Thursday, January 22, 2015
From the Florida Judicial Ethics Advisory Committee comes this recent opinion
Must a judge, who receives no alimony or support from the judge’s former spouse, disclose or enter a disqualification order when a former law partner of the judge’s former spouse appears before the judge and rents space from and shares a receptionist with the judge’s former spouse?
Although one member of the Committee would require additional facts that might be relevant to this opinion, based on the underlying facts provided by the inquiring judge, the Committee believes that because the inquiring judge receives no alimony or support from the judge’s former spouse, no reasonable person would question the judge’s impartiality if an attorney appears before the judge who maintains a business relationship with the judge’s former spouse. Furthermore, disclosure of the attorney’s relationship with the judge’s former spouse is not required because the relationship is not relevant to the question of disqualification. See, e.g., Fla. JEAC Op. 02-05 where this Committee advised that a judge is not required to “per se disclose personal family matters” and that a judge in the family law division need not disclose that the judge is divorced and may potentially be involved in litigation concerning the judge’s children.
Wednesday, January 21, 2015
The New Jersey Supreme Court has issued an opinion on the following
In this judicial disciplinary matter, the Court considers two questions: (1) what the appropriate standard should be to measure whether a judge’s personal behavior presents an appearance of impropriety; and (2) whether respondents – two sitting judges – violated that standard by regularly dining in public with a longstanding friend who was under indictment for official misconduct.
In 2000, a group of friends began gathering weekly on Thursday evenings for dinner at a local restaurant followed by Mass at a nearby church. The group included Respondent Raymond Reddin, a Judge of the Superior Court in the Passaic vicinage since 2003, who was assigned to the Criminal Division; Respondent Gerald Keegan, a part-time Municipal Court Judge for the City of Paterson since 2004; Anthony Ardis, now the former Director of Management Services and Clerk to the Board of the Passaic Valley Sewerage Commission (PVSC); and others. Judge Reddin has been close friends with Ardis for fifty years; Judge Keegan and Ardis have been friends since about 1985. In February 2011, Ardis was arrested and charged with official misconduct, based on allegations that he used his public position to have subordinates perform home improvement projects for his friends and family using public resources. In June 2011, a State Grand Jury indicted Ardis, charging him with official misconduct, conspiracy, and theft by unlawful taking. Respondents knew that Ardis was under indictment for criminal offenses pending in Passaic County, and, at the same time, their group continued to meet weekly for dinner and Mass. Neither Judge considered whether their attendance raised any ethical concerns.
On Thursday, September 13, 2012, Judge Reddin, Judge Keegan, Ardis, and several others met for their weekly dinner at a restaurant in Passaic County. They dined outside on the patio in front of the restaurant. The same evening, a local Republican organization hosted a dinner at the restaurant and one of the guests (the grievant) recognized Judge Reddin and Ardis. The grievant later learned that Respondent Keegan, also seen dining with Ardis, was a Municipal Court Judge. The grievant knew that Ardis was under indictment and, days later, relayed his concerns via email to the Lieutenant Governor. The matter was referred to the Division of Criminal Justice, which, after interviewing the grievant, referred the matter to the ACJC for investigation. Although Respondents continued to dine with Ardis until the spring of 2013, they voluntarily stopped doing so as soon as they learned about the grievance from the ACJC. Both Respondents fully cooperated with the Committee’s investigation.
The court announced a new standard
"Would an individual who observes the judge’s personal conduct have a reasonable basis to doubt the judge’s integrity and impartiality?"
By socializing in public with a defendant who awaited trial on criminal charges, in the very courthouse in which one of the Respondents served as a criminal judge, both Judges in this matter reasonably called into question their impartiality and weakened the public’s confidence in the judicial system. That said, each Judge has an unblemished record and neither engaged in actual impropriety. Because the Court now revises the standard to assess a judge’s personal behavior, the Court declines to impose sanctions in this case. In an effort to offer guidance for the future, the Court emphasizes that going forward, the circumstances presented would result in the imposition of discipline under the new standard.
Tuesday, January 13, 2015
The West Virginia Supreme Court of Appeals has affirmed an order dismissing a civil action brought by a freelance news reporter for access to information concerning judicial ethics complaints.
In this matter, petitioner was not entitled to inspect or copy the complaints at issue. Taking petitioner’s complaint as true and construing it most favorably in his behalf, it is clear that petitioner’s September 7, 2012, and January 31, 2013, FOIA requests sought details of ethics complaints filed against individual West Virginia judges that were confidential under Rule 2.4. Petitioner states in his complaint that he requested the total number of judicial ethics complaints filed against individual West Virginia circuit and family court judges listed by name and categorized by year. In those requests, petitioner did not seek information regarding admonishments or hearings on formal charges before the Judicial Hearing Board, which would be public pursuant to Rules 2.7(c) and 4.3 and as otherwise permissible by law. Instead, petitioner sought information regarding "complaints filed"; such information expressly falls within that class protected by Rule 2.4.
The court upheld the consitutionality of Rule 2.4. (Mike Frisch)
Friday, January 9, 2015
The New York Commission on Judicial Conduct has admonished a town and acting village court justice.
This press release describes the conduct
The New York State Commission on Judicial Conduct has determined that Richard L. Gumo, a Justice of the Delhi Town Court and an Acting Justice of the Walton Village Court, Delaware County, should be admonished for failing to disclose that a key witness in a case was the daughter of the court clerk, permitting the court clerk to perform clerical duties in connection with the case and to be in the courtroom during the trial, and sending an inappropriate letter to the County Court Judge hearing the appeal.
The Commission concluded that Judge Gumo engaged in "impermissible advocacy" by advising the County Court Judge of facts outside the record and making legal arguments when the defendant appealed. By sending a letter that was "ethically and procedurally improper," the judge "abandoned his role as a neutral arbiter and became an advocate." The Commission stated that the judge sent the letter "in a fit of pique" because the County Court Judge had criticized his decision not to disqualify himself and had granted the defendant’s application for a stay. Judge Gumo’s decision in the case was later upheld on appeal.
The Commission also found that while it was not necessary for the judge to disqualify himself, Judge Gumo "should have disclosed the court clerk’s relationship to a potential witness in order to give the parties the opportunity to be heard on the issue before proceeding." Such disclosure, the Commission stated, was necessary "in order to dispel any appearance of impropriety and reaffirm the integrity and impartiality of the judiciary." The Commission also stated that the court clerk’s presence in the courtroom and the fact that she performed clerical duties in the case, "compounded the appearance of impropriety."
There is a partial dissent
I cannot conclude, however, that the clerk's performance of her normal clerical duties in the case and her presence in the courtroom during part of the trial violated the ethical canons under the particular circumstances here.
Court Clerk Kristin Beers was the sole clerk of the Walton Village Court. Had she been completely insulated from the Groat case, the judge himself would have been required to handle mail, perform scheduling and tnake routine notations in the court records, such as noting dates that papers were received or sent, that would have otherwise been made by the court clerk. I cannot conclude that a reasonable application of the ethical rules requires such a result under the circumstances here or that the judge's failure to do so compounds his misconduct.
Kristin Beers was not a court attorney or the judge's law clerk.
The partial dissent came from member Richard Stoloff. (Mike Frisch)
Monday, December 8, 2014
A judge of the Clarksville Town Court was reprimanded and ordered to resign from office by the Indiana Supreme Court for the following conduct
On January 16, 2014, Respondent was involved in an automobile accident in Louisville, Kentucky, that resulted in property damage to two parked cars and a fence. When later questioned by police at the hospital, Respondent admitted consuming alcohol prior to driving and having "too many" beers at a local area bar. Respondent refused to submit to a breathalyzer test or provide a blood sample. Noticing Respondent had glassy eyes and slurred speech, the officer arrested Respondent.
The judge pleaded guilty to criminal mischief in the second degree.
As to future service
he shall be ineligible for future judicial service in Indiana unless/until he submits to, and successfully completes to the satisfaction of [the Judges and Lawyers Assistance Program] , a two-year monitoring agreement and treatment plan approved by JLAP.
Friday, November 21, 2014
The New Jersey Appellate Division has reversed an order denying judicial recusal and ordered that the entire Bergen County judiciary be recused from a criminal case.
The defendant has allegedly threatened the lives of two county judges.
While there are other unthreatened judges in the county, the court here concluded that the "appearence of fairness" warranted the grant of the sought relief.
The defendant is charged with synagogue firebombings. (Mike Frisch)
Tuesday, November 18, 2014
Kathleen Mahoney reports on the web page of the Ohio Supreme Court
Harland H. Hale, who served on the Franklin County Municipal Court, has been suspended from practicing law for six months.
In a 5-2 decision, the Ohio Supreme Court determined that Hale improperly dismissed his personal attorney’s speeding ticket, tried to cover up that misconduct, and falsely testified in a disciplinary hearing that he had not represented clients in the months after he resigned from the bench.
This is the second time the court has considered the disciplinary complaint against Hale. In November 2013, the court returned the case to the Board of Commissioners on Grievances & Discipline to conduct further proceedings and to consider a harsher sanction than the six months the board had originally recommended. After reconsideration, though, the board again proposed a six-month suspension.
Hale was a judge in the municipal court’s environmental division and also served in rotation as a duty judge, assisting with criminal arraignments, traffic violations, and other court matters.
In November 2011, Patrick Quinn, Hale’s attorney in a civil lawsuit, received a speeding ticket. Quinn did not show up for his arraignment in December, and an arrest warrant was issued. Quinn contacted Hale, the duty judge at that time, asking to be arraigned without going to court.
When Hale reviewed the case file, he completed a form stating that the prosecutor was dismissing the charge against Quinn and the court was assessing no fines or costs. However, Hale had not discussed the matter with the prosecutor.
Following a media inquiry around April 2012, the city prosecutor began investigating how the case had been handled. Hale then contacted Quinn and the prosecutor, asking them to sign off on vacating the dismissal. When the prosecutor refused, Hale vacated the improper dismissal on his own and recused himself from the case.
The state’s Disciplinary Counsel filed a complaint against Hale the next spring, and Hale resigned from the bench on May 24, 2013. At a disciplinary hearing in March 2014, Hale stated that after he stepped down he had not acted as an attorney on legal matters until late November or early December 2013. A few months later, however, he notified the board’s panel reviewing his case that he had actually represented five clients during that time.
Of the seven alleged violations of judicial and attorney conduct rules, the disciplinary board voted to dismiss one that prohibits actions that adversely reflect on a lawyer’s fitness to practice law. After reviewing similar disciplinary cases in the state, the board again concluded that a six-month suspension was appropriate. It reasoned that Hale’s dishonesty related to only one incident and noted that he voluntarily gave up his job.
The Disciplinary Counsel objected to the board’s dismissal of one alleged rule violation and to the proposed sanction. Hale had argued he had served a self-imposed suspension after he resigned from the bench by not working on legal matters, even though he later admitted that was not true. Counsel contended that Hale’s false testimony was an attempt to keep the court from imposing a harsher punishment.
In an opinion written by Justice William M. O’Neill, the court found that Hale violated all seven conduct rules, including the lawyer fitness provision. Justice O’Neill stressed that Hale’s actions were serious ethical violations and that his false testimony was unacceptable, and then imposed a six-month suspension.
He noted several factors to support a suspension of this length: “(1) Hale practiced law for approximately 30 years without incident, (2) his misconduct was limited to a single case to which he had a personal connection, (3) justice was ultimately served in that matter, (4) … no litigants suffered permanent harm as a result of Hale’s misconduct, and (5) Hale acknowledged that his actions were not appropriate and voluntarily resigned from the bench within one month of [the Disciplinary Counsel’s] complaint being certified to the board.”
Joining Justice O’Neill’s opinion were Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French.
Chief Justice Maureen O’Connor and Justice Judith Ann Lanzinger dissented and would have imposed a one-year suspension.
Video of the oral argument is linked here. (Mike Frisch)
Friday, October 31, 2014
A circuit court judge has been censured, suspended and ordered to pay costs by the West Virginia Supreme Court of Appeals.
In this judicial disciplinary proceeding, a circuit court judge admits that she had an affair with a local man for over two years, and concealed the relationship from her husband and the man’s wife. The judge deliberately intertwined the affair with her judicial office, and eventually involved her staff, courthouse employees, the prosecuting attorney’s office, and local lawyers in concealing the affair. Further, the circuit court judge’s paramour and his subordinates routinely appeared in criminal cases on the prosecuting attorney’s behalf in her courtroom. The judge never revealed her relationship to any defendant or any other litigant even though she knew she was ethically bound to do so. She only admitted to the relationship when she learned that other lawyers were contemplating filing complaints against her with the Judicial Investigation Commission.
Eventually, the circuit court judge stipulated to some of the facts relevant to the affair. The circuit court judge also agreed not to contest some of the disciplinary charges against her because, as the Judicial Hearing Board found, "it was not credible to do so."
The evidence before the Hearing Board established a clearly articulable nexus between the judge’s extrajudicial misconduct and her judicial duties. The Hearing Board determined that the circuit court judge’s conduct constituted eleven separate violations of seven Canons of the Code of Judicial Conduct, and recommended she be severely sanctioned. The circuit court judge now appeals, arguing that there is insufficient proof to support five of the eleven violations, and arguing that the recommended sanctions are too severe.
As set forth below, this Court adopts the Hearing Board’s finding that the judge committed eleven violations of seven Canons. The judge demeaned her office, and significantly impaired public confidence in her personal integrity and in the integrity of her judicial office. As a sanction, we hold that the judge must be censured; suspended until the end of her term in December 2016; and required to pay the costs of investigating and prosecuting these proceedings.
The judge had the affair with a Mr. Carter. She placed court staff in a "difficult position" and used the services of her clerk, two attorneys and others to facilitate the relationship.
The court rejected her claim that this was a private matter
We largely reject Judge Wilfong’s arguments. We recognize that Judge Wilfong probably, initially, intended her conduct with Mr. Carter to be nothing more than a private relationship between consenting adults. "Although both were married to other people, we normally would be loath to interfere in such personal matters. In this case, however, the private aspects of the affair are secondary to the public problems it has created." In re Gerard, 631 N.W.2d 271, 277 (Iowa 2001). Judge Wilfong carelessly and deliberately intertwined her affair with her judicial office, and in so doing seriously damaged public confidence in the integrity and impartiality of the judiciary.
The suspension is without pay.
Judge Loughry concurred and dissented, reserving the right to file an opinion. (Mike Frisch)
Thursday, October 30, 2014
A county court judge has been removed from office by order of the Florida Supreme Court.
Among the findings of misconduct were issues relating to the sale of her self-published book
After considering all the evidence presented, the Hearing Panel concluded that Judge Hawkins was guilty of violation of Count I(A) in that she operated a private, for-profit business, from which she derived substantial income, from her judicial chambers using official time and judicial resources. The Hearing Panel also concluded that she used her judicial position to promote Gaza Road Ministries by selling and offering to sell Gaza Road Ministries products in the courthouse to persons over whom she had disparate influence and authority, including lawyers who appeared before her and various courthouse employees. The Hearing Panel found Judge Hawkins guilty of promoting the sale of Gaza Road Ministries products on a website that included photographs of her in her judicial robes, and guilty of knowingly using her judicial assistant to promote and produce the Gaza Road Ministries products during working hours.
The hearing panel also found that the judge had violated tax laws and
she was openly observed reading magazines, which Judge Hawkins later characterized as legal materials, during court proceedings and covering up her inattentiveness by asking counsel to rephrase the question.
The judge displayed lack of candor in the investigation.
we are constrained to conclude that Judge Hawkins’ prior record of service and good intentions cannot overcome the grievous nature of the violations in this case. While sale of her book to employees and lawyers in the courthouse, standing alone, would not justify removal, we cannot ignore the fact that Judge Hawkins employed court resources in the operation of her business for a lengthy period of time and failed to see that such conduct was improper under the Canons of Judicial Conduct. Moreover, even in the response to our final order to show cause, Judge Hawkins maintained a defensive posture concerning her conduct in refusing to answer questions and refusing to provide investigatory materials, even after issuance of an order to compel. In defending her conduct, Judge Hawkins asserted that her faith instructed her to hold fast to her innocence and "fight the good fight." We agree with the Commission that obfuscation and frustration of proper discovery, and refusal to answer questions posed by the Investigative Panel, Judicial Qualifications Commission counsel, the Investigator, and the Hearing Panel, do not constitute fighting the "good fight." The Canons require a judge to personally observe high standards of conduct so that the integrity of the judicial system may be observed
The opinion ends on this note
It is our hope that this decision will serve as a reminder to judges of their continuing obligation to personally observe the high standards of conduct mandated by the Code of Judicial Conduct, and to conduct themselves in all things in a manner that will demonstrate candor and preserve the integrity and independence of the judiciary.
Earlier coverage here from the Tallahassee Democrat. (Mike Frisch)
Wednesday, October 22, 2014
My favorite issue of the Georgetown Journal of Legal Ethics -our yearly compilation of student notes on current developments in ethics law - has just hit the street.
This issue holds up well with the past editions and gives the reader excellent exposure to the hottest legal ethics issues that face 21st century members of the legal profession.
As co-faculty advisor (along with my colleague Professor Mitt Regan) to the journal, I am biased in its favor.
With that disclaimer, I highly recommend that all practitioners with an interest in ethics take a look.
Kudos to the journal staff for their hard work and dedication to this notable contribution to the profession. (Mike Frisch)
Thursday, October 16, 2014
The Florida Supreme Court has reprimanded a circuit court judge for issues relating to her on-bench demeanor and testimony on behalf of her arrested sister.
As to demeanor
From a review of the audio recordings of those cases, it is apparent that Judge Kautz was frustrated by the use of the court system by some as a solution to the many prob[l]ems inherent in those cases. It is clear that Judge Kautz was intending to engender a more self-reliant spirit in those appearing in court. However in doing so, she at times demeaned those who appeared seeking injunctions or family members seeking assistance from the Court.
For her sister
Judge Kautz appeared at a First Appearance hearing before Judge Ritterhoff Williams, on behalf of her sister, Rhonda Kautz. At that hearing Judge Kautz first vouched for her as a character witness. She also argued on her sister’s behalf about the circumstances surrounding the allegations contained in the probable cause affidavit. Finally she requested that the Judge order law enforcement to assist her sister by accompanying her to the house to retrieve personal items.
She did not identify herself as a judge in her testimony and now concedes that the appearence violated judicial canons.
Judge Kautz has admitted the foregoing, accepts full responsibility, and acknowledges that such conduct should not have occurred. Judge Kautz now recognizes that this understanding was incorrect and has undertaken steps to prevent their reoccurrence.
The Judicial Qualifications Commission has concluded that while the judge’s conduct was misguided, it was not ill intentioned. Accordingly, the Commission therefore finds and recommends that in the interests of justice, the public welfare and sound [judicial] administration will be well served by a public reprimand of Judge Kautz.
Wednesday, October 15, 2014
A justice of the Niagara Falls City Court has been admonished by New York Commission on Judicial Conduct for mistreatment of a pro se litigant
Respondent asked Mr. Santana some basic informational questions about, inter alia, his employment, falnily and birthplace. Mr. Santana gave the name of his employer, but then said something in Spanish and indicated he could not understand respondent's inquiry regarding the nature of his work. When respondent asked, "Where were you born?" Mr. Santana asked, "Como est' Ms. Vasquez said, "Pardon me?" Respondent repeated the question, and Ms. Vasquez answered, "Puerto Rico." Mr. Santana then stated, "Puerto Rico, yeah."
Respondent thereupon stated: Okay. Go ahead, Mr. Koryl. I think he understands English. The last time I heard, I think Puerto Rico was bilingual.
Respondent did not inform Mr. Santana and Ms. Vasquez that no interpreter would be appointed and that the proceeding would not be adjourned.
From the news release of the commission
In 2013, Judge Merino presided over a summary eviction proceeding involving a Spanish-speaking native of Puerto Rico, who had limited proficiency in English. At the outset of the proceeding the judge stated that he would adjourn the proceeding so that an interpreter could be provided. However, after asking the tenant some basic questions, to which the tenant had trouble responding, the judge decided to move forward without an interpreter and ultimately issued a warrant of eviction.
The judge agreed to the sanction. (Mike Frisch)
Wednesday, October 1, 2014
A municipal court judge has been reprimanded by the South Carolina Supreme Court for intervening in a driving while suspended charge against her grandson
Respondent's grandson was charged with Driving under Suspension, 1st offense. The matter was pending before a magistrate. Respondent contacted the magistrate's office and identified herself as a judge in the telephone conversation. Respondent did not place the call in an attempt to get the charge dismissed but to facilitate her grandson's plea as he was currently incarcerated on other matters...
Respondent asserts she never intended to use her position as a judge to help her grandson and that she was just trying to enable him to plead guilty to the charge. Respondent submits she did not identify herself as a judge in the second letter and that she did not write either letter on court stationary or letterhead.
Respondent since hired a lawyer to represent her grandson and the Driving under Suspension charge was resolved with a plea. Respondent is aware that she should not have used her title in speaking to the magistrate's office and regrets her conduct. Respondent submits she will not repeat her conduct in the future.
The judge admitted the ethical violations. (Mike Frisch)
Wednesday, September 24, 2014
Kathleen Maloney reports on a decision filed by the Ohio Supreme Court
The Ohio Supreme Court today found that part of a rule governing the conduct of candidates running for judge is unconstitutional.
In an opinion written by Justice Judith Ann Lanzinger, the court held that the portion of Jud.Cond.R. 4.3(A) that prohibits a judicial candidate from conveying true information about the candidate or the candidate’s opponent that is nevertheless deceiving or misleading to a reasonable reader violates the candidate’s constitutional right to free speech. The court severed this part of the rule from the Code of Judicial Conduct.
In addition, the court affirmed the public reprimand of Colleen M. O’Toole by a court-appointed commission reviewing the matter for wearing a name badge stating that she was a judge. At that time, she was not a judge but was running for a spot on the Eleventh District Court of Appeals. But the court dismissed a charge concerning language that appeared on her campaign website in light of ruling that the related judicial conduct rule is unconstitutional.
O’Toole served as a judge in the Eleventh District from 2004 to February 2011. In 2012, she ran again for judge on the same court and subsequently won the election.
Before the election, a grievance was filed against O’Toole for certain campaign activities. A five-judge commission appointed by the Ohio Supreme Court found that statements posted on O’Toole’s campaign website were misleading and worded to give the impression she was a sitting judge in 2012. The commission also concluded that a name badge she wore during her campaign, which read “Colleen Mary O’Toole, Judge, 11th District Court of Appeals,” left the impression that she was still a judge at that time.
The commission publicly reprimanded O’Toole and also ordered her to pay a $1,000 fine, the costs of the proceedings, and $2,500 in attorney fees.
O’Toole appealed to the Ohio Supreme Court, in part challenging the constitutionality of Jud.Cond.R. 4.3(A).
Rule 4.3 provides standards for communications by candidates during campaigns for judicial office. Justice Lanzinger noted that “section (A) restricts two categories of speech by judicial candidates such as O’Toole: (1) speech conveying false information about the candidate or her opponent and (2) speech conveying true information about the candidate or her opponent that nonetheless would deceive or mislead a reasonable person.”
The rule is a content-based regulation protected by the First Amendment to the U.S. Constitution, Justice Lanzinger explained. To prove that the rule is constitutional, she added, the government must show that the regulation serves a compelling state interest, and the rule must be narrowly tailored to meet that interest.
The court stated that the Code of Judicial Conduct, including this rule, is designed to promote and maintain an independent, fair, and impartial judiciary and to ensure public confidence in the judicial system – both compelling state interests.
After pointing out that lies do not add to a robust political atmosphere and are not protected by the First Amendment in the same way that truthful statements are, Justice Lanzinger wrote, “The portion of Jud.Cond.R. 4.3(A) that limits a judicial candidate’s false speech made during a specific time period (the campaign), conveyed by specific means (ads, sample ballots, etc.), disseminated with a specific mental state (knowingly or with reckless disregard) and with a specific mental state as to the information’s accuracy (with knowledge of its falsity or with reckless disregard as to its truth or falsity) is constitutional.”
“However, the latter clause of Jud.Cond.R. 4.3(A) prohibiting the dissemination of information that ‘if true,’ ‘would be deceiving or misleading to a reasonable person’ is unconstitutional because it chills the exercise of legitimate First Amendment rights,” she concluded. “This portion of the rule does not leave room for innocent misstatements or for honest, truthful statements made in good faith but that could deceive some listeners.”
Under its constitutional authority to regulate the practice of law, Justice Lanzinger wrote that the court today “narrow[s] Jud.Cond.R. 4.3(A) to provide that no candidate for judicial office shall knowingly or with reckless disregard do any of the following: ‘Post, publish, broadcast, transmit, circulate, or distribute information concerning the judicial candidate or an opponent, either knowing the information to be false or with a reckless disregard of whether or not it was false.’ The remaining language in Jud.Cond.R. 4.3(A), ‘or, if true, that would be deceiving or misleading to a reasonable person,’ is severed.”
The court then determined that O’Toole violated the conduct rule by wearing a badge claiming she was a judge during a time when she did not hold judicial office. The court agreed with the commission that a public reprimand for the misconduct was appropriate.
“This intentional misrepresentation is not protected speech under the First Amendment,” Justice Lanzinger reasoned. “By repeatedly calling herself a judge when she was not, O’Toole undermined public confidence in the judiciary as a whole.”
However, the allegation that O’Toole’s website was crafted in a way to mislead readers into thinking she was a sitting judge running for reelection is dismissed, given the language that has been severed from the judicial conduct rule, Justice Lanzinger explained.
The court also lifted an earlier stay on the imposition of the fine, costs, and attorney fees.
Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor, Justice Terrence O’Donnell, Justice Judith L. French, Judge Vernon Preston of the Third District Court of Appeals, and Judge Patrick Fischer of the First District Court of Appeals. Judge Preston served in place of Justice Sharon L. Kennedy, and Judge Fischer filled in for Justice William M. O’Neill. Justices Kennedy and O’Neill both recused themselves from the case.
Justice Paul E. Pfeifer concurred in the majority’s judgment except for the award of $2,500 in attorney fees. He noted that the original complaint was filed by a friend of O’Toole’s political opponent in the 2012 election and included 12 counts of alleged misconduct. Nine counts were dropped before the hearing conducted by a disciplinary panel, and one was dismissed after the hearing.
The judicial commission ordered O’Toole to pay $2,500 in attorney fees based on two violations of the judicial conduct rules. Because the court has found that O’Toole committed only one violation, Justice Pfeifer would cut the attorney fees in half, to $1,250.
Monday, September 22, 2014
A former judge who pleaded guilty to a RICO count after the Sixth Cicuit had reversed his jury trial conviction of five felony counts of vote buying conspiracy accepted permanent disbarment by the Kentucky Supreme Court.
Ultimately, on November 6, 2013, Maricle entered a negotiated guilty plea to the RICO charge. He admitted that he and his associates accessed the Clay County Board of Elections in order to corruptly influence the outcome of elections. Furthermore, he confessed to providing cash to bribe voters with the understanding that his associates would ensure that the bribed voters cast their ballots as directed. Additionally, Maricle acknowledged that several of his associates received public works contracts (some of which were funded by federal grant money) by virtue of their participation in the election-fraud enterprise. Pursuant to his negotiated guilty plea, he was sentenced to time served, plus supervised release for two years (to include six months of home incarceration), 200 hours of community service, and no participation in the political process.
The history is told by Kentucky.com
The five remaining defendants in a case alleging widespread vote fraud in Clay County pleaded guilty Wednesday, capping a long-running investigation in which some of the most prominent officials in the county went to prison.
Those who pleaded guilty were longtime Circuit Judge R. Cletus Maricle, 70; two-term county Clerk Freddy W. Thompson, 50; Douglas C. Adams, 62, who was county school superintendent from 1999 to 2009; Charles Wayne Jones, 74, who had been an election commissioner; and William E. Stivers, 61, a former precinct worker.
Former Magistrate Stanley Bowling; Bart Morris, who owned a garbage-hauling business; and his wife, Debra Morris, pleaded guilty in the case in September.
The eight were charged with being part of a racketeering conspiracy to use the county Board of Elections as a tool to buy or steal votes — by appointing corrupt precinct workers, for instance — in the 2002, 2004 and 2006 elections.
Witnesses at a 2010 trial in the case said candidates pooled hundreds of thousands of dollars to buy votes as part of the scheme, with power, jobs and contracts as the prizes. A jury convicted the eight of all charges against them in 2010.
However, a federal appeals panel ruled this year that U.S. District Judge Danny Reeves, who presided over that trial, allowed prosecutors to present evidence that should not have been given to jurors. The appeals panel said the eight had not gotten a fair trial and voided the convictions.
Friday, September 12, 2014
The Iowa Supreme Court has suspended a judge for 30 days without pay for judging while intoxicated
The gravamen of the original complaint that triggered commencement of the proceeding was a report that the judge arrived at a courthouse in an intoxicated state and could not perform her scheduled judicial duties...
The precipitating incident that gave rise to the complaint was the arrival of Judge Dean at the Henry County Courthouse that morning where she was said to be physically unable to take the bench. The complaint indicated reports that Judge Dean had been consuming alcohol prior to her arrival at the courthouse. The complaint also recited a history of Judge Dean’s absence from work for health-related reasons presumed to be alcohol related.
The record in this case establishes that after a substantial period of difficult and painful struggle with alcoholism, Judge Dean has confronted her disease and now has demonstrated a deep personal commitment to recovery. She appears to have overcome the denial, recovered from the embarrassment, recognized the depth of the problem of alcohol dependence, and most importantly has been able to establish the kind of supportive framework associated with successful recovery over a lifetime. It has not been an easy road for her and will not always be an easy road in the future. But, the fact Judge Dean has chosen to commit herself to a disciplined program of recovery is a significant mitigating factor and offers her the potential of a continued successful judicial career. Indeed, our state is no stranger to recovering alcoholics who have performed outstanding judicial service after successfully confronting the disease.
The judge will be monitored for two years. (Mike Frisch)
Wednesday, August 27, 2014
The South Dakota Special Committee on Judicial Ethics Campaign Intervention has issued an opinion that concludes that, with dignity, a judicial candidate can advertise in a movie theater.
The opinion relies on the Merriam Webster dictionary definition of "dignity."
Warning: it would not comport with the dignity standard to advertise for a judicial campaign in an adult movie theater.
Also, dignity may be affected by the particular movie that is being shown when the ad runs.
I welcome reader suggestions as to movies that may not satisfy the dignity standard.
For instance, how about The Verdict, where the judge clearly favors the big law firm throughout the litigation?
And what if the candidate mistakenly thinks that "Deep Throat" is a movie about the Watergate investigation?
The Ohio Supreme Court entered an order disqualifying a judge from sitting in light of a recent felony indictment.
WKYC.com reported on the charges
Mason, 46, of Cleveland, who is also a former Democratic member of the Ohio Senate and represented the 25th District from 2007 to 2008, is accused of attacking his wife Aisha Mason just after noon Aug. 2 while they were driving in their car with their two children on Van Aken Boulevard.
Court documents reflect that Mason hit his wife with his fists, slammed her head against the dashboard and bit her.
They have been married since 2005 and separated this past March.
In a 9-1-1 call, his wife told dispatchers he threw her out of the car, beat her and then drove off with the children.
And from Raw Story comes the results of a search of the judge's home
About 2,300 live rounds of various calibers
- Nearly 500 shotgun slugs
- A Mossberg 12-gauge shotgun
- A Winchester shotgun
- A 50-shell shotgun belt
- A FNH P90 semi-automatic rifle still in the box
- A JLD Enterprises Inc. PTR-91 semi-automatic rifle with a scope
- A Smith & Wesson handgun
- A Springfield Armory .40 caliber-handgun
- A sword
- Four canisters of smoke grenades
- A KDH bulletproof vest
- A Jaguar knife
The Ohio Supreme Court web page reports
The Ohio Supreme Court has publicly reprimanded Peter J. Corrigan, a judge for the Cuyahoga County Court of Common Pleas, following his convictions for operating a vehicle under the influence of alcohol and impeding the roadway.
In a unanimous decision announced today, the court adopted an agreement between Corrigan and the Ohio State Bar Association, which filed the charges alleging that he violated a judicial conduct rule.
In December 2012, the judge was found slumped over the wheel of his car in an intersection. While his foot was on the brake, his car was still in the drive position. Following his arrest, Corrigan pled no contest to the charges.
The court’s per curiam opinion noted that Corrigan was sentenced to three days in jail or participation in a driver-intervention program and received a one-year driver’s license suspension and a one-year period of community control. He also paid a fine and court costs.
Based on these penalties and other mitigating factors, the absence of any aggravating circumstances, and other cases involving similar offenses, the court agreed that a public reprimand was appropriate for Corrigan.
Monday, August 25, 2014
A recent opinion from the Florida Judicial Ethics Advisory Committee
May a sitting judge, who is not up for election in the current cycle, and whose adult child is running for an open judicial position, attend the adult child’s post-election gathering after all polls close in the relevant voting area?
The adult child of a sitting judge is running for an open judicial seat. The inquiring judge would like to attend the adult child’s post-election gathering. The inquiring judge states that, in an attempt to avoid the appearance of influencing potential voters, the judge would not attend the gathering until all relevant polls are closed. The inquiring judge adds that the post-election gathering will be comprised of people who previously knew the judge as the candidate’s parent.
The majority's rationale
The intent of Canon 7 is to separate judges and judicial candidates from political activity, including partisan activities and, more relevant to the present inquiry, endorsement of other candidates for public office. See Fla. JEAC Ops. 07-13, 06-13. Canon 7A(1)(b) quite specifically states that a judge shall not “publicly endorse or publicly oppose another candidate for public office.” Canon 7D also states: “A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law, the legal system or the administration of justice, or (iii) as expressly authorized by law.” Accordingly, the dispositive question is whether the inquiring judge’s proposed conduct constitutes a public endorsement for purposes of Canon 7.
The majority view is that it does not but, as noted, their position has taken into account four unusual and very specific facts included within the inquiry. First, the Committee assumes this function is intended as a typical victory party following the completion of the election. If so, it is difficult to conceive how the judge’s personal appearance could influence any voters given that the act of voting was accomplished hours before the event commenced. A different conclusion would have been drawn if the inquiring judge’s child were in a multi-candidate race with the prospect of a runoff.
Second, the majority’s determination is limited to judicial races only, in which partisanship is not a factor and the candidates themselves do not make endorsements. In other words, this will not be a combination of celebration and “rallying the troops” such as may be experienced in partisan or issue-oriented politics. A post-election gathering can easily become a political event based on what occurs, which will not be known until the event is in progress. See, e.g., Fla. JEAC Op. 10-20: “[C]aution is strongly advised when attending these types of events, since the purpose is for the citizens to voice their opinions on varying issues and their expectation of receiving a pledge or commitment on particular issues from the public figures and/or elected officials.” See also Fla. JEAC Op. 98-17 (judicial candidates should be cautious that their presence, remarks, and/or actions are not construed by others to be political or partisan).
Third, it is important that the inquiring judge not be up for election or retention during the same cycle as the judge’s child, lest the event be perceived as participation in a slate of candidates rather than an event limited to honoring a specific and successful individual candidate. Conceivably a different conclusion might be drawn if both the judge and the judge’s child had won their respective races, but for purposes of this opinion we limit ourselves to the actual facts.
Fourth and finally, the majority have placed considerable weight on the fact the candidate is the inquiring judge’s child. It is difficult to imagine that any voter would not assume that the judge supports the child’s electoral efforts even if the judge cannot personally say so during the campaign.
The minority view is expressed in the opinion. (Mike Frisch)