Friday, November 21, 2014

Recusal Ordered As Result Of Alleged Threats Against Judges

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 reason?

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)

November 21, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 18, 2014

Ticket Off The Bench

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.

2013-1622. Disciplinary  Counsel v. Hale, Slip  Opinion No. 2014-Ohio-5053.

Video of the oral argument is linked here. (Mike Frisch)

November 18, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, October 31, 2014

Affairs Of Court

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)

October 31, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2014

Book Is Thrown At Removed Judge

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.

The court

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)

October 30, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 22, 2014

Ethics Journal Current Developments Issue Is Out

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)

October 22, 2014 in Ethics, Hot Topics, Judicial Ethics and the Courts, Law & Society, Law Firms, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, October 16, 2014

Misdemeanor

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.

On sanction

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.

(Mike Frisch)

October 16, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Niagara Fails

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)

October 15, 2014 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 1, 2014

Not So Grandson

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)

October 1, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2014

Judicial Candidate Don't Need No Stinking Badges

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.

2012-1653. In re Judicial  Campaign Complaint Against O'Toole, Slip  Opinion No. 2014-Ohio-4046.

Video camera icon View oral argument video of this case.

(Mike Frisch)

September 24, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, September 22, 2014

Judge Permanently Disbarred For Vote Buying

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.

The 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.

(Mike Frisch)


Read more here: http://www.kentucky.com/2013/11/06/2915753/five-remaining-defendants-in-clay.html#storylink=cpy

September 22, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

Judging While Intoxicated Draws Suspension

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 court

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)

September 12, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2014

Not For Adults Only: "Dignity, Always Dignity"

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 title post quote (which many other than my friend Paul Burgoyne may not recognize) comes from here. (Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (3) | TrackBack (0)

A Well-Armed Judge

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

(Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Reprimand For Drunk Driving Judge

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.

2013-1960. Ohio State Bar Assn. v. Corrigan, Slip Opinion No. 2014-Ohio-3678.

(Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2014

Judges: The Next Generation

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?

ANSWER: Yes.

FACTS

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)

August 25, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

Maine Issues Significant Judicial Recusal Opinion

The Maine Supreme Judicial Court has issued an important opinion on the subject of judicial recusal and disqualification.

The case is somewhat complex.

A Portland Maine law firm was retained by a charitable trust to foreclose on property that the trust owned.

The client (somewhat uncharitably) fell behind in its fee payments to the firm. The firm withdrew  and sued the trust for breach of contract.

Unknown to the firm, the subject property was transferred to a second charitable trust controlled by the same trustee for no consideration.

When the law firm learned of the transfer, it amended its complaint to add the second trust as a defendant and alleged that the transfer was fraudulent. The firm also filed a notice of lis pendens and attachment on the property. The court granted the relief.

The defendants sued the law firm in another county, alleging that the recording of the lis pendens constituted slander of title and tortious interference with its prospective economic advantage in reselling the property. That complaint was later dismissed on motion.

The breach of contract action was stayed in light of a fee arbitration panel proceeding. The law firm prevailed and the order was affirmed by a district court.

Proceedings in the district court were before Judge Cole. These proceedings involved discovery disputes and sanctions against the former client. Defaults against the trusts were ordered as well as a judgment for double the value of the property -- $340,000.

On appeal (and for the first time), the charitable trusts claimed that Judge Cole was required to recuse himself sua sponte because of a longstanding social relationship with a former judicial colleague (Judge Crowley) who was now at the law firm.

The court "reemphasize[d] that a party who is concerned about a judge's impartiality should tender its concerns to the court at the earliest possible moment."

Here, the charitable trusts had no done so.

Further, the court noted, there are only sixty active judges in Maine and only 3800 lawyers.

Collegiality between judges among themselves and with bar is not only permitted; it is encouraged:

At oral argument, counsel expressed surprise that judges will often have lunch together...

It is unavoidable, and indeed desirable, that judges who serve on the bench together will necessarily develop close professional relationships. We do not expect that such cordial relationships will end if a judge leaves the bench and returns to the practice of law. We are cognizant that the party status of the law firm in this instance makes this case  somewhat different from those where a former colleague is simply an advocate for a party before the court.

Judge Cole and Judge Crowley were not alleged to be related or to have financial entanglements.

Thus

 a friendship between colleagues or former colleagues that include such interactions [as lunch, golfing, hockey games or socializing at bar events] does not provide a basis for requiring recusal.

Nor do such contacts require disclosure.

The court also criticized counsel for injecting facts outside the record on appeal of the disqualification issue.

The court remanded for revised damages findings but rejected all other legal arguments raised by the charitable trusts. (Mike Frisch)

August 20, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, August 8, 2014

Illegal Sentences Get Judge Censured

The New York Commission on Judicial Conduct has censured a town court justice who imposed sentences in excess of the legal limit in 791 matters.

His story

Respondent testified that he was "shocked" when he learned of the sentencing errors. He itnposed the fines and surcharges from melnory instead of relying on the resources available to him. He acknowledged that "too many mistakes" were made and attributed his errors to "oversight," "mental lapse," "not paying attention," "mis-memoriz[ing] the law," "being overloaded" and "judicial error." He believed that he devoted sufficient time to his judicial duties (about 20 hours a week), but testified that even if he had worked longer hours, "I probably still would have made some mistakes"; he stated, "It's impossible not to make a mistake." He noted that for several months during this 29-month period, he was also doing the work of his co-judge who was unavailable.

The commission also rejected the contention that the fault lay with staff

While respondent attributes many of these unlawful dispositions to the unauthorized actions of his staff, as a judge he bears full responsibility for his clerks' conduct. This is especially so where, as the referee found, the record shows that during this period respondent did "little to nothing" to supervise his clerks, such as reviewing fine notices before they were sent or providing internal controls or written policies or procedures relating to the processing of cases (Report, p 5). Indeed, not until June 2013 three years after being served with formal charges addressing the sentencing errors he attributed to his clerks did respondent prepare a written "Policy Statement" for his staff, describing the court's procedures for handling traffic cases and making it clear that the judge imposes all fines. In view of his ethical obligation to ensure that those subject to his direction and control follow the law and "adhere to the standards of fidelity and diligence that apply to the judge" (Rules, §100.3[C][2]), respondent is responsible for the sentences imposed by his court staff.

The commission also rejected the contentions that the defendants had an appellate remedy for the excessive sentences and that, in order to discipline him, his motives must have been "vile, improper or impure." (Mike Frisch)

August 8, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 6, 2014

Magistrate Sex

A former magistrate has been publicly reprimanded by the South Carolina Supreme Court.

The magistrate was the subject of criminal charges in two matters, both of which involved providing money and other benefits including his official actions in exchange for "sexual contact."

One of the relationships extended over a period of 13 years; the other for a decade.

The magistrate pleaded guilty to one count of Misconduct in Office and  was sentenced to a year in jail with all but 90 days stayed.

The court noted that the reprimand was the most severe sanction it could impose on a former magistrate. (Mike Frisch)

August 6, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

Split Ohio Supreme Court Indefinitely Suspends Convicted Judge

Kathleen Mahoney has this report on the web page of the Ohio Supreme Court

The Ohio Supreme Court today  indefinitely suspended the law license of Bridget M. McCafferty, formerly a  judge on the Cuyahoga County Court of Common Pleas.

In August 2011, McCafferty was  convicted on 10 counts of making false statements to federal law enforcement about  phone conversations she had with former Cuyahoga County Auditor Frank Russo and  local businessman Steve Pumper regarding cases in her courtroom. Federal  officials had intercepted more than 40,000 calls as part of a federal  investigation into countywide corruption.   After some counts were merged, the federal court sentenced McCafferty to  the maximum term of 14 months in prison with three years of supervised release,  150 hours of community service, and a $400 fine. Following her conviction, the  Supreme Court suspended McCafferty’s license to practice law on an interim  basis.

In a 4-3 decision today, the  court found that the former judge had violated multiple professional and  judicial conduct rules.

Justice William M. O’Neill, who  authored the court’s majority opinion, noted that McCafferty’s misuse of her  judicial position was not charged in the federal criminal complaint against the  judge, so that conduct was not part of the disciplinary case before the Supreme  Court.

In considering whether to disbar  McCafferty, Justice O’Neill explained that the Supreme Court has sometimes  determined that permanently prohibiting a judge from practicing law is  appropriate when the judge is convicted of a felony, but the court has not  always disbarred judges for dishonest conduct.

“Certainly McCafferty’s conduct  warrants a severe sanction,” Justice O’Neill wrote. “She was convicted on  multiple counts of lying to FBI agents about conversations with people who were  the subject of a county-wide corruption investigation. In addition, McCafferty  was deceptive about the nature of those conversations, most particularly that  those conversations included matters that had been before her in court.  Notwithstanding, the conduct that led to the criminal convictions and rule  violations occurred during a single impromptu conversation with FBI agents,  rather than as a pattern of premeditated criminal conduct. Thus, we agree with  the [Board of Commissioners on Grievances & Discipline] that imposition of  the system’s most severe sanction is not warranted in this case.”

“But we also do not believe that the  appropriate sanction is a fixed-term suspension,” he continued. “Despite  McCafferty’s cooperative attitude during the disciplinary proceedings, we are  troubled by the contradiction between McCafferty’s assertion that she accepts  full responsibility for her actions and her statement that she believed that  she had answered the agents’ questions as truthfully as she could. She clings  to this claim, despite its utter implausibility in the face of the recorded  conversations. Thus, we determine that an indefinite suspension without credit  for time served [under the interim suspension] is the appropriate sanction for  her misconduct.”

McCafferty’s interim suspension  will continue until she completes the terms of her federal sentence. Her  supervised release will end on September 17, 2015, as long as she commits no  parole violations. Her indefinite suspension from practicing law will begin  after she is discharged from the federal court.

The majority opinion was joined  by Justices Paul E. Pfeifer, Terrence O’Donnell, and Sharon L. Kennedy. Justice  Judith Ann Lanzinger dissented in an opinion joined by Chief Justice Maureen  O’Connor and Justice Judith L. French.

The dissenters would have  disbarred McCafferty.

“I do not see how the majority  can square a sanction of a mere indefinite suspension with its statements that  ‘[t]his court has stated that judges are held to the highest possible standard  of ethical conduct,’” Justice Lanzinger wrote. In her view, the case deserved  the full measure of the court’s disciplinary authority.

“The majority focuses solely on  McCafferty’s conversation with FBI agents and paints her conduct as a one-time,  brief lapse in judgment,” Justice Lanzinger continued. “This narrow  characterization is simply untrue; McCafferty’s misconduct was more prolonged  and more egregious than the majority admits. Months before she ever spoke to  the FBI, McCafferty was swaying judicial outcomes for political associates and  giving special consideration to high-ranking politicians. There can be no  dispute that this conduct occurred. McCafferty’s criminal indictment outlined  her involvement with [then-Cuyahoga County Commissioner James] Dimora and  Russo, and she stipulated, at her disciplinary hearing, to engaging in the  conduct described in the indictment.”

Two of McCafferty’s disciplinary  rule violations relate to her involvement with Russo and Dimora and the abuse  of her judicial office, so that misconduct is part of the case before the  court, Justice Lanzinger contended.

“If the primary purposes of  judicial discipline are to protect the public, guarantee the evenhanded  administration of justice, and to bolster public confidence in the institution,  then nothing short of disbarment should be imposed in this case,” she  concluded.

2013-0939. Ohio  State Bar Assn. v. McCafferty, Slip  Opinion No. 2014-Ohio-3075.

(Mike Frisch)

July 17, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Waterloo

The New York Court of Appeals has suspended the recently-indicted acting village justice of Waterloo.

The Finger Lake Times reported on the charges

Acting Village Justice Roger Barto is facing nine charges, five of which are felonies, related to a reported attack last summer authorities now say  he fabricated.                                                                                

The nine-count grand jury indictment was unsealed Monday afternoon in Seneca County Court. It charges Barto with felony counts of third-degree grand larceny, fourth-degree corrupting the government, third-degree insurance fraud, first-degree falsifying business records and defrauding the government.

Barto also has been charged with misdemeanor counts of third-degree falsely reporting an incident, official misconduct and petty larceny. The latter charge stems from Barto allegedly stealing gasoline in April while serving as sexton for the village cemetery.

The felony counts are related to an incident the night of Aug. 31, 2013, when Barto told police he was assaulted while locking up the village court following an arraignment. The court is in the village’s municipal building on West Main Street.

Barto told police he was approached from behind by one or two people, and that the assailant or assailants placed an object around his neck and hit him over the head with a toilet tank lid left outside the building due to renovations.

The suspension is with pay. (Mike Frisch)

July 17, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)