Renouncing third-party campaign statements

Comment 8 to Rule 4.1 of the 2007 American Bar Association Model Code of Judicial Conduct states:  “When an independent third party has made unwarranted attacks on a candidate’s opponent, the candidate may disavow the attacks, and request the third party to cease and desist.”  Approximately 17 states have adopted that comment.

Interpreting the provision, the West Virginia Judicial Investigation Commission advised that a candidate must disavow third-party/PAC statements that (1) include false or misleading statements about a campaign opponent; (2) “do not accurately reflect the duties and role of a judge;” or (3) “indicate that a judge or candidate is not neutral and detached but would be biased in favor of or against an individual, group or legal issue.”  West Virginia Advisory Opinion 2018-22.

In a subsequent advisory opinion, the Commission clarified a candidate’s obligation to respond to false campaign statements by third parties.  West Virginia Advisory Opinion 2019-15.  The Commission noted that “’minor inaccuracies’” do not make a statement false:  a statement is false only if it “’would have a different effect on the mind of the reader from that which the pleaded truth would have produced,’” quoting In the Matter of Callaghan, 796 S.E.2d 604 (West Virginia 2017) (2-year suspension without pay and $15,000 fine for a campaign flyer that portrayed his campaign opponent, the incumbent judge, partying at the White House with President Obama).

Instead, the advisory opinion explained, a candidate’s obligation to disavow a statement by a third party about the candidate’s opponent is not triggered unless:  (a) it is a statement of fact, not an opinion; (b) the fact is substantive and significant; (c) the statement is false or a material misrepresentation; and (d) the candidate knows about the statement and its falsity.  In other words, a judicial candidate must disavow statements about a campaign opponent made by a third-party or PAC if the candidate knows about the statement and knows that it is a false statement or a material misrepresentation about a substantive and significant fact, not an expression of opinion.  The Commission concluded that the candidate can meet the obligation to disavow by issuing a timely press release to area news media and promptly notifying the third party or PAC by letter to immediately stop disseminating the statement.

The West Virginia opinion relied in part on In the Disciplinary Matter Involving a District Court Judge, 392 P.3d 480 (Alaska 2017).  In that case, the Alaska Supreme Court advised that “a judicial candidate’s awareness of an independent campaign is not, by itself, enough to impose a duty to monitor and address the campaign’s statements.”  A contrary rule, the Court explained, would chill protected speech and force a “candidate to wade into the fray, creating tension with the candidate’s obligation to ‘maintain the dignity appropriate to judicial office.’”

However, even in the absence of an express provision in the code of judicial conduct (Alaska has not adopted the model code comment), the Court suggested that a judicial candidate may have a duty to publicly correct or repudiate false or misleading independent statements “to uphold judicial integrity and independence, avoid impropriety, or maintain dignity.”  The Court adopted an objective test for whether a judicial candidate’s failure to address a false or misleading statement by an independent supporter creates an appearance of impropriety:  whether the candidate took “’reasonable precautions to avoid having a negative effect on the confidence of the thinking public in the administration of justice.’”

In the case before it, the Court reversed a private admonishment by the Commission on Judicial Conduct and dismissed a complaint because it found that there was no evidence that the judge knew about the campaign materials at issue, which clearly disclaimed his involvement and were clearly attributed to a “Friends of [the Judge]” group.  The group had, for example, posted a social media advertisement that featured a digitally altered image of the judge tied to a stake and surrounded by flames with the caption:  “Witch Hunts are so 18th century.”

 

Throwback Thursday

5 years ago this month:

  • Approving a stipulation, findings of fact, and recommended discipline, the Florida Supreme Court publicly reprimanded a judge for giving incomplete and inaccurate answers about her driving record in interviews with a judicial nominating commission.  Inquiry Concerning Recksiedler, 161 So. 3d 398 (Florida 2015).
  • Granting a stipulation agreement and consent to discipline, the New Mexico Supreme Court placed a judge on supervised probation with a formal mentorship until the end of her term and imposed numerous conditions; the Commission had alleged a wide variety of misconduct, including record-keeping failures, ex parte communications, taking action in cases from which she was recused, and denying defendants due process.  In the Matter of Torres, Order (New Mexico Supreme Court April 27, 2015).
  • Adopting the findings of fact and conclusions of law of the Board of Professional Conduct, based on stipulations, the Ohio Supreme Court publicly reprimanded a judge for operating a motor vehicle under the influence of alcohol.  Disciplinary Counsel v. Marshall, 34 N.E.3d 110 (Ohio 2015).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) treating attorneys from the State Counsel for Offenders office and one of their expert witnesses in a less than patient, dignified, and courteous manner; and (2) statements during a presentation about sex offenders before the Texas Patriots PAC; the Commission also ordered that the judge obtain 4 hours of instruction with a mentor judge.  Public Reprimand of Seiler and Order of Additional Education (Texas State Commission on Judicial Conduct April 24, 2015).

 

Review and approve

The Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to supervise her law clerk, approving her clerk’s inaccurate timesheets, and exchanging inappropriate emails with the clerk.  Public Reprimand of Leahy (Minnesota Board on Judicial Standards March 19, 2020)

Based on several complaints about the judge’s law clerk, a judicial branch auditor performed a thorough review of the clerk’s timekeeping for December 12, 2018 through March 5, 2019.  According to the audit report, the clerk could not account for 50.5 hours claimed on timesheets during that period.  The audit report states:

Employee was paid for hours not worked during the scope of review.  Employee did not always take the appropriate leave time when necessary.  Employee was not appropriately coding and working the hours captured on the timesheet in accordance with MN Judicial Branch Payroll Policy . . . .

Judge did not properly review and approve employee timesheets to ensure hours recorded by employee were worked.  This is the responsibility of the judge as to the employee’s supervision in accordance with the MN Judicial Branch Payroll Policy . . . .

Employee did not have a teleworking agreement on file that provided hours of work and approval from the judge.

At the time, law clerks were not authorized to work outside of the courthouse or from home.

In a meeting with the Board, the judge stated that she had no basis to criticize the auditor’s report but noted that she was trying to assist the clerk by making work accommodations for the clerk who was going through a difficult time personally.

The Board stated:

A judge may set and communicate expectations for an employee’s work hours in accordance with Judicial Branch policies.  When a judge is not in the courthouse, the judge could look to other judges or court personnel to supervise employees, if necessary.  When an employee is dealing with personal or health issues, a judge may need to provide additional supervision to ensure the employee is fulfilling the employee’s duties.  Proper supervision of employees is critical to maintaining cordial relationships with court administration and to maintaining public confidence in the judiciary.

See also In the Matter of Groneman, 38 P.3d 735 (Kansas 2002) (public censure for allowing his administrative assistant to work a second job with the Kansas Turnpike Authority at times that conflicted with her judicial branch duties and signing timesheets that falsely claimed the assistant was working at her judicial branch employment when she was working at her second job); In re Johnson, 1 So. 3d 425 (Louisiana 2009) (public censure for allowing his full-time judicial assistant to also be employed full-time by the U.S. Small Business Administration, in addition to other misconduct); In the Matter of Walters, Public reprimand and conditions (Minnesota Board on Judicial Standards April 22, 2014) (public reprimand for allowing his law clerk to take some pro bono bankruptcy cases, which he worked on during his regular work hours, and signing and approving the clerk’s timesheets even though he knew or should have known that the clerk did not work the hours reported on the timesheets, in addition to other misconduct).

During the auditor’s review of the clerk’s timekeeping, inappropriate use of judicial branch emails by the judge and the clerk was discovered, including “comments that could reasonably be considered harmful to the reputation and business of the Judicial Branch” and comments about matters before the court while court was in session.

The judge and the clerk disparaged attorneys and parties in emails.  For example, in an email with the subject line “[S]hoot me already,” the judge wrote of an attorney:  “He is an awful attorney.”  Of a party, the judge wrote:  “He is a most obnoxious mean man.”  In another matter, the judge wrote in an email to the clerk:  “Kill me,” in response to an email about the attorney appearing before her.

During a jury trial regarding a criminal sexual conduct charge, the clerk wrote:  “[Y]our last sexual experience;” the judge responded: “EEEEEEEEEEEkkkkkkkkkkkkkkkkkk.”

Regarding another criminal jury trial, in an email with the subject, “[C]an you keep a secret?” the clerk wrote:  “This VD sucks.  Don’t tell anyone.” The judge responded:  “Deep sigh.”  “VD” stood for voir dire.

In another criminal jury trial, the clerk stated in an email:  “[J]ust accept the [jury] panel and put on [the] case!”  The judge responded:  “They won’t . . . the [S]tate will ask a million dumb questions about burden of proof, etc.”

In an email to the clerk, the judge referred to the sheriff’s department employees involved in a decision to change the warrant process as “stupid people.”

At the meeting with the Board, the judge admitted that her emails with the clerk were inappropriate and that she should have chosen her words more carefully.  The Board noted that, not only did the judge not advise the clerk that the emails were inappropriate, she personally engaged in the same inappropriate use of judicial branch emails.

The Board stated:

The duty to supervise court employees also extends to an employee’s use of electronic communications.  The Code and Judicial Branch policies prohibit a judge from sending disparaging and inappropriate emails.  Even when electronic messages are considered confidential, they may be forwarded outside the Judicial Branch or otherwise made public.  Emails that are disparaging to attorneys, litigants, and witnesses violate Rule 2.8(B).  Rule 2.8(B) requires a judge to “be patient, dignified, and courteous to litigants, jurors, witnesses, court staff, . . . and others with whom the judge deals with in an official capacity, and shall require similar conduct of lawyers, court staff, . . . and other subject to the judge’s direction and control.”

 

 

Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for making numerous sarcastic and improper remarks in a case.  Gaumont, Order (Arizona Commission on Judicial Conduct April 12, 2010).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) failing to require a potential juror to remove a tinfoil hat; (2) being absent from court and causing the absence of the court clerk; (3) dismissing cases without authority; (4) taking action in 2 cases from which he was disqualified; (5) delays; and (6) a discourteous comment regarding the district attorney.  In the Matter Concerning Edwards, Decision and order (California Commission on Judicial Performance April 12, 2010).
  • Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court suspended a judge for 6 months without pay and publicly reprimanded him for, in a tenant-removal action, trying to negotiate the sale of the property at issue instead of hearing evidence and failing to disqualify himself even though he had known one of the parties her whole life, had spoken with her father about the property, and had done landscaping work on the property.  Commission on Judicial Performance v. Hartzog, 32 So. 3d 1188 (Mississippi 2010).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for failing to render timely decisions in 26 cases over more than 3 and 1/2 years.  In the Matter of Gilpatric, Determination (New York State Commission on Judicial Conduct April 27, 2010).
  • 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) apparently out of personal animus, threatening to impose bail for routine traffic charges against a defendant and allowing the defendant half the time he customarily gave for paying a fine and, after learning that the defendant had complained to the Commission, refusing to give him an extension of time to pay the fine and (2) threatening a defendant and his father out of pique after being advised by the court clerk, who was his wife, that the defendant’s father had been “very rude” when he called to request an extension for paying a fine.  In re Tripp, Determination (New York State Commission on Judicial Conduct April 20, 2010).
  • Based on the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court removed a former judge from office for remaining on the board of directors of a corporation and making intentional misrepresentations during the Commission investigation.  In re Belk, 691 S.E.2d 685 (North Carolina 2010).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a judge for finding a defendant guilty in absentia.  In the Matter of Holmes, 692 S.E.2d 905 (South Carolina 2010).

 

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a pro tem judge for providing false information to law enforcement investigating her client.  Gillis, Order (Arizona Commission on Judicial Conduct January 11, 2020).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for holding a litigant trying to pay a fine in contempt without due process for his conduct at the counter in the clerk’s office and ordering law enforcement to arrest him for disorderly conduct and interfering with judicial proceedings.  Riggs, Order (Arizona Commission on Judicial Conduct March 17, 2020).
  • Based on stipulations and an agreement, the California Commission on Judicial Performance publicly censured a judge for (1) engaging in “undignified, discourteous, and offensive sexualized (or otherwise crude) conduct in the workplace;” (2) engaging in a pattern of conduct that was undignified, discourteous, and offensive and conveyed, at a minimum, the appearance of bias against prosecutors; (3) creating at least the appearance of retaliation against a deputy district attorney he believed had filed a complaint against him; (4) improperly commenting about peremptory challenges; (5) asking an African-American defendant to stop “shucking and jiving;” and (6) saying in open court about a statement by his bailiff, “He doesn’t know what the hell he’s talking about.”  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020).
  • Approving the findings, conclusions, and recommendations of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court reprimanded in writing 5 judges for sending a letter encouraging the Florida Department of Children and Families to award a contract to a particular vendor.  Inquiry Concern Lederman, Caballero, Figarola, Pooler, and Ruiz (Florida Supreme Court March 26, 2020).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to supervise her law clerk, approving her clerk’s inaccurate timesheets, and exchanging inappropriate emails with her law clerk.  Public Reprimand of Leahy (Minnesota Board on Judicial Standards March 19, 2020).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly censured a judge for, during a hearing on a request to impose restraints against a defendant, giving “vent to his personal disdain for the plaintiff’s decision to file” the proceeding; chastising both litigants and the defendant’s husband who was present; and demonstrating a lack of self-control that was “inimical to a jurist’s role as a neutral and dispassionate arbiter.”  In the Matter of Rivas, Order (New Jersey Supreme Court March 23, 2020).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former non-lawyer judge; in a formal complaint, the Commission had alleged that the judge had (1) operated a motor vehicle without a valid driver’s license for over 8 years; (2) failed to deposit or account for approximately $743 in cash received in payment for fines; (3) from September 2011 through October 2018, made 13 deposits in his court bank account that differed the amount received by his court, resulting in a cumulative deficiency of $1,283; (4) from September 2011 through October 2018, received court funds in at least 64 cases for which he failed to issue and/or maintain receipts as required by law; (5) for the entire period in which he was a judge, failed to maintain adequate court records as required by law; (6) from March 2011 through October 2018, failed to report the dispositions of 40 traffic tickets to the Department of Motor Vehicles as required by law; (7) from February 2012 to April 2017, failed to mechanically record court proceedings, contrary to court rules and administrative orders; and (8) failed to cooperate with the Office of the State Comptroller, town officials, and the Commission about his apparent financial, reporting, and record keeping inadequacies.  In the Matter of Gardner, Decision and order (New York State Commission on Judicial Conduct March 13, 2020).
  • The New York State Commission on Judicial Conduct removed a judge from office for (1) without complying with mandatory procedural safeguards for contempt, sentencing litigants in 2 cases to 30 days in jail, ordering litigants in 4 cases to be taken into custody in handcuffs and held for 15 minutes to 2 hours, and threatening to order that 2 other family court litigants and the mother of a litigant be handcuffed and detained; (2) being discourteous to court personnel; (3) being discourteous to litigants; (4) presiding over matters in which his friend appeared without disclosing the relationship and failing to disclose that a construction company affiliated with a party in a matter was performing work at the home of his law secretary; (5) conducting gun permit interviews at inappropriate locations and requiring his court secretary to work on Saturdays without compensation; (6) practicing law while a full-time judge; and (7) using his judicial title in his personal email.  In the Matter of McGuire, Determination (New York State Commission on Judicial Conduct March 18, 2020).
  • Reviewing a public reprimand by the State Commission on Judicial Conduct, a Texas Special Court of Review publicly warned a judge for failing to respond to the Commission’s inquiry.  In re Slaughter, Opinion (Texas Special Court of Review March 19, 2020).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for at least 8 posts on her judicial Facebook page congratulating 12 attorneys on winning jury verdicts in her court and lauding the results and their professional backgrounds.  Public Admonition of Gonzalez (Texas State Commission on Judicial Conduct March 18, 2020).

 

Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for (1) a pattern of abusing the prestige of judicial office and using court resources in connection with personal matters, (2) a pattern of impatient, undignified, and discourteous conduct toward court staff and persons appearing before him, and (3) an ex parte communication with jurors in which he denied a request for a transcript.  Public Admonishment of Coates (California Commission on Judicial Performance April 12, 2000).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) during a conversation at a charity event, urging a prosecutor to “be reasonable” in offering pleas in a murder case and not to worry about “giving away” the case because no one cared because the victim was “just some old n****r b***h;” (2) making disparaging remarks about Italian Americans at a charity dinner and during his election campaign; (3) during jury deliberations in a rape case, pressing a prosecutor to offer a plea to a misdemeanor charge so that he could “get out of this f***ing black hole of Utica” and threatening to declare a mistrial if she refused; and (4) testifying during criminal proceedings that he had discussed the defendant with 2 attorneys when he had not.  In the Matter of Mulroy, 731 N.E.2d 120 (New York 2000).
  • The New York State Commission on Judicial Conduct removed a judge for (1) requiring indigent defendants to pay for assigned counsel by performing community service, (2) failing to advise defendants of their right to counsel and taking action against them without notice to their lawyers when he knew that they were represented, (3) exhibiting bias before conviction by threatening defendants with jail and calling them names, (4) repeatedly using intemperate language, (5) jailing without bail defendants who were statutorily entitled to bail, (6) summarily convicting on criminal contempt charges individuals whom he concluded had violated a court order, (7) failing to disqualify from cases in which he was the complaining witness and in which he had knowledge of disputed evidentiary facts, and (8) frequently engaging in ex parte communication.  In the Matter of Buckley, Determination (New York State Commission on Judicial Conduct April 6, 2000).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for writing an intemperate letter to another judge advancing the prosecutor’s position in a criminal case pending before the other judge.  In the Matter of Howell, Determination (New York State Commission on Judicial Conduct April 6, 2000).

 

Sexual harassment and fidelity to procedures

As discussed in a previous blog post, in September 2019, the Judicial Council for the U.S. Court of Appeals for the 10th Circuit publicly reprimanded and admonished Judge Carlos Murguia, a U.S. District Judge for the District of Kansas, for (1) giving preferential treatment and unwanted attention to female court employees through sexually suggestive comments, inappropriate text messages, and excessive, nonwork-related contact, often after work hours and late at night; (2) engaging in a years-long extramarital sexual relationship with a drug-using individual who was on probation for state-court felony convictions; and (3) being habitually late for court proceedings and meetings for years.

A review of that decision was begun by the U.S. Judicial Conference Committee on Judicial Conduct and Disability, focusing on whether the judge’s conduct might be grounds for impeachment, including whether there was a pattern and practice of judicial misconduct and whether the judge’s “failure to cooperate in and lack of truthfulness during the misconduct proceedings, which unnecessarily delayed the proceedings and prevented fulsome corrective action, constituted additional judicial misconduct.”

However, the U.S. Judicial Conference Committee concluded the proceedings after the judge resigned.  The Committee has previously held that the Judicial Conduct and Disability Act does not apply when a judge is no  longer in office.  The Committee did not release the report of the special committee, did not make additional findings or conclusions, and did not describe the conduct that the Judicial Council had found constituted sexual harassment.  It did provide some additional details “to the extent necessary to demonstrate fidelity” to its procedures but only those that did not jeopardize the confidentiality and anonymity requested by the victims and witnesses.

Below is a timeline of the Murguia case:

2016

4/2016             Judges in the District of Kansas begin receiving information from judicial employees about Judge Murguia and give that information to the Chief District Judge.

5/2016             The Chief District judge reports to the Chief Circuit Judge that a former employee of Judge Murguia alleges that he had sexually harassed her.

10/2016           The Chief Circuit Judge conducts an informal investigation; Judge Murguia expresses remorse and agrees to participate in assessment and treatment by a medical professional.

Sometime after 10/2016
The Circuit’s certified medical professional indicates that the judge had successfully completed treatment.

2017

2/2017             The Chief Circuit Judge notifies Judge Murguia that, although there was credible evidence of misconduct, a formal complaint would not be filed against him because he had admitted his improper behavior, seemed willing to correct his behavior, and his evaluation and treatment had been successful.

11/2017           The Circuit learns of more allegations about Judge Murguia and hires a retired FBI investigator to investigate.

2018

8/2018             Based on information gathered during the investigation, the Chief Circuit Judge identifies a complaint of judicial misconduct.

9/2018             The Chief Circuit Judge appoints a special committee to investigate.  14 former and current staff members are interviewed, including 3 judicial employees whom Judge Murguia had allegedly sexually harassed.

2019

4/23/2019       The special committee holds a hearing that includes testimony by Judge Murguia.

7/2019             The special committee issues a report to the Judicial Council.

9/30/2019       The Judicial Council issues its reprimand and admonishment.

2020

2/6/2020         In a letter to the secretary of the U.S. Judicial Conference, the Chief District Judge, and the Chief Circuit Judge, the House Judiciary Committee states that the Judicial Council’s order raises questions about “the adequacy of the Judiciary’s recent steps to better protect its employees from wrongful workplace conduct.”

2/18/2020       Judge Murguia resigns effective April 1.

3/3/2020         Based on his resignation, the U.S. Judicial Conference Committee concludes disciplinary proceedings against Judge Murguia.

3/6/2020         In a joint statement, several members of U.S. House argue that the U.S. Judicial Conference Committee’s order “unfortunately underscore[s] that the judiciary’s processes for handling workplace misconduct continue to fall short.”