Monday, June 29, 2015
The Georgia Supreme Court granted a new trial to a plaintiff who lost a medical malpractice case before a jury.
The trial judge had communicated with jurors in response to a note without advising the parties. The note was not preserved .
The plaintiff was contacted by two jurors who expressed concern about the deliberations several weeks later
the unique circumstances of this case, which include the untimely and serendipitous disclosure of the communication to Plaintiffs or their counsel; Plaintiffs’ inability to make the actual note or response a part of the record; the differing recollections about the nature and timing of the communication; the failure to resolve the perceived conflicts; and the inability to make a determination that a verdict for Defendants was demanded, regardless of any effect of the communication on the jury, support Plaintiffs’ entitlement to a new trial.
The court also reversed the Court of Appeals and concluded that the defendant had failed to preserve evidence. (Mike Frisch)
Wednesday, June 17, 2015
The New Jersey Supreme Court remanded a matter in which the defendant's motion to recuse the entire Bergen County judiciary from presiding over a criminal matter.
In this appeal, the Court considers defendant’s motion to recuse the Bergen County judiciary from presiding over his criminal indictments: The State asserts that defendant threatened to kill or harm two judges in the Bergen Vicinage, and, on that basis, defendant claimed that reasonable questions could be raised about the appearance of impartiality if a Bergen County judge presided over the indictments.
Two indictments are pending against defendant Aakash Dalal. The first charges defendant with a series of offenses directed against four synagogues and a Jewish community center. Many of the charges first appeared in six criminal complaints filed in February and March 2012. The presiding judge of the criminal division at the time initially set bail at $2.5 million. The following month, another judge denied defendant’s request to reduce his bail.
While defendant was in custody, an informant reported that defendant allegedly made threats against public officials and buildings. Law enforcement obtained a search warrant for defendant’s jail cell, where officials found handwritten documents, including a chart of “ENEMIES” that listed the criminal presiding judge as a “high profile” enemy and the assistant prosecutor on defendant’s case as a “tactical” enemy. The words “DEAD COPS, DEAD COPS” appear on another page, which also features a chart of “ENEMIES,” naming the presiding judge and the judge who ruled on defendant’s bail at the top of the diagram. The assistant prosecutor and others are listed as well. As a result, defendant was charged with conspiracy to murder the assistant prosecutor, conspiracy to possess a firearm, and terroristic threats. On August 7, 2013, a Bergen County grand jury indicted defendant on those charges.
Defendant moved to dismiss both indictments and sought to recuse the presiding judge. After the State observed that the evidence provided “a significant reason” for the court to recuse itself, the presiding judge transferred the proceedings to a third judge (the “trial court”). The trial court subsequently denied defendant’s motions to recuse the Bergen County Prosecutor’s Office and for a change of venue based on pretrial publicity.
Not all threats or efforts to intimidate a judge will require recusal. However, given the serious nature of the threat, the absence of any proof of manipulation, the potential introduction of the evidence in one of the trials, and the relationships among judges within the Bergen Vicinage, a reasonable, fully informed observer could have doubts about a Bergen County judge’s impartiality. In light of recent developments, the matter is remanded to the Bergen County assignment judge for further proceedings consistent with this opinion.
The remand requires the assignment judge to either bring in an outside judge or transfer the case to another vicinage. (Mike Frisch)
Thursday, June 4, 2015
The Mississippi Supreme Court denied a motion to reconsider its prior order that had suspended a judge with pay.
Gawker reported on allegations against the judge
This week, a Mississippi grand jury indicted Justice Court Judge Bill Weisenberger for felony assault on a vulnerable adult after he allegedly struck a mentally disabled black man and yelled, "Run, nigger, run."
According to WAPT, multiple witnesses report seeing the judge attack 20-year-old Eric Rivers while screaming racial slurs at a flea market in Canton, Mississippi last May. Weisenberger claims Rivers made "negative comments to his mother."
Weisenberger also had a lawsuit filed against both him and the county in November. The attorney for Charles Plumpp said Weisenberger arrested and jailed her client, who is African American, on the nonexistence charge of "roaming livestock."
While the judge voluntarily stepped down from his position last June, the Ledger reports that Weisenberger is currently seeking re-election.
The Commission on Judicial Performance had sought suspension without pay. (Mike Frisch)
The Florida Supreme Court has ordered a 30-day suspension without pay of a judge
The violation of the [j]udicial [c]anons in this matter arises from Judge Krause’s single incident of participating in her husband’s judicial campaign. Judge Krause admits that, while her husband was a judicial candidate, she one time used social media to seek the assistance of her friends to help her husband correct perceived misstatements of his judicial opponent.
Judge Krause accepted full responsibility for the conduct, admitted that it should not have occurred, and apologized. She explained that her social media posting followed multiple private but ignored attempts to correct what she and her husband perceived as misstatements about her previous JQC matter. Judge Krause told the Panel that those attempts included seeking counsel from her chief judge, twice sending the same letter to the candidate asking her to refrain from misrepresenting the record (and never receiving acknowledgement or a response,) and enlisting the help of an emissary to speak with her husband’s opponent. All of these attempts proved fruitless.
Judge Krause further explained that she intended her posting, which was a frustrated last effort to correct the record, to be a private message to her friends. Even still, she removed the message within hours of its posting after realizing it could have a reach beyond her circle of friends. Only through the actions of those supporting her husband’s opponent was the posting further disseminated.
The court approved a stipulation of discipline. (Mike Frisch)
Wednesday, May 27, 2015
Alaska Dispatch News has a report on ethics charges against a recently-appointed judge of the Nome Superior Court.
The News summarizes:
The statements taken from recorded court proceedings and listed in the complaint are as follows:
• On May 29, 2013, Dooley said during a sentencing, “Has anything good ever come out of drinking other than sex with a pretty girl?”
• On Oct. 29, 2013, during a sentencing, Dooley said, “What you’ve done with this young girl, it’s a strange thing, routinely done in Afghanistan where they marry 6-year-old girls. In our society, and in the society of the local tribal communities, supposed to be totally forbidden.”
• On Nov. 5, 2013, Dooley said during a sentencing, where the victim was a 14-year-old girl, “This was not someone who was, and I hate to use the phrase, ‘asking for it.’ There are girls out there that seem to be temptresses. And this does not seem to be anything like that.”
• On Aug. 12, 2014, Dooley said during a civil trial involving parties that did not have attorneys that, “I’m gonna enforce these oaths and they’re enforceable with a two-year sentence for perjury. And I’d be the sentencing judge. I also have a medieval Christianity that says if you violate an oath, you’re going to hell. You all may not share that, but I’m planning to populate hell.”
• On Aug. 20, 2014, Dooley made off-the-record comments to the jury about a soft-spoken witness, according to the complaint. “I’m sorry folks, but I can’t slap her around to make her talk louder,” the complaint accuses Dooley of saying.
Dooley’s statements, according to the accusations, violate the Alaska Code on Judicial Conduct and Alaska statutes, including maintaining “professional competence in the law,” being “patient, dignified and courteous” and acting “without bias or prejudice,” among other aspects.
Now that formal charges have been filed, Dooley will have a hearing before the commission that Greenstein described as a "full trial proceeding." If the allegations are found to have merit, the [Commission on Judicial Conduct] will recommend action to the Alaska Supreme Court.
Thanks to a reader for sending this to us. (Mike Frisch)
A judge who recused herself in a divorce case because she had the same accountant as the wife did not err in declining to recuse herself from a domestic violence matter involving the same parties.
The New Hampshire Supreme Court so held
On March 6, the day of the scheduled hearings, the respondent moved to recuse Judge Carbon from both the domestic violence and the divorce proceedings. He argued that recusal was required from both proceedings because the accountant who was scheduled to testify on the respondent’s behalf during the divorce proceeding also provided financial services to Judge Carbon. The respondent asserted that, although the accountant “w[ould] not testify in the domestic violence proceeding,” an “integral connection” existed between the domestic violence and the divorce proceedings such that Judge Carbon was required to recuse herself from both proceedings.
Following oral argument, Judge Carbon recused herself from the divorce proceeding, observing that the “Court could be accused of either giving undue preference to, or undervaluing the quality of, [the accountant’s] testimony” during the divorce hearing. However, she denied the motion seeking her recusal from the domestic violence proceeding, explaining that there was “no conflict of interest, nor any appearance of possible bias resulting from a shared professional when that person has no role whatsoever” in the domestic violence case. Accordingly, Judge Carbon presided over the March 6 domestic violence hearing, and the parties’ divorce proceeding was assigned to another judicial officer.
Recusal not required
Here, it was the accountant’s role as a witness in the divorce proceeding that caused Judge Carbon to recuse herself from that proceeding. However, because the accountant was not to be involved in the domestic violence proceeding in any manner, we conclude that a disinterested observer, fully informed of the facts, would not, in fact, entertain doubt that justice would be done.,,
Accordingly, we hold that Judge Carbon did not err by denying the motion to recuse herself from the domestic violence proceeding.
Thursday, May 21, 2015
The sanction of a small fine is based on an courthouse hallway confrontation between the judge and a public defender.
The commission found insufficient evidence that the judge punched the public defender in the face but seems to believe that the face was, as they say, punch-worthy
Substantial evidence was offered to the effect that Mr. Weinstock was generally rude, disrespectful, incompetent and a highly unlikeable lawyer.
As to the well-respected judge
Many who observed the June 2, 2014, incident were unable to explain why Judge Murphy became so angry. Judge Murphy’s therapist, Michael Ronsisvalle, testified that Judge Murphy has a strong self-preservation mode that is compulsive, and that, related to his service in the military, Judge Murphy reflects that compulsion onto other people, feeling the undeniable need to protect them, too. In addition to this predisposition to self-preserve and to protect others, Judge Murphy was emotionally affected by the shooting of a defendant in front of the Viera Courthouse just months before the June 2, 2014, incident. Shortly after that, Judge Murphy lost his father. In the three weeks immediately preceding the June 2, 2014 incident, Judge Murphy was away from home for 17 days. The last week of his absence from the Courthouse was spent at a Drug and Veteran’s Court Conference in California. Upon his return to Florida the evening of June 1, 2014, he and his wife hosted guests for a dinner party in their home. Dr. Ronsisvalle described this confluence of events as "a perfect storm" that drained Judge Murphy of emotional energy to cope with Mr. Weinstock on June 2, 2014.
The altercation between Weinstock and Judge Murphy created a remarkable national embarrassment for not only the judiciary of the State of Florida, but for its citizens as well. Statewide and national newspaper and television media reported the public and violent confrontation between a presiding Judge who actually left the bench after saying he would "beat your ass" in the midst of a judicial proceeding, and the Assistant Public Defender who had defied and disrespected the Judge.
The public defender had "some ownership" of the incident. He has resigned from the public defender's office. (Mike Frisch)
Tuesday, May 19, 2015
The Illinois Review Board has rejected a First Amendment challenge and recommended a censure of a judicial candidate for statements made in the campaign.
In 2012, Respondent ran for the office of Circuit Judge in the 20th Judicial Circuit. His opponent was Associate Judge Vincent J. Lopinot. At first he planned to run a positive campaign. However, he learned that Judge Lopinot's campaign was allegedly considering turning to negative tactics by publishing an article against Respondent about a prior charge of an "offensive battery". Respondent had read the Seventh Circuit opinion in Woidtke v. St. Clair County, id. He then, along with his campaign manager, decided to respond by sending out a flyer that contained the following language:
Rodney Woidtke spent 12 years in prison for a murder HE DID NOT COMMIT. (Source: People v. Woidtke, No. 5-99-0331, 5th District, 26 April 2000)
Supervising Public Defender VINCENT J. LOPINOT and his Assistant, Brian Trentman, "were NEGLIGENT in the representation of Mr. Woidtke in a 1989 criminal proceeding that resulted in his wrongful conviction of murder of Audrey Cardenas." (Source: Woidtke v. St. Clair County, St. Clair County Public Defenders Office, Brian K. Trentman and Vincent Lopinot, No. 02-4223, May 2003)
Next to the above statement, Respondent placed a picture of Lopinot with the word "NEGLIGENT" in white with a red background underneath the picture. Respondent sent the flyer to 75,000 to 100,000 people. Despite the mailing of the flyer, Respondent lost the election to Judge Lopinot.
The above language was taken from the Seventh Circuit opinion but was not an accurate quotation. The opinion actually read in the opening paragraphs of the opinion, "In Count I, Mr. Woidtke alleged that Attorney Trentman and his supervisor, Attorney Judge Lopinot, had been negligent in their representation of Mr. Woidtke in a 1989 criminal proceeding that resulted in his conviction." Respondent does not deny that he misquoted the Seventh Circuit opinion.
We conclude that the Hearing Board's finding that Respondent intentionally made the false statement in the flyer is not against the manifest weight of the evidence. Respondent admitted that he assisted in designing and writing the contents of the mailer and that he approved its design and contents. Respondent admitted at hearing that he reviewed the various court opinions regarding the Woidtke matter prior to completing the mailer. He did not act in haste. The Hearing Board rejected Respondent's testimony that he believed the mailer accurately quoted the Seventh Circuit opinion as "incredible and false." Respondent had no objective information from which he could have concluded that Lopinot supervised Trentman in regard to the Woidtke case. The Hearing Board, who had the benefit of listening to the witnesses, concluded Respondent deliberately and intentionally changed the language of the quotation to create a false impression. The evidence supports this finding.
The Board found that recent U.S. Supreme Court precedent supported its First Amendment position
Respondent argues that Rules 8.2(a), 8.2(b) and 8.4(c) are unconstitutional as applied to his conduct. He contends that his statements constitute political speech and are protected by the First Amendment even if the statements are knowingly false. We disagree. Respondent has failed to direct our attention to any cases which have concluded that all statements made during a judicial, or any other, election, regardless of their truth or falsity, are protected speech under the First Amendment to the United States Constitution or any State Constitution.
The United States Supreme Court has never ruled Rules 8.2(a), 8.2(b) or 8.4(c) unconstitutional. Similarly, the United States Supreme Court has never held that knowingly false statements by a judicial candidate against an opponent have First Amendment protection. Even in the most recent case cited by Respondent, United States v. Alvarez, 567 U.S. ___, 132 S.Ct. 2537 (2012), the Supreme Court pointed out that there are situations in which knowingly or recklessly made false statements are not protected under the First Amendment, citing Garrison v. Louisiana, 379 U.S. 64 (1964) where an appellate district attorney was convicted of defamation for making disparaging statements about the judiciary. See also, Williams-Yulee v. The Florida Bar, 575 U.S. ___ (2015)(Court found that a Florida rule prohibiting judicial candidates from personally soliciting campaign contributions did not violate the First Amendment given the State's interest in preserving the integrity of the judiciary).
Friday, May 15, 2015
The Cranston (Rhode Island) Patch has this recent report on criminal charges against a judge
A Cranston Municipal Court Judge and lawyer was arrested by East Greenwich Police on Monday for an alleged domestic altercation in their town.
Thomas Ricci, 51, was arraigned today in Third Division District Court on charges of domestic simple assault and domestic disorderly conduct and released on personal recognizance, court records show.
NBC10 reported Ricci beat and strangled the woman after she confronted him over text messages she found on his phone.
Ricci has served as Senior Associate Judge in Cranston Municipal Court since 2007.
He has also served on the Rhode Island Supreme Court Disciplinary Board, the state Coastal Resource Management Council and Warwick’s Judicial Selection Committee.
He is due to return to court on June 5 for a pretrial conference.
For those interested in recent cases of Rhode Island attorney discipline, GoLocalProv has this article titled Booze, Bribes, And Conspiracy. (Mike Frisch)
Monday, May 11, 2015
The Tennessee Court of Appeals has affirmed the denial of a motion to recuse the trial judge in an accident case.
There was an interesting plaintiff
This Health Care Liability action arose from an incident in which Richard Williams slipped and fell in the parking lot of a restaurant in Memphis. Mr. Williams was seventy-nine years old at the time of the fall. Mr. Williams is a former television and radio personality, who became a local celebrity as a magician performing magic tricks on a local television show, which aired on WMC-TV, the NBC-affiliate in Memphis, from 1966 until 1989. Magicland, Mr. Williams‘ magic show for children, was televised every week for a half-hour before a live studio audience. Mr. Williams, known to his fans as "Mr. Magic," holds a world record for hosting the longest running television magic show.
After Mr. Williams‘ fall, he was treated at St. Francis Hospital for a fractured hip. After a recovery period in the hospital, Mr. Williams was admitted to Appellant HealthSouth Rehabilitation Hospital North ("HealthSouth"). On his admission to HealthSouth, a nurse performed an initial assessment, spending approximately twenty minutes with Mr. Williams. The nurse oriented Mr. Williams to his room and left him to rest. Approximately forty-five minutes later, Mr. Williams was found on the floor, having fallen from his bed...
Plaintiffs claimed that Mr. Williams should have been restrained due to his allegedly confused state and further alleged that Mr. Williams‘ current dementia and Alzheimer‘s disease were caused by the fall at HealthSouth.
The recusal issue related to a video of Mr. Magic's life that the judge found "charming" and commented
Well, I must say that what we‘ve just seen is an incredibly charming presentation. And I would be less than honest if I didn‘t indicate that at this very moment, I am overcome with emotion. And during the playing, I noticed that Ms. Rezba particularly was having a more difficult time than even I am. I want to take a break to collect myself.
The judge's expressions did not create a basis to recuse
Contrary to popular belief, judges are human and, as such, have feelings and emotions. As set out in context above, Judge Russell concedes as much in his statements from the bench. However, the mere fact that a judge may feel emotion or may sympathize with a party does not, ipso facto, mean that he or she cannot be unbiased. It is the judge‘s bias (actual or perceived), and not his or her emotion, that drives the inquiry of whether recusal is warranted. Generally, the terms "bias" and "prejudice" refer to a state of mind or attitude that works to predispose a judge for or against a party...
HealthSouth‘s primary basis for its motion for recusal was the argument that, because Judge Russell showed emotion after watching the video, he would be partial to Plaintiffs in acting as Thirteenth Juror. In the first instance, the alleged bias in this case arises from events or observations that occurred during the litigation of the case; accordingly, in order to justify Judge Russell‘s recusal, HealthSouth would have to show that the ―bias is so pervasive that it is sufficient to deny‖ a fair trial. Here, HealthSouth won its case, receiving a unanimous verdict from the jury. The motion for recusal was filed before Judge Russell actually acted in his capacity as Thirteenth Juror to review the jury‘s verdict. Therefore, when HealthSouth filed this Rule 10B appeal, Judge Russell had neither reached a "prejudged conclusion because of interest, partiality, or favor," Bean, 280 S.W.3d at 803, nor had he rendered "an opinion on the merits on some basis other than what the judge learned from participation in the case." Alley, 882 S.W.2d at 821. In short, HealthSouth has failed to meet its burden to show the type of pervasive bias that would warrant Judge Russell‘s recusal.
Wednesday, May 6, 2015
An opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct
ADVISORY COMMITTEE ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 2-2015
RE: Whether a Family Court judge is required to include another attorney’s assumption of judge’s mortgage payments on judge’s disclosure statement.
Prior to being elected, a Family Court judge had an office sharing situation with Lawyer #1 and Lawyer #2, in a building owned by the judge and Lawyer #1. The judge agreed that if the judge was elected to the family court bench, the judge’s interest in the building would be transferred to Lawyer #2, who would then assume the judge’s portion of the mortgage debt. After being elected, the Judge learned from the bank that the mortgage was not assumable and that Lawyers #1 and #2 would have to re-finance the debt. Because of some complications arising from Lawyer #1’s financial and tax circumstance, the re-finance could not take place. Since the judge’s election approximately 3 years ago, the judge has tried diligently to divest the judge’s interest in the building, but the transfer has not yet taken place.
Since the election, the judge has not paid any mortgage payments or monthly expenses (except for property taxes for the year the judge was elected, where the judge actually practiced in the building for 6 months prior to election). The judge has not received any rent from Lawyer #2 or any tenant in the building. The judge has raised the issue of whether the Judge needs to report the monthly mortgage debt that has been paid by Lawyer #2 as income, as it may be considered that the judge is renting the judge’s portion of the property to Lawyer #2, who pays the judge’s portion of the mortgage as rent. The judge’s accountant has not claimed any income from the building or deductions from the mortgage debt.
A family court judge does not need to report another party’s assumption of mortgage payments on property owned by judge as income on the judge’s disclosure statement, but the judge should disclose the mortgage debt in judge’s name.
The judge is not receiving money for services rendered or monetary payments for rent. Lawyer #2 has effectively (albeit informally) assumed the mortgage, but the judge receives no money or rent, and does not claim the mortgage as a tax deduction. Thus, the judge is not required to report Lawyer’s #2’s payment of the mortgage as income on the judge’s disclosure statement. The judge should, however, disclose the existence of the mortgage in judge’s name and provide an explanation of Lawyer #2’s assumption of mortgage payments.
The title to the post honors my late friend Professor Steve Goldberg, who liked that easy-to-understand explanation of who was who in the mortgagor-mortgagee relationship. (Mike Frisch)
Wednesday, April 29, 2015
The United States Supreme Court has upheld a Florida ban on judicial candidates personally seeking campaign contributions.
The majority opinion of the Chief Justice makes clear the distinction between judicial and other elections.
Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Senate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrityof their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.
We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court...
The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with lifetenure constituted "the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws." The Federalist No. 78, at 465. Jefferson thought that making judges "dependent on none but themselves" ran counter to the principle of "a government founded on the public will." 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given ourNation jurists of wisdom and rectitude who have devotedthemselves to maintaining "the public’s respect . . . and a reserve of public goodwill, without becoming subservientto public opinion." Rehnquist, Judicial Independence, 38U. Rich. L. Rev. 579, 596 (2004).
It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity
Dissenting Justice Scalia takes the majority to task for what he calls "twistification" of the First Amendment
This Court has not been shy to enforce the First Amendment in recent Terms—even in cases that do not involve election speech. It has accorded robust protectionto depictions of animal torture, sale of violent video gamesto children, and lies about having won military medals. See United States v. Stevens, 559 U. S. 460 (2010); Entertainment Merchants, 564 U. S. ___; Alvarez, 567 U. S. ___. Who would have thought that the same Court would today exert such heroic efforts to save so plain an abridgement ofthe freedom of speech? It is no great mystery what isgoing on here. The judges of this Court, like the judges of the Supreme Court of Florida who promulgated Canon 7C(1), evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is—but so too are preventing animal torture, protectingthe innocence of children, and honoring valiant soldiers. The Court did not relax the Constitution’s guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one. The First Amendment is not abridged for the benefit of the Brotherhood of the Robe. I respectfully dissent.
Justices Thomas joined the Scalia dissent. Justices Alito and Kennedy also wrote dissents. (Mike Frisch)
Monday, April 20, 2015
The Florida Judicial Ethics Advisory Committee opines negatively on a judge's proposal to teach at his former law firm
May a judge give an educational presentation to the summer law clerks of the judge’s former law firm?
In Florida Judicial Ethics Advisory Opinion 2003-03, the Committee opined that judges could not participate in a law firm's litigation program by presiding over mock trials at a law firm’s training retreat to be held at a local resort. The judges were invited to preside over a one-day mock trial and critique and give instruction to the firm's associates in an effort to improve their trial techniques. The law firm offered to pay for the room and meals of the judges who participated in the retreat. Unlike the judges in Florida Judicial Ethics Advisory Opinion 2003-03 who would receive room and meals at a resort for their participation in a law firm's educational program, the Inquiring Judge would not receive compensation directly or indirectly for making a presentation to the law firm's law clerks. However, the reasoning in Florida Judicial Ethics Advisory Opinion 2003-03 nevertheless applies.
Canon 4 of the Code of Judicial Conduct encourages judges to engage in activities to improve the law, the legal system, and the administration of justice. Canon 4B specifies that judges are encouraged “to speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch within our system of government.”
The Commentary to Canon 4B suggests that because judges are learned in the law, they are in a unique position to contribute to educational endeavors. Consequently, there are numerous Florida Judicial Ethics Advisory Committee opinions that have permitted judges to engage in law related teaching activities. See Fla. JEAC Ops. 75-28 (justice may teach at a law school); 81-3 (judge may teach business law at a university); 87-3 (judge may participate in a legal seminar sponsored by a private law firm in conjunction with the Academy of Florida Trial Lawyers and University of West Florida); 92-29 (judge may sponsor and organize seminars for attorneys); 08-21 (judge may teach an educational/trial skills course at a Dependency Court Improvement Summit sponsored by the Department of Children and Families); 10-27 (judge may present a seminar for attorneys on suggestions and anecdotes about how to present a case to a judge that would be posted on the judge’s circuit’s website). However, no Florida Judicial Ethics Advisory Committee opinion has approved of a judge giving a private educational presentation to one law firm.
Canon 2 of the Code of Judicial Conduct is titled “A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities.” Canon 2A requires a judge to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2B prohibits a judge from lending “the prestige of judicial office to advance the private interests of the judge or others” or permitting others “to convey the impression that they are in a special position to influence the judge.” Canon 4A(1) provides that a judge shall conduct all of the judge's quasi-judicial activities so that they do not “cast reasonable doubt on the judge's capacity to act impartially as a judge.”
Giving practice “tips” at just one law firm violates the prohibitions set forth in these judicial canons. Certainly, other law firms and lawyers not associated with the firm where a judge is giving the presentation, as well as the public might legitimately believe that the judge has a special relationship with that particular law firm. Therefore, a reasonable person may question the judge’s impartiality as it relates to that law firm.
In addition, the presentation requested will be to the judge’s former law firm. A judge should take steps to avoid conduct that requires disqualification in matters that would come before the judge. It is customary for a judge to wait one or two years after becoming a judge before presiding over the judge’s former law firm’s cases. This customary wait period assumes that the judge has no financial ties to the law firm at the end of the wait period and the matter before the judge is not a case that the judge’s former law firm undertook representation while the judge was a member of the firm. See Fla. Code Jud. Conduct, Canon 3E(1)(b); Fla. JEAC Ops. 93-19 and 04-06. Giving an educational presentation to the summer law clerks of the judge’s former law firm gives the appearance that the Inquiring Judge is maintaining close ties with that firm, which in turn may result in motions to disqualify the judge.
The Inquiring Judge has indicated that the Judge would make the same educational opportunities open to any law firm that requested such a presentation. This is a laudable but unrealistic position. Canon 3A states that “[t]he judicial duties of a judge take precedence over all the judge’s other activities.” Canon 3B(8) states that a “judge shall dispose of all judicial matters promptly, efficiently, and fairly.” The Commentary to Canon 3B(8) states that the “[p]rompt disposition of the court’s business requires a judge to devote adequate time to judicial duties” and to be “expeditious in determining matters under submission. . . .”
Canon 4A(4) requires a judge to “conduct all of the judge’s quasi-judicial activities so that they do not...interfere with the proper performance of judicial duties.” Once the Inquiring Judge makes a presentation to one law firm’s summer clerks, then the Judge has burdened the Judge’s schedule with the commitment to make similar presentations to an untold number of other law firms. This obligation certainly could affect the judge’s ability to comply with Canons 3A, 3B(8) and 4A(4).
For the reasons set forth herein, the Committee, with one dissent, opines that the Inquiring Judge should not make a private educational presentation to the Judge’s former law firm or to any other one law firm.
ABC has this story raising allegations against a justice of the West Virginia Supreme Court of Appeals
A West Virginia businessman has filed a formal complaint against state Supreme Court Justice Robin Jean Davis with the state’s Judicial Investigation Commission, alleging she had a conflict of interest with a lawyer who bought a jet from her husband as he prepared to argue a $90 million case before her.
“The fact is, an attorney appearing before Justice Davis with a $90 million judgment in hand paid some $1.3 million to the Segal-Davis family, clearly creating a perception that the Justice’s ability to hear the case with complete impartiality could have been impaired,” wrote Bill Maloney, a Republican coal industry veteran from Morgantown who ran unsuccessfully for governor and now runs a conservative think tank.
The complaint is the latest challenge to Davis, the state court’s senior justice, following an ABC News investigation that discovered a lawyer appearing before her had purchased a Learjet from Alpine Air, the holding company solely owned by Davis’s husband, Scott Segal. The airplane sale took place just weeks after the Mississippi lawyer, Michael J. Fuller, had won a $90 million judgment for a client who was suing a nursing home for helping cause the death of his elderly mother. Davis found for Fuller’s client in the appeal and wrote the majority opinion in the decision that cut the award by $40 million but enabled Fuller to collect a $17 million fee. Maloney is not involved in the nursing home case, but in a statement indicated he filed the new complaint because he’s interested in protecting the reputation of the state’s judicial system so as to not scare off economic investments for the state.
Earlier ABC coverage is linked here. (Mike Frisch)
Wednesday, April 15, 2015
The Ohio Supreme Court has suspended a judge as a result of a felony conviction.
The Bellfontaine Examiner reported his resignation
An Ohio judge has resigned after a jury found him guilty of tampering with records and other charges for not disclosing his ownership interest in a Lorain office building where several lawyers have legal practices.
Lorain County Common Pleas Judge James Burge submitted his letter of resignation Tuesday to Ohio Gov. John Kasich. Burge was convicted last week.
He'd been disqualified from serving as a judge since his September indictment.
A spokesman for Kasich says the governor's office will ask the county's Republican Party for recommendations to replace Burge, a Democrat.
Burge took the bench in 2007 after years as a defense attorney. He tells The Chronicle-Telegram (http://bit.ly/1b2EWTC ) in Elyria that his resignation was a tough way to end a career in law.
Tuesday, April 14, 2015
A recent opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct
ADVISORY COMMITTEE ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 1-2015
RE: Propriety of a circuit court judge presiding over matters in which the judge’s law clerk’s father and his partner frequently appear before the circuit court.
A circuit court judge has expressed interest in hiring a law clerk for the 2016-2017 year. The potential law clerk’s father is an attorney who frequently appears in the judge’s court in both civil and criminal cases, as does the father’s law partner. The judge inquires as to whether the judge can preside over matters in which a law clerk’s father or his law partner appears.
A circuit court judge need not automatically disqualify himself or herself from a proceeding in which the attorney appearing before the judge is the father of the judge’s law clerk or the father’s law partner.
Canon 3.E.(1)(d) states that a judge should disqualify himself or herself where the judge’s impartiality might reasonably be questioned, including where “the judge’s spouse or person within the third degree of relationship to either of them, or the spouse of that person” is an attorney in the proceeding or is a material witness in the proceeding. In addition, Canons 1 and 2 of the Code of Judicial Conduct require a judge to avoid the appearance of impropriety and act in a manner to promote the public’s confidence in the integrity and impartiality of the judiciary.
In Opinion 10-2011, this Committee considered Canon 3E in determining the propriety of a Circuit Court Judge presiding where the law clerk’s uncle was the senior prosecuting solicitor. We determined that while such a relationship could create the appearance of impropriety, this appearance of impropriety does not exist for uncontested and default matters, and thus the possibility of disqualification only arose in contested cases. However, we also found that disqualification was not automatically required in all contested cases and found that the judge could utilize the remittal procedure to avoid the appearance of impropriety.
The Committee finds that the logic of that opinion should apply here. The judge should prevent the law clerk from participating in or working on any proceedings in which the clerk’s father or his law partner appear, which would eliminate any potential conflict.1 Because it is only the father of the judge’s law clerk who will appear as an attorney in a proceeding before the judge and not “the judge’s spouse or person within the third degree of relationship to either of them, or the spouse of that person,” Canon 3.E.(1)(d) does not require disqualification of the judge.2 However, the judge must still avoid the appearance of impropriety and act in a manner to promote the public’s confidence in the integrity and impartiality of the judiciary as required by Canons 1 and 2. Thus, in matters such as contested motions or trials in which the father or his law partner appear, the judge must fully disclose the relationship of the judge’s clerk and the father or his law partner.
In conclusion, the possibility of disqualification only arises in contested cases. The judge should require his law clerk to abstain from involvement, though the judge is not automatically disqualified. However, the judge should follow the remittal procedure and disclose the relationship of the judge’s clerk and the father or his law partner.
2 In Opinion 10-2011, this Committee found that Canon 3.E. (1)(d) allows a judge to prohibit a law clerk from working on a case and, thus, the judge himself would not be disqualified. However, in light of the more specific Rule 506, governing disqualification of a law clerk, the judge has no discretion in whether or not to allow a law clerk who is related by blood or marriage to a party or attorney to work on a matter. Thus, to that extent, Opinion No. 10-2011 is overruled, and a judge may not refuse to allow disqualification of a law clerk under those circumstances.
Thursday, April 9, 2015
A judge who was stopped for speeding on her way to an interview with the Judicial Nominating Commission was reprimanded by the Florida Supreme Court.
Her driving record had been an issue in an earlier interview with the commission.
From a stipulation
During an interview on March 28, 2013, the JNC questioned Judge Recksiedler regarding her driving record. Then, on March 17, 2014, while driving to another interview with the 5th DCA JNC, the Florida Highway Patrol stopped Judge Recksiedler and issued her a citation for speeding. The traffic stop caused Judge Recksiedler to be late for her interview with the JNC.
In her opening statement to the JNC on March 17, 2014, Judge Recksiedler addressed the Commission’s previously expressed concerns about her driving record by stating that she “takes its concerns about her driving seriously.” At no point during or after her interview, however, did Judge Recksiedler inform the members of the JNC that she had received a speeding ticket that morning...
Later, on September 18, 2014, Judge Recksiedler had a third interview before the 5th DCA JNC. That interview was videotaped by a local news organization. The link to the interview is: http://volusiaexposed.com/jnc/jnc9182014.html. During this interview, a Commissioner asked Judge Recksiedler about her driving record. “Judge, you came before us in March earlier this year and you addressed some of the commission’s concerns regarding your driving record and I was wondering how that was going. Have you had any stops this year?”
When testifying before the JQC investigative panel, Judge Recksiedler explained that she knew that each member of the JNC had background information that included her traffic record, including her March 17 stop. She misunderstood the question to be about stops since her March 17 JNC appearance when she had received the citation in route to the interview and as referenced by the questioner. Thus, Judge Recksiedler testified, she answered “no.” While her answer may not have been intentionally false, it was confusing and misleading. Judge Recksiedler acknowledges that she should have mentioned the March 17 traffic stop to avoid the confusion and to ensure that the commission was aware that she was not trying to avoid the issue.
Candor as a judge is clearly critical. The JQC determined that Judge Recksiedler’s lack of candor may not have been “intentionally false” but it was “confusing and misleading.” The JQC further determined that omitting important information requested from the Fifth District Court of Appeal Judicial Nominating Commission and then later providing inaccurate information regarding the traffic stop “was inappropriate.” We agree with the JQC that the incompleteness and inaccuracy of the responses constitutes a lack of candor amounting to an ethical violation where, as here, the statements are misleading.
Reprimand was appropriate because the judge accepted responsibility and showed remorse.
Details from the Orlando Sentinel. (Mike Frisch)
Tuesday, April 7, 2015
A person nominated by the Governor for a judgeship does not have a right to assume the bench if the appointment process is not completed, according to a decision of the full Massachusetts Supreme Judicial Court.
The plaintiffs, Michael J. McCarthy and Mary-Ellen Manning, filed a complaint in the county court in July, 2013, against the Governor and the Secretary of the Commonwealth, seeking to establish that McCarthy had been nominated, confirmed, and appointed to a Massachusetts judgeship in 2012, and that he is therefore entitled to a commission for that office.
The Governor's appointment of an individual to judicial office becomes effective "when the last act to be done by the [Governor is] performed." Marbury v. Madison, supra. See 1 Op. Attorney Gen. 140, 141 (1894). At a minimum, this requires that the Governor communicate unequivocally his determination, informed by the Council's advice and consent, to exercise the power of appointment. Rep. A.G., Pub. Doc. 12, at 96 (1972) ("Appointment occurs, of course, when the Council has given its advice and consent to the nomination and the judicial commission has been issued" [emphasis added]). The appointment, like the nomination, is highly discretionary, and it is for the Governor and the Governor alone to decide. There is nothing ministerial about the Governor's decisions to nominate and appoint. Contrast Rep. A.G., Pub. Doc. 12, at 107 (1984) (describing Secretary's role in judicial appointment process; stating that Secretary "functions in a . . . ministerial manner with respect to gubernatorial appointments"). As stated in Opinion of the Justices, 190 Mass. at 619-620, when the Governor has the power to act, "[t]he act, first of all, and afterwards for all time, is the act of the Governor."
There is nothing in the record before us to suggest that the Governor took action to appoint McCarthy to the vacant judgeship at any time. To the contrary, the evidence is that the Governor did not proceed with an appointment in any fashion after the vote of the Council on McCarthy's first nomination on September 26, 2012, or after Manning's letter on October 17. Instead, he resubmitted the nomination to the Council. Likewise, after the Council's vote on the second nomination, the Governor indicated that he considered the matter closed. Thus, even if we were to assume for the sake of discussion, as the plaintiffs argue, that the votes of the councillors at the September 26 meeting, supplemented with Manning's purported vote by letter to the Governor on October 17, combined to constitute the requisite "advice and consent" and the required number of votes in favor of McCarthy's nomination, we conclude nevertheless that McCarthy did not validly obtain a judgeship.
The full court agreed with a single justice that mandamus and other relief was not available. (Mike Frisch)
Monday, April 6, 2015
A New York Town Court Justice (who is not an attorney) was admonished for his handling of cash put up as a bond
After conducting a late-night arraignment in Doe, a case that was returnable in a neighboring town court, respondent did not deposit the $500 cash bail into his court account, as required by the relevant rules. Instead, he personally delivered the money later that day, along with the court records of the matter, to the Town of Wayne municipal building, leaving the envelope marked "BAIL $500.00 CASH" with an unidentified individual. Though it is unclear in the record before us whether the funds were received or deposited by the Wayne Town Court, respondent's own conduct inconsistent with his duty to safeguard court monies entrusted to his care. His departure from the mandated procedures placed the funds at risk and gave rise to questions and uncertainty as to how the money was handled all of which could have been avoided if he had deposited the bail into his court account as required. And at the very least, it was ill-advised to leave a cash-filled envelope with an unidentified person at the Wayne municipal building. Respondent's failure to keep any records of the case, or to record the arraignment, was also a violation of the procedural requirements and compounds the appearance of impropriety.
The Commission on Judicial Conduct imposed the sanction. (Mike Frisch)
Friday, April 3, 2015
A Delaware Master in Chancery has granted a motion to recuse her in light of the "appearance of impropriety"caused by her former association with a law firm involved in the case.
The mere involvement of [the law firm] Potter Anderson as counsel in a proceeding before me indisputably would not create the appearance of impartiality. Here, however, Mr. Greenspan seeks to amend the pleadings to add the firm and three of its attorneys as defendants and impose personal liability on them. I am confident that – as a subjective matter – I could hear this action free from bias or prejudice, even if Potter Anderson or various of its attorneys are added as defendants. I worked for the firm for approximately seven years, left on amicable terms, was not a partner, and do not have any continuing financial interest in the firm or any exposure to liability the firm may incur. Nonetheless, I have concluded that – under these circumstances – there would be an appearance of bias in presiding over a matter that could result in a finding of liability for my former firm or several attorneys with whom I closely worked while employed there.
I am aware– and deeply regret –that recusing myself from this case will impose additional work on one of my colleagues. The decision is not one I relish or make lightly. The importance, however, of maintaining both the fact and appearance of an unbiased judiciary must, in my view, take precedence. While Potter Anderson or its attorneys are – or may be – defendants, I believe there is a sufficient basis for Mr. Greenspan to question my impartiality.
When I was recused from an assigned matter at the Office of Bar Counsel, I took a comparable case from the colleague who replaced me. That cures any regrets. (Mike Frisch)