Adjunct Law Prof Blog

Third Circuit Reverses Contempt Conviction Against Trial Judge

An interesting Third Circuit case from earlier this month raises the question whether a lower court judge can be held in contempt for openly criticizing a higher court for reversing him in a pending case.  The case is In re: Kendall, No. 11-4471 (3d Cir. April 3, 2013). 

The contempt holding arises from proceedings in a murder prosecution.  The case's procedural history is long, convoluted and filled with hints and allegations suggesting misrepresentations and misconduct far and wide.  Of particular relevance, after some back and forth in plea negotiations between the prosecutor and the defense, the trial judge ordered the prosecutor, against the prosecutor's wishes, to follow through on an oral plea offer allowing the defendants to plead guilty to involuntary manslaughter, a lesser charge to murder. 

To this the prosecutor objected by filing an application for writ of mandamus to the Virgin Islands Supreme Court.  The high court granted granted that application on grounds that the government generally may unilaterally withdraw a plea offer, as the prosecutor had done in this case, and that any exception to that general rule did not apply.

The writ of mandamus, however, turned out not to be the end to the matter.  Upon return to the trial court, the prosecution and defense made a plea agreement for the defendants to plead guilty to voluntary manslaughter, still a lesser charge, but a more serious one than involuntary manslaughter.  The trial judge, after receiving the prosecutor's proffer supporting the plea, rejected that plea bargain and memorialized that rejection in a 31-page opinion that, among other things, characterized the Supreme Court's reasoning in issuing the mandamus as "erroneous, 'improper,' having 'no rational basis,' lacking 'merit,' and 'making no sense."  The judge went on to add the opinion was 'contrary to law and all notions of justice."  The judge then recused himself for a number of reasons.  Ultimately, one co-defendant died before trial; the other was acquitted by a jury.

Back to the story - the Virgin Island Supreme Court, after getting wind of the 31-page opinion, charged Judge Kendall with crimnial contempt, three counts.  The counts were:

1. Obstructing the administration of justice by issuing the 31-page opinion critical of the Justices' writ of mandamus;
2. Failing to comply with the writ of mandamus by refusing to schedule the case for trial, refusing to consider a change of venue or continuance to minimize pretrial publicity, and recusing himself to avoid complying with the writ of mandamus, and
3. Misbehaving in his official transactions as an officer of the court by issuing the 31-page opinion and disobeying the writ of mandamus.

The Virgin Islands Supreme Court appointed a Special Master to preside at Judge Kendall's trial.  The Special Master recommended Judge Kendall be acquitted on all counts.  The Virgin Islands Supreme Court, however, rejected those recommendations and found Judge Kendall guilty on all counts.

Judge Kendall's appeal to the Third Circuit followed.

The Third Circuit agreed that Judge Kendall's comments in the 31-page opinion were speech protected by the First Amendment.  In fact, the Court held that because Judge Kendall's comments were "pure speech on public issues," the opinion held, "'the highest rung of the hierarchy of First Amendment values," and is thus 'entitled to special protection.'"  Such speech, the Court held, is entitled to protection from criminal punishment unless the speech, "poses a clear and present danger to the administration of justice."

Whether it is good practice for a lower court judge to be openly and caustically critical of a higher court remains an open question, perhaps, but the Third Circuit here resolves that such speech, was lacking decorum, remains First Amendment protected, except in likely rare cases where the speech "poses a clear and present danger to the administration of justice."  Kendall certainly is an interesting case and a recommended read.

Craig Estlinbaum

SMU Law: Federal Circuit and Patent Law Symposium

The SMU Dedmon School of Law will host its 10th Annual Symposium on Emerging Intellectual Property Issues on March 22, 2013, with a presentation titled "The Federal Circuit and Patent Law."  The one day symposium includes four panel discussions - The Federal Circuit's Stewardship of Patent Law: A View from the Bench; Institutional Roles: The Federal Circuit and the Supreme Court; Allies or Competitors: The Federal Circuit and the U.S. Patent and Trademark Office; and Innovation, Disruptive Technologies and the Federal Circuit.  Bernard J. Knight, Jr., General Counsel, U.S. Patent and Trademark Office is scheduled to deliver the luncheon and keynote address.  A complete brochure for the symposium is here.

Craig Estlinbaum

Florida: Facebook Friendship Leads to Judicial Disqualification

Earlier this month, a Florida appellate court held that a defendant's motion to disqualify a trial judge was legally sufficient to require disqualification where the trial judge was a Facebook friend with the prosecutor assigned to the case.

In Domville v. State of Florida, No. 4D12-556, 2012 WL 3826764 (Fla.Dist.Ct.App. Sep. 5, 2012), the defendant filed the motion to disqualify the judge alleging that the judge and prosecutor assigned to the case were Facebook friends.  The trial judge denied to motion as legally insufficient.

The appellate court relied upon a 2009 Florida Judicial Ethics Advisory Committee opinion that concluded that the Florida Code of Judicial Conduct precluded a judge from both adding attorneys that appeared in their courts as friends, and allowing attorneys so appearing to add the judge as a friend.  The Committee opined that such conduct violated Florida Code of Judicial Conduct, Canon 2B which prohibits judges from conveying or permitting others to convey, "the impression that they are in a special position to influence the judge."  The Committee also concluded that a judge that Facebook friends an attorney "reasonably conveys to others" the impression that the attorney is in fact in a special position to influence the judge.

The appeals court quashed the trial court's order denying disqualification as a matter of law and returned the case to the trial court for further proceedings.

To date, Massachusetts and Oklahoma judicial ethics committees have joined Florida in taking a restrictive approach to judges using social media.  The Massachusetts Committee's opinion on the subject goes so far as to state that a judge may friend an attorney on social media only when that judge would recuse herself if and when the friended attorney appeared before her.

Even in states where judicial ethics committees have taken a permissive approach to judicial use of social media, judges may face disqualification or recusal motions in similar circumstances.  The law in this area is very new and uncertain as judges, attorneys and ethics committees develop policies and implement guidelines for judicial use of social media.

Craig Estlinbaum

Judge found to have presided over judicial matters involving persons with whom he had a “close relationship” removed from office

 

Matter of Young, 2012 NY Slip Op 05089, Court of Appeals

The State Commission on Judicial Conduct sustained six charges of misconduct alleged against Lafayette D. Young, Jr., a Justice of the Macomb Town Court, St. Lawrence County, finding that he had engaged in serious misconduct when he presided over matters involving persons with whom he and his paramour had close relationships. The Commission determined that Judge Young should be removed from his office.*  

The Commission found that “In all cases, but one, [Judge Young] neither disqualified himself nor disclosed [his] relationship to the defendant or complaining witness. Additionally, in many of the cases at issue, Judge Young’s conduct gave the appearance of favoritism towards the Petrie family defendant or complaining witness.”

Moreover, the Court of Appeals said that  "ex partecommunications with[certain] parties further exacerbated Judge Young's improper conduct as they highlight his close relationships to the Petrie family and his partiality towards them."

Holding that "Such conduct demonstrates a misuse of his judicial office and damages public confidence in his integrity and impartiality," the Court of Appeals sustained the sanction imposed by the Commission: that Judge Young, removal from his position, as the appropriate penalty under the circumstances.

* See New York Constitution, Article VI, § 22; Judicial Law §44

The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05089.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Special Education IHO Falls Asleep During Hearing

Sleeping Special Education Judge Resigns under Fire: MyFoxHOUSTON.com

 

 Sometimes you just cannot make these facts up. A Houston Special Education Impartial Hearing Officer feel asleep during the middle of a hearing. What is more amazing is that it was caught on tape. He has since resigned. Details here. 

Mitchell H. Rubinstein

10 Unforgettable Judges

Court Reporter School, a commercial site, posted a list of 10 unforgettable Judges. There are some surprises on list list including Rehnquist and Burger-but the list includes some pictures and is an interesting read.

Mitchell H. Rubinstein

Hat Tip: Ava Moore

Judges and Mandatory Retirement

Nine States Report Considering Changes to Mandatory Judicial Retirement Policies is an interesting April 15, 2010 New York Law Journal article (registration). Justice Stevens' retirement from the Supreme Court at age 90 just highlights how outdated state mandatory retirement laws are for judges.

Some of you might be thinking that the ADEA outlawed mandatory retirement. So how can judges be forced to retire at a certain age? The answer is quite simple. There is an exception in the ADEA for judges. For readers who may not be familiar, federal judges are appointed for life, but state judges are not. The article describes judge mandatory retirement rules in part as follows:

Twenty states now require retirement at age 70; four at 72; two at 74, and six at 75. Vermont is the only state with a mandatory retirement age of 90 for a state Supreme Court justice.

If applied to the U.S. Supreme Court, those states' retirement rules would force from the bench not only Justice Stevens, but also Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer.

In 2009, the center reported, Kansas increased the age at which their justices must retire to 75 from 70, and South Dakota's House of Representatives also approved an increase to 75 from 70.

Nine other states have recently considered or are considering legislation to increase or eliminate mandatory retirement, although none is apparently close to passage.

Mitchell H. Rubinstein

Obama Nominates Openly Gay Male To Circuit Court

The ABA Journal News Now recently reported that President Obama nominated the first openly gay male to a federal circuit court. As the posting states:

The nominee, Edward DuMont, is the first openly gay person to be nominated to a federal appeals court, according to Metro Weekly and the Keen News Service. DuMont indicated his involvement in gay and lesbian groups in his Senate Judiciary Committee questionnaire.

Mitchell H. Rubinstein

Judges and Google

Our sister blog, Legal Writing Prof Blog, has an interesting story about a case involving a judge who googled a search term about a defendant during a criminal trial. In a nutshell, the Second Circuit held that the judge did not act improperly. As the blog posting states:

On appeal, the Second Circuit vindicated the trial judge's impromptu factual investigation by concluding that:

[The Judge's] use of the Web was merely the electronic equivalent of what a judge in an earlier era would have done: gone to a local department store to confirm in person the "common-sense" belief that a variety of yellow rain hats, like that worn by a bank robber, can be purchased.

As 'broadband speeds increase and Internet search engines improve,' judicial use of computers is only likely to increase, the court said.

'As the cost of confirming one's intuition decreases, we would expect to see more judges doing just that,' the court held. 'More generally, with so much information at our fingertips (almost literally), we all likely confirm hunches with a brief visit to our favorite search engine that in the not-so-distant past would have gone unconfirmed.'

Mitchell H. Rubinstein

Social Networking Judges and Attorneys??

Pitfalls of Social Networking for Judges is an excellent March 16, 2010 New York Law Journal article by Mark Strutin (registration required). The article highlights issues that Judges and attorneys may face if they engage in social networking. Obviously, a judge may be interacting with a party and not even know it. That may create an appearance that something is inappropriate. Attorneys, like other employees, may be embarrassed by what they write. As the article explains:

Transitions from one form of communication to another never occur neatly. They frequently wend their way through society by fits and starts, embraced by a few at first, then by masses of people until they are commonplace.

But as technology cuts a swath through established practices and institutions in this piecemeal fashion, we have to be cognizant of the perils to our professional lives and the judicial process. A social networking site cannot sanitize conduct that transgresses ethical boundaries when done in person or in print.

The article cites several ethic opinions. Law review commentary on this important topic is needed.

Mitchell H. Rubinstein

Do Judges Have The Right To A Raise??

Yes, says New York's highest court. The denial of a raise to state judges for more than a decade violates the state Constitution, the state Court of Appeals ruled in a 5-1 opinion.

However, the majority declined to order any specific remedy, saying only that it expects "appropriate and expeditious legislative consideration" of its decision. The ruling adopts the argument of several judge-plaintiffs and the court system as a whole that the independence of the judiciary has been threatened by the improper linkage of judges' pay to other, unrelated issues.

Judge Smith dissented. He stated that while it is "depressing" that pay considerations have driven many fine judges from the bench, "it is also true that there are still plenty of able judges, and plenty of able people who would willingly become judges, even at today's pay levels."

I am deeply troubled by this decision. Though it clearly only involved judges, can the same rationale be applied to police officers or others who have not received a sufficient raise to remain "independent." Think about it, Judges are employees just like everyone else. Should they be subject to different rules than everyone else??

Mitchell H. Rubinstein

Syracuse Law Review: Caperton v. A.T. Massey Coal Co. Symposium

Syracuse Law Review is publishing a Caperton v. A. T. Massey Coal Co. Symposium in its next issue. The United States Supreme Court in Caperton held that Due Process requires a judge to recuse himself from a case in which he received substantial campaign donations from one of the parties.  From the symposium abstract:

In our symposium book on Caperton, we hope to analyze many issues arising from the case. Are the appearance of bias and the public's mistrust of the legal system enough to warrant reform? Should the Supreme Court have set forth a constitutional rule grounded in due process to require recusal? What effect will the Caperton decision have on federalism?  Are there any downsides to requiring appointment of judges rather than permitting elections? All of those questions and many others are implicated by the Caperton decision, and it is our intention to delve below the surface and explore a wide range of issues that Caperton evokes.

The symposium contents include:

Dahlia Lithwick - Forward
Steven Lubet - It Takes a Court
Bruce A. Green - Fear of the Unknown: Judicial Ethics after Caperton
Elizabeth B. Wydra - The Fourteenth Amendment’s Due Process Clause and Caperton: Placing the Federalism Debate in Historical Context Ronald D. Rotunda - Judicial Disqualification in the Aftermath of Caperton v. A.T. Massey Coal Co.
Andrew L. Frey & Jeffrey A. Berger - A Solution in Search of a Problem: The Disconnect Between the Outcome in Caperton and the Circumstances of Justice Benjamin’s Election
James Sample - Caperton: Correct Today, Compelling Tomorrow

Congratulations to Syracuse Law Review on this very promising symposium edition.

Craig Estlinbaum

Should Judges Be Elected Or Appointed?

The December 23, 2009 New York Times ran an article called "Effort Begun to End Voting for Judges," about efforts by Sandra Day O'Connor and others to persuade states to choose judges on the basis of merit, rather than by election, where judges run with party labels. As the article states:

According to the institute, 23 states and the District of Columbia have a commission-based system for at least some of their judges. No state has shifted to an appointive system in 15 years, but Justice Kourlis said the moment could be ripe.

Judicial elections have become “tawdry and embarrassing,” she said, and the Supreme Court decided an important case this year concerning judicial conflicts of interest that underscored the potentially corrupting influence of campaign contributions to judicial political campaigns, “which changes the landscape, from a legal perspective, and makes us hopeful that this is the time.”

Some, particularly within the business world, have expressed skepticism about merit selection. The U.S. Chamber of Commerce Institute for Legal Reform has taken no official position on judicial selection, but issued a report in October warning that some state judicial selection programs “have been criticized for the absence of public input into the process, lack of transparency, secretiveness in their procedures and the political cronyism that can occur when commissions and the governor operate in what is essentially a closed system."

In New York, where I practice, just about every litigator knows that the quality of state court judges stinks-particularly on the trial court level. Incompetence is rampant because one does not have to even be a competent lawyer to be a judge. Rather, they simply have to be elected-which is largely dependent upon where you live and which party you belong too.

Is the appointment process better? Most believe that the state Court of Appeals judges are of high quality and they are appointed. Additionally, federal judges, particularly Article III judges, are highly regarded. Don't get me wrong, their are plenty of problems with the appointment system-but it's better than the alternative.

Mitchell H. Rubinstein

Will Citizens United Kill Judicial Elections?

Tony Mauro, National Law Journal, writes today to ask whether the United States Supreme Court's recent controversial decision in Citizens United v. F.E.C. and the increased corporate money that may flow to judicial campaigns as a result will positively impact on the national movement to replace state judicial elections systems with a merit selection and retention process.

I have not digested the lengthy Citizens United decision, concurrences and dissent yet and for that reason, if none other, will not opine how the decision may affect judicial elections going forward.  Judicial selection reformers argue that allowing corporations, including possibly foreign or foreign-controlled corporations, unfettered access to the American political process through unlimited donations, may turn public support against judicial elections, where large contributions by corporation toward judicial campaigns are often disapproved. 

Mauro's article on the case's possible impact on the judicial selection reform movement is very informative, regardless your point of view on Citizen United's merits, and is recommended.

Craig Estlinbaum

Judges and Facebook

What if a judge "friends" a lawyer on Facebook? Can that person appear before him or her?? No, according to a recent Florida Ethics opinion,

A Dec. 10, 2009 NY Times article about this Ethics Opinion is available here. As the article states:

When judges “friend” lawyers who may appear before them, the committee said, it creates the appearance of a conflict of interest, since it “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”

In practice, of course, actual friends and Facebook friends can be as different as leather and pleather, and the committee did recognize that online friends were not the same as friends in the traditional sense. A minority of the panel would have allowed Facebook friendship, which it characterized as more like “a contact or acquaintance” without conveying the notion of “feelings of affection or personal regard.”

While I certainly understand the concern and the Opinion is probably correct. There are First Amendment and other issues that are ripe for law review commentary.

Mitchell H. Rubinstein

Federal Judge Ratings

The Robbing Room is a site by lawyers which rates federal judges. Readers may find it of interest.

Mitchell H. Rubinstein

Federal Judge Sentenced To Jail

Judges, even federal Judges, are not above the law. U.S. District Court Judge Kent was sentenced to 33 months in jail. After he was impeached, he resigned. A NY Law Journal story is available  here. The Judge plead guilty to obstruction of justice. This was part of a plea which involved charges involving sexual abuse being dropped. Story here.

Talk about a fall from grace.

Mitchell H. Rubinstein

Wisconsin: Federal Judge Holds State Judicial Conduct Rules Violate the First Amendment

A federal district judge in Wisconsin ruled yesterday that three provisions in the Wisconsin Code of Judicial Conduct violate the First Amendment.  These provisions prohibit Wisconsin state judges from joining political parties, from endorsing candidates for public office, and from personally soliciting campaign contributions.  In a lengthy opinion, Judge Barbara Crabb held that these rules are not narrowly tailored to promote a compelling state interest, and therefore violate the First Amendment. 

The case is Siefert v. Alexander, No. 08-cv-126-bbc (W.D. Wis., Feb. 19. 2009). Thanks to Professor Kathleen A. Bergin at First Amendment Law Prof Blog for the pointer.

Craig Estlinbaum

How Much Should Judges Make??

How Much Should Judges Make? is another interesting New York Times article by Adam Liptak. In this article, which appeared on Jan. 20, 2009, Liptak discusses whether federal judges are underpaid. Chief Justice Roberts has called for a pay increase. As the article notes, some believe Judges are underpaid; others believe that they are not. Interestingly, there scholarly articles on this subject. As the article states:   

Federal district judges make $169,300; federal appeals court judges, $179,500; Supreme Court justices, $208,100; and the chief justice, $217,400. There is no question that those salaries, which went up by 2.5 percent last year, have dropped significantly in real terms in recent decades or that they represent a tiny fraction of what partners in a big city law firms make.

This year, federal judges, alone among federal employees, did not even receive a cost of living adjustment.

On the other hand, being a judge is pretty sweet work and the job is in high demand. It comes with status, power, good working conditions, no clients, the ability to affect policy and the satisfaction of doing justice. Federal judges get very good health care, exceptionally generous pensions and the ultimate in job security – life tenure.

The two sides in the debate, in any event, are mostly talking past each other.

The professors collected data and analyzed them using the tools of economics. They measured things like productivity (number of published opinions), quality (how often other courts cite those opinions), speed (how quickly opinions are produced) and independence (how often judges disagree with colleagues with similar political views).

Mitchell H. Rubinstein

Should Judges Be Subject To Mandatory Retirement At Age 70??

Mandatory Retirement At Age 70 For State Judges is an interesting December 29, 2008 New York Law Journal article (registration required). It points out that judges in New York must retire by age 70, yet Judge Levine, a former member of the Court of Appeals, just argued a case in that Court at age 76.  Judge Levine is quoted in the article as saying the following:

Mr. Levine called the age ceiling, adopted in 1869 when life expectancies were in the 40s, "archaic." The current life expectancy for Americans is 78.

An admirer of Chief Judge Kaye and opponent of the Court's retirement age, Assemblywoman Helene Weinstein, D-Brooklyn, said the chief judge's seemingly boundless energy and good health should prompt a reconsideration of the mandatory retirement rule.

"I think if you need a reason why there should not be mandatory retirement for judges at 70, all you have to do is look at Judge Kaye," Ms. Weinstein, chairwoman of the Assembly's Judiciary Committee, said in an interview.

During the last 50 years, 19 Court of Appeals Judges were forced to retire. Mandatory retirement is unlawful under the ADEA for most employers. Judges are exempt from protection under that statute.
Federal Judges, including Supreme Court Justices, are known to work well into their 80's. Why can't state judges??

Mitchell H. Rubinstein