, repeatedly using intemperate language and yelling at her, directing that she be handcuffed, and holding her in contempt.  In the Matter of Potter, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline November 22, 2017).  The Commission also ordered the judge to complete a judicial education course on dealing with difficult parties and attorneys, to write letters of apology to 2 attorneys, and to perform 10 hours of community service with the Southern Nevada Antibullying Council, which supports the school district’s anti-bulling program, or with a similar organization.
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for, after arraigning a defendant and entering an order of protection, receiving unsolicited ex parte information from 2 sources claiming that the defendant had violated the order of protection, failing to disclose the communications, repeating the information as fact during a pre-trial conference, and reiterating the accusations when he accepted a plea agreement, sentenced the defendant, and issued a 6-month order of protection.  In the Matter of Curran, Determination (New York State Commission on Judicial Conduct November 14, 2017).
  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld the removal of a judge for seeking the advice of another judge about her son’s case and acquiescing in his offer to communicate ex parte with the judge who was handling the case.  In re Roca, 173 A.3d 1176 (Pennsylvania 2017).
  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld a judge’s removal for listening to another judge’s requests for favorable treatment for parties in 3 cases.  In re Segal, 173 A.3d 603 (Pennsylvania 2017).
  • Pursuant to the judge’s agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for (1) threatening to end a house arrest program if a defendant’s attorney did not withdraw an objection and (2) entering an order giving 30 days credit toward completion of a sentence to any male inmate who received a vasectomy and any female inmate who received a birth control implant.  Letter to Benningfield (Tennessee Board of Judicial Conduct November 15, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for his treatment of prospective jurors and his use of the contempt power against lawyers; the Commission also ordered the judge to take 8 hours of additional education.  Public Reprimand of Aguilar and Order of Additional Education (Texas State Commission on Judicial Conduct November 6, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) communicating ex parte with the judge presiding over her nephew’s criminal case and voluntarily testifying as a character witness at his probation revocation hearing and (2) shaming and reprimanding jurors for their guilty verdict.  Public Reprimand of Hawthorne (Texas State Commission on Judicial Conduct November 9, 2017).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for his exchange with an umpire at his son’s baseball game in which he inappropriately and unnecessarily injected his judicial position; the Commission also ordered the judge to obtain 2 hours of instruction with a mentor.  Public Warning of Warren and Order of Additional Education (Texas State Commission on Judicial Conduct November 10, 2017).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for (1) failing to give a defendant a jury trial as he had timely requested and to respond to the allegations and (2) publicly endorsing a candidate for appointment for magistrate and commenting on an impending matter against a former magistrate.  Public Admonishment of Halloran (West Virginia Judicial Investigation Commission November 2, 2017).
  • The West Virginia Judicial Investigation Commission publicly admonished a former magistrate for ex parte communications with assistant prosecutors about cases in which she was presiding and for failing to ensure that her staff complied with the restraints on communication with law enforcement and potential witnesses.  In the Matter of Yeager (West Virginia Judicial Investigation Commission November 30, 2017).