Wednesday, October 26, 2016
The New York Commission on Judicial Conduct has admonished a judge who
without basis in law, threatened to:
( 1) hold an assistant district attorney in contempt of court if the defendant was arrested for threatening a witness in the case, (2) declare a mistrial with prejudice if the defendant was arrested, and (3) impose financial sanctions upon the District Attorney's Office if a mistrial was declared because of the arrest. Respondent also yelled and acted in a discourteous manner toward the assistant district attorney.
The misconduct took place during the trial of a man accused of raping his daughter.
After testifying, the defendant's ex-girlfriend alleged
Ms. Joseph completed her testimony before court was recessed for lunch. Toward the end of the luncheon recess, and before trial resumed, there was an off-the- record conference during which ADA Nugent informed respondent that the defendant, who was free on bail, had allegedly approached Ms. Joseph as she was leaving the courthouse during the lunch break and said to her, "You're dead." ADA Nugent also informed respondent that Ms. Joseph had been taken to the g4th Precinct stationhouse to make a complaint against the defendant.
The judge threatened the ADA over the possibility of a mid-trial arrest of the defendant
Let's make something crystal clear, People. Today is Friday. We are going to finish the People's case now with this last witness. The defense case is supposed to start on Monday. If you were to have .. . Mr. Bartholomew arrested any time between now and Monday ... Mr. Bartholomew ... would not be in a position to prepare his defense.
If there is a mistrial, if this case has to be delayed because you have unnecessarily and unjustifiably prevented the defendant from seeing his attorney and preparing his defense and this matter has to be adjourned, I will consider, one, financial sanctions against your office. And number two, I will certainly consider a mistrial with prejudice.
As a result
Although the police intended and were prepared to arrest the defendant promptly for threatening Ms. Joseph's life, they delayed doing so because of respondent's statements. Respondent sentenced the defendant to 15 years in prison and 20 years of post-release supervision. After sentence was imposed, the police arrested and charged the defendant with menacing, a B misdemeanor, having a maximum possible sentence of 90 days in jail. However, the Kings County District Attorney's Office chose not to prosecute the defendant on the menacing charge and it was dismissed for failure to prosecute. Notably, the prosecution had never requested an Order of Protection on behalf of Joleane Joseph in the three years this case had been pending trial, nor did they do so at the time they represented she had been allegedly threatened by the defendant Mr. Bartholomew.
regardless of whether [the judge] intended to follow through on the threats he made, the threats were inappropriate since he had no lawful basis to act on them. Such statements to a prosecutor - especially by a judge who "yelled" and spoke in "a raised voice" - are highly intimidating and could only be perceived as a serious warning of very significant consequences, including a mistrial with prejudice in a case involving a serious crime. As respondent has acknowledged, his discourteous conduct was inconsistent with the required standards of judicial behavior.
The agreed statement of facts is linked here. (Mike Frisch)
Monday, October 24, 2016
A story from last week's Charlotte News & Observer
A Superior Court judge was convicted Friday on charges that he tried to bribe a federal agent with two cases of Bud Light to get copies of text messages from the phones of the judge’s wife and another man.
A defense attorney announced immediate plans to appeal the verdict against Wayne County Judge Arnold O. Jones II. The verdict came after jurors deliberated for less than an hour.
Sentencing is set for Jan. 23. But before then, the defense team will get one more opportunity to argue to U.S. District Judge James C. Fox that the case should not have gone to the jury because prosecutors failed to bring enough evidence.
Jones – the senior resident Superior Court judge in Wayne County – is on administrative leave from his post but campaigning for re-election in November.
He was convicted of three felonies – paying a bribe to a public official, promising and paying a gratuity to a public official, and corruptly attempting to influence an official proceeding.
Thursday, October 20, 2016
The New York Court of Appeals has upheld the removal from office of a judge
The misconduct giving rise to [the judge's] concession "qualifies as 'truly egregious'" (Restaino, 10 NY3d at 590). The record reflects that, among other things, petitioner used a sanction -- a tool meant to "shield" from frivolous conduct -- as a "sword" to punish a legal services organization for a perceived slight in an inexcusable and patently improper way (see 22 NYCRR 130-1.1 [a] [authorizing the imposition of sanctions, but precluding town and village courts from applying such penalties]). The record is also replete with instances in which petitioner used his office and standing as a platform from which to bully and to intimidate. To that end, it is undisputed that petitioner engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament -- perhaps most significantly, by engaging in a physical altercation with a student worker.
Those actions are representative of an even more serious problem. Petitioner -- in what allegedly was a grossly misguided attempt to motivate -- repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process. Those threats "exceeded all measure of acceptable judicial conduct" (Matter of Blackburne [State Commn. on Jud. Conduct], 7 NY3d 213, 221 ), and we are particularly troubled by the testimony of one court officer, who suggested that petitioner's threats were so common that they became "a joke." The matter may have been a laughing one to that officer, but it was not to others.
Significantly, too, petitioner's hectoring extended beyond the courthouse. In what ostensibly was an attempt to undermine a former co-Judge and an apparent political adversary, petitioner willfully injected himself into the political process involving the election of an office other than his own. All of the foregoing actions reflect a pattern of calculated misconduct that militates against petitioner's assertion that the misbehavior complained of will not be repeated if he is allowed to remain on the bench.1 Petitioner's misconduct apparently was tempered only by the intervention of the Commission, and at the hearing held with respect to this matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an attempt to minimize his misconduct -- all of which renders suspect his guarantees of better behavior.
Details on the misconduct may be found here in the Determination of the Commission on Judicial Conduct. (Mike Frisch)
Monday, October 17, 2016
The New York Law Journal has a report on allegations against a judge
A Sullivan County Court judge has been placed on restricted status amid an investigation of whether the judge intentionally ran over his older brother with an all-terrain vehicle.
Peter Labuda, 70, is accusing his brother Judge Frank LaBuda, 66, of breaking his leg and his rib by intentionally knocking him over with an ATV on Sept. 25 on property Peter Labuda owns in Wurtsboro, which adjoins property owned by the judge. The brothers capitalize their name differently.
Sheriff's deputies responded to a call about the afternoon incident but did not arrest Frank LaBuda, as his brother requested. The next day, from his hospital bed at the Orange Regional Medical Center, Peter Labuda told the Middletown Times Herald-Record that he believes his brother drove over him "full throttle" without trying to avoid him, after he told the judge to get off his property.
Relations between the brothers were known to have been strained prior to Sept. 25, with the Times Herald-Record reporting that Frank LaBuda refused to talk to his brother when the two ran into each other the previous week at a local coffee shop, according to Peter Labuda.
No charges had been filed in connection with the case as of Monday, state and county officials said.
Benjamin Ostrer, an attorney representing Frank LaBuda, said that while the brothers' relationship has been difficult at times, he believes the judge will be exonerated.
"I can't imagine Judge LaBuda having intentionally struck his brother," Ostrer, of Chester, said Sunday. "I am confident that the investigation will reveal that it was truly an accident."
After the Sullivan County Sheriff's Department initially investigated the incident last week, Sullivan County District Attorney James Farrell announced Friday that he was handing the case over to state Attorney General Eric Schneiderman's office, and that the sheriff's department would forward all information it had gathered to state police.
"While I believe that my office could have fairly and impartially handled this matter, out of an abundance of caution and to avoid even the appearance of impropriety, I have requested the attorney general take over this case," Farrell said in a statement. "All of the people involved in this incident, Peter Labuda, Frank LaBuda and the citizens of this county deserve a full, fair and independent evaluation of the facts of this case."
Farrell said he is certain that state authorities will handle the matter in a "thorough, comprehensive and professional" way.
Lucian Chalfen, a spokesman for the Office of Court Administration, said LaBuda was placed on "annual leave" effective Monday after the judge conferred with Thomas Breslin, the chief administrative judge for the state's Third Judicial District.
Chalfen said that under annual leave, a judge remains on the bench but takes vacation time for the interruption in service. He said LaBuda will not return until the investigation and any prosecution of the Sept. 25 stemming is resolved.
Chalfen said LaBuda began to handle only civil cases last week once it was clear the allegations by his brother were being handled as a criminal matter.
In LaBuda's absence, Chalfen said Sullivan County Supreme Court Justice Stephan Schick and County Court Judges Michael McGuire and Mark Meddaugh will handle his caseload.
An admonition was imposed on a non-lawyer judge by the New York Commission on Judicial Conduct
On three separate occasions in July 2013, May 2015 and June 2015, as set forth below, respondent asserted the prestige of judicial office while attempting to enter an Otsego County-owned building in possession of a firearm, in violation of a local law prohibiting the possession of weapons in county buildings...
At all times relevant to the matters herein, a sign was posted by the exterior door to the public entrance of the Meadows, stating "No Weapons Permitted." Posted below this sign was a copy of County of Otsego Local Law No. 2 of 1995, titled "A Local Law Banning Possession of Firearms and Other Dangerous Weapons in Otsego County Buildings" (hereinafter "Local Law")...
respondent possessed a license to carry a concealed firearm and carried a .380-caliber Ruger pistol in his pants pocket.
In each instance he had asserted his authority as a judicial officer to security officers
While respondent now understands that his conduct in identifying himself as a judge during these three incidents was inappropriate and created at least the appearance that he was attempting to use the prestige of his judicial office to enter the building with his pistol, respondent avers that he did so because he believed at the time that his status as a judge exempted him from security procedures in county buildings...
Throughout the incidents, respondent repeatedly referred to his judicial status and asserted that his judicial position exempted him from security procedures and compliance with the local law prohibiting possession of a weapon in county buildings. Notwithstanding his professed belief that, as a judge, he was entitled to special treatment for security purposes, the local law, which was posted at the entrance to the building, exempts "law enforcement officials only." Since that law was enacted in 1995, it seems unlikely that respondent- as a judge for 35 years and a gun owner-would have been unfamiliar with it. It was specifically brought to his attention in the first two incidents. Indeed, the fact that in the first two incidents he did not reveal that he had a gun or produce it when he emptied his pockets suggests that he was attempting to conceal the gun because he knew that bringing it into the building was prohibited. Regardless of whether the security procedures were enforced on other occasions, he was obligated to comply with those requirements when they were properly enforced by security officials. Even if he was not abusive or discourteous in confronting the security officers, he should have recognized that his repeated insistence that his judicial status entitled him to special treatment would place them in a more difficult position in carrying out their assigned responsibilities.
The Commission's news release is linked here. (Mike Frisch)
Thursday, October 13, 2016
The Mississippi Supreme Court has removed from office and fined a judge
The Mississippi Commission on Judicial Performance recommends to this Court that former Madison County Justice Court Judge William “Bill” Weisenberger Sr. be removed from office after finding by clear and convincing evidence that Weisenberger physically and verbally assaulted a mentally disabled individual at the 2014 Canton Flea Market. Because of the egregious nature of Weisenberger’s actions, this Court agrees with the Commission’s recommendation and removes Weisenberger from office. Weisenberger is directed to pay a fine in the amount of $1,000 and costs of these proceedings in the amount of $5,918.46.
The ugly details
Weisenberger’s conduct clearly was willful. Weisenberger was not hired to provide security for the Canton Flea Market, yet he was dressed like a security officer and was carrying a gun and had a radio. Additionally, although Weisenberger knew he was not hired to provide security, he heard Deputy Sullivan’s transmission over the radio and purposefully injected himself into the situation instead of waiting for hired security officers. Weisenberger took it upon himself to initiate contact and unreasonably inflict physical injury upon Rivers. In addition, Weisenberger yelled a racial slur at Rivers, a completely inappropriate and intentional action that heightened the injury that Weisenberger inflicted. And instead of calling for security when Rivers did not walk in the direction in which Weisenberger had no authority to direct him, Weisenberger repeatedly made contact with Rivers and forced him to comply to Weisenberger’s wishes. Moreover, throughout the interaction, Weisenberger was wearing a shirt that said “Madison County Justice Court.” Thus, Weisenberger’s actions clearly were willful.
Justice Coleman concurred
Justice Dickinson makes an excellent point – that we cannot remove a person who is not a judge from the judicial office. However, our precedent in judicial performance cases requires us, in part, when we consider the proper sanctions for judicial misconduct to examine prior cases that are on point. See Miss. Comm’n on Judicial Performance v. Thompson, 169 So. 3d 857, 869 (Miss. 2015); Miss. Comm’n on Judicial Performance v. Skinner, 119 So. 3d 294, 300 (Miss. 2013). Should a future case arise as to which today’s case would be “on point,” today’s opinion would support removing the judge in question from office. If we omit the sanction from today’s opinion, then should the above-described case arise it would not be so readily apparent that removal is proper, despite the severity of the misconduct. Because including the sanction will better inform the Court’s decisions in the future, I concur with the majority’s decision to do so – despite the reality that Bill Weisenberger already has left office.
Presiding Justice Dickinson
I agree with the majority’s findings of misconduct, and most of the sanction imposed. But the notion that we can remove Bill Weisenberger from office after the voters already have done so is pure fiction. Justice Coleman understandably is concerned that the bench, bar, and public should be on notice that Weisenberger’s conduct merits removal from office.
But his concern would be eliminated by simply declaring that if Weisenberger still were in office, he would be removed from it. This approach would comport more closely with logic and the truth.
Wednesday, October 12, 2016
A former Buffalo judge has been disbarred as a result of a felony bribery conviction.
The Buffalo News reported on the conviction and the judge's background
For the first time in 21 years, no one rose to their feet when John A. Michalek walked into a courtroom on Wednesday.
For the first time since he began serving as a State Supreme Court judge in 1995, Michalek’s role in the courtroom was as an admitted criminal, one who pleaded guilty to felony crimes of bribe-receiving and offering a false instrument for filing in a court case. Both of the crimes involved Michalek’s dealings with longtime political power broker G. Steven Pigeon.
Looking thin, pale, tired, dejected and broken, the 65-year-old Michalek told the court that he was resigning from his $193,000-a-year judgeship, and agreeing to cooperate as a witness in the ongoing probe into Pigeon’s political activities. He faces a possible prison term of up to seven years when he is sentenced on Sept. 21.
As a convicted felon, the former judge also will lose his right to practice as an attorney. It’s a painful fall from grace for a man who was selected as the Outstanding Jurist in 2005 by the Erie County Bar Association’s Matrimonial and Family Law Committee. And many of the people who knew and worked with Michalek over the years seem genuinely surprised.
“Would I ever have expected Judge Michalek to get into any kind of trouble? Absolutely not,” said former Erie County District Attorney Frank J. Clark, who worked with Michalek from 1977 to 1985. “John was a very conservative, very reserved, very careful guy … a public servant. I was extremely surprised to hear he was in any kind of trouble. It just doesn’t add up.”
Until now, many people in legal circles would say Michalek lived a charmed life. A State Supreme Court judgeship is one of the most coveted jobs for any lawyer in New York State. It is a 14-year position that, in addition to a salary far beyond that made by most lawyers, provides a generous pension and other benefits.
Michalek never had to run in a contested election for his judgeship. A registered Democrat, he was selected by political party leaders to be “cross-endorsed” by both Democrats and Republicans in 1994 and again in 2008.
Every judge has his or her critics, but legal experts say most of the lawyers who practiced in front of Michalek considered him to be fair, honest and hardworking.
“I’ve practiced in front of him a number of times over a period of 20 years. Even when he’s ruled against me, I’ve never seen a decision from him that seemed to be tainted by politics or anything else,” said Amherst lawyer Steven M. Cohen.
It is sad, said Cohen and several other Buffalo attorneys, that Michalek has become the second brother in his family to wind up in serious trouble with the law.
Not like his brother
His older brother, the late James J. Michalek, was a flashy guy – an attorney and investment scam artist who lived in an extravagant home in Orchard Park, wore a full-length fur coat, drove an expensive sports car and went to prison in the 1990s for cheating banks out of millions of dollars and dozens of senior citizens out of their retirement savings.
To most people in Buffalo’s legal community, John Michalek seemed to be cut from a much different cloth. He earned a reputation as an earnest, quietly efficient attorney who served as a top prosecutor in the Erie County district attorney’s office before political party leaders chose him to become a State Supreme Court judge in 1994. He began serving in 1995.
“John was not only embarrassed by the actions of his brother, he felt terrible about it,” said a close family friend of Michalek. “Some of Jim’s victims were old family friends, old neighbors and retired steelworkers … John wanted people to know that he wasn’t like that.”
“John and his brother Jim were such different personalities. Jim was flamboyant, a riverboat gambler,” Clark said. “John seemed to be a much different guy.”
The former judge grew up in a well respected family in Lackawanna. His late father, Leo Sr., was a physician. His late mother, Louise, was a nurse widely involved in charity and volunteer activities. The couple raised five children – three lawyers, a physician and a psychiatrist.
“I’ve known this family going back to the 1950s, and they were one of the most respected families in Lackawanna,” said former Erie County DA Edward C. Cosgrove, still practicing law at age 81. “They were good, solid people, deeply religious, hardworking, very good students.”
John Michalek graduated from St. Francis High School, Canisius College and the University at Albany Law School before he was hired by the district attorney’s office in 1977. Cosgrove gave him his first job.
“John was a marvelous young man who worked very hard for us,” Cosgrove recalled.
A notorious client
In 1985, after serving four years as chief of the Justice Courts Bureau, Michalek left the DA’s office and established a Hamburg law firm with two partners, Daniel J. Henry and Robert M. Vallarini, who later would win election as an Erie County legislator. Michalek handled some criminal defense work with the law firm, and his most famous – or infamous – client was the late Richard W. Matt.
Michalek represented Matt in a number of criminal matters in the early 1990s. Matt jumped into the national headlines last summer when he and another inmate escaped from the Clinton Correctional Facility in Dannemora. After nearly three weeks on the run, Matt was shot and killed by police last June.
Michalek became active in Town of Hamburg politics, and he was named assistant town attorney in 1988. Hamburg political figures say Michalek was an invaluable aide to Vincent J. Sorrentino, who was the town attorney and also the chairman of the Erie County Democratic Party. After Hamburg’s town supervisor, Jack Quinn, was elected to Congress, Michalek was appointed to take his place as interim supervisor for the year of 1993.
In 1994 – with a big push from Sorrentino – Michalek was selected by party leaders to get both the Democratic and Republican Party endorsements for State Supreme Court judge. With no actual competition, he won election for his first 14-year term in November 1994.
He has not been a controversial figure as a judge, but has handled some high-profile cases. In a 2012 ruling, he awarded more than $2.7 million – or more than $230,000 each – to 12 white Buffalo firefighters who alleged they were passed over for promotions because of their race. City officials vehemently disagreed with the ruling, which was later overturned by an appeals court.
In April of this year, Michalek made a ruling that barred former Buffalo School Board James M. Sampson from the ballot for this year’s election. Michalek agreed with opponents of Sampson who said he did not have enough legitimate signatures on his nominating petition.
One local attorney, Arthur Giacalone, said he had a bad experience with Michalek and felt he treated him and his client unfairly during a 2014 trial. But most attorneys and court officials interviewed by The News in recent weeks said Michalek had a solid reputation.
Allegations shock peers
“I always considered him to be a decent guy, hardworking and diligent,” said one former colleague, Salvatore R. Martoche, a former state appellate judge now in private practice. “I honestly can’t say anything negative about him because I don’t know anything bad about him.”
“I practiced before him on several different lawsuits, and I thought he was fair and very careful,” said Cosgrove, Michalek’s former boss. “As far as I am concerned, his past and present reputations are marvelous. I don’t know of anything contrary to that. I’d have to understand every part of what happened before I made any judgments on him.”
Acting Erie County District Attorney Michael J. Flaherty Jr. was not involved in the Michalek probe, but he held a press conference after Wednesday’s court session to talk about the importance of prosecuting judges and other government officials who violate the public trust.
Flaherty called Michalek’s case “a sad and intolerable ... disheartening” situation.
The acting DA said he cannot recall another instance of a State Supreme Court judge in Western New York being accused or convicted of bribery-related charges.
A tall man who enjoyed playing pickup basketball with local attorneys, Michalek is described by friends as a devoted husband and father who has donated his time to St. Francis High School and other charitable and not-for-profit organizations.
One longtime Hamburg politician, who spoke on the condition that he or she would not be identified, expressed shock after learning of Michalek’s close relationship with a controversial political power broker like Pigeon.
“Knowing John as I do, I cannot fathom him doing anything illegal,” said the politician, a friend of Michalek’s for more than three decades. “I’ve known unsavory people in politics, but I can’t imagine John being one of them.”
When asked if he ever imagined that Michalek would take bribes or do anything else that was illegal, Cosgrove exclaimed: “Goodness, gracious no!”
The order was entered by the New York Appellate Division for the Fourth Judicial Department. (Mike Frisch)
Wednesday, October 5, 2016
A recent opinion of the Florida Judicial Ethics Advisory Committee
Whether a judge may directly solicit donations of used books for use by inmates at the local jail library?
The inquiring judge has been taking used paperback books to a local jail for use in the inmate library. The judge would like to step up this effort by asking for donations of used books from the local bar association membership and asking attorneys to drop the used books off at the judge’s office for the judge to deliver to the jail. The judge would also like to post on the judge’s Facebook page that the judge wants to collect people’s used books to take to the jail.
Soliciting donations from groups or persons who appear before the judge, such as members of the local bar association, and requesting that the donations be delivered to the judge or the judge’s office may convey the impression that the judge will favor those who donate. Likewise, soliciting donations from groups or persons on the judge’s Facebook page, regardless of whether those groups or persons appear before the judge, also may appear to be coercive to those who are not inclined to donate but who fear the judge’s disfavor if they do not donate, particularly when the judge is requesting that the donations be delivered to the judge or the judge’s office.
Friday, September 30, 2016
Disciplinary argument involving a judge who refused to perform same-sex marriages has been scheduled, according to a recent report by the Statesman Journal.
The Oregon Supreme Court has scheduled oral arguments regarding the judicial fitness of Marion County Circuit Judge Vance Day. The hearings are set to begin March 22, 2017, and the court will consider whether to sanction Day for ethics violations.
Earlier this year, Oregon's nine-member judicial fitness commission held a two week trial of Day, who was accused of a litany of ethics violations. Prosecutors said he refused to marry same-sex couples; created improper relationships with defendants; allowed a convicted felon to handle a gun; and took money from attorneys that appeared before him, among other accusations.
Day denied the accusations. His attorneys argued that if he did violate any ethics rules, his conduct was protected by the free speech and religion protections of the First Amendment. Day has said his Christian beliefs prevent him from performing marriages for same-sex couples.
The commission — which is comprised of sitting judges, attorneys and members of the public — ultimately said Day violated his oath of office and engaged in criminal conduct. They unanimously recommended that Day be removed from the bench.
Day has said if he's sanctioned, he will appeal to the U.S. Supreme Court, the only venue for appeal of state supreme court decisions.
A former head of the Oregon Republican Party, Day was appointed to the Marion County bench in 2011 by Gov. John Kitzhaber. He was elected to a full six-year term in 2012.
Day continues to sit on the Marion County bench, but has been relocated from the downtown courthouse to the annex building on Aumsville Highway.
Tuesday, September 27, 2016
A September 6 Judicial Ethics Opinion from Massachusetts:
Linked In: Using Social Networking Site
September 6, 2016
You have asked the CJE whether you may accept Linked in requests from attorneys who appear before you. You have also asked whether you must disconnect from Linked In connections you may have with attorneys who appear before you.
Your question requires us to consider whether our analysis and advice in Letter Opinion No. 2016-01, Facebook: Using Social Networking Site, is applicable to Linked In. We believe that the same overarching principles and concerns stated in Op. 2016-01 apply to all forms of social media that are currently available. Different types of social media networking may, however, pose distinct issues due to their features and the nature and extent of the audience with access to content posted by the judge.
Linked In is primarily a business-oriented social networking site, although some Linked In users post personal updates on and send personal messages through their Linked In accounts. A Linked In user, like a Facebook user, creates a personal profile. The Linked In user may then invite others "to connect" and respond to invitations "to connect" sent by others. Affirmative replies lead to the establishment of a "connection." Users may also "like" a connection's updates and achievements, endorse a connection's skills, and post recommendations. These actions will generally be visible on the profile page of the connection (although a Linked In user may choose not to post endorsements and recommendations). Linked In's default settings permit each user to view each connection's entire list of connections and vice versa. This is considered one of the most useful aspects of Linked In; a Linked In user may ask a connection (a first-order connection) to introduce the user to one of the connection's connections (a second-order connection). While Linked In resembles Facebook by requiring a person's affirmative response to connect with another, many if not most Linked In users seek to grow their number of connections so as to increase their business network. Moreover, Linked In user profiles are generally available to any other Linked In user (even if not a connection) who logs onto the Linked In website and enters the name of any person with a Linked In profile.
In our judgment, and consistent with Op. 2016-01, a judge who uses Linked In may not be connected with any attorney who is reasonably likely to appear before that judge. This conclusion requires a judge to reject requests to connect with and to disconnect from lawyers who are reasonably likely to appear before the judge(1). Because of the prevalence of professional recommendations and endorsements of professional skills that appear on many Linked In profiles, disconnection and disclosure are necessary to protect the independence, integrity, and impartiality of the judiciary. Despite a judge’s best efforts to comply with the foregoing guidance, there may be instances where, unexpectedly, a lawyer whom the judge knows(2) to be a Linked In connection appears before the judge. The existence and nature of the Linked In connection (e.g., whether, while the judge was a practicing attorney, the judge had posted a recommendation or endorsement on the profile page of this lawyer) is one factor for the judge to consider when determining whether disqualification is required under Rule 2.11(A)(1). Where disqualification is unwarranted, the judge should both disconnect from the lawyer on Linked In and disclose on the record the existence and nature of the Linked In connection. See Rule 2.11, Comment . If a judge knows that a lawyer appearing before the judge is a former Linked In connection, the judge should consider the nature of that past connection to determine whether disclosure is warranted. See Rule 2.11, Comment [5B].
As the use of social media continues to grow, we again emphasize judges' obligations under the Code of Judicial Conduct, including the obligations to uphold and promote the independence, integrity, and impartiality of the judiciary; promote public confidence in the judiciary; avoid both impropriety and the appearance of impropriety in their professional and public lives; maintain the dignity of judicial office at all times; avoid abuse of the prestige of the judicial office; refrain from political activity; and conduct all personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. Judges must expect to be the subject of public scrutiny that might be burdensome if applied to other citizens. Each judge who uses social media must take steps to minimize the likelihood that the manner in which that judge uses social media would lead a reasonable person to question the judge's impartiality.
Judges must, of course, be aware that all social media communications may become public. See, e.g., In the Matter of Archer (Alabama Court of the Judiciary, August 8, 2016) (judge conducted what he regarded as "private" Facebook communications with a Facebook friend who made a copy of these communications and shared them with a reporter). There may also be sound reasons, apart from ethical considerations, for a judge to exercise restraint when using social media, such as the judge's concerns over the personal safety of the judge or the judge's family members. As we stated in Op. 2016-01, judges inclined to use social media should carefully weigh the risks and benefits.
Friday, September 16, 2016
The South Carolina Supreme Court publicly reprimanded a Magistrate
On May 18, 2011, respondent was appointed a magistrate. At the time, respondent's husband had retired from the South Carolina Law Enforcement Division and he did not hold any political offices. Respondent's husband later ran for and was elected Sheriff of Chester County.
South Carolina Court Administration forwarded a spreadsheet to ODC which indicated that, between July 1, 2013, and sometime in April of 2015, respondent's "judge code" was entered as having handled numerous traffic citations, arrest warrants, and bond hearings in Chester County Sheriff's Department cases. A total of 101 cases were identified with respondent's "judge code." In response to this information, Court Administration went to the Chester County Magistrate's Office and obtained a sampling of cases which corroborated respondent's involvement in cases involving the Chester County Sheriff's Department.
In mitigation, respondent states she attempted to follow the remittal of disqualification process on many of the matters, but now recognizes she did so incorrectly after having reviewed Section 3F of Canon 3 of the Code of Judicial Conduct, Rule 501, SCACR, with ODC. Respondent asserts she thought that she was complying with the remittal requirements by announcing her conflict before court and proceeding when no objections were voiced. She now recognizes that remittal requires that the disclosure be made on the record to each defendant, that each defendant be given time to consider the matter with counsel, and that the defendant's decision on the matter be placed on the record.
Respondent also incorrectly believed that when defendants requested she take their plea and/or knew her connection with the Sheriff's Department that the conflict was waived and she could take the plea. Respondent now recognizes that in these situations she was required to comply with the requirements of Section 3F of Canon 3. Respondent submits that she will comply with Section 3F at all times in the future.
In one instance, respondent mistakenly conducted a jury trial thinking that she could preside over the trial since the jury would decide the matter. Respondent now recognizes she must comply with Section 3F of Canon 3 in all jury trials.
In mitigation, respondent offers that no parties complained about the bonds that she set or the disposition of matters in question. ODC confirms it has received no complaints from the defendants in question.
Wednesday, September 7, 2016
The New York Commission on Judicial Conduct has admonished a judge for inappropriate discourteous remarks in three matters
Respondent has acknowledged that on three separate occasions he made inappropriate statements that were inconsistent with his obligation to be "patient, dignified and courteous" in performing his judicial duties (Rules, § 100 .3 [B][3 ]).
In the Swank case, respondent's comments about an alleged victim of statutory rape were insensitive and created the appearance that he was being critical of her. In a plea discussion with counsel as the jury was deliberating, respondent told the prosecutor that he was "a little surprised" by a proposed plea that would require the defendant to register as a sex offender since the victim, who was then age 16, was "apparently not upset at the whole incident, from her testimony." (The alleged crime had occurred two years earlier.) When the prosecutor said that the point of the statute was that a 14 year-old could not consent to sexual activity, respondent commented that the victim now had a baby (fathered by a different man) and added, "She's only 16 now. So the statute didn't save her, did it ... I don't think it's going to save her."
Our system of justice is designed to protect young teenagers from sexual abuse, and such individuals must be viewed with sensitivity and respect. While respondent has acknowledged that his comments were insensitive, he avers that he made the statements in an attempt to determine whether a plea disposition might be acceptable, a discussion that had heightened significance since the possibility that the jury was deadlocked had been raised. In plea discussions, blunt statements, opinions and speculation that would be inappropriate in other contexts may be part of the process in achieving an agreement. Although such a discussion at that stage might appropriately include a frank assessment of any factors that might be relevant to the likelihood of conviction and an appropriate plea, respondent's choice of words could be perceived as a harsh, judgmental statement about a young woman who was the alleged victim of a serious crime.
Remarks to prosecutors in two matters also crossed the line
Respondent's criticism of the handling of the case involving the District Attorney's relative was especially improper since (i) that case was not before him, (ii) he seemed to have little information about the matter, and (iii) some of his information was inaccurate (the relative was not A_'s "co-defendant," as respondent stated, and was never charged with a felony). By making such comments, respondent violated his duty as a judge to be an exemplar of dignity, courtesy and neutrality.
While respondent's comments in the Swank and Johnson matters, standing alone, might otherwise warrant a confidential caution, his statements in the matter set forth in Charge III, in our view, elevate this matter to public discipline.
Friday, September 2, 2016
[Posted by Alan Childress] As part of my Quid Pro Books project, announced first here in 2010 (has it been that long?!), we've released two compelling autobiographies. Judge William Norris wrote the prescient opinion striking down the ban on gays in the military (almost three decades before marriage equality), but also shares his time before and after serving on the Ninth Circuit. Judge Alex Kozinski blurbs:
Recounted in this remarkable book is a conversation Bill Norris had with Justice White following his opinion for the Supreme Court in Bowers v. Hardwick, upholding Georgia’s sodomy law. Shortly after, Justice White visited the Ninth Circuit Judicial Conference and Bill confronted him about the injustice of the decision. I witnessed the interaction. No one else was bold enough to challenge the Justice, though others harbored the same doubts. Justice White shrugged off Bill’s concerns as trivial, but Bill stood firm and I could see from his tone and look that he would have none of it. Soon, Bill set about undermining Bowers with his brilliant opinion in the Perry Watkins case. The theory in Watkins resulted, a decade and a half later, in the overruling of Bowers and, eventually, to marriage equality. This story, among many others, makes this personal history a gripping and fulfilling read.
The other new release is by Barbara Babcock--the first woman law prof at Stanford, the first director of the D.C. Public Defender, and one of the first Asst. AG's at the Justice Department. Her life of "firsts" includes candid reflections on a tough childhood, her emergence (somewhat reluctant or naive) into feminism, and her biographical authorship on Clara Foltz. And she answers "How can you defend guilty people?" Blurbist Dahlia Lithwick writes:
Life will afford you no better sherpa on the extraordinary journey women have taken in the legal profession than Barbara Babcock. This book should be required reading for anyone who isn’t certain that they have a place at the lawyers table. Babcock’s amazing life has made a space for so many of us. Her story will do the same.
Tuesday, August 30, 2016
A case scheduled for oral argument this week before the Ohio Supreme Court
Disciplinary Counsel v. Ronnie M. Tamburrino, Case no. 2016-0858
In a disciplinary case stemming from the 2014 election for judges on the Eleventh District Court of Appeals, the Board of Professional Conduct has concluded that Ron M. Tamburrino, a candidate in the race, approved and ran two television ads containing false statements, violating two judicial conduct rules.
Though the panel that reviewed the case proposed a stayed six-month suspension, the board noted Tamburrino has repeatedly refused to admit the content was false and continues to assert that the ads were appropriate. Given his perspective and its concern about “the chilling effect” false ads could have on the functioning of the judicial branch, the board recommends a one-year suspension with six months stayed.
Teenage Drinking Ad
Tamburrino, who is seeking election to the Eleventh District again this year, ran against Judge Timothy P. Cannon in the 2014 race. On Oct. 28 or 29, an ad approved by Tamburrino began to air on local television. The ad showed a judge in a courtroom serving what seems to be alcohol to children. Along with words appearing on the screen, the narration stated:
“Everyone knows that a judge would never serve alcohol to kids in a courtroom. But appellate judge Tim Cannon did something almost as bad. In the case State versus Andrews, Cannon ruled that cops couldn’t enter a house to arrest a parent who was hosting a teenage drinking party, because he felt teenage drinking wasn’t a serious crime. Cannon doesn't think teenage drinking is serious. What else does he think isn’t serious? We can’t afford Tim Cannon’s bad judgment. Elect Ron Tamburrino to the Eleventh District Court of Appeals.”
Judge Cannon wrote a concurring opinion in the Andrews case, which involved the suppression of evidence obtained during a warrantless search by police of a Geauga County home, where teenagers were allegedly drinking at a party. The homeowner was charged with contributing to the delinquency of a minor.
The board explains in its report that the court’s majority opinion and Judge Cannon’s concurring opinion concluded the police should’ve first obtained a warrant before searching the home. In neither opinion was there language indicating that teenage drinking isn’t a serious crime or that police couldn’t enter a house or arrest a parent hosting a teenage drinking party, the board notes.
Judge Cannon instead acknowledged concerns about underage drinking and stressed that he didn’t want to impede law enforcement’s efforts to address underage drinking. He added that the alleged activity was a misdemeanor, which he determined is a factor for police to consider when deciding whether exigent circumstances exist to justify an intrusion and search without a warrant.
The board concluded that Tamburrino’s ad contained several “patently false” statements and that Tamburrino knew they were false or acted with reckless disregard for whether they were false.
Travel Expense Disclosure Ad
The second ad, first broadcast in mid-October 2014, stated that “Cannon won’t disclose his taxpayer-funded travel expenses.” The board found that Tamburrino never asked Judge Cannon to disclose his travel expenses, nor did anyone else during the campaign. In addition, the board noted that the Ohio Supreme Court, not the Eleventh District, paid Judge Cannon’s expenses, which then had no effect on the appeals court’s budget. The implication that Judge Cannon didn’t produce his expense reports in violation of the state’s public records law was false, the board concluded.
“Tamburrino’s use of false statements in both of the ads to unfairly denigrate Judge Cannon is inconsistent with the independence, integrity, and impartiality of the judiciary,” the board wrote.
Tamburrino objects to the board’s conclusions and recommended sanction, arguing that all charges should be dismissed. He maintains that the ads’ statements identified by the board as false are instead true.
In the ad involving the Andrews decision, the majority opinion and Judge Cannon’s concurring opinion both ruled the police shouldn’t have entered the house without a warrant, Tamburrino states. The ad said that Judge Cannon concluded “cops couldn’t enter a house to arrest a parent who was hosting a teenage drinking party,” not that Judge Cannon said police could never enter a house to arrest any parent hosting an underage drinking party, Tamburrino asserts. Judge Cannon also wrote that he didn’t want the decision to deter police from taking action if an officer observed a “serious misdemeanor offense.” Judge Cannon then considers teenage drinking not to be a “serious misdemeanor offense,” and the ad fairly summarizes the judge’s view, Tamburrino alleges.
Tamburrino contends he has as much right as the dissenting justice in the case to criticize Judge Cannon’s ruling. Tamburrino also asserts that his ad was an expression of free speech protected by the U.S. Constitution. Citing a 1996 federal court opinion and a 2002 U.S. Supreme Court decision, Tamburrino argues that judicial candidates have the same free speech rights as other candidates for elected office.
As far as the “won’t disclose” ad, Tamburrino argues he meant that the Eleventh District wouldn’t post its budget, including expenses such as Judge Cannon’s travel costs, on the court’s website. While Judge Cannon didn’t refuse any direct request to disclose the information, Tamburrino was of the opinion that the judge wouldn’t publish such information in the future. This opinion is protected under the U.S. Constitution’s First Amendment, Tamburrino concludes.
He adds that the Sixth U.S. Circuit Court of Appeals ruled earlier this year in Susan B. Anthony List v. Driehaus that Ohio laws barring false statements in campaign materials during political campaigns were unconstitutional. The board found Tamburrino violated a judicial conduct rule that mirrors the statutes struck down in Anthony, he notes. In his view, Ohio’s disciplinary process for the legal profession regarding campaign speech is also unconstitutional.
Disciplinary Counsel’s Positions
The Office of Disciplinary Counsel, which filed the complaint against Tamburrino with the board, counters that the In re Campaign Complaint Against O’Toole 2014 decision from the Ohio Supreme Court presented a sound analysis upholding the constitutionality of the current judicial conduct rule prohibiting false campaign speech by judicial candidates. The Anthony ruling didn’t affect the O’Toole decision, the disciplinary counsel asserts.
In discussing the ads, the disciplinary counsel’s brief states that the teenage drinking piece “twist[s] Judge Cannon’s discussion of the Fourth Amendment into a referendum on Judge Cannon’s personal views regarding teenage drinking.” In the context of the ad specifically citing the Andrews ruling, and the larger context of the judicial campaign, the statements made “could only be interpreted as fact,” not as opinion, the disciplinary counsel wrote.
The disciplinary counsel adds that the “won’t disclose” ad also “can only be interpreted to mean that Judge Cannon refused to disclose his taxpayer funded travel expenses after having been asked to do so,” which was untrue.
Noting shared concerns with the board, the disciplinary counsel, however, suggests a stayed six-month suspension and maintains that any stayed discipline would be adequate to protect the public and deter this type of conduct in the future.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Representing Ronnie M. Tamburrino: Donald Brey, 614.221.2838
Representing the Office of Disciplinary Counsel: Joseph Caligiuri, 614.461.0256
Oral argument will be heard tomorrow. (Mike Frisch)
Monday, August 22, 2016
The South Carolina Advisory Committee on Standards 0f Judicial Conduct has opined on the propriety of a magistrate's service on a museum board
A full-time magistrate judge has requested an opinion as to the propriety of a judge serving on the Board of Trustees for a local museum and cultural center dedicated to preserving the town’s history and heritage. The purpose of the museum is: 1) to collect, preserve, exhibit and document the past of the area; 2) to provide educational programs, activities and exhibits for all age groups; and 3) to promote art and culture that relates to and will enrich the lives of the present and future generations.
A full-time magistrate judge may be a member of the Board of Trustees for a local museum and cultural center provided that the judge does not participate in fundraising/soliciting funds.
With this limitation
Under the facts presented, one of the responsibilities of the Board of Trustees is a “commitment to fundraising.” As discussed, a judge is not permitted to actively solicit funds on behalf of an organization, although a judge may participate in the management of such funds. However, if, as member of the Board of Trustees of the museum, the judge is exempted from fundraising, this Committee sees no other prohibition to the judge serving as a member of the Board, provided that the judge shall not lend the title of his or her office to any of the museum’s activities.
Saturday, August 20, 2016
From the New Jersey Courts web page
The Supreme Court has adopted a revised Code of Judicial Conduct that sets clearer ethical standards for judges to follow.
The code consists of seven canons that set judicial guidelines in areas such as political activity, conflicts of interest and the acceptance of gifts.
The revised code, which goes into effect on Sept. 1, maintains the existing high standards long followed by New Jersey’s judges while drawing upon language from recent Supreme Court decisions to set more clearly defined guidelines for avoiding the appearance of impropriety in both judicial and personal conduct. The revisions also include a more detailed guide for judicial disqualifications, spelling out the circumstances in which recusals are mandatory, discretionary or not needed.
Friday, August 19, 2016
From the Florida Judicial Ethics Advisory Committee
Opinion Number: 2016-13 (Election)1
Date of Issue: August 19, 2016
May a judicial candidate include the words “Vote for [CANDIDATE’S NAME] on August 30” in the candidate’s personal Facebook profile?
A judicial candidate seeking election during the 2016 cycle inquires whether the candidate may include the words “Vote for [CANDIDATE’S NAME] on August 30” or “Please Vote Aug. 30th” in the inquiring candidate’s personal Facebook profile .
The inquiring candidate does not seek to raise funds or solicit publicly stated support for the candidate’s election, which we previously addressed in Fla. JEAC Op. 2010-28 . The candidate seeks only to encourage voters to vote generally, and to cast their ballot for the candidate specifically. In this sense, a Facebook page is no different from a billboard or a television commercial. The heart of the democratic process is candidates stumping for votes. Nothing in Canon 7 prohibits a judicial candidate from asking the electorate to vote for him or her - whether on Facebook, in person, or through the mass media.
At the dawn of the Internet age, we concluded that “nothing in the Code of Judicial Conduct prohibits the use of an Internet web site for campaign purposes. A web site may be used for campaign purposes, consistent with the use of any other type of campaign literature or media advertising.” Fla. JEAC Op. 1999-26. The explosive growth of the Internet in the intervening years has changed our society, but not the Committee’s view that judicial candidates may use a web site to campaign for elections so long as their communications do not otherwise run afoul of the Canons.
Tuesday, August 16, 2016
An Albany City Court judge has resigned and will not seek future judicial office, according to a decision and order of the New York Commission on Judicial Conduct.
He made these remarks to a prosecutor on the record as reflected by this stipulation.
In a raised and angry voice, Respondent then stated: "I'm so pissed off. Unfucking- believable. I'm not supposed to swear on the record, but Jesus Christ, if other people can work out these ridiculous arrangements up in the county without a judge involved and then come down here and effectively blackmail me down here relative to doing something that I do not want to do...."
In another case
Respondent complained about the plea bargain process and said in a raised, agitated voice, "Now, listen, I realize I am a pain in the fucking ass. I realize I am driving people crazy. I'm sorry. I don't give a damn."
...During a lengthy diatribe, Respondent stated in a raised voice, "I participated in this insane system with my eyes closed, just like everybody else. I'm not doing it anymore. I don't give a damn that nobody likes it. I don't give a damn that it drives people crazy. I'm just not doing it anymore."
On or about May 22, 2012, Deputy Chief Assistant District Attorney Cheryl Fowler and Assistant Public Defender Julianne Girard appeared before Respondent in Shultis. ADA Fowler requested an adjournment and a continuance of bail.
Respondent asked to speak privately with Ms. Fowler and Ms. Girard in the jury room next to the courtroom. In the jury room, Ms. Fowler attempted to explain the reasons for her request to continue bail and adjourn the case. Respondent became irate and yelled profanities, including the word "fuck," at Ms. Fowler for several minutes.
Among other things, Respondent yelled, in sum or substance, "Who the fuck are you to make me keep [the defendant] in jail while you do this?"
In a conference room, after a brief discussion about the plea proposal, Respondent criticized the ethics and practices of the District Attorney's Office and District Attorney David Soares in an angry, loud voice for several minutes. Respondent repeatedly used profanities, including the word "fuck." When ADA Grome asked Respondent to stop, Respondent said, in sum or substance, "If you don't fucking like the way things are going in this fucking courtroom, then don't come back."
There is more but you get the general idea. (Mike Frisch)
Saturday, August 13, 2016
A Tennessee General Sessions Judge has been suspended by the Board of Judicial Conduct in the wake of her indictment on charges of official misconduct.
WATE.com reported on the charges and suspension
A Campbell County judge was suspended Wednesday after being indicted on counts of official misconduct.
General Sessions Judge Amanda Sammons, 41, faces four counts of official misconduct after investigators say she intentionally tried to harm three women. TBI Special Agents began investigating Judge Amanda Sammons. During the course of the investigation, Agents developed information that from September 2014 to January 2015, Sammons made rulings that exceeded her official power as a General Sessions Court Judge.
Krista Leigh Smith was criminally charged by Sammons. Investigators say the charge nor the bond were not based on information in Smith’s warrant, record or hearing.
Also, an order to show cause was made by Sammons against Kristie Anderson and Julie Lester on why they should not be held in contempt for not appearing in court. Investigators say these actions were also based on information not in their records.
Sammons is on interim suspension and will not be able to preside over a court, issue warrants or any other judicial duty until the Tennessee Board of Judicial Conduct says otherwise.
Wade Davies, the attorney for Judge Sammons released the following statement:
I have been informed that Judge Sammons was charged. While this is disappointing, Judge Sammons is prepared to show she has not committed any offense. Judge Sammons will plead not guilty, and we will work to get this case tried quickly so that she can go back to carrying out the job the people of Campbell County elected her to do. We understand the judge will be temporarily suspended on the basis of being accused. Judge Sammons is eager to get this resolved and not to disrupt the work of the court.
Sammons turned herself in to the Campbell County Jail and was released. She is scheduled to be in court on Thursday, August 18 for her arraignment.
Sammons ran for office in 2014, calling herself a "blue-eyed assassin" with a "low tolerance for foolishness." She has presided over many hearings in court since then, but Monday she was the center of a legal proceeding – specifically, her conduct in the case of 26-year-old Krista Smith, of Jacksboro.
Thursday, August 4, 2016
The Indiana Supreme Court reprimanded a senior judge
On the evening of Tuesday, November 17, 2015, Respondent was involved in a motor vehicle collision in Mooresville, Indiana when he made a wide right turn and collided with another vehicle that was waiting for traffic to clear. At the scene, police observed that Respondent appeared to be under the influence of alcohol, and Respondent failed or could not complete field sobriety tests. Respondent told police he had consumed one vodka on the rocks about two hours prior to the accident, and a preliminary breath test showed a blood alcohol concentration (BAC) of 0.14%. Respondent was transported to a hospital for a voluntary blood sample, the toxicology report of which reflected a blood alcohol concentration of 0.15%. En route to the hospital, Respondent asked the police officer, “Will you just take me home and forget about the drinking and driving?” At the hospital, Respondent made other statements reflecting that he did not want to be arrested and simply wanted to go home; and while the officer inventoried Respondent’s wallet, Respondent stated that he is a senior judge for the Court of Appeals. Respondent was arrested and subsequently charged with Operating a Vehicle While Intoxicated Endangering a Person, a Class A misdemeanor, see Ind. Code § 9-30-5-2(b), and Operating a Vehicle While Intoxicated, a Class C misdemeanor, see Ind. Code § 9-30-5-1(a). He self-reported his arrest to the Indiana Commission on Judicial Qualifications on November 19, 2015 and indicated that he already contacted the Judges and Lawyers Assistance Program (JLAP).
In mitigation, [the parties] agree that Respondent immediately self-reported his misconduct and voluntarily contacted JLAP; that he is compliant with all JLAP requests and regularly attends Alcoholics Anonymous meetings; that he has been fully cooperative with the Commission throughout its investigation; and that he is remorseful for his conduct. Finally, they agree that under the circumstances, the appropriate sanction is a public reprimand. The Court agrees with the parties.